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American Export Isbrandtsen Lines Inc. & Another Vs. Joe Lopez & Another

of the goods the goods are lost to the owner. The word loss as used in Paragraph 6 is in our opinion intended to mean and include every kind of loss to the owner of the goods - whether it is the whole of the consignment which is not delivered or part of the consignment which is not delivered and whether such non-delivery of the whole or part is due to the goods being totally lost or merely lost to the owner by such fact of non-delivery there is in our opinion loss within the meaning of the word as used in Paragraph 6."Proceeding further the Court observed : "When the object of this particular paragraph and the setting of this paragraph in the article after the previous paragraphs are considered there remains no doubt whatsoever that the learned judges of the Bombay High Court were right in their conclusion that the loss or damage in this paragraph is a wide expression used by the Legislature to include any loss or damage caused to shipper or consignee in respect of which he makes a grievance and in respect of which he claims compensation from the shipping company." The Court further held that : "The date on which the goods should have been delivered clearly contemplates a case where the goods have not been delivered. The clause gives the owner of the goods one years time to bring the suit - the year to be calculated from the date of the delivery of the goods where the goods have been delivered and from the date when the goods should have been delivered where all or some of the goods have not been delivered." (italicized is by us) Proceeding further the Court observed : "There is nothing however to justify the conclusion that the consignee is bound to avail himself of the right to claim as tenant in common. The breach of contract remains and the claim for compensation for such breach is in no way affected. Neither authority nor principle therefore supports the contention of the learned Solicitor General that where the goods are in existence but cannot be delivered because they have been mixed up with the cargo of other owners there has been no loss within the meaning of the third clause of Paragraph 6 of Article 3." 6. Dealing with the scope of the expression "when the goods should have been delivered" in clause (3) of Paragraph 6, the Court observed :"But whether the delivery has to be made to the consignee at the ships side or is made on the quay side there can be little doubt that the carriers duty is to start the delivery of goods as soon as the ship arrives at the port of destination and to complete the delivery before the ship leaves the port. In a particular case the carrier may not do his duty. That cannot however alter the fact of the existence of his duty to complete the delivery between the arrival of the ship at the port and the departure of the ship from the port. If as regards any particular goods this duty remains unperformed at the time when the ship leaves the port there can be no escape from the conclusion that the point of time when the ship leaves the port is the latest point of time by which the goods should have been delivered." Dealing with the same topic, the Court further observed : "But whether the delivery is to be made to the consignee or to anybody else on his behalf the duty of the ships master is to start the delivery as soon as possible after the ships arrival at the port and to complete it before the date of departure from the port. Before the ship has actually left the port it is not possible to say that the time when delivery should be made has expired. Once however the vessel has left the port it cannot but be common ground between the carrier and the consignee that the time when delivery should have been made is over. It is this point of time viz., the time when the ship leaves the port, which in our opinion should be taken as the time when the delivery should have been made." 7. From the passages quoted above, it is clear that this Court had come to the conclusion that if by the time ship leaves the port, the goods shipped or any part thereof had not been delivered, it will be a case of non-delivery of the goods on the date when the goods should have been delivered. In that decision this Court has taken the view that the last date for filing the suit for "loss or damage" is one year from the date the ship left the port. The cause of action of filing the suit for "loss or damage" is one. Quite clearly, the claim in respect of short delivery is clearly barred by time. If we are to accept the contention of the plaintiff that his claim in respect of the damage caused to the goods delivered to him arose only on the date when the goods were delivered to him, then it means that the plaintiff had two causes of action under clause (3) of Paragraph 6, one relating to the loss and another relating to damage. From the language of the clause in question it is not possible to accept that contention. As observed by this Court in the decision referred to above the time when the ship leaves the port should be taken as the time when delivery should have been made. Any delivery which had not been made by that date comes within the mischief of clause (3) of Paragraph 6. We think that the question of law arising for decision in this case is covered by the ratio of the decision of this Court in The East & West Steamship Companys case (supra).

1[ds]6. Dealing with the scope of the expression "when the goods should have been delivered" in clause (3) of Paragraph 6, the Court observed :"But whether the delivery has to be made to the consignee at the ships side or is made on the quay side there can be little doubt that the carriers duty is to start the delivery of goods as soon as the ship arrives at the port of destination and to complete the delivery before the ship leaves the port. In a particular case the carrier may not do his duty. That cannot however alter the fact of the existence of his duty to complete the delivery between the arrival of the ship at the port and the departure of the ship from the port. If as regards any particular goods this duty remains unperformed at the time when the ship leaves the port there can be no escape from the conclusion that the point of time when the ship leaves the port is the latest point of time by which the goods should have been delivered."Dealing with the same topic, the Court further observed :"But whether the delivery is to be made to the consignee or to anybody else on his behalf the duty of the ships master is to start the delivery as soon as possible after the ships arrival at the port and to complete it before the date of departure from the port. Before the ship has actually left the port it is not possible to say that the time when delivery should be made has expired. Once however the vessel has left the port it cannot but be common ground between the carrier and the consignee that the time when delivery should have been made is over. It is this point of time viz., the time when the ship leaves the port, which in our opinion should be taken as the time when the delivery should have been made."7. From the passages quoted above, it is clear that this Court had come to the conclusion that if by the time ship leaves the port, the goods shipped or any part thereof had not been delivered, it will be a case ofy of the goods on the date when the goods should have been delivered. In that decision this Court has taken the view that the last date for filing the suit for "loss or damage" is one year from the date the ship left the port. The cause of action of filing the suit for "loss or damage" is one. Quite clearly, the claim in respect of short delivery is clearly barred by time. If we are to accept the contention of the plaintiff that his claim in respect of the damage caused to the goods delivered to him arose only on the date when the goods were delivered to him, then it means that the plaintiff had two causes of action under clause (3) of Paragraph 6, one relating to the loss and another relating to damage. From the language of the clause in question it is not possible to accept that contention. As observed by this Court in the decision referred to above the time when the ship leaves the port should be taken as the time when delivery should have been made. Any delivery which had not been made by that date comes within the mischief of clause (3) of Paragraph 6. We think that the question of law arising for decision in this case is covered by the ratio of the decision of this Court in The East & West Steamship Companys case (supra).

### 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: of the goods the goods are lost to the owner. The word loss as used in Paragraph 6 is in our opinion intended to mean and include every kind of loss to the owner of the goods - whether it is the whole of the consignment which is not delivered or part of the consignment which is not delivered and whether such non-delivery of the whole or part is due to the goods being totally lost or merely lost to the owner by such fact of non-delivery there is in our opinion loss within the meaning of the word as used in Paragraph 6."Proceeding further the Court observed : "When the object of this particular paragraph and the setting of this paragraph in the article after the previous paragraphs are considered there remains no doubt whatsoever that the learned judges of the Bombay High Court were right in their conclusion that the loss or damage in this paragraph is a wide expression used by the Legislature to include any loss or damage caused to shipper or consignee in respect of which he makes a grievance and in respect of which he claims compensation from the shipping company." The Court further held that : "The date on which the goods should have been delivered clearly contemplates a case where the goods have not been delivered. The clause gives the owner of the goods one years time to bring the suit - the year to be calculated from the date of the delivery of the goods where the goods have been delivered and from the date when the goods should have been delivered where all or some of the goods have not been delivered." (italicized is by us) Proceeding further the Court observed : "There is nothing however to justify the conclusion that the consignee is bound to avail himself of the right to claim as tenant in common. The breach of contract remains and the claim for compensation for such breach is in no way affected. Neither authority nor principle therefore supports the contention of the learned Solicitor General that where the goods are in existence but cannot be delivered because they have been mixed up with the cargo of other owners there has been no loss within the meaning of the third clause of Paragraph 6 of Article 3." 6. Dealing with the scope of the expression "when the goods should have been delivered" in clause (3) of Paragraph 6, the Court observed :"But whether the delivery has to be made to the consignee at the ships side or is made on the quay side there can be little doubt that the carriers duty is to start the delivery of goods as soon as the ship arrives at the port of destination and to complete the delivery before the ship leaves the port. In a particular case the carrier may not do his duty. That cannot however alter the fact of the existence of his duty to complete the delivery between the arrival of the ship at the port and the departure of the ship from the port. If as regards any particular goods this duty remains unperformed at the time when the ship leaves the port there can be no escape from the conclusion that the point of time when the ship leaves the port is the latest point of time by which the goods should have been delivered." Dealing with the same topic, the Court further observed : "But whether the delivery is to be made to the consignee or to anybody else on his behalf the duty of the ships master is to start the delivery as soon as possible after the ships arrival at the port and to complete it before the date of departure from the port. Before the ship has actually left the port it is not possible to say that the time when delivery should be made has expired. Once however the vessel has left the port it cannot but be common ground between the carrier and the consignee that the time when delivery should have been made is over. It is this point of time viz., the time when the ship leaves the port, which in our opinion should be taken as the time when the delivery should have been made." 7. From the passages quoted above, it is clear that this Court had come to the conclusion that if by the time ship leaves the port, the goods shipped or any part thereof had not been delivered, it will be a case of non-delivery of the goods on the date when the goods should have been delivered. In that decision this Court has taken the view that the last date for filing the suit for "loss or damage" is one year from the date the ship left the port. The cause of action of filing the suit for "loss or damage" is one. Quite clearly, the claim in respect of short delivery is clearly barred by time. If we are to accept the contention of the plaintiff that his claim in respect of the damage caused to the goods delivered to him arose only on the date when the goods were delivered to him, then it means that the plaintiff had two causes of action under clause (3) of Paragraph 6, one relating to the loss and another relating to damage. From the language of the clause in question it is not possible to accept that contention. As observed by this Court in the decision referred to above the time when the ship leaves the port should be taken as the time when delivery should have been made. Any delivery which had not been made by that date comes within the mischief of clause (3) of Paragraph 6. We think that the question of law arising for decision in this case is covered by the ratio of the decision of this Court in The East & West Steamship Companys case (supra). ### Response: 1

Harishikesm Ganguli (Dead) Vs. Commissioner Of Income Tax, Calcutta

fact, after reading the provisions of S. 16 (1) (c) with proviso (1), the transfer is revocable, the law will not still consider the income derived from such settlement, the income of the settlor, provided the settlement is not revocable for a period exceeding six years or during the lifetime of the person for whom the income is settled, and, further from which income the settlor derives no direct or indirect benefit. Chagla J., as he then was, delivered a separate judgment although he agreed with the answer given to the reference by Kania J. In his opinion the only way to reconcile the substantive provision of sub-cl- (c), provisos. (1) and (3) was to hold that proviso (3) contained a limitation which applied as much to the substantive provisions of sub-clause (c) as to proviso (1). 6. The view expressed in the Ramji Keshavji case, 13 ITR 105 = (AIR 1945 Bom 254 ) was approved by this court in Commr. of I. T. Patna v. Rani Bhuvaneshwari, Kuer, (1964) 7 SCR 920 = (AIR 1965 SC 6 ). In that case the assessee, who owned an estate known as Tekari Rai created a trust with a view to liquidate the debts of Tekari Rai. The beneficiaries under the deed were the settlor, her husband and her sons. It was declared that the settlement made was to be permanent and irrevocable but each beneficiary had full right to make any sort of arrangement about devolution or succession or make such alienation as was considered fit about his share. It was observed that two conditions were necessary for the application of the third proviso to section 16 (1) (c), (1) that the trust should not be revocable for a period exceeding six years or during the lifetime of the beneficiary and (2) the settlor or disponer should have no direct or indirect benefit from the income given to the beneficiary, The following observations at page 927 (of SCR) = (at PP. 10-11 of AIR) are noteworthy:"The third proviso to S. 16 (1) (c) does not operate to exclude the income which the settlor receives as a beneficiary, from liability to income tax it merely excludes that part of the income which is under the deed of settlement given to another person from liability to tax in the hands of the settlor, if the conditions prescribed by the third proviso are fulfilled. The contention raised by the Commissioner that if under the deed of trust the settlor has reserved to himself as a beneficiary any part of the income of the property settled, the third proviso will not apply to the deed of trust runs contrary to the plain words of the statute." 7. The further contention of the Commissioner that the third proviso only operated in respect of deeds of settlement or dispositions which were referred to in clause (c) but not the deeds of settlement or disposition which by the first proviso were deemed to be revocable was rejected by saying that the function of provisos (1) and (2) was plainly explanatory and it was impossible to hold that the third proviso did not operate in respect of settlement; dispositions or transfers which were by the first proviso revocable for the purposes of that clause. 8. We have referred to the above case in extenso because in our opinion it fully covers the point which has arisen in the present case. 9. In the light of the above principles it would not be wrong to say that the effect of the third proviso is that a settlement or disposition containing a provision for retransfer of a part of the income to the settlor would not render the whole income of the settlement chargeable in his hand provided the other conditions contained in the proviso are satisfied. In other words the proviso comes to the rescue of the settlor in that the portion of the income from the trust properties which are settled on a third person is to be assessed in the hands of that person and not in the hand of the settlor, if the latter does not retain any power to "deflect the same for a period exceeding six years or during the lifetime of the donee" . Thus the settlement as a whole will not, come within the mischief of S. 16 (1) (c) if the revocability relates only to a part of the income. (See C. I. T. Calcutta v. Jitendranath Mallick (1963) 50 ITR 313 (Cal.)) 10. We are in entire agreement with the above view of the Calcutta High Court and consider that the same is supported by the decision of this court in Rani Bhuvaneshwari Kuers case, (1964) 7 SCR 920 = (AIR 1965 SC 6 ). We may also refer to the significant change made in the language with regard to revocable transfers in the Incame-tax Act 1961. Section 63 of that Act provides:"For the purposes of sections 60, 61 and 62 and of this Section- (a) a transfer shall be deemed to be revocable if- (i) it contains any provision for the retransfer directly or indirectly of the whole or any part of the income or assets to the transferor, or (ii) it, in any way, gives the transferor a right to reassume power directly or indirectly over the whole or any part of the income or assets: (b) . . . . " It can, weil be said that the necessity for expressly mentioning part of the income was felt because under the provisions of the Act part of the income was not covered. There is no dispute in the present case that the trust created was a genuine one. Since it fulfilled thy conditions laid down in the third proviso only that part of the income which accrued or was received by the settlor could be assessed as his income. The income accruing to the other beneficiaries could not be included in the total income of the assessee.

1[ds]It is apparent that the above clause of S, 16 (1) with its provisos is unhappily worded. In Ramji Keshavji v. Commr., of Income tax Bombay, 13 ITR 105 = (AIR 1945 Bom 254 ) the Bombay High Court considered the scheme of S. 16 (1) (c). According to that decision the first stage is that when there is a revocable transfer of assets. The income derived from such assets is still to be considered the income of the settlor. The first proviso specifies what would be deemed a revocable transfer in spite of the deed being apparently irrevocable. The relevant question for the first proviso is "is this transfer revocable because it fulfils the conditions contained in the proviso?" The answer to that question can be in the positive or in the negative. If the answer is in the negative no further discussion can arise and S. 16 (1) (c) will not be applicable. If the answer be in the affirmative the deed, although ostensibly irrevocable, is deemed to be revocable. It will thus become revocable within the meaning of the substantive provisions of S. 16 (1) (c). Having reached that stage proviso (3) has to be considered. In the words of Kania J., as he then was "the scheme appears to be that although in fact, after reading the provisions of S. 16 (1) (c) with proviso (1), the transfer is revocable, the law will not still consider the income derived from such settlement, the income of the settlor, provided the settlement is not revocable for a period exceeding six years or during the lifetime of the person for whom the income is settled, and, further from which income the settlor derives no direct or indirect benefit. Chagla J., as he then was, delivered a separate judgment although he agreed with the answer given to the reference by Kania J. In his opinion the only way to reconcile the substantive provision of sub-cl- (c), provisos. (1) and (3) was to hold that proviso (3) contained a limitation which applied as much to the substantive provisions of sub-clause (c) as to proviso (1)7. The further contention of the Commissioner that the third proviso only operated in respect of deeds of settlement or dispositions which were referred to in clause (c) but not the deeds of settlement or disposition which by the first proviso were deemed to be revocable was rejected by saying that the function of provisos (1) and (2) was plainly explanatory and it was impossible to hold that the third proviso did not operate in respect of settlement; dispositions or transfers which were by the first proviso revocable for the purposes of that clause8. We have referred to the above case in extenso because in our opinion it fully covers the point which has arisen in the present case9. In the light of the above principles it would not be wrong to say that the effect of the third proviso is that a settlement or disposition containing a provision for retransfer of a part of the income to the settlor would not render the whole income of the settlement chargeable in his hand provided the other conditions contained in the proviso are satisfied. In other words the proviso comes to the rescue of the settlor in that the portion of the income from the trust properties which are settled on a third person is to be assessed in the hands of that person and not in the hand of the settlor, if the latter does not retain any power to "deflect the same for a period exceeding six years or during the lifetime of the donee" . Thus the settlement as a whole will not, come within the mischief of S. 16 (1) (c) if the revocability relates only to a part of the income. (See C. I. T. Calcutta v. Jitendranath Mallick (1963) 50 ITR 313 (Cal.)) 10. We are in entire agreement with the above view of the Calcutta High Court and consider that the same is supported by the decision of this court in Rani Bhuvaneshwari Kuers case, (1964) 7 SCR 920 = (AIR 1965 SC 6 )It can, weil be said that the necessity for expressly mentioning part of the income was felt because under the provisions of the Act part of the income was not covered. There is no dispute in the present case that the trust created was a genuine one. Since it fulfilled thy conditions laid down in the third proviso only that part of the income which accrued or was received by the settlor could be assessed as his income. The income accruing to the other beneficiaries could not be included in the total income of the assessee.

### 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: fact, after reading the provisions of S. 16 (1) (c) with proviso (1), the transfer is revocable, the law will not still consider the income derived from such settlement, the income of the settlor, provided the settlement is not revocable for a period exceeding six years or during the lifetime of the person for whom the income is settled, and, further from which income the settlor derives no direct or indirect benefit. Chagla J., as he then was, delivered a separate judgment although he agreed with the answer given to the reference by Kania J. In his opinion the only way to reconcile the substantive provision of sub-cl- (c), provisos. (1) and (3) was to hold that proviso (3) contained a limitation which applied as much to the substantive provisions of sub-clause (c) as to proviso (1). 6. The view expressed in the Ramji Keshavji case, 13 ITR 105 = (AIR 1945 Bom 254 ) was approved by this court in Commr. of I. T. Patna v. Rani Bhuvaneshwari, Kuer, (1964) 7 SCR 920 = (AIR 1965 SC 6 ). In that case the assessee, who owned an estate known as Tekari Rai created a trust with a view to liquidate the debts of Tekari Rai. The beneficiaries under the deed were the settlor, her husband and her sons. It was declared that the settlement made was to be permanent and irrevocable but each beneficiary had full right to make any sort of arrangement about devolution or succession or make such alienation as was considered fit about his share. It was observed that two conditions were necessary for the application of the third proviso to section 16 (1) (c), (1) that the trust should not be revocable for a period exceeding six years or during the lifetime of the beneficiary and (2) the settlor or disponer should have no direct or indirect benefit from the income given to the beneficiary, The following observations at page 927 (of SCR) = (at PP. 10-11 of AIR) are noteworthy:"The third proviso to S. 16 (1) (c) does not operate to exclude the income which the settlor receives as a beneficiary, from liability to income tax it merely excludes that part of the income which is under the deed of settlement given to another person from liability to tax in the hands of the settlor, if the conditions prescribed by the third proviso are fulfilled. The contention raised by the Commissioner that if under the deed of trust the settlor has reserved to himself as a beneficiary any part of the income of the property settled, the third proviso will not apply to the deed of trust runs contrary to the plain words of the statute." 7. The further contention of the Commissioner that the third proviso only operated in respect of deeds of settlement or dispositions which were referred to in clause (c) but not the deeds of settlement or disposition which by the first proviso were deemed to be revocable was rejected by saying that the function of provisos (1) and (2) was plainly explanatory and it was impossible to hold that the third proviso did not operate in respect of settlement; dispositions or transfers which were by the first proviso revocable for the purposes of that clause. 8. We have referred to the above case in extenso because in our opinion it fully covers the point which has arisen in the present case. 9. In the light of the above principles it would not be wrong to say that the effect of the third proviso is that a settlement or disposition containing a provision for retransfer of a part of the income to the settlor would not render the whole income of the settlement chargeable in his hand provided the other conditions contained in the proviso are satisfied. In other words the proviso comes to the rescue of the settlor in that the portion of the income from the trust properties which are settled on a third person is to be assessed in the hands of that person and not in the hand of the settlor, if the latter does not retain any power to "deflect the same for a period exceeding six years or during the lifetime of the donee" . Thus the settlement as a whole will not, come within the mischief of S. 16 (1) (c) if the revocability relates only to a part of the income. (See C. I. T. Calcutta v. Jitendranath Mallick (1963) 50 ITR 313 (Cal.)) 10. We are in entire agreement with the above view of the Calcutta High Court and consider that the same is supported by the decision of this court in Rani Bhuvaneshwari Kuers case, (1964) 7 SCR 920 = (AIR 1965 SC 6 ). We may also refer to the significant change made in the language with regard to revocable transfers in the Incame-tax Act 1961. Section 63 of that Act provides:"For the purposes of sections 60, 61 and 62 and of this Section- (a) a transfer shall be deemed to be revocable if- (i) it contains any provision for the retransfer directly or indirectly of the whole or any part of the income or assets to the transferor, or (ii) it, in any way, gives the transferor a right to reassume power directly or indirectly over the whole or any part of the income or assets: (b) . . . . " It can, weil be said that the necessity for expressly mentioning part of the income was felt because under the provisions of the Act part of the income was not covered. There is no dispute in the present case that the trust created was a genuine one. Since it fulfilled thy conditions laid down in the third proviso only that part of the income which accrued or was received by the settlor could be assessed as his income. The income accruing to the other beneficiaries could not be included in the total income of the assessee. ### Response: 1

Anwari (Mst) Vs. State of Punjab & Others

In this appeal, by special leave, the appellant, daughter of an evacuee, has challenged the order of the High Court of Punjab and Haryana passed in CWP No. 11339 of 1993, declining to interfere with the order of the Financial Commissioner dated 3-2-1993. To appreciate the controversy here a resume of the facts will be apt. The appellant invited a decision as to the nature of the property in question from the Additional Custodian by filing an application under Section 27 of the Administration of Evacuee Property Act, 1950 (for short "the Act"), who, however, referred the matter to the Custodian-General and directed the appellant to appear before the Custodian-General at Chandigarh on 1-9-1989. By order dated 16-1-1990 the Assistant Custodian-General, after referring to the records of the litigation pending between the appellant and Respondents 5 to 7 in the civil court, pointed out that Shahabudin had left for Pakistan during partition of the country or immediately thereafter so he was a resident of Pakistan and, therefore, he was an evacuee within the meaning of Section 2(d) of the Act. That finding was affirmed by the Financial Commissioner, Punjab in his order passed under Section 54 of the said Act. The Financial Commissioner relying upon the report of SSPs office which indicated that Shahabudin came to India on 8-11-1953 and left India on 27-11-1953 noted that that fact remained unrebutted and held that the property in question vested automatically in the Custodian and therefore Section 7 of the Act was not attracted and thus dismissed the revision on 3-2-1993. That order was impugned in the writ petition before the High Court by the appellant. The writ petition was dismissed, by the order under challenge, so the appellant is before us in this appeal.Shri S. K. Bagga, learned Senior Counsel for the appellant, vehemently contends that there is no automatic vesting of the property in the Custodian under the Act and in the absence of a declaration under Section 7 of the Act no property vests in the Custodian and as admittedly in this case there has been no such declaration, the order of the Financial Commissioner is liable to be set aside. Mr. Rajinder Mathur, learned counsel for the respondents argued that under Section 5 of the Patiala and East Punjab State Union Administration of Evacuee Property Ordinance ("the Ordinance" in short) the property had vested in the Custodian and it shall continue to be vested under Section 8(2) of the Act and in such a case no declaration under Section 7 of the Act is necessary. We find considerable force in the submissions of Mr. Mathur. Here it will be necessary to refer to Section 5 of the Ordinance and Section 8(2) of the Act which read thus : Section 5 of the Ordinance "5. (1) Subject to the provisions of this Ordinance, all evacuee property situate in the Union shall vest in the Custodian. (2) Where immediately before the commencement of this Ordinance any evacuee property in the Union had vested in any person exercising the powers of a Custodian under any corresponding law in force therein immediately before such commencement, the evacuee property shall, on the commencement of this Ordinance, be deemed to have vested in the Custodian appointed for the Union under this Ordinance. (3) Where any property in the Union belonging to a joint stock company had vested in any person exercising the powers of a Custodian under any corresponding law in force therein immediately before the commencement of this Ordinance then, nothing contained in clause (d) of Section 2 shall effect the operation of sub-section (2), but Government may, by notification in the Official Gazette, direct that the Custodian shall be divested of any such property in such manner and after such period as may be specified in the notification." Section 8(2) of the Act " 8. (2) Where immediately before the commencement of this Act, any property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to so vest :" * A plain reading of the provisions extracted above makes it clear that by virtue of Section 5 of the Ordinance all the properties of an evacuee stood vested in the Custodian Officer of the State. Section 8(2) of the Act declares that when any property in a State had vested as evacuee property in a person exercising the power of Custodian under any law repealed thereunder that property shall be deemed to be evacuee property declared as such within the meaning of the Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed in the State under the Act on the commencement of the Act and shall continue to so vest.This Court in Assistant Custodian, E.P. v. Brij Kishore Agarwala 1974 SC 111 had occasion to consider the provisions of the U.P. Administration of Evacuee Property Ordinance (1 of 1949). It was held that under Section 5 of that Ordinance all evacuee property situate in the United Provinces vested in the Custodian and on the repeal of that Ordinance under Section 58 of the Act, the property which had already vested in the Custodian continued to vest in him notwithstanding the repeal of that Ordinance by Section 58 of the Act and there was no need to take any action under Section 7 of the Act.In view of this position we do not find any illegality in the order of the High Court warranting our interference.

0[ds]This Court in Assistant Custodian, E.P. v. Brij Kishore Agarwala 1974 SC 111 had occasion to consider the provisions of the U.P. Administration of Evacuee Property Ordinance (1 of 1949). It was held that under Section 5 of that Ordinance all evacuee property situate in the United Provinces vested in the Custodian and on the repeal of that Ordinance under Section 58 of the Act, the property which had already vested in the Custodian continued to vest in him notwithstanding the repeal of that Ordinance by Section 58 of the Act and there was no need to take any action under Section 7 of the Act.In view of this position we do not find any illegality in the order of the High Court warranting our interference.

### 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 this appeal, by special leave, the appellant, daughter of an evacuee, has challenged the order of the High Court of Punjab and Haryana passed in CWP No. 11339 of 1993, declining to interfere with the order of the Financial Commissioner dated 3-2-1993. To appreciate the controversy here a resume of the facts will be apt. The appellant invited a decision as to the nature of the property in question from the Additional Custodian by filing an application under Section 27 of the Administration of Evacuee Property Act, 1950 (for short "the Act"), who, however, referred the matter to the Custodian-General and directed the appellant to appear before the Custodian-General at Chandigarh on 1-9-1989. By order dated 16-1-1990 the Assistant Custodian-General, after referring to the records of the litigation pending between the appellant and Respondents 5 to 7 in the civil court, pointed out that Shahabudin had left for Pakistan during partition of the country or immediately thereafter so he was a resident of Pakistan and, therefore, he was an evacuee within the meaning of Section 2(d) of the Act. That finding was affirmed by the Financial Commissioner, Punjab in his order passed under Section 54 of the said Act. The Financial Commissioner relying upon the report of SSPs office which indicated that Shahabudin came to India on 8-11-1953 and left India on 27-11-1953 noted that that fact remained unrebutted and held that the property in question vested automatically in the Custodian and therefore Section 7 of the Act was not attracted and thus dismissed the revision on 3-2-1993. That order was impugned in the writ petition before the High Court by the appellant. The writ petition was dismissed, by the order under challenge, so the appellant is before us in this appeal.Shri S. K. Bagga, learned Senior Counsel for the appellant, vehemently contends that there is no automatic vesting of the property in the Custodian under the Act and in the absence of a declaration under Section 7 of the Act no property vests in the Custodian and as admittedly in this case there has been no such declaration, the order of the Financial Commissioner is liable to be set aside. Mr. Rajinder Mathur, learned counsel for the respondents argued that under Section 5 of the Patiala and East Punjab State Union Administration of Evacuee Property Ordinance ("the Ordinance" in short) the property had vested in the Custodian and it shall continue to be vested under Section 8(2) of the Act and in such a case no declaration under Section 7 of the Act is necessary. We find considerable force in the submissions of Mr. Mathur. Here it will be necessary to refer to Section 5 of the Ordinance and Section 8(2) of the Act which read thus : Section 5 of the Ordinance "5. (1) Subject to the provisions of this Ordinance, all evacuee property situate in the Union shall vest in the Custodian. (2) Where immediately before the commencement of this Ordinance any evacuee property in the Union had vested in any person exercising the powers of a Custodian under any corresponding law in force therein immediately before such commencement, the evacuee property shall, on the commencement of this Ordinance, be deemed to have vested in the Custodian appointed for the Union under this Ordinance. (3) Where any property in the Union belonging to a joint stock company had vested in any person exercising the powers of a Custodian under any corresponding law in force therein immediately before the commencement of this Ordinance then, nothing contained in clause (d) of Section 2 shall effect the operation of sub-section (2), but Government may, by notification in the Official Gazette, direct that the Custodian shall be divested of any such property in such manner and after such period as may be specified in the notification." Section 8(2) of the Act " 8. (2) Where immediately before the commencement of this Act, any property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to so vest :" * A plain reading of the provisions extracted above makes it clear that by virtue of Section 5 of the Ordinance all the properties of an evacuee stood vested in the Custodian Officer of the State. Section 8(2) of the Act declares that when any property in a State had vested as evacuee property in a person exercising the power of Custodian under any law repealed thereunder that property shall be deemed to be evacuee property declared as such within the meaning of the Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed in the State under the Act on the commencement of the Act and shall continue to so vest.This Court in Assistant Custodian, E.P. v. Brij Kishore Agarwala 1974 SC 111 had occasion to consider the provisions of the U.P. Administration of Evacuee Property Ordinance (1 of 1949). It was held that under Section 5 of that Ordinance all evacuee property situate in the United Provinces vested in the Custodian and on the repeal of that Ordinance under Section 58 of the Act, the property which had already vested in the Custodian continued to vest in him notwithstanding the repeal of that Ordinance by Section 58 of the Act and there was no need to take any action under Section 7 of the Act.In view of this position we do not find any illegality in the order of the High Court warranting our interference. ### Response: 0

Kanji Manji Vs. The Trustees Of The Port Of Bombay

from Government or local authority" but also erected on any land" He, therefore, held that the words "erected on any land held by any person from a local authority" were descriptive of the building and did not emphasise the point of time when the building was erected. By that phrase, what was emphasised was that the nature of the building must be such as to satisfy the test that it was erected on land held by a person from a local authority and the test must be applied at the time when that protection is sought.12. In this case, it is contended, as it was contended in the Bombay High Court, that so long as a building was erected under an agreement with Government or a local authority, the benefit of sub-sec. (4)(a) of S. 4 would be available, no matter how many hands the property might have changed. This argument was considered by the learned Chief Justice, and was rejected.13. In our opinion, though the section is far from clear, the meaning given by the learned Chief Justice is the only possible meaning, regard being had to the circumstances in which this subsection came to be enacted. Those circumstances were: In a case in which the holder of the land from a local authority was seeking to evict his sub-tenants, it was held by the Bombay High Court that the matter was governed by the Rent Control Act. This Court held that sub-sec. (1) applied and the suit was not governed by the Rent Control Act.The amendment was enacted to cut down by a definition the operation of the words "any premises belonging to the government or a local authority, by excluding only buildings which were occupied by sub-tenants even though the buildings belonged to the Government or continued to belong to it. Clause (b) of sub-sec. (4) excluded also S. 15, which prohibited sub-letting by a tenant. That, however, was limited to the case of buildings only, and did not apply to the case of land. In this situation, any action by the Government or the local authority in respect of land falls to be governed by sum sec. (1) and not sub-sec 4(a) and sub-sec. (1) puts the case in relation to Sand entirely out of the Rent Control Act. The net result, therefore is that if Government or a local authority Giants to evict a person from the land, the provisions of the Rent Control Act do not. Come in the way. For the same reason, the suit for ejectment does not have to he filed in the Court of Small Causes, as required by the Rent Control Act but in the City Civil Courts as has been done in this case.14. There is one more reason in this case for reaching the same conclusion, because at the time of the lease in 1942, the lessees, from the appellant claims assignment, were given a lease not only of the land but of the buildings. The whole tenor of the agreement shows that the title of the lessees was precarious. It was monthly tenancy liable to be terminated with a notice under the Transfer of Property Act, and there was only a grace that the lessees, when evicted, might remove buildings within one month of their eviction. This precarious interest was obtained by the assignees by all assignment, and the same thing applies to them. If the original lessees took on lease not only the land but also the buildings, it is not open to their assignees to claim that the ownership of the Government extended only to the land and not to the buildings. By the admissions in the deed of lease and the various clauses, it is quite clear that these buildings cannot now be described as buildings constructed under an agreement with the Government, but rather as buildings belonging to Government which were leased out with the land but in respect of which by a concession, the lessees were entitled to remove the buildings within one month after eviction. In our opinion, the suit as laid for vacant possession of the site and in the City Civil Court was competent.15. It was contended that the contract was incapable of being performed, because at least between the present appellant and his sub-tenants the provisions of the Rent Control Act would apply, and he would not be able to evict them in his turn. It was, therefore, argued that this impossibility on the part of the appellant to fulfil his obligations to deliver vacant possession rendered that portion of the lease deed unenforceable and void. It is to be noticed that the appellant does not claim that by reason of the impossibility the whole of the lease deed becomes void, because if he did so, the suit of the Port Trust authorities would be perfectly justified without any more. He only seeks to show that that portions of the deed dealing with delivery of vacant possession has become impossible of performance. Such a situation had also arisen in the case of the Bombay High Court in AIR 1956 Bom. 364 , and the assignee of the lessee was unable to deliver vacant possession. Whether or not the Port Trust authorities would be able hereafter to evict the sub-tenants of the appellant is a matter, on which we need not express any opinion. If the appellant cannot evict his sub-tenants so as to be able to remove the buildings, in exercise of the right conferred on him, that is an unfortunate circumstance, which does not serve to entitle him to defeat the rights of the Port Trust authorities. They are only claiming vacant possession of the site, and under the agreement, if the appellant does not remove the buildings within one month, then they would be entitled to take possession of the land with the buildings, whatever might be the rights of the sub-tenants, and as to which, as we have pointed out already, we say nothing.

0[ds]The amendment achieved two different things. It enabled the lessee of the particular kind of budding described in cl. (a) to create sub-tenancies in spite of the ban against sub-tenancies contained in S. 15. It also excluded from the operation of sub-sec. (1) the buildings specified in cl. (a) of that sub-section. The amendment said nothing about the relationship of the Government or the local authority, on the one hand, and the lessee, on the other, in respect of the land. The word "premises in sub-sec. (1) could mean the land or the buildings or both Sub-section (4) (a) dealt only With the buildings, and did not deal with the land, because it used the word "buildings" and not the more general word "premises. The import of sub-sec. (4) (a) of S. 4 was thus limited to buildings, and did not extend to land. The sub- section, however, was drafted somewhat inartistically, and the obscurity of the language presents some difficulty. The trial Judge followed a decision of the Bombay High Court reported in Ram Bhagwandas v. Bombay Corporation of the City of Bombay, AIR 1956 Bom 364 . In that case, one Khudabaksh Irani had taken lease of certain plots some 30 years back, and constructed some structures upon the open plot, and rented them out as tenements. In 1947, Irani sold them to one Tyaballi. In 1951, the Municipal Corporation filed a suit to eject Tyaballi from the plots, and by a consent decree, Tyaballi agreed to deliver up vacant and peaceful possession of the plots clear of all structures. Tyaballi failed to remove the structures, and the Municipal Corporation sought to execute the decree. The tenants thereupon filed a suit under O. 21,R. 103 of the Civil Procedure Code against the Municipal Corporation, but the suit was dismissed. In the appeal which was filed in Municipal Corporation was the owner of he plots in question, but protection was claimed on the basis of sub-sec. (4) (a) of S. 4 of the Rent Control Act. Chagla, C. J. in dealing with the history of the amending Act, pointed out that the legislature was seeking to protect by that sub-section tenants who occupied buildings put up on land belonging to a local authority, if the buildings occupied by them were constructed under an agreement under which the lessee was under an obligation to construct buildings. He pointed out that the protection of sub-sec. (4) (a) was to buildings and not to land, and that the phrase under an agreement lease or other grant" modified not only "held by any person from Government or local authority" but also erected on any land" He, therefore, held that the words "erected on any land held by any person from a local authority" were descriptive of the building and did not emphasise the point of time when the building was erected. By that phrase, what was emphasised was that the nature of the building must be such as to satisfy the test that it was erected on land held by a person from a local authority and the test must be applied at the time when that protection is sought.12. In this case, it is contended, as it was contended in the Bombay High Court, that so long as a building was erected under an agreement with Government or a local authority, the benefit of sub-sec. (4)(a) of S. 4 would be available, no matter how many hands the property might have changed. This argument was considered by the learned Chief Justice, and was rejected.13. In our opinion, though the section is far from clear, the meaning given by the learned Chief Justice is the only possible meaning, regard being had to the circumstances in which this subsection came to be enacted. Those circumstances were: In a case in which the holder of the land from a local authority was seeking to evict his sub-tenants, it was held by the Bombay High Court that the matter was governed by the Rent Control Act. This Court held that sub-sec. (1) applied and the suit was not governed by the Rent Control Act.The amendment was enacted to cut down by a definition the operation of the words "any premises belonging to the government or a local authority, by excluding only buildings which were occupied by sub-tenants even though the buildings belonged to the Government or continued to belong to it. Clause (b) of sub-sec. (4) excluded also S. 15, which prohibited sub-letting by a tenant. That, however, was limited to the case of buildings only, and did not apply to the case of land. In this situation, any action by the Government or the local authority in respect of land falls to be governed by sum sec. (1) and not sub-sec 4(a) and sub-sec. (1) puts the case in relation to Sand entirely out of the Rent Control Act. The net result, therefore is that if Government or a local authority Giants to evict a person from the land, the provisions of the Rent Control Act do not. Come in the way. For the same reason, the suit for ejectment does not have to he filed in the Court of Small Causes, as required by the Rent Control Act but in the City Civil Courts as has been done in this case.14. There is one more reason in this case for reaching the same conclusion, because at the time of the lease in 1942, the lessees, from the appellant claims assignment, were given a lease not only of the land but of the buildings. The whole tenor of the agreement shows that the title of the lessees was precarious. It was monthly tenancy liable to be terminated with a notice under the Transfer of Property Act, and there was only a grace that the lessees, when evicted, might remove buildings within one month of their eviction. This precarious interest was obtained by the assignees by all assignment, and the same thing applies to them. If the original lessees took on lease not only the land but also the buildings, it is not open to their assignees to claim that the ownership of the Government extended only to the land and not to the buildings. By the admissions in the deed of lease and the various clauses, it is quite clear that these buildings cannot now be described as buildings constructed under an agreement with the Government, but rather as buildings belonging to Government which were leased out with the land but in respect of which by a concession, the lessees were entitled to remove the buildings within one month after eviction. In our opinion, the suit as laid for vacant possession of the site and in the City Civil Court was competent.15. It was contended that the contract was incapable of being performed, because at least between the present appellant and his sub-tenants the provisions of the Rent Control Act would apply, and he would not be able to evict them in his turn. It was, therefore, argued that this impossibility on the part of the appellant to fulfil his obligations to deliver vacant possession rendered that portion of the lease deed unenforceable and void. It is to be noticed that the appellant does not claim that by reason of the impossibility the whole of the lease deed becomes void, because if he did so, the suit of the Port Trust authorities would be perfectly justified without any more. He only seeks to show that that portions of the deed dealing with delivery of vacant possession has become impossible of performance. Such a situation had also arisen in the case of the Bombay High Court in AIR 1956 Bom. 364 , and the assignee of the lessee was unable to deliver vacant possession. Whether or not the Port Trust authorities would be able hereafter to evict the sub-tenants of the appellant is a matter, on which we need not express any opinion. If the appellant cannot evict his sub-tenants so as to be able to remove the buildings, in exercise of the right conferred on him, that is an unfortunate circumstance, which does not serve to entitle him to defeat the rights of the Port Trust authorities. They are only claiming vacant possession of the site, and under the agreement, if the appellant does not remove the buildings within one month, then they would be entitled to take possession of the land with the buildings, whatever might be the rights of the sub-tenants, and as to which, as we have pointed out already, we say nothing.

### 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: from Government or local authority" but also erected on any land" He, therefore, held that the words "erected on any land held by any person from a local authority" were descriptive of the building and did not emphasise the point of time when the building was erected. By that phrase, what was emphasised was that the nature of the building must be such as to satisfy the test that it was erected on land held by a person from a local authority and the test must be applied at the time when that protection is sought.12. In this case, it is contended, as it was contended in the Bombay High Court, that so long as a building was erected under an agreement with Government or a local authority, the benefit of sub-sec. (4)(a) of S. 4 would be available, no matter how many hands the property might have changed. This argument was considered by the learned Chief Justice, and was rejected.13. In our opinion, though the section is far from clear, the meaning given by the learned Chief Justice is the only possible meaning, regard being had to the circumstances in which this subsection came to be enacted. Those circumstances were: In a case in which the holder of the land from a local authority was seeking to evict his sub-tenants, it was held by the Bombay High Court that the matter was governed by the Rent Control Act. This Court held that sub-sec. (1) applied and the suit was not governed by the Rent Control Act.The amendment was enacted to cut down by a definition the operation of the words "any premises belonging to the government or a local authority, by excluding only buildings which were occupied by sub-tenants even though the buildings belonged to the Government or continued to belong to it. Clause (b) of sub-sec. (4) excluded also S. 15, which prohibited sub-letting by a tenant. That, however, was limited to the case of buildings only, and did not apply to the case of land. In this situation, any action by the Government or the local authority in respect of land falls to be governed by sum sec. (1) and not sub-sec 4(a) and sub-sec. (1) puts the case in relation to Sand entirely out of the Rent Control Act. The net result, therefore is that if Government or a local authority Giants to evict a person from the land, the provisions of the Rent Control Act do not. Come in the way. For the same reason, the suit for ejectment does not have to he filed in the Court of Small Causes, as required by the Rent Control Act but in the City Civil Courts as has been done in this case.14. There is one more reason in this case for reaching the same conclusion, because at the time of the lease in 1942, the lessees, from the appellant claims assignment, were given a lease not only of the land but of the buildings. The whole tenor of the agreement shows that the title of the lessees was precarious. It was monthly tenancy liable to be terminated with a notice under the Transfer of Property Act, and there was only a grace that the lessees, when evicted, might remove buildings within one month of their eviction. This precarious interest was obtained by the assignees by all assignment, and the same thing applies to them. If the original lessees took on lease not only the land but also the buildings, it is not open to their assignees to claim that the ownership of the Government extended only to the land and not to the buildings. By the admissions in the deed of lease and the various clauses, it is quite clear that these buildings cannot now be described as buildings constructed under an agreement with the Government, but rather as buildings belonging to Government which were leased out with the land but in respect of which by a concession, the lessees were entitled to remove the buildings within one month after eviction. In our opinion, the suit as laid for vacant possession of the site and in the City Civil Court was competent.15. It was contended that the contract was incapable of being performed, because at least between the present appellant and his sub-tenants the provisions of the Rent Control Act would apply, and he would not be able to evict them in his turn. It was, therefore, argued that this impossibility on the part of the appellant to fulfil his obligations to deliver vacant possession rendered that portion of the lease deed unenforceable and void. It is to be noticed that the appellant does not claim that by reason of the impossibility the whole of the lease deed becomes void, because if he did so, the suit of the Port Trust authorities would be perfectly justified without any more. He only seeks to show that that portions of the deed dealing with delivery of vacant possession has become impossible of performance. Such a situation had also arisen in the case of the Bombay High Court in AIR 1956 Bom. 364 , and the assignee of the lessee was unable to deliver vacant possession. Whether or not the Port Trust authorities would be able hereafter to evict the sub-tenants of the appellant is a matter, on which we need not express any opinion. If the appellant cannot evict his sub-tenants so as to be able to remove the buildings, in exercise of the right conferred on him, that is an unfortunate circumstance, which does not serve to entitle him to defeat the rights of the Port Trust authorities. They are only claiming vacant possession of the site, and under the agreement, if the appellant does not remove the buildings within one month, then they would be entitled to take possession of the land with the buildings, whatever might be the rights of the sub-tenants, and as to which, as we have pointed out already, we say nothing. ### Response: 0

Kotak Mahindra Bank Limited Vs. Trupti Sanjay Mehta & Others

Amendment Act No.1 of 2013 with effect from 15/01/2013 and it permits the Securitisation Company or Reconstruction Company an acquisition of financial assets under sub-section (1) which deals with acquisition of financial assets and any Bank or Financial Institution can substitute its name in any pending suit, appeal or other proceedings before the DRT or Appellate Tribunal etc. Chapter-III deals with enforcement of security interest and section 13(2) and (4) makes it clear that a borrower who fails to discharge his liability in full within a period prescribed in sub-section (2), again, against such a borrower, a secured creditor can take recourse to recover his secured debt. Consequently, therefore, only against such a borrower the debt which is defined under section 2(f) can be enforced under Section 13.Taking into consideration the scheme of the Act, Objects and Reasons and various provisions of the SARFAESI Act, we have no hesitation in holding that the debt which is assigned to a Bank or Financial Institution by Non-banking Financial Institution is not covered within the definition of the term borrower and therefore cannot be enforced under Section 13 of the said Act. The submission made by Ms. Rajani Iyer, the learned Senior Counsel appearing on behalf of the Petitioner, therefore, cannot be accepted and we concur with the view taken by the DRT and DRAT.23. Ms Rajani Iyer, the learned Senior Counsel appearing on behalf of the Petitioner has relied on the judgment of the Apex Court in ICICI Bank vs. APS Star Industries Ltd.(2010) 10 SCC 1 ). Relying on the said judgment, she submitted that the Apex Court has considered, whether assignments were permissible banking activity and whether assignments from a Bank, Financial Institution or NBFC to a Bank, Financial Institution and NBFC is legal and valid. She submitted that the Apex Court, while relying on the guidelines issued by the Reserve Bank of India, upheld the guidelines and further held that assignment from/to NBFC and Financial Institution was valid and legal. She further submitted that City Financial Consumer Finance Ltd. is NBFC and the assignment from NBFC to present Petitioner is permitted under the RBI guidelines. She further submitted that the debt therefore in the hands of the Bank is a secured debt within the meaning of section 2(ze) and 2(zf) of the SARFAESI Act and the Petitioner was entitled to enforce the secured asset under the provisions of the SARFAESI Act.24. In our view, the said submission is without any substance. Perusal of the said judgment and order in ICICI Bank vs. APS Star Industries Ltd. (2010) 10 SCC 1 ) reveals that the Apex Court was called upon to consider a question as to whether assignment of debts between Non-banking Financial Institutions and Banks was a permissible banking business. While deciding the said issue, the Apex Court, relying on RBI policy, held that it was a permissible banking business. In the said case, the question which fell for consideration and which had been reproduced in para 2 of the said judgment was as under:-Whether inter se transfer of nonperforming assets (NPA, for short) by the banks is illegal under the Banking Regulation Act, 1949 (the BR Act, 1949, for short) as held by the Gujarat High Court in the impugned judgmentAnswering the said question, after relying on RBI directives, the Apex Court held that guidelines issued by RBI dated 13/07/2005 have statutory force and are not ultra vires the BR Act, 1949 and it therefore held that assignment of debts of NBFC by one Bank to another Bank is permissible under 1949 Act and not violative of section 130 of the Transfer of Property Act, 1882. In our view, taking into consideration the facts of the said case, the issue which fell for consideration before the Apex Court therefore was entirely different. The issue which falls for consideration before this Court in this case is : whether the Bank to whom a debt has been assigned by the Non-Banking Financial Corporation (NBFC) is entitled to adopt proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest, Act, 2002 This issue being completely distinct and different from the issue decided by the Apex Court in ICICI Bank vs. APS Star Industries Ltd.(2010) 10 SCC 1 ), in our iew, ratio of the said judgment will certainly not apply to the facts of the present case. For the same reasons, guidelines issued by RBI dated 13/07/2005 also cannot be relied upon for answering the question raised in this Petition.25. Reliance was also placed by the learned Senior Counsel appearing on behalf of the Petitioner on the judgment of the Delhi High Court in Kotak Mahindra Bank Ltd. vs. Stiefel Und Schuh India ltd. & Ors (ILR (2009) V Delhi 12). In the said case, original lender was NBFC viz. SBI Home Finance which filed proceedings in the Civil Court for recovery of a mortgaged debt. However, during the pendency of the suit, the debt was assigned to a Bank viz. the State Bank of India, which, in turn, assigned it to Kotak Mahindra Bank Ltd. After assignment, Kotak Mahindra Bank Ltd. applied for transfer of proceedings from Civil Court to DRT on the ground that subsequent assignee Kotak Mahindra Bank Ltd. was a Bank under RDDB & FI Act, 1993. The learned Single Judge dismissed the application for transferring it to DRT. Appeal Court, however, reversed the decision and held that remedies available in the DRT were permitted to Kotak Mahindra Bank and therefore proceedings in the Civil Court were expressly barred.26. In our view, it is not possible to accept the view taken by the Delhi High Court. Secondly, Delhi High Court was not required to consider the issue as to whether a debt which is assigned by a Non-banking Financial Institution to a Bank or Reconstruction Company could be enforced under the SARFAESI Act and, therefore, ratio of the said judgment, in any case, will not apply to the facts of the present case.

0[ds]17. In our view, submissions made by Ms. Rajani Iyer, the learned Senior Counsel appearing on behalf of the Petitioner cannot be accepted and the question framed in para 3 of this judgment will have to be answered in the negative for the followingour view, therefore, though the term debt as defined under the RDDBFI Act and SARFAESI Act includes the words or assigned such assignment therefore in view of the definition of the term borrower in section 2(f) would have to be restricted to a debt of borrower which is assigned to a Bank by a Financial Institution or viceinto consideration the scheme of the Act, Objects and Reasons and various provisions of the SARFAESI Act, we have no hesitation in holding that the debt which is assigned to a Bank or Financial Institution byIn our view, the said submission is without any substance. Perusal of the said judgment and order in ICICI Bank vs. APS Star Industries Ltd. (2010) 10 SCC 1 ) reveals that the Apex Court was called upon to consider a question as to whether assignment of debts betweenFinancial Institutions and Banks was a permissible banking business. While deciding the said issue, the Apex Court, relying on RBI policy, held that it was a permissible bankingthe said question, after relying on RBI directives, the Apex Court held that guidelines issued by RBI dated 13/07/2005 have statutory force and are not ultra vires the BR Act, 1949 and it therefore held that assignment of debts of NBFC by one Bank to another Bank is permissible under 1949 Act and not violative of section 130 of the Transfer of Property Act, 1882. In our view, taking into consideration the facts of the said case, the issue which fell for consideration before the Apex Court therefore was entirely different. The issue which falls for consideration before this Court in this case is : whether the Bank to whom a debt has been assigned by theFinancial Corporation (NBFC) is entitled to adopt proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest, Act, 2002 This issue being completely distinct and different from the issue decided by the Apex Court in ICICI Bank vs. APS Star Industries Ltd.(2010) 10 SCC 1 ), in our iew, ratio of the said judgment will certainly not apply to the facts of the present case. For the same reasons, guidelines issued by RBI dated 13/07/2005 also cannot be relied upon for answering the question raised in this Petition.25. Reliance was also placed by the learned Senior Counsel appearing on behalf of the Petitioner on the judgment of the Delhi High Court in Kotak Mahindra Bank Ltd. vs. Stiefel Und Schuh India ltd.Ors (ILR (2009) V Delhi 12). In the said case, original lender was NBFC viz. SBI Home Finance which filed proceedings in the Civil Court for recovery of a mortgaged debt. However, during the pendency of the suit, the debt was assigned to a Bank viz. the State Bank of India, which, in turn, assigned it to Kotak Mahindra Bank Ltd. After assignment, Kotak Mahindra Bank Ltd. applied for transfer of proceedings from Civil Court to DRT on the ground that subsequent assigneeKotak Mahindra Bank Ltd. was a Bank under RDDBFI Act, 1993. The learned Single Judge dismissed the application for transferring it to DRT. Appeal Court, however, reversed the decision and held that remedies available in the DRT were permitted to Kotak Mahindra Bank and therefore proceedings in the Civil Court were expressly barred.26. In our view, it is not possible to accept the view taken by the Delhi High Court. Secondly, Delhi High Court was not required to consider the issue as to whether a debt which is assigned by aFinancial Institution to a Bank or Reconstruction Company could be enforced under the SARFAESI Act and, therefore, ratio of the said judgment, in any case, will not apply to the facts of 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: Amendment Act No.1 of 2013 with effect from 15/01/2013 and it permits the Securitisation Company or Reconstruction Company an acquisition of financial assets under sub-section (1) which deals with acquisition of financial assets and any Bank or Financial Institution can substitute its name in any pending suit, appeal or other proceedings before the DRT or Appellate Tribunal etc. Chapter-III deals with enforcement of security interest and section 13(2) and (4) makes it clear that a borrower who fails to discharge his liability in full within a period prescribed in sub-section (2), again, against such a borrower, a secured creditor can take recourse to recover his secured debt. Consequently, therefore, only against such a borrower the debt which is defined under section 2(f) can be enforced under Section 13.Taking into consideration the scheme of the Act, Objects and Reasons and various provisions of the SARFAESI Act, we have no hesitation in holding that the debt which is assigned to a Bank or Financial Institution by Non-banking Financial Institution is not covered within the definition of the term borrower and therefore cannot be enforced under Section 13 of the said Act. The submission made by Ms. Rajani Iyer, the learned Senior Counsel appearing on behalf of the Petitioner, therefore, cannot be accepted and we concur with the view taken by the DRT and DRAT.23. Ms Rajani Iyer, the learned Senior Counsel appearing on behalf of the Petitioner has relied on the judgment of the Apex Court in ICICI Bank vs. APS Star Industries Ltd.(2010) 10 SCC 1 ). Relying on the said judgment, she submitted that the Apex Court has considered, whether assignments were permissible banking activity and whether assignments from a Bank, Financial Institution or NBFC to a Bank, Financial Institution and NBFC is legal and valid. She submitted that the Apex Court, while relying on the guidelines issued by the Reserve Bank of India, upheld the guidelines and further held that assignment from/to NBFC and Financial Institution was valid and legal. She further submitted that City Financial Consumer Finance Ltd. is NBFC and the assignment from NBFC to present Petitioner is permitted under the RBI guidelines. She further submitted that the debt therefore in the hands of the Bank is a secured debt within the meaning of section 2(ze) and 2(zf) of the SARFAESI Act and the Petitioner was entitled to enforce the secured asset under the provisions of the SARFAESI Act.24. In our view, the said submission is without any substance. Perusal of the said judgment and order in ICICI Bank vs. APS Star Industries Ltd. (2010) 10 SCC 1 ) reveals that the Apex Court was called upon to consider a question as to whether assignment of debts between Non-banking Financial Institutions and Banks was a permissible banking business. While deciding the said issue, the Apex Court, relying on RBI policy, held that it was a permissible banking business. In the said case, the question which fell for consideration and which had been reproduced in para 2 of the said judgment was as under:-Whether inter se transfer of nonperforming assets (NPA, for short) by the banks is illegal under the Banking Regulation Act, 1949 (the BR Act, 1949, for short) as held by the Gujarat High Court in the impugned judgmentAnswering the said question, after relying on RBI directives, the Apex Court held that guidelines issued by RBI dated 13/07/2005 have statutory force and are not ultra vires the BR Act, 1949 and it therefore held that assignment of debts of NBFC by one Bank to another Bank is permissible under 1949 Act and not violative of section 130 of the Transfer of Property Act, 1882. In our view, taking into consideration the facts of the said case, the issue which fell for consideration before the Apex Court therefore was entirely different. The issue which falls for consideration before this Court in this case is : whether the Bank to whom a debt has been assigned by the Non-Banking Financial Corporation (NBFC) is entitled to adopt proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest, Act, 2002 This issue being completely distinct and different from the issue decided by the Apex Court in ICICI Bank vs. APS Star Industries Ltd.(2010) 10 SCC 1 ), in our iew, ratio of the said judgment will certainly not apply to the facts of the present case. For the same reasons, guidelines issued by RBI dated 13/07/2005 also cannot be relied upon for answering the question raised in this Petition.25. Reliance was also placed by the learned Senior Counsel appearing on behalf of the Petitioner on the judgment of the Delhi High Court in Kotak Mahindra Bank Ltd. vs. Stiefel Und Schuh India ltd. & Ors (ILR (2009) V Delhi 12). In the said case, original lender was NBFC viz. SBI Home Finance which filed proceedings in the Civil Court for recovery of a mortgaged debt. However, during the pendency of the suit, the debt was assigned to a Bank viz. the State Bank of India, which, in turn, assigned it to Kotak Mahindra Bank Ltd. After assignment, Kotak Mahindra Bank Ltd. applied for transfer of proceedings from Civil Court to DRT on the ground that subsequent assignee Kotak Mahindra Bank Ltd. was a Bank under RDDB & FI Act, 1993. The learned Single Judge dismissed the application for transferring it to DRT. Appeal Court, however, reversed the decision and held that remedies available in the DRT were permitted to Kotak Mahindra Bank and therefore proceedings in the Civil Court were expressly barred.26. In our view, it is not possible to accept the view taken by the Delhi High Court. Secondly, Delhi High Court was not required to consider the issue as to whether a debt which is assigned by a Non-banking Financial Institution to a Bank or Reconstruction Company could be enforced under the SARFAESI Act and, therefore, ratio of the said judgment, in any case, will not apply to the facts of the present case. ### Response: 0

Jai Narain Ram Lundia Vs. Kedar Nath Khetan And Others

only be done by the Court which passed the decree and not in execution. We do not intend to examine this because even if these remedies also exist, provided application is made to the proper Court, it does not affect the basic principle in execution that the executing Court must take the decree as it stands and cannot go behind it. If the decree says that on payment being made some definite and specific thing is to be given to the other side, the executing Court cannot alter that and allow something else to be substituted for the thing ordered to be given.21. The learned counsel for the defendant-appellant contended that even if the Marwari Brothers had ceased to exist as a firm the plaintiff was still entitled to a five annas share in its assets on dissolution. But a five annas share in the assets of a dissolved firm which has ceased to exist is a very different thing from a five annas share in a going partnership concern; and to permit this substitution in the decree would be to alter it in a very material particular. The defendant may or may not have the right to ask the Court which passed the decree to vary it in that way but he can certainly not ask the executing Court to do so. The decree must either be executed as it stands in one of the ways allowed by law or not at all.22. In the High Court, and also before us, much was made of the fact that the plaintiff had not re-tendered the money after the decree was varied by the High Court and it was argued that that precluded him from contesting the defendants right to attach his property under 0,21, R. 32 (1), Civil P. C. The remedy provided in 0.21, R. 32 (1), is, of course, one of the remedies available in execution of a decree for specific performance but it can only be used by a person who is entitled to execute the decree, and if, by reason of his own incapacity to perform his part, he is precluded from seeking execution, O.21, R. 32 (1), cannot apply.23. The only question that remains is whether the executing Court can consider whether the defendant is in a position to perform his part of the decree. But of course it can. If the executing Court cannot consider this question who can?The executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the Court executing the decree can determine it. It is a matter distinctly relating to the execution, discharge and satisfaction of the decree and so, under S. 47, Civil P. C., it can only be determined by the Court executing the decree. And as for the first Courts conclusion that it could not decide these matters because it was not the Court that passed the decree, it is enough to say, as the High Court did, that S. 42 of the Code expressly gives the Court executing a decree sent to it the same powers in executing such decree as if it had been passed by itself.24. The next point urged by the appellant was that as the plaintiff did not raise the present objection before the Federal Court when it passed its decree he is precluded from doing so now. It is true this would have been a good ground for resisting a decree for specific performance but is no answer to the objection to execution. The defendant undertook to perform his part when the decree was passed and he must make good that undertaking before he can seek execution because the decree,in view of its language and intendment, must either be executed as a whole or not at all; it cannot be split up into different and uncorrelated parts and be executed unilaterally. It may be observed in passing that it was as much the duty of the defendant to seek modification of the contract by the Court which passed the decree, or modification of the terms of the decree, later if he did not know these fact at the time, as he says it was of the plaintiff. The fact remains that the decree was passed in these terms and it must either be executed as it stands or not at all unless the Court which passed it alters or modifies it.25. Then it was argued that this objection to execution should have been taken by the plaintiff in the Calcutta High Court when the defendant asked for transfer of the decree to Motihari and that as that was not done it is too late now. But here also the answer is the same. The only question before the Calcutta High Court on the application made to it was whether the decree should be transferred or not. Whether the plaintiff might or could have taken the objection in the High Court is beside the point because it is evident that he need not have done so on the only issue which the application for transfer raised, namely whether the decree should be transferred or not; at best it could only be said that the plaintiff had a choice of two forums. But normally this sort of question which involves an enquiry into fact would not be tried by an appellate Court. It would be more appropriate for an original Court to which the decree is transferred for execution to enquire into it. In any case, if the appellants contention is pushed to its logical conclusion it would mean that whenever a decree is transferred all objection to execution must cease unless the order of the Court directing the transfer expressly enumerates the issues that the transferring Court is at liberty to determine. In our opinion S. 42, Civil P. C. is a complete answer to this contention.

0[ds]On this point we agree with the High Court that it was not, for the followingreject this contention and remark in passing that this is inconsistent with another argument which was also urged in this Court, namely that the fact of dissolution was, no bar to performance on the defnedantsis a clear admission that the firm was dissolved, at any rate onplaintiffs contention is that it was dissolved muchearlier but whether that was so or not will make no difference to this appeal because 14-9-1950 is also before the date of the application for execution.We need not decide whether there is any conflict of view between the Privy Council decisions in - Kessowji Issur v. G. I. P. Rly.. 34 Ind App 115 at p. 122 (PC) (A) and - Parsotim v. Lal Mohar, 1931 PC 143 (AIR V 18) (PC) (B), on the one hand and - Indrajit Paratap Sahi v. Amar Singh, 1923 PC 128 (AIR V 10) at pp. 134, 135 (PC) (C), on the other because, even if this evidence were to be admitted and were to be accepted as true, there would still be the defendants admission in the High Court that the firm stood dissolved at least on 14-9-1950. We are not able to construe the statement in any otheris not necessary for us to go into that here because the position in the present case is mucha decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, satisfies the executing Court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree: a thing that an executing Court cannotmay of course be decrees where the obligations imposed on each side are distinct and severable and in such a case each party might well be left to its own execution. But when the obligations are reciprocal and are interlinked so that they cannot be separated, any attempt to enforce performance unilaterally would be to defeat the directions in the decree and to go behind them which, of course, an executing Court cannotthe principle on which we are founding is not confined to cases of specific performance. It will apply whenever a decree is so conditioned that the right of one party to seek performance from the other is conditional on his readiness and ability to perform his ownreason is, as we have explained, that to hold otherwise would be to permit an executing Court to go behind the decree and vary its terms by splitting up what was fashioned as an indivisible whole into distinct and divisible parts having separate and severable existence without any interrelation between them just as if they had been separate decrees in separate and distinctdo not intend to examine this because even if these remedies also exist, provided application is made to the proper Court, it does not affect the basic principle in execution that the executing Court must take the decree as it stands and cannot go behindthe decree says that on payment being made some definite and specific thing is to be given to the other side, the executing Court cannot alter that and allow something else to be substituted for the thing ordered to bea five annas share in the assets of a dissolved firm which has ceased to exist is a very different thing from a five annas share in a going partnership concern; and to permit this substitution in the decree would be to alter it in a very materialis true this would have been a good ground for resisting a decree for specific performance but is no answer to the objection todefendant undertook to perform his part when the decree was passed and he must make good that undertaking before he can seek execution because the decree,in view of its language and intendment, must either be executed as a whole or not at all; it cannot be split up into different and uncorrelated parts and be executedmay be observed in passing that it was as much the duty of the defendant to seek modification of the contract by the Court which passed the decree, or modification of the terms of the decree, later if he did not know these fact at the time, as he says it was of the plaintiff. The fact remains that the decree was passed in these terms and it must either be executed as it stands or not at all unless the Court which passed it alters or modifiesnormally this sort of question which involves an enquiry into fact would not be tried by an appellate Court. It would be more appropriate for an original Court to which the decree is transferred for execution to enquire intoany case, if the appellants contention is pushed to its logical conclusion it would mean that whenever a decree is transferred all objection to execution must cease unless the order of the Court directing the transfer expressly enumerates the issues that the transferring Court is at liberty to determine. In our opinion S. 42, Civil P. C. is a complete answer to this contention.

### 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: only be done by the Court which passed the decree and not in execution. We do not intend to examine this because even if these remedies also exist, provided application is made to the proper Court, it does not affect the basic principle in execution that the executing Court must take the decree as it stands and cannot go behind it. If the decree says that on payment being made some definite and specific thing is to be given to the other side, the executing Court cannot alter that and allow something else to be substituted for the thing ordered to be given.21. The learned counsel for the defendant-appellant contended that even if the Marwari Brothers had ceased to exist as a firm the plaintiff was still entitled to a five annas share in its assets on dissolution. But a five annas share in the assets of a dissolved firm which has ceased to exist is a very different thing from a five annas share in a going partnership concern; and to permit this substitution in the decree would be to alter it in a very material particular. The defendant may or may not have the right to ask the Court which passed the decree to vary it in that way but he can certainly not ask the executing Court to do so. The decree must either be executed as it stands in one of the ways allowed by law or not at all.22. In the High Court, and also before us, much was made of the fact that the plaintiff had not re-tendered the money after the decree was varied by the High Court and it was argued that that precluded him from contesting the defendants right to attach his property under 0,21, R. 32 (1), Civil P. C. The remedy provided in 0.21, R. 32 (1), is, of course, one of the remedies available in execution of a decree for specific performance but it can only be used by a person who is entitled to execute the decree, and if, by reason of his own incapacity to perform his part, he is precluded from seeking execution, O.21, R. 32 (1), cannot apply.23. The only question that remains is whether the executing Court can consider whether the defendant is in a position to perform his part of the decree. But of course it can. If the executing Court cannot consider this question who can?The executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the Court executing the decree can determine it. It is a matter distinctly relating to the execution, discharge and satisfaction of the decree and so, under S. 47, Civil P. C., it can only be determined by the Court executing the decree. And as for the first Courts conclusion that it could not decide these matters because it was not the Court that passed the decree, it is enough to say, as the High Court did, that S. 42 of the Code expressly gives the Court executing a decree sent to it the same powers in executing such decree as if it had been passed by itself.24. The next point urged by the appellant was that as the plaintiff did not raise the present objection before the Federal Court when it passed its decree he is precluded from doing so now. It is true this would have been a good ground for resisting a decree for specific performance but is no answer to the objection to execution. The defendant undertook to perform his part when the decree was passed and he must make good that undertaking before he can seek execution because the decree,in view of its language and intendment, must either be executed as a whole or not at all; it cannot be split up into different and uncorrelated parts and be executed unilaterally. It may be observed in passing that it was as much the duty of the defendant to seek modification of the contract by the Court which passed the decree, or modification of the terms of the decree, later if he did not know these fact at the time, as he says it was of the plaintiff. The fact remains that the decree was passed in these terms and it must either be executed as it stands or not at all unless the Court which passed it alters or modifies it.25. Then it was argued that this objection to execution should have been taken by the plaintiff in the Calcutta High Court when the defendant asked for transfer of the decree to Motihari and that as that was not done it is too late now. But here also the answer is the same. The only question before the Calcutta High Court on the application made to it was whether the decree should be transferred or not. Whether the plaintiff might or could have taken the objection in the High Court is beside the point because it is evident that he need not have done so on the only issue which the application for transfer raised, namely whether the decree should be transferred or not; at best it could only be said that the plaintiff had a choice of two forums. But normally this sort of question which involves an enquiry into fact would not be tried by an appellate Court. It would be more appropriate for an original Court to which the decree is transferred for execution to enquire into it. In any case, if the appellants contention is pushed to its logical conclusion it would mean that whenever a decree is transferred all objection to execution must cease unless the order of the Court directing the transfer expressly enumerates the issues that the transferring Court is at liberty to determine. In our opinion S. 42, Civil P. C. is a complete answer to this contention. ### Response: 0

Chaitanya Prakash & Another Vs. H. Omkarappa

he was not suitable for confirmation, and, therefore, his probation period was not extended and his service was terminated, which was challenged on the ground that the same was stigmatic for alleged misconduct. The Supreme Court negatived the said contention and upheld the order of termination. 17. In Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd., (supra) also the concerned employee was kept on probation for a period of two years. During the course of his employment he was also informed that despite being told to improve his performance time and again there is no such improvement. His shortfalls were brought to his notice and consequently by order dated 16.01.1997 his services were terminated, wherein also a reference was made to his unsatisfactory service. In the said decision, the Supreme Court has held that on the basis of long line of decisions it appears that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. 18. In Pavanendra Narayan verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 ; this court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination. After considering various earlier decisions of this court in paragraph 21 of the aforesaid decision it was stated by this Court thus :- "21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld." 19. In Abhijit Gupta (Supra.), this Court considered as to what will be the real test to be applied in a situation where an employee is removed by an innocuous order of termination i.e. whether he is discharged as unsuitable or he is punished for his misconduct. In order to answer the said question, the Court relied and referred to the decision of this Court in Allahabad Bank Officers Assn. V. Allahabad Bank (1996) 4 SCC 504 ; where it is stated thus :- "14.......As pointed out in this judgment, expressions like "want of application", "lack of potential" and "found not dependable" when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service." 20. In our considered opinion, the ratio of the above-referred decisions are squarely applicable to the facts of the present case. The respondent was time and again informed during the probation period about his deficiencies and was given ample opportunities to improve them. Therefore, enough precautions were taken by the appellants to see that the respondent improved his performance and such an opportunity was provided to him. But such advices and opportunity were totally misplaced as the respondent considered the same as unnecessary encroachment and interference in his work and wrote back rudely in an intemperate language. Whether or not a person is suitable to be retained and confirmed in service could be considered and assessed by the Managing Director, namely, appellant no. 1, but he after making an appraisal submitted his report along with all other records of the respondent before the Board of Directors, who finally took the decision. The Board of Directors constituted of responsible persons and they while deciding the suitability of the respondent not only considered the Performance Assessment Report but also considered all other records, and thereafter they took a considered and conscious decision that the respondent was not suitable for confirmation and terminate his service. The said decision of the Board of Directors appears to be in parity with the ratio of the aforesaid decisions of this Court (supra). The reasons mentioned in the letter dated 29.11.1999 - terminating the services of the respondent cannot be said to be stigmatic. The appellant had time and again specifically brought to the notice of the respondent his short comings and no misconduct as such is alleged against the respondent by the appellant and therefore the present case is a case of termination simpliciter due to unsuitability of the respondent and not a case of punishment for misconduct. 21. It was brought to our notice during the course of argument by the counsel appearing for the respondent that the order of dismissal of the respondent dated 29.11.1999 was stigmatic is also proved from the fact that subsequent to his termination, the respondent was called for interview for the post of Managing Director of M/s Spices Trading Corporation Ltd. and that when he reached the venue of interview, he was informed by the Selection Board that he was not required to attend the interview because the appellants informed the said company that the service of the respondent was terminated due to his unsatisfactory service performance. Referring to and relying on the same, it was submitted by the counsel appearing for the respondent that it indicated and fortified the vindictive attitude of the 1st appellant herein from issuance of the aforesaid letter. We have perused the relevant records and on the basis of the same we are of considered opinion that the appellants informed M/s Spices Trading Corporation Ltd. company on being specifically asked by the said company about the performance of the respondent and consequently it was informed that his service was terminated due to unsuitability, which is a fact. If, they would have not intimated the same to the company despite their specific query then they would have been suppressing the material fact. In our considered opinion the aforesaid aspect does not in any manner support the case of the respondent.

1[ds]16. It is no longer res integra that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In this connection, we make a reference to the decision of the decision of the Supreme Court in Abhijit Gupta v. S.N.B. National Centre, Basic Sciences (supra), wherein also a similar letter was issued to the concerned employee intimating him that his performance was unsatisfactory and, therefore, he is not suitable for confirmation. We have considered the ratio in light of the facts of the said case and we are of the considered opinion that the basic facts of the said case are almost similar to the one in hand. There also, letters were issued to the concerned employee to improve his performance in the areas of his duties and that despite such communications the service was found to be unsatisfactory. In the result, a letter was issued to him pointing out that his service was found to be unsatisfactory and that he was not suitable for confirmation, and, therefore, his probation period was not extended and his service was terminated, which was challenged on the ground that the same was stigmatic for alleged misconduct. The Supreme Court negatived the said contention and upheld the order of termination17. In Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd., (supra) also the concerned employee was kept on probation for a period of two years. During the course of his employment he was also informed that despite being told to improve his performance time and again there is no such improvement. His shortfalls were brought to his notice and consequently by order dated 16.01.1997 his services were terminated, wherein also a reference was made to his unsatisfactory service. In the said decision, the Supreme Court has held that on the basis of long line of decisions it appears that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case18. In Pavanendra Narayan verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 ; this court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination. After considering various earlier decisions of this court in paragraph 21 of the aforesaid decision it was stated by this Court thus :-"21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld."19. In Abhijit Gupta (Supra.), this Court considered as to what will be the real test to be applied in a situation where an employee is removed by an innocuous order of termination i.e. whether he is discharged as unsuitable or he is punished for his misconduct. In order to answer the said question, the Court relied and referred to the decision of this Court in Allahabad Bank Officers Assn. V. Allahabad Bank (1996) 4 SCC 504 ; where it is stated thus :-"14.......As pointed out in this judgment, expressions like "want of application", "lack of potential" and "found not dependable" when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service."20. In our considered opinion, the ratio of the above-referred decisions are squarely applicable to the facts of the present case. The respondent was time and again informed during the probation period about his deficiencies and was given ample opportunities to improve them. Therefore, enough precautions were taken by the appellants to see that the respondent improved his performance and such an opportunity was provided to him. But such advices and opportunity were totally misplaced as the respondent considered the same as unnecessary encroachment and interference in his work and wrote back rudely in an intemperate language. Whether or not a person is suitable to be retained and confirmed in service could be considered and assessed by the Managing Director, namely, appellant no. 1, but he after making an appraisal submitted his report along with all other records of the respondent before the Board of Directors, who finally took the decision. The Board of Directors constituted of responsible persons and they while deciding the suitability of the respondent not only considered the Performance Assessment Report but also considered all other records, and thereafter they took a considered and conscious decision that the respondent was not suitable for confirmation and terminate his service. The said decision of the Board of Directors appears to be in parity with the ratio of the aforesaid decisions of this Court (supra). The reasons mentioned in the letter dated 29.11.1999 - terminating the services of the respondent cannot be said to be stigmatic. The appellant had time and again specifically brought to the notice of the respondent his short comings and no misconduct as such is alleged against the respondent by the appellant and therefore the present case is a case of termination simpliciter due to unsuitability of the respondent and not a case of punishment for misconduct

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: he was not suitable for confirmation, and, therefore, his probation period was not extended and his service was terminated, which was challenged on the ground that the same was stigmatic for alleged misconduct. The Supreme Court negatived the said contention and upheld the order of termination. 17. In Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd., (supra) also the concerned employee was kept on probation for a period of two years. During the course of his employment he was also informed that despite being told to improve his performance time and again there is no such improvement. His shortfalls were brought to his notice and consequently by order dated 16.01.1997 his services were terminated, wherein also a reference was made to his unsatisfactory service. In the said decision, the Supreme Court has held that on the basis of long line of decisions it appears that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. 18. In Pavanendra Narayan verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 ; this court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination. After considering various earlier decisions of this court in paragraph 21 of the aforesaid decision it was stated by this Court thus :- "21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld." 19. In Abhijit Gupta (Supra.), this Court considered as to what will be the real test to be applied in a situation where an employee is removed by an innocuous order of termination i.e. whether he is discharged as unsuitable or he is punished for his misconduct. In order to answer the said question, the Court relied and referred to the decision of this Court in Allahabad Bank Officers Assn. V. Allahabad Bank (1996) 4 SCC 504 ; where it is stated thus :- "14.......As pointed out in this judgment, expressions like "want of application", "lack of potential" and "found not dependable" when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service." 20. In our considered opinion, the ratio of the above-referred decisions are squarely applicable to the facts of the present case. The respondent was time and again informed during the probation period about his deficiencies and was given ample opportunities to improve them. Therefore, enough precautions were taken by the appellants to see that the respondent improved his performance and such an opportunity was provided to him. But such advices and opportunity were totally misplaced as the respondent considered the same as unnecessary encroachment and interference in his work and wrote back rudely in an intemperate language. Whether or not a person is suitable to be retained and confirmed in service could be considered and assessed by the Managing Director, namely, appellant no. 1, but he after making an appraisal submitted his report along with all other records of the respondent before the Board of Directors, who finally took the decision. The Board of Directors constituted of responsible persons and they while deciding the suitability of the respondent not only considered the Performance Assessment Report but also considered all other records, and thereafter they took a considered and conscious decision that the respondent was not suitable for confirmation and terminate his service. The said decision of the Board of Directors appears to be in parity with the ratio of the aforesaid decisions of this Court (supra). The reasons mentioned in the letter dated 29.11.1999 - terminating the services of the respondent cannot be said to be stigmatic. The appellant had time and again specifically brought to the notice of the respondent his short comings and no misconduct as such is alleged against the respondent by the appellant and therefore the present case is a case of termination simpliciter due to unsuitability of the respondent and not a case of punishment for misconduct. 21. It was brought to our notice during the course of argument by the counsel appearing for the respondent that the order of dismissal of the respondent dated 29.11.1999 was stigmatic is also proved from the fact that subsequent to his termination, the respondent was called for interview for the post of Managing Director of M/s Spices Trading Corporation Ltd. and that when he reached the venue of interview, he was informed by the Selection Board that he was not required to attend the interview because the appellants informed the said company that the service of the respondent was terminated due to his unsatisfactory service performance. Referring to and relying on the same, it was submitted by the counsel appearing for the respondent that it indicated and fortified the vindictive attitude of the 1st appellant herein from issuance of the aforesaid letter. We have perused the relevant records and on the basis of the same we are of considered opinion that the appellants informed M/s Spices Trading Corporation Ltd. company on being specifically asked by the said company about the performance of the respondent and consequently it was informed that his service was terminated due to unsuitability, which is a fact. If, they would have not intimated the same to the company despite their specific query then they would have been suppressing the material fact. In our considered opinion the aforesaid aspect does not in any manner support the case of the respondent. ### Response: 1

Deputy Commissioner of Sales Tax Etc Vs. Aysha Hosiery Factory Private Limited Etc

him in his mill within the State, is assessed to tax or is liable to tax at his hands under the Kerala General Sales Tax Act. This notification came into force with effect from 1.4.1966. When the assessing authorities sought to levy the additional tax imposed under the additional Sales Tax Act, 1978 in respect of the inter-state sale and called upon the assessees to pay at 1.1%, the dealers questioned the assessment orders on the ground that when once a notification has been made under Section 8(5) of the Central Sales Tax Act fixing the rate for purposes of C.S.T. any change in the rate of tax under the local act will have no impact on the notification itself unless the notification al so is modified or amended giving effect to the amendment. This contention was accepted by Kochu Thommen. as he then was, in the judgment in the Janatha Expeller Co. &Ors. case (supra). No exception could be taken to this view of the learned Judge. Because section 8(5) of the Central Sales Tax Act is a provision which enable the State Government if it was of the view that it was necessary to do so in the public interest to completely exempt the inter-state sales from payment of tax or reduce the tax payable under the Central Act in respect of inter-state sales. The section itself states the notification will have effect "Notwithstanding anything contained in section 8". Therefore when once a notification is made it will have effect propio vigor and even any amendment of the rate applicable to inter-state sale will not affect the notification under section 8(5) of the Central Sales Tax Act as such unless the notification also is amended along with the amendment of the other provisions in the Section or the amended statute in law the effect of superseding the notification itself. In the case dealt with in Janatha Expeller Co. &Ors. (supra) the levy of additional sales tax could not affect the notification because the notification, though issued by the State Government, was made in exercise of the powers under section 8(5) of the Central Act enacted by the Parliament, and the Kerala Additional Sales Tax Act was made by the State Legi slature and that could have the effect of superseding the notification. We may also point out that the learned Judge also had confined his decision to the notification and its effect though he had dealt with the scope of section 8(2-A) of the Central Sales Tax Act also in order to give better understanding of the provisions of section 8(5) of the Central Sales Tax Act. We are unable to see anything in this judgment to support the contention of the respondents-assessees that even in a case which is not covered by any notification under section 8(5) of the CST Act increase in the rate of tax under the local act will not have any effect on the applicability of Section 8(2)(b) an d 8(2-A) of the CST Act. Further, for enhancing the rate notified under section 8(5) of the Central Sales Tax Act no reliance can be placed on section 8(2-A) of the CST Act. However, while agreeing with the view of the learned single Judge the Division Bench on appeal in the case of Assistant Commissioner (Assessment) Sales Tax (supra) made certain further observation which in a way supported the contention of the assessees. That passage reads as follows: "We are also of the view, that even in cases where tax is exigible under section 8(2A) of the Central Sales Tax for the inter-State sales, the Kerala Additional Sales Tax Act, 1978 (Act 20 of 1978), has no application.As stated already, in cases where the tax is payable under section 8(2A) of the Central Sales Tax Act, what is crucial or relevant is to ascertain, the appropriate sales tax law of the State, under which the tax is levied for the sale or purchase of the goods or the commodity, in question. Looked at from the angle, we have no doubt, that the appropriate sales tax law of the State, of which tax is levied, is the Kerala General Sales Tax Act, 1963. The Kerala Additional Sales Tax Act, 1978(Act 20 of 1978), does not levy sales tax on the sale or purchase of the goods or commodity, in question. We hold that the provisions of Act 20 of 1978 are inapplicable to a situation, where inter-State sales are to be taxed under section 8 or section 8(2A) or section 8(5) of the Central Sales Tax Act." 8. In the first place these observations are in the nature of obiter in view of the fact that the learned Judges have accepted the interpretation placed by the learned single Judge that in respect of a case where a notification has been issued under Section 8(5) of the CST Act the amendment to the State Act will not have any effect on the notification. That should have been enough to dispose of the case but they have given an alternative reasoning which in our view is not correct and is against the provisions of Section 8(2-A) of the CST Act itself. For the purpose of applicability of Section 8(2-A) of the CST Act we have to look to the rate of tax applicable for the time being under the local Act at the time when the CST Act was enacted. Any amendment in the local Act ultimately will have a reflection in the assessment of the inter-state sales. We have already discussed the scope of Section 8 (2-A) of the CST Act and in the light of those reasonings the passage extracted above in the judgment of the Division Bench is contrary to law and could not be accepted. 9. As we have stated already in all the appeals under consideration there were no notifications under section 8(5) of the CST Act and simply the applicability of section 8(2- A) of the CST Act alone is involved.

1[ds]Any other construction would restrict the applicability of section 8 ( 2-A) of the CST Act to the sales tax law was in force in 1956 when the Central Sales Tax Act came into force and any amendment to the local law would not have any affect on the applicability of that provisions. We do not see any logic or reason for such a construction. What is relevant is if a particular intra-state sale transaction in a particular assessment year is subjected to a particular rate of tax that automatically gets reflected in and had to be taken into consideration for finding the rate and the applicability of section 8 (2-A) or Section 8(2)(b) of Central Sales Tax Act. As already stated if instead of an additional sales tax Act the legislature has simply amended the Kerala General Sales Tax Act by varying the rate automatically that will come in for consideration and application of the provisions of Section 8(2)(b) and 8(2-A) of the CST Act. For this purpose amendment of the State Act is not considered as an amendment of the Central Sales Tax Act. But since the rate applicable to the intra-state sales at a particular point of time is a relevant consideration for finding out the rate of tax on inter-State sale the amendment of the State Act automatically has the effect of changing the rate provided under Section 8 of the Central Sales Tax Act. That is not to say that the Central Act is amended by the State Legislature. The rates of tax in certain cases under the Central Act are linked to the rates fixed under the local Act and that is how the amendment of the local acts affects the rates under the Central Act. It is still the Central Act that is applied but only for purposes of fixing the rate of tax leviable under the Central Sales Tax Act the provisions of the Local Act are looked into. So construed we have no doubt that in all cases where the rate of tax under the local law is less than four per cent that will be the rate applicable to the inter-state sale of the same commodity if the provisions of Section 8(2-A) of the CST Act are applicable. The dealer undoubtedly would be paying at the rate as enhanced by the Additional Sales Tax Act and therefore that will be the rate that is including the additional tax, that is to be taken into consideration for finding out the applicability of section 8(2-A) of the CST Act and the rate of tax in respect of his inter-State sales turnover. There could be therefore no doubt that the assessees-respondents in all these cases are liable to pay sales tax at the rate including the additional sales tax in respect of their inter-State sales under the Central Sales Tax assessmentare unable to see anything in this judgment to support the contention of the respondents-assessees that even in a case which is not covered by any notification under section 8(5) of the CST Act increase in the rate of tax under the local act will not have any effect on the applicability of Section 8(2)(b) an d 8(2-A) of the CST Act. Further, for enhancing the rate notified under section 8(5) of the Central Sales Tax Act no reliance can be placed on section 8(2-A) of the CST Act. However, while agreeing with the view of the learned single Judge the Division Bench on appeal in the case of Assistant Commissioner (Assessment) Sales Tax (supra) made certain further observation which in a way supported the contention of the assessees. That passage reads asare also of the view, that even in cases where tax is exigible under section 8(2A) of the Central Sales Tax for the inter-State sales, the Kerala Additional Sales Tax Act, 1978 (Act 20 of 1978), has no application.As stated already, in cases where the tax is payable under section 8(2A) of the Central Sales Tax Act, what is crucial or relevant is to ascertain, the appropriate sales tax law of the State, under which the tax is levied for the sale or purchase of the goods or the commodity, in question. Looked at from the angle, we have no doubt, that the appropriate sales tax law of the State, of which tax is levied, is the Kerala General Sales Tax Act, 1963. The Kerala Additional Sales Tax Act, 1978(Act 20 of 1978), does not levy sales tax on the sale or purchase of the goods or commodity, in question. We hold that the provisions of Act 20 of 1978 are inapplicable to a situation, where inter-State sales are to be taxed under section 8 or section 8(2A) or section 8(5) of the Central Sales Taxthe first place these observations are in the nature of obiter in view of the fact that the learned Judges have accepted the interpretation placed by the learned single Judge that in respect of a case where a notification has been issued under Section 8(5) of the CST Act the amendment to the State Act will not have any effect on the notification. That should have been enough to dispose of the case but they have given an alternative reasoning which in our view is not correct and is against the provisions of Section 8(2-A) of the CST Act itself. For the purpose of applicability of Section 8(2-A) of the CST Act we have to look to the rate of tax applicable for the time being under the local Act at the time when the CST Act was enacted. Any amendment in the local Act ultimately will have a reflection in the assessment of the inter-state sales. We have already discussed the scope of Section 8 (2-A) of the CST Act and in the light of those reasonings the passage extracted above in the judgment of the Division Bench is contrary to law and could not bequestion could not have arisen but for the fact that this additional levy came to be imposed under a separate Act. Had the additional Sales Tax been imposed by simply amending the rates in the original Act the question would not have arisen. But we are of the view that this makes no difference and it is merely a matter of style of legislation. The additional sales tax levied under the Sales Tax Act is al so a sales tax of the same category as in the originaldefinition does not say that the sale tax law or the general sales tax law which levies taxes on sale or purchase of goods shall be under a single

### 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: him in his mill within the State, is assessed to tax or is liable to tax at his hands under the Kerala General Sales Tax Act. This notification came into force with effect from 1.4.1966. When the assessing authorities sought to levy the additional tax imposed under the additional Sales Tax Act, 1978 in respect of the inter-state sale and called upon the assessees to pay at 1.1%, the dealers questioned the assessment orders on the ground that when once a notification has been made under Section 8(5) of the Central Sales Tax Act fixing the rate for purposes of C.S.T. any change in the rate of tax under the local act will have no impact on the notification itself unless the notification al so is modified or amended giving effect to the amendment. This contention was accepted by Kochu Thommen. as he then was, in the judgment in the Janatha Expeller Co. &Ors. case (supra). No exception could be taken to this view of the learned Judge. Because section 8(5) of the Central Sales Tax Act is a provision which enable the State Government if it was of the view that it was necessary to do so in the public interest to completely exempt the inter-state sales from payment of tax or reduce the tax payable under the Central Act in respect of inter-state sales. The section itself states the notification will have effect "Notwithstanding anything contained in section 8". Therefore when once a notification is made it will have effect propio vigor and even any amendment of the rate applicable to inter-state sale will not affect the notification under section 8(5) of the Central Sales Tax Act as such unless the notification also is amended along with the amendment of the other provisions in the Section or the amended statute in law the effect of superseding the notification itself. In the case dealt with in Janatha Expeller Co. &Ors. (supra) the levy of additional sales tax could not affect the notification because the notification, though issued by the State Government, was made in exercise of the powers under section 8(5) of the Central Act enacted by the Parliament, and the Kerala Additional Sales Tax Act was made by the State Legi slature and that could have the effect of superseding the notification. We may also point out that the learned Judge also had confined his decision to the notification and its effect though he had dealt with the scope of section 8(2-A) of the Central Sales Tax Act also in order to give better understanding of the provisions of section 8(5) of the Central Sales Tax Act. We are unable to see anything in this judgment to support the contention of the respondents-assessees that even in a case which is not covered by any notification under section 8(5) of the CST Act increase in the rate of tax under the local act will not have any effect on the applicability of Section 8(2)(b) an d 8(2-A) of the CST Act. Further, for enhancing the rate notified under section 8(5) of the Central Sales Tax Act no reliance can be placed on section 8(2-A) of the CST Act. However, while agreeing with the view of the learned single Judge the Division Bench on appeal in the case of Assistant Commissioner (Assessment) Sales Tax (supra) made certain further observation which in a way supported the contention of the assessees. That passage reads as follows: "We are also of the view, that even in cases where tax is exigible under section 8(2A) of the Central Sales Tax for the inter-State sales, the Kerala Additional Sales Tax Act, 1978 (Act 20 of 1978), has no application.As stated already, in cases where the tax is payable under section 8(2A) of the Central Sales Tax Act, what is crucial or relevant is to ascertain, the appropriate sales tax law of the State, under which the tax is levied for the sale or purchase of the goods or the commodity, in question. Looked at from the angle, we have no doubt, that the appropriate sales tax law of the State, of which tax is levied, is the Kerala General Sales Tax Act, 1963. The Kerala Additional Sales Tax Act, 1978(Act 20 of 1978), does not levy sales tax on the sale or purchase of the goods or commodity, in question. We hold that the provisions of Act 20 of 1978 are inapplicable to a situation, where inter-State sales are to be taxed under section 8 or section 8(2A) or section 8(5) of the Central Sales Tax Act." 8. In the first place these observations are in the nature of obiter in view of the fact that the learned Judges have accepted the interpretation placed by the learned single Judge that in respect of a case where a notification has been issued under Section 8(5) of the CST Act the amendment to the State Act will not have any effect on the notification. That should have been enough to dispose of the case but they have given an alternative reasoning which in our view is not correct and is against the provisions of Section 8(2-A) of the CST Act itself. For the purpose of applicability of Section 8(2-A) of the CST Act we have to look to the rate of tax applicable for the time being under the local Act at the time when the CST Act was enacted. Any amendment in the local Act ultimately will have a reflection in the assessment of the inter-state sales. We have already discussed the scope of Section 8 (2-A) of the CST Act and in the light of those reasonings the passage extracted above in the judgment of the Division Bench is contrary to law and could not be accepted. 9. As we have stated already in all the appeals under consideration there were no notifications under section 8(5) of the CST Act and simply the applicability of section 8(2- A) of the CST Act alone is involved. ### Response: 1

Pathan Mohammed Suleman Rehmatkhan Vs. State Of Gujarat

action of the respondent was not based on extraneous considerations or vitiated by malafide exercise of powers. Holding so, the writ petition was dismissed by the impugned order, against which this special leave petition has been preferred. 7. We heard Shri Y.N. Oza, learned counsel for the petitioner and perused the records, as well as counter affidavit and reply affidavit filed by the parties before the Gujarat High Court. The entire case of the petitioner is based on the CAG report. The applicability and the binding characteristics of such report were considered by the High Court. In Arun Agrawal’s case (supra), this Court held as follows:- “We may, however, pointed out that since the report is from a constitutional functionary, it commands respect and cannot be brushed aside as such, but it is equally important to examine the comments what respective Ministries have to offer on the CAG’s Report. The Ministry can always point out, if there is any mistake in the CAG’s report or the CAG has inappropriately appreciated the various issues.” 8. CAG is a key figure in the system of parliamentary control of finance and is empowered to delve into the economy, efficiency and effectiveness with which the departmental authorities or other bodies had used their resources in discharging their functions. CAG is also the final audit authority and is a part of the machinery through which the legislature enforces the regulatory and economy in the administration of public finance, as has been rightly pointed out by the High Court. But we cannot lose sight of the fact that it is the Government which administers and runs the State, which is accountable to the people. State’s welfare, progress, requirements and needs of the people are better answered by the State, also as to how the resources are to be utilized for achieving various objectives. If every decision taken by the State is tested by a microscopic and a suspicious eye, the administration will come to stand still and the decisions-makers will lose all their initiative and enthusiasm. At hindsight, it is easy to comment upon or criticize the action of the decision maker. Sometimes, decisions taken by the State or its administrative authorities may go wrong and sometimes it may achieve the desired results. Criticisms are always welcome in a Parliamentary democracy, but a decision taken in good faith, with good intentions, without any extraneous considerations, cannot belittled, even if that decision was ultimately proved to be wrong. 9. We have extensively referred to these principles in Arun Agrawal’s case (supra), where we have held as follows:- “This Court sitting in the jurisdiction cannot sit in judgment over the commercial or business decision taken by parties to the agreement, after evaluating and assessing its monetary and financial implications, unless the decision is in clear violation of any statutory provisions or perverse or taken for extraneous considerations or improper motives. States and its instrumentalities can enter into various contracts which may involve complex economic factors. State or the State undertaking being a party to a contract, have to make various decisions which they deem just and proper. There is always an element of risk in such decisions, ultimately it may turn out to be correct decision or a wrong one. But if the decision is taken bona fide and in public interest, the mere fact that decision has ultimately proved to be wrong, that itself is not a ground to hold that the decision was mala fide or taken with ulterior motives.” 10. Reference in this regard may also be made to the judgment of this Court in Centre for Public Interest Litigation & Ors. v. Union of India & Ors. AIR 2012 SC 3725 , wherein it was held that when the CAG report is subject to scrutiny by the Public Accounts Committee and the Joint Parliamentary Committee, it would not be proper to refer the findings and conclusions contained therein. The Court even went on to say that it is not necessary to advert to the reasoning and suggestions made, as well. 11. We have gone through the salient features of the Project referred to in the various orders passed by the State Government and the resolutions dated 22.3.2011 and 7.6.2011 allotting lands to fourth respondent and also the notification dated 18.8.2011 issued under the Special Economic Zones Act, 2005, and we are in agreement with the High Court that it cannot be said that the State has acted against public interest. The Government has noticed the development and the employment opportunities that the project would bring into the State. The decision taken by the Government was also transparent and that the Government has also got substantial stake in the Public-Private Partnership and has also taken care of its interests while entering into the various agreements. Learned senior counsel fairly submitted that he is not attributing any motives or stating that the decision was taken for extraneous reasons, but contended that the Government had, without any application of mind, parted with a large tracks of land worth crores of rupees to the private party, which is not in the interest of the State. 12. We are of the view that these are purely policy decisions taken by the State Government and, while so, it has examined the benefits the project would bring into the State and to the people of the State. It is well settled that non-floating of tenders or absence of public auction or invitation alone is not a sufficient reason to characterize the action of a public authority as either arbitrary or unreasonable or amounted to mala fide or improper exercise of power. The Courts have always held that it is open to the State and the authorities to take economic and management decision depending upon the exigencies of a situation guided by appropriate financial policy notified in public interest. We are of the view that is what has been done in the instant case and the High Court has rightly held so.

0[ds]We are of the view that these are purely policy decisions taken by the State Government and, while so, it has examined the benefits the project would bring into the State and to the people of the State. It is well settled that non-floating of tenders or absence of public auction or invitation alone is not a sufficient reason to characterize the action of a public authority as either arbitrary or unreasonable or amounted to mala fide or improper exercise of power. The Courts have always held that it is open to the State and the authorities to take economic and management decision depending upon the exigencies of a situation guided by appropriate financial policy notified in public interest. We are of the view that is what has been done in the instant case and the High Court has rightly held so.

### 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: action of the respondent was not based on extraneous considerations or vitiated by malafide exercise of powers. Holding so, the writ petition was dismissed by the impugned order, against which this special leave petition has been preferred. 7. We heard Shri Y.N. Oza, learned counsel for the petitioner and perused the records, as well as counter affidavit and reply affidavit filed by the parties before the Gujarat High Court. The entire case of the petitioner is based on the CAG report. The applicability and the binding characteristics of such report were considered by the High Court. In Arun Agrawal’s case (supra), this Court held as follows:- “We may, however, pointed out that since the report is from a constitutional functionary, it commands respect and cannot be brushed aside as such, but it is equally important to examine the comments what respective Ministries have to offer on the CAG’s Report. The Ministry can always point out, if there is any mistake in the CAG’s report or the CAG has inappropriately appreciated the various issues.” 8. CAG is a key figure in the system of parliamentary control of finance and is empowered to delve into the economy, efficiency and effectiveness with which the departmental authorities or other bodies had used their resources in discharging their functions. CAG is also the final audit authority and is a part of the machinery through which the legislature enforces the regulatory and economy in the administration of public finance, as has been rightly pointed out by the High Court. But we cannot lose sight of the fact that it is the Government which administers and runs the State, which is accountable to the people. State’s welfare, progress, requirements and needs of the people are better answered by the State, also as to how the resources are to be utilized for achieving various objectives. If every decision taken by the State is tested by a microscopic and a suspicious eye, the administration will come to stand still and the decisions-makers will lose all their initiative and enthusiasm. At hindsight, it is easy to comment upon or criticize the action of the decision maker. Sometimes, decisions taken by the State or its administrative authorities may go wrong and sometimes it may achieve the desired results. Criticisms are always welcome in a Parliamentary democracy, but a decision taken in good faith, with good intentions, without any extraneous considerations, cannot belittled, even if that decision was ultimately proved to be wrong. 9. We have extensively referred to these principles in Arun Agrawal’s case (supra), where we have held as follows:- “This Court sitting in the jurisdiction cannot sit in judgment over the commercial or business decision taken by parties to the agreement, after evaluating and assessing its monetary and financial implications, unless the decision is in clear violation of any statutory provisions or perverse or taken for extraneous considerations or improper motives. States and its instrumentalities can enter into various contracts which may involve complex economic factors. State or the State undertaking being a party to a contract, have to make various decisions which they deem just and proper. There is always an element of risk in such decisions, ultimately it may turn out to be correct decision or a wrong one. But if the decision is taken bona fide and in public interest, the mere fact that decision has ultimately proved to be wrong, that itself is not a ground to hold that the decision was mala fide or taken with ulterior motives.” 10. Reference in this regard may also be made to the judgment of this Court in Centre for Public Interest Litigation & Ors. v. Union of India & Ors. AIR 2012 SC 3725 , wherein it was held that when the CAG report is subject to scrutiny by the Public Accounts Committee and the Joint Parliamentary Committee, it would not be proper to refer the findings and conclusions contained therein. The Court even went on to say that it is not necessary to advert to the reasoning and suggestions made, as well. 11. We have gone through the salient features of the Project referred to in the various orders passed by the State Government and the resolutions dated 22.3.2011 and 7.6.2011 allotting lands to fourth respondent and also the notification dated 18.8.2011 issued under the Special Economic Zones Act, 2005, and we are in agreement with the High Court that it cannot be said that the State has acted against public interest. The Government has noticed the development and the employment opportunities that the project would bring into the State. The decision taken by the Government was also transparent and that the Government has also got substantial stake in the Public-Private Partnership and has also taken care of its interests while entering into the various agreements. Learned senior counsel fairly submitted that he is not attributing any motives or stating that the decision was taken for extraneous reasons, but contended that the Government had, without any application of mind, parted with a large tracks of land worth crores of rupees to the private party, which is not in the interest of the State. 12. We are of the view that these are purely policy decisions taken by the State Government and, while so, it has examined the benefits the project would bring into the State and to the people of the State. It is well settled that non-floating of tenders or absence of public auction or invitation alone is not a sufficient reason to characterize the action of a public authority as either arbitrary or unreasonable or amounted to mala fide or improper exercise of power. The Courts have always held that it is open to the State and the authorities to take economic and management decision depending upon the exigencies of a situation guided by appropriate financial policy notified in public interest. We are of the view that is what has been done in the instant case and the High Court has rightly held so. ### Response: 0

M/S. Sylvester & Company Vs. Their Workman Through Transport & Dock Workers' Union & Another

that the workman was indulging in anti employer activities and was conducting himself in such manner as would cause loss, fraud, cheating and insubordination in the management and affairs of the company. The Employer submits that the workman was given ample opportunities for improving himself in his conduct but instead of improving himself in the discharge of his duties, the workman became more careless and negligent and continued his activities which have caused harm to the financial funds and reputation of the company. ... The employer has listed number of instances whether of misconduct, negligence or carelessness on the part of the workman in the discharge of his duties. The employer submits that due to this misconduct, carelessness and continued arrogant attitude of the workmen the employer lost confidence in him and came to the conclusion that it was not in the interest of the company to continue his services as the continuance of his services in the company would have adversely affected the reputation of the company and would have caused demoralisation effect on other workmen of the company. 22. At this stage, it would be material to note that in para 6 of the Written Statement, the Appellant specifically pleaded that it was ready and willing to establish the allegations of misconduct, dereliction of duties, fraud, misappropriation and misuse of funds before the Tribunal. The Tribunal held that if the termination was an act of discharge simpliciter it constituted retrenchment within the meaning of Section 2(oo) and was invalid for want of compliance with the requirement of Section 25F. Alternatively, if the termination was punitive, it was invalid on the ground that no disciplinary enquiry was held. 23. Now a case where no disciplinary enquiry has been held, stands on the same footing as one where the enquiry is held to be defective. As held by the Supreme Court in Kamal Kishore Laxmans case (supra), it would be open to the management to justify its conduct before the Industrial Tribunal in a case where a disciplinary enquiry has not preceded the act of termination. The employer having sought an opportunity of leading evidence to substantiate the charge of misconduct, such an opportunity ought to have been afforded to the employer by the Tribunal. 24. The judgment of the Learned Single Judge notes the submission of the employer that in view of the decision of the Supreme Court in Kamal Kishore Laxman (supra), the Tribunal should have given an opportunity to the management to lead evidence to prove the misconduct and there should be a remand for that purpose. We are, with respect, of the view that the Learned Single Judge was in error in not accepting this plea of the employer and in declining to remand the proceedings back to the Tribunal. In the concluding part of the judgment, the Learned Single Judge held that the management had sought the permission of the Labour Court only to prove that it had acted bona fide and that it had not applied to the Labour Court to prove the charges. This, with great respect, would not be a correct reading of the request made by the employer in the Written Statement which shows that the employer was ready and willing to lead evidence to establish the charge of misconduct against the workman. There is, therefore, merit in the submission that has been urged on behalf of the management. The Learned Single Judge ought not to have reappreciated such evidence as there was on the record of the case, but ought to have remanded the proceedings back to the Industrial Tribunal. For one thing, there is no appreciation of the evidence in the Part II award of the Industrial Tribunal. Appreciation of evidence lies within the jurisdiction of the Tribunal. Moreover, the Industrial Tribunal failed to furnish an opportunity to the employer to specifically lead evidence to substantiate the charge of misconduct. 25. In these circumstances, we are of the view that the appeal would have to be allowed in part. We confirm the finding of the Learned Single Judge that the reference before the Tribunal was validly made by the Central Government since the Central Government is the appropriate Government within the meaning of section 2(a)(i) of the Industrial Disputes Act, 1947. We also hold that the termination of service in the present case was not an act of discharge simpliciter but was a punitive termination for misconduct. No disciplinary enquiry was held. The employer having made a request to that effect in the Written Statement, he would be entitled to an opportunity to lead evidence before the Industrial Tribunal to substantiate the charge of misconduct. To the aforesaid extent, we quash and set aside the Judgment and Order of the Learned Single Judge and the Part-II award of the Industrial Tribunal in so far as it awards reinstatement with back wages and continuity of service. We remand the proceedings back to the Industrial Tribunal which shall permit the employer to lead evidence to substantiate the alleged misconduct. The workman would, it is needless to add, be at liberty to adduce evidence in rebuttal. Having regard to the fact that the dispute in the present case has arisen as far back as in 1986, we direct that the proceedings on remand shall be concluded by the Industrial Tribunal expeditiously and preferably within a period of six months from the date on which a certified copy of this order is produced on the record of the Tribunal by either of the parties. There shall be an order accordingly. 26. Before concluding, we must record that during the course of the hearing of these proceedings, Counsel appearing on behalf of the Employer and the workman made several efforts to resolve the dispute by persuading the parties to enter into a settlement. Counsel appearing on behalf of the workman has stated before the Court that the workman has not been willing to accept the offer of settlement that was made by the employer.

1[ds]The definition in Section 2(j) excluded an office of a mine which was separately defined by Section 2(k). Hence, the Supreme Court was of the view that the head office wherever it may be situated cannot be said to do mining operations within the meaning of the definition. Hence, a dispute between the employees engaged at the Head Office at Calcutta and the employer was not an industrial dispute concerning a mineWe are unable to conceive of any rational challenge to the bona fides of the employer in making the impugned order in the above background. The complainant, it may be remembered, had to deal withs in the performance of his duties and if the appellant was not fully satisfied beyond suspicion about his general conduct and behaviour while dealing with them it cannot be said that loss of confidence was not bona fide. Once bona fide loss of confidence is affirmed the impugned order must be considered to be immune from challenge. The opinion formed by the employer about the suitability of his employee for the job assigned to him even though erroneous, if bona fide, is in our opinion final and not subject to review by the industrial adjudicator21. In the present case, following the law laid down by the Supreme Court, we are of the view that the letter of termination exfacie demonstrates that the termination of service was founded on allegations of misconduct against the workman. Indeed, theWritten Statement by the employer before the Industrial Tribunal showed that the submission of the employer was that the workman was being terminated from service on grounds of misconductWe are, with respect, of the view that the Learned Single Judge was in error in not accepting this plea of the employer and in declining to remand the proceedings back to the Tribunal. In the concluding part of the judgment, the Learned Single Judge held that the management had sought the permission of the Labour Court only to prove that it had acted bona fide and that it had not applied to the Labour Court to prove the charges. This, with great respect, would not be a correct reading of the request made by the employer in the Written Statement which shows that the employer was ready and willing to lead evidence to establish the charge of misconduct against the workman. There is, therefore, merit in the submission that has been urged on behalf of the management. The Learned Single Judge ought not to have reappreciated such evidence as there was on the record of the case, but ought to have remanded the proceedings back to the Industrial Tribunal. For one thing, there is no appreciation of the evidence in the Part II award of the Industrial Tribunal. Appreciation of evidence lies within the jurisdiction of the Tribunal. Moreover, the Industrial Tribunal failed to furnish an opportunity to the employer to specifically lead evidence to substantiate the charge of misconduct25. In these circumstances, we are of the view that the appeal would have to be allowed in part. We confirm the finding of the Learned Single Judge that the reference before the Tribunal was validly made by the Central Government since the Central Government is the appropriate Government within the meaning of section 2(a)(i) of the Industrial Disputes Act, 1947. We also hold that the termination of service in the present case was not an act of discharge simpliciter but was a punitive termination for misconduct. No disciplinary enquiry was held. The employer having made a request to that effect in the Written Statement, he would be entitled to an opportunity to lead evidence before the Industrial Tribunal to substantiate the charge of misconduct. To the aforesaid extent, we quash and set aside the Judgment and Order of the Learned Single Judge and theI award of the Industrial Tribunal in so far as it awards reinstatement with back wages and continuity of service. We remand the proceedings back to the Industrial Tribunal which shall permit the employer to lead evidence to substantiate the alleged misconduct. The workman would, it is needless to add, be at liberty to adduce evidence in rebuttal. Having regard to the fact that the dispute in the present case has arisen as far back as in 1986, we direct that the proceedings on remand shall be concluded by the Industrial Tribunal expeditiously and preferably within a period of six months from the date on which a certified copy of this order is produced on the record of the Tribunal by either of the parties. There shall be an order accordingly26. Before concluding, we must record that during the course of the hearing of these proceedings, Counsel appearing on behalf of the Employer and the workman made several efforts to resolve the dispute by persuading the parties to enter into asettlement. Counsel appearing on behalf of the workman has stated before the Court that the workman has not been willing to accept the offer of settlement that was made by the employer.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: that the workman was indulging in anti employer activities and was conducting himself in such manner as would cause loss, fraud, cheating and insubordination in the management and affairs of the company. The Employer submits that the workman was given ample opportunities for improving himself in his conduct but instead of improving himself in the discharge of his duties, the workman became more careless and negligent and continued his activities which have caused harm to the financial funds and reputation of the company. ... The employer has listed number of instances whether of misconduct, negligence or carelessness on the part of the workman in the discharge of his duties. The employer submits that due to this misconduct, carelessness and continued arrogant attitude of the workmen the employer lost confidence in him and came to the conclusion that it was not in the interest of the company to continue his services as the continuance of his services in the company would have adversely affected the reputation of the company and would have caused demoralisation effect on other workmen of the company. 22. At this stage, it would be material to note that in para 6 of the Written Statement, the Appellant specifically pleaded that it was ready and willing to establish the allegations of misconduct, dereliction of duties, fraud, misappropriation and misuse of funds before the Tribunal. The Tribunal held that if the termination was an act of discharge simpliciter it constituted retrenchment within the meaning of Section 2(oo) and was invalid for want of compliance with the requirement of Section 25F. Alternatively, if the termination was punitive, it was invalid on the ground that no disciplinary enquiry was held. 23. Now a case where no disciplinary enquiry has been held, stands on the same footing as one where the enquiry is held to be defective. As held by the Supreme Court in Kamal Kishore Laxmans case (supra), it would be open to the management to justify its conduct before the Industrial Tribunal in a case where a disciplinary enquiry has not preceded the act of termination. The employer having sought an opportunity of leading evidence to substantiate the charge of misconduct, such an opportunity ought to have been afforded to the employer by the Tribunal. 24. The judgment of the Learned Single Judge notes the submission of the employer that in view of the decision of the Supreme Court in Kamal Kishore Laxman (supra), the Tribunal should have given an opportunity to the management to lead evidence to prove the misconduct and there should be a remand for that purpose. We are, with respect, of the view that the Learned Single Judge was in error in not accepting this plea of the employer and in declining to remand the proceedings back to the Tribunal. In the concluding part of the judgment, the Learned Single Judge held that the management had sought the permission of the Labour Court only to prove that it had acted bona fide and that it had not applied to the Labour Court to prove the charges. This, with great respect, would not be a correct reading of the request made by the employer in the Written Statement which shows that the employer was ready and willing to lead evidence to establish the charge of misconduct against the workman. There is, therefore, merit in the submission that has been urged on behalf of the management. The Learned Single Judge ought not to have reappreciated such evidence as there was on the record of the case, but ought to have remanded the proceedings back to the Industrial Tribunal. For one thing, there is no appreciation of the evidence in the Part II award of the Industrial Tribunal. Appreciation of evidence lies within the jurisdiction of the Tribunal. Moreover, the Industrial Tribunal failed to furnish an opportunity to the employer to specifically lead evidence to substantiate the charge of misconduct. 25. In these circumstances, we are of the view that the appeal would have to be allowed in part. We confirm the finding of the Learned Single Judge that the reference before the Tribunal was validly made by the Central Government since the Central Government is the appropriate Government within the meaning of section 2(a)(i) of the Industrial Disputes Act, 1947. We also hold that the termination of service in the present case was not an act of discharge simpliciter but was a punitive termination for misconduct. No disciplinary enquiry was held. The employer having made a request to that effect in the Written Statement, he would be entitled to an opportunity to lead evidence before the Industrial Tribunal to substantiate the charge of misconduct. To the aforesaid extent, we quash and set aside the Judgment and Order of the Learned Single Judge and the Part-II award of the Industrial Tribunal in so far as it awards reinstatement with back wages and continuity of service. We remand the proceedings back to the Industrial Tribunal which shall permit the employer to lead evidence to substantiate the alleged misconduct. The workman would, it is needless to add, be at liberty to adduce evidence in rebuttal. Having regard to the fact that the dispute in the present case has arisen as far back as in 1986, we direct that the proceedings on remand shall be concluded by the Industrial Tribunal expeditiously and preferably within a period of six months from the date on which a certified copy of this order is produced on the record of the Tribunal by either of the parties. There shall be an order accordingly. 26. Before concluding, we must record that during the course of the hearing of these proceedings, Counsel appearing on behalf of the Employer and the workman made several efforts to resolve the dispute by persuading the parties to enter into a settlement. Counsel appearing on behalf of the workman has stated before the Court that the workman has not been willing to accept the offer of settlement that was made by the employer. ### Response: 1

The State Of Bombay Vs. Salat Pragji Karamsi

States Merger (Chief Commissioners Provinces) Order, 1949, which provided for the administration of the State of Kutch as if it was a Chief Commissioners Province, would not affect the position nor would the extension of the General Clauses Act under the Merged States Laws Act. Clause 4 of the Adaptation of Laws Order, 1950 only substituted in place of the words Province Provincial and Provinces the words State or States, wherever they occured in any existing law, and the effect of Cls.15 and 16 of that order was the continuance of the powers vested in the authorities in whom they had previously been vested. The position which therefore emerges on a combined reading of these various clauses is that in Bombay Act, as applied to Kutch, the words Presidency of Bombay were to be replaced by the words Kutch or any part thereof and the Provincial Government by the Chief Commissioner of Kutch and the powers which had been given to the different authorities under the different Act were to continue to remain in the person or persons in whom they were already vested. As the powers had been vested in the Chief Commissioner under the provisions of these various Acts and Orders they continued to remain so vested and the General Clauses Act did not have any operational effect on these various words which were used in the Bombay Act as modified and applied to Kutch. 12. So understood, S.1 of the Bombay Act would read as follows : - "This Act may be cited as the Bombay Prevention of Gambling Act, 188 7. All or any of its provisions may be extended from time to time by the Chief Commissioner of Kutch by an order published in the Official Gazette to any local area in Kutch or any part thereof. The Chief Commissioner of Kutch may, from time to time, by an order published as aforesaid, cancel of vary any order made by it under this section." The portion of this section viz.,"It extends to the city of Bombay, to the Island of Salsette, to all Railways and railway Station houses without the said city and island and to all places not more than three miles distant from any part of such station houses respectively" would not continue in the Act as applied to Kutch because these parts are not in the State of Kutch or any part thereof and Cl. 6 of the Kutch (Application of Laws) Order, 1949 would come into operation for the purpose. 13. It was then contended that by the mere application of the Bombay Act to Kutch it became operative and came into force in the whole of Kutch. This argument suffers from the infirmity that in its application to Kutch S.1 of the Bombay Act would have to be excluded which would be an incorrect way of looking at the question. The true position is that the whole of the Act including amended S.1 as given above, became applicable to Kutch and therefore a notification was necessary before it could be brought into force in any part of Kutch. It was applied to Kutch, but its provisions were not in operation before the notification; and in our opinion, the judgment of Baxi J.C. in Agaria Osman Aterakhya v. Kutch State, AIR 1951 Kutch 9 (A) which has been followed in the case now before us to the extent that it dealt with the necessity of a notification under S.1 of the Bombay Act, was correctly decided., and therefore the first contention raised by counsel for the appellant is unsustainable and we hold that without a notification, the Bombay Act could not be held to have been validly applied to the State of Kutch. 14. This brings us to the second question i.e. the validity of the notification issued on November 28, 1950. The learned Judicial Commissioner held :"The Chief Commissioner of a Part C State can act to such extent as be is authorised by the President to do. These being the provisions of the Constitution, the Bombay Act must be construed with the adaptation that the rule of construction mentioned in the Kutch (Application of Laws) Order, 1949 is deleted. Hence, even if substitution of expression as mentioned in para 4 of the Adaptation of Laws Order, 1950 is not made, the rule of construction mentioned in the Kutch, (Application of Laws) Order, 1949 for construing the expression Provincial Government as the Chief Commissioner, Kutch does not survive." 15. Article 239 of the Constitution relates to administration of Part C States and provides :"Subject to the other provisions of this Part, a State specified in Part C of the First Schedule shall be administered by the President acting, to such extent as he thinks fit, through a Chief Commissioner or a Lieutenant-Governor to be appointed by him..." 16.This Article has been relied upon for urging that in a Part C State, the administration had to be carried on by the President acting through a Chief Commissioner. But this does not take away the powers of the Chief Commissioner given to him under any other Statute or order. The Chief Commissioner of Kutch under S.1 of the Bombay Act, had the power to issue notifications making that Act operative is Kutch or any part of Kutch and those powers were not affected by Art. 239 of the Constitution particularly because of Cl. 15 of the Adaptation of Laws Order 1950 which preserved these powers of the Chief Commissioner.Therefore, the notification issued by the Chief Commissioner on November 28, 1950 was valid and issued under legal authority; and the Act came into force in the parts to which the notification made it so applicable. We have therefore, come to she conclusion that the learned Judge was in error in holding that the notification was not a valid one and in so far as that was the basis of the acquittal of the accused, the judgment under appeal must be set aside. 1

1[ds]The fallacy in the learned Judicial Commissioners judgment lies in this that due effect was not given to these words which had become substituted, but emphasis was laid on the words shall be construed as as if these words had been used for the purposes of interpretation of the different words in the Bombay Act rather than implying substitution of the corresponding words.In this view of the matter Cl.2(1)(c) of the States Merger (Chief Commissioners Provinces) Order, 1949, which provided for the administration of the State of Kutch as if it was a Chief Commissioners Province, would not affect the position nor would the extension of the General Clauses Act under the Merged States Laws Act. Clause 4 of the Adaptation of Laws Order, 1950 only substituted in place of the words Province Provincial and Provinces the words State or States, wherever they occured in any existing law, and the effect of Cls.15 and 16 of that order was the continuance of the powers vested in the authorities in whom they had previously been vested. The position which therefore emerges on a combined reading of these various clauses is that in Bombay Act, as applied to Kutch, the words Presidency of Bombay were to be replaced by the words Kutch or any part thereof and the Provincial Government by the Chief Commissioner of Kutch and the powers which had been given to the different authorities under the different Act were to continue to remain in the person or persons in whom they were already vested. As the powers had been vested in the Chief Commissioner under the provisions of these various Acts and Orders they continued to remain so vested and the General Clauses Act did not have any operational effect on these various words which were used in the Bombay Act as modified and applied to KutchThe portion of this section viz.,"It extends to the city of Bombay, to the Island of Salsette, to all Railways and railway Station houses without the said city and island and to all places not more than three miles distant from any part of such station houses respectively"would not continue in the Act as applied to Kutch because these parts are not in the State of Kutch or any part thereof and Cl. 6 of the Kutch (Application of Laws) Order, 1949 would come into operation for the purposeThis argument suffers from the infirmity that in its application to Kutch S.1 of the Bombay Act would have to be excluded which would be an incorrect way of looking at the question. The true position is that the whole of the Act including amended S.1 as given above, became applicable to Kutch and therefore a notification was necessary before it could be brought into force in any part of Kutch. It was applied to Kutch, but its provisions were not in operation before the notification; and in our opinion, the judgment of Baxi J.C. in Agaria Osman Aterakhya v. Kutch State, AIR 1951 Kutch 9 (A) which has been followed in the case now before us to the extent that it dealt with the necessity of a notification under S.1 of the Bombay Act, was correctly decided., and therefore the first contention raised by counsel for the appellant is unsustainable and we hold that without a notification, the Bombay Act could not be held to have been validly applied to the State of Kutch.This Article has been relied upon for urging that in a Part C State, the administration had to be carried on by the President acting through a Chief Commissioner. But this does not take away the powers of the Chief Commissioner given to him under any other Statute or order. The Chief Commissioner of Kutch under S.1 of the Bombay Act, had the power to issue notifications making that Act operative is Kutch or any part of Kutch and those powers were not affected by Art. 239 of the Constitution particularly because of Cl. 15 of the Adaptation of Laws Order 1950 which preserved these powers of the Chief Commissioner.Therefore, the notification issued by the Chief Commissioner on November 28, 1950 was valid and issued under legal authority; and the Act came into force in the parts to which the notification made it so applicable.

### 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: States Merger (Chief Commissioners Provinces) Order, 1949, which provided for the administration of the State of Kutch as if it was a Chief Commissioners Province, would not affect the position nor would the extension of the General Clauses Act under the Merged States Laws Act. Clause 4 of the Adaptation of Laws Order, 1950 only substituted in place of the words Province Provincial and Provinces the words State or States, wherever they occured in any existing law, and the effect of Cls.15 and 16 of that order was the continuance of the powers vested in the authorities in whom they had previously been vested. The position which therefore emerges on a combined reading of these various clauses is that in Bombay Act, as applied to Kutch, the words Presidency of Bombay were to be replaced by the words Kutch or any part thereof and the Provincial Government by the Chief Commissioner of Kutch and the powers which had been given to the different authorities under the different Act were to continue to remain in the person or persons in whom they were already vested. As the powers had been vested in the Chief Commissioner under the provisions of these various Acts and Orders they continued to remain so vested and the General Clauses Act did not have any operational effect on these various words which were used in the Bombay Act as modified and applied to Kutch. 12. So understood, S.1 of the Bombay Act would read as follows : - "This Act may be cited as the Bombay Prevention of Gambling Act, 188 7. All or any of its provisions may be extended from time to time by the Chief Commissioner of Kutch by an order published in the Official Gazette to any local area in Kutch or any part thereof. The Chief Commissioner of Kutch may, from time to time, by an order published as aforesaid, cancel of vary any order made by it under this section." The portion of this section viz.,"It extends to the city of Bombay, to the Island of Salsette, to all Railways and railway Station houses without the said city and island and to all places not more than three miles distant from any part of such station houses respectively" would not continue in the Act as applied to Kutch because these parts are not in the State of Kutch or any part thereof and Cl. 6 of the Kutch (Application of Laws) Order, 1949 would come into operation for the purpose. 13. It was then contended that by the mere application of the Bombay Act to Kutch it became operative and came into force in the whole of Kutch. This argument suffers from the infirmity that in its application to Kutch S.1 of the Bombay Act would have to be excluded which would be an incorrect way of looking at the question. The true position is that the whole of the Act including amended S.1 as given above, became applicable to Kutch and therefore a notification was necessary before it could be brought into force in any part of Kutch. It was applied to Kutch, but its provisions were not in operation before the notification; and in our opinion, the judgment of Baxi J.C. in Agaria Osman Aterakhya v. Kutch State, AIR 1951 Kutch 9 (A) which has been followed in the case now before us to the extent that it dealt with the necessity of a notification under S.1 of the Bombay Act, was correctly decided., and therefore the first contention raised by counsel for the appellant is unsustainable and we hold that without a notification, the Bombay Act could not be held to have been validly applied to the State of Kutch. 14. This brings us to the second question i.e. the validity of the notification issued on November 28, 1950. The learned Judicial Commissioner held :"The Chief Commissioner of a Part C State can act to such extent as be is authorised by the President to do. These being the provisions of the Constitution, the Bombay Act must be construed with the adaptation that the rule of construction mentioned in the Kutch (Application of Laws) Order, 1949 is deleted. Hence, even if substitution of expression as mentioned in para 4 of the Adaptation of Laws Order, 1950 is not made, the rule of construction mentioned in the Kutch, (Application of Laws) Order, 1949 for construing the expression Provincial Government as the Chief Commissioner, Kutch does not survive." 15. Article 239 of the Constitution relates to administration of Part C States and provides :"Subject to the other provisions of this Part, a State specified in Part C of the First Schedule shall be administered by the President acting, to such extent as he thinks fit, through a Chief Commissioner or a Lieutenant-Governor to be appointed by him..." 16.This Article has been relied upon for urging that in a Part C State, the administration had to be carried on by the President acting through a Chief Commissioner. But this does not take away the powers of the Chief Commissioner given to him under any other Statute or order. The Chief Commissioner of Kutch under S.1 of the Bombay Act, had the power to issue notifications making that Act operative is Kutch or any part of Kutch and those powers were not affected by Art. 239 of the Constitution particularly because of Cl. 15 of the Adaptation of Laws Order 1950 which preserved these powers of the Chief Commissioner.Therefore, the notification issued by the Chief Commissioner on November 28, 1950 was valid and issued under legal authority; and the Act came into force in the parts to which the notification made it so applicable. We have therefore, come to she conclusion that the learned Judge was in error in holding that the notification was not a valid one and in so far as that was the basis of the acquittal of the accused, the judgment under appeal must be set aside. 1 ### Response: 1

Howrah Insurance Co. Ltd Vs. Sochindra Mohan Das Gupta

against the Receiver and the appellant praying that execution do issue, against the appellant as directed by the Court. The appellant filed this objections to that petition but the learned Judge rejected the objections and directed that the damages awarded to the respondent be recovered from the appellant. The appellant filed an appeal against that order but it was dismissed by the learned Judicial Commissioner on June 29. 1970. This appeal by special leave is directed against that judgment.5. Learned counsel appearing on behalf of the appellant has raised two contentions (1) The Subordinate Judge who tried the suit is incompetent to enforce the surety bond executed by the appellant as he is neither the successor nor the successor-in-office nor the assign of the District Judge; and (2) Under the terms of the bond, the appellant is not answerable for the loss caused to the tea garden by fire.6. Both of these contentions turn on the terms of the surety bond and it is therefore necessary to have a look at that bond.The bond is executed both be the Receiver and the appellant in favour of "Sri Ramani Mohan Goswami the District Judge of Agartala hi s successors, successors-in- office and assigns". By the bond, the executants bound themselves jointly and severally in the whole of the amount of Rs. 50, 000 up to the District Judge. Agartala, his successors, successors-in-office and assigns. The bond, though executed on August 26, 1950, relates back to January 22, 1950 being the date when the Receiver took possession of the property.7. It is urged that the bond can be enforced only by or at the instance of the District Judge, Agartala, or his successors, successors-in-office of assigns and the Subordinate Judge, Agartala not being either of these, it is incompetent for him to enforce the bond. We see no substances in this contention. The Subordinate Judge of Agartala may not be the successors-in-office of the District Judge because "successor-in-office" would mean successor of the District Judge in the post or office of the District Judge. But the Subordinate Judge, Agartala is, for the purposes of the present proceedings, a successor of the District Judge who was seized of the suit and who transferred it to the Subordinate Judge under the Tripura (Courts) order of 1950. The surety bond was executed in and for the purposes of the particular proceedings which were pending before the District Judge, in order that the bond should be enforceable at the instance of the presiding officer of the court. "Successor", therefore, must in the context mean the court which for the time being is seized of the proceedings.8. Under section 150 of the Code of Civil Procedure, save as otherwise provided, where the business of any Court is transferred to any other Court, the transferee Court has the same powers and is entitled to perform the same duties as those respectively conferred and imposed by the Code upon the transferor Court. The surety bond was a part of the proceedings pending before the District Judge and on the transfer of the Suit the entire proceedings, including the bond. stood validly transferred to the Court of the Subordinate Judge. Thus, by virtue of section 150, the Subordinate Judge was entitled to exercise the same powers in the matter of the enforcement of the bond as the District Judge himself. Section 145(c) of the Code of Civil Procedure provides, to the extent material, that where any person has become liable as a surety for the fulfillment of any condition imposed on any person under an order of the Court in any suit or in any proceeding J consequent thereon, the decree or order may be executed against the surety to the extent to which he has rendered himself personally liable, in the manner provided for the execution of decrees. By the surety bond, the appellant rendered itself liable as a surety for the fulfillment of the conditions imposed on the Receiver under the orders passed by the court. Therefore, the order for the recovery of damages obtained by the respondent against the Receiver can be executed against the appellant to the extent to which it rendered itself personally liable under the terms of the bond.9. There is no substance in the second contention either. Under the bond, the appellant rendered itself liable "in respect of any loss or. damage occasioned by any act or default of the Receiver in relation to his duties as such Receiver as aforesaid". The fire having been caused due to the Receivers negligence in the performance of his duties the appellant is liable to make good the loss caused to the tea garden by the fire. Learned counsel for the appellant however urged that the appointment of the Receiver was limited to the stock-in- trade, machinery and movables in the tea garden an d to the factory premises and since the Receiver owed no obligation in relation to the tea garden, the appellant would not be liable for the loss caused thereto by the fire. Reliance is placed in support of this argument on the words "as aforesaid" which qualify the words "in relation to his duties". The surety bond has, undoubtedly, to be construed strictly but it is impossible to accept the contention that the Receiver owed no duty or obligation in respect of the tea garden. He was put in possession of the tea garden in his capacity as a Receiver and indeed parties had made contentions from time to time as to whether the tea garden was managed by the Receiver economically and efficiently. The surety bond would there fore cover the loss occasioned to the tea garden due to the Receivers default. It is significant that though the bond was executed six months after the tea garden was damaged by the fire it was given retrospective operation with effect from January 22, 1950 being the date on which the Receiver had taken possession of the mortgaged property including the tea garden.

0[ds]We see no substances in this contention. The Subordinate Judge of Agartala may not be the successors-in-office of the District Judge because "successor-in-office" would mean successor of the District Judge in the post or office of the District Judge. But the Subordinate Judge, Agartala is, for the purposes of the present proceedings, a successor of the District Judge who was seized of the suit and who transferred it to the Subordinate Judge under the Tripura (Courts) order of 1950. The surety bond was executed in and for the purposes of the particular proceedings which were pending before the District Judge, in order that the bond should be enforceable at the instance of the presiding officer of the court. "Successor", therefore, must in the context mean the court which for the time being is seized of thethe order for the recovery of damages obtained by the respondent against the Receiver can be executed against the appellant to the extent to which it rendered itself personally liable under the terms of theis no substance in the second contention either. Under the bond, the appellant rendered itself liable "in respect of any loss or. damage occasioned by any act or default of the Receiver in relation to his duties as such Receiver as aforesaid". The fire having been caused due to the Receivers negligence in the performance of his duties the appellant is liable to make good the loss caused to the tea garden by the fire. Learned counsel for the appellant however urged that the appointment of the Receiver was limited to the stock-in- trade, machinery and movables in the tea garden an d to the factory premises and since the Receiver owed no obligation in relation to the tea garden, the appellant would not be liable for the loss caused thereto by the fire. Reliance is placed in support of this argument on the words "as aforesaid" which qualify the words "in relation to his duties". The surety bond has, undoubtedly, to be construed strictly but it is impossible to accept the contention that the Receiver owed no duty or obligation in respect of the tea garden. He was put in possession of the tea garden in his capacity as a Receiver and indeed parties had made contentions from time to time as to whether the tea garden was managed by the Receiver economically and efficiently. The surety bond would there fore cover the loss occasioned to the tea garden due to the Receivers default. It is significant that though the bond was executed six months after the tea garden was damaged by the fire it was given retrospective operation with effect from January 22, 1950 being the date on which the Receiver had taken possession of the mortgaged property including the tea garden.Under section 150 of theCode of Civil Procedure, save as otherwise provided, where the business of any Court is transferred to any other Court, the transferee Court has the same powers and is entitled to perform the same duties as those respectively conferred and imposed by the Code upon the transferor Court. The surety bond was a part of the proceedings pending before the District Judge and on the transfer of the Suit the entire proceedings, including the bond. stood validly transferred to the Court of the Subordinate Judge. Thus, by virtue of section 150, the Subordinate Judge was entitled to exercise the same powers in the matter of the enforcement of the bond as the District Judge himself. Section 145(c) of theCode of Civil Procedure provides, to the extent material, that where any person has become liable as a surety for the fulfillment of any condition imposed on any person under an order of the Court in any suit or in any proceeding J consequent thereon, the decree or order may be executed against the surety to the extent to which he has rendered himself personally liable, in the manner provided for the execution of decrees. By the surety bond, the appellant rendered itself liable as a surety for the fulfillment of the conditions imposed on the Receiver under the orders passed by the court.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: against the Receiver and the appellant praying that execution do issue, against the appellant as directed by the Court. The appellant filed this objections to that petition but the learned Judge rejected the objections and directed that the damages awarded to the respondent be recovered from the appellant. The appellant filed an appeal against that order but it was dismissed by the learned Judicial Commissioner on June 29. 1970. This appeal by special leave is directed against that judgment.5. Learned counsel appearing on behalf of the appellant has raised two contentions (1) The Subordinate Judge who tried the suit is incompetent to enforce the surety bond executed by the appellant as he is neither the successor nor the successor-in-office nor the assign of the District Judge; and (2) Under the terms of the bond, the appellant is not answerable for the loss caused to the tea garden by fire.6. Both of these contentions turn on the terms of the surety bond and it is therefore necessary to have a look at that bond.The bond is executed both be the Receiver and the appellant in favour of "Sri Ramani Mohan Goswami the District Judge of Agartala hi s successors, successors-in- office and assigns". By the bond, the executants bound themselves jointly and severally in the whole of the amount of Rs. 50, 000 up to the District Judge. Agartala, his successors, successors-in-office and assigns. The bond, though executed on August 26, 1950, relates back to January 22, 1950 being the date when the Receiver took possession of the property.7. It is urged that the bond can be enforced only by or at the instance of the District Judge, Agartala, or his successors, successors-in-office of assigns and the Subordinate Judge, Agartala not being either of these, it is incompetent for him to enforce the bond. We see no substances in this contention. The Subordinate Judge of Agartala may not be the successors-in-office of the District Judge because "successor-in-office" would mean successor of the District Judge in the post or office of the District Judge. But the Subordinate Judge, Agartala is, for the purposes of the present proceedings, a successor of the District Judge who was seized of the suit and who transferred it to the Subordinate Judge under the Tripura (Courts) order of 1950. The surety bond was executed in and for the purposes of the particular proceedings which were pending before the District Judge, in order that the bond should be enforceable at the instance of the presiding officer of the court. "Successor", therefore, must in the context mean the court which for the time being is seized of the proceedings.8. Under section 150 of the Code of Civil Procedure, save as otherwise provided, where the business of any Court is transferred to any other Court, the transferee Court has the same powers and is entitled to perform the same duties as those respectively conferred and imposed by the Code upon the transferor Court. The surety bond was a part of the proceedings pending before the District Judge and on the transfer of the Suit the entire proceedings, including the bond. stood validly transferred to the Court of the Subordinate Judge. Thus, by virtue of section 150, the Subordinate Judge was entitled to exercise the same powers in the matter of the enforcement of the bond as the District Judge himself. Section 145(c) of the Code of Civil Procedure provides, to the extent material, that where any person has become liable as a surety for the fulfillment of any condition imposed on any person under an order of the Court in any suit or in any proceeding J consequent thereon, the decree or order may be executed against the surety to the extent to which he has rendered himself personally liable, in the manner provided for the execution of decrees. By the surety bond, the appellant rendered itself liable as a surety for the fulfillment of the conditions imposed on the Receiver under the orders passed by the court. Therefore, the order for the recovery of damages obtained by the respondent against the Receiver can be executed against the appellant to the extent to which it rendered itself personally liable under the terms of the bond.9. There is no substance in the second contention either. Under the bond, the appellant rendered itself liable "in respect of any loss or. damage occasioned by any act or default of the Receiver in relation to his duties as such Receiver as aforesaid". The fire having been caused due to the Receivers negligence in the performance of his duties the appellant is liable to make good the loss caused to the tea garden by the fire. Learned counsel for the appellant however urged that the appointment of the Receiver was limited to the stock-in- trade, machinery and movables in the tea garden an d to the factory premises and since the Receiver owed no obligation in relation to the tea garden, the appellant would not be liable for the loss caused thereto by the fire. Reliance is placed in support of this argument on the words "as aforesaid" which qualify the words "in relation to his duties". The surety bond has, undoubtedly, to be construed strictly but it is impossible to accept the contention that the Receiver owed no duty or obligation in respect of the tea garden. He was put in possession of the tea garden in his capacity as a Receiver and indeed parties had made contentions from time to time as to whether the tea garden was managed by the Receiver economically and efficiently. The surety bond would there fore cover the loss occasioned to the tea garden due to the Receivers default. It is significant that though the bond was executed six months after the tea garden was damaged by the fire it was given retrospective operation with effect from January 22, 1950 being the date on which the Receiver had taken possession of the mortgaged property including the tea garden. ### Response: 0

Commissioner of Sales Tax, Uttar Pradesh and others, etc. etc Vs. M/s. Bakhtawar Lal Kailash Chand Areti and others, etc. etc

to B in State Y and if B accepts them a sale take place. It will be seen that in this case the movement of goods is neither in pursuance of the agreement to sell nor is the movement occasioned by the sale. The seller himself takes the goods on State Y and sells the goods there. This is, therefore, purely an internal sale which takes place in State Y and falls beyond the purview of Section 3(a) of the Central Sales Tax Act not being an inter-State sale Case No. III - B a purchaser in State Y comes to State X and purchases the goods and pays the price thereof. After having purchased the goods he then books the goods from State X to State Y in his own name. This is also a case where the sale is purely an internal sale having taken place in State X and the movement of goods is not occasioned by the sale but takes place after the property is purchased by B and becomes his property Generally these are the only type of cases that can occur in the day to day commercial transactions. It is, therefore, manifest that there can hardly be a case where once a sale takes place the movement is subsequent to the sale." 14. The learned Judge proceeded further and held thus : (SCC p. 53, para 15) "(2) That the following conditions must be satisfied before a sale can be said to take place in the course of inter-State trade or commerce (i) that there is an agreement to sell which contains a stipulation express or implied regarding the movement of the goods from one State to another; (ii) that in pursuance of the said contract the goods in fact move from one State to another; and (iii) that ultimately a concluded sale takes place in the State where the goods are sent which must be different from the State from which the goods move "If these conditions are satisfied then by virtue of section 9 of the Central Sales Tax Act it is the State from which the goods move which will be competent to levy the tax under the provisions of the Central Sales Tax Act. This proposition is not, and cannot, be disputed by the learned counsel for the parties." * 15. Shri Sehgal relies particularly upon "Case No. III" contained in the first extract and clause (iii) mentioned in the second extract. Relying upon these statements, the learned counsel contends that a concluded sale must necessarily take place in the other State and not in the State from which the goods emanate. According to him a concluded or completed sale must follow the movement of goods and should not precede. If a purchase or sale is complete in the State from which the goods emanate, he says, it can never be an inter-State purchase or sale. We cannot accede to this understanding of the learned counsel. The said observations, no doubt rather widely worded, must be understood in the context of the question that arose for consideration in the case viz., whether an agreement of sale is included within the definition of sale as defined in the Central Sales Tax Act. Be that as it may, the true position has since been explained in the later decision in Khosla and Co. It is immaterial whether a completed sale precedes the movement of goods or follows the movement of goods, or for that matter, takes place while the goods are in transit. What is important is that the movement of goods and the sale must be inseparably connected. The ratio of Balabhagas ( 1976 (2) SCC 44 : 1976 SCC(Tax) 164 : 1976 (2) SCR 939 ) is this : if the goods move from one State to another in pursuance of an agreement of sale and the sale is completed in other State, it is an inter-State sale. The observations relied upon by Shri Sehgal do not constitute the ratio of the decision and cannot come to rescue of the appellant State. Indeed, if one looks to the language employed in clause (a) of Section 3 it seems to suggest that the movement of goods follows upon and is the necessary consequence of the sale or purchase, as the case may be, and not the other way round. 16. Shri Sehgal is equally not right in saying that the movement of goods from the State of U.P. to other State (s) is immaterial and that the U.P. Legislature is competent to tax each and every purchase that takes place within the State. Ordinarily, it is so, but where a sale or purchase, though effected within the State of U.P. occasions the movement of goods sold/purchased thereunder from the State of U.P. to other State, it becomes an inter-State sale. Such a sale cannot be taxed by the legislature of Uttar Pradesh. It is taxable only under the Central Sales Tax Act, 1956. 17. Situation could have been different if the respondent-dealer had purchased the goods on behalf of the ex-U.P. principals in the first instance and thereafter in pursuance of subsequent instructions despatched the goods. In such an event the instructions to despatch the goods are independent of the instructions to purchase. There is break between the purchase and despatch of goods. It would not be an inter-State purchase. An out-State principal may first instruct his commission agent within the State of U.P. to purchase the goods on his behalf and to await his further instructions. Depending upon the market conditions and other circumstances, the ex-State principal may instruct his agent in the State either to sell the goods within the State or to despatch the goods beyond the State. If such were the case, Shri Sehgal would have been right in saying that the State of U.P. was competent to tax the purchase by respondent-dealer. But that is not case here on the facts found by the .appropriate authorities.

0[ds]11. It we examine the facts of this case in the light of the above principles, it would be clear that the purchases effected by the respondent-dealer were inter-State purchases. The purchases were made by the respondent as a commission agent on behalf of the ex-U.P. principals and the goods purchased under each of the purchases were duly despatched to such principals. It is found that such despatch took place not later than three days from the date of purchase, as soon as the railway wagon was available. The purchase of goods and their despatch to ex-State principal were parts of the same transaction. The movement of goods from Uttar Pradesh to another State was occasioned by and was the result - or the incident of - the purchase. It was the consequence of the purchase. Such movement of goods, though not proved to have been expressly stated in the contract of sale, was yet held to have been agreed upon between the parties. We must emphasise that the question whether a sale/purchase is an inter-State sale/purchase depends on the facts of each case. The principles are well settled; it is only a question of application of these principles to the facts found in each casehe said observations, no doubt rather widely worded, must be understood in the context of the question that arose for consideration in the case viz., whetheran agreement of sale is included within the definition of sale as defined in the Central Sales TaxAct.Be that as it may, the true position has since been explained in the later decision in Khosla and Co. It is immaterial whether a completed sale precedes the movement of goods or follows the movement of goods, or for that matter, takes place while the goods are in transit. What is important is that the movement of goods and the sale must be inseparably connected. The ratio of Balabhagas ( 1976 (2) SCC 44 : 1976 SCC(Tax) 164 : 1976 (2) SCR 939 ) is this : if the goods move from one State to another in pursuance of an agreement of sale and the sale is completed in other State, it is an inter-State sale. The observations relied upon by Shri Sehgal do not constitute the ratio of the decision and cannot come to rescue of the appellant State. Indeed, if one looks to the language employed in clause (a) of Section 3 it seems to suggest that the movement of goods follows upon and is the necessary consequence of the sale or purchase, as the case may be, and not the other way roundWe cannot accede to this understanding of the learned counsel.Thesaid observations, no doubt rather widely worded, must be understood in the context of the question that arose for consideration in the case viz., whetheran agreement of sale is included within the definition of sale as defined in the Central Sales TaxAct.Be that as it may, the true position has since been explained in the later decision in Khosla and Co. It is immaterial whether a completed sale precedes the movement of goods or follows the movement of goods, or for that matter, takes place while the goods are in transit. What is important is that the movement of goods and the sale must be inseparably connected.Theratio of Balabhagas ( 1976 (2) SCC 44 : 1976 SCC(Tax) 164 : 1976 (2) SCR 939 ) is this : if the goods move from one State to another in pursuance of an agreement of sale and the sale is completed in other State, it is an inter-State sale.Theobservations relied upon by Shri Sehgal do not constitute the ratio of the decision and cannot come to rescue of the appellant State. Indeed, if one looks to the language employed in clause (a) of Section 3 it seems to suggest that the movement of goods follows upon and is the necessary consequence of the sale or purchase, as the case may be, and not the other way round16. Shri Sehgal is equally not right in saying that the movement of goods from the State of U.P. to other State (s) is immaterial and that the U.P. Legislature is competent to tax each and every purchase that takes place within the State. Ordinarily, it is so, but where a sale or purchase, though effected within the State of U.P. occasions the movement of goods sold/purchased thereunder from the State of U.P. to other State, it becomes an inter-State sale. Such a sale cannot be taxed by the legislature of Uttar Pradesh. It is taxable only under the Central Sales Tax Act, 195617. Situation could have been different if the respondent-dealer had purchased the goods on behalf of the ex-U.P. principals in the first instance and thereafter in pursuance of subsequent instructions despatched the goods. In such an event the instructions to despatch the goods are independent of the instructions to purchase.e is break between the purchase and despatch of goods. It would not be an inter-State purchase. An out-State principal may first instruct his commission agent within the State of U.P. to purchase the goods on his behalf and to await his further instructions. Depending upon the market conditions and other circumstances, the ex-State principal may instruct his agent in the State either to sell the goods within the State or to despatch the goods beyond the State. If such were the case, Shri Sehgal would have been right in saying that the State of U.P. was competent to tax the purchase by respondent-dealer. But that is not case here on the facts found by theappropriate authoritiesCivil Appeal No. 1534 of 1990For the purpose of the U.P. Sales Tax Act, it is enough that a sale or purchase takes place within the State; the subsequent movement of the goods is irrelevant, says the counsel. We find it not possible to agree.

### 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: to B in State Y and if B accepts them a sale take place. It will be seen that in this case the movement of goods is neither in pursuance of the agreement to sell nor is the movement occasioned by the sale. The seller himself takes the goods on State Y and sells the goods there. This is, therefore, purely an internal sale which takes place in State Y and falls beyond the purview of Section 3(a) of the Central Sales Tax Act not being an inter-State sale Case No. III - B a purchaser in State Y comes to State X and purchases the goods and pays the price thereof. After having purchased the goods he then books the goods from State X to State Y in his own name. This is also a case where the sale is purely an internal sale having taken place in State X and the movement of goods is not occasioned by the sale but takes place after the property is purchased by B and becomes his property Generally these are the only type of cases that can occur in the day to day commercial transactions. It is, therefore, manifest that there can hardly be a case where once a sale takes place the movement is subsequent to the sale." 14. The learned Judge proceeded further and held thus : (SCC p. 53, para 15) "(2) That the following conditions must be satisfied before a sale can be said to take place in the course of inter-State trade or commerce (i) that there is an agreement to sell which contains a stipulation express or implied regarding the movement of the goods from one State to another; (ii) that in pursuance of the said contract the goods in fact move from one State to another; and (iii) that ultimately a concluded sale takes place in the State where the goods are sent which must be different from the State from which the goods move "If these conditions are satisfied then by virtue of section 9 of the Central Sales Tax Act it is the State from which the goods move which will be competent to levy the tax under the provisions of the Central Sales Tax Act. This proposition is not, and cannot, be disputed by the learned counsel for the parties." * 15. Shri Sehgal relies particularly upon "Case No. III" contained in the first extract and clause (iii) mentioned in the second extract. Relying upon these statements, the learned counsel contends that a concluded sale must necessarily take place in the other State and not in the State from which the goods emanate. According to him a concluded or completed sale must follow the movement of goods and should not precede. If a purchase or sale is complete in the State from which the goods emanate, he says, it can never be an inter-State purchase or sale. We cannot accede to this understanding of the learned counsel. The said observations, no doubt rather widely worded, must be understood in the context of the question that arose for consideration in the case viz., whether an agreement of sale is included within the definition of sale as defined in the Central Sales Tax Act. Be that as it may, the true position has since been explained in the later decision in Khosla and Co. It is immaterial whether a completed sale precedes the movement of goods or follows the movement of goods, or for that matter, takes place while the goods are in transit. What is important is that the movement of goods and the sale must be inseparably connected. The ratio of Balabhagas ( 1976 (2) SCC 44 : 1976 SCC(Tax) 164 : 1976 (2) SCR 939 ) is this : if the goods move from one State to another in pursuance of an agreement of sale and the sale is completed in other State, it is an inter-State sale. The observations relied upon by Shri Sehgal do not constitute the ratio of the decision and cannot come to rescue of the appellant State. Indeed, if one looks to the language employed in clause (a) of Section 3 it seems to suggest that the movement of goods follows upon and is the necessary consequence of the sale or purchase, as the case may be, and not the other way round. 16. Shri Sehgal is equally not right in saying that the movement of goods from the State of U.P. to other State (s) is immaterial and that the U.P. Legislature is competent to tax each and every purchase that takes place within the State. Ordinarily, it is so, but where a sale or purchase, though effected within the State of U.P. occasions the movement of goods sold/purchased thereunder from the State of U.P. to other State, it becomes an inter-State sale. Such a sale cannot be taxed by the legislature of Uttar Pradesh. It is taxable only under the Central Sales Tax Act, 1956. 17. Situation could have been different if the respondent-dealer had purchased the goods on behalf of the ex-U.P. principals in the first instance and thereafter in pursuance of subsequent instructions despatched the goods. In such an event the instructions to despatch the goods are independent of the instructions to purchase. There is break between the purchase and despatch of goods. It would not be an inter-State purchase. An out-State principal may first instruct his commission agent within the State of U.P. to purchase the goods on his behalf and to await his further instructions. Depending upon the market conditions and other circumstances, the ex-State principal may instruct his agent in the State either to sell the goods within the State or to despatch the goods beyond the State. If such were the case, Shri Sehgal would have been right in saying that the State of U.P. was competent to tax the purchase by respondent-dealer. But that is not case here on the facts found by the .appropriate authorities. ### Response: 0

Reginald Edward Negus & Others Vs. Official Liquidator & Another

Prothonotary, Master and Assistant Master, and such other officer as may be authorised by the Chief Justice to perform all or any of the duties assigned to the Registrar under the these Rules...."5. It is, in our view, clear that by the order dated 23rd June, 1983 the learned Acting Chief Justice authorised the Taxing Master to perform the duty of taxation of bills of costs assigned to the Registrar under Rule 340 of the Company (Court) Rules. 6. Rather than send the matter back to the learned Company Judge now to consider what is properly the subject matter of the Company Application taken out by the said attorneys, we have decided, with the consent of Counsel, to consider the matter ourselves.7. Rule 6 of the Companies (Court) Rules states that the practice and procedure of the Court shall apply to all proceedings under the Companies Act and under the Companies (court) Rules. Rule 339 expressly deals with the taxation of costs in Bombay, Calcutta and Madras and states that the costs of all proceedings under the Companies Act and the Companies (Court) Rules in these High courts shall be taxed in accordance with the rules and the practice and procedure of these Courts. Rule 342 provides much the same thing in regard to other High courts. Rules 356 speaks of taxation between advocate and client and sub-rule (6) makes it clear that it shall not apply to the taxation of a bill of costs as between an advocate employed by the Official Liquidator and the Official Liquidator, which shall be taxed, subject to any order of the Court, according to the rules regulating taxation of costs between party and party. 8. Now, the only provisions that can govern the taxation of bills of costs are contained in the Original Side Rules, 1957. They are Rules 599 and 600. They read thus :"599. In dealing with fees or allowances, which are discretionary, the Taxing Master, in exercise of such discretion, shall take into consideration the other fees and allowances to the Attorney and Counsel, if any, in respect of the work to which any such allowance applies, the nature or importance of the suit or matter, the amount involved, the interest of the parties, the fund or persons to bear the costs, the general conduct and costs of the proceedings and all other circumstances." "600. The Taxing Master shall not allow as Instructions for Brief any sum exceeding Rs. 1,000 unless otherwise ordered by the Court in(a) Short causes.(b) Appeals from the decision of a Judge in any matter when only one Counsel is allowed.(c) Long causes set down as undefended. (d) Long causes in which the opposite party does not enter an appearance and in which an ex-parte decree is obtained. (e) Appearances for any formal party who only appears to submit to the order of the Court and to ask for costs. (f) Matrimonial Suits.(g) Hearing on further directions and costs.(h) Hearing on Commissioners Report and on exceptions to the Commissioners Report. (i) Chamber matters adjourned into Court.(j) Notices of Motion."9. It is true that Rule 600 applies only in respect of bills of costs for work done prior to 31st December 1976. It is also true that Rule 600 relates in terms only to suits, appeals and interlocutory and subsequent proceedings therein and does not cover proceedings under the Company law. Under Rule 600 the Taxing Master may allow as instructions for brief a sum exceeding Rs. 1,000/- if so ordered by the Court. Rule 600 is preceded by Rule 599 whereunder the Taxing Master is obliged, in dealing with fees or allowances which are discretionary, to take into consideration the various matters therein specified. We think that it is necessary that some parameters must be specified within which the Taxing Master may consider bills placed before him for taxation in relation to work done under the Company law. Rules 599 and 600 read together provide such parameters. We therefore, think that Rules 599 and 600 read together must apply to the taxation of bills of costs relating to company matters. 10. In the said Company Application in respect of which the bill of costs before us was lodged the hearings spanned 5 days and took about 20 hours. This is, in our view, an appropriate case where the instruction item in the bill of costs may be allowed in excess of the sum of Rs. 1,000/-, due regard being had to the factors set out in Rule 599. 11. We are told that there are similar bills of costs in regard to work done by advocates and attorneys for the Official Liquidator which are awaiting the disposal of the present appeal. It would not, in our view, be advisable to hold here and now that in all these matters a sum exceeding Rs. 1,000/- should be allowed as instructions for brief. We, therefore, direct the Official Liquidator to make a report in each such matter to the learned Company Judge setting out details of the volume of work done in that matter by the Advocate concerned, the period of time that was occupied in the hearing, in conferences, etc. The Official Liquidator shall give to the Advocate concerned notice of the hearing of such report. The Company Judge shall, after hearing the Official Liquidator and the advocate concerned, decide whether a sum exceeding Rs. 1,000/- should be allowed in the particular matter as instructions for brief. The bill of costs shall then be taxed accordingly. If the Company Judge does permit the instruction item to exceed Rs. 1,000/-, the Taxing Master shall decide what is payable in respect thereof having regard to the factors set out in Rule 599. 12. In Company matters that come hereafter it would be convenient if the Court disposing of the same should itself certify whether or not the instruction item should exceed Rs. 1,000/- and the Taxing Master shall tax the bill of costs accordingly in the manner hereinabove indicated.

1[ds]5. It is, in our view, clear that by the order dated 23rd June, 1983 the learned Acting Chief Justice authorised the Taxing Master to perform the duty of taxation of bills of costs assigned to the Registrar under Rule 340 of the Company (Court) Rules.Rather than send the matter back to the learned Company Judge now to consider what is properly the subject matter of the Company Application taken out by the said attorneys, we have decided, with the consent of Counsel, to consider the matterthink that it is necessary that some parameters must be specified within which the Taxing Master may consider bills placed before him for taxation in relation to work done under the Company law. Rules 599 and 600 read together provide such parameters. We therefore, think that Rules 599 and 600 read together must apply to the taxation of bills of costs relating to companyis, in our view, an appropriate case where the instruction item in the bill of costs may be allowed in excess of the sum of Rs.due regard being had to the factors set out in Rulewould not, in our view, be advisable to hold here and now that in all these matters a sum exceeding Rs. 1,000/should be allowed as instructions for brief. We, therefore, direct the Official Liquidator to make a report in each such matter to the learned Company Judge setting out details of the volume of work done in that matter by the Advocate concerned, the period of time that was occupied in the hearing, in conferences, etc. The Official Liquidator shall give to the Advocate concerned notice of the hearing of such report. The Company Judge shall, after hearing the Official Liquidator and the advocate concerned, decide whether a sum exceeding Rs. 1,000/should be allowed in the particular matter as instructions for brief. The bill of costs shall then be taxed accordingly. If the Company Judge does permit the instruction item to exceed Rs.the Taxing Master shall decide what is payable in respect thereof having regard to the factors set out in Rule 599.In Company matters that come hereafter it would be convenient if the Court disposing of the same should itself certify whether or not the instruction item should exceed Rs. 1,000/and the Taxing Master shall tax the bill of costs accordingly in the manner hereinabove indicated.

### 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: Prothonotary, Master and Assistant Master, and such other officer as may be authorised by the Chief Justice to perform all or any of the duties assigned to the Registrar under the these Rules...."5. It is, in our view, clear that by the order dated 23rd June, 1983 the learned Acting Chief Justice authorised the Taxing Master to perform the duty of taxation of bills of costs assigned to the Registrar under Rule 340 of the Company (Court) Rules. 6. Rather than send the matter back to the learned Company Judge now to consider what is properly the subject matter of the Company Application taken out by the said attorneys, we have decided, with the consent of Counsel, to consider the matter ourselves.7. Rule 6 of the Companies (Court) Rules states that the practice and procedure of the Court shall apply to all proceedings under the Companies Act and under the Companies (court) Rules. Rule 339 expressly deals with the taxation of costs in Bombay, Calcutta and Madras and states that the costs of all proceedings under the Companies Act and the Companies (Court) Rules in these High courts shall be taxed in accordance with the rules and the practice and procedure of these Courts. Rule 342 provides much the same thing in regard to other High courts. Rules 356 speaks of taxation between advocate and client and sub-rule (6) makes it clear that it shall not apply to the taxation of a bill of costs as between an advocate employed by the Official Liquidator and the Official Liquidator, which shall be taxed, subject to any order of the Court, according to the rules regulating taxation of costs between party and party. 8. Now, the only provisions that can govern the taxation of bills of costs are contained in the Original Side Rules, 1957. They are Rules 599 and 600. They read thus :"599. In dealing with fees or allowances, which are discretionary, the Taxing Master, in exercise of such discretion, shall take into consideration the other fees and allowances to the Attorney and Counsel, if any, in respect of the work to which any such allowance applies, the nature or importance of the suit or matter, the amount involved, the interest of the parties, the fund or persons to bear the costs, the general conduct and costs of the proceedings and all other circumstances." "600. The Taxing Master shall not allow as Instructions for Brief any sum exceeding Rs. 1,000 unless otherwise ordered by the Court in(a) Short causes.(b) Appeals from the decision of a Judge in any matter when only one Counsel is allowed.(c) Long causes set down as undefended. (d) Long causes in which the opposite party does not enter an appearance and in which an ex-parte decree is obtained. (e) Appearances for any formal party who only appears to submit to the order of the Court and to ask for costs. (f) Matrimonial Suits.(g) Hearing on further directions and costs.(h) Hearing on Commissioners Report and on exceptions to the Commissioners Report. (i) Chamber matters adjourned into Court.(j) Notices of Motion."9. It is true that Rule 600 applies only in respect of bills of costs for work done prior to 31st December 1976. It is also true that Rule 600 relates in terms only to suits, appeals and interlocutory and subsequent proceedings therein and does not cover proceedings under the Company law. Under Rule 600 the Taxing Master may allow as instructions for brief a sum exceeding Rs. 1,000/- if so ordered by the Court. Rule 600 is preceded by Rule 599 whereunder the Taxing Master is obliged, in dealing with fees or allowances which are discretionary, to take into consideration the various matters therein specified. We think that it is necessary that some parameters must be specified within which the Taxing Master may consider bills placed before him for taxation in relation to work done under the Company law. Rules 599 and 600 read together provide such parameters. We therefore, think that Rules 599 and 600 read together must apply to the taxation of bills of costs relating to company matters. 10. In the said Company Application in respect of which the bill of costs before us was lodged the hearings spanned 5 days and took about 20 hours. This is, in our view, an appropriate case where the instruction item in the bill of costs may be allowed in excess of the sum of Rs. 1,000/-, due regard being had to the factors set out in Rule 599. 11. We are told that there are similar bills of costs in regard to work done by advocates and attorneys for the Official Liquidator which are awaiting the disposal of the present appeal. It would not, in our view, be advisable to hold here and now that in all these matters a sum exceeding Rs. 1,000/- should be allowed as instructions for brief. We, therefore, direct the Official Liquidator to make a report in each such matter to the learned Company Judge setting out details of the volume of work done in that matter by the Advocate concerned, the period of time that was occupied in the hearing, in conferences, etc. The Official Liquidator shall give to the Advocate concerned notice of the hearing of such report. The Company Judge shall, after hearing the Official Liquidator and the advocate concerned, decide whether a sum exceeding Rs. 1,000/- should be allowed in the particular matter as instructions for brief. The bill of costs shall then be taxed accordingly. If the Company Judge does permit the instruction item to exceed Rs. 1,000/-, the Taxing Master shall decide what is payable in respect thereof having regard to the factors set out in Rule 599. 12. In Company matters that come hereafter it would be convenient if the Court disposing of the same should itself certify whether or not the instruction item should exceed Rs. 1,000/- and the Taxing Master shall tax the bill of costs accordingly in the manner hereinabove indicated. ### Response: 1

Madhukar Nirgudkar S/O Dattaraya Nirgudkar Vs. Maharashtra State Financial Corporation & Another

inter alia, stipulated that the guarantors would be liable to secure the repayment of the loan amount with interest on conditions contained in the deed of mortgage. It appears that there were internal differences between the Directors of the said Company as a result of which the Company closed its factory and in fact even abandoned the same. By notice dated 15-3-1994 the plaintiffs called upon the said Company to repay the amount of Rs.62,92,821.54 which included the principal amount of Rs.30,00,000/-, Rs.32,36,406.54 of interest and Rs.56,415/- towards expenses as on 1-3-1984 with further compound interest thereon at the agreed rate by 26-3-1984. In the said notice, it was specifically stated that in case the amount was not paid the possession of the factory would be taken on 27-3-1984 and in fact it was so taken on the same date under a panchanama. Subsequently, the assets of the said Company were sold by public auction which was duly advertised at least on two local papers and other national papers for a sum of Rs.42.27 lakhs to one K.P. Steels Pvt. Ltd. and the same was distributed between the plaintiff and E.D.C. pari passu, as per agreement between them and for the balance amount of Rs.35,86,724.63 inclusive of interest as on 26-3-1984 and expenses incurred as on 1-5-1985 the suit was filed with further interest at a the rate of 14.5% from 27-3-1984 till the amount was realized.3.Summons having been served upon the defendants the suit was contested by defendant no.2 alone and it proceeded ex parte against defendant no.1 who has also not appealed from the impugned Judgment. Various defences were taken on behalf of defendant no.2 in his written statement and several issues were also framed in the light thereof. All the pleas taken on behalf of defendant no.2, have been decided against him and the suit was decreed in the sum of Rs.25,92,978.14. We do not propose to go to the details of all the defences taken by defendant no.2 since at the hearing of this appeal two submissions have been made on behalf of the appellant/defendant no.2, by his learned Counsel. We proceed to deal with then.4.The first submission of Shri Menezes is that defendant no.2 was not notified of the auction held by the plaintiff for sale of the mortgaged property. This submission appears to have been made before the trial Court as well, and was made by keeping in mind the guidelines issued by the Apex Court in Mahesh Chandra v. Regional Manager, U.P. Financial Corporation and others (AIR 1993 SC 935 ) and in that regard the learned trial Court observed, and, in our view rightly, that the said guidelines were issued only on or about 12-2-1992 while the sale in question was conducted in the year 1985. However, the said guidelines have been subsequently reconsidered by the Honble Supreme Court in Haryana Financial Corporation v. Jagdamba Oil Mills (2002 (3) SCC 496 ). In fact, it appears that defendant no.2 did not at any time object to the said auction being held and the claim of defendant no.2 that in case he was informed he would have got a better value for the assets of the Company appears to be too far fetched. The Apex Court has now stated that unless the action of the Corporation is mala fide, even a wrong decision by it is not open to challenge as such decisions are taken on the basis of information in its possession and the advice it receives and according to its own perspective and calculations. In this case the assets of the company were sold by a duly and widely advertised public auction.5.The next submission of Shri Menezes is that the trial Court lacked jurisdiction as the suit was barred by Section 31(1)(aa) of the State Financial Corporations Act, 1951 (Act, for short) and the recovery proceedings ought to have been filed before the District Court. There is no doubt that clause (aa) of sub-section(1) of Section 31 of the Act was introduced w.e.f. 21-8-1985 and the suit was filed on 5-2-1986. Without much elaboration, it can be seen from the language of Section 31 of the Act, that it provides for a special remedy for enforcement of claims by Financial Corporations and with the introduction of clause (aa) a special provision has also been made for enforcing the liability of the sureties, as well. Special means not general. When the section speaks of special remedy it only means that it is a remedy other than ordinary remedy. Section 46(B) of the Act also stipulates that the provisions of the Act and of any rule or orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the memorandum or articles of association of an industrial concern or in any other instrument having effect by virtue of any law other than this Act, but save as aforesaid, the provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being applicable to an industrial concern. A conjoint reading of Sections 31 and 46(B) of the Act shows that the said provisions have been made by way of special provisions to facilitate a speedy recovery of loans advanced by the Corporations and they are in addition to and not in derogation of any other law applicable to the industrial concern including their rights to recover the sum advanced under ordinary mode of a civil suit. The special procedure of Section 31 of the Act, in our view, does not bar the ordinary remedy of a civil suit but is only in addition to the said ordinary remedy. Therefore, the contention that the suit was not maintainable before the Civil Judge as there was a separate remedy provided under Section 31(1)(aa) before the District Court needs to be rejected inasmuch as such a plea was also not raised before the learned trial Court.

0[ds]This submission appears to have been made before the trial Court as well, and was made by keeping in mind the guidelines issued by the Apex Court in Mahesh Chandra v. Regional Manager, U.P. Financial Corporation and others (AIR 1993 SC 935 ) and in that regard the learned trial Court observed, and, in our view rightly, that the said guidelines were issued onlyon or aboute the sale in question was conducted in the year 1985. However, the said guidelines have been subsequently reconsidered by the Honble Supreme Court in Haryana Financial Corporation v. Jagdamba Oil Mills (2002 (3) SCC 496 ). In fact, it appears that defendant no.2 did not at any time object to the said auction being held and the claim of defendant no.2 that in case he was informed he would have got a better value for the assets of the Company appears to be too far fetched. The Apex Court has now stated that unless the action of the Corporation is mala fide, even a wrong decision by it is not open to challenge as such decisions are taken on the basis of information in its possession and the advice it receives and according to its own perspective and calculations. In this case the assets of the company were sold by a duly and widely advertised publicmuch elaboration, it can be seen from the language of Section 31 of the Act, that it provides for a special remedy for enforcement of claims by Financial Corporations and with the introduction of clause (aa) a special provision has also been made for enforcing the liability of the sureties, as well. Special means not general. When the section speaks of special remedy it only means that it is a remedy other than ordinary remedy. Section 46(B) of the Act also stipulates that the provisions of the Act and of any rule or orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the memorandum or articles of association of an industrial concern or in any other instrument having effect by virtue of any law other than this Act, but save as aforesaid, the provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being applicable to an industrial concern. A conjoint reading of Sections 31 and 46(B) of the Act shows that the said provisions have been made by way of special provisions to facilitate a speedy recovery of loans advanced by the Corporations and they are in addition to and not in derogation of any other law applicable to the industrial concern including their rights to recover the sum advanced under ordinary mode of a civil suit. The special procedure of Section 31 of the Act, in our view, does not bar the ordinary remedy of a civil suit but is only in addition to the said ordinary remedy. Therefore, the contention that the suit was not maintainable before the Civil Judge as there was a separate remedy provided under Section 31(1)(aa) before the District Court needs to be rejected inasmuch as such a plea was also not raised before the learned trial Court.

### 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: inter alia, stipulated that the guarantors would be liable to secure the repayment of the loan amount with interest on conditions contained in the deed of mortgage. It appears that there were internal differences between the Directors of the said Company as a result of which the Company closed its factory and in fact even abandoned the same. By notice dated 15-3-1994 the plaintiffs called upon the said Company to repay the amount of Rs.62,92,821.54 which included the principal amount of Rs.30,00,000/-, Rs.32,36,406.54 of interest and Rs.56,415/- towards expenses as on 1-3-1984 with further compound interest thereon at the agreed rate by 26-3-1984. In the said notice, it was specifically stated that in case the amount was not paid the possession of the factory would be taken on 27-3-1984 and in fact it was so taken on the same date under a panchanama. Subsequently, the assets of the said Company were sold by public auction which was duly advertised at least on two local papers and other national papers for a sum of Rs.42.27 lakhs to one K.P. Steels Pvt. Ltd. and the same was distributed between the plaintiff and E.D.C. pari passu, as per agreement between them and for the balance amount of Rs.35,86,724.63 inclusive of interest as on 26-3-1984 and expenses incurred as on 1-5-1985 the suit was filed with further interest at a the rate of 14.5% from 27-3-1984 till the amount was realized.3.Summons having been served upon the defendants the suit was contested by defendant no.2 alone and it proceeded ex parte against defendant no.1 who has also not appealed from the impugned Judgment. Various defences were taken on behalf of defendant no.2 in his written statement and several issues were also framed in the light thereof. All the pleas taken on behalf of defendant no.2, have been decided against him and the suit was decreed in the sum of Rs.25,92,978.14. We do not propose to go to the details of all the defences taken by defendant no.2 since at the hearing of this appeal two submissions have been made on behalf of the appellant/defendant no.2, by his learned Counsel. We proceed to deal with then.4.The first submission of Shri Menezes is that defendant no.2 was not notified of the auction held by the plaintiff for sale of the mortgaged property. This submission appears to have been made before the trial Court as well, and was made by keeping in mind the guidelines issued by the Apex Court in Mahesh Chandra v. Regional Manager, U.P. Financial Corporation and others (AIR 1993 SC 935 ) and in that regard the learned trial Court observed, and, in our view rightly, that the said guidelines were issued only on or about 12-2-1992 while the sale in question was conducted in the year 1985. However, the said guidelines have been subsequently reconsidered by the Honble Supreme Court in Haryana Financial Corporation v. Jagdamba Oil Mills (2002 (3) SCC 496 ). In fact, it appears that defendant no.2 did not at any time object to the said auction being held and the claim of defendant no.2 that in case he was informed he would have got a better value for the assets of the Company appears to be too far fetched. The Apex Court has now stated that unless the action of the Corporation is mala fide, even a wrong decision by it is not open to challenge as such decisions are taken on the basis of information in its possession and the advice it receives and according to its own perspective and calculations. In this case the assets of the company were sold by a duly and widely advertised public auction.5.The next submission of Shri Menezes is that the trial Court lacked jurisdiction as the suit was barred by Section 31(1)(aa) of the State Financial Corporations Act, 1951 (Act, for short) and the recovery proceedings ought to have been filed before the District Court. There is no doubt that clause (aa) of sub-section(1) of Section 31 of the Act was introduced w.e.f. 21-8-1985 and the suit was filed on 5-2-1986. Without much elaboration, it can be seen from the language of Section 31 of the Act, that it provides for a special remedy for enforcement of claims by Financial Corporations and with the introduction of clause (aa) a special provision has also been made for enforcing the liability of the sureties, as well. Special means not general. When the section speaks of special remedy it only means that it is a remedy other than ordinary remedy. Section 46(B) of the Act also stipulates that the provisions of the Act and of any rule or orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the memorandum or articles of association of an industrial concern or in any other instrument having effect by virtue of any law other than this Act, but save as aforesaid, the provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being applicable to an industrial concern. A conjoint reading of Sections 31 and 46(B) of the Act shows that the said provisions have been made by way of special provisions to facilitate a speedy recovery of loans advanced by the Corporations and they are in addition to and not in derogation of any other law applicable to the industrial concern including their rights to recover the sum advanced under ordinary mode of a civil suit. The special procedure of Section 31 of the Act, in our view, does not bar the ordinary remedy of a civil suit but is only in addition to the said ordinary remedy. Therefore, the contention that the suit was not maintainable before the Civil Judge as there was a separate remedy provided under Section 31(1)(aa) before the District Court needs to be rejected inasmuch as such a plea was also not raised before the learned trial Court. ### Response: 0

Bhushan Power & Steel Ltd. Vs. State Of Orissa

dispute between the members of the Bhushan Group had been settled and the parties had mutually agreed to withdraw all the allegations and claims relating to the MOU dated 15th May, 2002. Incidentally, by filing I.A.No.13, BSSL confirmed that Bhushan Power & Steel Ltd. was the sole beneficiary under the MOU dated 15th May, 2002, and withdrew all its claims under the MOU dated 15th May, 2002. 26. Mr. L. Nageshwar Rao, learned Senior Advocate, appearing for the State of Orissa, has also very fairly stated that in view of the settlement of disputes between the members of the Bhushan Group, the issue relating to the MOU did not survive and, since, the State Government had already performed its obligation under the MOU, the only thing remaining to be done by the State is to make recommendations to the Central Government for grant of iron ore mines to the Bhushan Power & Steel Ltd. 27. Mr. Rohatgi submitted that in the changed circumstances, the question of execution of a fresh MOU loses its relevance and the letter dated 31st December, 2005, calling upon the Appellants to execute a fresh MOU, is not required to be given effect to. Consequently, it may be held that the MOU dated 15th May, 2002, continues to be valid and subsisting between the State of Orissa and Bhushan Power & Steel Ltd. 28. On the question of Rule 59 of the MC Rules, which formed the basis of the State Governments decision to reject the Appellants application for being recommended to the Central Government for grant of a mining lease, Mr. Rohatgi submitted that such recommendations had been made by the State Government in favour of other applicants as well, such as M/s. S.M.C. Power Generation Ltd., M/s. Neepaz Metalics, M/s. Sree Metaliks and M/s. Deepak Steel & Power. Therefore, there was no reason to deny the same benefits to the Appellants as well.29. Appearing for the Intervener, M/s. Jindal Steels Ltd., Mr. K.V. Vishwanathan, learned Senior Advocate, submitted that so long as any allotment made in favour of the Appellants did not impinge on the allotment made in favour of M/s. Jindal Steels Ltd., it could have no grievance against a separate allotment being made in favour of the Appellants. 30. The mutual settlement of the disputes between the members of the Bhushan Group has altered the situation considerably, since BSSL has withdrawn its claim under the MOU dated 15th May, 2002, and has declared that the said MOU was and had always been executed by the State Government in favour of Bhushan Power & Steel Ltd., which had set up its steel plant at Lapanga. As indicated hereinbefore, although, the MOU was entered into by the State Government with the Bhushan Group for setting up a steel plant at Lapanga, at a later stage, BSSL also laid claim under the MOU for setting up a separate steel plant at Mehramandali and a suggestion was also made for execution of a fresh MOU between the State Government and BSSL to this effect.31. Pursuant to the MOU with Bhushan Limited, the State Government had not only allotted land for the setting up of the steel plant at Lapanga, it had even extended all help for the commissioning of the plant, which, in fact, had already started functioning. However, it is the claim made by BSSL under the MOU executed on 15th May, 2002, that had created obstructions in the setting up of the steel plant at Lapanga. Despite having allotted land and granted sanction to Bhushan Limited to take steps for construction of the said plant, it was subsequently contended that the application filed by Bhushan Limited was premature and could not, therefore, be acted upon. Specific instances have been mentioned hereinabove of the steps taken by the various departments in extending cooperation to Bhushan Limited to set up its steel plant at Lapanga. To now turn around and take a stand that the application made by Bhushan Limited was premature, is not only unreasonable, but completely unfair to Bhushan Limited, who have already invested large sums of money in setting up the plant. The State Government had, on its own volition, entered into the MOU with Bhushan Limited on 15th May, 2002, and had even agreed to request the Central Government to allot mining areas and coal blocks for operating the steel plant. Whatever differences that may have resulted on account of the dispute within the Bhushan Group, which could have led to the rethinking on the part of the State Government, have now been laid to rest by virtue of the settlement arrived at between the Bhushan Limited (now BPSL) and BSSL. The State Government has also accepted the said position. In addition to the above, the action taken by the State Government appears to us to be highly unreasonable and arbitrary and also attracts the doctrine of legitimate expectation. There is no denying the fact that the Appellants have altered their position to their detriment in accordance with the MOU dated 15th May, 2002. Whatever may have been the arrangement subsequently arrived at between the State Government and BSSL, the original MOU dated 15th May, 2002, continued to be in existence and remained operative.32. The State Government appears to have acted arbitrarily in requiring Bhushan Limited to enter into a separate MOU, notwithstanding the existence of the MOU dated 15th May, 2002, which, as mentioned hereinabove, had been acted upon by the parties.33. In the light of the above, the High Court erred in holding that it could not interfere with the decision of the State Government calling upon the Appellants to sign a fresh MOU with the Government, during subsistence of the earlier MOU. Since the State Government has already made allotments in favour of others in relaxation of the Mineral Concession Rules, 1960, under Rule 59(2) thereof, no cogent ground had been made out on behalf of the State to deny the said privilege to the Appellants as well. 34.

1[ds]30. The mutual settlement of the disputes between the members of the Bhushan Group has altered the situation considerably, since BSSL has withdrawn its claim under the MOU dated 15th May, 2002, and has declared that the said MOU was and had always been executed by the State Government in favour of Bhushan Power & Steel Ltd., which had set up its steel plant at Lapanga. As indicated hereinbefore, although, the MOU was entered into by the State Government with the Bhushan Group for setting up a steel plant at Lapanga, at a later stage, BSSL also laid claim under the MOU for setting up a separate steel plant at Mehramandali and a suggestion was also made for execution of a fresh MOU between the State Government and BSSL to this effect.31. Pursuant to the MOU with Bhushan Limited, the State Government had not only allotted land for the setting up of the steel plant at Lapanga, it had even extended all help for the commissioning of the plant, which, in fact, had already started functioning. However, it is the claim made by BSSL under the MOU executed on 15th May, 2002, that had created obstructions in the setting up of the steel plant at Lapanga. Despite having allotted land and granted sanction to Bhushan Limited to take steps for construction of the said plant, it was subsequently contended that the application filed by Bhushan Limited was premature and could not, therefore, be acted upon. Specific instances have been mentioned hereinabove of the steps taken by the various departments in extending cooperation to Bhushan Limited to set up its steel plant at Lapanga. To now turn around and take a stand that the application made by Bhushan Limited was premature, is not only unreasonable, but completely unfair to Bhushan Limited, who have already invested large sums of money in setting up the plant. The State Government had, on its own volition, entered into the MOU with Bhushan Limited on 15th May, 2002, and had even agreed to request the Central Government to allot mining areas and coal blocks for operating the steel plant. Whatever differences that may have resulted on account of the dispute within the Bhushan Group, which could have led to the rethinking on the part of the State Government, have now been laid to rest by virtue of the settlement arrived at between the Bhushan Limited (now BPSL) and BSSL. The State Government has also accepted the said position. In addition to the above, the action taken by the State Government appears to us to be highly unreasonable and arbitrary and also attracts the doctrine of legitimate expectation. There is no denying the fact that the Appellants have altered their position to their detriment in accordance with the MOU dated 15th May, 2002. Whatever may have been the arrangement subsequently arrived at between the State Government and BSSL, the original MOU dated 15th May, 2002, continued to be in existence and remained operative.32. The State Government appears to have acted arbitrarily in requiring Bhushan Limited to enter into a separate MOU, notwithstanding the existence of the MOU dated 15th May, 2002, which, as mentioned hereinabove, had been acted upon by the parties.33. In the light of the above, the High Court erred in holding that it could not interfere with the decision of the State Government calling upon the Appellants to sign a fresh MOU with the Government, during subsistence of the earlier MOU. Since the State Government has already made allotments in favour of others in relaxation of the Mineral Concession Rules, 1960, under Rule 59(2) thereof, no cogent ground had been made out on behalf of the State to deny the said privilege to the Appellants as well.The mutual settlement of the disputes between the members of the Bhushan Group has altered the situation considerably, since BSSL has withdrawn its claim under the MOU dated 15th May, 2002, and has declared that the said MOU was and had always been executed by the State Government in favour of Bhushan Power & Steel Ltd., which had set up its steel plant at Lapanga. As indicated hereinbefore, although, the MOU was entered into by the State Government with the Bhushan Group for setting up a steel plant at Lapanga, at a later stage, BSSL also laid claim under the MOU for setting up a separate steel plant at Mehramandali and a suggestion was also made for execution of a fresh MOU between the State Government and BSSL to this effect.31. Pursuant to the MOU with Bhushan Limited, the State Government had not only allotted land for the setting up of the steel plant at Lapanga, it had even extended all help for the commissioning of the plant, which, in fact, had already started functioning. However, it is the claim made by BSSL under the MOU executed on 15th May, 2002, that had created obstructions in the setting up of the steel plant at Lapanga. Despite having allotted land and granted sanction to Bhushan Limited to take steps for construction of the said plant, it was subsequently contended that the application filed by Bhushan Limited was premature and could not, therefore, be acted upon. Specific instances have been mentioned hereinabove of the steps taken by the various departments in extending cooperation to Bhushan Limited to set up its steel plant at Lapanga. To now turn around and take a stand that the application made by Bhushan Limited was premature, is not only unreasonable, but completely unfair to Bhushan Limited, who have already invested large sums of money in setting up the plant. The State Government had, on its own volition, entered into the MOU with Bhushan Limited on 15th May, 2002, and had even agreed to request the Central Government to allot mining areas and coal blocks for operating the steel plant. Whatever differences that may have resulted on account of the dispute within the Bhushan Group, which could have led to the rethinking on the part of the State Government, have now been laid to rest by virtue of the settlement arrived at between the Bhushan Limited (now BPSL) and BSSL. The State Government has also accepted the said position. In addition to the above, the action taken by the State Government appears to us to be highly unreasonable and arbitrary and also attracts the doctrine of legitimate expectation. There is no denying the fact that the Appellants have altered their position to their detriment in accordance with the MOU dated 15th May, 2002. Whatever may have been the arrangement subsequently arrived at between the State Government and BSSL, the original MOU dated 15th May, 2002, continued to be in existence and remained operative.32. The State Government appears to have acted arbitrarily in requiring Bhushan Limited to enter into a separate MOU, notwithstanding the existence of the MOU dated 15th May, 2002, which, as mentioned hereinabove, had been acted upon by the parties.33. In the light of the above, the High Court erred in holding that it could not interfere with the decision of the State Government calling upon the Appellants to sign a fresh MOU with the Government, during subsistence of the earlier MOU. Since the State Government has already made allotments in favour of others in relaxation of the Mineral Concession Rules, 1960, under Rule 59(2) thereof, no cogent ground had been made out on behalf of the State to deny the said privilege to the Appellants as well.

### 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: dispute between the members of the Bhushan Group had been settled and the parties had mutually agreed to withdraw all the allegations and claims relating to the MOU dated 15th May, 2002. Incidentally, by filing I.A.No.13, BSSL confirmed that Bhushan Power & Steel Ltd. was the sole beneficiary under the MOU dated 15th May, 2002, and withdrew all its claims under the MOU dated 15th May, 2002. 26. Mr. L. Nageshwar Rao, learned Senior Advocate, appearing for the State of Orissa, has also very fairly stated that in view of the settlement of disputes between the members of the Bhushan Group, the issue relating to the MOU did not survive and, since, the State Government had already performed its obligation under the MOU, the only thing remaining to be done by the State is to make recommendations to the Central Government for grant of iron ore mines to the Bhushan Power & Steel Ltd. 27. Mr. Rohatgi submitted that in the changed circumstances, the question of execution of a fresh MOU loses its relevance and the letter dated 31st December, 2005, calling upon the Appellants to execute a fresh MOU, is not required to be given effect to. Consequently, it may be held that the MOU dated 15th May, 2002, continues to be valid and subsisting between the State of Orissa and Bhushan Power & Steel Ltd. 28. On the question of Rule 59 of the MC Rules, which formed the basis of the State Governments decision to reject the Appellants application for being recommended to the Central Government for grant of a mining lease, Mr. Rohatgi submitted that such recommendations had been made by the State Government in favour of other applicants as well, such as M/s. S.M.C. Power Generation Ltd., M/s. Neepaz Metalics, M/s. Sree Metaliks and M/s. Deepak Steel & Power. Therefore, there was no reason to deny the same benefits to the Appellants as well.29. Appearing for the Intervener, M/s. Jindal Steels Ltd., Mr. K.V. Vishwanathan, learned Senior Advocate, submitted that so long as any allotment made in favour of the Appellants did not impinge on the allotment made in favour of M/s. Jindal Steels Ltd., it could have no grievance against a separate allotment being made in favour of the Appellants. 30. The mutual settlement of the disputes between the members of the Bhushan Group has altered the situation considerably, since BSSL has withdrawn its claim under the MOU dated 15th May, 2002, and has declared that the said MOU was and had always been executed by the State Government in favour of Bhushan Power & Steel Ltd., which had set up its steel plant at Lapanga. As indicated hereinbefore, although, the MOU was entered into by the State Government with the Bhushan Group for setting up a steel plant at Lapanga, at a later stage, BSSL also laid claim under the MOU for setting up a separate steel plant at Mehramandali and a suggestion was also made for execution of a fresh MOU between the State Government and BSSL to this effect.31. Pursuant to the MOU with Bhushan Limited, the State Government had not only allotted land for the setting up of the steel plant at Lapanga, it had even extended all help for the commissioning of the plant, which, in fact, had already started functioning. However, it is the claim made by BSSL under the MOU executed on 15th May, 2002, that had created obstructions in the setting up of the steel plant at Lapanga. Despite having allotted land and granted sanction to Bhushan Limited to take steps for construction of the said plant, it was subsequently contended that the application filed by Bhushan Limited was premature and could not, therefore, be acted upon. Specific instances have been mentioned hereinabove of the steps taken by the various departments in extending cooperation to Bhushan Limited to set up its steel plant at Lapanga. To now turn around and take a stand that the application made by Bhushan Limited was premature, is not only unreasonable, but completely unfair to Bhushan Limited, who have already invested large sums of money in setting up the plant. The State Government had, on its own volition, entered into the MOU with Bhushan Limited on 15th May, 2002, and had even agreed to request the Central Government to allot mining areas and coal blocks for operating the steel plant. Whatever differences that may have resulted on account of the dispute within the Bhushan Group, which could have led to the rethinking on the part of the State Government, have now been laid to rest by virtue of the settlement arrived at between the Bhushan Limited (now BPSL) and BSSL. The State Government has also accepted the said position. In addition to the above, the action taken by the State Government appears to us to be highly unreasonable and arbitrary and also attracts the doctrine of legitimate expectation. There is no denying the fact that the Appellants have altered their position to their detriment in accordance with the MOU dated 15th May, 2002. Whatever may have been the arrangement subsequently arrived at between the State Government and BSSL, the original MOU dated 15th May, 2002, continued to be in existence and remained operative.32. The State Government appears to have acted arbitrarily in requiring Bhushan Limited to enter into a separate MOU, notwithstanding the existence of the MOU dated 15th May, 2002, which, as mentioned hereinabove, had been acted upon by the parties.33. In the light of the above, the High Court erred in holding that it could not interfere with the decision of the State Government calling upon the Appellants to sign a fresh MOU with the Government, during subsistence of the earlier MOU. Since the State Government has already made allotments in favour of others in relaxation of the Mineral Concession Rules, 1960, under Rule 59(2) thereof, no cogent ground had been made out on behalf of the State to deny the said privilege to the Appellants as well. 34. ### Response: 1

UNION OF INDIA Vs. NARESHKUMAR BADRIKUMAR JAGAD

decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction. 48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government. 49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open. 50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents.

1[ds]19. Reverting to the question of whether Union of India has locus to file the review petition, we must immediately advert to Section 114 of the Code of Civil Procedure ( CPC) which, inter alia, postulates that any person considering himself aggrieved would have locus to file a review petition. Order XLVII of CPC restates the position that any person considering himself aggrieved can file a review petition. Be that as it may, the Supreme Court exercises review jurisdiction by virtue of Article 137 of the Constitution which predicates that the Supreme Court shall have the power to review any judgment pronounced or order made by it. Besides, the Supreme Court has framed Rules to govern review petitions. Notably, neither Order XLVII of CPC nor Order XLVII of the Supreme Court Rules limits the remedy of review only to the parties to the judgment under review. Therefore, we have no hesitation in enunciating that even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respectIt is indisputable that the management of Podar Mills-Textile Undertaking was taken over by the Central Government after the commencement of the 1983 Act. The scope of management would obviously include possession and permissible use of the suit property of the Textile Undertaking so taken over. In due course, the 1995 Act came into force. As a consequence of Section 3 of this Act, the right, title and interest of the owners of the subject Textile Undertaking (Podar Mills Ltd.) including the statutory tenancy rights in relation to the suit property stood transferred to and vested absolutely in the Central Government. By the same provision, vide sub-section (2) thereof, the Textile Undertaking which stood vested in the Central Government immediately thereafter stood transferred to and vested in the National Textile Corporation. That included subsisting statutory tenancy rights in respect of the suit property enjoyed by the concerned Textile Undertaking. However, Section 3 stands amended by virtue of the 2014 Act. That amendment by a legal fiction is deemed to have been inserted into the 1995 Act w.e.f. 1 st January, 1994. The purport of the amended sub-sections (3) and (4), inserted in section 3 is that the leasehold rights of the Textile Undertaking would continue to remain vested in the Central Government and no Court could exercise jurisdiction to order divestment from the NTC of the property vested in it by the Central Government. In addition, the Amendment Act of 2014 has introduced Section 39 in the 1995 Act, titled as Validation. We shall dilate on the efficacy of these provisions a little later21. Suffice it to observe that since Union of India is asseverating that the suit property had vested absolutely in the Central Government and continues to so vest in it by virtue of a legal fiction in the Validation Act 2014, would be justified in contending that it is a person aggrieved and has locus to point out that the decree for possession of the suit premises against NTC could not have been passed and in any case, the same could not be enforced in law. It is an inexecutable decree and including the undertaking given by NTC, assuming that the concerned court had jurisdiction to pass such a decree24. The grounds for review are specified in clause (1) noted above. The factual scenario in the present case is certainly not ascribable to discovery of new or important matters or evidence which was available or existing at the time of the decree but could not be produced despite exercise of due diligence. In the present case, the asseveration of the review petitioner is about the mistake or error apparent on the face of the record committed by the Court and more particularly founded on the effect of the subsequent enactment of Validation Act 2014 which completely changes the status of the parties, namely, Union of India and NTC qua the suit property and bars the enforcement of any decree and including the undertaking given to the Court by NTC25. Ordinarily, enactment of a subsequent legislation by itself cannot be the basis to review the judgment already rendered by the Court. But the argument of the review petitioner proceeds on the premise that the subsequent legislation has completely altered the status of the parties retrospectively qua the suit property with effect from 1 st April, 1994 by a legal fiction, as a result of which the cause of action against NTC as referred to in the subject suit had become non¬ existent; and including any decree or order passed against NTC or for that matter, an undertaking filed by NTC in any court or tribunal or authority has been rendered unenforceable by operation of law and cannot be continued or taken forward. In other words, even if a valid decree has been passed against NTC, the same had become inexecutable by operation of law27. Applying the underlying principle and as jurisdictional issues have been raised which are essentially founded on the law enacted by the Parliament with retrospective effect containing a legal fiction and for doing complete justice to the parties, besides the power of review under Article 137 of the Constitution, it is open to this Court to exercise its plenary power under Article 142 of the Constitution28. Reverting to the judgment under review, it is noticed that the provisions of the 1983 Act and 1995 Act have been generally adverted to while dealing with the plea taken by the appellant NTC that it was in possession of the suit property merely as an agent of the Central Government. However, the Court declined to entertain that plea of NTC as it was not so specifically pleaded in the written statement. The Court then concluded that the appellant NTC was neither the Government nor Government Department nor Agent of the Central Government in the context of the Maharashtra Rent Control Act, 1999. That view has been taken in reference to the 1983 Act and the un-amended provisions of 1995 Act. Indeed, the review petitioners would argue that on a fair reading of the un-amended provisions contained in 1995 Act and juxtaposed with the provisions of 1983 Act, the inescapable conclusion is that the leasehold rights continued to vest in the Central Government. However, we are not inclined to countenance this argument29. The review petitioners may be justified in pointing out that this Court committed an error apparent on the face of the record in observing that the appellant had never raised the issue before the courts below that the Central Government was the tenant and the appellant was holding the premises merely as an agent; and that a vague plea was taken about the non¬joinder of the parties - which plea was not even pursued before the Trial Court. Those errors, in our opinion, would not affect the final conclusion recorded by this Court in the judgment under review, considering the effect of the provisions as were applicable at the relevant time in the form of un¬ amended Section 3 of the 1995 Act.35. Being a protected or statutory tenant, Podar Mills could be dispossessed from the suit premises by the Trust only on the grounds permissible under that Act by instituting eviction proceedings before the competent Rent Court having exclusive jurisdiction to entertain the dispute between the landlord and tenant, who in turn would then have to record its satisfaction about the entitlement of the landlord to recover possession of the suit property. The right so enjoyed by the Podar Mills Ltd. stood transferred to and vested in the Central Government with effect from 1 st April, 1994. Further, by virtue of amended Section 3 of the 1995 Act, by operation of law, the rights of the Textile Undertaking, in respect of the suit property, of being a statutory or protected tenant, continued to vest in the Central Government even after the coming into force of the 1999 Act and repeal of the 1947 Act.36. As aforementioned, since the Central Government continued to remain as the protected or statutory tenant in respect of the suit property w.e.f. 1 st April, 1994, the fact that the appellant NTC was carrying on its activities therein would not extricate the landlord (Trust) from initiating eviction proceedings against the real tenant, namely, the Central Government or Union of India; and such eviction proceedings could be maintained only before the jurisdictional Rent Court having exclusive jurisdiction to decide any dispute between the landlord and tenant. The present suit, however, came to be filed only against the appellant NTC and that too before the jurisdictional civil court under the Transfer of Property Act. It is obvious that the Trust acted on the legal advice and instituted the present suit, despite having filed two suits (namely, TER Suit 680/1568 of 1995 and RAD Suit 955/1997) in earlier point of time, for possession of the suit property, in both of which Union of India was made party¬defendant. But those suits were eventually dismissed for non¬prosecution and withdrawn, respectively, during the pendency of the subject suit, for reasons best known to the Trust37. To put it differently, the present suit instituted by the Trust under the provisions of the Transfer of Property Act, which culminated with the decree of eviction, affirmed up to this Court vide judgment under review, has been rendered without jurisdiction, by operation of law. This being the position after coming into force of the Validation Act 2014 and in particular, the purport of Section 39 as inserted, the decree so passed or undertaking given by NTC cannot be continued or enforced38. According to the learned counsel for the respondents, the amended provision introduced by the Validation Act 2014 has no application to the present case. This contention is founded on the interpretation of the expression leasehold rights of the Textile Undertaking. It is argued that this expression pre¬ supposes that there must be an existing or subsisting leasehold rights. Only such right would be governed by the amended provision. To buttress this submission, reliance is placed on Section 4 of the 1995 Act which explicitly adverts to different types of rights enjoyed by the Textile Undertaking. Leaseholds is one such right separately noted. Since there was no subsisting leasehold right enuring in favour of Podar Mills, inevitably no such right vested in the Central Government. Whereas, the right transferred to and vested in the Central Government under sub-section (1) is only that of a protected or statutory tenant enjoyed by Podar Mills at the relevant time i.e. 1 st April, 1994. That right vested in the Central Government is not saved in terms of sub¬section (3). Resultantly, the right of a protected or statutory tenant vested in Central Government stood transferred to and vested in NTC in terms of sub-section (2) and continued to remain so vested in the NTC. If so, the relief of eviction or possession could be pursued by the Trust only against NTC. Further, admittedly, NTC did not enjoy the status of a statutory or protected tenant after coming into force of the 1999 Act and repeal of the 1947 Act. In that situation, the subject suit for possession against the appellant NTC came to be justly filed before the civil court under the provisions of the Transfer of Property Act39. This argument, in our opinion, is an attempt to over¬ simplify the purport of Section 3(3), if not indulging in hair¬ splitting of the contextual meaning of the expression leasehold rights therein and in Section 4(1) or elsewhere in the 1995 Act. Section 3(1) refers to right, title and interest of the owner of the Textile Undertaking generally. That encompasses all the rights as are spelt out in Section 4(1) of the Act. One such right can be leasehold rights. Concededly, the expression leasehold rights mentioned in the 1995 Act must be construed as referring to the rights under the Transfer of Property Act, 1882 as well as under the applicable Rent Act recognizing tenancy rights without exception.41. Indeed, if the matter in issue is to be decided dehors the provisions of the applicable Rent Act, then it is possible to say that the expression leasehold rights would be limited to a subsisting lease. However, in the present case, we are required to reckon the status of the Union of India and NTC qua the suit property in the context of the rights accrued in terms of the provision of the Rent Act of 1947 and 1999, respectively. The expression leasehold rights in 1995 Act, obviously, must receive wider meaning so as to encompass tenancy rights flowing from the applicable Rent Act. For, the expression tenancy rights accruing under the Rent Act is analogous to and interchangeable with the expression leasehold rights. There is no reason to exclude the expression statutory right so enjoyed by the owners of the Textile Undertaking from the expression leasehold rights referred to in sub¬section (3), so long as it has not been so expressly excluded42. Considering the legislative intent for enacting the 1995 Act and the Validation Act 2014 also, it is not possible to give a restricted meaning to the expression leasehold rights occurring in sub-section (3) of Section 3, as amended, or elsewhere in the said enactment. Thus, the expression leasehold rights in 1995 Act must include tenancy rights flowing from the provisions of the applicable rent legislation. Any other interpretation would be doing violence to the legislative intent and be a pedantic approach43. According to the respondents, the status of Podar Mills and resultantly, of the Union of India is that of a tenant at sufferance. We have already adverted to the provisions of the concerned Rent Act. From the scheme of the 1947 Act as also in the 1999 Act, it is indisputable that after determination of the lease period, the status of Podar Mills had become that of a protected or statutory tenant under the Rent Act. Thus, it would continue to enjoy tenancy rights stipulated under the concerned Rent Act. Once that status has been acquired by the Central Government by operation of law, the action of eviction, could be only as per the prescribed dispensation under the concerned Rent Act45. In the present case, admittedly, the Trust proceeded on a clear understanding that the rights enjoyed by Podar Mills Ltd. after determination of lease period was that of a protected or statutory tenant within the meaning of the rent legislation (1947 Act). That right had been transferred to and vested in the Central Government by virtue of Section 3(1) of the 1995 Act and continues to so vest in it in terms of Section 3(3) which had come into force w.e.f. 1 st April, 1994 and deemed always to have effect for all purposes as if it had been in force at all material timesWe fail to understand as to how the principle expounded in the reported decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents.

### 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: decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction. 48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government. 49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open. 50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents. ### Response: 1

M/s. Radhakrishna Agarwal and Others Vs. State of Bihar and Others

of the several persons is: selected by the State for a particular contractual transaction. Learned counsel for the appellants submitted that there was a conflict between what was laid down here and the law declared by this Court in Erusian Equipment &Chemicals Ltd.s case (supra). We think that the two cases are distinguishable on facts. The propositions of law laid down in the two cases must be read in the context of facts established in each case. In any event, the cases before us do. not raise any question of discrimination alleged at the stage of entry into the contractual area which could attract the application of Article 14.In the cases before us, allegations on which a violation of Article 14 could be based are neither properly made nor established. Before any adjudication on the question whether Article 14 of the Constitution could possibly be said to have been violated, as between persons governed by similar contracts, they must be properly put in issue and established. Even if the appellants could be said to have raised any aspect of Article 14 of the Constitution and this Article could at all be held to operate within the contractual field whenever the State enters into such contracts, which we gravely doubt, such questions of fact do not appear to have been argued before the High Court. And, in any event, they are of such a nature that they cannot be satisfactorily decided without a detailed adduction of evidence, which is only possible in ordinary civil suits, to establish that the State, acting in its executive capacity through its Officers, has discriminated between parties identically situated. On the allegations and affidavit evidence before us we cannot reach such a conclusion. Moreover, as we have already indicated earlier, the correct view is that it is the contract and not the executive power, regulated by the Constitution, which governs the relations of the parties on facts apparent in the cases before us.15. The real object of the appellants seems to be to hold up any adjudication on the cases before us by taking shelter behind Article 14 so that the stay orders obtained by them, presumably on representations made to this Court that no aspect of enforcement of Article 14 of the Constitution was involved. We think that to accede to the prayer on behalf of the appellants to adjourn the hearing of these cases until after the Emergency is lifted and. yet to continue the stay orders is to permit a circumvention of the Constitutional mandate contained in Article 359 and to countenance a gross abuse of the processes of the Court.A rather desparate argument which has been addressed to us on behalf of the appellants is that they were entitled to an opportunity to. show cause against the cancellation of the leases. It was urged, on the strength of A.K. Kraipak &Ors. etc. v. Union of India &Ors., ([1970] 1 S.C.R. 457.) that the distinction made between administrative and quasi-judicial action is thin and a vanishing one. This argument appears to. u s to be wholly irrelevant inasmuch as a question of the distinction between an administrative and quasi-judicial decision can only arise in the exercise of powers under statutory provisions. Rules of natural just ice are attached to the performance of certain functions regulated by statutes or rules made thereunder involving decisions affecting rights of parties. When a contract is sought to be terminated by the Officers of the State, purporting to act under the terms of an agreement between parties, such action is not taken in purported exercise of a statutory power at all.16. In Additional District Magistrate, Jabalpur, v. Shivakant Shukla, (A.I.R. 1976 S.C. 1207 at 1288.)it was pointed out (at p. 1288):"The principles of natural justice which are so implied must always hang, if one may so put it, on pegs of statutory provisions or necessarily follow from them. They can also be said sometimes to be implied as necessary parts of the protection of equality and equal protection of laws conferred by Article 14 of the Constitution where one of the pillars of Diceys principles of the Rule of Law is found embodied. Sometimes, they may be implied and read the legislation dealing with rights protected by Article 19 of the Constitution. They could at times, be so implied because restrictions on rights conferred by Article 19 of the Constitution have to be reasonable".17. The limitations imposed by rules of natural justice cannot operate upon powers which are governed by the terms of an agreement exclusively. The only question which normally arises in such cases is whether the action complained of is or is not in consonence with the terms of the agreement. As already pointed out by us, even if by some stretch of imagination some case of unequal or discriminatory treatment by the officers of the State of persons governed by similar contracts is sought to be made out, a satisfactory adjudication upon the unusual facts of such a case would necessitate proper pleadings supported by accept- able evidence. In that case, the interim stay order or injunction could not be justified at all because so long as a Residential Order, under Article 359 of the Constitution, is operative, the enforcement of fundamental rights falling under Article 14 is suspended. In such cases even if a petition or suit is entertained and kept pending no stay order could be passed because that would amount to indirectly enforcing the fundamental rights conferred by Article 14 of the Constitution. It is only where a prima facie case for an injunction or stay can be made out, quite apart from a right covered by Article 14 of the Constitution or by any other fundamental right whose enforcement may have been suspended, that an injunction or stay could be granted at all on suitable terms. As we have already said it was on such an assumption that this Court had, apparently, granted the interim stay which must now be discharged.18.

0[ds]It is thus clear that the Erusian Equipment &Chemicals Ltd.s case (supra) involved discrimination at the very threshold or at the time of entry into the field of consideration of persons. with whom the Government could contract at all. At this stage, no doubt, the State acts purely in its executive capacity and is bound by the obligations which dealings of the State with the individual citizens import into every transaction entered into in exercise of its constitutional powers. But, after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of Article 14 or of any other constitutional provision when the State of its agents, purporting to act within this field, perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart fromthe cases before us the contracts do not contain any statutory terms or obligations and no statutory power of obligation which could attract the application of Article 14 of the Constitution is involved here. Even in cases where the question is of choice or consideration of competing claims before an entry into the field of contract facts have to be investigated and found before the question , of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can , only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. Such proceedings are summary proceedings reserved for extraordinary cases where the exceptional and what are described as, perhaps not quite accurately, "prerogative" powers of the Court are invoked. We are certain that the cases before us are not such in which powers under Article 226 of the Constitution could bedo not think that any of these cases could assist the appellants or is at all relevant. None of these cases lays down that, when the State or the officers purport to operate within the contractual field and the only grievance of the citizen could be that the contract between the parties is broken by the action complained of, the appropriate remedy is by way of a petition under Article 226 of the Constitution and not an ordinary suit. There is a formidable array of authority against any such apropositions of law laid down in the two cases must be read in the context of facts established in each case. In any event, the cases before us do. not raise any question of discrimination alleged at the stage of entry into the contractual area which could attract the application of Article 14.In the cases before us, allegations on which a violation of Article 14 could be based are neither properly made nor established. Before any adjudication on the question whether Article 14 of the Constitution could possibly be said to have been violated, as between persons governed by similar contracts, they must be properly put in issue and established. Even if the appellants could be said to have raised any aspect of Article 14 of the Constitution and this Article could at all be held to operate within the contractual field whenever the State enters into such contracts, which we gravely doubt, such questions of fact do not appear to have been argued before the High Court. And, in any event, they are of such a nature that they cannot be satisfactorily decided without a detailed adduction of evidence, which is only possible in ordinary civil suits, to establish that the State, acting in its executive capacity through its Officers, has discriminated between parties identically situated. On the allegations and affidavit evidence before us we cannot reach such a conclusion. Moreover, as we have already indicated earlier, the correct view is that it is the contract and not the executive power, regulated by the Constitution, which governs the relations of the parties on facts apparent in the cases beforereal object of the appellants seems to be to hold up any adjudication on the cases before us by taking shelter behind Article 14 so that the stay orders obtained by them, presumably on representations made to this Court that no aspect of enforcement of Article 14 of the Constitution was involved. We think that to accede to the prayer on behalf of the appellants to adjourn the hearing of these cases until after the Emergency is lifted and. yet to continue the stay orders is to permit a circumvention of the Constitutional mandate contained in Article 359 and to countenance a gross abuse of the processes of the Court.A rather desparate argument which has been addressed to us on behalf of the appellants is that they were entitled to an opportunity to. show cause against the cancellation of theof natural just ice are attached to the performance of certain functions regulated by statutes or rules made thereunder involving decisions affecting rights of parties. When a contract is sought to be terminated by the Officers of the State, purporting to act under the terms of an agreement between parties, such action is not taken in purported exercise of a statutory power atlimitations imposed by rules of natural justice cannot operate upon powers which are governed by the terms of an agreement exclusively. The only question which normally arises in such cases is whether the action complained of is or is not in consonence with the terms of the agreement. As already pointed out by us, even if by some stretch of imagination some case of unequal or discriminatory treatment by the officers of the State of persons governed by similar contracts is sought to be made out, a satisfactory adjudication upon the unusual facts of such a case would necessitate proper pleadings supported by accept- able evidence. In that case, the interim stay order or injunction could not be justified at all because so long as a Residential Order, under Article 359 of the Constitution, is operative, the enforcement of fundamental rights falling under Article 14 is suspended. In such cases even if a petition or suit is entertained and kept pending no stay order could be passed because that would amount to indirectly enforcing the fundamental rights conferred by Article 14 of the Constitution. It is only where a prima facie case for an injunction or stay can be made out, quite apart from a right covered by Article 14 of the Constitution or by any other fundamental right whose enforcement may have been suspended, that an injunction or stay could be granted at all on suitable terms. As we have already said it was on such an assumption that this Court had, apparently, granted the interim stay which must now be discharged.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: of the several persons is: selected by the State for a particular contractual transaction. Learned counsel for the appellants submitted that there was a conflict between what was laid down here and the law declared by this Court in Erusian Equipment &Chemicals Ltd.s case (supra). We think that the two cases are distinguishable on facts. The propositions of law laid down in the two cases must be read in the context of facts established in each case. In any event, the cases before us do. not raise any question of discrimination alleged at the stage of entry into the contractual area which could attract the application of Article 14.In the cases before us, allegations on which a violation of Article 14 could be based are neither properly made nor established. Before any adjudication on the question whether Article 14 of the Constitution could possibly be said to have been violated, as between persons governed by similar contracts, they must be properly put in issue and established. Even if the appellants could be said to have raised any aspect of Article 14 of the Constitution and this Article could at all be held to operate within the contractual field whenever the State enters into such contracts, which we gravely doubt, such questions of fact do not appear to have been argued before the High Court. And, in any event, they are of such a nature that they cannot be satisfactorily decided without a detailed adduction of evidence, which is only possible in ordinary civil suits, to establish that the State, acting in its executive capacity through its Officers, has discriminated between parties identically situated. On the allegations and affidavit evidence before us we cannot reach such a conclusion. Moreover, as we have already indicated earlier, the correct view is that it is the contract and not the executive power, regulated by the Constitution, which governs the relations of the parties on facts apparent in the cases before us.15. The real object of the appellants seems to be to hold up any adjudication on the cases before us by taking shelter behind Article 14 so that the stay orders obtained by them, presumably on representations made to this Court that no aspect of enforcement of Article 14 of the Constitution was involved. We think that to accede to the prayer on behalf of the appellants to adjourn the hearing of these cases until after the Emergency is lifted and. yet to continue the stay orders is to permit a circumvention of the Constitutional mandate contained in Article 359 and to countenance a gross abuse of the processes of the Court.A rather desparate argument which has been addressed to us on behalf of the appellants is that they were entitled to an opportunity to. show cause against the cancellation of the leases. It was urged, on the strength of A.K. Kraipak &Ors. etc. v. Union of India &Ors., ([1970] 1 S.C.R. 457.) that the distinction made between administrative and quasi-judicial action is thin and a vanishing one. This argument appears to. u s to be wholly irrelevant inasmuch as a question of the distinction between an administrative and quasi-judicial decision can only arise in the exercise of powers under statutory provisions. Rules of natural just ice are attached to the performance of certain functions regulated by statutes or rules made thereunder involving decisions affecting rights of parties. When a contract is sought to be terminated by the Officers of the State, purporting to act under the terms of an agreement between parties, such action is not taken in purported exercise of a statutory power at all.16. In Additional District Magistrate, Jabalpur, v. Shivakant Shukla, (A.I.R. 1976 S.C. 1207 at 1288.)it was pointed out (at p. 1288):"The principles of natural justice which are so implied must always hang, if one may so put it, on pegs of statutory provisions or necessarily follow from them. They can also be said sometimes to be implied as necessary parts of the protection of equality and equal protection of laws conferred by Article 14 of the Constitution where one of the pillars of Diceys principles of the Rule of Law is found embodied. Sometimes, they may be implied and read the legislation dealing with rights protected by Article 19 of the Constitution. They could at times, be so implied because restrictions on rights conferred by Article 19 of the Constitution have to be reasonable".17. The limitations imposed by rules of natural justice cannot operate upon powers which are governed by the terms of an agreement exclusively. The only question which normally arises in such cases is whether the action complained of is or is not in consonence with the terms of the agreement. As already pointed out by us, even if by some stretch of imagination some case of unequal or discriminatory treatment by the officers of the State of persons governed by similar contracts is sought to be made out, a satisfactory adjudication upon the unusual facts of such a case would necessitate proper pleadings supported by accept- able evidence. In that case, the interim stay order or injunction could not be justified at all because so long as a Residential Order, under Article 359 of the Constitution, is operative, the enforcement of fundamental rights falling under Article 14 is suspended. In such cases even if a petition or suit is entertained and kept pending no stay order could be passed because that would amount to indirectly enforcing the fundamental rights conferred by Article 14 of the Constitution. It is only where a prima facie case for an injunction or stay can be made out, quite apart from a right covered by Article 14 of the Constitution or by any other fundamental right whose enforcement may have been suspended, that an injunction or stay could be granted at all on suitable terms. As we have already said it was on such an assumption that this Court had, apparently, granted the interim stay which must now be discharged.18. ### Response: 0

SOPAN(DEAD) THROUGH HIS L.R Vs. SYED NABI

contend that the subsequent document would rebut the presumption. In so far as the legal position relating to the manner in which the document is to be construed, we notice that this Court in the case of Dharmaji Shankar Shinde & Ors. vs. Rajaram Sripad Joshi (D) Lrs. and Ors. (2019) 6 SCALE 682 had considered the entire conspectus of the provision contained in Section 58(c) with reference even to the decisions relied upon by the learned counsel for the plaintiff and had arrived at the conclusion that a sale with a mere condition of retransfer is not a mortgage. It is further held therein that keeping in view the proviso to Section 58(c) if the sale and agreement to repurchase are embodied in separate documents then the transactions cannot be a mortgage by conditional sale irrespective of whether the documents are the contemporaneously executed. It is further held therein that even in the case of a single document the real character of the transaction is to be ascertained from the provisions of the deed viewed in the light of the surrounding circumstances and intention of the parties.8. Keeping in view the enunciation of the legal position, we notice that in the instant case admittedly the claim of the plaintiff is based on the reliance placed on a contemporaneous document at Exh.24. Hence at the outset, it is evident that the case of the plaintiff cannot overcome the rigour of law to term it as a mortgage by conditional sale. That apart even if the nature of the transaction is taken note of and in that context if the sale dated 10 th December, 1968 (Exh.23) is carefully perused, it not only does not indicate any clause to demonstrate it as a mortgage but, on the other hand, refers to the sale consideration, the manner in which it was received and the plaintiff as the vendor by executing the document has assured the defendant that he should enjoy possession of the said land ancestrally which, in other words, is an absolute conveyance. In that background, even if the agreement dated 10 th December, 1968 (Exh.24) is taken note, the same cannot alter recitals in the sale deed to treat the same as a mortgage by conditional sale. At best the said agreement (Exh.24) can only be treated as an agreement whereby the defendant had agreed to reconvey the property subject to the repayment being made as provided thereunder. It is in that circumstance, the document dated 29 th August, 1969 (Exh.14/1) is to be viewed. From a combined reading of Exhibits 24 and 14/1 it would disclose that not only the plaintiff has not repaid the sum of Rs.5,000/- with interest but had received a further sum of Rs.2,224/-, thus in all taking the financial assistance treated as sale consideration to Rs.7,224/-. Hence, if the reconveyance as agreed under Exh.24 was to be effected the said amount was to be repaid on ?Velamavasya? failing which the right of reconveyance would be forfeited and the sale deed would become absolute after which even the right of reconveyance will not be available. Admittedly amount of Rs.2,224/- was not repaid by the plaintiff. In that background, in any event, the document cannot be considered as a mortgage by conditional sale.9. In the above background, if the entire transaction is taken note, since the amount was not repaid the defendant had acquired absolute right to the property. Hence, he had also initiated mutation proceedings to secure the revenue entries relating to the land in his favour. Though the plaintiff had opposed the proceedings the very contention urged herein had been taken note therein and the Tehsildar by the order dated 23 rd July, 1974 (Exh.21) has ordered the revenue entries to be changed to the name of the defendant. Change of mutation in the name of the defendant is a formidable circumstance to show that the Exh.23 is a sale deed conveying absolute right and title to the defendant.10. Though the learned counsel for the plaintiff has relied upon the decision in the case of Bhimabai Mahadeo Kambekar vs. Arthur Import and Export Co., (2019) 3 SCC 191 to contend that the mutation of land in the revenue records does not create or extinguish the title for such land, nor has it any presumptive value on the title, the said decision would not be of relevance in the present context as the mutation proceeding becomes relevant in the instant proceedings though not for the purpose of title. We say so only to indicate that in the present facts, while construing the nature of the transaction and while considering as to whether the plaintiff had a right of redemption as a mortgagor, the fact that the defendant had acted upon the sale deed dated 10 th December, 1968 on the same becoming absolute in view of the reconveyance not being affected pursuant to the agreement dated 10 th December, 1968 and in that circumstance, the right was exercised to secure the mutation order pertaining to the land is to be treated as a relevant circumstance. Further, though such mutation order was passed on 23 rd July, 1974 in a proceeding in the presence of the plaintiff the said order was not assailed before an appropriate forum and it is only in the year 1980 the suit in question came to be filed.11. In the above circumstance the suit seeking redemption of mortgage was not sustainable. If at all the agreement of reconveyance (Exh.24) was to be pressed into service, the appropriate course ought to have been for the plaintiff to institute a suit seeking for the relief of specific performance. In such suit the consideration would be on the touchstone of the principles required to be satisfied as governed under the provisions of the Specific Relief Act. To that effect there should be appropriate pleading and evidence in support of the contentions which is not presently satisfied as the suit is instituted on a misconception.

1[ds]5. From a perusal of the proviso to Section 58(c) as emphasised, it indicates that no transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the sale. Therefore, any recital relating to mortgage or the transaction being in the nature of a conditional sale should be an intrinsic part of the very sale deed which will be the subject matter. In that background, a perusal of the document at Exhibit 23, namely, the sale deed dated 10 th December, 1968 would make it clear that the document does not disclose that the transaction is one of mortgage or that of a conditional sale. However, the issue as to whether it should be construed as mortgage has presently arisen since the agreement dated 10 th December, 1968 at Exhibit 24 being a contemporaneous document is relied upon by the plaintiff to claim that the same indicates that the transaction is a mortgage and the relationship of debtor and the creditor is established by the said document. In addition, the document which is also to be noticed is at Exhibit 14/1 dated 29 th August, 1969. It is no doubt true that in the document at Exhibit 24 it depicts that the sale deed is reconveyable when the plaintiff would repay Rs.5,000/- to the defendant and the land would be retransferred. It also indicates that the interest of Rs.720/- is agreed to be paid every year on the day of ?Gudi Padwa?.Keeping in view the enunciation of the legal position, we notice that in the instant case admittedly the claim of the plaintiff is based on the reliance placed on a contemporaneous document at Exh.24. Hence at the outset, it is evident that the case of the plaintiff cannot overcome the rigour of law to term it as a mortgage by conditional sale. That apart even if the nature of the transaction is taken note of and in that context if the sale dated 10 th December, 1968 (Exh.23) is carefully perused, it not only does not indicate any clause to demonstrate it as a mortgage but, on the other hand, refers to the sale consideration, the manner in which it was received and the plaintiff as the vendor by executing the document has assured the defendant that he should enjoy possession of the said land ancestrally which, in other words, is an absolute conveyance. In that background, even if the agreement dated 10 th December, 1968 (Exh.24) is taken note, the same cannot alter recitals in the sale deed to treat the same as a mortgage by conditional sale. At best the said agreement (Exh.24) can only be treated as an agreement whereby the defendant had agreed to reconvey the property subject to the repayment being made as provided thereunder. It is in that circumstance, the document dated 29 th August, 1969 (Exh.14/1) is to be viewed. From a combined reading of Exhibits 24 and 14/1 it would disclose that not only the plaintiff has not repaid the sum of Rs.5,000/- with interest but had received a further sum of Rs.2,224/-, thus in all taking the financial assistance treated as sale consideration to Rs.7,224/-. Hence, if the reconveyance as agreed under Exh.24 was to be effected the said amount was to be repaid on ?Velamavasya? failing which the right of reconveyance would be forfeited and the sale deed would become absolute after which even the right of reconveyance will not be available. Admittedly amount of Rs.2,224/- was not repaid by the plaintiff. In that background, in any event, the document cannot be considered as a mortgage by conditional sale.9. In the above background, if the entire transaction is taken note, since the amount was not repaid the defendant had acquired absolute right to the property. Hence, he had also initiated mutation proceedings to secure the revenue entries relating to the land in his favour. Though the plaintiff had opposed the proceedings the very contention urged herein had been taken note therein and the Tehsildar by the order dated 23 rd July, 1974 (Exh.21) has ordered the revenue entries to be changed to the name of the defendant. Change of mutation in the name of the defendant is a formidable circumstance to show that the Exh.23 is a sale deed conveying absolute right and title to the defendant.10. Though the learned counsel for the plaintiff has relied upon the decision in the case of Bhimabai Mahadeo Kambekar vs. Arthur Import and Export Co., (2019) 3 SCC 191 to contend that the mutation of land in the revenue records does not create or extinguish the title for such land, nor has it any presumptive value on the title, the said decision would not be of relevance in the present context as the mutation proceeding becomes relevant in the instant proceedings though not for the purpose of title. We say so only to indicate that in the present facts, while construing the nature of the transaction and while considering as to whether the plaintiff had a right of redemption as a mortgagor, the fact that the defendant had acted upon the sale deed dated 10 th December, 1968 on the same becoming absolute in view of the reconveyance not being affected pursuant to the agreement dated 10 th December, 1968 and in that circumstance, the right was exercised to secure the mutation order pertaining to the land is to be treated as a relevant circumstance. Further, though such mutation order was passed on 23 rd July, 1974 in a proceeding in the presence of the plaintiff the said order was not assailed before an appropriate forum and it is only in the year 1980 the suit in question came to be filed.11. In the above circumstance the suit seeking redemption of mortgage was not sustainable. If at all the agreement of reconveyance (Exh.24) was to be pressed into service, the appropriate course ought to have been for the plaintiff to institute a suit seeking for the relief of specific performance. In such suit the consideration would be on the touchstone of the principles required to be satisfied as governed under the provisions of the Specific Relief Act. To that effect there should be appropriate pleading and evidence in support of the contentions which is not presently satisfied as the suit is instituted on a misconception.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: contend that the subsequent document would rebut the presumption. In so far as the legal position relating to the manner in which the document is to be construed, we notice that this Court in the case of Dharmaji Shankar Shinde & Ors. vs. Rajaram Sripad Joshi (D) Lrs. and Ors. (2019) 6 SCALE 682 had considered the entire conspectus of the provision contained in Section 58(c) with reference even to the decisions relied upon by the learned counsel for the plaintiff and had arrived at the conclusion that a sale with a mere condition of retransfer is not a mortgage. It is further held therein that keeping in view the proviso to Section 58(c) if the sale and agreement to repurchase are embodied in separate documents then the transactions cannot be a mortgage by conditional sale irrespective of whether the documents are the contemporaneously executed. It is further held therein that even in the case of a single document the real character of the transaction is to be ascertained from the provisions of the deed viewed in the light of the surrounding circumstances and intention of the parties.8. Keeping in view the enunciation of the legal position, we notice that in the instant case admittedly the claim of the plaintiff is based on the reliance placed on a contemporaneous document at Exh.24. Hence at the outset, it is evident that the case of the plaintiff cannot overcome the rigour of law to term it as a mortgage by conditional sale. That apart even if the nature of the transaction is taken note of and in that context if the sale dated 10 th December, 1968 (Exh.23) is carefully perused, it not only does not indicate any clause to demonstrate it as a mortgage but, on the other hand, refers to the sale consideration, the manner in which it was received and the plaintiff as the vendor by executing the document has assured the defendant that he should enjoy possession of the said land ancestrally which, in other words, is an absolute conveyance. In that background, even if the agreement dated 10 th December, 1968 (Exh.24) is taken note, the same cannot alter recitals in the sale deed to treat the same as a mortgage by conditional sale. At best the said agreement (Exh.24) can only be treated as an agreement whereby the defendant had agreed to reconvey the property subject to the repayment being made as provided thereunder. It is in that circumstance, the document dated 29 th August, 1969 (Exh.14/1) is to be viewed. From a combined reading of Exhibits 24 and 14/1 it would disclose that not only the plaintiff has not repaid the sum of Rs.5,000/- with interest but had received a further sum of Rs.2,224/-, thus in all taking the financial assistance treated as sale consideration to Rs.7,224/-. Hence, if the reconveyance as agreed under Exh.24 was to be effected the said amount was to be repaid on ?Velamavasya? failing which the right of reconveyance would be forfeited and the sale deed would become absolute after which even the right of reconveyance will not be available. Admittedly amount of Rs.2,224/- was not repaid by the plaintiff. In that background, in any event, the document cannot be considered as a mortgage by conditional sale.9. In the above background, if the entire transaction is taken note, since the amount was not repaid the defendant had acquired absolute right to the property. Hence, he had also initiated mutation proceedings to secure the revenue entries relating to the land in his favour. Though the plaintiff had opposed the proceedings the very contention urged herein had been taken note therein and the Tehsildar by the order dated 23 rd July, 1974 (Exh.21) has ordered the revenue entries to be changed to the name of the defendant. Change of mutation in the name of the defendant is a formidable circumstance to show that the Exh.23 is a sale deed conveying absolute right and title to the defendant.10. Though the learned counsel for the plaintiff has relied upon the decision in the case of Bhimabai Mahadeo Kambekar vs. Arthur Import and Export Co., (2019) 3 SCC 191 to contend that the mutation of land in the revenue records does not create or extinguish the title for such land, nor has it any presumptive value on the title, the said decision would not be of relevance in the present context as the mutation proceeding becomes relevant in the instant proceedings though not for the purpose of title. We say so only to indicate that in the present facts, while construing the nature of the transaction and while considering as to whether the plaintiff had a right of redemption as a mortgagor, the fact that the defendant had acted upon the sale deed dated 10 th December, 1968 on the same becoming absolute in view of the reconveyance not being affected pursuant to the agreement dated 10 th December, 1968 and in that circumstance, the right was exercised to secure the mutation order pertaining to the land is to be treated as a relevant circumstance. Further, though such mutation order was passed on 23 rd July, 1974 in a proceeding in the presence of the plaintiff the said order was not assailed before an appropriate forum and it is only in the year 1980 the suit in question came to be filed.11. In the above circumstance the suit seeking redemption of mortgage was not sustainable. If at all the agreement of reconveyance (Exh.24) was to be pressed into service, the appropriate course ought to have been for the plaintiff to institute a suit seeking for the relief of specific performance. In such suit the consideration would be on the touchstone of the principles required to be satisfied as governed under the provisions of the Specific Relief Act. To that effect there should be appropriate pleading and evidence in support of the contentions which is not presently satisfied as the suit is instituted on a misconception. ### Response: 1

Kunjamma Mathai Vs. Marcelo Fernandes & Others

from Margao towards Curtorim side and when he reached near a culvert at Gogol a motor cycle overtook him with a pillion rider. Before reaching the culvert he saw mini bus coming in the opposite direction proceeding towards Margao. When the motor cycle reached 9 or 10 metres after overtaking him, the rider of the motor cycle who wanted to turn his vehicle to the right to enter another side road, came in collision with the mini bus which was coming in the opposite direction. He went near the spot of the accident and saw that the rider and pillion rider had both sustained injuries. 10. It appears that the Tribunal was impressed that there was no evidence on the side of the claimant, that the rider of the motor cycle had not given a signal that he was turning to the right side on the Gogol road from the main Margao-Curtorim Road. On a correct perspective of the evidence of Ramrai Naik, AW 5 and Listen Fernandes, RW 2, from the fact that the pick-up van dashed the left-hand side of the motor cycle it would suggest that the motor cycle had already diverted itself to come to the Gogol side road and the fact that the pick-up did not stop and, on the contrary, went to the extreme side of the road and fell into a ditch would definitely suggest that the tempo driven by the respondent No. 1 was in excessive speed, a finding which is already rendered by the Tribunal and with which we are in full agreement. It is difficult to appreciate that a motor-cyclist who wants to take a turn to the right side would not have made a signal, more particularly when he sees an oncoming bus. Even on the assumption that the rider of the motor cycle had not indicated that he was proceeding towards the right, from the manner in which the accident has taken place, it is difficult to accept the apportionment of responsibility in the ratio of 60 per cent to Regi and 40 per cent to the respondent No. 1, driver. 11. Before we conclude this aspect of the matter, we may make a reference about the sketchy evidence as to who was riding the motor cycle on the fateful day. Respondent No. 3 has asserted that he was a pillion rider at the time the accident took place Regi was riding the motor cycle. In the claim petition, the appellant averred that Regi was the pillion rider, but then she, however, admits that she had not seen the accident and obviously she was not in Goa. The Tribunal could not reach a finding on the existing material before it as to who was riding. For the view that we finally propose to take in the matter, we do not think that it is necessary to render a finding that either Regi Mathew or respondent No. 3 was riding the motor cycle on that fateful day. The appellant also does not invite us to render such a finding. 12. Coming back to the apportionment of the responsibility, we have already indicated the manner in which the accident took place and how the mini bus driven by respondent No. 1 was driven in excessive speed. Being so, in the absence of any special reasons being assigned by the Tribunal to apportion the liability in the ratio of 6:4, we find it safe to apply the responsibility in the ratio of 50 per cent to Regi and 50 per cent to respondent No. 1. Upon reaching this conclusion the compensation awarded needs to be redeter-mined; we have already adverted earlier that the compensation of Rs. 1,53,000/-was determined and which we have not disturbed and we maintain the same. 13. Mr. Bharne, learned Counsel for respondent No. 2, insurance company, indeed urged that before the institution of this appeal in satisfaction of the award, the insurer had paid a sum of Rs. 62,747.60 and the appellant herself had given a receipt acknowledging the same in full and final settlement of the claim. Mr. Bharne urged that once the appellant herself held out and received compensation in full settlement of her claim, it is not open to the appellant to have instituted the present appeal, nor is it open to this court to entertain the present appeal. We are, however, not enamoured by this submission. The right of appeal is a statutory right given under the Motor Vehicles Act and such a right cannot be taken away. It is not necessary to examine whether the arguments advanced would attract the principle of restraint against litigation which is opposed to law or public policy, for the simple reason that the appellant herself in the memo of appeal has averred in para 3 thereof that because she was in paucity of finance and urgent need of financial aid she accepted the payment from the insurance company. That apart, she has stated that she was pressurized into signing the receipt stating that it was in full and final settlement towards the award. We have already mentioned that the appellant was a resident of Kerala. Her son was employed in Goa and he met with an accident in Margao and died within four days from the date of the accident. This is not a case where the appellant suppressed the passing of the receipt by her and, on the contrary, came out on her own at the first opportunity that she was pressurized into passing the receipt. We are plainly aware that we are administering a welfare statute which is designed to pay compensation to the victims of the accidents or to dependants of the persons who met with tragic accidents. Being so, we are unable to see any force in the submission of the Counsel for the insurance company that this appeal should be defeated upon the so-called receipt stating that appellant has received the amount in full and final settlement towards the impugned award.

1[ds]7. In no manner whatsoever we are able to fault with the compensation determined in the present case as it seems to us that the Tribunal was fair in importing the doctrine of dependency and having regard to the circumstances holding Rs.s the annual loss and without further curtailing the sum, applied the fair multiplier of 10 considering the age of the deceased which was 26 at the time of his death. In our view no grievance can survive upon the computation of Rs. 1,20,000 by way of financial loss insofar as the appellant and her two daughters are concernedA bare look at the evidence of Ramrai Naik, AW 5, shows that he was standing near a gada which is close to the spot of the accident. He saw the bus coming from Curtorim side and the motor cycle coming in the opposite direction. Thereafter, he saw the motor cycle turning towards Gogol and in the meantime, the bus came and dashed the motor cycle. According to him, the bus which dashed the motor cycle came on its extreme left and fell into a ditch and turned turtle. At the end of thef he says that the bus was being driven at a fast speed and it was descending a slight slope10. It appears that the Tribunal was impressed that there was no evidence on the side of the claimant, that the rider of the motor cycle had not given a signal that he was turning to the right side on the Gogol road from the mainm Road. On a correct perspective of the evidence of Ramrai Naik, AW 5 and Listen Fernandes, RW 2, from the fact that thed side of the motor cycle it would suggest that the motor cycle had already diverted itself to come to the Gogol side road and the fact that thep did not stop and, on the contrary, went to the extreme side of the road and fell into a ditch would definitely suggest that the tempo driven by the respondent No. 1 was in excessive speed, a finding which is already rendered by the Tribunal and with which we are in full agreement. It is difficult to appreciate that at who wants to take a turn to the right side would not have made a signal, more particularly when he sees an oncoming bus. Even on the assumption that the rider of the motor cycle had not indicated that he was proceeding towards the right, from the manner in which the accident has taken place, it is difficult to accept the apportionment of responsibility in the ratio of 60 per cent to Regi and 40 per cent to the respondent No. 1, driver11. Before we conclude this aspect of the matter, we may make a reference about the sketchy evidence as to who was riding the motor cycle on the fateful day. Respondent No. 3 has asserted that he was a pillion rider at the time the accident took place Regi was riding the motor cycle. In the claim petition, the appellant averred that Regi was the pillion rider, but then she, however, admits that she had not seen the accident and obviously she was not in Goa. The Tribunal could not reach a finding on the existing material before it as to who was riding. For the view that we finally propose to take in the matter, we do not think that it is necessary to render a finding that either Regi Mathew or respondent No. 3 was riding the motor cycle on that fateful day. The appellant also does not invite us to render such a finding12. Coming back to the apportionment of the responsibility, we have already indicated the manner in which the accident took place and how the mini bus driven by respondent No. 1 was driven in excessive speed. Being so, in the absence of any special reasons being assigned by the Tribunal to apportion the liability in the ratio of 6:4, we find it safe to apply the responsibility in the ratio of 50 per cent to Regi and 50 per cent to respondent No. 1. Upon reaching this conclusion the compensation awarded needs to be; we have already adverted earlier that the compensation of Rs.s determined and which we have not disturbed and we maintain the sameWe are, however, not enamoured by this submission. The right of appeal is a statutory right given under the Motor Vehicles Act and such a right cannot be taken away. It is not necessary to examine whether the arguments advanced would attract the principle of restraint against litigation which is opposed to law or public policy, for the simple reason that the appellant herself in the memo of appeal has averred in para 3 thereof that because she was in paucity of finance and urgent need of financial aid she accepted the payment from the insurance company. That apart, she has stated that she was pressurized into signing the receipt stating that it was in full and final settlement towards the award. We have already mentioned that the appellant was a resident of Kerala. Her son was employed in Goa and he met with an accident in Margao and died within four days from the date of the accident. This is not a case where the appellant suppressed the passing of the receipt by her and, on the contrary, came out on her own at the first opportunity that she was pressurized into passing the receipt. We are plainly aware that we are administering a welfare statute which is designed to pay compensation to the victims of the accidents or to dependants of the persons who met with tragic accidents. Being so, we are unable to see any force in the submission of the Counsel for the insurance company that this appeal should be defeated upon thed receipt stating that appellant has received the amount in full and final settlement towards the impugned award.

### Instruction: Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request? ### Input: from Margao towards Curtorim side and when he reached near a culvert at Gogol a motor cycle overtook him with a pillion rider. Before reaching the culvert he saw mini bus coming in the opposite direction proceeding towards Margao. When the motor cycle reached 9 or 10 metres after overtaking him, the rider of the motor cycle who wanted to turn his vehicle to the right to enter another side road, came in collision with the mini bus which was coming in the opposite direction. He went near the spot of the accident and saw that the rider and pillion rider had both sustained injuries. 10. It appears that the Tribunal was impressed that there was no evidence on the side of the claimant, that the rider of the motor cycle had not given a signal that he was turning to the right side on the Gogol road from the main Margao-Curtorim Road. On a correct perspective of the evidence of Ramrai Naik, AW 5 and Listen Fernandes, RW 2, from the fact that the pick-up van dashed the left-hand side of the motor cycle it would suggest that the motor cycle had already diverted itself to come to the Gogol side road and the fact that the pick-up did not stop and, on the contrary, went to the extreme side of the road and fell into a ditch would definitely suggest that the tempo driven by the respondent No. 1 was in excessive speed, a finding which is already rendered by the Tribunal and with which we are in full agreement. It is difficult to appreciate that a motor-cyclist who wants to take a turn to the right side would not have made a signal, more particularly when he sees an oncoming bus. Even on the assumption that the rider of the motor cycle had not indicated that he was proceeding towards the right, from the manner in which the accident has taken place, it is difficult to accept the apportionment of responsibility in the ratio of 60 per cent to Regi and 40 per cent to the respondent No. 1, driver. 11. Before we conclude this aspect of the matter, we may make a reference about the sketchy evidence as to who was riding the motor cycle on the fateful day. Respondent No. 3 has asserted that he was a pillion rider at the time the accident took place Regi was riding the motor cycle. In the claim petition, the appellant averred that Regi was the pillion rider, but then she, however, admits that she had not seen the accident and obviously she was not in Goa. The Tribunal could not reach a finding on the existing material before it as to who was riding. For the view that we finally propose to take in the matter, we do not think that it is necessary to render a finding that either Regi Mathew or respondent No. 3 was riding the motor cycle on that fateful day. The appellant also does not invite us to render such a finding. 12. Coming back to the apportionment of the responsibility, we have already indicated the manner in which the accident took place and how the mini bus driven by respondent No. 1 was driven in excessive speed. Being so, in the absence of any special reasons being assigned by the Tribunal to apportion the liability in the ratio of 6:4, we find it safe to apply the responsibility in the ratio of 50 per cent to Regi and 50 per cent to respondent No. 1. Upon reaching this conclusion the compensation awarded needs to be redeter-mined; we have already adverted earlier that the compensation of Rs. 1,53,000/-was determined and which we have not disturbed and we maintain the same. 13. Mr. Bharne, learned Counsel for respondent No. 2, insurance company, indeed urged that before the institution of this appeal in satisfaction of the award, the insurer had paid a sum of Rs. 62,747.60 and the appellant herself had given a receipt acknowledging the same in full and final settlement of the claim. Mr. Bharne urged that once the appellant herself held out and received compensation in full settlement of her claim, it is not open to the appellant to have instituted the present appeal, nor is it open to this court to entertain the present appeal. We are, however, not enamoured by this submission. The right of appeal is a statutory right given under the Motor Vehicles Act and such a right cannot be taken away. It is not necessary to examine whether the arguments advanced would attract the principle of restraint against litigation which is opposed to law or public policy, for the simple reason that the appellant herself in the memo of appeal has averred in para 3 thereof that because she was in paucity of finance and urgent need of financial aid she accepted the payment from the insurance company. That apart, she has stated that she was pressurized into signing the receipt stating that it was in full and final settlement towards the award. We have already mentioned that the appellant was a resident of Kerala. Her son was employed in Goa and he met with an accident in Margao and died within four days from the date of the accident. This is not a case where the appellant suppressed the passing of the receipt by her and, on the contrary, came out on her own at the first opportunity that she was pressurized into passing the receipt. We are plainly aware that we are administering a welfare statute which is designed to pay compensation to the victims of the accidents or to dependants of the persons who met with tragic accidents. Being so, we are unable to see any force in the submission of the Counsel for the insurance company that this appeal should be defeated upon the so-called receipt stating that appellant has received the amount in full and final settlement towards the impugned award. ### Response: 1

M/S. British Paints (India) Ltd Vs. Its Workmen

standard of health and increase in longevity in this country during the last fifty years that the age of retirement should be fixed at a higher level, and we consider that generally speaking in the present circumstances fixing the age of retirement at 60 years would be fair and proper, unless there are special circumstances justifying fixation of a lower age of retirement.6. Now so far as the clerical and subordinate staff are concerned, we are of opinion that there is no reason for any difference in the age of retirement as between the existing staff and the future staff. Their work is exactly the same, and in the circumstances there should be the same age of retirement.7. As to the factory workmen it is urged that their age of retirement should be fixed at a lower level as work in the factory is more arduous than the work of clerical and subordinate staff, and in this connection reliance is placed on the decision of this Court in Jessop and Co. Ltd., (1964) 1 Lab LJ 451 (SC), where one age was fixed for clerical and subordinate staff and a slightly lower age was fixed for the factory workmen. Here again we are of opinion that generally speaking, there is no reason for making a difference in the age of retirement as between clerical and subordinate staff on the one hand and factory workmen on the other, unless such difference can be justified on cogent and valid grounds. It is only where work in the factory is of a particular arduous nature that there may be reason for fixing a lower age of retirement for factory workmen as compared to clerical and subordinate staff. This appears to have been so in the case of Jessop and Co. Ltd. (1964) 1 Lab LJ 451 (SC), for that was a heavy engineering concern, where presumably work in the factory was much more arduous as compared to the work of clerical and subordinate staff. There might, therefore, have been then some justification for fixing a lower age of retirement for factory workmen in the case of those factories where the work is of a particularly arduous nature. But the present company is a paints manufacturing company and there is in our opinion no reason to suppose that the work in the factory in the present case is particularly arduous as compared to the work of clerical and subordinate staff. We therefore, think that even in the case of future factory workmen in the present concern there is no special reason why the age of retirement should be fixed at a lower level. It is of course always possible for an employer to terminate the services of a workman if he becomes physically or mentally incapable of working before the age of retirement. This power being there, there is no reason to suppose that there will be inefficiency in work on account of fixing the age of retirement at 60 years on the other hand with the age of retirement at 60 years there will be added advantage that more experienced workmen will be available to the management and that would be a cause for greater efficiency. On the whole, therefore, we are of opinion that the age of retirement in the case of factory workmen also in the present company should be fixed at the age of 60 years. We, therefore, modify the award of the tribunal and fix the age of retirement for the clerical and subordinate staff as well as for the factory workmen, whether existing or future, at the age of 60 years.8. We now turn to the gratuity scheme. Two points have been urged on behalf of the company in this connection. The tribunal has fixed five years minimum service in order to enable a workman to earn gratuity. This has been provided in the event of - (a) death of an employee while in service of the company, (b) discharge or voluntary retirement of an employee on grounds of medical unfitness, (c) voluntary retirement or resignation before reaching the age of superannuation, (d) retirement on reaching of age of superannuation, or (e) termination of service by the company for reasons other than misconduct resulting in loss to the company in money and property. The management objects to the minimum period being five years in the case of voluntary retirement or resignation before reaching the age of superannuation. It is contended that gratuity schemes usually provide for a longer minimum of service in the case of voluntary retirement or resignation before reaching the age of superannuation. We think that there is substance in this contention. The reason for providing a longer minimum period for earning gratuity in the case of voluntary retirement or resignation is to see that workmen do not leave one concern after another after putting the short minimum service qualifying for gratuity. A longer minimum in the case of voluntary retirement or resignation makes it more probable that the workmen would stick to the company where they are working. That is why gratuity schemes usually provide for a longer minimum in the case of voluntary retirement or resignation. We may in this connection refer to the Express Newspapers (Private) Ltd. v. Union of India, 1959 SCR 12 at p. 158 : (AIR 1958 SC 578 at p. 629), where a short minimum for voluntary retirement or resignation was struck down.9. Again in Garment Cleaning Works v. Its Workmen (1962) 1 SCR 711 at p. 714: (AIR 1962 SC 673 at p. 675), 10 years minimum was prescribed to enable an employee to claim gratuity if he resigned.10. In Management of Wenger and Co. v. Their Workmen, AIR 1964 SC 864 , a distinction was made between termination of service by the employer and termination resulting from resignation given by an employee. In the first case the minimum was fixed at 5 years in the second the minimum period was fixed at 10 years by this Court.

1[ds]The tribunal as already indicated has fixed the age of retirement at 58 years for clerical and subordinate staff and 55 years for factory workmen and has apparently relied on the decision of this Court in Workmen of Jessop and Co. Ltd. v. Jessop and Co. Ltd.,Lab LJ 451 (SC).3. Now this is a case where there was no age of retirement before there was no age of retirement before the reference was made and the workmen whether at the head office or at the factory were all entitled to work so long as they were physically or mentally fit. So far as the existing workmen are concerned, we think that the tribunal should have fixed the age of retirement at 60 years both for theas well as head office workmen.are of opinion that generally speaking there should not be any difference in the age of retirement of existing workmen and others to be employed in future in a case like the present unless there are special circumstances justifying suchIn the present company so far there is no age of retirement and unless there are valid and cogent reasons for making a difference in the age of retirement of existing workmen and those employed in future, the future workmen should also have the benefit of the same age of superanuation.5. Considering that there has been a general improvement in the standard of health in this country and also considering that longevity has increased, fixation of age of retirement at 60 years appears to us to be quite reasonable in the present circumstances. Age of retirement at 55 years was fixed in the last century in Government service and had become the pattern for fixing the age of retirement everywhere. But time in our opinion has now come considering the improvement in the standard of health and increase in longevity in this country during the last fifty years that the age of retirement should be fixed at a higher level, and we consider that generally speaking in the present circumstances fixing the age of retirement at 60 years would be fair and proper, unless there are special circumstances justifying fixation of a lower age of retirement.6. Now so far as the clerical and subordinate staff are concerned, we are of opinion that there is no reason for any difference in the age of retirement as between the existing staff and the future staff. Their work is exactly the same, and in the circumstances there should be the same age ofagain we are of opinion that generally speaking, there is no reason for making a difference in the age of retirement as between clerical and subordinate staff on the one hand and factory workmen on the other, unless such difference can be justified on cogent and valid grounds. It is only where work in the factory is of a particular arduous nature that there may be reason for fixing a lower age of retirement for factory workmen as compared to clerical and subordinate staff. This appears to have been so in the case of Jessop and Co. Ltd. (1964) 1 Lab LJ 451 (SC), for that was a heavy engineering concern, where presumably work in the factory was much more arduous as compared to the work of clerical and subordinate staff. There might, therefore, have been then some justification for fixing a lower age of retirement for factory workmen in the case of those factories where the work is of a particularly arduous nature. But the present company is a paints manufacturing company and there is in our opinion no reason to suppose that the work in the factory in the present case is particularly arduous as compared to the work of clerical and subordinate staff. We therefore, think that even in the case of future factory workmen in the present concern there is no special reason why the age of retirement should be fixed at a lower level. It is of course always possible for an employer to terminate the services of a workman if he becomes physically or mentally incapable of working before the age of retirement. This power being there, there is no reason to suppose that there will be inefficiency in work on account of fixing the age of retirement at 60 years on the other hand with the age of retirement at 60 years there will be added advantage that more experienced workmen will be available to the management and that would be a cause for greater efficiency. On the whole, therefore, we are of opinion that the age of retirement in the case of factory workmen also in the present company should be fixed at the age of 60 years. We, therefore, modify the award of the tribunal and fix the age of retirement for the clerical and subordinate staff as well as for the factory workmen, whether existing or future, at the age of 60think that there is substance in this contention. The reason for providing a longer minimum period for earning gratuity in the case of voluntary retirement or resignation is to see that workmen do not leave one concern after another after putting the short minimum service qualifying for gratuity. A longer minimum in the case of voluntary retirement or resignation makes it more probable that the workmen would stick to the company where they are working. That is why gratuity schemes usually provide for a longer minimum in the case of voluntary retirement or resignation.is in our opinion force in this contention also.14. In the present case also there is a provident fund scheme in force. So with the introduction of the gratuity scheme, the employees will be getting double retiring benefit. In such circumstances we are of opinion that the tribunal should not have defined basic wages so as to include dearness allowance. Besides as the gratuity scheme is being introduced for the first time in this concern, it would be proper to follow the usual pattern of fixing the quantum of gratuity on basic wages (excluding dearness allowance), specially when there is another retiring benefit in the shape of provident fund already existing in this concern.The workmen have also assailed the gratuity scheme and their case is that they should have been granted 30 days wages as prayed for by them instead of 21 days basic wages fixed by the tribunal. We do not think, there is any case for increasing the quantum of gratuity fixed by the tribunal at 21 days basic wages as modified by us for each completed year of service, for there is a provident fund scheme also in force in this concern and the workmen are thus getting two retiring benefits. No other point has been pressed before us.

### 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: standard of health and increase in longevity in this country during the last fifty years that the age of retirement should be fixed at a higher level, and we consider that generally speaking in the present circumstances fixing the age of retirement at 60 years would be fair and proper, unless there are special circumstances justifying fixation of a lower age of retirement.6. Now so far as the clerical and subordinate staff are concerned, we are of opinion that there is no reason for any difference in the age of retirement as between the existing staff and the future staff. Their work is exactly the same, and in the circumstances there should be the same age of retirement.7. As to the factory workmen it is urged that their age of retirement should be fixed at a lower level as work in the factory is more arduous than the work of clerical and subordinate staff, and in this connection reliance is placed on the decision of this Court in Jessop and Co. Ltd., (1964) 1 Lab LJ 451 (SC), where one age was fixed for clerical and subordinate staff and a slightly lower age was fixed for the factory workmen. Here again we are of opinion that generally speaking, there is no reason for making a difference in the age of retirement as between clerical and subordinate staff on the one hand and factory workmen on the other, unless such difference can be justified on cogent and valid grounds. It is only where work in the factory is of a particular arduous nature that there may be reason for fixing a lower age of retirement for factory workmen as compared to clerical and subordinate staff. This appears to have been so in the case of Jessop and Co. Ltd. (1964) 1 Lab LJ 451 (SC), for that was a heavy engineering concern, where presumably work in the factory was much more arduous as compared to the work of clerical and subordinate staff. There might, therefore, have been then some justification for fixing a lower age of retirement for factory workmen in the case of those factories where the work is of a particularly arduous nature. But the present company is a paints manufacturing company and there is in our opinion no reason to suppose that the work in the factory in the present case is particularly arduous as compared to the work of clerical and subordinate staff. We therefore, think that even in the case of future factory workmen in the present concern there is no special reason why the age of retirement should be fixed at a lower level. It is of course always possible for an employer to terminate the services of a workman if he becomes physically or mentally incapable of working before the age of retirement. This power being there, there is no reason to suppose that there will be inefficiency in work on account of fixing the age of retirement at 60 years on the other hand with the age of retirement at 60 years there will be added advantage that more experienced workmen will be available to the management and that would be a cause for greater efficiency. On the whole, therefore, we are of opinion that the age of retirement in the case of factory workmen also in the present company should be fixed at the age of 60 years. We, therefore, modify the award of the tribunal and fix the age of retirement for the clerical and subordinate staff as well as for the factory workmen, whether existing or future, at the age of 60 years.8. We now turn to the gratuity scheme. Two points have been urged on behalf of the company in this connection. The tribunal has fixed five years minimum service in order to enable a workman to earn gratuity. This has been provided in the event of - (a) death of an employee while in service of the company, (b) discharge or voluntary retirement of an employee on grounds of medical unfitness, (c) voluntary retirement or resignation before reaching the age of superannuation, (d) retirement on reaching of age of superannuation, or (e) termination of service by the company for reasons other than misconduct resulting in loss to the company in money and property. The management objects to the minimum period being five years in the case of voluntary retirement or resignation before reaching the age of superannuation. It is contended that gratuity schemes usually provide for a longer minimum of service in the case of voluntary retirement or resignation before reaching the age of superannuation. We think that there is substance in this contention. The reason for providing a longer minimum period for earning gratuity in the case of voluntary retirement or resignation is to see that workmen do not leave one concern after another after putting the short minimum service qualifying for gratuity. A longer minimum in the case of voluntary retirement or resignation makes it more probable that the workmen would stick to the company where they are working. That is why gratuity schemes usually provide for a longer minimum in the case of voluntary retirement or resignation. We may in this connection refer to the Express Newspapers (Private) Ltd. v. Union of India, 1959 SCR 12 at p. 158 : (AIR 1958 SC 578 at p. 629), where a short minimum for voluntary retirement or resignation was struck down.9. Again in Garment Cleaning Works v. Its Workmen (1962) 1 SCR 711 at p. 714: (AIR 1962 SC 673 at p. 675), 10 years minimum was prescribed to enable an employee to claim gratuity if he resigned.10. In Management of Wenger and Co. v. Their Workmen, AIR 1964 SC 864 , a distinction was made between termination of service by the employer and termination resulting from resignation given by an employee. In the first case the minimum was fixed at 5 years in the second the minimum period was fixed at 10 years by this Court. ### Response: 1

GOVERNMENT OF INDIA & ORS. Vs. ISRO DRIVERS ASSOCIATION

recognition under the rules submitted their applications:- 1. SHAR Employees Association (SEA) 2. SHAR Employees Trade Union (SETU) 3. SHAR Employees Union (SEU) 4. SHAR Antariksh Staff Association (SASA) 26. Out of the above four Associations/Unions, three participated in the process of verification held on 10 th January, 2002. The results of verification of membership in SHAR Centre is as follows:- 1. Total number of employees eligible to participate in the verification process in SHAR Centre 1207 2. Number of employees who actually participate in the verification process 1105 27. The breakup of the numbers of letters of Authorization (i.e. number of employees who subscribed for each association) received on 10 th January, 2002 as a result of the verification of membership is given below :- 1. SHAR Employees Association (SEA) 651 2. SHAR Employees Trade Union (SETU) 327 3. SHAR Antariksh Staff Association (SASA) 124 28. As per the scheme of Rules 1993, service associations – SEA and SETU got the required membership and accordingly recognition was accorded. 29. The primary object of forming service association is to promote the common service interest of its members and the membership of the service association remain restricted to such Government servants having common interest and all group of employees covered under the existing JCM scheme were categorized as a distinct category for forming their association. At the same time, if association/Union is being exclusively permitted to be formed by the group of employees based on job description in the organization such as drivers, stenographers, etc. apart from various category of employees who are working in SDSC SHAR i.e. technical attendants, nursing attendants, technicians, office attendants, radiographers, etc. for the purpose of recognition under the scheme of Rules 1993 treating them to be a distinct category as considered by the Division Bench in the impugned judgment, there is a greater probability that the employees of each of the above mentioned trades/jobs would form into association in each of the centres/units qualifying themselves into distinct category and seek representation in JCM that would not only defeat the purpose of JCM but would lead to groupism obstructing the working atmosphere and neither joint consultation nor consensus would prevail and that will jeopardize the service interest of the government servants. 30. It has come on record that presently the strength of the staff working in various groups is over 16,000. In the given situation, if any group of employees based on their job description is permitted to form an association under the guise of distinct category as prayed, it will indeed have an adverse consequential effect which would never be the intention of the rule making authority while framing the scheme of Rules 1993. Our view is being strengthened noticing Rule 5 (d) which lays down that subsequent association with less than 35% of total number of categories can be recognized if it commands at least 15% of the membership. The respondent confining itself to drivers as members cannot command 15% of the total number of employees covered by the scheme in SDSC SHAR as the sanctioned strength of the drivers (around 160) is less than 15% of the members under the scheme, as a distinct category considering the Group of employees (A,B,C & D) respectively. 31. The Latin maxim noscitur a socilis states this contextual principle, whereby a word or phrase is not to be construed as if it stood alone but in the light of its surroundings – Bennion on Statutory Interpretation, Fifth Edition A-G Prince Ernest Augustus of Hanover [1957] AC 436, Viscount Simonds has opined that a word or phrase in an enactment must always be construed in the light of the surrounding text. …words and particular general words, cannot be read in isolation, their colour and their content are derived from their context. 32. Adverting to the facts of the instant case, the scheme of Rules 1993 clearly manifests that the primary object of the scheme is to promote the common service interest of its members and service association which intends to accord recognition must represent minimum 35% of the total category of employees with a rider that where there is only one association which commands more than 35% membership and another association with second highest membership must be recognized if it commands at least 15% membership. The intention appears to be to avoid plurality of associations which indeed may not be in the overall interest of the Government servants in forming service association on their job description. In this context, the expression distinct category of government servants referred under Rule 5 (c) with its due emphasis in furtherance of the clarification which has been made by the rule making authority is, in fact, supplementing the scheme of rules for its effective and proper implementation which is permissible under the law unless held to the contrary and that was never the case of the respondent at any stage in grouping the classification of posts in group A, B, C and D as a distinct category, is in contravention to Rule 5 (c ) of Rules 1993 and any further sub-classification of posts based on job description is not permissible under the recruitment and conduct rules if permitted under the guise of expression distinct category to form service association, it would defeat the purpose and object with which the scheme of Rules 1993 have been framed according recognition to service association which has been primarily formed with an object of promoting the common service interests of its members at large and the literal interpretation in isolation of the term distinct category made by the Division Bench of the High Court in the impugned judgment granting permission to each group of employees based on job description/trade to claim recognition and form their service association would not only defeat the primary object of the scheme of Rules 1993 but the purpose as well with which the Joint Consultative Machinery has been formed to watch albeit the common service interest of its members/Government servants.

1[ds]17. R5(d)(i) defines the membership of service association who can be granted recognition has been restricted to a distinct category of Government servants having common service interest and represents 35% of total number of category of employees with a proviso that where there is only one association which commands more than 35% membership, another association may be recognized if it commands at least 15% membership and this clearly indicates that the rule making authority intended to avoid plurality of service associations with an object to promote the common service interest of all the group of employees/Government servants.20. The Department of Space, taking assistance from the clarification made by the DOPT vide OM dated 22 nd April, 1994 held its meeting with all the service associations except the respondent agreed that all the employees covered by the JCM scheme of the Department should be treated as single category and any association or Union exclusively formed by certain group of employees based on job description in the organization such as drivers, stenographers, tradesmen, etc. would not qualify for recognition under the Rules 1993 in the Department of Space.21. In furtherance thereof, Department of Space issued Office Memorandum dated 30 th May, 1996 to implement the scheme of Rules 1993 for recognition of service association under the JCM Scheme.22. The application submitted by the first respondent seeking recognition of association based on job description of drivers came to be rejected by the 4 th appellant by communication dated 21 st June, 1999 on the premise that the association has been exclusively formed by a group of employees comprising of drivers on job description would not qualify for recognition under Rules 1993.23. As per the scheme of Rules 1993, it is applicable to such Government servants to whom the Central Civil Services (Conduct) Rules, 1964 are applicable. The Department of Space framed its own disciplinary rules regarding alleged misconduct being committed by the employees for holding disciplinary inquiries under proviso to Article 309 of the Constitution, namely, the Department of Space (Classification, Control & Appeal) Rules, 1976 was further amended in the year 2013. Annexed thereto, schedule has been appended to Rule 30 prescribing the classification of Civil Posts under the Department of Space broadly in four Groups A, B, C and D. The employees who are working in SDSC SHAR i.e. technical attendants, nursing attendants, technicians, office attendants, gardeners, safaiwalas, security guards, canteen attendants, radiographers, pharmacists, lab technicians, nurses, agricultural supervisors, drivers, stenographers etc. are falling in different groups based on their pay scales and job description etc.28. As per the scheme of Rules 1993, service associations – SEA and SETU got the required membership and accordingly recognition was accorded.29. The primary object of forming service association is to promote the common service interest of its members and the membership of the service association remain restricted to such Government servants having common interest and all group of employees covered under the existing JCM scheme were categorized as a distinct category for forming their association. At the same time, if association/Union is being exclusively permitted to be formed by the group of employees based on job description in the organization such as drivers, stenographers, etc. apart from various category of employees who are working in SDSC SHAR i.e. technical attendants, nursing attendants, technicians, office attendants, radiographers, etc. for the purpose of recognition under the scheme of Rules 1993 treating them to be a distinct category as considered by the Division Bench in the impugned judgment, there is a greater probability that the employees of each of the above mentioned trades/jobs would form into association in each of the centres/units qualifying themselves into distinct category and seek representation in JCM that would not only defeat the purpose of JCM but would lead to groupism obstructing the working atmosphere and neither joint consultation nor consensus would prevail and that will jeopardize the service interest of the government servants.30. It has come on record that presently the strength of the staff working in various groups is over 16,000. In the given situation, if any group of employees based on their job description is permitted to form an association under the guise of distinct category as prayed, it will indeed have an adverse consequential effect which would never be the intention of the rule making authority while framing the scheme of Rules 1993. Our view is being strengthened noticing Rule 5 (d) which lays down that subsequent association with less than 35% of total number of categories can be recognized if it commands at least 15% of the membership. The respondent confining itself to drivers as members cannot command 15% of the total number of employees covered by the scheme in SDSC SHAR as the sanctioned strength of the drivers (around 160) is less than 15% of the members under the scheme, as a distinct category considering the Group of employees (A,B,C & D) respectively.31. The Latin maxim noscitur a socilis states this contextual principle, whereby a word or phrase is not to be construed as if it stood alone but in the light of its surroundings – Bennion on Statutory Interpretation, Fifth Edition A-G Prince Ernest Augustus of Hanover [1957] AC 436, Viscount Simonds has opined that a word or phrase in an enactment must always be construed in the light of the surrounding text. …words and particular general words, cannot be read in isolation, their colour and their content are derived from their context.32. Adverting to the facts of the instant case, the scheme of Rules 1993 clearly manifests that the primary object of the scheme is to promote the common service interest of its members and service association which intends to accord recognition must represent minimum 35% of the total category of employees with a rider that where there is only one association which commands more than 35% membership and another association with second highest membership must be recognized if it commands at least 15% membership. The intention appears to be to avoid plurality of associations which indeed may not be in the overall interest of the Government servants in forming service association on their job description. In this context, the expression distinct category of government servants referred under Rule 5 (c) with its due emphasis in furtherance of the clarification which has been made by the rule making authority is, in fact, supplementing the scheme of rules for its effective and proper implementation which is permissible under the law unless held to the contrary and that was never the case of the respondent at any stage in grouping the classification of posts in group A, B, C and D as a distinct category, is in contravention to Rule 5 (c ) of Rules 1993 and any further sub-classification of posts based on job description is not permissible under the recruitment and conduct rules if permitted under the guise of expression distinct category to form service association, it would defeat the purpose and object with which the scheme of Rules 1993 have been framed according recognition to service association which has been primarily formed with an object of promoting the common service interests of its members at large and the literal interpretation in isolation of the term distinct category made by the Division Bench of the High Court in the impugned judgment granting permission to each group of employees based on job description/trade to claim recognition and form their service association would not only defeat the primary object of the scheme of Rules 1993 but the purpose as well with which the Joint Consultative Machinery has been formed to watch albeit the common service interest of its members/Government servants.16. These rules apply to service associations of all Government servants referred to under Rule 3 to be formed primarily with an object of promoting the common service interest of its members and it may be noticed that the expression distinct category referred to under clause (c) of Rule 5 has not been defined under the scheme of Rules 1993.17. R5(d)(i) defines the membership of service association who can be granted recognition has been restricted to a distinct category of Government servants having common service interest and represents 35% of total number of category of employees with a proviso that where there is only one association which commands more than 35% membership, another association may be recognized if it commands at least 15% membership and this clearly indicates that the rule making authority intended to avoid plurality of service associations with an object to promote the common service interest of all the group of employees/Government servants.One set of recruitment rules have been framed by Department of Space for drivers in exercise of powers conferred under proviso to Article 309 of the Constitution called as Department of Space (Staff Car Drivers/Light Vehicle Drivers) Recruitment Rules, 2001 classified drivers in Group C post. For the other category of posts of Assistant, Senior Project Assistant, Personnel Assistant and Private Secretary, their recruitment is regulated by the Rules called the Department of Space (Group B Posts) Recruitment Rules, 2009 and with partial modification, the method of recruitment and designation to the post of Assistant (Group B non-gazetted) called the Department of Space (Assistant) Recruitment Rules, 2016. At some stages, for other purposes, categorization of posts have been made indicating ministerial, non- ministerial, industrial and non-industrial, tenure posts but broadly under the scheme of recruitment rules, the service conditions of employees have been broadly classified in four groups A,B,C & D of which a reference has been made supra.

### 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: recognition under the rules submitted their applications:- 1. SHAR Employees Association (SEA) 2. SHAR Employees Trade Union (SETU) 3. SHAR Employees Union (SEU) 4. SHAR Antariksh Staff Association (SASA) 26. Out of the above four Associations/Unions, three participated in the process of verification held on 10 th January, 2002. The results of verification of membership in SHAR Centre is as follows:- 1. Total number of employees eligible to participate in the verification process in SHAR Centre 1207 2. Number of employees who actually participate in the verification process 1105 27. The breakup of the numbers of letters of Authorization (i.e. number of employees who subscribed for each association) received on 10 th January, 2002 as a result of the verification of membership is given below :- 1. SHAR Employees Association (SEA) 651 2. SHAR Employees Trade Union (SETU) 327 3. SHAR Antariksh Staff Association (SASA) 124 28. As per the scheme of Rules 1993, service associations – SEA and SETU got the required membership and accordingly recognition was accorded. 29. The primary object of forming service association is to promote the common service interest of its members and the membership of the service association remain restricted to such Government servants having common interest and all group of employees covered under the existing JCM scheme were categorized as a distinct category for forming their association. At the same time, if association/Union is being exclusively permitted to be formed by the group of employees based on job description in the organization such as drivers, stenographers, etc. apart from various category of employees who are working in SDSC SHAR i.e. technical attendants, nursing attendants, technicians, office attendants, radiographers, etc. for the purpose of recognition under the scheme of Rules 1993 treating them to be a distinct category as considered by the Division Bench in the impugned judgment, there is a greater probability that the employees of each of the above mentioned trades/jobs would form into association in each of the centres/units qualifying themselves into distinct category and seek representation in JCM that would not only defeat the purpose of JCM but would lead to groupism obstructing the working atmosphere and neither joint consultation nor consensus would prevail and that will jeopardize the service interest of the government servants. 30. It has come on record that presently the strength of the staff working in various groups is over 16,000. In the given situation, if any group of employees based on their job description is permitted to form an association under the guise of distinct category as prayed, it will indeed have an adverse consequential effect which would never be the intention of the rule making authority while framing the scheme of Rules 1993. Our view is being strengthened noticing Rule 5 (d) which lays down that subsequent association with less than 35% of total number of categories can be recognized if it commands at least 15% of the membership. The respondent confining itself to drivers as members cannot command 15% of the total number of employees covered by the scheme in SDSC SHAR as the sanctioned strength of the drivers (around 160) is less than 15% of the members under the scheme, as a distinct category considering the Group of employees (A,B,C & D) respectively. 31. The Latin maxim noscitur a socilis states this contextual principle, whereby a word or phrase is not to be construed as if it stood alone but in the light of its surroundings – Bennion on Statutory Interpretation, Fifth Edition A-G Prince Ernest Augustus of Hanover [1957] AC 436, Viscount Simonds has opined that a word or phrase in an enactment must always be construed in the light of the surrounding text. …words and particular general words, cannot be read in isolation, their colour and their content are derived from their context. 32. Adverting to the facts of the instant case, the scheme of Rules 1993 clearly manifests that the primary object of the scheme is to promote the common service interest of its members and service association which intends to accord recognition must represent minimum 35% of the total category of employees with a rider that where there is only one association which commands more than 35% membership and another association with second highest membership must be recognized if it commands at least 15% membership. The intention appears to be to avoid plurality of associations which indeed may not be in the overall interest of the Government servants in forming service association on their job description. In this context, the expression distinct category of government servants referred under Rule 5 (c) with its due emphasis in furtherance of the clarification which has been made by the rule making authority is, in fact, supplementing the scheme of rules for its effective and proper implementation which is permissible under the law unless held to the contrary and that was never the case of the respondent at any stage in grouping the classification of posts in group A, B, C and D as a distinct category, is in contravention to Rule 5 (c ) of Rules 1993 and any further sub-classification of posts based on job description is not permissible under the recruitment and conduct rules if permitted under the guise of expression distinct category to form service association, it would defeat the purpose and object with which the scheme of Rules 1993 have been framed according recognition to service association which has been primarily formed with an object of promoting the common service interests of its members at large and the literal interpretation in isolation of the term distinct category made by the Division Bench of the High Court in the impugned judgment granting permission to each group of employees based on job description/trade to claim recognition and form their service association would not only defeat the primary object of the scheme of Rules 1993 but the purpose as well with which the Joint Consultative Machinery has been formed to watch albeit the common service interest of its members/Government servants. ### Response: 1

Indian Aluminium Co Vs. State Of Kerala

power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functionaries need free-play in their joints so that the march of social progress and order remain unimpeded. The smooth balance built with delicacy must always be maintained :(5) In its anxiety to safeguard judicial power, it is unnecessary to be overzealous and conjure up incursion into the judicial preserve invalidating the valid law competently made;(6) The Court, therefore, need to carefully scan the law to find out; (1) whether the vice pointed out by the Court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the Legislature has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in Part III of the Constitution.(7) The Court does not have the power to validate an invalid law or to legalise impost of tax illegally made and collected or to remove the norm of invalidation or provide a remedy. These are not judicial functions but the exclusive province of the Legislature. Therefore, they are not the encroachment on judicial power. (8) In exercising legislative power, the Legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the Court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The Legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the Legislature is competent to recover the invalid tax validating such a tax or removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the legislature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the Court or the direction given for recovery thereof.(9) The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the Legislature must have competence to do the same. 57. Considered from these perspectives, the question is : whether Section 11 can answer the tests laid down herinbefore. It is seen that the duty was collected under an order made in exercise of Section 3 of the Essential Articles Act and it was held to be not a tax but a duty for the benefit of KSEB. That duty being a compulsory exaction for the benefit of pubic exchequer is tax. Duty on supply of electricity was declared to be additional burden and a levy within Entries 26 and 27 of List II, subject to Entry 33 of List III (Concurrent List). Duty is an additional burden and partakes the character of a tax, Entry 53 of List II (State List) empowers he State Legislature to impose tax on consumption or sale of electricity. It is therefore, a compulsory exaction for the benefit of the Revenue. Therefore, it is an additional tax in the form of a duty under the Act. The vice pointed out in Chakolas case, has been removed under the Act. Consequently, Section 11 validated the invalidity pointed out in Chakolas case, removing the base. In the altered situation, the High Court would not have rendered Chakolas case, under the Act. It has made the writ issued in Chakolas case, ineffective. Instead of refunding the duty illegally collected under invalid law. Section 11 validated the illegal collections and directed the liability of the past transactions as valid under the Act and also fastened liability on the consumers. In other words, the effect of Section 11 is that the illegal collection made under invalid law is to be retained and the same shall now stand validated under the Act. Thus considered, we hold that Section 11 is not an incursion on judicial power of the Court and is a valid piece of legislation as part of the Act.58. As already seen, the specific case of the State and the Board is that the State has been expending its public money for the effective functioning for the KSEB and the duty under the Act is flowing into the public exchequer and, therefore, it is not a duty for the benefit of KSEB coming under Essential Articles Act. Equally, it is not either a threat to the power of judicial review or form of restraint to exercise the power of judicial review over legislative action. It is true that under the Electricity Act which admittedly has been enacted under Entry 53 of the State List, the rate of duty, as amended, is 10 per cent, As stated above, under the Act duty is an additional impost in the nature of compulsory exaction for the benefit of public exchequer. When we look into the provisions of the Act it is clear that levy and collection of additional duty is not discontinued as contended by Shri Venugopal. As held above, the Act is a complete code in itself and operates retrospectively. Therefore, both the Acts operate harmoniously and do not collide in their operation since 1984 Act is the principal Act and the Act is in addition to, but not in substitution of the principal Act. Therefore, 1984 Act does not get eclipsed with the passing of the Act.

0[ds]Indisputably, the title of the Act as well as the charging Section 3 employ the words "duty on supply of electricity. Under Article 246 (3) of the Constitution, every State legislature has explicit power to make law for that State with respect to the matters enumerated in List II (State List) of the Seventh Schedule to the Constitution. The States power to impose tax is derived from the Constitution. The Entries in the three Lists of the Seventh Schedule are not power of legislation but merely fields of legislation. The power is derived under Article 246 and other related Articles of the Constitution. The legislative fields are of enabling character designed to define and delimit the respective areas of legislative competence of the respective legislatures. There is neither implied restriction imposed on the legislature nor is any duty prescribed to exercise that legislative power in a particular manner. But the legislation must be subject to the limitations prescribed under the Constitution.In view of the legal position referred to hereinbefore, it must be held that the words sale or consumption used in Entry 53 of State List and the Act made in exercise of the power under Article 246 (3) of the Constitution, would receive wide interpretation so as to sustain the constitutionality of the Act unless it is affirmatively established that the Act is unconstitutional.20. When the vires of an enactment is challenged, it is very difficult to ascertain the limits of the legislative power. Therefore, the controversy must be resolved as far as possible, in favour of the legislative body putting the most liberal construction upon the relevant legislative entry so that it may have the widest amplitude. The Court is required to look at the substance of the legislation. It is equally settled law that in order to determine whether a tax statue is within the competence of the legislature, it is necessary to determine the nature of the tax and whether the legislature had power to enact such a law. The primary guidance for this purpose is to be gathered from the charging section. It is the substance of the impost and not the form that determines the nature of the tax.The doctrine of pith and substance, though applied in determining the true character of the statutes under List III (Concurrent List) of the respective legislative topics of the State legislature and the Parliament. It was extended for consideration of the true character of the legislation even under the same legislative list. In all cases, therefore, the name given by the legislature in the impugned enactment is not conclusive on the question of its competence to make it. It is the pith and substance of the legislation which decides the matter which needs to be decided with reference to the provisions of the statute itself.It is true that when water supplied by the municipality to the consumers through their water mains, flows from the mains through the water meter and into the pipes fitted into the house and from there water is supplied from tap fitted to the pipes. Thus there is hiatus between supply and consumption. When water is actually used there would be consumption though water supplied gets recorded when water passes through the meter from the water mains. But the analogy there of to the supply, consumption and sale of electric energy is inappropriate as it cannot be separately stored after the supply but before consumption or sale thereof. However, water can incidentally be stored or remain in pipe for use and after tap is opened it is consumed. Even if it percolates it may be a loss to the consumer. This operation thereof is inapt. Its analogy to electricity is, therefore, inapt and inappropriate.Levy of duty goes into the public revenue. It is an impost, a compulsory exaction for the benefit to the coffers of the public exchequer and, therefore, it is a tax. The Act in pith and substance is a tax on sale or consumption of electrical energy. Therefore, the Act falls in Entry 53 and does not fall in Entry 27 of the State List of the Seventh Schedule to the Constitution. The State legislature, therefore, validly enacted the Act under Article 246 (3) of the Constitution.A reading thereof clearly indicates that notwithstanding anything to the contrary contained in any judgment, decree or order of any Court, the levy and collection of surcharge by the Board or other licensees on or after the 1st day of October, 1984 and before the 1st day of August, 1988 under the Kerala State Electricity Supply (Kerala State Electricity, Board and Licensees Area) Surcharge Order, 1984, shall be deemed to be, and deemed always to have been validly levied and collected as if the said Order was a notified order under Section 3 of the (Act 22 of 1984). Accordingly all acts, proceedings or things done by the Board or other licensees in connection with such levy, collection and remittance of surcharge shall, for all purposes be deemed to be, and deemed always to have been, done or taken in accordance with the Act. Sub-section (2) removes the doubts declaring that nothing in sub-section (1) shall be considered as preventing any person from claiming refund of any surcharge already paid in excess of the amount due from him under the order referred to in sub-section (1).33. It is seen that the Act does not limit to the period covered under Section 11 of the Validation Act. Section 3 with a non obstante clause provides that notwithstanding anything to the contrary contained in any agreement entered into with any consumer or the conditions or service agreed by the Board, the Government may by notified order provide for the levy and collection of surcharge on all HT and EHT supplies of energy made by the Board whether directly or through licensees at such rates not exceeding 3 paise per unit, as may be specified therein etc. It is an Act to remain operational in future. Admittedly, the Act is permanent statute operating prospectively and retrospectively validating past transactions as if they have been made, entered into or transacted under the Act.34. While making the Validation Act, as seen, Section 6 provides for recoveries and Section 7 provides for penalties. Section 8 prescribes offences by companies and Section 9 gives rule making power to effectuate the purpose of the Act by making rules enumerated thereunder to give effect to the provisions of the Act. Section 10 provides protection of actions taken by the officers in good faith. Section 4 deals with books of accounts to be maintained by the licensees and Section 5 authorises officers for inspection of the books of accounts maintained by the licensees. It would thus be clear that the Act is a complete and self-contained code inprinciple of power of validation, vested in the legislature is no longer res integra.From a resume of the above decision the following principles would emergeThe adjudication of the right of the parties is the essential judicial function. Legislature has to lay down the norms of conduct or rules which will govern the parties and the transactions and require the Court to give effect to them :(2) The Constitution delineated delicate balance in the exercise of the sovereign power by the Legislature, Executive and Judiciary :(3) In a democracy governed by rule of law, the Legislature exercises the power under Article 245 and 246 and other companion Articles read with the entries in the respective Lists in the Seventh Schedule to make the law which includes power to amend the law.(4) Courts in their concern and endeavour to preserve judicial power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functionaries need free-play in their joints so that the march of social progress and order remain unimpeded. The smooth balance built with delicacy must always be maintained :(5) In its anxiety to safeguard judicial power, it is unnecessary to be overzealous and conjure up incursion into the judicial preserve invalidating the valid law competently made;(6) The Court, therefore, need to carefully scan the law to find out; (1) whether the vice pointed out by the Court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the Legislature has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in Part III of the Constitution.(7) The Court does not have the power to validate an invalid law or to legalise impost of tax illegally made and collected or to remove the norm of invalidation or provide a remedy. These are not judicial functions but the exclusive province of the Legislature. Therefore, they are not the encroachment on judicialIn exercising legislative power, the Legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the Court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The Legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the Legislature is competent to recover the invalid tax validating such a tax or removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the legislature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the Court or the direction given for recovery thereof.(9) The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the Legislature must have competence to do theIt is seen that the duty was collected under an order made in exercise of Section 3 of the Essential Articles Act and it was held to be not a tax but a duty for the benefit of KSEB. That duty being a compulsory exaction for the benefit of pubic exchequer is tax. Duty on supply of electricity was declared to be additional burden and a levy within Entries 26 and 27 of List II, subject to Entry 33 of List III (Concurrent List). Duty is an additional burden and partakes the character of a tax, Entry 53 of List II (State List) empowers he State Legislature to impose tax on consumption or sale of electricity. It is therefore, a compulsory exaction for the benefit of the Revenue. Therefore, it is an additional tax in the form of a duty under the Act. The vice pointed out in Chakolas case, has been removed under the Act. Consequently, Section 11 validated the invalidity pointed out in Chakolas case, removing the base. In the altered situation, the High Court would not have rendered Chakolas case, under the Act. It has made the writ issued in Chakolas case, ineffective. Instead of refunding the duty illegally collected under invalid law. Section 11 validated the illegal collections and directed the liability of the past transactions as valid under the Act and also fastened liability on the consumers. In other words, the effect of Section 11 is that the illegal collection made under invalid law is to be retained and the same shall now stand validated under the Act. Thus considered, we hold that Section 11 is not an incursion on judicial power of the Court and is a valid piece of legislation as part of the Act.58. As already seen, the specific case of the State and the Board is that the State has been expending its public money for the effective functioning for the KSEB and the duty under the Act is flowing into the public exchequer and, therefore, it is not a duty for the benefit of KSEB coming under Essential Articles Act. Equally, it is not either a threat to the power of judicial review or form of restraint to exercise the power of judicial review over legislative action. It is true that under the Electricity Act which admittedly has been enacted under Entry 53 of the State List, the rate of duty, as amended, is 10 per cent, As stated above, under the Act duty is an additional impost in the nature of compulsory exaction for the benefit of public exchequer. When we look into the provisions of the Act it is clear that levy and collection of additional duty is not discontinued as contended by Shri Venugopal. As held above, the Act is a complete code in itself and operates retrospectively. Therefore, both the Acts operate harmoniously and do not collide in their operation since 1984 Act is the principal Act and the Act is in addition to, but not in substitution of the principal Act. Therefore, 1984 Act does not get eclipsed with the passing of the Act.

### 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: power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functionaries need free-play in their joints so that the march of social progress and order remain unimpeded. The smooth balance built with delicacy must always be maintained :(5) In its anxiety to safeguard judicial power, it is unnecessary to be overzealous and conjure up incursion into the judicial preserve invalidating the valid law competently made;(6) The Court, therefore, need to carefully scan the law to find out; (1) whether the vice pointed out by the Court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the Legislature has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in Part III of the Constitution.(7) The Court does not have the power to validate an invalid law or to legalise impost of tax illegally made and collected or to remove the norm of invalidation or provide a remedy. These are not judicial functions but the exclusive province of the Legislature. Therefore, they are not the encroachment on judicial power. (8) In exercising legislative power, the Legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the Court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The Legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the Legislature is competent to recover the invalid tax validating such a tax or removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the legislature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the Court or the direction given for recovery thereof.(9) The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the Legislature must have competence to do the same. 57. Considered from these perspectives, the question is : whether Section 11 can answer the tests laid down herinbefore. It is seen that the duty was collected under an order made in exercise of Section 3 of the Essential Articles Act and it was held to be not a tax but a duty for the benefit of KSEB. That duty being a compulsory exaction for the benefit of pubic exchequer is tax. Duty on supply of electricity was declared to be additional burden and a levy within Entries 26 and 27 of List II, subject to Entry 33 of List III (Concurrent List). Duty is an additional burden and partakes the character of a tax, Entry 53 of List II (State List) empowers he State Legislature to impose tax on consumption or sale of electricity. It is therefore, a compulsory exaction for the benefit of the Revenue. Therefore, it is an additional tax in the form of a duty under the Act. The vice pointed out in Chakolas case, has been removed under the Act. Consequently, Section 11 validated the invalidity pointed out in Chakolas case, removing the base. In the altered situation, the High Court would not have rendered Chakolas case, under the Act. It has made the writ issued in Chakolas case, ineffective. Instead of refunding the duty illegally collected under invalid law. Section 11 validated the illegal collections and directed the liability of the past transactions as valid under the Act and also fastened liability on the consumers. In other words, the effect of Section 11 is that the illegal collection made under invalid law is to be retained and the same shall now stand validated under the Act. Thus considered, we hold that Section 11 is not an incursion on judicial power of the Court and is a valid piece of legislation as part of the Act.58. As already seen, the specific case of the State and the Board is that the State has been expending its public money for the effective functioning for the KSEB and the duty under the Act is flowing into the public exchequer and, therefore, it is not a duty for the benefit of KSEB coming under Essential Articles Act. Equally, it is not either a threat to the power of judicial review or form of restraint to exercise the power of judicial review over legislative action. It is true that under the Electricity Act which admittedly has been enacted under Entry 53 of the State List, the rate of duty, as amended, is 10 per cent, As stated above, under the Act duty is an additional impost in the nature of compulsory exaction for the benefit of public exchequer. When we look into the provisions of the Act it is clear that levy and collection of additional duty is not discontinued as contended by Shri Venugopal. As held above, the Act is a complete code in itself and operates retrospectively. Therefore, both the Acts operate harmoniously and do not collide in their operation since 1984 Act is the principal Act and the Act is in addition to, but not in substitution of the principal Act. Therefore, 1984 Act does not get eclipsed with the passing of the Act. ### Response: 0

Marine Container Services South Private Limited Vs. Go Go Garments

Special leave granted.2. The respondent has been served and has put in an appearance and filed a counter. It was not represented when the SLP had been called out on an earlier date, when it was adjourned due to its absence. It is not represented today, even after the SLP have been passed over once.3. The order that is under appeal was passed by the National Consumer Disputes Redressal Commission. It says :"In our opinion, Section 230 of the Contract Act in terms will apply only to suits instituted before a regular Civil Court and not to complaints filed under the Consumer Protection Act which is a special legislation intended to protect consumers in India against the exploitation of manufacturers, traders and providers of service by supply of defective goods or by deficiency in service resulting in loss to the consumer." *The National Commission took the view that, inasmuch as the respondent was pursuing the remedy available to it under the provisions of the Consumer Protection Act and had claimed that it had hire file services of the appellant and there was deficiency in rendering such services, its complaint was maintainable, for the protection given to an agent under Section 230 of the Contract Act was available only when the action arose out of or in relation to the enforcement of a contract. 4. We are not a little surprised to read that the Contract Act does not apply to complaints filed under the Consumer Protection Act. The Contract Act applies to all, litigants before the Commission under the Consumer Protection Act included. Whether in proceedings before the Commission or otherwise, an agent is entitled to invoke the provisions of Section 230 of the Contract Act and, if the facts found support him, his defence based thereon cannot be brushed away.5. The District Consumer Disputes Redressal Forum, Madras, before whom the respondent had instituted the claim, had found in favour of the appellant, both on the basis of Section 230 of the Contract Act as also on the issue of limitation. The State Consumer Disputes Redressal Commission, Madras, in appeal, upheld the decision of the District Forum based on Section 230 of the Contract Act and, therefore, found it unnecessary to consider the aspect of limitation. The National Forum, as aforesaid, took the contrary view on the applicability of Section 230 of the Contract Act on the mistaken basis referred to above as also by reliance on third clause of the presumptions to the contrary in Section 230, that is to say that an agent is bound by a contract entered into by his principal who, though disclosed, cannot he sued. That the principal here "is some company in Taiwan situated far outside the jurisdiction of the consumer courts in India" does not mean that it could be inferred, for it had not been so found by the District or State Commission, that it could not he sued.

1[ds]5. The District Consumer Disputes Redressal Forum, Madras, before whom the respondent had instituted the claim, had found in favour of the appellant, both on the basis of Section 230 of the Contract Act as also on the issue of limitation. The State Consumer Disputes Redressal Commission, Madras, in appeal, upheld the decision of the District Forum based on Section 230 of the Contract Act and, therefore, found it unnecessary to consider the aspect of limitation. The National Forum, as aforesaid, took the contrary view on the applicability of Section 230 of the Contract Act on the mistaken basis referred to above as also by reliance on third clause of the presumptions to the contrary in Section 230, that is to say that an agent is bound by a contract entered into by his principal who, though disclosed, cannot he sued. That the principal here "is some company in Taiwan situated far outside the jurisdiction of the consumer courts in India" does not mean that it could be inferred, for it had not been so found by the District or State Commission, that it could not he sued.

### 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: Special leave granted.2. The respondent has been served and has put in an appearance and filed a counter. It was not represented when the SLP had been called out on an earlier date, when it was adjourned due to its absence. It is not represented today, even after the SLP have been passed over once.3. The order that is under appeal was passed by the National Consumer Disputes Redressal Commission. It says :"In our opinion, Section 230 of the Contract Act in terms will apply only to suits instituted before a regular Civil Court and not to complaints filed under the Consumer Protection Act which is a special legislation intended to protect consumers in India against the exploitation of manufacturers, traders and providers of service by supply of defective goods or by deficiency in service resulting in loss to the consumer." *The National Commission took the view that, inasmuch as the respondent was pursuing the remedy available to it under the provisions of the Consumer Protection Act and had claimed that it had hire file services of the appellant and there was deficiency in rendering such services, its complaint was maintainable, for the protection given to an agent under Section 230 of the Contract Act was available only when the action arose out of or in relation to the enforcement of a contract. 4. We are not a little surprised to read that the Contract Act does not apply to complaints filed under the Consumer Protection Act. The Contract Act applies to all, litigants before the Commission under the Consumer Protection Act included. Whether in proceedings before the Commission or otherwise, an agent is entitled to invoke the provisions of Section 230 of the Contract Act and, if the facts found support him, his defence based thereon cannot be brushed away.5. The District Consumer Disputes Redressal Forum, Madras, before whom the respondent had instituted the claim, had found in favour of the appellant, both on the basis of Section 230 of the Contract Act as also on the issue of limitation. The State Consumer Disputes Redressal Commission, Madras, in appeal, upheld the decision of the District Forum based on Section 230 of the Contract Act and, therefore, found it unnecessary to consider the aspect of limitation. The National Forum, as aforesaid, took the contrary view on the applicability of Section 230 of the Contract Act on the mistaken basis referred to above as also by reliance on third clause of the presumptions to the contrary in Section 230, that is to say that an agent is bound by a contract entered into by his principal who, though disclosed, cannot he sued. That the principal here "is some company in Taiwan situated far outside the jurisdiction of the consumer courts in India" does not mean that it could be inferred, for it had not been so found by the District or State Commission, that it could not he sued. ### Response: 1

Shah Bhojraj Kuverji Oil Mills And Ginning Factory Vs. Subbash Chandra Yograj Sinha

the State of Bombay. If nothing more had been said, S. 7 of the Bombay General Clauses Act, would have applied, and all pending suits" and proceedings would have continued under the old law, as if the repealing Act had not been passed. The effect of the proviso was to take the matter out of S. 7 of the Bombay General Clauses Act and to provide for a special saving, If cannot be used to decide whether S. 12 of the Act is retrospective. It was observed by Wood, V. C., in Fitzgerald v. Champneys,(1861) 70 ER 958 that saving clauses are seldom used to construe Acts. These clauses are introduced into Acts which repeal others, to safeguard rights which but for the savings, would be lost. The proviso here saves pending suits and proceedings, and further enacts that suits and proceedings then pending are to be transferred to the Courts designated in the Act are to continue under the Act and any or all the provisions of the Act are to apply to them. The learned Solicitor-General contends that the savings clause enacted by the proviso, even if treated as substantive law, must be taken to apply only to suits and proceedings pending; at the time of the repeal which, but for the proviso, would be governed by the Act repealed. According to the learned Attorney-General, the effect of the savings is much wider, and it applies to such cases as come within the words of the proviso, whenever the Act is extended to new areas.10. These arguments are interesting, and much can be said on both sides, particularly as the Legislature has by a subsequent amendment changed the proviso. But, in our opinion, they need not be considered in this case, in view of what we have decided on the second point.11. The second contention urged by the learned Attorney-General that S. 12(1) applied from the date on which the Act was extended to the area in question is, in our opinion sound. Section 12(1) enacts a rule of decision, and it says that a landlord is not entitled to possession if the tenant pays or shows his readiness and willingness to pay the standard rent and to observe the other conditions of the tenancy. The word "tenant" is defined in the Act to include not only a tenant, whose tenancy subsists but also any person remaining, after the determination of the lease, in possession with or without the assent of the landlord. The present appellants, as statutory tenants, were within the rule enacted by S. 12(1) and entitled to its protection, if the sub-section could be held applicable to this suit.12. Both the Bombay High Court and this Court had, on the previous occasions, observed that s. 12 of the Act was prospective. In those cases, the learned Judges were concerned with the interpretation of sub-secs. (2) and (3) only, which, as the words of those sub-sections then existing show, were clearly prospective, and were applicable to suits to be instituted after the coming into force of the Act. But a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the legislature is apparent. This is more so, when Acts are passed to protect the public against some evil or abuse. (See Craies on Statute Law, 5th Edn., p. 365). The sub-section says that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the standard rent etc., and observes and performs the other conditions of the tenancy. In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned. The Explanation to S. 12 makes it clear that the tenant in case of a dispute may make an application to the Court under sub-sec. (3) of S. 11 for fixation of a standard rent and may thereafter pay or tender the amount of rent or permitted increases specified in the order to be made by the Court. The tenants, in the present case, have expressed their readiness and willingness to pay, and it is clear that they fulfil the requirements of sub-sec. (1) of S. 12, and the landlord is therefore, not entitled to the relief of possession.13. Both the High Court as well as this Court in their previous decisions, referred to above, were not called upon to interpret sub-sec. (1) of the Act. They were dealing with appeals arising out of decrees already passed. The observations that S. 12 was prospective were made with reference to sub-secs. (2) and (3) and not with respect to sub-sec. (1), which did not even find a mention in those judgments. The question then was whether S. 12 by itself or read with the proviso to S. 50 was applicable retrospectively to appeals. That is not the question which has arisen here. Then again, S. 12(1) enacts that the landlord shall not be entitled to recover possession, not "no suit shall be instituted by the landlord to recover possession". The point of time when the sub-section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the sub-section applies equally to suits pending when Part II comes into force and those to be filed subsequently. T14. he contention of the respondent that the operation of S. 12(1) is limited to suits filed after the Act comes into force in a particular area cannot be accepted. The conclusion must follow that the present suits cannot be decreed in favour of the respondent. The decisions of the High Court and the Court of First Instance are thus erroneous, and must be set aside.15.

1[ds]9. The law with regard to provisos is well-settled and well-understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. But, provisos are often added not as exceptions or qualifications to the main enactment but as saving clauses, in which cases they will not be construed as controlled by the section. The proviso which has been added to S. 50 of the Act deals with the effect of repeal. The substantive part of the section repealed two Acts which were in force in the State of Bombay. If nothing more had been said, S. 7 of the Bombay General Clauses Act, would have applied, and all pending suits" and proceedings would have continued under the old law, as if the repealing Act had not been passed. The effect of the proviso was to take the matter out of S. 7 of the Bombay General Clauses Act and to provide for a special saving, If cannot be used to decide whether S. 12 of the Act is retrospective. It was observed by Wood, V. C., in Fitzgeraldv. Champneys,(1861) 70 ER 958that saving clauses are seldom used to construe Acts. These clauses are introduced into Acts which repeal others, to safeguard rights which but for the savings, would be lost. The proviso here saves pending suits and proceedings, and further enacts that suits and proceedings then pending are to be transferred to the Courts designated in the Act are to continue under the Act and any or all the provisions of the Act are to apply to12(1) enacts a rule of decision, and it says that a landlord is not entitled to possession if the tenant pays or shows his readiness and willingness to pay the standard rent and to observe the other conditions of the tenancy. The word "tenant" is defined in the Act to include not only a tenant, whose tenancy subsists but also any person remaining, after the determination of the lease, in possession with or without the assent of the landlord. The present appellants, as statutory tenants, were within the rule enacted by S. 12(1) and entitled to its protection, if the sub-section could be held applicable to this suit.12. Both the Bombay High Court and this Court had, on the previous occasions, observed that s. 12 of the Act was prospective. In those cases, the learned Judges were concerned with the interpretation of sub-secs. (2) and (3) only, which, as the words of those sub-sections then existing show, were clearly prospective, and were applicable to suits to be instituted after the coming into force of the Act. But a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the legislature is apparent. This is more so, when Acts are passed to protect the public against some evil or abuse. (See Craies on Statute Law, 5th Edn., p. 365). The sub-section says that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the standard rent etc., and observes and performs the other conditions of the tenancy. In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned. The Explanation to S. 12 makes it clear that the tenant in case of a dispute may make an application to the Court under sub-sec. (3) of S. 11 for fixation of a standard rent and may thereafter pay or tender the amount of rent or permitted increases specified in the order to be made by the Court. The tenants, in the present case, have expressed their readiness and willingness to pay, and it is clear that they fulfil the requirements of sub-sec. (1) of S. 12, and the landlord is therefore, not entitled to the relief of possession.13. Both the High Court as well as this Court in their previous decisions, referred to above, were not called upon to interpret sub-sec. (1) of the Act. They were dealing with appeals arising out of decrees already passed. The observations that S. 12 was prospective were made with reference to sub-secs. (2) and (3) and not with respect to sub-sec. (1), which did not even find a mention in those judgments. The question then was whether S. 12 by itself or read with the proviso to S. 50 was applicable retrospectively to appeals. That is not the question which has arisen here. Then again, S. 12(1) enacts that the landlord shall not be entitled to recover possession, not "no suit shall be instituted by the landlord to recover possession". The point of time when the sub-section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the sub-section applies equally to suits pending when Part II comes into force and those to be filed subsequently.contention of the respondent that the operation of S. 12(1) is limited to suits filed after the Act comes into force in a particular area cannot be accepted. The conclusion must follow that the present suits cannot be decreed in favour of the respondent. The decisions of the High Court and the Court of First Instance are thus erroneous, and must be set aside.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: the State of Bombay. If nothing more had been said, S. 7 of the Bombay General Clauses Act, would have applied, and all pending suits" and proceedings would have continued under the old law, as if the repealing Act had not been passed. The effect of the proviso was to take the matter out of S. 7 of the Bombay General Clauses Act and to provide for a special saving, If cannot be used to decide whether S. 12 of the Act is retrospective. It was observed by Wood, V. C., in Fitzgerald v. Champneys,(1861) 70 ER 958 that saving clauses are seldom used to construe Acts. These clauses are introduced into Acts which repeal others, to safeguard rights which but for the savings, would be lost. The proviso here saves pending suits and proceedings, and further enacts that suits and proceedings then pending are to be transferred to the Courts designated in the Act are to continue under the Act and any or all the provisions of the Act are to apply to them. The learned Solicitor-General contends that the savings clause enacted by the proviso, even if treated as substantive law, must be taken to apply only to suits and proceedings pending; at the time of the repeal which, but for the proviso, would be governed by the Act repealed. According to the learned Attorney-General, the effect of the savings is much wider, and it applies to such cases as come within the words of the proviso, whenever the Act is extended to new areas.10. These arguments are interesting, and much can be said on both sides, particularly as the Legislature has by a subsequent amendment changed the proviso. But, in our opinion, they need not be considered in this case, in view of what we have decided on the second point.11. The second contention urged by the learned Attorney-General that S. 12(1) applied from the date on which the Act was extended to the area in question is, in our opinion sound. Section 12(1) enacts a rule of decision, and it says that a landlord is not entitled to possession if the tenant pays or shows his readiness and willingness to pay the standard rent and to observe the other conditions of the tenancy. The word "tenant" is defined in the Act to include not only a tenant, whose tenancy subsists but also any person remaining, after the determination of the lease, in possession with or without the assent of the landlord. The present appellants, as statutory tenants, were within the rule enacted by S. 12(1) and entitled to its protection, if the sub-section could be held applicable to this suit.12. Both the Bombay High Court and this Court had, on the previous occasions, observed that s. 12 of the Act was prospective. In those cases, the learned Judges were concerned with the interpretation of sub-secs. (2) and (3) only, which, as the words of those sub-sections then existing show, were clearly prospective, and were applicable to suits to be instituted after the coming into force of the Act. But a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the legislature is apparent. This is more so, when Acts are passed to protect the public against some evil or abuse. (See Craies on Statute Law, 5th Edn., p. 365). The sub-section says that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the standard rent etc., and observes and performs the other conditions of the tenancy. In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned. The Explanation to S. 12 makes it clear that the tenant in case of a dispute may make an application to the Court under sub-sec. (3) of S. 11 for fixation of a standard rent and may thereafter pay or tender the amount of rent or permitted increases specified in the order to be made by the Court. The tenants, in the present case, have expressed their readiness and willingness to pay, and it is clear that they fulfil the requirements of sub-sec. (1) of S. 12, and the landlord is therefore, not entitled to the relief of possession.13. Both the High Court as well as this Court in their previous decisions, referred to above, were not called upon to interpret sub-sec. (1) of the Act. They were dealing with appeals arising out of decrees already passed. The observations that S. 12 was prospective were made with reference to sub-secs. (2) and (3) and not with respect to sub-sec. (1), which did not even find a mention in those judgments. The question then was whether S. 12 by itself or read with the proviso to S. 50 was applicable retrospectively to appeals. That is not the question which has arisen here. Then again, S. 12(1) enacts that the landlord shall not be entitled to recover possession, not "no suit shall be instituted by the landlord to recover possession". The point of time when the sub-section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the sub-section applies equally to suits pending when Part II comes into force and those to be filed subsequently. T14. he contention of the respondent that the operation of S. 12(1) is limited to suits filed after the Act comes into force in a particular area cannot be accepted. The conclusion must follow that the present suits cannot be decreed in favour of the respondent. The decisions of the High Court and the Court of First Instance are thus erroneous, and must be set aside.15. ### Response: 1

Nirmal Singh Vs. State of Rajasthan

continues to remain present for a considerable time in that part of the country specially in the months of September and October, when the sky is comparatively clearer than in other months. We have no reason to differ from the conclusions arrived at by both the courts that there was sufficient light for the eye-witnesses to identify the person or persons who were shooting from the house of the appellant. 10. That the appellant was the person who shot at the deceased is abundantly clear from Exhibit P-11, the dying declaration of the deceased. The probative value of this dying declaration, however, has been challenged on the ground that the Magistrate P.W. 8 did not obtain the certificate of the Doctor that the deceased was conscious and was in a fit condition to make the statement. In the dying declaration the Magistrate stated thus :"I reached the Civil Hospital at Ganganagar on September 30, 1965, at 11.45 p.m. and Dr. Gahlot told that her condition, i.e. the condition of Smt. Richhpal Kuar was bad but she could give some statement. Thereupon the statement of Smt. Richhpal Kaur was recorded and whatever she deposed it was taken correctly and it was read over and she admitted it to be correct." 11. Only two questions were asked by the Magistrate as to (1) who fired at her and with what weapon, and (2) on which part the injury has been received. To both of these questions her reply was clear and precise. She stated that Nirmal Singh had shot her with a gun that day in the evening at about 8 p.m., that the name of Nirmal Singhs father is Teja Singh Jat Sikh and that the injuries have been received on the stomach and on both the thighs. It was sought to be pointed out that Dr. Gahlot did not say that he had been asked by P.W. 8 about the condition of the injured and that he had certified that she was conscious and in a fit condition to make a statement. It is true that the Doctor did not make a categorical statement that the Magistrate had asked him whether the injured was conscious and in a fit state to make a statement. He, however, said that he does not recollect if her dying declaration was recorded by a Magistrate in his presence nor was he, after seeing the endorsement in Exhibit P-11, able to recollect if Mr. Mathur had come and recorded her statement. There seems to have been some mistake as the Doctor seems to have misread the name in Exhibit P-11. Be that as it may, according to P.W. 8 who had no reason to depose falsely, he verified that the injured was in her senses from Dr. Gahlot. He says that Dr. Gahlot told him that Mst. Richhpal Kaur was able to make a statement. There was no cross-examination on this aspect. All that was asked was whether the relations of Mst. Richhpal Kaur were present when he recorded the statement and the Magistrate replied that they were not. We are satisfied that this dying declaration is authentic and was given by person who was conscious and in a fit condition to give the statement. It was again urged that P.Ws. 1, 2 and others who were injured had travelled with her in the same cart and tutored her. There is absolutely no evidence of this. On the other hand, none of the prosecution witnesses could have travelled in the same cart as already seen she was put in a cot and the cot was placed in a cart so that there could be no room for any other to travel with her. The Magistrates evidence also shows that there was no one present when he recorded the statement. 12. There is ample corroboration of the statement of the deceased in that she mentioned about her injuries which are borne out by not only the evidence of Dr. Vyas, P.W. 7 but the post-mortem report. The injuries on P.Ws. 1, 4, 5 and 10 and the evidence of these witnesses afford further corroboration to the dying declaration, that the appellant had shot at the deceased. Lastly it is urged that the injuries on the deceased and the several witnesses to which we have referred, were the result of an accident. Whatever credibility there may be in this defence, and we are not able to understand how two shots could have been fired by accident which is what prosecution witnesses have spoken to and accepted as true by both the courts, it was not put forward either before the Trial Court or before the High Court, nor is there anything in the statement of the accused under Section 342, Cr. P.C. to justify it. On the other hand, the accuseds case militates against any theory of accident because according to him he was not present and it was only his Chowkidar who fired in reply to the firing from the house of Balbir Singh. Once that defence is disbelieved as indeed it has been, the theory of accident falls to the ground. There was a faint suggestion that the act of the appellant was such as would bring the case under Section 304 but this in our view would be far-fetched. It may be pointed out that there were as many as four frontal entry wounds on the deceased and two on the buttocks. There was one wound at the back which was an exit wound. The frontal injuries show that the deceased was shot at while she was facing the house of the appellant but it is stated that some of the injuries are on the side and the buttock which do not justify this conclusion. The fallacy in this argument is based on the assumption, which is invalid, that the deceased had stood-still until the firing was over and was not moving or that when she fell down she fell on her back only.

1[ds]There is no doubt that the appellant had motive against the deceased and P.W. 1 as disclosed by Exhibit, dated September 13, 1965, to which we have already referred.It is urged that this letter which was addressed to Sardul Singh, P.W. 9 brother of Balbir Singh was more in the nature of a request to him to intercede and compromise the disputes between Balbir Singh and. But our reading of that letter does not justify this contention. Sardul Singh who is a Dy. Superintendent of Police is being informed by the appellant by that letter of the trouble which Balbir Singh is creating for him by making Gurmukh Singh drunk and setting him against him to abuse him in the names of his mother and sister. He, therefore, had to take proceedings to get Gurmukh Singh and Vikram Singh to execute bonds and furnish sureties under Sections 51 and 107, Cr. P.C. Even so, he says : "this Sardar Sahib is not mending himself at all and worsening himself a day by day. I request all of you that I may be got rid of them as you are my as well as their elders and brother. I shall be very grateful for the same. I fear lest myself and Sardar Sahib may take any step after being tired of it. After all you will get the compromise done between us. It is being done by my brothers wife and she is making too much progress day by day."8. The above letter was written about 17 days prior to the incident which also refers to the proceedings under Section 107, Cr. P.C. (Exhibit. After these proceedings were taken there is nothing to show that the feelings between the appellant on the one hand and Balbir Singh, Vikram Singh and deceased on the other were any better9. On the day of occurrence P. Ws. 1, 2, 4, 5 and 10 were present in Balbir Singhs house in the evening for a meal, when the incident according to the F.I.R. took place between 7 or 7.15 p.m. The witness Balbir Singh stated that it took place at about 6.45 p.m. and on that day it became dark after 7.30 p.m. P.W. 10 Ravendra Singh stated that at the time of the incident there was a reddish light of setting sun. According to Vikram Singh P.W. 2, Lakh Singh and Sarjeet Singh returned to the house at about 5.30 p.m. on that day and that the firing in this case took place after about 1.5 hours of their arrival. Even according to this statement the time of the incident would be about 7 p.m. though he admits that in the report Exhibit 1 he had stated that they returned to the house at about 6 p.m. and had given the time of the incident as 7.15 p.m. by approximation. P.W. 3 Gurmukh Singh denies having said to the police that the time when the incident took place was about 7 or 7.15 but that he told them that it was 15 or 20 minutes after. It is not denied that thet on that day as noticed by the trial Judge was at 6.08 p.m. so that even according to his statement the time of the incident would be about 7.15 p.m. kahar Singh, P.W. 5 stated that he reached the house of Balbir Singh at about 5.30 p.m. and that it had become dark when they started for the hospital. He denied stating to the police that the time of the occurrence was 7 or 7.15 p.m. There is some discrepancy in the evidences of these witnesses and an attempt is made by some of them to fix the time of the occurrence are about 6 or 6.30 p.m.It is, however, contended on behalf of the appellant that in the dying declaration Richhpal Kaur stated the time to be 8 p.m. and if this is true, darkness had already set in and it would not be possible for thes to identify the person who fired from the appellantshouse.We think this contention ignores that Richhpal Kaur had given the time of the incident as about 8 p.m. which clearly indicates that it was only approximate. It would be too artificial to read here deposition as giving a precise time. Reading the evidence as a whole there can be no doubt that the approximate time of the occurrence can be fixed at about 7 or 7.15 p.m. as given immediately thereafter in the First Information Report. Even so, it is submitted that darkness would have set in by that time but as pointed out by the trial Court, immediately after the setting of the sun it does not become dark as there would be light for considerable time which would enable one to identify others specially when the persons concerned are known from before. It may also be noticed that according to P.W. 11 at the time of firing the moon was visible and this fact was also adverted to by the Trial Court when it said that the moon came up immediately. The High Court accepted this appreciation of evidence of the Trial Court and further pointed out that the place from which the firing took place and that the place at which the deceased was hurt were at a distance of 600 and if there was darkness the assailant could not have correctly aimed at the deceased specially when she was not expected to be present there at that time. The High Court further referred to the common experience that even after the setting of the sun, twilight continues to remain present for a considerable time in that part of the country specially in the months of September and October, when the sky is comparatively clearer than in other months. We have no reason to differ from the conclusions arrived at by both the courts that there was sufficient light for thes to identify the person or persons who were shooting from the house of the appellant10. That the appellant was the person who shot at the deceased is abundantly clear from Exhibit, the dying declaration of the deceased11. Only two questions were asked by the Magistrate as to (1) who fired at her and with what weapon, and (2) on which part the injury has been received. To both of these questions her reply was clear and precise. She stated that Nirmal Singh had shot her with a gun that day in the evening at about 8 p.m., that the name of Nirmal Singhs father is Teja Singh Jat Sikh and that the injuries have been received on the stomach and on both the thighs. It was sought to be pointed out that Dr. Gahlot did not say that he had been asked by P.W. 8 about the condition of the injured and that he had certified that she was conscious and in a fit condition to make a statement. It is true that the Doctor did not make a categorical statement that the Magistrate had asked him whether the injured was conscious and in a fit state to make a statement. He, however, said that he does not recollect if her dying declaration was recorded by a Magistrate in his presence nor was he, after seeing the endorsement in Exhibit, able to recollect if Mr. Mathur had come and recorded her statement. There seems to have been some mistake as the Doctor seems to have misread the name in Exhibit. Be that as it may, according to P.W. 8 who had no reason to depose falsely, he verified that the injured was in her senses from Dr. Gahlot. He says that Dr. Gahlot told him that Mst. Richhpal Kaur was able to make a statement. There was non on this aspect. All that was asked was whether the relations of Mst. Richhpal Kaur were present when he recorded the statement and the Magistrate replied that they were not. We are satisfied that this dying declaration is authentic and was given by person who was conscious and in a fit condition to give the statement.It was again urged that P.Ws. 1, 2 and others who were injured had travelled with her in the same cart and tutored her.There is absolutely no evidence of this. On the other hand, none of the prosecution witnesses could have travelled in the same cart as already seen she was put in a cot and the cot was placed in a cart so that there could be no room for any other to travel with her. The Magistrates evidence also shows that there was no one present when he recorded the statement12. There is ample corroboration of the statement of the deceased in that she mentioned about her injuries which are borne out by not only the evidence of Dr. Vyas, P.W. 7 but them report. The injuries on P.Ws. 1, 4, 5 and 10 and the evidence of these witnesses afford further corroboration to the dying declaration, that the appellant had shot at the deceased. Lastly it is urged that the injuries on the deceased and the several witnesses to which we have referred, were the result of an accident. Whatever credibility there may be in this defence, and we are not able to understand how two shots could have been fired by accident which is what prosecution witnesses have spoken to and accepted as true by both the courts, it was not put forward either before the Trial Court or before the High Court, nor is there anything in the statement of the accused under Section 342, Cr. P.C. to justify it. On the other hand, the accuseds case militates against any theory of accident because according to him he was not present and it was only his Chowkidar who fired in reply to the firing from the house of Balbir Singh. Once that defence is disbelieved as indeed it has been, the theory of accident falls to the ground. There was a faint suggestion that the act of the appellant was such as would bring the case under Section 304 but this in our view would be. It may be pointed out that there were as many as four frontal entry wounds on the deceased and two on the buttocks. There was one wound at the back which was an exit wound. The frontal injuries show that the deceased was shot at while she was facing the house of the appellant but it is stated that some of the injuries are on the side and the buttock which do not justify this conclusion. The fallacy in this argument is based on the assumption, which is invalid, that the deceased hadl until the firing was over and was not moving or that when she fell down she fell on her back only.

### 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: continues to remain present for a considerable time in that part of the country specially in the months of September and October, when the sky is comparatively clearer than in other months. We have no reason to differ from the conclusions arrived at by both the courts that there was sufficient light for the eye-witnesses to identify the person or persons who were shooting from the house of the appellant. 10. That the appellant was the person who shot at the deceased is abundantly clear from Exhibit P-11, the dying declaration of the deceased. The probative value of this dying declaration, however, has been challenged on the ground that the Magistrate P.W. 8 did not obtain the certificate of the Doctor that the deceased was conscious and was in a fit condition to make the statement. In the dying declaration the Magistrate stated thus :"I reached the Civil Hospital at Ganganagar on September 30, 1965, at 11.45 p.m. and Dr. Gahlot told that her condition, i.e. the condition of Smt. Richhpal Kuar was bad but she could give some statement. Thereupon the statement of Smt. Richhpal Kaur was recorded and whatever she deposed it was taken correctly and it was read over and she admitted it to be correct." 11. Only two questions were asked by the Magistrate as to (1) who fired at her and with what weapon, and (2) on which part the injury has been received. To both of these questions her reply was clear and precise. She stated that Nirmal Singh had shot her with a gun that day in the evening at about 8 p.m., that the name of Nirmal Singhs father is Teja Singh Jat Sikh and that the injuries have been received on the stomach and on both the thighs. It was sought to be pointed out that Dr. Gahlot did not say that he had been asked by P.W. 8 about the condition of the injured and that he had certified that she was conscious and in a fit condition to make a statement. It is true that the Doctor did not make a categorical statement that the Magistrate had asked him whether the injured was conscious and in a fit state to make a statement. He, however, said that he does not recollect if her dying declaration was recorded by a Magistrate in his presence nor was he, after seeing the endorsement in Exhibit P-11, able to recollect if Mr. Mathur had come and recorded her statement. There seems to have been some mistake as the Doctor seems to have misread the name in Exhibit P-11. Be that as it may, according to P.W. 8 who had no reason to depose falsely, he verified that the injured was in her senses from Dr. Gahlot. He says that Dr. Gahlot told him that Mst. Richhpal Kaur was able to make a statement. There was no cross-examination on this aspect. All that was asked was whether the relations of Mst. Richhpal Kaur were present when he recorded the statement and the Magistrate replied that they were not. We are satisfied that this dying declaration is authentic and was given by person who was conscious and in a fit condition to give the statement. It was again urged that P.Ws. 1, 2 and others who were injured had travelled with her in the same cart and tutored her. There is absolutely no evidence of this. On the other hand, none of the prosecution witnesses could have travelled in the same cart as already seen she was put in a cot and the cot was placed in a cart so that there could be no room for any other to travel with her. The Magistrates evidence also shows that there was no one present when he recorded the statement. 12. There is ample corroboration of the statement of the deceased in that she mentioned about her injuries which are borne out by not only the evidence of Dr. Vyas, P.W. 7 but the post-mortem report. The injuries on P.Ws. 1, 4, 5 and 10 and the evidence of these witnesses afford further corroboration to the dying declaration, that the appellant had shot at the deceased. Lastly it is urged that the injuries on the deceased and the several witnesses to which we have referred, were the result of an accident. Whatever credibility there may be in this defence, and we are not able to understand how two shots could have been fired by accident which is what prosecution witnesses have spoken to and accepted as true by both the courts, it was not put forward either before the Trial Court or before the High Court, nor is there anything in the statement of the accused under Section 342, Cr. P.C. to justify it. On the other hand, the accuseds case militates against any theory of accident because according to him he was not present and it was only his Chowkidar who fired in reply to the firing from the house of Balbir Singh. Once that defence is disbelieved as indeed it has been, the theory of accident falls to the ground. There was a faint suggestion that the act of the appellant was such as would bring the case under Section 304 but this in our view would be far-fetched. It may be pointed out that there were as many as four frontal entry wounds on the deceased and two on the buttocks. There was one wound at the back which was an exit wound. The frontal injuries show that the deceased was shot at while she was facing the house of the appellant but it is stated that some of the injuries are on the side and the buttock which do not justify this conclusion. The fallacy in this argument is based on the assumption, which is invalid, that the deceased had stood-still until the firing was over and was not moving or that when she fell down she fell on her back only. ### Response: 1

Shrishri Infrastructure Pvt. Ltd Vs. The State of Maharashtra and Ors

and financial bids were opened on the same day; and (v) In spite of the fact that the petitioner being lowest bidder his claim was turned down on flimsy grounds. 15. In the instant case, the online percentage rate tenders were invited for carrying out construction work of eight primary health centers at various places within the Jalgaon district. The bidders were required to fill up the online tender between 20.11.2020 to 14.12.2020 till 18:00 hours. The technical bid was scheduled to be opened on 16.12.2020. Clause 6 of the tender notice mandated five days gap between the opening of the technical and financial bids. In the petition, initially, petitioner company did not disclose the fact that on its request the last date for submitting the online tender was extended. However, after filing the affidavit in reply by respondent Nos. 2 to 4, the petitioner company in its rejoinder affidavit conceded the fact that it had made an application to the respondent authorities for extension of time to submit/upload the tender document and accordingly, time was extended. As the time was extended, the technical bids were opened on 21.12.2020. It is admitted position that the financial bids were opened on 29.01.2021. There is therefore, no merit in the grievance of the petitioner company that there was no gap as mandated by Clause 6 of the tender notice, between the opening of the technical and financial bids. It is pertinent to note that initially the last date for filling the tender was 14.12.2020, however, on the request of the petitioner company, the same was extended as the petitioner could not upload the declaration, and even after extension of time it failed to upload the same. The petitioner company did not make any grievance to suggest that because of slowness of web portal it could not upload the declaration till opening of the financial bids. On a close scrutiny of the conditions contained in the tender notice, it is evident that all these conditions were to be complied with in letter and spirit and non-compliance of any of these conditions would lead to non-acceptance of the tender submitted by any tenderer. Admittedly, the petitioner had not submitted the declaration as required under the said tender conditions. It is trite that the statement of declaration and signature of the applicant assures that all the data is 100% true to the applicants knowledge and this prevents confusion, misconception and fraud in the process. 16. It is quite clear that the tender that was submitted by the petitioner company did not fulfill the requirements of the tender notice, in that the declaration which was mandatory and therefore, an integral part of the tender process, was not submitted within the time stipulated in the said notice or even thereafter. 17. The respondent authorities rightly held that the petitioner company did not comply with this condition, namely, submitting/uploading of the declaration within the specified period. It is pertinent that on the request of the petitioner company the last date for filing the tender was extended by 3 days as the petitioner company could not upload the declaration. However during the extended period and thereafter also the petitioner company did not submit/upload the declaration nor made any grievance till opening of the financial bid. The application given by the petitioner to submit declaration is after the opening of the financial bids. The respondent authorities did not consider its claim for financial bid. The said decision cannot be said to be in any manner arbitrary, mala-fide or unreasonable. Despite being aware of the said stipulation, the petitioner company did not submit the required document. The terms and conditions of the tender are required to be adhered to strictly. Contractual terms which define conditions of eligibility must be scrupulously enforced. A relaxation of a contractual term in the case of a particular bidder is liable to render the entire process arbitrary. In the present case, the tender condition of submitting the declaration is clear in its stipulation and therefore, the respondent authorities have rightly held the petitioner company ineligible for opening of its financial bid as it did not meet the conditions of eligibility. 18. The learned counsel for the petitioner placed reliance upon the following rulings of the Honble Supreme Court, viz. – to buttress its submission that the decision making process of the Government or its instrumentality should not be arbitrary, mala-fide or unreasonable. (i) Municipal Council, Neemuch Vs. Mahadeo Real Estate and Ors., (2019) 10 SCC 738 ; (ii) Bharat Coking Coal Limited and Ors. Vs. AMR Dev Prabha and Ors., (2020) 16 SCC 759 ; and (iii) Rashmi Metaliks Limited and Anr. Vs. Kolkata Metropolitan Development Authority and Ors., (2013) 10 SCC 95 . 19. The precise chronology of events as amply described and pointed out above, however, does not smack of any mala-fides, arbitrariness or unreasonableness in the decision making process adopted by the respondent authorities. On the contrary, the said process clearly appears to be quite transparent at all its stages from the beginning to the end. 20. One of the contentions of the petitioner was that in spite of being declared as the lowest bidder his claim was turned down. It appears to be petitioners own perception. In this respect, it is pertinent that as the petitioner company was held ineligible for the opening of its financial bid there was no occasion to open its financial bid. Apart from this, being declared the lowest bidder does not bestow a right upon any entity to the award of the contract. All that participating bidders are entitled to is a fair, equal and nondiscriminatory treatment. 21. The claim of the petitioner company in respect of slowness of the web portal is however, denied by the respondents and according to it rightly. Other tenderers successfully filled in the tender. We are therefore, not inclined to upset the process which would only cause further delay and would increase the burden on the exchequer of the Zilla Parishad.

0[ds]15. In the instant case, the online percentage rate tenders were invited for carrying out construction work of eight primary health centers at various places within the Jalgaon district. The bidders were required to fill up the online tender between 20.11.2020 to 14.12.2020 till 18:00 hours. The technical bid was scheduled to be opened on 16.12.2020. Clause 6 of the tender notice mandated five days gap between the opening of the technical and financial bids. In the petition, initially, petitioner company did not disclose the fact that on its request the last date for submitting the online tender was extended. However, after filing the affidavit in reply by respondent Nos. 2 to 4, the petitioner company in its rejoinder affidavit conceded the fact that it had made an application to the respondent authorities for extension of time to submit/upload the tender document and accordingly, time was extended. As the time was extended, the technical bids were opened on 21.12.2020. It is admitted position that the financial bids were opened on 29.01.2021. There is therefore, no merit in the grievance of the petitioner company that there was no gap as mandated by Clause 6 of the tender notice, between the opening of the technical and financial bids. It is pertinent to note that initially the last date for filling the tender was 14.12.2020, however, on the request of the petitioner company, the same was extended as the petitioner could not upload the declaration, and even after extension of time it failed to upload the same. The petitioner company did not make any grievance to suggest that because of slowness of web portal it could not upload the declaration till opening of the financial bids. On a close scrutiny of the conditions contained in the tender notice, it is evident that all these conditions were to be complied with in letter and spirit and non-compliance of any of these conditions would lead to non-acceptance of the tender submitted by any tenderer. Admittedly, the petitioner had not submitted the declaration as required under the said tender conditions. It is trite that the statement of declaration and signature of the applicant assures that all the data is 100% true to the applicants knowledge and this prevents confusion, misconception and fraud in the process.16. It is quite clear that the tender that was submitted by the petitioner company did not fulfill the requirements of the tender notice, in that the declaration which was mandatory and therefore, an integral part of the tender process, was not submitted within the time stipulated in the said notice or even thereafter.17. The respondent authorities rightly held that the petitioner company did not comply with this condition, namely, submitting/uploading of the declaration within the specified period. It is pertinent that on the request of the petitioner company the last date for filing the tender was extended by 3 days as the petitioner company could not upload the declaration. However during the extended period and thereafter also the petitioner company did not submit/upload the declaration nor made any grievance till opening of the financial bid. The application given by the petitioner to submit declaration is after the opening of the financial bids. The respondent authorities did not consider its claim for financial bid. The said decision cannot be said to be in any manner arbitrary, mala-fide or unreasonable. Despite being aware of the said stipulation, the petitioner company did not submit the required document. The terms and conditions of the tender are required to be adhered to strictly. Contractual terms which define conditions of eligibility must be scrupulously enforced. A relaxation of a contractual term in the case of a particular bidder is liable to render the entire process arbitrary. In the present case, the tender condition of submitting the declaration is clear in its stipulation and therefore, the respondent authorities have rightly held the petitioner company ineligible for opening of its financial bid as it did not meet the conditions of eligibility.19. The precise chronology of events as amply described and pointed out above, however, does not smack of any mala-fides, arbitrariness or unreasonableness in the decision making process adopted by the respondent authorities. On the contrary, the said process clearly appears to be quite transparent at all its stages from the beginning to the end.It appears to be petitioners own perception. In this respect, it is pertinent that as the petitioner company was held ineligible for the opening of its financial bid there was no occasion to open its financial bid. Apart from this, being declared the lowest bidder does not bestow a right upon any entity to the award of the contract. All that participating bidders are entitled to is a fair, equal and nondiscriminatory treatment.21. The claim of the petitioner company in respect of slowness of the web portal is however, denied by the respondents and according to it rightly. Other tenderers successfully filled in the tender. We are therefore, not inclined to upset the process which would only cause further delay and would increase the burden on the exchequer of the Zilla Parishad.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: and financial bids were opened on the same day; and (v) In spite of the fact that the petitioner being lowest bidder his claim was turned down on flimsy grounds. 15. In the instant case, the online percentage rate tenders were invited for carrying out construction work of eight primary health centers at various places within the Jalgaon district. The bidders were required to fill up the online tender between 20.11.2020 to 14.12.2020 till 18:00 hours. The technical bid was scheduled to be opened on 16.12.2020. Clause 6 of the tender notice mandated five days gap between the opening of the technical and financial bids. In the petition, initially, petitioner company did not disclose the fact that on its request the last date for submitting the online tender was extended. However, after filing the affidavit in reply by respondent Nos. 2 to 4, the petitioner company in its rejoinder affidavit conceded the fact that it had made an application to the respondent authorities for extension of time to submit/upload the tender document and accordingly, time was extended. As the time was extended, the technical bids were opened on 21.12.2020. It is admitted position that the financial bids were opened on 29.01.2021. There is therefore, no merit in the grievance of the petitioner company that there was no gap as mandated by Clause 6 of the tender notice, between the opening of the technical and financial bids. It is pertinent to note that initially the last date for filling the tender was 14.12.2020, however, on the request of the petitioner company, the same was extended as the petitioner could not upload the declaration, and even after extension of time it failed to upload the same. The petitioner company did not make any grievance to suggest that because of slowness of web portal it could not upload the declaration till opening of the financial bids. On a close scrutiny of the conditions contained in the tender notice, it is evident that all these conditions were to be complied with in letter and spirit and non-compliance of any of these conditions would lead to non-acceptance of the tender submitted by any tenderer. Admittedly, the petitioner had not submitted the declaration as required under the said tender conditions. It is trite that the statement of declaration and signature of the applicant assures that all the data is 100% true to the applicants knowledge and this prevents confusion, misconception and fraud in the process. 16. It is quite clear that the tender that was submitted by the petitioner company did not fulfill the requirements of the tender notice, in that the declaration which was mandatory and therefore, an integral part of the tender process, was not submitted within the time stipulated in the said notice or even thereafter. 17. The respondent authorities rightly held that the petitioner company did not comply with this condition, namely, submitting/uploading of the declaration within the specified period. It is pertinent that on the request of the petitioner company the last date for filing the tender was extended by 3 days as the petitioner company could not upload the declaration. However during the extended period and thereafter also the petitioner company did not submit/upload the declaration nor made any grievance till opening of the financial bid. The application given by the petitioner to submit declaration is after the opening of the financial bids. The respondent authorities did not consider its claim for financial bid. The said decision cannot be said to be in any manner arbitrary, mala-fide or unreasonable. Despite being aware of the said stipulation, the petitioner company did not submit the required document. The terms and conditions of the tender are required to be adhered to strictly. Contractual terms which define conditions of eligibility must be scrupulously enforced. A relaxation of a contractual term in the case of a particular bidder is liable to render the entire process arbitrary. In the present case, the tender condition of submitting the declaration is clear in its stipulation and therefore, the respondent authorities have rightly held the petitioner company ineligible for opening of its financial bid as it did not meet the conditions of eligibility. 18. The learned counsel for the petitioner placed reliance upon the following rulings of the Honble Supreme Court, viz. – to buttress its submission that the decision making process of the Government or its instrumentality should not be arbitrary, mala-fide or unreasonable. (i) Municipal Council, Neemuch Vs. Mahadeo Real Estate and Ors., (2019) 10 SCC 738 ; (ii) Bharat Coking Coal Limited and Ors. Vs. AMR Dev Prabha and Ors., (2020) 16 SCC 759 ; and (iii) Rashmi Metaliks Limited and Anr. Vs. Kolkata Metropolitan Development Authority and Ors., (2013) 10 SCC 95 . 19. The precise chronology of events as amply described and pointed out above, however, does not smack of any mala-fides, arbitrariness or unreasonableness in the decision making process adopted by the respondent authorities. On the contrary, the said process clearly appears to be quite transparent at all its stages from the beginning to the end. 20. One of the contentions of the petitioner was that in spite of being declared as the lowest bidder his claim was turned down. It appears to be petitioners own perception. In this respect, it is pertinent that as the petitioner company was held ineligible for the opening of its financial bid there was no occasion to open its financial bid. Apart from this, being declared the lowest bidder does not bestow a right upon any entity to the award of the contract. All that participating bidders are entitled to is a fair, equal and nondiscriminatory treatment. 21. The claim of the petitioner company in respect of slowness of the web portal is however, denied by the respondents and according to it rightly. Other tenderers successfully filled in the tender. We are therefore, not inclined to upset the process which would only cause further delay and would increase the burden on the exchequer of the Zilla Parishad. ### Response: 0

Lila Ram Etc Vs. Union of India and Others Etc

notification were subsequently ordered not to be acquired. This fact too, in our opinion, would not militate against the validity of the acquisition of the land of the appellant. According to section SA of the Act, any person interested in any land which has been notified under section 4, sub-section (1), as being need ed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. The objector is then given opportunity of being heard and thereafter a report is submitted to the appropriate Government by the Collector containing his recommendations on the objections. It is for the appropriate Government thereafter to take the decision on the objections. There is, therefore, no inherent infirmity in the decision of the Government in accepting some of the objections and rejecting others. The question as to what factors weighed with the authorities concerned in deciding not to acquire the land of others need not be gone into in these proceedings because that would not in any way affect the validity of the acquisition of the land of the appellantCivil Appeal No. 989 of 1968 has been filed by the Birla Cotton Spg. &Wvg. Mills Ltd. in connection with the acquisition of its land measuring 9 bighas 1 biswas situated in village Ada Chini. Notification under section 4 of the Act in respect of the appellants land was issued on November 13, 1959. Declaration under section 6 of the Act was issued on May 14, 1962. Various grounds were urged before the High Court on behalf of the appellant challenging the validity of the acquisition of its land. We are not, however, concerned with them all as Mr. Hardy on behalf of the appellant in this appeal has advanced only one contention. According to the learned counsel, no adequate opportunity was given to the appellant of being heard after the appellant had filed objections under section 5A of the Act to the acquisition of the land. Clause (2) of section SA reads as under:"(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to t he appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government shall b e, final."6. After notification under section 4 of the Act was issued on November 13, 1959 the appellant company filed objections on December 12, 1959. Intimation was thereupon given to the appellant that the objections were fixed for hearing in the office of the Collector on May 9, 1961. According to the case of the respondents, no one representing the appellant company appeared on the date of hearing. The High Court apparently accepted this stand and in this context observed that no affidavit of the person who was alleged to have been present on behalf of the appellant on May 9, 1961 had been filed. In any case, the learned Judges had no doubt that the objections submitted by the appellant were considered along with the objections of other interested persons before the decision was taken to go ahead with acquisition proceedings.At the hearing of the appeal Mr. Hardy has referred to judgment G dated May 15 1972 of the Delhi High Court in a case filed by the appellant company against the respondents relating to the acquisition of some other land of the appellant. In that case a number of affidavits were filed and on consideration of those affidavits as well as the fact that the respondents had not been able to produce the relevant file before the High Court, the High Court inferred that a representative of the appellant has actually appeared before the Collector on May 9, 1961 when objections relating to the acquisition of the other land were taken up. The finding of the Delhi High Court in the other case cannot, in our opinion, be of much avail to the appellant because we are unable to rely upon that finding for coming to the conclusion that a representative of the appellant actually appear ed before the Collector in support of the objections relating to the acquisition of the land in dispute in the present case. The present case has to be decided upon the material brought on the record in this, case As already observed above, no affidavit of the person who was alleged to have appeared on behalf of the appellant before the Collector in the proceedings with which we are concerned was filed. There is also nothing to rule out the possibility of a person deputed to attend the hearings of two different cases fixed for the same date in a court appearing in only one of them and not being present when the second case is called. The relevant file was sent for at the instance of the appellant company and was produced before us. It contains the written representation of the appellant. We find no indication therein that a representative of the appellant was actually present before the Collector on May 9, 1961. The report of the Collector shows that he considered objections of a , number of other parties who were present before him and sent his recommendations about the lands of those objectors. As regards the lands upon which nothing had been built, the recommendation was that the objections of the objectors be ignored. The appellants land belonged to the last mentioned category.

0[ds]In this collection we find that the judgment of the High Court shows that the appellant did not challenge the notification in question or the acquisition proceedings on the ground that the public purpose mentioned in the notification was vague. As such, the appellant in our opinion, cannot be allowed to agitate this question for the first time in appeal. Apart from that, we are of the view that the public purpose mentioned in the notification. namely, for the execution of the Interim General Plan for the Greater Delhi, is specific in the circumstances and does not suffer from any vagueness. It is significant that the land covered by the notification is not a small plot but a huge area covering thousands of acres. In such cases it is difficult to insist upon greater precision for specifying the public purpose because it is quite possible that various plots covered by the notification may have to be utilised for different purposes set out in the Interim General Plan. No objection. was also taken by the appellant before the authorities concerned that the public purpose mentioned in the notification was not specification enough and as such he was not able to file effective objections against the proposed acquisition. In the case of Munshi Singh and Ors. (supra) the complaint of the appellant was that he was unable to object effectively under section 5A of the Act to the proposed acquisition. The appellant in that case in that context referred to the fact that a scheme of planned development was not made available to hi m in spite of his application. As against that, as already mentioned, no objection was taken by the appellant that because of alleged vagueness of the public purpose he was not able to file any effective objection under section 5A of the Act. The case of Munshi Singh, it may also be pointed out, was considered by the Constitution Bench of this Court in the case of Aflatoon and ors. v. Lt. Governor of Delhi and ors.(A. I. R. 1974 S. C. 2077.) and it was observed that in the case of acquisition of a large area of land comprising several plots belonging to different persons, the specification of the Purpose can only be with reference to the acquisition of the whole area. Unlike in the case of acquisition of a small area, it might practically be difficult to specify the particular public purpose for which each and every item of land comprised in the area is needed. This Court in that case upheld the validity of the notification by for the acquisition of land for "the planned development of Delhi". In a subsequent unreported case Ratni Devi v. Chief Commissioner (WP.Nos. 332and 333 of 1971 decided on April 13, 1975.) this Court reiterated after referring to Aflatoons case that acquisition OF land for the planned development of Delhi was for a public purpose.There is also no force in the submission made on behalf of the appellant that the execution of the Interim General Plan is not a public purpose. The affidavit of Shri Rathee shows that consequent upon the increase in the population of Delhi after the partition of the country the Central Government decided that a single planning and development authority should be set up to deal with the land and housing problems in Delhi. As the constitution of such a body would have taken some time and as none of the existing authorities had the necessary lower to check, control or regulate building activities which were rapidly creating slum conditions in the city, the Delhi (Control of Building operations) Ordinance 1955 was promulgated on October 22, 1955. The Delhi Development (Provisional) Authority was constituted under the provisions of the ordinance to prevent unplanned and haphazard development and constructions. The ordinance was later on superseded by the Delhi (Control of Building operations) Act, 1955. Simultaneously the Town Planning organisation was set up in November 1955 to draw up a Master Plan for Delhi. In September 1956 this organization submitted an Interim General Plan which was considered by the Central Cabinet in October 1956 and was approved subject to such variations, as might be found necessary on further examinations. It will thus be seen that the Interim General Plan was prepared and published by the Government after approval by the Cabinet as a policy decision for development of Delhi as an interim measure, till a Master Plan could be made ready. We have already referred to the case of Aflatoon wherein this Court laid down that the planned development of Delhi was a public purpose for the purpose of section 4 of the Act. As the object of the Interim General Plan was to prevent haphazard and unplanned development of Delhi and thereby to ensure planned development of Delhi, the execution of the Interim General Plan must be held to be a public purpose for the purpose of section 4 of the Act.Equally devoid of force is the submission that the proceedings for the acquisition of land are liable to be struck down on the ground that the notification under section 4 of the Act was issued for the collateral purpose of freezing the land of the appellant. As already stat ed above, the public purpose mentioned in the notification under section 4 of the Act was the execution of the Interim General Plan for the Greater Delhi. It is true that the effect of the notification under section 4 of the Act was to freeze the land, but that fact would not in any way affect the validity of the notification. The object of a notification under section 4 is to give public notice that it is proposed to acquire the land mentioned in the notification and that any one who deals in that land subsequent to the notification would do so at his own risk According to section 23 of the Act, in determining the amount of compensation to be awarded for land acquired under the Act, the Court shall take into consideration, besides other factors, the market value of the land at the date of the publication of the notification under section 4. It is further provided in section 24 of the Act that the Court shall not take into consideration any outlay or improvements on, or disposal of, the land acquired, commenced, made or affected without the sanction of the Collector after the date of the publication of the notification under section 4. It is therefore, obvious that the consequence of the "freezing of the land" about which complaint has been made by the appellant is inherent in the nature; of things once a notification under section 4 is issued.After notification under section 4 of the Act was issued on November 13, 1959 the appellant company filed objections on December 12, 1959. Intimation was thereupon given to the appellant that the objections were fixed for hearing in the office of the Collector on May 9, 1961. According to the case of the respondents, no one representing the appellant company appeared on the date of hearing. The High Court apparently accepted this stand and in this context observed that no affidavit of the person who was alleged to have been present on behalf of the appellant on May 9, 1961 had been filed. In any case, the learned Judges had no doubt that the objections submitted by the appellant were considered along with the objections of other interested persons before the decision was taken to go ahead with acquisition proceedings.At the hearing of the appeal Mr. Hardy has referred to judgment G dated May 15 1972 of the Delhi High Court in a case filed by the appellant company against the respondents relating to the acquisition of some other land of the appellant. In that case a number of affidavits were filed and on consideration of those affidavits as well as the fact that the respondents had not been able to produce the relevant file before the High Court, the High Court inferred that a representative of the appellant has actually appeared before the Collector on May 9, 1961 when objections relating to the acquisition of the other land were taken up. The finding of the Delhi High Court in the other case cannot, in our opinion, be of much avail to the appellant because we are unable to rely upon that finding for coming to the conclusion that a representative of the appellant actually appear ed before the Collector in support of the objections relating to the acquisition of the land in dispute in the present case. The present case has to be decided upon the material brought on the record in this, case As already observed above, no affidavit of the person who was alleged to have appeared on behalf of the appellant before the Collector in the proceedings with which we are concerned was filed. There is also nothing to rule out the possibility of a person deputed to attend the hearings of two different cases fixed for the same date in a court appearing in only one of them and not being present when the second case is called. The relevant file was sent for at the instance of the appellant company and was produced before us. It contains the written representation of the appellant. We find no indication therein that a representative of the appellant was actually present before the Collector on May 9, 1961. The report of the Collector shows that he considered objections of a , number of other parties who were present before him and sent his recommendations about the lands of those objectors. As regards the lands upon which nothing had been built, the recommendation was that the objections of the objectors be ignored. The appellants land belonged to the last mentioned category.

### 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: notification were subsequently ordered not to be acquired. This fact too, in our opinion, would not militate against the validity of the acquisition of the land of the appellant. According to section SA of the Act, any person interested in any land which has been notified under section 4, sub-section (1), as being need ed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. The objector is then given opportunity of being heard and thereafter a report is submitted to the appropriate Government by the Collector containing his recommendations on the objections. It is for the appropriate Government thereafter to take the decision on the objections. There is, therefore, no inherent infirmity in the decision of the Government in accepting some of the objections and rejecting others. The question as to what factors weighed with the authorities concerned in deciding not to acquire the land of others need not be gone into in these proceedings because that would not in any way affect the validity of the acquisition of the land of the appellantCivil Appeal No. 989 of 1968 has been filed by the Birla Cotton Spg. &Wvg. Mills Ltd. in connection with the acquisition of its land measuring 9 bighas 1 biswas situated in village Ada Chini. Notification under section 4 of the Act in respect of the appellants land was issued on November 13, 1959. Declaration under section 6 of the Act was issued on May 14, 1962. Various grounds were urged before the High Court on behalf of the appellant challenging the validity of the acquisition of its land. We are not, however, concerned with them all as Mr. Hardy on behalf of the appellant in this appeal has advanced only one contention. According to the learned counsel, no adequate opportunity was given to the appellant of being heard after the appellant had filed objections under section 5A of the Act to the acquisition of the land. Clause (2) of section SA reads as under:"(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to t he appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government shall b e, final."6. After notification under section 4 of the Act was issued on November 13, 1959 the appellant company filed objections on December 12, 1959. Intimation was thereupon given to the appellant that the objections were fixed for hearing in the office of the Collector on May 9, 1961. According to the case of the respondents, no one representing the appellant company appeared on the date of hearing. The High Court apparently accepted this stand and in this context observed that no affidavit of the person who was alleged to have been present on behalf of the appellant on May 9, 1961 had been filed. In any case, the learned Judges had no doubt that the objections submitted by the appellant were considered along with the objections of other interested persons before the decision was taken to go ahead with acquisition proceedings.At the hearing of the appeal Mr. Hardy has referred to judgment G dated May 15 1972 of the Delhi High Court in a case filed by the appellant company against the respondents relating to the acquisition of some other land of the appellant. In that case a number of affidavits were filed and on consideration of those affidavits as well as the fact that the respondents had not been able to produce the relevant file before the High Court, the High Court inferred that a representative of the appellant has actually appeared before the Collector on May 9, 1961 when objections relating to the acquisition of the other land were taken up. The finding of the Delhi High Court in the other case cannot, in our opinion, be of much avail to the appellant because we are unable to rely upon that finding for coming to the conclusion that a representative of the appellant actually appear ed before the Collector in support of the objections relating to the acquisition of the land in dispute in the present case. The present case has to be decided upon the material brought on the record in this, case As already observed above, no affidavit of the person who was alleged to have appeared on behalf of the appellant before the Collector in the proceedings with which we are concerned was filed. There is also nothing to rule out the possibility of a person deputed to attend the hearings of two different cases fixed for the same date in a court appearing in only one of them and not being present when the second case is called. The relevant file was sent for at the instance of the appellant company and was produced before us. It contains the written representation of the appellant. We find no indication therein that a representative of the appellant was actually present before the Collector on May 9, 1961. The report of the Collector shows that he considered objections of a , number of other parties who were present before him and sent his recommendations about the lands of those objectors. As regards the lands upon which nothing had been built, the recommendation was that the objections of the objectors be ignored. The appellants land belonged to the last mentioned category. ### Response: 0

K. K. Chari Vs. R. M. Seshadri

many as 45 Exs. one of which was the order of eviction obtained against him, being Ext 45. The respondent did not cross-examine the appellant. When the evidence of the landlord was before the court supported, as it was by, the innumerable exhibits filed by him, it can surely be stated that a stage had been reached when the Controller was called upon to apply his mind to the question whether the plea of the landlord that he required the premises for his own occupation was bona fide. There is the further circumstance that the tenant did not cross-examine the plaintiff. On the other hand, he entered into a compromise in and by which he withdrew his defence and submitted to a decree for eviction unconditionally His withdrawal of the defence, after the plaintiff had given evidence and filed exhibits in support of his plea, clearly shows that he accepted as true the claim of the landlord that he requires the premises bona fide for his own occupation. He has accepted the position that the landlord has made out the statutory requirement, entitling him to ask for possession of the premises. It is this unconditional withdrawal of the defence regarding the statutory condition pleaded by the landlord, and the compromise following it that was accepted by the court and a decree for eviction passed thereon. Under these circumstances, when the tenant has accepted the plea of the landlord, in our opinion, it is futile to hold that the Rent Controller must again embark upon an enquiry regarding the requirement of the landlord being bona fide and adjudicated upon the same. Ofcourse, if there is a dispute between the landlord and tenant, the court must decide the matter and adjudicate upon the plea of the landlord. 26. The true position appears to be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact viz. the existence of one or more of the conditions mentioned in S. l0 were shown to have existed when the Court made the order. Satisfaction of the Court, which is no doubt a prerequisite for the order of eviction, need not be by the manifestation home out by a judicial finding. If at some stage the Court was called upon to apply its mind to the question and there was sufficient material before it, before the parties invited it to pass an order in terms of their agreement, it is possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based. 27. It is no doubt true that before making an order for possession the court is under a duty to satisfy itself as to the truth of the landlords claim if there is a dispute between the landlord and tenant. But if the tenant in fact admits that the landlord is entitled to possession on one or other of the statutory grounds mentioned in the Act it is open to the court to act on that admission and make an order for possession in favour of the landlord without further enquiry. It is no doubt true that each case will have to be decided on its own facts to find out whether there is any material to justify an inference that an admission, express, or implied, has been made by the tenant about the existence of one or other of the statutory grounds. But in the case on hand, we have already referred to the specific claim of the landlord as well as the fact of the tenant withdrawing his defence. According to us, such withdrawal of the defence expressly amounts to the tenant admitting that the landlord has made out his case regarding his requiring the premises for his own occupation being bona fide. In the three decisions of this Court, to which we have already referred, the position was entirely different. In none of those eases was there any material to show that the tenant had expressly or impliedly accepted the plea of the landlord as true. Therefore those decisions do not assist the respondent-tenant. 28. For all the reasons mentioned above, it cannot be held in the particular circumstances of this case, that the decree for eviction has been passed solely on the basis of the compromise entered into between the parties. On the other hand, it is clear from the various matters referred to, that the court was satisfied about the bona fide requirement of the landlord. Therefore, the decree for eviction is neither void nor inexecutable. 29. Mr. Tarkunde, learned counsel, contended that if the execution Court is to find out, whether the court, which passed the decree, was satisfied about the statutory requirement in a particular case, it will have to conduct a very elaborate enquiry. We are not impressed with this contention. Once it is accepted that the question about the decree being void and as such not executable on any ground available in law can be raised before the executing Court, it is needless to state that the executing Court will have to adjudicate upon that plea and for that purpose the relevant materials have to be considered. If that is so, there is no insurmountable difficulty, as envisaged by Mr. Tarkunde, in an executing Court considering whether a particular decree for eviction is void as being contrary to the relevant sections of the statute governing the matter. 30. Mr. Tarkunde, learned counsel, contended that the tenant had disputed the title of the landlord as well as the validity of the notice issued under Section 106 of the Transfer of Property Act. As those matters have not been considered by the courts below, as requested that the proceedings may be remanded for this purpose. We are not inclined to accede to this request. The tenant raised these objections also in his original plea, but he has unconditionally withdrawn all his defence. That means those pleas also no longer survive for consideration.

1[ds]17. Our attention has been drawn to certain English decisions rendered under the Rent Restrictions Act, wherein it has been held that though the court has jurisdiction to order possession in favour of a landlord only on one or other of the specified statutory grounds, the court may act on an admission made by a tenant in that behalf and pass an order of eviction without being obliged to hear a case out. It is not necessary for us to refer to those decisions as in our opinion, the case on hand will have to be decided in accordance with the principles laid down by this Court18. There are three decisions of this Court which require to be considered. In Bahadur Singh v. Muni Subrat Dass, (1969) 2 SCR 432 , a decree for eviction passed on the basis of a compromise between the parties, was held by this Court, to be a nullity as contravening Section 13 (1) of the Delhi and Ajmer Rent Control Act 1952It will be seen from this decision that the decree was held to be a nullity because the landlord was not a party thereto, and also because the court had not satisfied itself that a ground for eviction, as required by the statute, existed. This decision is certainly an authority for the proposition that a court ordering eviction has to satisfy itself that a statutory ground of eviction has been made out by a landlord. How exactly that satisfaction is to be expressed by the court or gathered from the materials, has not been laid down in this decision, as this Court was not faced with such a problem20. In Kaushalya Devi v K. L. Bansal, (1969) 2 SCR 1048 = (AIR 1970 SC 838 ) the question again rose under the same Delhi statute regarding the validity of a decree passed for eviction on compromiseThe tenant did not vacate the premises within the time mentioned as per the compromise memo. On the other hand, he filed an application under Section 47, Civil Procedure Code, pleading that the decree is void as being in contravention of S. 13 of the Delhi statute. The High Court held that the decree was a nullity, as the order was passed solely on the basis of the compromise without indicating that any of the statutory grounds mentioned in Section 13 existed. Following the decision in Bahadur Singh, (1969) 2 SCR 432 this Court upheld the order of the High Court. Here again, it will be seen that the manner in which the courts satisfaction is to be expressed or gathered has not been dealt with21. A similar question came up again before this Court in Perozi Lal Jain v. Man Mal, AIR 1970 SC 794 . The landlord filed an application for eviction of the tenant on the ground that he had sublet the premises without obtaining his consent in writing. Subletting, without the consent of the landlord in writing, was one of the grounds under Section 13 (l) of the Delhi statute entitling a landlord to ask for eviction. The tenant denied the allegation that he had sublet the premises. Both the landlord and the tenant entered into a compromise and the court, after recording the same, passed the following orderAs the tenant did not surrender possession of the properties within the time mentioned in the compromise memo, the landlord levied execution. It was resisted by the tenant on various grounds one of which was that the decree for eviction was a nullity, being in contravention of Section 13 of the Delhi statute. This contention was accepted by the execution Court, as well as by the High Court. This Court, after a reference to the provisions of S. 13, held that a decree for recovery of possession can be passed only if the court concerned is satisfied that one or other of the grounds mentioned in the section is established. This Court, further observed :From the facts mentioned earlier, it is seen that at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not. Order made by it does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to show that it was so satisfied. It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was not competent to pass the impugned decree. Hence the decree under execution must be held to be a nullity22. Reference was also made to the two earlier decisions holding such decrees to be void. It is significant to note that this Court in the last mentioned decision referred to the facts leading upto the compromise decree, namely, the basis of the claim of the landlord, the denial by the tenant and both of them filing a memo of compromise without any reference to the plea of subletting made by the landlord. In the said decision this Court has held that the compromise decree is void, as there could have been no satisfaction of this Court regarding the statutory requirement in view of the following three circumstances:(1) At no stage the Court was called upon to apply its mind to the question whether the plea of subletting is true or not(2) The order made by the Court does not show that it was satisfied that the subletting complained of has taken place(3) There was no other material on record to show that the court was so satisfiedThe view of this Court further is that the decree for eviction has been passed solely on the basis of the compromise arrived at between the parties23. In the last decision, in our opinion, there is an indication as to how the satisfaction of a court can be expressed or gathered in a particular case. If a stage had been reached in a particular proceeding for a court to apply its mind regarding the existence of a statutory condition, it may be held that it was so satisfied about the plea of the landlord. Again from other material on record, it can be inferred that the court was so satisfied24. We are not inclined to accept the contention of Mr. Tarkunde that the decree for eviction in the case before us has been passed solely on the basis of the compromise arrived at between the parties. No doubt a reading of the order of the court dated March 31, 1959,isolated from all other circumstances, may give the impression that the decree for eviction is passed because of the compromise between the parties. It is no doubt true that the order on the face of it does not show that the court has expressed its satisfaction that the requirement of the landlord is bona fide. If the court had expressed its satisfaction in the order itself, that will conclude the matter. That the court was so satisfied can also be considered from the point of view whether a stage had been reached in the proceedings for the court to apply its mind to the relevant question? Other materials on record can also be taken into account to find out if the court was so satisfied. The High Court has proceeded on the basis that even if there was material before the court, when it passed the order of eviction by consent, from which it can be shown that the court was satisfied about the requirement of the landlord being bona fide, nevertheless such an order will be a nullity unless the Rent Controller has given his decision in favour of the landlord. In our opinion, this view is erroneousUnder these circumstances, when the tenant has accepted the plea of the landlord, in our opinion, it is futile to hold that the Rent Controller must again embark upon an enquiry regarding the requirement of the landlord being bona fide and adjudicated upon the same. Ofcourse, if there is a dispute between the landlord and tenant, the court must decide the matter and adjudicate upon the plea of the landlord26. The true position appears to be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact viz. the existence of one or more of the conditions mentioned in S. l0 were shown to have existed when the Court made the order. Satisfaction of the Court, which is no doubt a prerequisite for the order of eviction, need not be by the manifestation home out by a judicial finding. If at some stage the Court was called upon to apply its mind to the question and there was sufficient material before it, before the parties invited it to pass an order in terms of their agreement, it is possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based28. For all the reasons mentioned above, it cannot be held in the particular circumstances of this case, that the decree for eviction has been passed solely on the basis of the compromise entered into between the parties. On the other hand, it is clear from the various matters referred to, that the court was satisfied about the bona fide requirement of the landlord. Therefore, the decree for eviction is neither void nor inexecutableWe are not impressed with this contention. Once it is accepted that the question about the decree being void and as such not executable on any ground available in law can be raised before the executing Court, it is needless to state that the executing Court will have to adjudicate upon that plea and for that purpose the relevant materials have to be considered. If that is so, there is no insurmountable difficulty, as envisaged by Mr. Tarkunde, in an executing Court considering whether a particular decree for eviction is void as being contrary to the relevant sections of the statute governing the matterAs those matters have not been considered by the courts below, as requested that the proceedings may be remanded for this purpose. We are not inclined to accede to this request. The tenant raised these objections also in his original plea, but he has unconditionally withdrawn all his defence. That means those pleas also no longer survive for consideration34. I am of opinion that in this approach learned Judge relied more on the form than the substance of the matter. The true approach has been pointed out by our learned brother, Vaidialingam, J. He has pointed out that while the decision in Bahadur Singhs case (1969) 2 SCR 432 was an authority for the proposition that a court ordering eviction has to satisfy itself that a statutory ground of eviction has been made out by a landlord how exactly that satisfaction was to be expressed by the court or gathered from the materials, has not been laid down in that decision; that in Kaushalya Devis case AIR 1970 SC 838 also the manner in which the courts satisfaction was to be expressed or gathered has not been dealt with; nor has the decision in Ferozi Lals case AIR 1970 SC 794 given an indication as to how the satisfaction of a court could be expressed or gathered in a particular case. He has pointed out that if a stage had been reached in a particular proceeding for a court to apply its mind regarding the existence of a statutory condition, it may be held that it was so satisfied about the plea of the landlord. Again, from other material on record it can be inferred that the court was so satisfied. He has also pointed out how in the particular circumstances of the present case as the tenant had withdrawn his defence and submitted to a decree for eviction unconditionally, he had accepted the claim of the landlord that he required the premises bona fide for his own occupation; that he has accepted the position that the landlord has made out the statutory requirement entitling him to ask for possession of the premises; that by this unconditional withdrawal of the defence regarding the statutory condition pleaded by the landlord, and the compromise following it that was accepted by the court, the tenant has accepted the plea of the landlord, and it is futile to hold that the Rent Controller must again embark upon an enquiry regarding the requirement of the landlord being bona fide and adjudicate upon the same. He has also pointed out that the true position appears to be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact, viz. the existence of one or more of the conditions mentioned in Section 10 were shown to have existed when the court made the order; that the satisfaction of the court, which is no doubt aprerequisite for the order of eviction, need not be by the manifestationborne out by a judicial finding; and that if at some stage the court was called upon to apply its mind to the question and there was sufficient material before it before the parties invited it to pass an order in terms of their agreement, it is possible to postulate that the court was satisfied about the grounds on which the order of eviction was based. He has further pointed out that if the tenant in fact admits that the landlord is entitled to possession on one or other of the statutory grounds mentioned in the Act, it is open to the court to act on that admission and make an order for possession in favour of the landlord without further enquiry It is on these grounds that he has come to the conclusion that the facts in this case satisfied these tests and, therefore, the order of the Madras High Court should be set aside. In so far as it is necessary for the purpose of this case this is a satisfactory conclusionAfter fully considering the matter I am definitely of the opinion that if the compromise decree is based on the grounds on which the landlord could claim a decree for eviction under Section 13 of the East Punjab Urban Rent Restriction Act, then it is within the jurisdiction and competence of the Rent Controller to pass such a decree with a default clause; it is similarly competent for the civil court to execute such a decree when default has occurred. The proviso ton (2)of Section 13 of the Act is not attracted in such circumstances as no question of extending time granted to the tenant for putting the landlord in possession arises. In the result my answer to the two questions referred would be in the affirmative40. All these decisions amply support the proposition that I have put forward that an eviction order based on a compromise where the landlord has asked for possession on any one of the grounds on the basis of which he could ask for possession would be valid. This would, however, have to be considered when a proper occasion arises.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: many as 45 Exs. one of which was the order of eviction obtained against him, being Ext 45. The respondent did not cross-examine the appellant. When the evidence of the landlord was before the court supported, as it was by, the innumerable exhibits filed by him, it can surely be stated that a stage had been reached when the Controller was called upon to apply his mind to the question whether the plea of the landlord that he required the premises for his own occupation was bona fide. There is the further circumstance that the tenant did not cross-examine the plaintiff. On the other hand, he entered into a compromise in and by which he withdrew his defence and submitted to a decree for eviction unconditionally His withdrawal of the defence, after the plaintiff had given evidence and filed exhibits in support of his plea, clearly shows that he accepted as true the claim of the landlord that he requires the premises bona fide for his own occupation. He has accepted the position that the landlord has made out the statutory requirement, entitling him to ask for possession of the premises. It is this unconditional withdrawal of the defence regarding the statutory condition pleaded by the landlord, and the compromise following it that was accepted by the court and a decree for eviction passed thereon. Under these circumstances, when the tenant has accepted the plea of the landlord, in our opinion, it is futile to hold that the Rent Controller must again embark upon an enquiry regarding the requirement of the landlord being bona fide and adjudicated upon the same. Ofcourse, if there is a dispute between the landlord and tenant, the court must decide the matter and adjudicate upon the plea of the landlord. 26. The true position appears to be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact viz. the existence of one or more of the conditions mentioned in S. l0 were shown to have existed when the Court made the order. Satisfaction of the Court, which is no doubt a prerequisite for the order of eviction, need not be by the manifestation home out by a judicial finding. If at some stage the Court was called upon to apply its mind to the question and there was sufficient material before it, before the parties invited it to pass an order in terms of their agreement, it is possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based. 27. It is no doubt true that before making an order for possession the court is under a duty to satisfy itself as to the truth of the landlords claim if there is a dispute between the landlord and tenant. But if the tenant in fact admits that the landlord is entitled to possession on one or other of the statutory grounds mentioned in the Act it is open to the court to act on that admission and make an order for possession in favour of the landlord without further enquiry. It is no doubt true that each case will have to be decided on its own facts to find out whether there is any material to justify an inference that an admission, express, or implied, has been made by the tenant about the existence of one or other of the statutory grounds. But in the case on hand, we have already referred to the specific claim of the landlord as well as the fact of the tenant withdrawing his defence. According to us, such withdrawal of the defence expressly amounts to the tenant admitting that the landlord has made out his case regarding his requiring the premises for his own occupation being bona fide. In the three decisions of this Court, to which we have already referred, the position was entirely different. In none of those eases was there any material to show that the tenant had expressly or impliedly accepted the plea of the landlord as true. Therefore those decisions do not assist the respondent-tenant. 28. For all the reasons mentioned above, it cannot be held in the particular circumstances of this case, that the decree for eviction has been passed solely on the basis of the compromise entered into between the parties. On the other hand, it is clear from the various matters referred to, that the court was satisfied about the bona fide requirement of the landlord. Therefore, the decree for eviction is neither void nor inexecutable. 29. Mr. Tarkunde, learned counsel, contended that if the execution Court is to find out, whether the court, which passed the decree, was satisfied about the statutory requirement in a particular case, it will have to conduct a very elaborate enquiry. We are not impressed with this contention. Once it is accepted that the question about the decree being void and as such not executable on any ground available in law can be raised before the executing Court, it is needless to state that the executing Court will have to adjudicate upon that plea and for that purpose the relevant materials have to be considered. If that is so, there is no insurmountable difficulty, as envisaged by Mr. Tarkunde, in an executing Court considering whether a particular decree for eviction is void as being contrary to the relevant sections of the statute governing the matter. 30. Mr. Tarkunde, learned counsel, contended that the tenant had disputed the title of the landlord as well as the validity of the notice issued under Section 106 of the Transfer of Property Act. As those matters have not been considered by the courts below, as requested that the proceedings may be remanded for this purpose. We are not inclined to accede to this request. The tenant raised these objections also in his original plea, but he has unconditionally withdrawn all his defence. That means those pleas also no longer survive for consideration. ### Response: 1

New India Assurance Co Vs. C.M. Jaya

so done, it amounts to re-writing the statute or the contract of insurance which is not permissible. 14. In the light of what is stated above, we do not find any conflict on the question raised in the order of reference between the decisions of two benches of three learned Judges in Shanti Bai and Amrit Lal Sood aforementioned and, on the other hand, there is consistency on the point that in case of an insurance policy not taking any higher liability by accepting a higher premium, the liability of the insurance company is neither unlimited nor higher than the statutory liability fixed under Section 95(2) of the Act. In Amrit Lal Soods case, the decision in Shanti Bai is not noticed. However, both these decisions refer to the case of Jugal Kishore and no contrary view is expressed. 15. In New India Assurance Co. Ltd. vs. Ram Lal & Ors. [1988 (Supp.) SCC 506] looking to the insurance policy that the appellant had undertaken to indemnify the insured to the extent of Rs. 50,000/- only, it was held that the High Court was in error in holding that the appellant was liable to pay the entire amount of compensation which was more than Rs. 50,000/- and that the liability of the appellant was limited to Rs. 50,000/-. 16. In a recent judgment in National Insurance Co. Ltd. vs. Nathilal & Ors. [1999 1 SCC 552 ], this Court, following the case of Jugal Kishore aforementioned, held that in view of the fact that no extra premium was paid towards unlimited liability was could be seen from the policy produced, the liability of the insurance company was limited to Rs. 15,000/-. The Court set aside the award of the Tribunal and affirmed by the High Court. 17. In the premise, we hold that the view expressed by the bench of three learned Judges in the case of Shanti Bai is correct and answer the question set out in the order of reference in the beginning as under:-In the case of insurance company not taking any higher liability by accepting a higher premium for payment of compensation to a third party, the insurer would be liable to the extent limited under Section 95(2) of the Act and would not be liable to pay the entire amount.18. In these appeals presently before us, the judgment and order of Delhi High Court are under challenge. The deceased was riding the pillion seat of a two-wheeler when it met with a truck insured by the appellant. On the claimants approaching the Motor Accident Claims Tribunal, it awarded a sum of Rs. 1,03,360/- as compensation and held that the liability of the appellant was limited to Rs. 50,000/- and the balance amount was recoverable from the driver and owner of the truck jointly and severally. The truck owner (the respondent no. 4) preferred an appeal to the High Court. The High Court held that the liability of the appellant was unlimited as the vehicle was comprehensively insured. The High Court also allowed cross-objections preferred by the Claimants/Respondents Nos. 1 to 3 solely against the appellant under Order XLI Rule 22 CPC for the full pecuniary liability to be placed upon the insurer while enhancing the amount of compensation from Rs. 1,03,360/- to Rs. 3,60,000/- with interest @ 15% per annum from the date of application. Hence, these two appeals are brought by the appellant, aggrieved by the judgment and order of the High Court. The submissions were made before us by the learned counsel for the parties in support of the respective contentions citing the decisions aforementioned as to the extent of liability of the appellant to pay the amount of compensation to Respondents 1 to 3. 19. It is not in dispute from the admitted copy of the insurance policy produced before the Court that the liability of the appellant is limited to Rs. 50,000/- in regard to the claim in question. The relevant clause in the policy relating to limits of liability reads:- It is also not the case that any additional or higher premium was paid to cover unlimited or higher liability than the statutory liability fixed as found in the term of the policy extracted above. In the light of the law stated above, it necessarily follows that the liability of the appellant is limited to Rs. 50,000/-, as was rightly held by the Tribunal. The High Court committed an error in taking the contrary view that the liability of the appellant was unlimited merely on the ground that the insured had taken a comprehensive policy. In Shanti Bais case, this court has clearly expressed the opinion that a comprehensive policy issued on the basis of the estimated value of the vehicle does not automatically result in covering the liability with regard to third party risk for an amount higher than the statutory limit in the absence of specific agreement and payment of separate premium to cover third party risk for an amount higher than the statutory limit. This position is accepted in Amrit Lal Soods case as well though no reference is made to this case. As already stated above, in Amrit Lal Soods case, the Court found an express term in the policy for covering wider risk and to meet the higher liability unlike in the case of Shanti Bai. Therefore, the High Court was not right in holding that the liability of the appellant insurance-company was unlimited merely on the ground that the vehicle in question, i.e., the truck, was covered by a comprehensive insurance policy. 20. In the circumstances, we hold that the liability of the appellant insurance-company is limited to Rs. 50,000/-, as held by the Tribunal. In the view we have taken, it is unnecessary to go into the question relating to either maintainability of cross-objections before the High Court against the appellant alone or as to the enhancement of compensation when the owner and driver have not filed appeal against the impugned judgment. 21.

1[ds]10. Thus, a careful reading of these decisions, clearly shows that the liability of the insurer is limited, as indicated in Section 95 of the Act, but it is open to the insured to make payment of additional higher premium and get higher risk covered in respect of third party also. But in the absence of any such clause in the insurance policy the liability of the insurer cannot be unlimited in respect of third party and it is limited only to the statutory liability. This view has been consistently taken in the other decisions of this Court.11. In Shanti Bais case (supra), a bench of three learned Judges of this Court, following the case of Jugal Kishore, has held that (i) a comprehensive policy which has been issued on the basis of the estimated value of the vehicle does not automatically result in covering the liability with regard to third party risk for an amount higher than the statutory limit, (ii) that even though it is not permissible to use a vehicle unless it is covered at least under an "Act only" policy, it is not obligatory for the owner of a vehicle to get it comprehensively insured and (iii) that the limit of liability with regard to third party risk does not become unlimited or higher than the statutory liability in the absence of specific agreement to make the insurers liability unlimited or higher than the statutory liability.12. On a careful reading and analysis of the decision in Amrit Lal Sood (supra), it is clear that the view taken by the Court is no different. In this decision also, the case of Jugal Kishore is referred to. It is held (i) that the liability of the insurer depends on the terms of the contract between the insured and the insurer contained in the policy; (ii) there is no prohibition for an insured from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute whereby risk to the gratuitous passenger could also be covered; and (iii) in such cases where the policy is not merely statutory policy, the terms of the policy have to be considered to determine the liability of the insurer. Hence, the Court after noticing the relevant clauses in the policy, on facts found that under Section II-1(a) of the policy, the insurer has agreed to indemnify the insured against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to "any person". The expression "any person" would undoubtedly include an occupant of the car who is gratuitously travelling in it. Further, referring to the case of Pushpabai Purshottam Udeshi (supra), it was observed that the said decision was based upon the relevant clause in the insurance policy in that case which restricted the legal liability of the insurer to the statutory requirement under Section 95 of the Act. As such, that decision had no bearing on Amrit Lal Soods case as the terms of the policy were wide enough to cover a gratuitous occupant of the vehicle.Thus, it is clear that the specific clause in the policy being wider, covering higher risk, made all the difference in Amrit Lal Soods case as to unlimited or higher liability. The Court decided that case in the light of the specific clause contained in the policy. The said decision cannot be read as laying down that even though the liability of the insurance company is limited to the statutory requirement, an unlimited or higher liability can be imposed on it. The liability could be statutory or contractual. A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in Section 95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. In such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term or clause in the policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. If it is so done, it amounts to re-writing the statute or the contract of insurance which is not permissible.In the light of what is stated above, we do not find any conflict on the question raised in the order of reference between the decisions of two benches of three learned Judges in Shanti Bai and Amrit Lal Sood aforementioned and, on the other hand, there is consistency on the point that in case of an insurance policy not taking any higher liability by accepting a higher premium, the liability of the insurance company is neither unlimited nor higher than the statutory liability fixed under Section 95(2) of the Act. In Amrit Lal Soods case, the decision in Shanti Bai is not noticed. However, both these decisions refer to the case of Jugal Kishore and no contrary view is expressed.In the premise, we hold that the view expressed by the bench of three learned Judges in the case of Shanti Bai is correct and answer the question set out in the order of reference in the beginning as under:-In the case of insurance company not taking any higher liability by accepting a higher premium for payment of compensation to a third party, the insurer would be liable to the extent limited under Section 95(2) of the Act and would not be liable to pay the entire amount.

### 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: so done, it amounts to re-writing the statute or the contract of insurance which is not permissible. 14. In the light of what is stated above, we do not find any conflict on the question raised in the order of reference between the decisions of two benches of three learned Judges in Shanti Bai and Amrit Lal Sood aforementioned and, on the other hand, there is consistency on the point that in case of an insurance policy not taking any higher liability by accepting a higher premium, the liability of the insurance company is neither unlimited nor higher than the statutory liability fixed under Section 95(2) of the Act. In Amrit Lal Soods case, the decision in Shanti Bai is not noticed. However, both these decisions refer to the case of Jugal Kishore and no contrary view is expressed. 15. In New India Assurance Co. Ltd. vs. Ram Lal & Ors. [1988 (Supp.) SCC 506] looking to the insurance policy that the appellant had undertaken to indemnify the insured to the extent of Rs. 50,000/- only, it was held that the High Court was in error in holding that the appellant was liable to pay the entire amount of compensation which was more than Rs. 50,000/- and that the liability of the appellant was limited to Rs. 50,000/-. 16. In a recent judgment in National Insurance Co. Ltd. vs. Nathilal & Ors. [1999 1 SCC 552 ], this Court, following the case of Jugal Kishore aforementioned, held that in view of the fact that no extra premium was paid towards unlimited liability was could be seen from the policy produced, the liability of the insurance company was limited to Rs. 15,000/-. The Court set aside the award of the Tribunal and affirmed by the High Court. 17. In the premise, we hold that the view expressed by the bench of three learned Judges in the case of Shanti Bai is correct and answer the question set out in the order of reference in the beginning as under:-In the case of insurance company not taking any higher liability by accepting a higher premium for payment of compensation to a third party, the insurer would be liable to the extent limited under Section 95(2) of the Act and would not be liable to pay the entire amount.18. In these appeals presently before us, the judgment and order of Delhi High Court are under challenge. The deceased was riding the pillion seat of a two-wheeler when it met with a truck insured by the appellant. On the claimants approaching the Motor Accident Claims Tribunal, it awarded a sum of Rs. 1,03,360/- as compensation and held that the liability of the appellant was limited to Rs. 50,000/- and the balance amount was recoverable from the driver and owner of the truck jointly and severally. The truck owner (the respondent no. 4) preferred an appeal to the High Court. The High Court held that the liability of the appellant was unlimited as the vehicle was comprehensively insured. The High Court also allowed cross-objections preferred by the Claimants/Respondents Nos. 1 to 3 solely against the appellant under Order XLI Rule 22 CPC for the full pecuniary liability to be placed upon the insurer while enhancing the amount of compensation from Rs. 1,03,360/- to Rs. 3,60,000/- with interest @ 15% per annum from the date of application. Hence, these two appeals are brought by the appellant, aggrieved by the judgment and order of the High Court. The submissions were made before us by the learned counsel for the parties in support of the respective contentions citing the decisions aforementioned as to the extent of liability of the appellant to pay the amount of compensation to Respondents 1 to 3. 19. It is not in dispute from the admitted copy of the insurance policy produced before the Court that the liability of the appellant is limited to Rs. 50,000/- in regard to the claim in question. The relevant clause in the policy relating to limits of liability reads:- It is also not the case that any additional or higher premium was paid to cover unlimited or higher liability than the statutory liability fixed as found in the term of the policy extracted above. In the light of the law stated above, it necessarily follows that the liability of the appellant is limited to Rs. 50,000/-, as was rightly held by the Tribunal. The High Court committed an error in taking the contrary view that the liability of the appellant was unlimited merely on the ground that the insured had taken a comprehensive policy. In Shanti Bais case, this court has clearly expressed the opinion that a comprehensive policy issued on the basis of the estimated value of the vehicle does not automatically result in covering the liability with regard to third party risk for an amount higher than the statutory limit in the absence of specific agreement and payment of separate premium to cover third party risk for an amount higher than the statutory limit. This position is accepted in Amrit Lal Soods case as well though no reference is made to this case. As already stated above, in Amrit Lal Soods case, the Court found an express term in the policy for covering wider risk and to meet the higher liability unlike in the case of Shanti Bai. Therefore, the High Court was not right in holding that the liability of the appellant insurance-company was unlimited merely on the ground that the vehicle in question, i.e., the truck, was covered by a comprehensive insurance policy. 20. In the circumstances, we hold that the liability of the appellant insurance-company is limited to Rs. 50,000/-, as held by the Tribunal. In the view we have taken, it is unnecessary to go into the question relating to either maintainability of cross-objections before the High Court against the appellant alone or as to the enhancement of compensation when the owner and driver have not filed appeal against the impugned judgment. 21. ### Response: 1

Union Of India & Others Vs. Vartak Labour Union (2)

16. We are of the opinion that the respondent Unions claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. (See: Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & Ors. ((2006) 4 SCC 1 ); Official Liquidator Vs. Dayanand & Ors. ((2008) 10 SCC 1 ); State of Karnataka & Ors. Vs. Ganapathi Chaya Nayak & Ors. ((2010) 3 SCC 115 ); Union of India & Anr. Vs. Kartick Chandra Mondal & Anr.; Satya Prakash & Ors. Vs. State of Bihar & Ors. ((2010) 4 SCC 179 ) and Rameshwar Dayal Vs. Indian Railway Construction Company Limited & Ors. ((2010) 11 SCC 733 ).) 17. In Umadevi (3) (supra), a Constitution Bench of this Court had observed that: "It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled." 18. Explaining the dictum laid down in Umadevi (supra), a three judge Bench in Official Liquidator (supra) has observed that: "In State of Karnataka v. Umadevi (3), the Constitution Bench again considered the question whether the State can frame scheme for regularisation of the services of ad hoc/temporary/daily wager appointed in violation of the doctrine of equality or the one appointed with a clear stipulation that such appointment will not confer any right on the appointee to seek regularisation or absorption in the regular cadre and whether the Court can issue mandamus for regularisation or absorption of such appointee and answered the same in negative." 19. In light of the settled legal position and on a conspectus of the factual scenario noted above, the impugned directions by the High Court cannot be sustained. These are set aside accordingly. 20. Before parting with the case, we are constrained to observe that the conduct of the appellants in engaging casual workers for a period of less than six months, and giving them artificial breaks so as to ensure that they do not become eligible for permanent status, as evidenced from the additional affidavit dated 23rd April, 2010 does not behove the Union of India and its instrumentalities, which are supposed to be model employers. With anguish, we extract the relevant paragraph of the said affidavit: "Relying upon the provisions contained in Paragraph 501 to 518 of the Regulation, it was contended that the casual labourers are mustered on daily or monthly basis. If on monthly rates, the period of engagement shall be for a minimum period of six months. It is a fact that large number of casual labourers have worked with Project Vartak for number of years but their period of engagement at no stage has existed more than six months at a time. Their services are terminated before completion of six month and as per requirement they are recruited afresh by publishing Part II order by Mustering Unit. Due to the fact that they have not been in continuous engagement for more than six months they do not get the status of permanent employee and accordingly as per Paragraph 503 of the Regulation referred to above, the casual personnel are not eligible for any other privileges for continued employment under the Government." (Emphasis supplied by us) 21. Therefore, in the facts and circumstances of the instant case, where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course with short breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularization of the services of the casual workers engaged by BRO for execution of its on-going projects.

1[ds]13. We are of the opinion that there is force in the contentions urged on behalf of the appellants and these must prevail. We are convinced that the Division Bench has erroneously construed the Office memo dated 2nd February, 2001 as an approved scheme for absorption and regularization of the casual workers. It is manifest from a bare reading of the said memo that it was merely in the nature of an inter-department communication between the Border Roads Development Board headquarters and its officials. We do not find any substance in the stand of learned counsel for the respondent that the appellants are withholding the approved scheme from this Court. This plea of the respondent that a final scheme did come into existence on 2nd February 2001, stands belied from the letter of the Border Roads Development Board dated 22nd July 200216. We are of the opinion that the respondent Unions claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules19. In light of the settled legal position and on a conspectus of the factual scenario noted above, the impugned directions by the High Court cannot be sustained. These are set aside accordingly20. Before parting with the case, we are constrained to observe that the conduct of the appellants in engaging casual workers for a period of less than six months, and giving them artificial breaks so as to ensure that they do not become eligible for permanent status, as evidenced from the additional affidavit dated 23rd April, 2010 does not behove the Union of India and its instrumentalities, which are supposed to be model employers21. Therefore, in the facts and circumstances of the instant case, where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course with short breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularization of the services of the casual workers engaged by BRO for execution of its on-going projects.

### 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: 16. We are of the opinion that the respondent Unions claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. (See: Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & Ors. ((2006) 4 SCC 1 ); Official Liquidator Vs. Dayanand & Ors. ((2008) 10 SCC 1 ); State of Karnataka & Ors. Vs. Ganapathi Chaya Nayak & Ors. ((2010) 3 SCC 115 ); Union of India & Anr. Vs. Kartick Chandra Mondal & Anr.; Satya Prakash & Ors. Vs. State of Bihar & Ors. ((2010) 4 SCC 179 ) and Rameshwar Dayal Vs. Indian Railway Construction Company Limited & Ors. ((2010) 11 SCC 733 ).) 17. In Umadevi (3) (supra), a Constitution Bench of this Court had observed that: "It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled." 18. Explaining the dictum laid down in Umadevi (supra), a three judge Bench in Official Liquidator (supra) has observed that: "In State of Karnataka v. Umadevi (3), the Constitution Bench again considered the question whether the State can frame scheme for regularisation of the services of ad hoc/temporary/daily wager appointed in violation of the doctrine of equality or the one appointed with a clear stipulation that such appointment will not confer any right on the appointee to seek regularisation or absorption in the regular cadre and whether the Court can issue mandamus for regularisation or absorption of such appointee and answered the same in negative." 19. In light of the settled legal position and on a conspectus of the factual scenario noted above, the impugned directions by the High Court cannot be sustained. These are set aside accordingly. 20. Before parting with the case, we are constrained to observe that the conduct of the appellants in engaging casual workers for a period of less than six months, and giving them artificial breaks so as to ensure that they do not become eligible for permanent status, as evidenced from the additional affidavit dated 23rd April, 2010 does not behove the Union of India and its instrumentalities, which are supposed to be model employers. With anguish, we extract the relevant paragraph of the said affidavit: "Relying upon the provisions contained in Paragraph 501 to 518 of the Regulation, it was contended that the casual labourers are mustered on daily or monthly basis. If on monthly rates, the period of engagement shall be for a minimum period of six months. It is a fact that large number of casual labourers have worked with Project Vartak for number of years but their period of engagement at no stage has existed more than six months at a time. Their services are terminated before completion of six month and as per requirement they are recruited afresh by publishing Part II order by Mustering Unit. Due to the fact that they have not been in continuous engagement for more than six months they do not get the status of permanent employee and accordingly as per Paragraph 503 of the Regulation referred to above, the casual personnel are not eligible for any other privileges for continued employment under the Government." (Emphasis supplied by us) 21. Therefore, in the facts and circumstances of the instant case, where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course with short breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularization of the services of the casual workers engaged by BRO for execution of its on-going projects. ### Response: 1

Hyundai Corporation & Another Vs. Oil and Natural Gas Corporation Ltd

tax under Section 148 of the Act. As a result, the sub-contractor became liable to pay various amounts by way of tax, both under Section 44BB and otherwise, inasmuch as they opted under a particular Circular of the Government of India dated July, 1987, to pay tax on the basis of the said Circular. Given this fact situation, disputes arose between the appellant and the respondent on the application of Clause 17.3 of the agreement. The appellant and the respondent went to arbitration under the Arbitration Act, 1940, which was before two learned Arbitrators, on the question whether the respondent was liable to reimburse the amounts paid by the appellant to its sub-contractor by way of tax inasmuch as, according to the appellant, a change in law had taken place after 25.3.1983 in that, from 1st April, 1983, Section 44BB was retrospectively brought in to tax various services in connection with off-shore exploration and drilling of mineral oils. Several issues were raised before the two learned Arbitrators, one of which was as to whether there was indeed a change of law, in that, tax had to be paid under Section 44BB for the first time with effect from 1st April, 1983. The two learned Arbitrators were of the opinion that, as the assessment orders indicated tax was indeed payable under Section 44BB, and that, therefore, Clause 17.3 would be squarely attracted on the facts of the case. However, they differed on the application of Clause 13.2.8 of the agreement. Whereas Shri D. Chandrashekhar, learned Arbitrator, by his award dated 10th March, 1999 stated that though Clause 17.3 did apply on the facts of the case, yet Clause 13.2.8 interdicted the payment of any amounts on account of the sub-contractors liablity. On the other hand, Justice D.M. Rege, learned Arbitrator, by his separate award dated April, 1999 agreed with Shri Chandrashekhar on all points except one, namely, the effect of Clause 13.2.8 on Clause 17.3. According to him, Clause 13.2.8 would not come in the way of ONGC having to pay amounts paid by the sub-contractor by way of tax because of a change in law. The learned Arbitrator held: "Firstly, the said Clause 13.2.8 is a part of Clause 13 dealing with Contract price payment/Discharge Certificate and was not connected with the subject covered by Clause 17.3 of the Contract on which the Claimants claim is based. Further looking to the fact that Clause 17.3 of the Contract was inserted subsequently only at the request of the Claimants while Clause 13.2.8 was already there, it appears that Clause 17.3 was intended to cover those extra costs incurred by the Claimants due to the change of law which were outside of and not covered by Clause 13.2.8 of the Contract. Even the reading of Clause 13.2.8 itself would show that it does not and would not cover the Claimants claim for compensation for extra costs under the said Clause 17.3 of the Contract." 3. On this limited dispute, the Umpire, Retired Chief Justice Y.V. Chandrachud, delivered his award dated 20th March, 2002. In paragraph 20 of the said award, the learned Umpire stated: "The main question and, indeed, the only question which was pressed before me by learned Counsel for the parties, arises out of the provisions contained in Clause 17.3 of the SH Contract and the extension of the I.T. Act to the Continental Shelf of India and other Exclusive Economic Zones by the Notification dated March 31, 1983, issued by the Government of India, which is referred to in paragraph 9 above." 4. However, instead of deciding this question, the learned Umpire went into a question already decided in favour of the appellant and arrived at a contrary conclusion, namely, that tax was not payable under Section 44BB at all but had in fact been paid pursuant to the Circular of the Central Government of July, 1987, and that this being the case, Clause 17.3 itself would not be attracted, as there was no change in law under which such tax had to be paid. The tax had to be paid in any case under the provisions of Sections 5 and 9 of the Income Tax Act and accordingly, the claim of the appellant was rejected. However, before concluding the award the learned Umpire held: "35. Before concluding the discussion on the aforesaid point, it would be useful to refer to clause 13.2.7 of the main Contract between the Claimants and the Respondents, it reads thus:"13.2.7. the Company shall not be responsible/obligated for making any payments or any other related obligations under this Contract to the Contractors sub-contractors/vendors. The contractor shall be fully liable and responsible for meeting all such obligations and all payments to be made to its sub-contractors/vendors and any other third party engaged by the Contractor in any way connected with the discharge of the contractors obligations under the contract and in any manner whatsoever". 35.1 Since clause 17.3 of the Contract is not attracted and since, consequently, the Claimants are not liable to indemnify MII in respect of the Income Tax for which a demand has been made on MII, Clause 13.2.7 extracted above, would squarely come into play. The "Company" that is to say, the Claimants, are not responsible or obligated to reimburse MII in respect of the aforesaid tax demand." 5. It will be noticed on a perusal of the award of the Umpire, that a decision has been rendered on an issue which was never referred to the learned Umpire. The award was ultimately only on the said issue. In passing, the Umpire did refer to Clause 13.2.7, which was the only bone of contention left between the parties, but stated that since Clause 17.3 of the contract was not attracted, and since consequently the Claimants were not liable to indemnify the sub-contractor, Clause 13.2.7, would squarely come into play. From this it can be seen, that there was no independent reasoning or conclusion with regard to the applicability of Clause 13.2.7.

1[ds]5. It will be noticed on a perusal of the award of the Umpire, that a decision has been rendered on an issue which was never referred to the learned Umpire. The award was ultimately only on the said issue. In passing, the Umpire did refer to Clause 13.2.7, which was the only bone of contention left between the parties, but stated that since Clause 17.3 of the contract was not attracted, and since consequently the Claimants were not liable to indemnify theClause 13.2.7, would squarely come into play. From this it can be seen, that there was no independent reasoning or conclusion with regard to the applicability of Clause 13.2.7.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: tax under Section 148 of the Act. As a result, the sub-contractor became liable to pay various amounts by way of tax, both under Section 44BB and otherwise, inasmuch as they opted under a particular Circular of the Government of India dated July, 1987, to pay tax on the basis of the said Circular. Given this fact situation, disputes arose between the appellant and the respondent on the application of Clause 17.3 of the agreement. The appellant and the respondent went to arbitration under the Arbitration Act, 1940, which was before two learned Arbitrators, on the question whether the respondent was liable to reimburse the amounts paid by the appellant to its sub-contractor by way of tax inasmuch as, according to the appellant, a change in law had taken place after 25.3.1983 in that, from 1st April, 1983, Section 44BB was retrospectively brought in to tax various services in connection with off-shore exploration and drilling of mineral oils. Several issues were raised before the two learned Arbitrators, one of which was as to whether there was indeed a change of law, in that, tax had to be paid under Section 44BB for the first time with effect from 1st April, 1983. The two learned Arbitrators were of the opinion that, as the assessment orders indicated tax was indeed payable under Section 44BB, and that, therefore, Clause 17.3 would be squarely attracted on the facts of the case. However, they differed on the application of Clause 13.2.8 of the agreement. Whereas Shri D. Chandrashekhar, learned Arbitrator, by his award dated 10th March, 1999 stated that though Clause 17.3 did apply on the facts of the case, yet Clause 13.2.8 interdicted the payment of any amounts on account of the sub-contractors liablity. On the other hand, Justice D.M. Rege, learned Arbitrator, by his separate award dated April, 1999 agreed with Shri Chandrashekhar on all points except one, namely, the effect of Clause 13.2.8 on Clause 17.3. According to him, Clause 13.2.8 would not come in the way of ONGC having to pay amounts paid by the sub-contractor by way of tax because of a change in law. The learned Arbitrator held: "Firstly, the said Clause 13.2.8 is a part of Clause 13 dealing with Contract price payment/Discharge Certificate and was not connected with the subject covered by Clause 17.3 of the Contract on which the Claimants claim is based. Further looking to the fact that Clause 17.3 of the Contract was inserted subsequently only at the request of the Claimants while Clause 13.2.8 was already there, it appears that Clause 17.3 was intended to cover those extra costs incurred by the Claimants due to the change of law which were outside of and not covered by Clause 13.2.8 of the Contract. Even the reading of Clause 13.2.8 itself would show that it does not and would not cover the Claimants claim for compensation for extra costs under the said Clause 17.3 of the Contract." 3. On this limited dispute, the Umpire, Retired Chief Justice Y.V. Chandrachud, delivered his award dated 20th March, 2002. In paragraph 20 of the said award, the learned Umpire stated: "The main question and, indeed, the only question which was pressed before me by learned Counsel for the parties, arises out of the provisions contained in Clause 17.3 of the SH Contract and the extension of the I.T. Act to the Continental Shelf of India and other Exclusive Economic Zones by the Notification dated March 31, 1983, issued by the Government of India, which is referred to in paragraph 9 above." 4. However, instead of deciding this question, the learned Umpire went into a question already decided in favour of the appellant and arrived at a contrary conclusion, namely, that tax was not payable under Section 44BB at all but had in fact been paid pursuant to the Circular of the Central Government of July, 1987, and that this being the case, Clause 17.3 itself would not be attracted, as there was no change in law under which such tax had to be paid. The tax had to be paid in any case under the provisions of Sections 5 and 9 of the Income Tax Act and accordingly, the claim of the appellant was rejected. However, before concluding the award the learned Umpire held: "35. Before concluding the discussion on the aforesaid point, it would be useful to refer to clause 13.2.7 of the main Contract between the Claimants and the Respondents, it reads thus:"13.2.7. the Company shall not be responsible/obligated for making any payments or any other related obligations under this Contract to the Contractors sub-contractors/vendors. The contractor shall be fully liable and responsible for meeting all such obligations and all payments to be made to its sub-contractors/vendors and any other third party engaged by the Contractor in any way connected with the discharge of the contractors obligations under the contract and in any manner whatsoever". 35.1 Since clause 17.3 of the Contract is not attracted and since, consequently, the Claimants are not liable to indemnify MII in respect of the Income Tax for which a demand has been made on MII, Clause 13.2.7 extracted above, would squarely come into play. The "Company" that is to say, the Claimants, are not responsible or obligated to reimburse MII in respect of the aforesaid tax demand." 5. It will be noticed on a perusal of the award of the Umpire, that a decision has been rendered on an issue which was never referred to the learned Umpire. The award was ultimately only on the said issue. In passing, the Umpire did refer to Clause 13.2.7, which was the only bone of contention left between the parties, but stated that since Clause 17.3 of the contract was not attracted, and since consequently the Claimants were not liable to indemnify the sub-contractor, Clause 13.2.7, would squarely come into play. From this it can be seen, that there was no independent reasoning or conclusion with regard to the applicability of Clause 13.2.7. ### Response: 1

GAURAV HARGOVINDBHAI DAVE Vs. ASSET RECONSTRUCTION COMPANY (INDIA) LTD

R.F. Nariman, J.1. In the present case, the Respondent No.2 was declared NPA on 21.07.2011. At that point of time, the State Bank of India filed two O.As in the Debt Recovery Tribunal in 2012 in order to recover a total debt of 50 Crores of rupees. In the meanwhile, by an assignment dated 28.03.2014, the State Bank of India assigned the aforesaid debt to Respondent No.1. The Debt Recovery Tribunal proceedings reached judgment on 10.06.2016, the Tribunal holding that the O.As filed before it were not maintainable for the reasons given therein.2. As against the aforesaid judgment, Special Civil Application Nos. 10621-10622 were filed before the Gujarat High Court which resulted in the High Court remanding the aforesaid matter. From this order, a Special Leave Petition was dismissed on 25.03.2017.3. An independent proceeding was then begun by Respondent No.1 on 03.10.2017 being in the form of a Section 7 application filed under the Insolvency and Bankruptcy Code in order to recover the original debt together with interest which now amounted to about 124 Crores of rupees. In the Form-I that has statutorily to be annexed to the Section 7 application in Column II which was the date on which default occurred, the date of the NPA i.e. 21.07.2011 was filled up. The NCLT applied Article 62 of the Limitation Act which reads as follows:-tableApplying the aforesaid Article, the NCLT reached the conclusion that since the limitation period was 12 years from the date on which the money suit has become due, the aforesaid claim was filed within limitation and hence admitted the Section 7 application. The NCLAT vide the impugned judgment held, following its earlier judgments, that the time of limitation would begin running for the purposes of limitation only on and from 01.12.2016 which is the date on which the Insolvency and Bankruptcy Code was brought into force. Consequently, it dismissed the appeal.4. Mr. Aditya Parolia, learned counsel appearing on behalf of the appellant has argued that Article 137 being a residuary article would apply on the facts of this case, and as right to sue accrued only on and from 21.07.2011, three years having elapsed since then in 2014, the Section 7 application filed in 2017 is clearly out of time. He has also referred to our judgment in B.K. Educational Services Private Limited vs. Parag Gupta and Associates, 2018 SCC OnLine SC 1921 in order to buttress his argument that it is Article 137 of the Limitation Act which will apply to the facts of this case.5. Mr. Debal Banerjee, learned Senior Counsel, appearing on behalf of the respondents, countered this by stressing, in particular, para 7 of the B.K. Educational Services Private Limited (supra) and reiterated the finding of the NCLT that it would be Article 62 of the Limitation Act that would be attracted to the facts of this case. He further argued that, being a commercial Code, a commercial interpretation has to be given so as to make the Code workable.6. Having heard the learned counsel for both sides, what is apparent is that Article 62 is out of the way on the ground that it would only apply to suits. The present case being ?an application? which is filed under Section 7, would fall only within the residuary article 137. As rightly pointed out by learned counsel appearing on behalf of the appellant, time, therefore, begins to run on 21.07.2011, as a result of which the application filed under Section 7 would clearly be time-barred. So far as Mr. Banerjee?s reliance on para 7 of B.K. Educational Services Private Limited (supra), suffice it to say that the Report of the Insolvency Law Committee itself stated that the intent of the Code could not have been to give a new lease of life to debts which are already time-barred.7. This being the case, we fail to see how this para could possibly help the case of the respondents. Further, it is not for us to interpret, commercially or otherwise, articles of the Limitation Act when it is clear that a particular article gets attracted. It is well settled that there is no equity about limitation - judgments have stated that often time periods provided by the Limitation Act can be arbitrary in nature.

1[ds]6. Having heard the learned counsel for both sides, what is apparent is that Article 62 is out of the way on the ground that it would only apply to suits. The present case being ?an application? which is filed under Section 7, would fall only within the residuary article 137. As rightly pointed out by learned counsel appearing on behalf of the appellant, time, therefore, begins to run on 21.07.2011, as a result of which the application filed under Section 7 would clearly be time-barred. So far as Mr. Banerjee?s reliance on para 7 of B.K. Educational Services Private Limited (supra), suffice it to say that the Report of the Insolvency Law Committee itself stated that the intent of the Code could not have been to give a new lease of life to debts which are already time-barred.7. This being the case, we fail to see how this para could possibly help the case of the respondents. Further, it is not for us to interpret, commercially or otherwise, articles of the Limitation Act when it is clear that a particular article gets attracted. It is well settled that there is no equity about limitation - judgments have stated that often time periods provided by the Limitation Act can be arbitrary in nature.

### 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: R.F. Nariman, J.1. In the present case, the Respondent No.2 was declared NPA on 21.07.2011. At that point of time, the State Bank of India filed two O.As in the Debt Recovery Tribunal in 2012 in order to recover a total debt of 50 Crores of rupees. In the meanwhile, by an assignment dated 28.03.2014, the State Bank of India assigned the aforesaid debt to Respondent No.1. The Debt Recovery Tribunal proceedings reached judgment on 10.06.2016, the Tribunal holding that the O.As filed before it were not maintainable for the reasons given therein.2. As against the aforesaid judgment, Special Civil Application Nos. 10621-10622 were filed before the Gujarat High Court which resulted in the High Court remanding the aforesaid matter. From this order, a Special Leave Petition was dismissed on 25.03.2017.3. An independent proceeding was then begun by Respondent No.1 on 03.10.2017 being in the form of a Section 7 application filed under the Insolvency and Bankruptcy Code in order to recover the original debt together with interest which now amounted to about 124 Crores of rupees. In the Form-I that has statutorily to be annexed to the Section 7 application in Column II which was the date on which default occurred, the date of the NPA i.e. 21.07.2011 was filled up. The NCLT applied Article 62 of the Limitation Act which reads as follows:-tableApplying the aforesaid Article, the NCLT reached the conclusion that since the limitation period was 12 years from the date on which the money suit has become due, the aforesaid claim was filed within limitation and hence admitted the Section 7 application. The NCLAT vide the impugned judgment held, following its earlier judgments, that the time of limitation would begin running for the purposes of limitation only on and from 01.12.2016 which is the date on which the Insolvency and Bankruptcy Code was brought into force. Consequently, it dismissed the appeal.4. Mr. Aditya Parolia, learned counsel appearing on behalf of the appellant has argued that Article 137 being a residuary article would apply on the facts of this case, and as right to sue accrued only on and from 21.07.2011, three years having elapsed since then in 2014, the Section 7 application filed in 2017 is clearly out of time. He has also referred to our judgment in B.K. Educational Services Private Limited vs. Parag Gupta and Associates, 2018 SCC OnLine SC 1921 in order to buttress his argument that it is Article 137 of the Limitation Act which will apply to the facts of this case.5. Mr. Debal Banerjee, learned Senior Counsel, appearing on behalf of the respondents, countered this by stressing, in particular, para 7 of the B.K. Educational Services Private Limited (supra) and reiterated the finding of the NCLT that it would be Article 62 of the Limitation Act that would be attracted to the facts of this case. He further argued that, being a commercial Code, a commercial interpretation has to be given so as to make the Code workable.6. Having heard the learned counsel for both sides, what is apparent is that Article 62 is out of the way on the ground that it would only apply to suits. The present case being ?an application? which is filed under Section 7, would fall only within the residuary article 137. As rightly pointed out by learned counsel appearing on behalf of the appellant, time, therefore, begins to run on 21.07.2011, as a result of which the application filed under Section 7 would clearly be time-barred. So far as Mr. Banerjee?s reliance on para 7 of B.K. Educational Services Private Limited (supra), suffice it to say that the Report of the Insolvency Law Committee itself stated that the intent of the Code could not have been to give a new lease of life to debts which are already time-barred.7. This being the case, we fail to see how this para could possibly help the case of the respondents. Further, it is not for us to interpret, commercially or otherwise, articles of the Limitation Act when it is clear that a particular article gets attracted. It is well settled that there is no equity about limitation - judgments have stated that often time periods provided by the Limitation Act can be arbitrary in nature. ### Response: 1

Kerala State Beverages Manufacturing & Marketing Corporation Ltd Vs. The Assistant Commissioner of Income Tax Circle 1(1)

showed that income tax which was to be charged was to be increased by a surcharge for the pur- pose of the Union. The word surcharge has thus been used to either increase the rates of income tax and super tax or to increase these taxes. The scheme of the Finance Act of 1971 appears to leave no room for doubt that the term Income tax as used in Section 2 includes sur- charge. Para 20 of the judgment in the case of Sarojini Tea Co. Ltd. (1992) 2 SCC 156 reads as under : 20. For the reasons aforesaid, we are unable to endorse the view of the High Court that surcharge on land rev- enue payable under the Surcharge Act is not land rev- enue but a levy which is distinct from land revenue. In consonance with the law laid down by this Court in Vish- wesha Thirtha Swamiar case [(1972) 3 SCC 246 : (1972) 1 SCR 137 : AIR 1971 SC 2377 ] it must be held that the surcharge on land revenue levied under the Surcharge Act, being an enhancement of the land revenue, is part of the land revenue and has to be treated as such for the purpose of assessing compensation under Section 12 of the Ceiling Act. 14.5. Further, CBDT itself has issued circular in Circular No.3/2018 which is issued, as a measure for reducing litigation, by revision of monetary limits for filing appeals by the Department before the Income- tax Appellate Tribunal, High Courts and SLP/appeals before this Court. In the said circular it is clearly mentioned that for considering tax effect it includes applicable surcharge and cess. Same will also strengthen the stand of the assessee. Thus it is clear that the surcharge which is sought to be levied is nothing but the enhancement of sales tax, which is levied under Section 5(1) of the KGST Act. When the basic sales tax paid by KSBC under Section 5(1)(b) of the KGST Act, deduction was allowed, there is no reason not to allow deduction of surcharge on sales tax. If the revenue does not consider Section 40(a)(iib) is applicable to the basic sales tax paid by KSBC under Section 5(1)(b) of the KGST Act, it is not known how the surcharge on sales tax, which is nothing but the sales tax, can be brought in the net of Section 40(a)(iib)(A) or 40(a) (iib)(B) of the Act. Further a clear distinction between fee and tax is carefully maintained throughout the scheme under Section 40(a) of the Act itself. Wherever the Parliament intended to cover the tax it specifically mentioned as a tax. Section 40(a)(i) and 40(a)(ia) specifically relate to tax related items. Section 40(a)(ic) refers to a sum paid on account of fringe benefit tax. At the same time, Section 40(a)(iib) refers to royalty, licence fee, service fee, privilege fee or any other fee or charge. If these words are considered to include a tax or surcharge like sales tax, the distinction so carefully spelt out in Section 40 between a tax and a fee will be obliterated and rendered meaningless. It is settled principle of interpretation that where the same Statute, uses different terms and expressions, then it is clear that Legislature is referring to distinct and different things. To support the said view ready reference can be made to judgments of this Court in the case of DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana & Ors. (2003) 5 SCC 622 ; Kailash Nath Agarwal & Ors. v. Pradeshiya Industrial & Investment Corporation of U.P. Ltd. & Anr. (2003) 4 SCC 305 ; and Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609 . The judgment relied on by the learned ASG in the case of Jalkal Vibhag Nagar Nigam and Others 2021 SCC OnLine SC 960 would not render any assistance to support the case of the revenue. The said judgment only considers whether the levy of water tax under Section 52A of the U.P. Water Supply and Sewerage Act is a fee or whether it is a tax covered by Entry 49 of List II of the seventh schedule to the Constitution. The said judgment in fact maintains and does not take away the basic constitutional distinction between fee and tax. Having regard to language used in Section 40(a)(iib), we are of the view that the aforesaid judgment does not support the case of the revenue. Even the other alternative submission of the learned counsel that it may attract Section 40(a)(iib)(B) also cannot be accepted for the reason that wherever the Parliament intended to include tax, referred clearly to taxes clearly in the very Section 40. That itself indicates that the surcharge or tax were never intended to be included in the net of amended Section 40(a)(iib)(A) or 40(a)(iib)(B) of the Income-tax Act, 1961. 15. So far as turnover tax is concerned it is submitted by the learned ASG appearing for the revenue that such tax was imposed not only on KSBC in terms of Section 5(1)(b) of KGST Act, but it is imposed on various other retail dealers specified under Section 5(2) of the said Act. Further turnover tax is also a tax. The very same reason which we have assigned above for surcharge, equally apply to the turnover tax also. As such turnover tax is also outside the purview of Section 40(a) (iib)(A) and 40(a)(iib)(B). 16. For the aforesaid reasons, we hold that the gallonage fee, licence fee and shop rental (kist) with respect to FL-9 and FL-1 licences granted to the appellant will, squarely fall within the purview of Section 40(a)(iib) of the Income-tax Act, 1961. The surcharge on sales tax and turnover tax, is not a fee or charge coming within the scope of Section 40(a)(iib)(A) or 40(a)(iib)(B), as such same is not an amount which can be disallowed under the said provision and disallowance made in this regard is rightly set aside by the High Court.

0[ds]9. During the assessment years 2014--2015 and 2015--2016 the appellant was holding FL-9 and FL-1 licences to deal in wholesale and retail of, Indian Made Foreign Liquor (IMFL) and Foreign Made Foreign Liquor (FMFL) granted by the Excise Department. FL-9 licence was issued to deal in wholesale liquor, which they were selling to FL-1, FL- 3, FL-4, 4A, FL-11, FL-12 licence holders. The FL-1 licence was for sale of foreign liquor in sealed bottles, without privilege of consumption within the premises. The gallonage fee is payable as per Section 18A of the Kerala Abkari Act and Rule 15A of the Foreign Liquor Rules. The appellant was the only licence holder for the relevant years so far as FL- 9 licence to deal in wholesale, and so far as FL-1 licences are concerned, it was also granted to one other State owned Undertaking, i.e., Kerala State Co-operatives Consumers Federation Ltd.. By interpreting the word exclusively as worded in Section 40(a)(iib)(A) of the Act, High Court in the impugned order has held that the levy of gallonage fee, licence fee and shop rental (kist) with respect to FL-9 licences granted to the appellant will clearly fall within the purview of Section 40(a)(iib) of the Act and the amounts paid in this regard is liable to be disallowed. At the same time the amount of gallonage fee, licence fee and shop rental (kist) paid with respect to FL-1 licences granted in favour of the appellant for retail business, the High Court has held that it is not an exclusive levy, as such disallowance made with respect to the same cannot be sustained. With regard to surcharge on sales tax and turnover tax, it is held that same is not a fee or charge within the meaning of Section 40(a)(iib) as such same is not an amount which can be disallowed under the said provision.In the instant case the KSBC, a State Government Undertaking, is a company like any other commercial entity, which is engaged in the business and trade like any other business entity for the purpose of wholesale and retail business in liquor. As much as these kind of undertakings are under the control of the States as the total shareholding or in some cases majority of shareholding, is held by States. As such they exercise control over it and shift the profits by appropriating whole of the surplus or a part of it to the Government by way of fees, taxes or similar such appropriations. From the relevant Memorandum to the Finance Act, 2013 and underlying object for amendment of Income-tax Act by Act 17 of 2013, by which Section 40(a)(iib)(A)(B) is inserted, it is clear that the said amendment is made to plug the possible diversion or shifting of profits from these undertakings into States treasury. In view of Section 40(a)(iib) of the Act any amount, as indicated, which is levied exclusively on the State owned undertaking (KSBC in the instant case), cannot be claimed as a deduction in the books of State owned undertaking, thus same is liable to income tax.14. In the instant case the gallonage fee, licence fee, shop rental (kist), surcharge and turnover tax are the amounts of which assessee claims that they are not attracted by Section 40(a)(iib) of the Act. On the other hand it is the case of the respondent/revenue that all the said components attract the ingredients of Section 40(a)(iib)(A) or Section 40(a)(iib)(B), as such they are not deductible. Broadly these levies can be divided into three categories. Gallonage fee, licence fee and shop rental (kist) are in the nature of fee imposed under the Abkari Act of 1902. These are the fees payable for the licences issued under FL-9 and FL-1. In the impugned order, the High Court has held that the gallonage fee, licence fee and shop rental (kist) with respect to FL-9 licence are not deductible, as it is an exclusive levy on the Corporation. Further a distinction is drawn from FL-1 licence from FL-9 licence, to apply Section 40(a)(iib), only on the ground that, FL-1 licences are issued not only to the appellant/KSBC but also issued to one other Government Undertaking, i.e., Kerala State Co-operatives Consumers Federation Ltd. High Court has held that as there is no other player holding licences under FL-9 like KSBC as such the word exclusivity used in Section 40(a)(iib) attract such amounts. At the same time only on the ground that FL-1 licences are issued not only to the KSBC but also to Kerala State Co-operatives Consumers Federation Ltd., High Court has held that exclusivity is lost so as to apply the provision under Section 40(a)(iib). If the amended provision under Section 40(a) (iib) is to be read in the manner, as interpreted by the High Court, it will literally defeat the very purpose and intention behind the amendment. The aspect of exclusivity under Section 40(a)(iib) is not to be considered with a narrow interpretation, which will defeat the very intention of Legislature, only on the ground that there is yet another player, viz., Kerala State Co-operatives Consumers Federation Ltd. which is also granted licence under FL-1. The aspect of exclusivity under Section 40(a)(iib) has to be viewed from the nature of undertaking on which levy is imposed and not on the number of undertakings on which the levy is imposed. If this aspect of exclusivity is viewed from the nature of undertaking, in this particular case, both KSBC and Kerala State Co-operatives Consumers Federation Ltd. are undertakings of the State of Kerala, therefore, levy is an exclusive levy on the State Government Undertakings. Therefore, we are of the considered view that any other interpretation would defeat the very object behind the amendment to Income-tax Act, 1961.14.1. It is fairly well settled that the interpretation is to be in the manner which will subserve and promote the object and intention behind the legislation. If it is not interpreted in the manner as aforesaid it would defeat the very intention of the legislation. To defeat the said provision, the State Governments may issue licences to more than one State owned undertakings and may ultimately say it is not an exclusive undertaking and therefore Section 40(a)(iib) is not attracted.The said submission cannot be accepted for the reason that by virtue of licence which is granted in favour of State-owned Undertaking, the statutory fees etc., viz., gallonage fees, licence fee and shop rental (kist) are payable by the appellant-Undertaking, i.e., KSBC. Once the State Government Undertaking takes licence, the statutory levies referred above are on the Government Undertaking because it is granted licences. Therefore, we are of the view that the finding of the High Court that gallonage fee, licence fee and shop rental (kist) so far as FL-1 licences are concerned, is not attracted by Section 40(a)(iib), cannot be accepted and such finding of the High Court runs contrary to object and intention behind the legislation.14.2. Further, because another State Government Undertaking, i.e., Kerala State Co-operatives Consumers Federation Ltd. was also granted licences during the relevant years, as such exclusivity mentioned in Section 40(a)(iib) is lost, also cannot be accepted, for the reason that exclusivity is to be considered with reference to nature of licence and not on number of State owned Undertakings. If the interpretation, as held by the High Court, is accepted, the legislative intent can be defeated by issuing licences in FL-1 to several State Government Undertakings and then make a contention that exclusivity is lost. Said interpretation runs contrary to the intent of the amendment.14.3. So far as surcharge on sales tax is concerned, the High Court has held in favour of KSBC and against the revenue. The reasoning of the High Court is that surcharge on sales tax is a tax and Section 40(a) (iib) does not contemplate tax and surcharge on sales tax is not a fee or a charge. Therefore, High Court was of the view that surcharge levied on KSBC does not attract Section 40(a)(iib) of the Act.With regard to surcharge on sales tax, we are in agreement with the submission of Sri Ganesh, learned senior counsel appearing for appellant. The fee or charge as mentioned in Section 40(a)(iib) is clear in terms and that will take in only fee or charge as mentioned therein or any fee or charge by whatever name called, but cannot cover tax or surcharge on tax and such taxes are outside the scope and ambit of Section 40(a)(iib)(A) and Section 40(a)(iib)(B) of the Act.14.4. A reading of preamble and Section 3(1) of the KST Act, make it abundantly clear that the surcharge on sales tax levied by the said Act is nothing but an increase of the basic sales tax levied under Section 5(1) of the KGST Act, as such the surcharge is nothing but a sales tax. It is also settled legal position that a surcharge on a tax is nothing but the enhancement of the tax. In this regard, in support the said view, ready reference can be made to the judgments of this Court in the case of K. Srinivasan 1972 (4) SCC 526 and Sarojini Tea Co. Ltd. (1992) 2 SCC 156. Para 7 of the judgment in the case of K. Srinivasan 1972 (4) SCC 526 reads as under :7. The above legislative history of the Finance Acts, as also the practice, would appear to indicate that the term Income tax as employed in Section 2 includes sur- charge as also the special and the additional surcharge whenever provided which are also surcharges within the meaning of Article 271 of the Constitution. The phraseol- ogy employed in the Finance Acts of 1940 and 1941 showed that only the rates of income tax and supertax were to be increased by a surcharge for the purpose of the Central Government. In the Finance Act of 1958 the language used showed that income tax which was to be charged was to be increased by a surcharge for the pur- pose of the Union. The word surcharge has thus been used to either increase the rates of income tax and super tax or to increase these taxes. The scheme of the Finance Act of 1971 appears to leave no room for doubt that the term Income tax as used in Section 2 includes sur- charge.Para 20 of the judgment in the case of Sarojini Tea Co. Ltd. (1992) 2 SCC 156 reads as under :20. For the reasons aforesaid, we are unable to endorse the view of the High Court that surcharge on land rev- enue payable under the Surcharge Act is not land rev- enue but a levy which is distinct from land revenue. In consonance with the law laid down by this Court in Vish- wesha Thirtha Swamiar case [(1972) 3 SCC 246 : (1972) 1 SCR 137 : AIR 1971 SC 2377 ] it must be held that the surcharge on land revenue levied under the Surcharge Act, being an enhancement of the land revenue, is part of the land revenue and has to be treated as such for the purpose of assessing compensation under Section 12 of the Ceiling Act.14.5. Further, CBDT itself has issued circular in Circular No.3/2018 which is issued, as a measure for reducing litigation, by revision of monetary limits for filing appeals by the Department before the Income- tax Appellate Tribunal, High Courts and SLP/appeals before this Court. In the said circular it is clearly mentioned that for considering tax effect it includes applicable surcharge and cess. Same will also strengthen the stand of the assessee. Thus it is clear that the surcharge which is sought to be levied is nothing but the enhancement of sales tax, which is levied under Section 5(1) of the KGST Act. When the basic sales tax paid by KSBC under Section 5(1)(b) of the KGST Act, deduction was allowed, there is no reason not to allow deduction of surcharge on sales tax. If the revenue does not consider Section 40(a)(iib) is applicable to the basic sales tax paid by KSBC under Section 5(1)(b) of the KGST Act, it is not known how the surcharge on sales tax, which is nothing but the sales tax, can be brought in the net of Section 40(a)(iib)(A) or 40(a) (iib)(B) of the Act. Further a clear distinction between fee and tax is carefully maintained throughout the scheme under Section 40(a) of the Act itself. Wherever the Parliament intended to cover the tax it specifically mentioned as a tax. Section 40(a)(i) and 40(a)(ia) specifically relate to tax related items. Section 40(a)(ic) refers to a sum paid on account of fringe benefit tax. At the same time, Section 40(a)(iib) refers to royalty, licence fee, service fee, privilege fee or any other fee or charge. If these words are considered to include a tax or surcharge like sales tax, the distinction so carefully spelt out in Section 40 between a tax and a fee will be obliterated and rendered meaningless. It is settled principle of interpretation that where the same Statute, uses different terms and expressions, then it is clear that Legislature is referring to distinct and different things. To support the said view ready reference can be made to judgments of this Court in the case of DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana & Ors. (2003) 5 SCC 622 ; Kailash Nath Agarwal & Ors. v. Pradeshiya Industrial & Investment Corporation of U.P. Ltd. & Anr. (2003) 4 SCC 305 ; and Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609 . The judgment relied on by the learned ASG in the case of Jalkal Vibhag Nagar Nigam and Others 2021 SCC OnLine SC 960 would not render any assistance to support the case of the revenue. The said judgment only considers whether the levy of water tax under Section 52A of the U.P. Water Supply and Sewerage Act is a fee or whether it is a tax covered by Entry 49 of List II of the seventh schedule to the Constitution. The said judgment in fact maintains and does not take away the basic constitutional distinction between fee and tax. Having regard to language used in Section 40(a)(iib), we are of the view that the aforesaid judgment does not support the case of the revenue. Even the other alternative submission of the learned counsel that it may attract Section 40(a)(iib)(B) also cannot be accepted for the reason that wherever the Parliament intended to include tax, referred clearly to taxes clearly in the very Section 40. That itself indicates that the surcharge or tax were never intended to be included in the net of amended Section 40(a)(iib)(A) or 40(a)(iib)(B) of the Income-tax Act, 1961.The very same reason which we have assigned above for surcharge, equally apply to the turnover tax also. As such turnover tax is also outside the purview of Section 40(a) (iib)(A) and 40(a)(iib)(B).16. For the aforesaid reasons, we hold that the gallonage fee, licence fee and shop rental (kist) with respect to FL-9 and FL-1 licences granted to the appellant will, squarely fall within the purview of Section 40(a)(iib) of the Income-tax Act, 1961. The surcharge on sales tax and turnover tax, is not a fee or charge coming within the scope of Section 40(a)(iib)(A) or 40(a)(iib)(B), as such same is not an amount which can be disallowed under the said provision and disallowance made in this regard is rightly set aside by the High Court.

### 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: showed that income tax which was to be charged was to be increased by a surcharge for the pur- pose of the Union. The word surcharge has thus been used to either increase the rates of income tax and super tax or to increase these taxes. The scheme of the Finance Act of 1971 appears to leave no room for doubt that the term Income tax as used in Section 2 includes sur- charge. Para 20 of the judgment in the case of Sarojini Tea Co. Ltd. (1992) 2 SCC 156 reads as under : 20. For the reasons aforesaid, we are unable to endorse the view of the High Court that surcharge on land rev- enue payable under the Surcharge Act is not land rev- enue but a levy which is distinct from land revenue. In consonance with the law laid down by this Court in Vish- wesha Thirtha Swamiar case [(1972) 3 SCC 246 : (1972) 1 SCR 137 : AIR 1971 SC 2377 ] it must be held that the surcharge on land revenue levied under the Surcharge Act, being an enhancement of the land revenue, is part of the land revenue and has to be treated as such for the purpose of assessing compensation under Section 12 of the Ceiling Act. 14.5. Further, CBDT itself has issued circular in Circular No.3/2018 which is issued, as a measure for reducing litigation, by revision of monetary limits for filing appeals by the Department before the Income- tax Appellate Tribunal, High Courts and SLP/appeals before this Court. In the said circular it is clearly mentioned that for considering tax effect it includes applicable surcharge and cess. Same will also strengthen the stand of the assessee. Thus it is clear that the surcharge which is sought to be levied is nothing but the enhancement of sales tax, which is levied under Section 5(1) of the KGST Act. When the basic sales tax paid by KSBC under Section 5(1)(b) of the KGST Act, deduction was allowed, there is no reason not to allow deduction of surcharge on sales tax. If the revenue does not consider Section 40(a)(iib) is applicable to the basic sales tax paid by KSBC under Section 5(1)(b) of the KGST Act, it is not known how the surcharge on sales tax, which is nothing but the sales tax, can be brought in the net of Section 40(a)(iib)(A) or 40(a) (iib)(B) of the Act. Further a clear distinction between fee and tax is carefully maintained throughout the scheme under Section 40(a) of the Act itself. Wherever the Parliament intended to cover the tax it specifically mentioned as a tax. Section 40(a)(i) and 40(a)(ia) specifically relate to tax related items. Section 40(a)(ic) refers to a sum paid on account of fringe benefit tax. At the same time, Section 40(a)(iib) refers to royalty, licence fee, service fee, privilege fee or any other fee or charge. If these words are considered to include a tax or surcharge like sales tax, the distinction so carefully spelt out in Section 40 between a tax and a fee will be obliterated and rendered meaningless. It is settled principle of interpretation that where the same Statute, uses different terms and expressions, then it is clear that Legislature is referring to distinct and different things. To support the said view ready reference can be made to judgments of this Court in the case of DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana & Ors. (2003) 5 SCC 622 ; Kailash Nath Agarwal & Ors. v. Pradeshiya Industrial & Investment Corporation of U.P. Ltd. & Anr. (2003) 4 SCC 305 ; and Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609 . The judgment relied on by the learned ASG in the case of Jalkal Vibhag Nagar Nigam and Others 2021 SCC OnLine SC 960 would not render any assistance to support the case of the revenue. The said judgment only considers whether the levy of water tax under Section 52A of the U.P. Water Supply and Sewerage Act is a fee or whether it is a tax covered by Entry 49 of List II of the seventh schedule to the Constitution. The said judgment in fact maintains and does not take away the basic constitutional distinction between fee and tax. Having regard to language used in Section 40(a)(iib), we are of the view that the aforesaid judgment does not support the case of the revenue. Even the other alternative submission of the learned counsel that it may attract Section 40(a)(iib)(B) also cannot be accepted for the reason that wherever the Parliament intended to include tax, referred clearly to taxes clearly in the very Section 40. That itself indicates that the surcharge or tax were never intended to be included in the net of amended Section 40(a)(iib)(A) or 40(a)(iib)(B) of the Income-tax Act, 1961. 15. So far as turnover tax is concerned it is submitted by the learned ASG appearing for the revenue that such tax was imposed not only on KSBC in terms of Section 5(1)(b) of KGST Act, but it is imposed on various other retail dealers specified under Section 5(2) of the said Act. Further turnover tax is also a tax. The very same reason which we have assigned above for surcharge, equally apply to the turnover tax also. As such turnover tax is also outside the purview of Section 40(a) (iib)(A) and 40(a)(iib)(B). 16. For the aforesaid reasons, we hold that the gallonage fee, licence fee and shop rental (kist) with respect to FL-9 and FL-1 licences granted to the appellant will, squarely fall within the purview of Section 40(a)(iib) of the Income-tax Act, 1961. The surcharge on sales tax and turnover tax, is not a fee or charge coming within the scope of Section 40(a)(iib)(A) or 40(a)(iib)(B), as such same is not an amount which can be disallowed under the said provision and disallowance made in this regard is rightly set aside by the High Court. ### Response: 0

Life Insurance Corporation of India Vs. G. M. Channabasamma

Mallikarjunaih. In his statement before the court in September 1966 he claimed to have treated Gurupadaiah from 1953 to 1957. He was charging fee for his services but on a concessional rate as he was a tenant in the house belonging to Mallikarjunaih. According to the plaintiffs case, certain dispute had arisen between the two which ultimately led to Dr. Kumars vacating the house in 1959. The witness has denied the dispute but has admitted the tenancy and the fact that he left the house in 1959. In support of his claim to have treated the insured, he produced a chit Ex. D-33, containing an account of the payments from patients. The document is a single loose sheet of paper containing the accounts of 8 patients out of who only Gurupadaiahs name finds place therein. No other patients name is mentioned in the slip. The witness has not offered any explanation for this exceptional treatment given to Gurupadaiah in mentioning his name in Ex. D-33. There is also an obvious discrepancy in the sheet with respect to the dates which the witness has explained by saying that it was a mistake. According to his further evidence Gurupadaiah again contacted him in 1960, but he has not produced any document similar to Ex. D-33. In answer to a question as to why he had struck off some other name at the top of Ex. D-33 and had written the name of Mallikarjunaih, Dr. Kumar stated that he did so as at that time he might not have any other paper with him. Having regard to all the circumstances pointed out by the High Court, we agree with its conclusion that the evidence of DW 4 cannot be relied upon for holding that Gurupadaiah was under his treatment in 1957, 1960 or at any point of time9. Another medical practitioner Dr. H. N. Gangadhar was examined as DW 2. He was the family doctor of Mallikarjuniah and denied that Gurupadaiah was his patient. He, however, stated that he had given to Gurupadaiah two injections of anacobin in October 1958 and another in November 1958. According to his evidence anacobin injections are harmless and can be given even to healthy men as tonic; and generally they are given for general weakness, anaemia, sprain and a number of other diseases including diabetes. There is no reason to disbelieve Dr. Gangadhar. But his evidence does not take us beyond showing that the insured had taken in 1958 three injections of anacobin which, according to the doctors evidence, does not lead to any conclusion about the disease. The next witness Dr. Siddalingaih DW 3 was working in the T.B. Hospital, Tumkur, where Gurupadaiah was admitted as an indoor patient with severe cough trouble and chest pain. The doctor was in LMP, but did not hold any special diploma for treatment of tuberculosis. According to the witness, Gurupadaiah had lost weight and was weak and died there on October 14, 1961. Having regard to the condition of the patient, the doctor opined that he might have been ill for more than six months before his admission in the hospital. He, however, accepted in cross-examination that if a man is weak and not in a position to resist infection from outside, galloping tuberculosis may attack him, and in such a case the duration for the symptoms to come out may be from a month to three months. His evidence also does not necessarily lead to the conclusion that Gurupadaiah was inflicted by a serious disease for a long time10. According to the evidence of three other doctors DW 5, DW 6 and DW 10, they had examined and treated a person bearing the name Gurupadayya or Gurupadaiah or Gurupadappa. But none of them is in a position to say that it was the same person as the deceased husband of the present plaintiff. They are not in a position to indicate anything whereby the identity of the patient can be proved or inferred. There is no mention of the fathers name or residence of the patient and their depositions can be of evidentiary value only if the statement of Dr. Kumar DW 4 is accepted. If the evidence of DW 4 is rejected, as we have already done, the evidence of the other three doctors by themselves is not of any help. As against this, the evidence of the Corporations doctors who had certified the good health of the insured at the time of taking out the insurance policies and who have been examined as defence witnesses, disproves the case of illness. It has not been suggested that these doctors were either won over by the insured or were negligent in performing their duty. They had submitted confidential reports about the health of the insured and were of the opinion that he was in good health. We, therefore, agree with the High Court that the defendant Corporation has failed to discharge the burden of proving the defence story about the serious illness of the insured at the time to taking out the insurance policies and knowingly suppressing the material information11. Before concluding we would like to say a few words about the role of V.V. Narsimhan, DW 11, who was the Administrative Officer of the Corporation and was in charge of the investigation of the death claims. The learned counsel for the appellant has contended that certain observations in the judgment of the High Court amount to a criticism of the Administrative Officer. We do not think that the observations can be described as strictures, but, in any event, we would like to clarify the position that in our view no exception can be taken against the conduct of the officer in the matter of investigation of the present case. He was under a duty to have made a thorough inquiry in the circumstances, which certainly on the face appeared to be suspicious, and he was performing his duty with all seriousness as he ought to have done

0[ds]Having regard to the facts of the present case, learned counsel for the parties have rightly stated that this distinction is not material in the present appeal. If the allegations of fact made on behalf of the appellant Company are found to be correct, all the three conditions mentioned in the Section and discussed in Mithoolal Nayak v. Life Insurance Corporation of India 1962 (S2) SCR 571 must be held to have been satisfied. We must, therefore, proceed to examine the evidence led by the parties in the case8. The burden of providing that the insured had made false representations and suppressed material facts is undoubtedly on the Corporation. According to Mr. Vasudev the defence has discharged its duty by examining a number of doctors to establish that the insured was, at the time of taking out the polices, suffering from diabetes and other diseases. The appellant has heavily relied upon the evidence of DW 4 Dr. M.S. Kumar, who has deposed that he was giving Gurupadaiah injections of insulin, anacobia and vetabion and was also examining his urine daily which contained sugar. The witness has been disbelieved by the High Court on the ground of his enmity with GurupadaiahsG.B. Mallikarjunaih. In his statement before the court in September 1966 he claimed to have treated Gurupadaiah from 1953 to 1957. He was charging fee for his services but on a concessional rate as he was a tenant in the house belonging to Mallikarjunaih. According to the plaintiffs case, certain dispute had arisen between the two which ultimately led to Dr. Kumars vacating the house in 1959. The witness has denied the dispute but has admitted the tenancy and the fact that he left the house in 1959. In support of his claim to have treated the insured, he produced a chit Ex.containing an account of the payments from patients. The document is a single loose sheet of paper containing the accounts of 8 patients out of who only Gurupadaiahs name finds place therein. No other patients name is mentioned in the slip. The witness has not offered any explanation for this exceptional treatment given to Gurupadaiah in mentioning his name in Ex.There is also an obvious discrepancy in the sheet with respect to the dates which the witness has explained by saying that it was a mistake. According to his further evidence Gurupadaiah again contacted him in 1960, but he has not produced any document similar to Ex.In answer to a question as to why he had struck off some other name at the top of Ex.and had written the name of Mallikarjunaih, Dr. Kumar stated that he did so as at that time he might not have any other paper with him. Having regard to all the circumstances pointed out by the High Court, we agree with its conclusion that the evidence of DW 4 cannot be relied upon for holding that Gurupadaiah was under his treatment in 1957, 1960 or at any point of time9. Another medical practitioner Dr. H. N. Gangadhar was examined as DW 2. He was the family doctor of Mallikarjuniah and denied that Gurupadaiah was his patient. He, however, stated that he had given to Gurupadaiah two injections of anacobin in October 1958 and another in November 1958. According to his evidence anacobin injections are harmless and can be given even to healthy men as tonic; and generally they are given for general weakness, anaemia, sprain and a number of other diseases including diabetes. There is no reason to disbelieve Dr. Gangadhar. But his evidence does not take us beyond showing that the insured had taken in 1958 three injections of anacobin which, according to the doctors evidence, does not lead to any conclusion about the disease. The next witness Dr. Siddalingaih DW 3 was working in the T.B. Hospital, Tumkur, where Gurupadaiah was admitted as an indoor patient with severe cough trouble and chest pain. The doctor was in LMP, but did not hold any special diploma for treatment of tuberculosis. According to the witness, Gurupadaiah had lost weight and was weak and died there on October 14, 1961. Having regard to the condition of the patient, the doctor opined that he might have been ill for more than six months before his admission in the hospital. He, however, accepted inthat if a man is weak and not in a position to resist infection from outside, galloping tuberculosis may attack him, and in such a case the duration for the symptoms to come out may be from a month to three months. His evidence also does not necessarily lead to the conclusion that Gurupadaiah was inflicted by a serious disease for a long time10. According to the evidence of three other doctors DW 5, DW 6 and DW 10, they had examined and treated a person bearing the name Gurupadayya or Gurupadaiah or Gurupadappa. But none of them is in a position to say that it was the same person as the deceased husband of the present plaintiff. They are not in a position to indicate anything whereby the identity of the patient can be proved or inferred. There is no mention of the fathers name or residence of the patient and their depositions can be of evidentiary value only if the statement of Dr. Kumar DW 4 is accepted. If the evidence of DW 4 is rejected, as we have already done, the evidence of the other three doctors by themselves is not of any help. As against this, the evidence of the Corporations doctors who had certified the good health of the insured at the time of taking out the insurance policies and who have been examined as defence witnesses, disproves the case of illness. It has not been suggested that these doctors were either won over by the insured or were negligent in performing their duty. They had submitted confidential reports about the health of the insured and were of the opinion that he was in good health. We, therefore, agree with the High Court that the defendant Corporation has failed to discharge the burden of proving the defence story about the serious illness of the insured at the time to taking out the insurance policies and knowingly suppressing the material information11. Before concluding we would like to say a few words about the role of V.V. Narsimhan, DW 11, who was the Administrative Officer of the Corporation and was in charge of the investigation of the death claims. The learned counsel for the appellant has contended that certain observations in the judgment of the High Court amount to a criticism of the Administrative Officer. We do not think that the observations can be described as strictures, but, in any event, we would like to clarify the position that in our view no exception can be taken against the conduct of the officer in the matter of investigation of the present case. He was under a duty to have made a thorough inquiry in the circumstances, which certainly on the face appeared to be suspicious, and he was performing his duty with all seriousness as he ought to have done

### 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: Mallikarjunaih. In his statement before the court in September 1966 he claimed to have treated Gurupadaiah from 1953 to 1957. He was charging fee for his services but on a concessional rate as he was a tenant in the house belonging to Mallikarjunaih. According to the plaintiffs case, certain dispute had arisen between the two which ultimately led to Dr. Kumars vacating the house in 1959. The witness has denied the dispute but has admitted the tenancy and the fact that he left the house in 1959. In support of his claim to have treated the insured, he produced a chit Ex. D-33, containing an account of the payments from patients. The document is a single loose sheet of paper containing the accounts of 8 patients out of who only Gurupadaiahs name finds place therein. No other patients name is mentioned in the slip. The witness has not offered any explanation for this exceptional treatment given to Gurupadaiah in mentioning his name in Ex. D-33. There is also an obvious discrepancy in the sheet with respect to the dates which the witness has explained by saying that it was a mistake. According to his further evidence Gurupadaiah again contacted him in 1960, but he has not produced any document similar to Ex. D-33. In answer to a question as to why he had struck off some other name at the top of Ex. D-33 and had written the name of Mallikarjunaih, Dr. Kumar stated that he did so as at that time he might not have any other paper with him. Having regard to all the circumstances pointed out by the High Court, we agree with its conclusion that the evidence of DW 4 cannot be relied upon for holding that Gurupadaiah was under his treatment in 1957, 1960 or at any point of time9. Another medical practitioner Dr. H. N. Gangadhar was examined as DW 2. He was the family doctor of Mallikarjuniah and denied that Gurupadaiah was his patient. He, however, stated that he had given to Gurupadaiah two injections of anacobin in October 1958 and another in November 1958. According to his evidence anacobin injections are harmless and can be given even to healthy men as tonic; and generally they are given for general weakness, anaemia, sprain and a number of other diseases including diabetes. There is no reason to disbelieve Dr. Gangadhar. But his evidence does not take us beyond showing that the insured had taken in 1958 three injections of anacobin which, according to the doctors evidence, does not lead to any conclusion about the disease. The next witness Dr. Siddalingaih DW 3 was working in the T.B. Hospital, Tumkur, where Gurupadaiah was admitted as an indoor patient with severe cough trouble and chest pain. The doctor was in LMP, but did not hold any special diploma for treatment of tuberculosis. According to the witness, Gurupadaiah had lost weight and was weak and died there on October 14, 1961. Having regard to the condition of the patient, the doctor opined that he might have been ill for more than six months before his admission in the hospital. He, however, accepted in cross-examination that if a man is weak and not in a position to resist infection from outside, galloping tuberculosis may attack him, and in such a case the duration for the symptoms to come out may be from a month to three months. His evidence also does not necessarily lead to the conclusion that Gurupadaiah was inflicted by a serious disease for a long time10. According to the evidence of three other doctors DW 5, DW 6 and DW 10, they had examined and treated a person bearing the name Gurupadayya or Gurupadaiah or Gurupadappa. But none of them is in a position to say that it was the same person as the deceased husband of the present plaintiff. They are not in a position to indicate anything whereby the identity of the patient can be proved or inferred. There is no mention of the fathers name or residence of the patient and their depositions can be of evidentiary value only if the statement of Dr. Kumar DW 4 is accepted. If the evidence of DW 4 is rejected, as we have already done, the evidence of the other three doctors by themselves is not of any help. As against this, the evidence of the Corporations doctors who had certified the good health of the insured at the time of taking out the insurance policies and who have been examined as defence witnesses, disproves the case of illness. It has not been suggested that these doctors were either won over by the insured or were negligent in performing their duty. They had submitted confidential reports about the health of the insured and were of the opinion that he was in good health. We, therefore, agree with the High Court that the defendant Corporation has failed to discharge the burden of proving the defence story about the serious illness of the insured at the time to taking out the insurance policies and knowingly suppressing the material information11. Before concluding we would like to say a few words about the role of V.V. Narsimhan, DW 11, who was the Administrative Officer of the Corporation and was in charge of the investigation of the death claims. The learned counsel for the appellant has contended that certain observations in the judgment of the High Court amount to a criticism of the Administrative Officer. We do not think that the observations can be described as strictures, but, in any event, we would like to clarify the position that in our view no exception can be taken against the conduct of the officer in the matter of investigation of the present case. He was under a duty to have made a thorough inquiry in the circumstances, which certainly on the face appeared to be suspicious, and he was performing his duty with all seriousness as he ought to have done ### Response: 0

Siddho Mal Paper Conversion Company Vs. State of Uttar Pradesh and Others

1. This appeal by special leave impugns the judgment of the High Court at Allahabad whereby the writ petition filed by the appellant was dismissed and the U.P. Sales of Motor Spirit, Diesel Oil and Alcohol Taxation (Amendment) Act, 1976 was upheld2. The appellant carries on the business of printing and processing wrappers used as flexible packing material. For the purposes of such printing and processing the appellant purchases and uses denatured spirit, which is an alcohol3. On 23-4-1974 the Governor of the respondent-State issued an Ordinances (9 of 1974) called the U.P. Sales of Motor Spirit, Diesel Oil Taxation (Amendment) Ordinance whereby alcohol was added as a taxable commodity in the U.P. Sales of Motor Spirit, Diesel Oil and Alcohol Taxation Act, 1939 and tax was sought to be levied on the first sale of alcohol with effect from 2-5-1974. This Ordinance, later on enacted as U.P. Act 12 of 1974, amending the Act of 1939, was challenged by M/s Kesar Sugar Works Limited before the Allahabad High Court. On 11-7-1975 the Allahabad High Court held inter alia that the said Ordinance and Act of 1974 insofar as they referred to alcohol were bad in law and quashed the same4. On 16-4-1976 the Governor of the respondent-State gave his assent to the U.P. Sales of Motor Spirit, Diesel Oil and Alcohol Taxation (Amendment) Act, 1976, and it is this validating Act which was challenged by the appellant in the writ petition filed before the Allahabad High Court. The Allahabad High Court rejected the contentions of the petitioner and upheld the said Act 5. Learned counsel for the appellant submitted that the retrospective levy of the purchase tax on alcohol by the said Act with effect from 2-5-1974 was, in the facts and circumstances of the case, confiscatory in nature because the appellants had not collected as part of the price of its finished products the element of the purchase tax. It was also submitted that in the absence of Rules, as required by the charging section of the said Act, the levy and collection thereunder was without authority of law 6. In the first place, it must be pointed out that the original Ordinance and Act of 1974 imposed purchase tax on the first sale of alcohol with effect from 2-5-1974 and these provisions were in operation until the Allahabad High Court struck them down on 11-7- 1975. The appellant was, therefore, in a position to include the element of the purchase tax in the price of its products, had it so desired, for the said period. In any event, that the appellant was unable to pass on the element of the purchase tax to the purchasers of its products is not a ground for holding that the levy is confiscatory in nature and, therefore, outside the purview of the States power to levy and collect tax 7. Insofar as the second contention is concerned, learned counsel for the appellant drew our attention to the judgment of this Court in Kantilal Babulal v. H. C. Patel, STO. This was a case where neither the provisions of the statute nor any rule framed under the stature contemplated any enquiry whereat the dealer could satisfy the taxation authorities that their presumptions were erroneous. It was held that, in such a situation, the forfeiture which the statute provided for, prima facie, infringed Article 19(1) (f) and it was for the taxation authorities to satisfy the Court that the concerned provision of the statute was a reasonable restriction. The judgment has no application to the instant case 8. The section of the said Act (Section 3), insofar as it is relevant, reads thus "There shall be levied with effect from 2-5-1974 (a) * * * (b) at the point of first purchase of alcohol in the State a tax at the rate of 40 paise per litre for the million litres and at the rate of 20 paise per litre for the remainder, payable by the purchaser and which shall be collected and paid in the prescribed manner to the State Government." * 9. It is, therefore, clear that the section itself provides the point of time at which the purchase tax is attracted and the rate at which it has to be paid. The section provides that it "shall be collected and paid in the prescribed manner to the State Government". That the Rules, being in the prescribed manner, were not gazetted until 24-1-1977 can make no difference to the validity of the levy. It is not even the appellants case that any attempt was made to collect the purchase tax from the appellant prior thereto so that he may have any grievance on that score. Counsel drew our attention to other provisions of the Act which make breach of the provisions thereof an offence. It is no ones case, once again, that these provisions have been invoked at any time prior to the publication of the Rules on 24-1-1977. Having regard to the terms of Section 3 of the said Act we do not find any substance in the second contention 10. Learned counsel for the appellant desired to urge arguments which, admittedly, had not been made before the High Court. We do not think that there is any justification in the instant case for allowing him so to do 11. Learned counsel for the appellant submitted that the respondents should not be allowed to invoke the bank guarantees which have been furnished by the appellant pursuant to the interim orders of this Court as a condition of stay and that the appellant should be permitted to make payment of the arrears to the respondents by instalments. We do not think that we would be justified in granting the request

0[ds]9. It is, therefore, clear that the section itself provides the point of time at which the purchase tax is attracted and the rate at which it has to be paid. The section provides that it "shall be collected and paid in the prescribed manner to the State Government". That the Rules, being in the prescribed manner, were not gazetted untilcan make no difference to the validity of the levy. It is not even the appellants case that any attempt was made to collect the purchase tax from the appellant prior thereto so that he may have any grievance on that score. Counsel drew our attention to other provisions of the Act which make breach of the provisions thereof an offence. It is no ones case, once again, that these provisions have been invoked at any time prior to the publication of the Rules onHaving regard to the terms of Section 3 of the said Act we do not find any substance in the second contention

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: 1. This appeal by special leave impugns the judgment of the High Court at Allahabad whereby the writ petition filed by the appellant was dismissed and the U.P. Sales of Motor Spirit, Diesel Oil and Alcohol Taxation (Amendment) Act, 1976 was upheld2. The appellant carries on the business of printing and processing wrappers used as flexible packing material. For the purposes of such printing and processing the appellant purchases and uses denatured spirit, which is an alcohol3. On 23-4-1974 the Governor of the respondent-State issued an Ordinances (9 of 1974) called the U.P. Sales of Motor Spirit, Diesel Oil Taxation (Amendment) Ordinance whereby alcohol was added as a taxable commodity in the U.P. Sales of Motor Spirit, Diesel Oil and Alcohol Taxation Act, 1939 and tax was sought to be levied on the first sale of alcohol with effect from 2-5-1974. This Ordinance, later on enacted as U.P. Act 12 of 1974, amending the Act of 1939, was challenged by M/s Kesar Sugar Works Limited before the Allahabad High Court. On 11-7-1975 the Allahabad High Court held inter alia that the said Ordinance and Act of 1974 insofar as they referred to alcohol were bad in law and quashed the same4. On 16-4-1976 the Governor of the respondent-State gave his assent to the U.P. Sales of Motor Spirit, Diesel Oil and Alcohol Taxation (Amendment) Act, 1976, and it is this validating Act which was challenged by the appellant in the writ petition filed before the Allahabad High Court. The Allahabad High Court rejected the contentions of the petitioner and upheld the said Act 5. Learned counsel for the appellant submitted that the retrospective levy of the purchase tax on alcohol by the said Act with effect from 2-5-1974 was, in the facts and circumstances of the case, confiscatory in nature because the appellants had not collected as part of the price of its finished products the element of the purchase tax. It was also submitted that in the absence of Rules, as required by the charging section of the said Act, the levy and collection thereunder was without authority of law 6. In the first place, it must be pointed out that the original Ordinance and Act of 1974 imposed purchase tax on the first sale of alcohol with effect from 2-5-1974 and these provisions were in operation until the Allahabad High Court struck them down on 11-7- 1975. The appellant was, therefore, in a position to include the element of the purchase tax in the price of its products, had it so desired, for the said period. In any event, that the appellant was unable to pass on the element of the purchase tax to the purchasers of its products is not a ground for holding that the levy is confiscatory in nature and, therefore, outside the purview of the States power to levy and collect tax 7. Insofar as the second contention is concerned, learned counsel for the appellant drew our attention to the judgment of this Court in Kantilal Babulal v. H. C. Patel, STO. This was a case where neither the provisions of the statute nor any rule framed under the stature contemplated any enquiry whereat the dealer could satisfy the taxation authorities that their presumptions were erroneous. It was held that, in such a situation, the forfeiture which the statute provided for, prima facie, infringed Article 19(1) (f) and it was for the taxation authorities to satisfy the Court that the concerned provision of the statute was a reasonable restriction. The judgment has no application to the instant case 8. The section of the said Act (Section 3), insofar as it is relevant, reads thus "There shall be levied with effect from 2-5-1974 (a) * * * (b) at the point of first purchase of alcohol in the State a tax at the rate of 40 paise per litre for the million litres and at the rate of 20 paise per litre for the remainder, payable by the purchaser and which shall be collected and paid in the prescribed manner to the State Government." * 9. It is, therefore, clear that the section itself provides the point of time at which the purchase tax is attracted and the rate at which it has to be paid. The section provides that it "shall be collected and paid in the prescribed manner to the State Government". That the Rules, being in the prescribed manner, were not gazetted until 24-1-1977 can make no difference to the validity of the levy. It is not even the appellants case that any attempt was made to collect the purchase tax from the appellant prior thereto so that he may have any grievance on that score. Counsel drew our attention to other provisions of the Act which make breach of the provisions thereof an offence. It is no ones case, once again, that these provisions have been invoked at any time prior to the publication of the Rules on 24-1-1977. Having regard to the terms of Section 3 of the said Act we do not find any substance in the second contention 10. Learned counsel for the appellant desired to urge arguments which, admittedly, had not been made before the High Court. We do not think that there is any justification in the instant case for allowing him so to do 11. Learned counsel for the appellant submitted that the respondents should not be allowed to invoke the bank guarantees which have been furnished by the appellant pursuant to the interim orders of this Court as a condition of stay and that the appellant should be permitted to make payment of the arrears to the respondents by instalments. We do not think that we would be justified in granting the request ### Response: 0

BATESWARI DAYAL MISHR SHIKSHA SAMITI Vs. MADHYA PRADESH NURSES REGISTRATION COUNCIL

respondent, the form submitted by the appellant institution was incomplete, as it did not give the faculty details, nor did it upload any supporting documents along with the form. The appellant institution was thus not given permission even for under¬graduate courses for the academic session 2018¬19. It was further contended that the appellant institution did not have its own Parent Hospital, which was necessary as per the communication dated 16.04.2018 of the Indian Nursing Council and as such, the case of the appellant institution could not also be considered for M.Sc (Nursing) course. It was contended that since the appellant did not have permission even for B.Sc (Nursing) course before the initial last date of admission, which was 31.12.2018, the question of considering the appellant institution’s application for running M.Sc (Nursing) course could not be considered. Learned counsel for the respondent submitted that the appellant institution did not have its own hospital but it claimed to be affiliated to Family Hospital, Gwalior (50 beds) and SSIMS Hospital, Gwalior (95 beds) and District Government Hospital, Gwalior (200 beds). However, there was no permission for training in Government Hospitals granted by the Director, Medical Education and as such the affiliation with the said hospitals (which had granted no objection certificate to the effect that such hospitals were affiliated to any other college) was of no consequence. Learned counsel for the respondent thus submitted that the prayer made in this appeal does not deserve to be granted.6. We have heard learned counsel for the parties and have perused the record.7. Though it may be true that the appellant institution had been granted affiliation for running B.Sc (Nursing) course since 2006, but from the record it is clear that for the academic session 2018¬ 19, there was no permission accorded by the Madhya Pradesh Nurses Registration Council for running the B.Sc (Nursing) or M.Sc (Nursing) courses. The prayer made in the appeal is not clear as to whether the appellant institution is seeking permission for running B.Sc (Nursing) course or M.Sc (Nursing) course. A copy of the writ petition has also not been enclosed and as such it is not possible to know as to what prayers had been made in the writ petition filed before the Madhya Pradesh High Court. The same is not even clear from the impugned judgment of the Madhya Pradesh High Court dated 13.11.2018.8. The specific case of the respondent no. 1 is that the appellant institution had filed incomplete form for registration of the course for academic session 2018-19, and that no documents to support its claim had been filed. Further, the last date for filing the online form for registration for the academic session 2018¬19 was 22 nd December, 2018. Admittedly the consent for affiliation by the concerned University was given only on 02.02.2019 for running the M.Sc (Nursing) course. As such, the said consent of the affiliation was not even available with the appellant institution prior to the last date of filing of the application form. Thus, the question of granting permission to run the M.Sc (Nursing) course for the academic session 2018¬19 would not arise, as admittedly the form filled by the appellant cannot be said to be complete, with all details and supporting documents.9. Even otherwise, in the communication of the Indian Nursing Council dated 16.04.2018 to the Registrar of the respondent no. 1, Madhya Pradesh Nurses Registration Council, it was categorically mentioned that “please ensure that for GNM & B.Sc (N) programme, who have applied for this academic year has a Parent Hospital of minimum 100 beds, whereas the institutions are exempted from Parent Hospital located in tribal & hilly areas only” . The institution of the appellant is admittedly not in tribal or hilly areas, and it is also not denied that it does not have its own Parent Hospital.10. From the perusal of the inspection note dated 08.03.2019, which was carried out by the respondent no. 1 in compliance of this Court order dated 05.03.2019, it is clear that the renewal of the appellant society and the papers relating to the land and building were found to be complete and also that there were 48 faculty members, but the complete online application form had not been submitted and no renewal fees had been deposited and further, the institution did not have recognition certificate for the academic session 2018-19. In the said inspection report, in paragraph 6, it has also been stated that the appellant institution did not have its own hospital but was affiliated to certain hospitals, which hospitals had only certified that they were not affiliated to any other institution.11. The crucial issue to be considered is whether the appellant institution had applied to the respondent no. 1, Madhya Pradesh Nurses Registration Council within the last date, which was 22 nd December, 2018 or not, and if so applied, whether the same was complete in all respects. The respondent no. 1 has categorically stated that the online application form submitted by the appellant was incomplete and no supporting documents were attached with the same. The appellant has not filed any proof to show that it had given all required particulars in the online application form. In the absence of the copy of the writ petition having been filed before this Court, it cannot be ascertained as to whether there was any such averment made even in the writ petition. It has also not been stated by the appellant institution that the requisite documents were filed along with the application form (which is categorically stated by the respondent no. 1 to be incomplete). The very fact that the certificate of affiliation was issued in favour of the appellant institution by the Madhya Pradesh Medical Science University, Jabalpur, on 02.02.2019, which was much after the last date for submission of the online application form, would make it clear that the said document of affiliation was not even available with the appellant institution at the time of filing of the online application form.

1[ds]7. Though it may be true that the appellant institution had been granted affiliation for running B.Sc (Nursing) course since 2006, but from the record it is clear that for the academic session 2018¬ 19, there was no permission accorded by the Madhya Pradesh Nurses Registration Council for running the B.Sc (Nursing) or M.Sc (Nursing) courses. The prayer made in the appeal is not clear as to whether the appellant institution is seeking permission for running B.Sc (Nursing) course or M.Sc (Nursing) course. A copy of the writ petition has also not been enclosed and as such it is not possible to know as to what prayers had been made in the writ petition filed before the Madhya Pradesh High Court. The same is not even clear from the impugned judgment of the Madhya Pradesh High Court dated 13.11.2018.8. The specific case of the respondent no. 1 is that the appellant institution had filed incomplete form for registration of the course for academic session 2018-19, and that no documents to support its claim had been filed. Further, the last date for filing the online form for registration for the academic session 2018¬19 was 22 nd December, 2018. Admittedly the consent for affiliation by the concerned University was given only on 02.02.2019 for running the M.Sc (Nursing) course. As such, the said consent of the affiliation was not even available with the appellant institution prior to the last date of filing of the application form. Thus, the question of granting permission to run the M.Sc (Nursing) course for the academic session 2018¬19 would not arise, as admittedly the form filled by the appellant cannot be said to be complete, with all details and supporting documents.9. Even otherwise, in the communication of the Indian Nursing Council dated 16.04.2018 to the Registrar of the respondent no. 1, Madhya Pradesh Nurses Registration Council, it was categorically mentioned thatensure that for GNM & B.Sc (N) programme, who have applied for this academic year has a Parent Hospital of minimum 100 beds, whereas the institutions are exempted from Parent Hospital located in tribal & hilly areas. The institution of the appellant is admittedly not in tribal or hilly areas, and it is also not denied that it does not have its own Parent Hospital.10. From the perusal of the inspection note dated 08.03.2019, which was carried out by the respondent no. 1 in compliance of this Court order dated 05.03.2019, it is clear that the renewal of the appellant society and the papers relating to the land and building were found to be complete and also that there were 48 faculty members, but the complete online application form had not been submitted and no renewal fees had been deposited and further, the institution did not have recognition certificate for the academic session 2018-19. In the said inspection report, in paragraph 6, it has also been stated that the appellant institution did not have its own hospital but was affiliated to certain hospitals, which hospitals had only certified that they were not affiliated to any otherrespondent no. 1 has categorically stated that the online application form submitted by the appellant was incomplete and no supporting documents were attached with the same. The appellant has not filed any proof to show that it had given all required particulars in the online application form. In the absence of the copy of the writ petition having been filed before this Court, it cannot be ascertained as to whether there was any such averment made even in the writ petition. It has also not been stated by the appellant institution that the requisite documents were filed along with the application form (which is categorically stated by the respondent no. 1 to be incomplete). The very fact that the certificate of affiliation was issued in favour of the appellant institution by the Madhya Pradesh Medical Science University, Jabalpur, on 02.02.2019, which was much after the last date for submission of the online application form, would make it clear that the said document of affiliation was not even available with the appellant institution at the time of filing of the online application form.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: respondent, the form submitted by the appellant institution was incomplete, as it did not give the faculty details, nor did it upload any supporting documents along with the form. The appellant institution was thus not given permission even for under¬graduate courses for the academic session 2018¬19. It was further contended that the appellant institution did not have its own Parent Hospital, which was necessary as per the communication dated 16.04.2018 of the Indian Nursing Council and as such, the case of the appellant institution could not also be considered for M.Sc (Nursing) course. It was contended that since the appellant did not have permission even for B.Sc (Nursing) course before the initial last date of admission, which was 31.12.2018, the question of considering the appellant institution’s application for running M.Sc (Nursing) course could not be considered. Learned counsel for the respondent submitted that the appellant institution did not have its own hospital but it claimed to be affiliated to Family Hospital, Gwalior (50 beds) and SSIMS Hospital, Gwalior (95 beds) and District Government Hospital, Gwalior (200 beds). However, there was no permission for training in Government Hospitals granted by the Director, Medical Education and as such the affiliation with the said hospitals (which had granted no objection certificate to the effect that such hospitals were affiliated to any other college) was of no consequence. Learned counsel for the respondent thus submitted that the prayer made in this appeal does not deserve to be granted.6. We have heard learned counsel for the parties and have perused the record.7. Though it may be true that the appellant institution had been granted affiliation for running B.Sc (Nursing) course since 2006, but from the record it is clear that for the academic session 2018¬ 19, there was no permission accorded by the Madhya Pradesh Nurses Registration Council for running the B.Sc (Nursing) or M.Sc (Nursing) courses. The prayer made in the appeal is not clear as to whether the appellant institution is seeking permission for running B.Sc (Nursing) course or M.Sc (Nursing) course. A copy of the writ petition has also not been enclosed and as such it is not possible to know as to what prayers had been made in the writ petition filed before the Madhya Pradesh High Court. The same is not even clear from the impugned judgment of the Madhya Pradesh High Court dated 13.11.2018.8. The specific case of the respondent no. 1 is that the appellant institution had filed incomplete form for registration of the course for academic session 2018-19, and that no documents to support its claim had been filed. Further, the last date for filing the online form for registration for the academic session 2018¬19 was 22 nd December, 2018. Admittedly the consent for affiliation by the concerned University was given only on 02.02.2019 for running the M.Sc (Nursing) course. As such, the said consent of the affiliation was not even available with the appellant institution prior to the last date of filing of the application form. Thus, the question of granting permission to run the M.Sc (Nursing) course for the academic session 2018¬19 would not arise, as admittedly the form filled by the appellant cannot be said to be complete, with all details and supporting documents.9. Even otherwise, in the communication of the Indian Nursing Council dated 16.04.2018 to the Registrar of the respondent no. 1, Madhya Pradesh Nurses Registration Council, it was categorically mentioned that “please ensure that for GNM & B.Sc (N) programme, who have applied for this academic year has a Parent Hospital of minimum 100 beds, whereas the institutions are exempted from Parent Hospital located in tribal & hilly areas only” . The institution of the appellant is admittedly not in tribal or hilly areas, and it is also not denied that it does not have its own Parent Hospital.10. From the perusal of the inspection note dated 08.03.2019, which was carried out by the respondent no. 1 in compliance of this Court order dated 05.03.2019, it is clear that the renewal of the appellant society and the papers relating to the land and building were found to be complete and also that there were 48 faculty members, but the complete online application form had not been submitted and no renewal fees had been deposited and further, the institution did not have recognition certificate for the academic session 2018-19. In the said inspection report, in paragraph 6, it has also been stated that the appellant institution did not have its own hospital but was affiliated to certain hospitals, which hospitals had only certified that they were not affiliated to any other institution.11. The crucial issue to be considered is whether the appellant institution had applied to the respondent no. 1, Madhya Pradesh Nurses Registration Council within the last date, which was 22 nd December, 2018 or not, and if so applied, whether the same was complete in all respects. The respondent no. 1 has categorically stated that the online application form submitted by the appellant was incomplete and no supporting documents were attached with the same. The appellant has not filed any proof to show that it had given all required particulars in the online application form. In the absence of the copy of the writ petition having been filed before this Court, it cannot be ascertained as to whether there was any such averment made even in the writ petition. It has also not been stated by the appellant institution that the requisite documents were filed along with the application form (which is categorically stated by the respondent no. 1 to be incomplete). The very fact that the certificate of affiliation was issued in favour of the appellant institution by the Madhya Pradesh Medical Science University, Jabalpur, on 02.02.2019, which was much after the last date for submission of the online application form, would make it clear that the said document of affiliation was not even available with the appellant institution at the time of filing of the online application form. ### Response: 1

THOTA SRIDHAR REDDY & ORS Vs. MANDALA RAMULAMMA & ORS

not being challenged as per the procedure established by law. The Court held that the revenue entries made ignoring the 38-E certificate are illegal and that when once the title is established and the defendants had failed to prove adverse possession or any other right to remain in possession, the plaintiffs are entitled to the relief of recovery possession. 46. In the judgment reported as J. Narayana & Ors. v. Jainapally Pedda Kistaiah and Ors 2013 SCC OnLine AP 289, the question examined was whether the appellants are the protected tenants or owners under Section 38-E of the Tenancy Act. The High Court held as under: 16. From a perusal of the above, it is clear that it is only after the certificate is issued under sub-section (2), that the rights of ownership stand conferred upon a protected tenant. Another important aspect is that even where a certificate is issued, it must be followed by determination of the amount to be paid to the land owner and actual payment thereof. The default in payment of price in its entirety or portion thereof would lead to annulment of the ownership. 17. In the instant case the appellants were not issued any certificate of ownership at all. They did not even produce any deed of lease, which contains their names. It was not even pleaded that the price for the land was determined and the same was paid as provided under sub-section (3) of Sec.38-E of the Tenancy Act. xxx xxx xxx 22. It is important to note that if a P.T. or his successors are dispossessed from the land, they can seek the relief of recovery of possession under Section 32 of the Tenancy Act by filing application before the Tahsildar. As a matter fact, they filed an application under Sec. 32 of the Tenancy Act way back in the year 1988 for recovery of possession against the Respondents. That, however, was after the lands were acquired and Notification under Sec.4 (1) of the Act was published. Till today no orders have been passed thereon. The result is that the Respondents are undisputedly in possession of the land and in contrast the appellants were never in possession of the same, till it was acquired. The Point No.2 is answered accordingly. 47. The appeals allegedly filed by the protected tenant against the grant of occupancy rights certificate and subsequently being withdrawn is wholly inconsequential as after the grant of ownership certificate in terms of Section 38-E of the Tenancy Act, the protected tenants are deemed to be owners. Once the protected tenants are deemed to be owners, there could not be any occupancy rights certificate as the purchasers were divested of their ownership by virtue of the grant of ownership certificate under Section 38-E of the Tenancy Act. Such certificate was also not disputed by the purchasers. Therefore, title of the protected tenants is complete and the ownership unambiguously vests with them. 48. Now we shall examine the occupancy rights certificate granted to the purchasers in the year 1982. There was no right with the purchaser to claim occupancy rights on the basis of possession since 1.11.1973 upon surrender of protected tenancy rights. If the surrender of protected tenancy rights is not in accordance with the mandate of the statute, the possession from 1.11.1973 would be inconsequential as such possession would not affect the rights of the protected tenant who is entitled to statutory protection. In fact, the grant of Certificate unequivocally transfers ownership rights to the protected tenant. 49. The Inams Act is a subsequent statute than the Tenancy Act. Section 33 of the Inams Act is to the effect that nothing in the Act shall in any way be deemed to affect the application of the provisions of the Tenancy Act to any inam or mutual rights and obligations of Inamdar and his tenants, save insofar as the said provisions are in any way inconsistent with the express provisions of this Act. Section 38-E (1) of the Tenancy Act, as substituted in the year 1971, starts with a non-obstante clause giving overriding effect to any other law for the time being in force. Such sub-clause will include the Inams Act and that Inams Act will not be operative in the case of Section 38-E (1) of the Tenancy Act. This notification was issued on 1.1.1973 to cover the entire Telangana Area of the State. Both the Inams Act and the Tenancy Act are enacted by the same Legislature. The Inams Act is a later Act enacted in the year 1955 but Section 38-E (1) was substituted in the year 1971 which starts with a non- obstante clause. Therefore, ownership certificate granted under the Tenancy Act would prevail over the grant of occupancy rights certificate under the Inams Act. Both the Acts operate in different spheres. Inams Act deals with the land owner, whereas the Tenancy Act protects the rights of the tiller i.e., tenant including a protected tenant. In terms of Section 3(2)(b) of the Inams Act, all rights, title and interests vesting in the Inamdar including the protected tenant shall cease and be vested absolutely in the State, free from all encumbrances. Section 7 of the Inams Act deals with the right of a protected tenant to be registered as an occupant of such inam lands in his possession as may be left over after the allotment under Section 4. Section 38-E of the Tenancy Act was inserted initially in the year 1954 and subsequently substituted in 1971 giving overriding effect to such provision. Therefore, an Inamdar under the Inams Act would not have any right of allotment of occupancy rights in view of overriding effect given to Section 38-E. 50. However, ownership rights were granted to the protected tenant in respect of land measuring 19 acres and 16 guntas whereas occupancy rights have been granted in respect of the land measuring 31.05 guntas including of land falling in Survey Nos. 61 and 62 in Village Jeedimetla on 19.2.1982.

0[ds]25. We have heard learned counsels for the parties and find no merit in the present appeals.26. In Sada, a Full Bench of the Andhra Pradesh High Court examined various aspects of the Tenancy Act by framing 9 points for consideration by giving complete legislative history of the Tenancy Act. The High Court held on the point Nos. 2 and 4 relevant for the purpose of the preset appeal as under:(1) What is the meaning of the words lands held by protected tenants and whether a protected tenant must have been in physical possession on the date of notification issued by the Government under Section 38E(1) of the Act (in this batch 1-1-1973) for becoming owner of the property and for obtaining the ownership certificate?4) Whether the new proviso to Section 38E(2) added by Act 2 of 1979 is retrospective and permits restoration of possession where the ownership certificate has been issued before 11-1-1979 the date when Act 2 of 1979 has come into force?27. In our view, the contention for the landholders that unless the protected tenant is in physical possession on the date of notification issued, under Section 38-E(1), he cannot get the ownership rights, is not tenable. A plain regarding of S. 38-E (1) shows that the Government may, by notification in the gazette declare is respect of any area, that from which such date as may be specified therein, ownership of all lands held by protected tenants which they are entitled to purchase from their landholders in such area shall, subject to Sec. 38(7), stand transferred to and vest in the protected tenant holding them. It is important to note that the statute does not say held on the date specified in such notification. Wherever the Legislature wanted that land should have been held on any specified date, it had clearly specified in that Act…xx xx xx29. It is clear from S. 38-E that it is for these protected tenants who are finally declared to be protected tenants and included in the Register prepared for that purpose end for whom protected tenancy certificates have been issued, that ownership rights are envisaged. In S. 33-E(1), subject of course, to the limitation with regard to extent of holdings as specified in S. 38(7) and to the proviso to S. 38-E(1). Once persons who held land on the dates or for the periods mentioned in S. 34. 37 and 37-A and the requirement of physical possession on the dates required in those sections is satisfied, such persons have become protected tenants. Once a person becomes a protected tenant, he earns a qualification to become an owner by force of statute, subject of course to the qualification regarding extent in S. 38(7) and to the proviso to S. 38- E(1). There is no requirement in the Act that he should also be in possession on the date specified in the notification issued in S. 38-E(1). The words all lands held by protected tenants is more a description of the lands with regard to which the right as protected tenant has been declared and there are no words requiring physical possession on the date specified in the notification.xx xx xx31. A person holds the land as protected tenant if he is stiff a protected tenant on the notified date, though out of possession. As long as his right as protected tenant has not been determined by date of notification in a manner known 10 the Act, he holds the land ax protected tenant, whether physically in possession or not We shall explain this again under point 7 in the context of surrender.xx xx xx36. For all the aforesaid reasons we hold on Point No. 1 that for tie vesting of the ownership of land held by a protected tenant under S. 38-E(1), it is not necessary that the protected tenant should have been in physical possession on the date of notification, it is sufficient if he continued to hold the status of a protected tenant as on the notified date even if not in physical possession and he satisfied the requirements of S. 32(7) of the Act. This is also subject to the proviso to Section 38-E(1).xx xx xx55. Point No. 4 The point is whether the new proviso to S. 38-E(2) added by Act 2 of 1979 is retrospective and permits restoration of possession Where ownership the certificate is issued before 11-1-1979 when Act 2/79 has come into force.56. Now the new proviso to S. 38-E(2) was introduced by Act 2/1979 to get round the difficulty created by the judgment in Narsaiahs case (1), There, it was held, that once the protected tenant has become owner, there is no machinery in the Act enabling him to obtain possession. It was pointed out that the provision in the latter part of the Explanation to S. 38 E (1) enabling a protected tenant to obtain possession through the Tahsildar was not applicable to the case of an application by an owner, even if it be a case of a protected tenant becoming an owner.57. In our view, the Legislature wanted to fill up the difficulty created by Narsaiahs case when it added the new proviso to S. 38-E(2) enabling the Tahsildar to restore possession to a former protected tenant who had become the owner.xx xx xx59. It is then argued that the words the ownership has been transferred in the new proviso to S. 38-E(2) show that the amendment does not apply to cases where the ownership certificate has been issued before 11-1-1979. This interpretation is not correct. We fully endorse the reasons given in Chennaiahs case to say that these words cannot be given such a restricted meaning. Point No. 4 is decided accordingly.xx xx xx66. For purposes of S. 38-E(1) the protected tenant should not have validly surrendered his tenancy right by the date of notification under S. 38-E(1). But if he had voluntarily surrendered his rights prior to 4-2-1954 (the date of the 1954 amendment) and put the landholder in possession, be it without the intervention of the Tahsildar, he could not claim any rights of ownership under S. 38- E(1) upon the issue of the notification. Likewise, if the surrender was after 4-2-1954 and before the date of notification under S. 38-E(1) and such surrender satisfied the requirements of Sec. 19 and was a valid surrender, the protected tenant could not claim ownership rights. If however there was no valid surrender, whether before (being not voluntarily but forcible), or after (being not in conformity with S. 19), the protected tenant had a right to be put back in possession under S. 32 as stated in Venkanna v. Buchamma (12) and such protected tenants, (if they had not otherwise lost their status under Ss. 32 or 44 by the notified date) would be entitled to ownership rights under S. 38E(1) and would be entitled to the ownership certificate under S. 38-E(2). In cases where proceedings under S. 19 are pending on the date of notification and end in favour of the protected tenant thereafter, the date of vesting gets postponed till the said decision. Point No. 7 is decided accordingly.28. In Edukanti Kistamma, the appellants were the protected tenants and were issued ownership certificate under Section 38- E of the Tenancy Act. The stand of the respondents of surrender of the tenancy rights was found to be invalid. This Court in these circumstances held that it is not necessary that a protected tenant should also be in possession on the date specified in the notification issued under Section 38-E of the Tenancy Act. This Court relied upon the judgment in Kotaiah and held as under:19. In view of the above, it is evident that the scheme of the Act provides that a person who is a protected tenant has a right to get the ownership in accordance with the statutory provisions, provided the total area of the land owned by the landholder including the land under the cultivation of his tenants is more than three times the area of a family holding for the local area concerned. The person should be in lawful possession of the land on the date of commencement of the 1950 Act to claim benefits under the Act. The Government has to make a declaration by publishing the notification in the gazette in respect of any area and from such date as may be specified therein, that the ownership of all lands held by protected tenants which they are entitled to purchase from their landholders in such area under the Act, subject to the conditions laid down under Section 38(7) of the Act would stand transferred to and vest in the protected tenants holding them as such and from such date the protected tenants shall be deemed to be the full owners of such lands.20. The certificate issued under Section 38-E(2) shall be conclusive evidence of the protected tenant having become the owner of the land with effect from the date of the certificate, as against the landholder and all other persons having any interest therein. In case the protected tenant is not in possession of the land, he has a right to restoration of the possession of the said land through the Tahsildar. The protected tenant cannot be dispossessed illegally by the landlord or anybody else. If so dispossessed, he has a right to restoration of the possession. He can be dispossessed only by taking recourse to the procedure prescribed under Section 32 of the 1950 Act.21. There is a complete embargo on the right of the landholder to alienate the tenanted land to a third party without giving an option to the tenant to purchase the land. Section 47 of the 1950 Act (omitted by the amendment of 1969) provided that any transfer of such land except to the protected tenant shall be void ab initio. The protected tenant may surrender his rights by strict adherence to the statutory requirements under the 1950 Act. In case there is any deviation from any such requirement, it would render the surrender ineffective and inconsequential.26. The 1950 Act being the beneficial legislation requires interpretation to advance social and economic justice and enforce the constitutional directives and not to deprive a person of his right to property. The statutory provisions should not be construed in favour of such deprivation. Interpretation of a beneficial legislation with a narrow pedantic approach is not justified. In case there is any doubt, the court should interpret a beneficial legislation in favour of the beneficiaries and not otherwise as it would be against the legislative intent. For the purpose of interpretation of a statute, the Act is to be read in its entirety. The purport and object of the Act must be given its full effect by applying the principles of purposive construction. The court must be strong against any construction which tends to reduce a statutes utility. The provisions of the statute must be construed so as to make it effective and operative and to further the ends of justice and not to frustrate the same. The court has the duty to construe the statute to promote the object of the statute and serve the purpose for which it has been enacted and should not efface its very purpose.41. There can be no doubt that once a protected tenant gets a certificate of ownership under Section 38-E(2) of the 1950 Act, he has a right to apply for restoration of possession to him if he has been dispossessed. The protected tenant has a right to ask for summary eviction of a trespasser.29. This Court in Boddam approved a Full Bench Judgment of the High Court in Sada. In Boddam, an application was filed claim- ing protected tenancy under Section 37-A of the Tenancy Act in the year 1998. On 16.12.1998, for the first time, it was alleged that the appellant was reflected as cultivating tenant in the Khasra Pahani for the year 1954-1955 for three years. The sale deed was executed in his favor by the owner on 23.11.1959 after permission was granted to his vendor under Sections 47 and 48 of the Tenancy Act. Bala, the paternal Uncle of the appellant had not claimed protected tenancy rights during his lifetime as he died in the year 1975. Even his legal representatives did not claim protected tenancy. It was only in 1998 that protected ten- ancy was sought and the ownership certificate under Section 38- E of the Tenancy Act was claimed after more than 40 years. This Court held as under:13. …A person becomes a protected tenant when he is a holder on the dates or for the periods mentioned in Sections 35, 37 and 37-A. Once a person becomes a protected tenant, he is entitled to an ownership certificate under Section 38-E. In Sada [AIR 1988 AP 77 : (1987) 2 An LT 749 (FB)] the Full Bench of the Andhra Pradesh High Court held that a person holds the land as protected tenant if he is still a protected tenant on the notified date i.e. 1-1-1973, though out of possession. As long as his right as protected tenant has not been determined by the date of notification in a manner known to the Act, he holds the land as a protected tenant, whether physically in possession or not. For the vesting of ownership of land held by a protected tenant under Section 38-E, it is not necessary that the protected tenant should be in physical possession on 1-1-1973. It is sufficient if he continues to hold the status of a protected tenant on the notified date, even if he is not in physical possession. The Act does not merely regulate the relationship of landlord and tenant but deals with the alienation of agricultural land and includes transfer of the landholders interest to the protected tenants. Therefore, the grant of pattedari (ownership rights) also finds place in the Act.30. This Court in Bal Reddy quoted with approval the Full Bench judgment in Sada as well as the earlier judgment of this Court in Kotaiah to hold that protected tenancy could be terminated only in a manner known to law. In the absence of such valid termination of protected tenancy, the interest of such protected tenant continues to be operative and subsisting in law and could devolve on his legal heirs and representatives who could then claim restoration of possession. As laid down in Sada, even if the protected tenant had lost possession, without there being valid termination of his status as a protected tenant, he would still be entitled to all incidents of protection under the Act.33. A protected tenant is entitled to recover possession in terms of Section 36 as well as Section 44 of the Tenancy Act which prohibits the termination of protected tenancy. The proviso to sub-section (1) of Section 44 of the Tenancy Act puts complete embargo on a land holder to exercise the right of resumption unless he has within a period of eighteen months from the commencement of the said Act sought reservation of land to exercise his right or resumption in terms of the commencement of Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1955. The Deputy Collector in terms of the said provision had to make a necessary enquiry and issue a certificate that the land has been so reserved. Thus, the land holder had no right to terminate the tenancy after the commencement of Amending Act, 1955 except after an enquiry which was to be conducted by the Deputy Collector. No such reservation had been made nor any enquiry was conducted, therefore, the rights of protected tenant cannot be defeated.37. The judgments referred to by the learned counsels for the appellants are not applicable to the facts of the present case. S. Rangaiah was a case of kabiz-e-kadim, which means an old occupier, who is neither a tenant nor a protected tenant. Such kabiz-e-kadim was granted protected tenancy status after the land got vested with the Government on 20.7.1955. The Bench noticed that even after vesting of Inam, a protected tenant would continue to have tenancy rights and would have the disability to enter into the agreement of sale on 22.1.1965 in favor of the respondents. The present matter is not a case of transfer of rights by or on behalf of the protected tenant. The entire argument is based upon the fact of oral surrender and subsequent filing and withdrawal of appeal in the year 1989 and of filing a belated appeal against the ownership certificate in the year 2015. The fact of filing of an appeal and its withdrawal was not raised in the first instance by the purchasers in proceedings before the Joint Collector or before the High Court. Since such documents were not produced at the earliest opportunity, and the veracity of such documents is not beyond doubt, there cannot be any attribution of knowledge of the grant of Occupancy Rights Certificate to the purchasers. It is strange that the appeal was withdrawn on 14.2.1989 but Section 19 petition was dismissed on the basis of alleged withdrawal of appeal on 31.1.1989. The High Court has held that the interest of the protected tenant cannot be validly conveyed in law in view of Section 30 of the Tenancy Act.38. In the present case, the surrender of tenancy rights is before the Mandal Revenue Officer on 31.1.1989, whereas as per the pro- viso to Section 19(1)(a) of the Tenancy Act, a tenant can surren- der his rights at least a month before the commencement of the year and that surrender is to be made by the tenant in writing. Such surrender is to be admitted by him before the Tehsildar and the authority is to satisfy itself that surrender is made in good faith. In the present case, the oral surrender by the protected tenant is set up in the year 1954. Such surrender is followed by sale of tenancy rights in the year 1957. Thereafter, the petition under Section 19 of the Tenancy Act was filed to seek approval of the Tenancy rights, such application was withdrawn on the basis of an order withdrawing the appeal against the grant of occu- pancy rights. This shows that the purchasers have taken steps to procure surrender of tenancy rights, realizing that such surren- der cannot be orally or by executing a sale deed. It was a cover up operation initiated by the purchaser but the same was still against the mandate of the statute as the finding of the surren- der has to be recorded by the Tehsildar. Since, neither the oral surrender nor surrender in writing was recorded as bonafide by the Tehsildar, the subsequent surrender approved by the Mandal Revenue Officer is a nullity and bears no legal effect as such sur- render is in contravention of the statutory provisions. The pro- tected tenant was conferred ownership rights under Section 38-E of the Tenancy Act on 23.3.1975 whereas the conferment of oc- cupancy rights were granted in the year 1982 under the Inams Act.39. In S. Veera Reddy, the appellants were transferees of the pro- tected tenant who sought declaration. The appellants relied upon a document dated 8.2.1963 by which the protected tenant was said to have transferred possession in their favor. On the other hand, one Sattaiah claimed possession after alleged sur- render of tenancy rights by the protected tenant. The appellants filed a suit claiming declaration of title and perpetual injunction. It was also a case where plaintiffs and defendants applied for oc- cupancy rights under the Inams Act. In fact, Section 38-E came to be inserted in the year 1971 after the filing of the suit by the appellants.40. Bhimavarapu Venkaiah is a case of transfer of Inam land wherein occupancy rights were claimed and the matter was re- mitted to the Revenue Divisional Officer to consider the applica- tion of the first petitioner for the grant of occupancy rights. S. Narasimha was also a case of claim of grant of Occupancy Rights Certificate. There is however no claim of grant of owner- ship rights as a protected tenant and interplay between the Ten- ancy Act or the Inams Act.42. We do not find that such judgments provide assistance to the arguments raised by the learned counsel for the appellants. Firstly, the application was treated to be one under Section 32 of the Tenancy Act. Section 32 falls in Chapter III of the Act dealing with the rights of the tenants whereas the rights of protected tenants are governed under Chapter IV. Section 32 is not applicable stricto sensu except to the limited extent as mentioned in the explanation to Section 38-E (1) of the Tenancy Act. Therefore, judgments in Ponnala Narsing Rao or Vorla Ramachandra Reddy are not applicable to the facts of the present case. Sub-section (5) of Section 38-E provides for an enquiry to ascertain the genuineness of surrender of the right by the protected tenant under clause (a) of sub-section (1) of Section 19. There is no provision in Chapter IV of the Tenancy Act to surrender protected tenancy rights. However, if an application is made under Section 19(1) of the Tenancy Act, the genuineness of such surrender is required to be ascertained by the Collector.43. The judgment in Boddam Narsimha is not helpful to the argu- ments raised by Mr. Dave as it is not a case of protected tenant on the dates mentioned in Sections 35, 37 and 37-A.45. In the judgment of Kasa Muthanna, the plaintiff was relying upon a certificate under Section 38 of the Tenancy Act whereas the defendant was relying upon a sale which was void in terms of Section 38 of the Tenancy Act. The High Court was examining in second appeal filed by the defendant, when the certificate under Section 38-E was granted to the plaintiff or their predecessors. In the aforesaid case, a certificate issued under section 38-E had become final and binding for not being challenged as per the procedure established by law. The Court held that the revenue entries made ignoring the 38-E certificate are illegal and that when once the title is established and the defendants had failed to prove adverse possession or any other right to remain in possession, the plaintiffs are entitled to the relief of recovery possession.46. In the judgment reported as J. Narayana & Ors. v. Jainapally Pedda Kistaiah and Ors 2013 SCC OnLine AP 289, the question examined was whether the appellants are the protected tenants or owners under Section 38-E of the Tenancy Act. The High Court held as under:16. From a perusal of the above, it is clear that it is only after the certificate is issued under sub-section (2), that the rights of ownership stand conferred upon a protected tenant. Another important aspect is that even where a certificate is issued, it must be followed by determination of the amount to be paid to the land owner and actual payment thereof. The default in payment of price in its entirety or portion thereof would lead to annulment of the ownership.17. In the instant case the appellants were not issued any certificate of ownership at all. They did not even produce any deed of lease, which contains their names. It was not even pleaded that the price for the land was determined and the same was paid as provided under sub-section (3) of Sec.38-E of the Tenancy Act.22. It is important to note that if a P.T. or his successors are dispossessed from the land, they can seek the relief of recovery of possession under Section 32 of the Tenancy Act by filing application before the Tahsildar. As a matter fact, they filed an application under Sec. 32 of the Tenancy Act way back in the year 1988 for recovery of possession against the Respondents. That, however, was after the lands were acquired and Notification under Sec.4 (1) of the Act was published. Till today no orders have been passed thereon. The result is that the Respondents are undisputedly in possession of the land and in contrast the appellants were never in possession of the same, till it was acquired. The Point No.2 is answered accordingly.47. The appeals allegedly filed by the protected tenant against the grant of occupancy rights certificate and subsequently being withdrawn is wholly inconsequential as after the grant of ownership certificate in terms of Section 38-E of the Tenancy Act, the protected tenants are deemed to be owners. Once the protected tenants are deemed to be owners, there could not be any occupancy rights certificate as the purchasers were divested of their ownership by virtue of the grant of ownership certificate under Section 38-E of the Tenancy Act. Such certificate was also not disputed by the purchasers. Therefore, title of the protected tenants is complete and the ownership unambiguously vests with them.48. Now we shall examine the occupancy rights certificate granted to the purchasers in the year 1982. There was no right with the purchaser to claim occupancy rights on the basis of possession since 1.11.1973 upon surrender of protected tenancy rights. If the surrender of protected tenancy rights is not in accordance with the mandate of the statute, the possession from 1.11.1973 would be inconsequential as such possession would not affect the rights of the protected tenant who is entitled to statutory protection. In fact, the grant of Certificate unequivocally transfers ownership rights to the protected tenant.50. However, ownership rights were granted to the protected tenant in respect of land measuring 19 acres and 16 guntas whereas occupancy rights have been granted in respect of the land measuring 31.05 guntas including of land falling in Survey Nos. 61 and 62 in Village Jeedimetla on 19.2.1982.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: not being challenged as per the procedure established by law. The Court held that the revenue entries made ignoring the 38-E certificate are illegal and that when once the title is established and the defendants had failed to prove adverse possession or any other right to remain in possession, the plaintiffs are entitled to the relief of recovery possession. 46. In the judgment reported as J. Narayana & Ors. v. Jainapally Pedda Kistaiah and Ors 2013 SCC OnLine AP 289, the question examined was whether the appellants are the protected tenants or owners under Section 38-E of the Tenancy Act. The High Court held as under: 16. From a perusal of the above, it is clear that it is only after the certificate is issued under sub-section (2), that the rights of ownership stand conferred upon a protected tenant. Another important aspect is that even where a certificate is issued, it must be followed by determination of the amount to be paid to the land owner and actual payment thereof. The default in payment of price in its entirety or portion thereof would lead to annulment of the ownership. 17. In the instant case the appellants were not issued any certificate of ownership at all. They did not even produce any deed of lease, which contains their names. It was not even pleaded that the price for the land was determined and the same was paid as provided under sub-section (3) of Sec.38-E of the Tenancy Act. xxx xxx xxx 22. It is important to note that if a P.T. or his successors are dispossessed from the land, they can seek the relief of recovery of possession under Section 32 of the Tenancy Act by filing application before the Tahsildar. As a matter fact, they filed an application under Sec. 32 of the Tenancy Act way back in the year 1988 for recovery of possession against the Respondents. That, however, was after the lands were acquired and Notification under Sec.4 (1) of the Act was published. Till today no orders have been passed thereon. The result is that the Respondents are undisputedly in possession of the land and in contrast the appellants were never in possession of the same, till it was acquired. The Point No.2 is answered accordingly. 47. The appeals allegedly filed by the protected tenant against the grant of occupancy rights certificate and subsequently being withdrawn is wholly inconsequential as after the grant of ownership certificate in terms of Section 38-E of the Tenancy Act, the protected tenants are deemed to be owners. Once the protected tenants are deemed to be owners, there could not be any occupancy rights certificate as the purchasers were divested of their ownership by virtue of the grant of ownership certificate under Section 38-E of the Tenancy Act. Such certificate was also not disputed by the purchasers. Therefore, title of the protected tenants is complete and the ownership unambiguously vests with them. 48. Now we shall examine the occupancy rights certificate granted to the purchasers in the year 1982. There was no right with the purchaser to claim occupancy rights on the basis of possession since 1.11.1973 upon surrender of protected tenancy rights. If the surrender of protected tenancy rights is not in accordance with the mandate of the statute, the possession from 1.11.1973 would be inconsequential as such possession would not affect the rights of the protected tenant who is entitled to statutory protection. In fact, the grant of Certificate unequivocally transfers ownership rights to the protected tenant. 49. The Inams Act is a subsequent statute than the Tenancy Act. Section 33 of the Inams Act is to the effect that nothing in the Act shall in any way be deemed to affect the application of the provisions of the Tenancy Act to any inam or mutual rights and obligations of Inamdar and his tenants, save insofar as the said provisions are in any way inconsistent with the express provisions of this Act. Section 38-E (1) of the Tenancy Act, as substituted in the year 1971, starts with a non-obstante clause giving overriding effect to any other law for the time being in force. Such sub-clause will include the Inams Act and that Inams Act will not be operative in the case of Section 38-E (1) of the Tenancy Act. This notification was issued on 1.1.1973 to cover the entire Telangana Area of the State. Both the Inams Act and the Tenancy Act are enacted by the same Legislature. The Inams Act is a later Act enacted in the year 1955 but Section 38-E (1) was substituted in the year 1971 which starts with a non- obstante clause. Therefore, ownership certificate granted under the Tenancy Act would prevail over the grant of occupancy rights certificate under the Inams Act. Both the Acts operate in different spheres. Inams Act deals with the land owner, whereas the Tenancy Act protects the rights of the tiller i.e., tenant including a protected tenant. In terms of Section 3(2)(b) of the Inams Act, all rights, title and interests vesting in the Inamdar including the protected tenant shall cease and be vested absolutely in the State, free from all encumbrances. Section 7 of the Inams Act deals with the right of a protected tenant to be registered as an occupant of such inam lands in his possession as may be left over after the allotment under Section 4. Section 38-E of the Tenancy Act was inserted initially in the year 1954 and subsequently substituted in 1971 giving overriding effect to such provision. Therefore, an Inamdar under the Inams Act would not have any right of allotment of occupancy rights in view of overriding effect given to Section 38-E. 50. However, ownership rights were granted to the protected tenant in respect of land measuring 19 acres and 16 guntas whereas occupancy rights have been granted in respect of the land measuring 31.05 guntas including of land falling in Survey Nos. 61 and 62 in Village Jeedimetla on 19.2.1982. ### Response: 0

S. Syed Mohideen Vs. P. Sulochana Bai

p.12, and particularly the following: "A proprietary right in a mark sought to be registered can be obtained in a number of ways. The mark can be originated by a person or can be acquired, but in all cases it is necessary that the person putting forward the application should be in possession of some proprietary right which, if questioned, can be substantiated". Law in India under our present Act is similar." We uphold said view which has been followed and relied upon the courts in India over a long time. The said views emanating from the courts in India clearly speak in one voice which is that the rights in common law can be acquired by way of use and the registration rights were introduced later which made the rights granted under the law equivalent to the public user of such mark. Thus, we hold that registration is merely a recognition of the rights pre-existing in common law and in case of conflict between the two registered proprietors, the evaluation of the better rights in common law is essential as the common law rights would enable the court to determine whose rights between the two registered proprietors are better and superior in common law which have been recognised in the form of the registration by the Act. 24. When we apply the aforesaid principle to the facts of the present case, we find that the impugned judgment of the High Court, affirming that of the trial court is flawless and does not call for any interference. From the plethora of evidences produced by the respondent she has been able to establish that the trade mark Iruttukadai Halwa has been used of by her/her predecessors since the year 1900. The business in that name is carried on by her family. It has become a household name which is associated with the respondent/her family. The Court has also noted that the Halwa sold by the respondents shop as Iruttukadai Halwa is not only famous with the consumers living in Tirunelveli, but is also famous with the consumers living in other parts of India and outside. Reference is made to an article published in Ananda Viketan, a weekly Tamil magazine dated 14.9.2003, describing the high quality and the trade mark Iruttukadai halwa sold by the plaintiff, the findings and conclusions reached by the Court below is perfectly in order, hence, the same does not call for interference, carries more merit, for, this name has been further acknowledged in a Tamil song from the movie "Samy" as follows:- "Tirunelveli Halwada, Tiruchy Malai Kottaida (Rock Fort)Tirupathike Laddu thantha SamydaIruttukadai Alwada, Idli Kadai Ayada (grandma)" When the above Tamil cinema song being repeatedly played in the State of Tamil Nadu has also spoken more about the trade mark Iruttukadai halwa, it goes without saying that the plaintiffs trade mark name Iruttukadai halwa has become a household name in the nook and corner of this State, therefore, no one can claim as his own the name Iruttukadai halwa except the respondent. 25. This factual position is summed up by the High Court in the following manner: "From the year 1900 onwards till now, the respondents family has been running the shop only for limited hours without selling any other item except halwa and the public not only in Tirunelveli but also in other parts of India has accepted the name as Iruttukadai halwa. As highlighted above, this could be seen from the telephone directory, issued in the year 1999, wherein the plaintiffs Iruttukadai halwa shop has been mentioned with the address at No. 14, East Car Street, Tirunelveli Town. Moreover, another interesting article published in Ananda Viketan, a weekly magazine dated 14.09.2003 in the State of Tamil Nadu clearly brings home the case of the plaintiff for the grant of declaration and injunction against the defendant on the ground that the word Iruttukadai halwa means and indicates only the halwa sold at Door No. 14, East Car Street, Tirunelveli Town belonging to the plaintiff alone. Moreover, the plaintiff has also registered the trade mark Iruttukadai halwa under Section 25(2) of the Trade Marks Act, 1999 with the Registrar. Under clause 16 even the paper and paper articles etc., and the trade marks certificate issued and registered under clause 30 also clearly proves the case of the plaintiff that she is the prior user of the trade mark Iruttukadai halwa. Therefore, the trial Court accepting the case of the respondent that she has officially registered the trade mark as a prior user rightly granted the decree for declaration and injunction against the defendant. When the plaintiff has proved that the person who gets into the business at the first point of time acquired the right to use the trade mark, the priority in use of the trade mark by the plaintiff will have to be recognised in law. Accordingly, when the plaintiff has earned the reputation and goodwill in the business in the name and style of Iruttukadai Halwa, the defendant cannot simply add the word Tirunelveli Iruttukadai Halwa, as the same has been used prior in point of time by the plaintiff. Therefore, the Court is of the considered opinion that allowing the defendant to use the trade mark Tirunelveli Iruttukadai Halwa will amount to deceiving the public, hence, no one can be permitted to encroach upon the goodwill and reputation of other party, particularly when a specific mark, though may be a descriptive word, has acquired a subsidiary meaning and is fully admitted by the particular company and when a party who cannot be termed as a honest current user of the mark on the reputation and goodwill of the company, it will constitute invasion of the proprietary right, hence, the same cannot be permitted any longer. In a situation like this, it is the bounden duty and obligation of the Court not only to protect the goodwill and reputation of the prior user, but also to protect the interest of the consumers." 26. Havin

0[ds]12. After considering the aforesaid submissions of the counsel for the parties, we find formidable force in the arguments of the learned counsel for the appellant predicated on the rights accrued to him as a result of the trade mark of Tirunelveli Iruttukadai Halwa having been duly registered by the Registrar under Section 25(2) of the Act. This is the aspect which cannot be down played at all. An owner of a registered trade mark is given certain invaluable rights including the right to use the said trade mark to the exclusion of others.In the present case, we find that no such opposition was made by the respondent when the application of the appellant for registration of trade mark Tirunelveli Iruttukadai Halwa was preferred and after following the procedure laid down therein the Registrar granted the registration. Further, it is curious to note that this registration is stated to be under Section 25(2) of the Act, which would imply that it was a case of renewal of registration in the year 2008 and the original registration was much earlier. However, those facts do not emerge from the record and the appellant also did not press this fact. Therefore, we shall proceed on the basis that the appellants trade mark was registered in the year 2008, more so when we find that actual date has no bearing to theuphold said view which has been followed and relied upon the courts in India over a long time. The said views emanating from the courts in India clearly speak in one voice which is that the rights in common law can be acquired by way of use and the registration rights were introduced later which made the rights granted under the law equivalent to the public user of such mark. Thus, we hold that registration is merely a recognition of the rightsin common law and in case of conflict between the two registered proprietors, the evaluation of the better rights in common law is essential as the common law rights would enable the court to determine whose rights between the two registered proprietors are better and superior in common law which have been recognised in the form of the registration by the Act.Having regard to the aforesaid findings of the courts below and the application of principle of law on these facts as enunciated above, we find full justification in the decree passed by the courts below in favour of the respondent.However, what is stated above is the reflection of Section 28 of the Act when that provision is seen and examined without reference to the other provisions of the Act. It is stated at the cost of repetition that as per this Section owner of registered trade mark cannot sue for infringement of his registered trade mark if the appellant also has the trade mark which is registered. Having said so, a very important question arises for consideration at this stage, namely, whether such a respondent can bring an action against the appellant for passing off invoking the provisions of Section 27(2) of the Act. In other words, what would be the interplay of Section 27(2) and Section 28(3) of the Act is the issue that arises for consideration in the instant case. As already noticed above, the trial court as well as High Court has granted the injunction in favour of the respondent on the basis of prior user as well as on the ground that the trade mark of the appellant, even if it is registered, would cause deception in the mind of public at large and the appellant is trying to encash upon, exploit and ride upon on the goodwill of the respondent herein. Therefore, the issue to be determined is as to whether in such a scenario, provisions of Section 27(2) would still be available even when the appellant is having registration of the trade mark of which he is using. After considering the entire matter in the light of the various provisions of the act and the scheme, our answer of the aforesaid question would be in the affirmative. Our reasons for arriving at this conclusion are the following:(A) Firstly, the answer to this proposition can be seen by carefully looking at the provisions of Trade Marks Act, 1999 (The Act). Collective reading of the provisions especially Section 27, 28, 29 and 34 of the Trade Marks Act, 1999 would show that the rights conferred by registration are subject to the rights of the prior user of the trademark. We have already reproduced Section 27 and Section 29 of thethe registration of the mark shall give exclusive rights to the use of the trademark subject to the other provisions of this Act. Thus, the rights granted by the registration in the form of exclusivity are not absolute but are subject to the provisions of thesaid provision 28 (3) nowhere comments about the rights of passing off which shall remain unaffected due to overriding effect of Section 27(2) of the Act and thus the rights emanating from the common law shall remain undisturbed by the enactment of Section 28(3) which clearly states that the rights of one registered proprietor shall not be enforced against the another person.The above were the reasonings from the provisions arising from the plain reading of the Act which gives clear indication that the rights of prior user are superior than that of registration and are unaffected by the registration rights under the Act. Secondly, there are other additional reasonings as to why the passing off rights are considered to be superior than that of registration rights.Traditionally, passing off in common law is considered to be a right for protection of goodwill in the business against misrepresentation caused in the course of trade and for prevention of resultant damage on account of the said misrepresentation. The three ingredients of passing off are goodwill, misrepresentation and damage. These ingredients are considered to be classical trinity under the law of passing off as per the speech of Lord Oliver laid down in the case of Reckitt & Colman Products Ltd. v. Borden Inc (1990) 1 All E.R. 873 which is more popularly known as "Jif Lemon" case wherein the Lord Oliver reduced the five guidelines laid out by Lord Diplock in Erven Warnink v. Townend & Sonsapplicability of the said principle can be seen as to which proprietor has generated the goodwill by way of use of the mark name in the business. The use of the mark/carrying on business under the name confers the rights in favour of the person and generates goodwill in the market. Accordingly, the latter user of the mark/name or in the business cannot misrepresent his business as that of business of the prior right holder. That is the reason why essentially the prior user is considered to be superior than that of any other rights. Consequently, the examination of rights in common law which are based on goodwill, misrepresentation and damage are independent to that of registered rights. The mere fact that both prior user and subsequent user are registered proprietors are irrelevant for the purposes of examining who generated the goodwill first in the market and whether the latter user is causing misrepresentation in the course of trade and damaging the goodwill and reputation of the prior right holder/former user. That is the additional reasoning that the statutory rights must pave the way for common law rights of passing off.C. Thirdly, it is also recognised principle in common law jurisdiction that passing off right is broader remedy than that of infringement. This is due to the reason that the passing off doctrine operates on the general principle that no person is entitled to represent his or her business as business of other person. The said action in deceit is maintainable for diverse reasons other than that of registered rights which are allocated rights under the Act. The authorities of other common law jurisdictions like England more specifically Kerlys Law of Trademarks and Trade Names, Fourteenth Edition, Thomson, Sweet & Maxwell South Asian Edition recognizes the principle that where trademark action fails, passing off action may still succeed on the samethe reading of aforementioned excerpts from Kerlys Law of Trademarks and Trade Names, it can be said that not merely it is recognised in India but in other jurisdictions also including England/UK (Provisions of UK Trade Marks Act, 1994 are analogous to Indian Trade Marks Act, 1999) that the registration is no defense to a passing off action and nor the Trade Marks Act, 1999 affords any bar to a passing off action. In such an event, the rights conferred by the Act under the provisions of Section 28 has to be subject to the provisions of Section 27(2) of the Act and thus the passing off action has to be considered independent Iruttukadai Halwa the provisions of Trade Marks Act, 1999.D. Fourthly, It is also well settled principle of law in the field of the trade marks that the registration merely recognizes the rights which are alreadyin common law and does not create any rights. This has been explained by the Division Bench of Delhi High Court in the case of Century Traders v. Roshan Lal Duggar Co. AIR 1978 Del 250 in the followingis the question of use of the trade mark. Use plays an all important part. A trader acquires a right of property in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade. The trader who adopts such a mark is entitled to protection directly the article having assumed a vendible character is launched upon the market. Registration under the statute does not confer any new right to the mark claimed or any greater right than what already existed at common law and at equity without registration. It does, however, facilitate a remedy which may be enforced and obtained throughout "THE State and it established the record of facts affecting the right to the mark. Registration itself does not create a trade mark. The trade mark exists independently of the registration which merely affords further protection under the statute. Common law rights are left wholly unaffected." (Emphasisview is expressed by the Bombay High Court in the case of Sunder Parmanand Lalwani and Others v. Caltex (India) Ltd. AIR 1969 Bombay 24 (D.B.) in which it has been held vide paras 32 and 38 asA proprietary right in a mark can beIruttukadai Halwa obtained in a number of ways. The mark can be originated by a person, or it can be subsequently acquired by him from somebody else. Our Trade Marks law is based on the English Trade Marks law and the English Acts. The first Trade Marks Act in England was passed in 1875. Even prior thereto, it was firmly established in England that a trader acquired a right of property in a distinctive mark merely by using it upon or in connection with goods irrespective of the length of such user and the extent of his trade, and that he was entitled to protect such right of property by appropriate proceedings by way of injunction in a Court of law. Then came the English Trade Marks Act of 1875, which was substituted later by later Acts. The English Acts enabled registration of a new mark not till then used with the like consequences which a distinctive mark had prior to the passing of the Acts. The effect of the relevant provision of the English Acts was that registration of a trade mark would be deemed to be equivalent to public user of such mark. Prior to the Acts, Prior to the Acts, one could become a proprietor of a trade mark only by user, but after the passing of the Act of 1875, one could become a proprietor either by user or by registering the mark even prior to its user. He could do the latter after complying with the other requirements of the Act, including the filing of a declaration of his intention to use such mark. See observations of Llyod Jacob J. in 1956 RPC 1. In the matter of Vitamins Ltds Application for Trade Mark at p.12, and particularly the following: "A proprietary right in a mark sought to be registered can be obtained in a number of ways. The mark can be originated by a person or can be acquired, but in all cases it is necessary that the person putting forward the application should be in possession of some proprietary right which, if questioned, can be substantiated". Law in India under our present Act isd said view which has been followed and relied upon the courts in India over a long time. The said views emanating from the courts in India clearly speak in one voice which is that the rights in common law can be acquired by way of use and the registration rights were introduced later which made the rights granted under the law equivalent to the public user of such mark. Thus, we hold that registration is merely a recognition of the rightsin common law and in case of conflict between the two registered proprietors, the evaluation of the better rights in common law is essential as the common law rights would enable the court to determine whose rights between the two registered proprietors are better and superior in common law which have been recognised in the form of the registration by the Act.When we apply the aforesaid principle to the facts of the present case, we find that the impugned judgment of the High Court, affirming that of the trial court is flawless and does not call for any interference. From the plethora of evidences produced by the respondent she has been able to establish that the trade mark Iruttukadai Halwa has been used of by her/her predecessors since the year 1900. The business in that name is carried on by her family. It has become a household name which is associated with the respondent/her family. The Court has also noted that the Halwa sold by the respondents shop as Iruttukadai Halwa is not only famous with the consumers living in Tirunelveli, but is also famous with the consumers living in other parts of India and outside.

### 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: p.12, and particularly the following: "A proprietary right in a mark sought to be registered can be obtained in a number of ways. The mark can be originated by a person or can be acquired, but in all cases it is necessary that the person putting forward the application should be in possession of some proprietary right which, if questioned, can be substantiated". Law in India under our present Act is similar." We uphold said view which has been followed and relied upon the courts in India over a long time. The said views emanating from the courts in India clearly speak in one voice which is that the rights in common law can be acquired by way of use and the registration rights were introduced later which made the rights granted under the law equivalent to the public user of such mark. Thus, we hold that registration is merely a recognition of the rights pre-existing in common law and in case of conflict between the two registered proprietors, the evaluation of the better rights in common law is essential as the common law rights would enable the court to determine whose rights between the two registered proprietors are better and superior in common law which have been recognised in the form of the registration by the Act. 24. When we apply the aforesaid principle to the facts of the present case, we find that the impugned judgment of the High Court, affirming that of the trial court is flawless and does not call for any interference. From the plethora of evidences produced by the respondent she has been able to establish that the trade mark Iruttukadai Halwa has been used of by her/her predecessors since the year 1900. The business in that name is carried on by her family. It has become a household name which is associated with the respondent/her family. The Court has also noted that the Halwa sold by the respondents shop as Iruttukadai Halwa is not only famous with the consumers living in Tirunelveli, but is also famous with the consumers living in other parts of India and outside. Reference is made to an article published in Ananda Viketan, a weekly Tamil magazine dated 14.9.2003, describing the high quality and the trade mark Iruttukadai halwa sold by the plaintiff, the findings and conclusions reached by the Court below is perfectly in order, hence, the same does not call for interference, carries more merit, for, this name has been further acknowledged in a Tamil song from the movie "Samy" as follows:- "Tirunelveli Halwada, Tiruchy Malai Kottaida (Rock Fort)Tirupathike Laddu thantha SamydaIruttukadai Alwada, Idli Kadai Ayada (grandma)" When the above Tamil cinema song being repeatedly played in the State of Tamil Nadu has also spoken more about the trade mark Iruttukadai halwa, it goes without saying that the plaintiffs trade mark name Iruttukadai halwa has become a household name in the nook and corner of this State, therefore, no one can claim as his own the name Iruttukadai halwa except the respondent. 25. This factual position is summed up by the High Court in the following manner: "From the year 1900 onwards till now, the respondents family has been running the shop only for limited hours without selling any other item except halwa and the public not only in Tirunelveli but also in other parts of India has accepted the name as Iruttukadai halwa. As highlighted above, this could be seen from the telephone directory, issued in the year 1999, wherein the plaintiffs Iruttukadai halwa shop has been mentioned with the address at No. 14, East Car Street, Tirunelveli Town. Moreover, another interesting article published in Ananda Viketan, a weekly magazine dated 14.09.2003 in the State of Tamil Nadu clearly brings home the case of the plaintiff for the grant of declaration and injunction against the defendant on the ground that the word Iruttukadai halwa means and indicates only the halwa sold at Door No. 14, East Car Street, Tirunelveli Town belonging to the plaintiff alone. Moreover, the plaintiff has also registered the trade mark Iruttukadai halwa under Section 25(2) of the Trade Marks Act, 1999 with the Registrar. Under clause 16 even the paper and paper articles etc., and the trade marks certificate issued and registered under clause 30 also clearly proves the case of the plaintiff that she is the prior user of the trade mark Iruttukadai halwa. Therefore, the trial Court accepting the case of the respondent that she has officially registered the trade mark as a prior user rightly granted the decree for declaration and injunction against the defendant. When the plaintiff has proved that the person who gets into the business at the first point of time acquired the right to use the trade mark, the priority in use of the trade mark by the plaintiff will have to be recognised in law. Accordingly, when the plaintiff has earned the reputation and goodwill in the business in the name and style of Iruttukadai Halwa, the defendant cannot simply add the word Tirunelveli Iruttukadai Halwa, as the same has been used prior in point of time by the plaintiff. Therefore, the Court is of the considered opinion that allowing the defendant to use the trade mark Tirunelveli Iruttukadai Halwa will amount to deceiving the public, hence, no one can be permitted to encroach upon the goodwill and reputation of other party, particularly when a specific mark, though may be a descriptive word, has acquired a subsidiary meaning and is fully admitted by the particular company and when a party who cannot be termed as a honest current user of the mark on the reputation and goodwill of the company, it will constitute invasion of the proprietary right, hence, the same cannot be permitted any longer. In a situation like this, it is the bounden duty and obligation of the Court not only to protect the goodwill and reputation of the prior user, but also to protect the interest of the consumers." 26. Havin ### Response: 0

Firms Amar Nath Basheshar Dass Vs. Tek Chand

one of the duties imposed on the Courts in interpreting a particular provision of law, rule or notification is to ascertain the meaning and intendment of the legislature or of the delegate, which in exercise of the powers conferred on it, has made the rule or notification in question. In doing so, we must always presume that the impugned provision was designed to effectuate a particular object or to meet a particular requirement and not that it was intended to negative that which it sought to achieve. It is clear that the Government intended to grant certain inducements to persons who had the means to construct buildings by exempting any such building so constructed for a period of 5 years. The period of 5 years could commence from the date of construction or from some other date. Initially, as the earlier notifications would show, that exemption of 5 years was given from the date when the building was constructed but by the impugned notification it was intended to confer the benefit by giving exemption of 5 years from a subsequent date, namely, the date of the institution of a suit, provided it was instituted within a period of 5 years from the date of the construction of the building. A closer reading of the notification would show that it was intended to clarify and provide a workable solution in respect of buildings constructed in 1959, 1960, 1961, 1962 and 1963. These buildings had already been exempted from the provisions of Section 13 by two earlier notifications, the first one in 1960 giving exemption up-to 31-12-1963 and the second in 1963 for 5 years from the date of completion of the building. It is clear from the language of the notification that what is exempted is the decree for ejectment of a tenant from the application of Section 13.The very purpose of exemption of buildings from the operation of Section 13 was to give landlords the rights which as owners of buildings they had under the ordinary law, namely, to give them on lease at rents which they thought were remunerative and to evict tenants during that period without any fetters imposed by the Act. If no provision was made for exempting such decrees in respect of the exempted buildings, the exemption granted will be illusory. Clause (b), therefore, provided for the time during which that suit in which the decree has been passed should be filed. The decree passed in such suits will be executable free from the fetters imposed by Section 13 of the Act. It is obvious that the filing of a suit by itself does not confer any exemption because what is exempted from the provisions of Section 13 is the decree. A suit filed, therefore, must end in a decree though that decree may be passed subsequent to the expiry of the 5 years period during which exemption from the application of S. 13 has been granted. 5. The learned Advocate for the respondent has suggested a construction of the notification which is consistent with our reading of the notification and that is that the words were or are used in clause (b) both in respect of the filing of the suits and the passing of the decrees would indicate that these suits should have been filed or are hereafter to be filed and likewise decrees of ejectment had been passed or are hereafter to be passed. In other words, the suits must have been already filed during the period of exemption or are to be instituted during such period. This language had to be used because the 5 years exemption in respect of the buildings constructed in 1959 would end in 1964 while the notification was issued in 1965. There is no question of suits being filed in respect of these buildings hereafter; as such decrees in suits filed before 1964 would be exempted. In respect of the buildings constructed in 1960, there would be some buildings in respect of which the five years exemption period would have expired before the notification and, therefore, the suits in respect of such buildings during the relevant period in 1960 should have been filed before that expired and where the exemption expires after the notification, suits could be filed thereafter but before the exemption expires. In respect of 1961, 1962 and 1963 there is of course no difficulty because there is sufficient period for filing suits if they had not been filed by the time the notification was issued. Taking the typical case of a building constructed in 1961, the period of 5 years exemption would expire in 1966 and under the first part of clause (b) it would be open to the landlord to file a suit for ejectment even on the last day of the expiry of the 5 years exemption. If so, it would be absurd to postulate that a decree would be given immediately thereafter, as that would be the result, if the contention that both the suit and the decree should be passed within the period of exemption, is accepted. This could not have been the intention of the Government in publishing the notification under Section 3. 6. It is clear to our minds, as it was to the High Court that under clause (b) the filing of the suit within the period of exemption is the only condition that is necessary to satisfy one of the requirements of the exemption, the other requirement being the passing of the decree in respect of which no time has been prescribed. If the decree, as contended by the learned Advocate for the appellant has to be obtained within the period of 5 years, there was no need to specify that the suit had to be filed within that period because the exemption from the requirements of Section 13 is only in respect of the decree and not the suit. There was, therefore, no need to mention about the time of the filing of the suit.

0[ds]5. The learned Advocate for the respondent has suggested a construction of the notification which is consistent with our reading of the notification and that is that the words were or are used in clause (b) both in respect of the filing of the suits and the passing of the decrees would indicate that these suits should have been filed or are hereafter to be filed and likewise decrees of ejectment had been passed or are hereafter to be passed. In other words, the suits must have been already filed during the period of exemption or are to be instituted during such period. This language had to be used because the 5 years exemption in respect of the buildings constructed in 1959 would end in 1964 while the notification was issued in 1965. There is no question of suits being filed in respect of these buildings hereafter; as such decrees in suits filed before 1964 would be exempted. In respect of the buildings constructed in 1960, there would be some buildings in respect of which the five years exemption period would have expired before the notification and, therefore, the suits in respect of such buildings during the relevant period in 1960 should have been filed before that expired and where the exemption expires after the notification, suits could be filed thereafter but before the exemption expires. In respect of 1961, 1962 and 1963 there is of course no difficulty because there is sufficient period for filing suits if they had not been filed by the time the notification was issued. Taking the typical case of a building constructed in 1961, the period of 5 years exemption would expire in 1966 and under the first part of clause (b) it would be open to the landlord to file a suit for ejectment even on the last day of the expiry of the 5 years exemption. If so, it would be absurd to postulate that a decree would be given immediately thereafter, as that would be the result, if the contention that both the suit and the decree should be passed within the period of exemption, is accepted. This could not have been the intention of the Government in publishing the notification under Section 36. It is clear to our minds, as it was to the High Court that under clause (b) the filing of the suit within the period of exemption is the only condition that is necessary to satisfy one of the requirements of the exemption, the other requirement being the passing of the decree in respect of which no time has been prescribed. If the decree, as contended by the learned Advocate for the appellant has to be obtained within the period of 5 years, there was no need to specify that the suit had to be filed within that period because the exemption from the requirements of Section 13 is only in respect of the decree and not the suit. There was, therefore, no need to mention about the time of the filing of the suit.

### 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: one of the duties imposed on the Courts in interpreting a particular provision of law, rule or notification is to ascertain the meaning and intendment of the legislature or of the delegate, which in exercise of the powers conferred on it, has made the rule or notification in question. In doing so, we must always presume that the impugned provision was designed to effectuate a particular object or to meet a particular requirement and not that it was intended to negative that which it sought to achieve. It is clear that the Government intended to grant certain inducements to persons who had the means to construct buildings by exempting any such building so constructed for a period of 5 years. The period of 5 years could commence from the date of construction or from some other date. Initially, as the earlier notifications would show, that exemption of 5 years was given from the date when the building was constructed but by the impugned notification it was intended to confer the benefit by giving exemption of 5 years from a subsequent date, namely, the date of the institution of a suit, provided it was instituted within a period of 5 years from the date of the construction of the building. A closer reading of the notification would show that it was intended to clarify and provide a workable solution in respect of buildings constructed in 1959, 1960, 1961, 1962 and 1963. These buildings had already been exempted from the provisions of Section 13 by two earlier notifications, the first one in 1960 giving exemption up-to 31-12-1963 and the second in 1963 for 5 years from the date of completion of the building. It is clear from the language of the notification that what is exempted is the decree for ejectment of a tenant from the application of Section 13.The very purpose of exemption of buildings from the operation of Section 13 was to give landlords the rights which as owners of buildings they had under the ordinary law, namely, to give them on lease at rents which they thought were remunerative and to evict tenants during that period without any fetters imposed by the Act. If no provision was made for exempting such decrees in respect of the exempted buildings, the exemption granted will be illusory. Clause (b), therefore, provided for the time during which that suit in which the decree has been passed should be filed. The decree passed in such suits will be executable free from the fetters imposed by Section 13 of the Act. It is obvious that the filing of a suit by itself does not confer any exemption because what is exempted from the provisions of Section 13 is the decree. A suit filed, therefore, must end in a decree though that decree may be passed subsequent to the expiry of the 5 years period during which exemption from the application of S. 13 has been granted. 5. The learned Advocate for the respondent has suggested a construction of the notification which is consistent with our reading of the notification and that is that the words were or are used in clause (b) both in respect of the filing of the suits and the passing of the decrees would indicate that these suits should have been filed or are hereafter to be filed and likewise decrees of ejectment had been passed or are hereafter to be passed. In other words, the suits must have been already filed during the period of exemption or are to be instituted during such period. This language had to be used because the 5 years exemption in respect of the buildings constructed in 1959 would end in 1964 while the notification was issued in 1965. There is no question of suits being filed in respect of these buildings hereafter; as such decrees in suits filed before 1964 would be exempted. In respect of the buildings constructed in 1960, there would be some buildings in respect of which the five years exemption period would have expired before the notification and, therefore, the suits in respect of such buildings during the relevant period in 1960 should have been filed before that expired and where the exemption expires after the notification, suits could be filed thereafter but before the exemption expires. In respect of 1961, 1962 and 1963 there is of course no difficulty because there is sufficient period for filing suits if they had not been filed by the time the notification was issued. Taking the typical case of a building constructed in 1961, the period of 5 years exemption would expire in 1966 and under the first part of clause (b) it would be open to the landlord to file a suit for ejectment even on the last day of the expiry of the 5 years exemption. If so, it would be absurd to postulate that a decree would be given immediately thereafter, as that would be the result, if the contention that both the suit and the decree should be passed within the period of exemption, is accepted. This could not have been the intention of the Government in publishing the notification under Section 3. 6. It is clear to our minds, as it was to the High Court that under clause (b) the filing of the suit within the period of exemption is the only condition that is necessary to satisfy one of the requirements of the exemption, the other requirement being the passing of the decree in respect of which no time has been prescribed. If the decree, as contended by the learned Advocate for the appellant has to be obtained within the period of 5 years, there was no need to specify that the suit had to be filed within that period because the exemption from the requirements of Section 13 is only in respect of the decree and not the suit. There was, therefore, no need to mention about the time of the filing of the suit. ### Response: 0

P.S. Meherhomji Vs. K.T.Vijay Kumar

caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 18. The relevant paragraphs of the complaint filed by the respondent in the present case are reproduced hereinbelow: - That the complainants company chemical Biotech Ltd., with an intention to go in with public issue engaged Ashika Capital Limited, a company based in Mumbai as Lead Managers to handle their public issue and in the course of their due diligence act they have sought for certain clarifications and information in respect of the Complainant Companys credentials so as to go ahead with the publication of the prospectus, as the 1st accused earlier made a representation against the Complainants to SEBI. That the 2nd accused representing the 1st Accused Company through a letter dated 14.12.2006 addressed to Mr. Hari Surya, Manager -MBD, Ashika Capital Limited, Nariman Point, Mumbai, have made very wild false and absolutely baseless allegations against the complainants 1 and 2 only with a malicious intention to cause wrongful loss to the complainants company for the simple reason and fact that it has become a strong competitor in the State of Andhra Pradesh to the business of the Accused Company. The said letter is also forwarded by the 2nd Accused by marking a copy of the same to 1) Managing Director, Ashika Capital Limited, 2) The Secretary, Indian Banks Association, Mumbai, 3) The Chairman, Securities and Exchange Board of India, 5) Finance Minister, Government of India, New Delhi, 6) State Minister of Finance (Banking), Govt. of India, New Delhi, 7) Secretary, Ministry of Finance, New Delhi, 8) Secretary (Banking) Government of India, New Delhi, 9) Joint Secretary Banking, Government of India, Nerw Delhi and 10) Joint Secretary (CM), Department of Economic Affairs, New Delhi. That the said letter is in turn forwarded by Ashika Capital Limited, Mumbai to the complainants to their Registered Office at Vijayawada, Andhra Pradesh on 21.12.2006 and the Complainants were shocked and surprised to read the contents of the same at Vijayawada. The allegations contained in the said letter in so far as it refers to the Complainants are absolutely false and baseless and are written with intent to defame the complainants and malign their reputation. The impugned words Cheat and Dupe the common man via the I.P.O. mode and finally to embezzle crores of rupee and These habitual cheats had been made part of the conspiracy in the proposed initial public offer referring to the complaints directly or per -se defamatory and derogatory and the very letter dated 14.12.2006 on the face of it is calculated to harm the reputation of the complainants without any valid foundation. The said letter is couched in a wild and unrestrained language and written in scurrilous imputing dishonest character to the complaints. 19. The trial court after considering the allegations made in the complaint and the statement recorded on oath came to the conclusion that prima facie a case is made out for summoning the appellant and the case was taken on file. Concluding portion of the order as contained in paragraph no.5 is quoted hereinbelow: - As per the Statement of Complaint, they also got issued legal notice to the accused questioning the letter on 13.12.2006 and it is duly acknowledged by the accused, but they did not respond for the reasons best known. Copy of legal notice and postal acknowledgments were also filed along with the complaint. Evidence spoken by the complainant and the documents enclosed including the documents referred above, prima facie made out the case for the offences U/sec. 499 and 500 IPC. Except the vague averments made in the complaint, probably to attract the offences against A.3 to A.9 who are only directors of the company, no material is places to substantiate their active participation in releasing the letter dt.14.12.2006 by a.2 who is Company Secretary of a.1 company. A.1 is a company represented by; its Managing Director. It is a legal entity. Company is sued arraying as A.1 in the name of its Managing Director and author of the letter is arrayed as A.2. In these circumstances, A.1 company and A.2 Secretary of A.1 company are only necessary and proper parties. No overacts against the other accused (A.3 to A.9) who are only directors of a.1 company. In the circumstances, case is taken on file for the offences U/Sec.499 and 500 IPC against A.1 and A.2 dismissing the complaint U/Sec.203 Cr.P.C. against A.3 to A.9. It appears A.3 to A.9 are arrayed as parties only to cause harassment to them unnecessarily. No material is placed to substantiate their active participation in releasing the letter by A.2 on behalf of A.1 company. No prima facie case against A.3 to A.9 for the offences /sec. 499 and 500 IPC. 20. Dr. Singhvi, for the first time before this Court tried to make out a case that the letter dated 14.12.2006 which is the basis of taking cognizance was allegedly sent from the office of Respondent No.4 Company under the signature of one colleague of the appellant without the knowledge or prior permission of the appellant and the said letter was never signed by the present appellant. In our view, if that is so, it is open to the appellant to take a defense and prove their contention during trial. Needless to say that the trial court shall consider the said contention during trial and record its findings. 21. After giving our thoughtful consideration in the matter we are of the view that the High Court rightly refused to quash the criminal proceedings in exercise of power under Section 482 Cr.P.C. 22.

0[ds]11. Indisputably, judicial process should not be an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly12. It is equally well settled that summoning of an accused in a criminal case is a serious matter and the order taking cognizance by the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of court and to quash the proceeding instituted on complaint but such power could be exercised only in cases where the complaint does not disclose any offence or is vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of power under Section 48213. So far as the complaint alleging offence under Section 499 IPC is concerned, if on consideration of the allegations the complaint is supported by a statement of the complainant on oath and the necessary ingredients of the offence are disclosed, the High Court should not normally interfere with the order taking cognizanceDr. Singhvi, for the first time before this Court tried to make out a case that the letter dated 14.12.2006 which is the basis of taking cognizance was allegedly sent from the office of Respondent No.4 Company under the signature of one colleague of the appellant without the knowledge or prior permission of the appellant and the said letter was never signed by the present appellant. In our view, if that is so, it is open to the appellant to take a defense and prove their contention during trial. Needless to say that the trial court shall consider the said contention during trial and record its findingsAfter giving our thoughtful consideration in the matter we are of the view that the High Court rightly refused to quash the criminal proceedings in exercise of power under Section 482 Cr.P.C

### 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: caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 18. The relevant paragraphs of the complaint filed by the respondent in the present case are reproduced hereinbelow: - That the complainants company chemical Biotech Ltd., with an intention to go in with public issue engaged Ashika Capital Limited, a company based in Mumbai as Lead Managers to handle their public issue and in the course of their due diligence act they have sought for certain clarifications and information in respect of the Complainant Companys credentials so as to go ahead with the publication of the prospectus, as the 1st accused earlier made a representation against the Complainants to SEBI. That the 2nd accused representing the 1st Accused Company through a letter dated 14.12.2006 addressed to Mr. Hari Surya, Manager -MBD, Ashika Capital Limited, Nariman Point, Mumbai, have made very wild false and absolutely baseless allegations against the complainants 1 and 2 only with a malicious intention to cause wrongful loss to the complainants company for the simple reason and fact that it has become a strong competitor in the State of Andhra Pradesh to the business of the Accused Company. The said letter is also forwarded by the 2nd Accused by marking a copy of the same to 1) Managing Director, Ashika Capital Limited, 2) The Secretary, Indian Banks Association, Mumbai, 3) The Chairman, Securities and Exchange Board of India, 5) Finance Minister, Government of India, New Delhi, 6) State Minister of Finance (Banking), Govt. of India, New Delhi, 7) Secretary, Ministry of Finance, New Delhi, 8) Secretary (Banking) Government of India, New Delhi, 9) Joint Secretary Banking, Government of India, Nerw Delhi and 10) Joint Secretary (CM), Department of Economic Affairs, New Delhi. That the said letter is in turn forwarded by Ashika Capital Limited, Mumbai to the complainants to their Registered Office at Vijayawada, Andhra Pradesh on 21.12.2006 and the Complainants were shocked and surprised to read the contents of the same at Vijayawada. The allegations contained in the said letter in so far as it refers to the Complainants are absolutely false and baseless and are written with intent to defame the complainants and malign their reputation. The impugned words Cheat and Dupe the common man via the I.P.O. mode and finally to embezzle crores of rupee and These habitual cheats had been made part of the conspiracy in the proposed initial public offer referring to the complaints directly or per -se defamatory and derogatory and the very letter dated 14.12.2006 on the face of it is calculated to harm the reputation of the complainants without any valid foundation. The said letter is couched in a wild and unrestrained language and written in scurrilous imputing dishonest character to the complaints. 19. The trial court after considering the allegations made in the complaint and the statement recorded on oath came to the conclusion that prima facie a case is made out for summoning the appellant and the case was taken on file. Concluding portion of the order as contained in paragraph no.5 is quoted hereinbelow: - As per the Statement of Complaint, they also got issued legal notice to the accused questioning the letter on 13.12.2006 and it is duly acknowledged by the accused, but they did not respond for the reasons best known. Copy of legal notice and postal acknowledgments were also filed along with the complaint. Evidence spoken by the complainant and the documents enclosed including the documents referred above, prima facie made out the case for the offences U/sec. 499 and 500 IPC. Except the vague averments made in the complaint, probably to attract the offences against A.3 to A.9 who are only directors of the company, no material is places to substantiate their active participation in releasing the letter dt.14.12.2006 by a.2 who is Company Secretary of a.1 company. A.1 is a company represented by; its Managing Director. It is a legal entity. Company is sued arraying as A.1 in the name of its Managing Director and author of the letter is arrayed as A.2. In these circumstances, A.1 company and A.2 Secretary of A.1 company are only necessary and proper parties. No overacts against the other accused (A.3 to A.9) who are only directors of a.1 company. In the circumstances, case is taken on file for the offences U/Sec.499 and 500 IPC against A.1 and A.2 dismissing the complaint U/Sec.203 Cr.P.C. against A.3 to A.9. It appears A.3 to A.9 are arrayed as parties only to cause harassment to them unnecessarily. No material is placed to substantiate their active participation in releasing the letter by A.2 on behalf of A.1 company. No prima facie case against A.3 to A.9 for the offences /sec. 499 and 500 IPC. 20. Dr. Singhvi, for the first time before this Court tried to make out a case that the letter dated 14.12.2006 which is the basis of taking cognizance was allegedly sent from the office of Respondent No.4 Company under the signature of one colleague of the appellant without the knowledge or prior permission of the appellant and the said letter was never signed by the present appellant. In our view, if that is so, it is open to the appellant to take a defense and prove their contention during trial. Needless to say that the trial court shall consider the said contention during trial and record its findings. 21. After giving our thoughtful consideration in the matter we are of the view that the High Court rightly refused to quash the criminal proceedings in exercise of power under Section 482 Cr.P.C. 22. ### Response: 0

K. Iswara Wariyyar Vs. Union of India

Grover, J. 1. This appeal (C.A. 1339/69) from a judgment of the Kerala High Court has been brought by certificate but that has been found to be defective for want of reasons and therefore has to be revoked. However, a petition for special leave was filed and the same was granted. In that appeal (C.A. 1422/71) the main point which arises for consideration relating to the passing of Sathanam property is covered by the judgment of this Court in C.A. 1421/71 (M. K. Balakrishna Menon v. The Assistant Controller of Estate Duty-Cum-Income Tax Officer, Ernakulam) ((1971) 2 SCC 909 ) delivered today. 2. The only other point relates to the right which the Sthanamdar had as an ex officio "Uralan" (trustee) of the Devaswom property to live and make use of the two houses in Koduvayoor in a compound which belonged to the Devaswom section of the Sathanam. The Revenue sought to include the value of that right also in the estate of the deceased Sthanamdar for the purpose of assessment of estate duty. The valuation made by the Controller, Estate Duty, in respect of the aforesaid property came to Rs. 30, 000-. The learned for the Revenue has quite properly conceded that the right which the Sthanamdar had of staying and residing in the two houses in his capacity as an ex officio "Uralan" of the Devaswom could not be included in the valuation of the assets of the Sthanamdar for the purpose of assessment of estate duty.

1[ds]2. The only other point relates to the right which the Sthanamdar had as an ex officio "Uralan" (trustee) of the Devaswom property to live and make use of the two houses in Koduvayoor in a compound which belonged to the Devaswom section of the Sathanam. The Revenue sought to include the value of that right also in the estate of the deceased Sthanamdar for the purpose of assessment of estate duty. The valuation made by the Controller, Estate Duty, in respect of the aforesaid property came to Rs. 30,. The learned for the Revenue has quite properly conceded that the right which the Sthanamdar had of staying and residing in the two houses in his capacity as an ex officio "Uralan" of the Devaswom could not be included in the valuation of the assets of the Sthanamdar for the purpose of assessment of estate duty.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: Grover, J. 1. This appeal (C.A. 1339/69) from a judgment of the Kerala High Court has been brought by certificate but that has been found to be defective for want of reasons and therefore has to be revoked. However, a petition for special leave was filed and the same was granted. In that appeal (C.A. 1422/71) the main point which arises for consideration relating to the passing of Sathanam property is covered by the judgment of this Court in C.A. 1421/71 (M. K. Balakrishna Menon v. The Assistant Controller of Estate Duty-Cum-Income Tax Officer, Ernakulam) ((1971) 2 SCC 909 ) delivered today. 2. The only other point relates to the right which the Sthanamdar had as an ex officio "Uralan" (trustee) of the Devaswom property to live and make use of the two houses in Koduvayoor in a compound which belonged to the Devaswom section of the Sathanam. The Revenue sought to include the value of that right also in the estate of the deceased Sthanamdar for the purpose of assessment of estate duty. The valuation made by the Controller, Estate Duty, in respect of the aforesaid property came to Rs. 30, 000-. The learned for the Revenue has quite properly conceded that the right which the Sthanamdar had of staying and residing in the two houses in his capacity as an ex officio "Uralan" of the Devaswom could not be included in the valuation of the assets of the Sthanamdar for the purpose of assessment of estate duty. ### Response: 1

Commnr. Of Central Excise, Ahmedabad Vs. Solid & Correct Engg. Works

to the earth on the site of the sugar factory could be treated as goods within the meaning of Central Excise Act, 1944. This Court on facts noted that mono vertical crystallisers are fixed on a solid RCC slab having a load bearing capacity of about 30 tonnes per sq. mt. and are assembled at site with bottom plates, tank coils, drive frames, supports, plates, distance places, cutters, cutter supports, tank ribs, distance plate angles, water tanks, coil extension pipes, loose bend angles, coil supports, railing stands, intermediate platforms, drive frame railings and flats, oil trough, worm wheels, shafts, housing, stirrer arms and support channels, pipes, floats, heaters, ladders, platforms, etc. The Court noted that the mono vertical crystallisers have to be assembled, erected and attached to the earth on a foundation at the site of the sugar factory and are incapable of being sold to consumers in the market as it is without anything more. Relying upon the decision of this Court in Quality Steel Tubes case (supra), the erection and installation of mono vertical crystallisers was held not dutiable under the Excise Act. This Court observed that the Tribunal ought to have remembered that mono vertical crystallisers had, apart from assembly, to be erected and attached by foundation to the earth and, therefore, were not, in any event marketable as they were. This decision also, in our opinion, does not lend any support to the case of the assessee in these appeals as we are not dealing with the case of a machine like mono vertical crystallisers which is permanently embedded in the structure of a sugar factory as was the position in the Mittal Engineering Works case (supra). The plants with which we are dealing are entirely over ground and are not assimilated in any structure. They are simply fixed to the foundation with the help of nuts and bolts in order to provide stability from vibrations during the operation. 32. So also in T.T.G. Industries Ltd. V. CCE, Raipur 2004 (167) ELT 501 (SC), the machinery was erected at the site by the assessee on a specially made concrete platform at a level of 25 ft. height. Considering the weight and volume of the machine and the processes involved in its erection and installation, this Court held that the same was immovable property which could not be shifted without dismantling the same. 33. It is noteworthy that in none of the cases relied upon by the assessee referred to above was there any element of installation of the machine for a given period of time as is the position in the instant case. The machines in question were by their very nature intended to be fixed permanently to the structures which were embedded in the earth. The structures were also custom made for the fixing of such machines without which the same could not become functional. The machines thus becoming a part and parcel of the structures in which they were fitted were no longer moveable goods. It was in those peculiar circumstances that the installation and erection of machines at site were held to be by this Court, to be immovable property that ceased to remain moveable or marketable as they were at the time of their purchase. Once such a machine is fixed, embedded or assimilated in a permanent structure, the movable character of the machine becomes extinct. The same cannot thereafter be treated as moveable so as to be dutiable under the Excise Act. But cases in which there is no assimilation of the machine with the structure permanently, would stand on a different footing. In the instant case all that has been said by the assessee is that the machine is fixed by nuts and bolts to a foundation not because the intention was to permanently attach it to the earth but because a foundation was necessary to provide a wobble free operation to the machine. An attachment of this kind without the necessary intent of making the same permanent cannot, in our opinion, constitute permanent fixing, embedding or attachment in the sense that would make the machine a part and parcel of the earth permanently. In that view of the matter we see no difficulty in holding that the plants in question were not immovable property so as to be immune from the levy of excise duty.34. Our answer to question no.1 is accordingly in the affirmative.Re: Question No.235. The Tribunal, as noticed in the earlier part of this order, has taken the view that the respondents-manufacturing units were entitled to the benefit of exemption under Notification No.1/93 as amended from time to time as the use of brand name Solidmec for the plants or the components manufactured by such units did not disentitle the said units from claiming the benefit of the exemption having regard to the fact that the size of the sticker giving the brand name of the manufacturing units was bigger than that of Solidmec, the marketing company. Mr. Bagaria learned senior counsel for the respondent fairly conceded that the reasoning given by the Tribunal based on the size of the sticker was not legally sustainable. He, however, urged that since the manufacturing units had also raised some other defences including one on the ground of limitation, even if the order passed by the Tribunal was set aside, the matter may have to go back to the Tribunal to enable it to examine the said alternative contentions. Mr. Malhotra did not have any serious objection to this course being followed. He urged and, in our opinion rightly so, that since the Tribunals view on the question of exemption was unsustainable the order passed by the Tribunal has to be set aside and the matter remitted back for a fresh disposal qua the said units by reference to the other contentions urged on behalf of the units which the Tribunal has not examined. In that view of the matter our answer to question No.2 is in the negative.

1[ds]2. It is evident from the above that any machinery which is used for mixing is dutiable. That Asphalt Drum/Hot Mix Plant is a machinery meant for mixing etc. was not disputed before us.It is nobodys case that the attachment of the plant to the foundation is meant for permanent beneficial enjoyment of either the foundation or the land in which the same is imbedded.The courts in this country have applied the test whether the annexation is with the object of permanent beneficial enjoyment of the land or building. Machinery for metal-shaping and electro-plating which was attached by bolts to special concrete bases and could not be easily removed, was not treated to be a part of structure or the soil beneath it, as the attachment was not for more beneficial enjoyment of either the soil or concrete. Attachment in order to qualify the expression attached to the earth, must be for the beneficial attachment of that to which it is attached. Doors, windows and shutters of a house are attached to the house, which is imbedded in the earth. They are attached to the house which is imbedded in the earth for the beneficial enjoyment of the house. They have no separate existence from the house. Articles attached that do not form part of the house such as window blinds, and sashes, and ornamental articles such as glasses and tapestry fixed by tenant, are not affixtures.24. Applying the above tests to the case at hand, we have no difficulty in holding that the manufacture of the plants in question do not constitute annexation hence cannot be termed as immovable property for the following reasons:(i) The plants in question are not per se immovable property.(ii) Such plants cannot be said to be "attached to the earth" within the meaning of that expression as defined in Section 3 of the Transfer of Property Act.(iii) The fixing of the plants to a foundation is meant only to give stability to the plant and keep its operation vibration free.(iv) The setting up of the plant itself is not intended to be permanent at a given place. The plant can be moved and is indeed moved after the road construction or repair project for which it is set up is completed.Applying the above test to the case at hand, the plants in question were neither attached to earth within the meaning of Section 3(26) of the General Clauses Act nor was there any intention of permanently fastening the same to anything attached to thedo not see any comparison between the erection and installation of a tube mill which involved a comprehensive process of installing slitting line, tube rolling plant, welding plant, testing equipment and galvanizing etc., referred to in the decision of this Court with the setting up of a hot mix plant as in this case. As observed by this Court in Triveni Engineering & Industries case (supra), the facts and circumstances of each case shall have to be examined for determining not only the factum of fastening/attachment to the earth but also the intention behind thedecision also, in our opinion, does not lend any support to the case of the assessee in these appeals as we are not dealing with the case of a machine like mono vertical crystallisers which is permanently embedded in the structure of a sugar factory as was the position in the Mittal Engineering Works case (supra). The plants with which we are dealing are entirely over ground and are not assimilated in any structure. They are simply fixed to the foundation with the help of nuts and bolts in order to provide stability from vibrations during the operation.It is noteworthy that in none of the cases relied upon by the assessee referred to above was there any element of installation of the machine for a given period of time as is the position in the instant case. The machines in question were by their very nature intended to be fixed permanently to the structures which were embedded in the earth. The structures were also custom made for the fixing of such machines without which the same could not become functional. The machines thus becoming a part and parcel of the structures in which they were fitted were no longer moveable goods. It was in those peculiar circumstances that the installation and erection of machines at site were held to be by this Court, to be immovable property that ceased to remain moveable or marketable as they were at the time of their purchase. Once such a machine is fixed, embedded or assimilated in a permanent structure, the movable character of the machine becomes extinct. The same cannot thereafter be treated as moveable so as to be dutiable under the Excise Act. But cases in which there is no assimilation of the machine with the structure permanently, would stand on a different footing. In the instant case all that has been said by the assessee is that the machine is fixed by nuts and bolts to a foundation not because the intention was to permanently attach it to the earth but because a foundation was necessary to provide a wobble free operation to the machine. An attachment of this kind without the necessary intent of making the same permanent cannot, in our opinion, constitute permanent fixing, embedding or attachment in the sense that would make the machine a part and parcel of the earth permanently. In that view of the matter we see no difficulty in holding that the plants in question were not immovable property so as to be immune from the levy of excise duty.34. Our answer to question no.1 is accordingly in the affirmative.Re: Question No.235. The Tribunal, as noticed in the earlier part of this order, has taken the view that the respondents-manufacturing units were entitled to the benefit of exemption under Notification No.1/93 as amended from time to time as the use of brand name Solidmec for the plants or the components manufactured by such units did not disentitle the said units from claiming the benefit of the exemption having regard to the fact that the size of the sticker giving the brand name of the manufacturing units was bigger than that of Solidmec, the marketing company. Mr.Bagaria learned senior counsel for the respondent fairly conceded that the reasoning given by the Tribunal based on the size of the sticker was not legally sustainable. He, however, urged that since the manufacturing units had also raised some other defences including one on the ground of limitation, even if the order passed by the Tribunal was set aside, the matter may have to go back to the Tribunal to enable it to examine the said alternative contentions. Mr. Malhotra did not have any serious objection to this course being followed.He urged and, in our opinion rightly so, that since the Tribunals view on the question of exemption was unsustainable the order passed by the Tribunal has to be set aside and the matter remitted back for a fresh disposal qua the said units by reference to the other contentions urged on behalf of the units which the Tribunal has not examined. In that view of the matter our answer to question No.2 is in the negative.

### 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: to the earth on the site of the sugar factory could be treated as goods within the meaning of Central Excise Act, 1944. This Court on facts noted that mono vertical crystallisers are fixed on a solid RCC slab having a load bearing capacity of about 30 tonnes per sq. mt. and are assembled at site with bottom plates, tank coils, drive frames, supports, plates, distance places, cutters, cutter supports, tank ribs, distance plate angles, water tanks, coil extension pipes, loose bend angles, coil supports, railing stands, intermediate platforms, drive frame railings and flats, oil trough, worm wheels, shafts, housing, stirrer arms and support channels, pipes, floats, heaters, ladders, platforms, etc. The Court noted that the mono vertical crystallisers have to be assembled, erected and attached to the earth on a foundation at the site of the sugar factory and are incapable of being sold to consumers in the market as it is without anything more. Relying upon the decision of this Court in Quality Steel Tubes case (supra), the erection and installation of mono vertical crystallisers was held not dutiable under the Excise Act. This Court observed that the Tribunal ought to have remembered that mono vertical crystallisers had, apart from assembly, to be erected and attached by foundation to the earth and, therefore, were not, in any event marketable as they were. This decision also, in our opinion, does not lend any support to the case of the assessee in these appeals as we are not dealing with the case of a machine like mono vertical crystallisers which is permanently embedded in the structure of a sugar factory as was the position in the Mittal Engineering Works case (supra). The plants with which we are dealing are entirely over ground and are not assimilated in any structure. They are simply fixed to the foundation with the help of nuts and bolts in order to provide stability from vibrations during the operation. 32. So also in T.T.G. Industries Ltd. V. CCE, Raipur 2004 (167) ELT 501 (SC), the machinery was erected at the site by the assessee on a specially made concrete platform at a level of 25 ft. height. Considering the weight and volume of the machine and the processes involved in its erection and installation, this Court held that the same was immovable property which could not be shifted without dismantling the same. 33. It is noteworthy that in none of the cases relied upon by the assessee referred to above was there any element of installation of the machine for a given period of time as is the position in the instant case. The machines in question were by their very nature intended to be fixed permanently to the structures which were embedded in the earth. The structures were also custom made for the fixing of such machines without which the same could not become functional. The machines thus becoming a part and parcel of the structures in which they were fitted were no longer moveable goods. It was in those peculiar circumstances that the installation and erection of machines at site were held to be by this Court, to be immovable property that ceased to remain moveable or marketable as they were at the time of their purchase. Once such a machine is fixed, embedded or assimilated in a permanent structure, the movable character of the machine becomes extinct. The same cannot thereafter be treated as moveable so as to be dutiable under the Excise Act. But cases in which there is no assimilation of the machine with the structure permanently, would stand on a different footing. In the instant case all that has been said by the assessee is that the machine is fixed by nuts and bolts to a foundation not because the intention was to permanently attach it to the earth but because a foundation was necessary to provide a wobble free operation to the machine. An attachment of this kind without the necessary intent of making the same permanent cannot, in our opinion, constitute permanent fixing, embedding or attachment in the sense that would make the machine a part and parcel of the earth permanently. In that view of the matter we see no difficulty in holding that the plants in question were not immovable property so as to be immune from the levy of excise duty.34. Our answer to question no.1 is accordingly in the affirmative.Re: Question No.235. The Tribunal, as noticed in the earlier part of this order, has taken the view that the respondents-manufacturing units were entitled to the benefit of exemption under Notification No.1/93 as amended from time to time as the use of brand name Solidmec for the plants or the components manufactured by such units did not disentitle the said units from claiming the benefit of the exemption having regard to the fact that the size of the sticker giving the brand name of the manufacturing units was bigger than that of Solidmec, the marketing company. Mr. Bagaria learned senior counsel for the respondent fairly conceded that the reasoning given by the Tribunal based on the size of the sticker was not legally sustainable. He, however, urged that since the manufacturing units had also raised some other defences including one on the ground of limitation, even if the order passed by the Tribunal was set aside, the matter may have to go back to the Tribunal to enable it to examine the said alternative contentions. Mr. Malhotra did not have any serious objection to this course being followed. He urged and, in our opinion rightly so, that since the Tribunals view on the question of exemption was unsustainable the order passed by the Tribunal has to be set aside and the matter remitted back for a fresh disposal qua the said units by reference to the other contentions urged on behalf of the units which the Tribunal has not examined. In that view of the matter our answer to question No.2 is in the negative. ### Response: 1

Maharaji Educational Trust Vs. Sgs Constructions & Dev.P.Ltd

of the Act and the words “to make investigation, examination or survey of any property” in section 15(1)(m) will take their meaning and colour from the other phrases employed in section 15(1). As held by this Court in Rohit Pulp & Paper Mills Ltd. v. Collector of Central Excise, Baroda [1990 (3) SCC 447 ] : “12. The principle of statutory interpretation by which a generic word receives a limited interpretation by reason of its context is well established. In the context with which we are concerned, we can legitimately draw upon the “noscitur a sociis” principle. This expression simply means that “the meaning of a word is to be judged by the company it keeps.” Gajendragadkar, J. explained the scope of the rule in State of Bombay v. Hospital Mazdoor Sabha [1960 (2) SCR 866 ] in the following words : (SCR pp. 873-74)“This rule, according to Maxwell, means that, when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. The same rule is thus interpreted in “Words and Phrases” (Vol. XIV, p. 207). “Associated words take their meaning from one another under the doctrine of noscitur a sociis, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim ejusdem generis” In fact the latter maxim “is only an illustration or specific application of the broader maxim noscitur a sociis”. The argument is that certain essential features of attributes are invariably associated with the words “business and trade” as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition though their normal import may be much wider. We are not impressed by this argument. It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful, but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service.”This principle has been applied in a number of contexts in judicial decisions where the court is clear in its mind that the larger meaning of the word in question could not have been intended in the context in which it has been used.” 28. The Trust has submitted an application for limited purpose of approval of site plan of housing society to Avas Evam Vikas Parishad which was not pressed by it. The said application was not for the purpose of demarcation and would not enure to the benefit of the Builder. The objective of builder in writ petition was to get land demarcated as unencumbered. 29. For the purpose of demarcation the remedy is available before the concerned authority under section 24 of the Uttar Pradesh Revenue Code, 2006. Section 24 of the Code is extracted below : “24. Disputes regarding boundaries.-(1) The Sub-Divisional Officer may, on his own motion or on an application made in this behalf by a person interested, decide, by summary inquiry, any dispute regarding boundaries on the basis of existing survey map or, where the same is not possible, in accordance with the provisions of the Uttar Pradesh Consolidation of Holdings Act, 1953, on the basis of such map.(2) If in the course of an inquiry into a dispute under sub-section (1), the Sub-Divisional Officer is unable to satisfy himself as to which party is in possession or if it is shown that possession has been obtained by wrongful dispossession of the lawful occupant, within a period of three months preceding the commencement of the inquiry, the Sub-Divisional Officer shall-(a) in the first case, ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession.(b) in the second case, put the person so dispossessed in possession, and for that purpose use or cause to be used such force as may be necessary an shall then fix the boundary accordingly.(3) Every proceeding under this section shall, as far as possible, be concluded by the Sub-Divisional Officer within six months from the date of the application.(4) Any person aggrieved by the order of the Sub-Divisional Officer may prefer an appeal before the Commissioner within 30 days of the date of such order. The order of the Commissioner shall be final.” The corresponding provision in the U.P. Land Revenue Act, 1901 was section 41. The recourse to provision of the Adhiniyam of 1965 in such cases was not available. 30. It was also submitted on behalf of the appellants that the agreement which was entered into between the Trust and the Builder was required to be registered under the provisions of the Registration Act as per Section 17 read with section 49 of the Registration Act as applicable in U.P. and section 3 read with section 54 of the TP Act. We decline to entertain and examine the submissions as it would not be proper to do so in the present proceedings and as effect of non-registration and validity of registration made subsequently has been questioned in Writ Petition [C] No.38596/2013 pending consideration before the High Court of Allahabad. Thus, it is for the High Court to adjudicate upon the aforesaid questions.

1[ds]9. After hearing learned counsel for the parties at length, we are of the considered opinion that it was a misadventure on the part of the Builder to file a writ petition for the kind of reliefs prayed for and that too could not have been entertained by the Bench at21 acres of land, out of the total of 63.45 acres which was mortgaged to HUDCO as item No.6, had been exchanged by the Trust with Avas Evam Vikas Parishad. Thus, the exchange was with the property which was under mortgage with HUDCO and the exchange deed had been deposited by the Trust with HUDCO on 11.7.2011. Before the Debt Recovery Officer, New Delhi, prayer has been made by the Builder to sell property Nos.1 to 5 and not to sell property No.6 with respect to which he has entered into an agreement with the Trust.Though, there is serious dispute between the parties to the lis whether the said land is unencumbered, finding has been given by the High Court that 21 acres of land is unencumbered. The High Court could not have treated 21 acres of land as unencumbered one out of 63.45 acres. It was not open to the High Court to enter into the aforesaid arena, which of the property is encumbered and to be sold in realization of debt is the outlook of the Recovery Officer, DRT, Delhi, where the recovery proceedings are pending, including the objections preferred by the Builder.13. In our opinion, it was not open to the Builder to file a writ application for the aforesaid reliefs. Though the second relief had been abandoned at the time of final arguments but the first relief could not have been granted without going into the said question. The High Court in writ jurisdiction has made a declaration that the property 21 acres of land is unencumbered. The High Court could not have adjudicated on the property rights under the guise of directing Avas Evam Vikas Parishad to demarcate the land and give finding that it was unencumbered land. The High Court has erred in law in giving a finding on merits on effect of exchange and that section 70 of TP Act is not applicable.We could have decided the aforesaid question finally. However, we refrain from doing so as, in our opinion, it was not open to the High Court to take up these questions under writ jurisdiction and to declare the properties as unencumbered. It was for the parties to agitate the questions before the DRT where the recovery proceedings are pending at the instance of HUDCO with whom the property had been mortgaged by the Trust.15. Prima facie, we are of the view that on the strength of the agreement to sell, particularly when possession had not been handed over to the Builder, it was not open to him to file a writ application for demarcation of the property as unencumbered property or otherwise. What was sought to be achieved by filing a writ petition, was to get rid of the proceedings pending before the Recovery Officer, DRT at Delhi, and to save land at serial No.6 from being sold which includes 21 acres of land, and an attempt was made to get the 21 acres of land declared as unencumbered one. As a matter of fact, such disputed questions with respect to the properties inter se between the Builder and the Trust as to demarcation, writ petition could not be said to be appropriate remedy, particularly when the order passed by the Recovery Officer, DRT, was not in question and the order passed by the DRT, Delhi, could not have been questioned before the Lucknow Bench of High Court ofthe 21 acres of land had been given to the Trust, Avas Evam Vikas Parishad had nothing to do with that land. This, it was a wholly misconceived venture on the part of the Builder to ask Avas Evam Vikas Parishad to demarcate the land given to the Trust, particularly when the Parishad was not having any housing scheme with respect to the land which had been given to the Trust. Thus, filing of the writ petition at Lucknow Bench was totally uncalled for and the propriety required that it should not have been entertained at Lucknow Bench. Merely because the transfer petition filed in this court for transfer of case was withdrawn and the direction was issued by the Chief Justice of High Court to decide at an early date, would not confer jurisdiction on Bench at Lucknow, all the questions had been left open to be agitated at the time of hearing. In our opinion, Bench at Lucknow ought not to have entertained the petition as it lacked the jurisdiction.Apart from that, we find that there is no merit in the submission that the Housing Board could have demarcated the land in exercise of powers within the purview of section 15 of the Act of 1965. The objective of the Act of 1965 is to tackle the housing and development problems of urban areas.It is apparent from the scheme of the Adhiniyam of 1965 that the provisions contained in section 15(1)(m) are not to be read in isolation but with reference to the objectives of the Adhiniyam of 1965 and its functions relating to housing and development issues.It was also submitted on behalf of the appellants that the agreement which was entered into between the Trust and the Builder was required to be registered under the provisions of the Registration Act as per Section 17 read with section 49 of the Registration Act as applicable in U.P. and section 3 read with section 54 of the TP Act. We decline to entertain and examine the submissions as it would not be proper to do so in the present proceedings and as effect ofand validity of registration made subsequently has been questioned in Writ Petition [C] No.38596/2013 pending consideration before the High Court of Allahabad. Thus, it is for the High Court to adjudicate upon the aforesaid questions.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: of the Act and the words “to make investigation, examination or survey of any property” in section 15(1)(m) will take their meaning and colour from the other phrases employed in section 15(1). As held by this Court in Rohit Pulp & Paper Mills Ltd. v. Collector of Central Excise, Baroda [1990 (3) SCC 447 ] : “12. The principle of statutory interpretation by which a generic word receives a limited interpretation by reason of its context is well established. In the context with which we are concerned, we can legitimately draw upon the “noscitur a sociis” principle. This expression simply means that “the meaning of a word is to be judged by the company it keeps.” Gajendragadkar, J. explained the scope of the rule in State of Bombay v. Hospital Mazdoor Sabha [1960 (2) SCR 866 ] in the following words : (SCR pp. 873-74)“This rule, according to Maxwell, means that, when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. The same rule is thus interpreted in “Words and Phrases” (Vol. XIV, p. 207). “Associated words take their meaning from one another under the doctrine of noscitur a sociis, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim ejusdem generis” In fact the latter maxim “is only an illustration or specific application of the broader maxim noscitur a sociis”. The argument is that certain essential features of attributes are invariably associated with the words “business and trade” as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition though their normal import may be much wider. We are not impressed by this argument. It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful, but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service.”This principle has been applied in a number of contexts in judicial decisions where the court is clear in its mind that the larger meaning of the word in question could not have been intended in the context in which it has been used.” 28. The Trust has submitted an application for limited purpose of approval of site plan of housing society to Avas Evam Vikas Parishad which was not pressed by it. The said application was not for the purpose of demarcation and would not enure to the benefit of the Builder. The objective of builder in writ petition was to get land demarcated as unencumbered. 29. For the purpose of demarcation the remedy is available before the concerned authority under section 24 of the Uttar Pradesh Revenue Code, 2006. Section 24 of the Code is extracted below : “24. Disputes regarding boundaries.-(1) The Sub-Divisional Officer may, on his own motion or on an application made in this behalf by a person interested, decide, by summary inquiry, any dispute regarding boundaries on the basis of existing survey map or, where the same is not possible, in accordance with the provisions of the Uttar Pradesh Consolidation of Holdings Act, 1953, on the basis of such map.(2) If in the course of an inquiry into a dispute under sub-section (1), the Sub-Divisional Officer is unable to satisfy himself as to which party is in possession or if it is shown that possession has been obtained by wrongful dispossession of the lawful occupant, within a period of three months preceding the commencement of the inquiry, the Sub-Divisional Officer shall-(a) in the first case, ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession.(b) in the second case, put the person so dispossessed in possession, and for that purpose use or cause to be used such force as may be necessary an shall then fix the boundary accordingly.(3) Every proceeding under this section shall, as far as possible, be concluded by the Sub-Divisional Officer within six months from the date of the application.(4) Any person aggrieved by the order of the Sub-Divisional Officer may prefer an appeal before the Commissioner within 30 days of the date of such order. The order of the Commissioner shall be final.” The corresponding provision in the U.P. Land Revenue Act, 1901 was section 41. The recourse to provision of the Adhiniyam of 1965 in such cases was not available. 30. It was also submitted on behalf of the appellants that the agreement which was entered into between the Trust and the Builder was required to be registered under the provisions of the Registration Act as per Section 17 read with section 49 of the Registration Act as applicable in U.P. and section 3 read with section 54 of the TP Act. We decline to entertain and examine the submissions as it would not be proper to do so in the present proceedings and as effect of non-registration and validity of registration made subsequently has been questioned in Writ Petition [C] No.38596/2013 pending consideration before the High Court of Allahabad. Thus, it is for the High Court to adjudicate upon the aforesaid questions. ### Response: 1

FIRM RAJASTHAN UDYOG & ORS. Vs. HINDUSTAN ENGINEERING AND INDUSTRIES LTD

the land at the price so declared by the Arbitrator in its Award, could not be directed. 39. Even otherwise, there cannot be any equity in favour of the respondent, as neither any amount was paid nor deposited by the respondent. No earnest money was also paid by the respondent. It was only the stamp paper worth Rs.1,21,870/-, which was deposited by the respondent along with a deposit of Rs.5,500/- in Court at the time of filing of the application on 16.05.1994 for execution of the Award. 40. It is also noteworthy that neither the Agreement dated 01.02.1980 nor the Award dated 09.06.1985 had been registered under the Registration Act, 1908. This Court in the case of Ramesh Kumar vs. Furu Ram (2011) 8 SCC 613 had considered the effect of non-registration of an Arbitration Award relating to right, title and interest in an immovable property and held as under: 46. Thus the awards are clearly documents which purport or operate to create and declare a right, title or interest in an immovable property of the value of more than Rs 100 which was not the subject of the dispute or reference to arbitration. Therefore, the awards were compulsorily registrable. If they were not registered, they could not be acted upon under Section 49 of the Registration Act, 1908 nor could a decree be passed in terms of such unregistered awards. 41. Although, in the present case, the Award did not relate to right, title or interest in an immovable property and was only for determination of the price of land, yet if the execution court was to treat the same for execution of sale deed of land (immovable property), it ought to have considered the impact of non-registration of such Award, which has not been done in the present case. 42. In support of his contention that the powers of the executing Court are wide enough, learned Senior Counsel for the respondent has relied on the decision of this Court in the case of Bhavan Vaja vs Solanki Hanuji Khodaji Mansang (1973) 2 SCC 40 , wherein it has been held that: 20…………For Construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it……… The question in the present case is different, which is as to whether the execution of an award could have been directed in the absence of there being any direction in the Award for execution of the sale deed, which direction could have been given only in the case of execution of the Agreement dated 01.02.1980. The question under consideration in the aforesaid case was that of a decree which was under execution, whereas there was no such decree passed by any Court which was to be executed in the present case. The facts of the present case are thus distinguishable from those in the aforesaid case. 43. Learned Senior Counsel for the respondent has also relied on the decisions of this Court rendered in Meenakshi Saxena vs ECGC Limited (2018) 7 SCC 479 as well as Topanmal Chhotamal vs Kundomal Gangaram AIR 1960 SC 388 , which in our opinion are both distinguishable on facts. In the case of Meenakshi Saxena (supra), there was a clear verdict of the Consumer Court, which was to be executed by the Court. In paragraph 17 of the said judgment, this Court held that the whole purpose of the execution proceedings is to enforce the verdict of the Court. Executing court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. In the case of Topanmal (supra), the decree under consideration was against the partnership firm and was to be executed against the personal assets of the partners. In paragraph 4 of the said judgment, this Court held that at the worst the decree can be said to be ambiguous. In such a case it is the duty of the executing Court to construe the decree. For the purpose of interpreting a decree, when its terms are ambiguous, the Court would certainly be entitled to look into the pleadings and the judgment: see Manakchand v. Manoharlal, 71 Ind. App. 65: (AIR 1944 P.C. 46). In the plaint in the Agra suit, Suit No. 205 of 1949, not only relief was asked for against the firm, but also a personal decree was claimed against defendants 2 to 6. In the present case, the Court is concerned about execution of the Award and not the Agreement. In the Award passed by the Arbitrator, the price of land was fixed, which was to be executed in terms of the Agreement dated 01.02.1980, and that too at the option of the respondent. Thus, there could be no direction to execute the sale deed at the price fixed in the Award, that too in a petition for execution of the Award, without there being any prayer for execution of the Agreement dated 01.02.1980. 44. Going behind the decree for doing complete justice would not mean that the entire nature of the case could be changed, and what was not awarded in favour of the respondent, could be granted by the executing court. It was only after the respondent had exercised its right to purchase the land at the price fixed by the Arbitrator that a right to enforce the Agreement could have arisen in favour of the respondent. The Award of the Arbitrator, in the present case, in itself was not a conclusive contract between the parties, which could be executed.

1[ds]21. The anchor sheet of the case of the respondent is the Agreement dated 01.02.1980 between the parties (i.e. appellant and respondent) as well as the Arbitration award dated 09.06.198527. In our considered opinion, in the facts of the present case, the answer to the same would be an emphatic no28. There cannot be any doubt that in terms of the Agreement dated 01.02.1980, the Arbitrator was authorized to only fix the price of the land which was to be sold by the appellant to the respondent as per the aforesaid agreement. In the said Agreement dated 01.02.1980, there was an option given to the respondent to either accept the price fixed by the Arbitrator and go ahead with the sale deed, or to refuse to get the sale deed executed at the price fixed by the Arbitrator. Thus, there was no certainty that the sale was to be executed at the price fixed by the Arbitrator. As such, it was the Agreement dated 01.02.1980 alone which could have been executed at the price fixed by the Arbitrator, in case the respondent agreed to the same29. After the passing of the Award by the Arbitrator dated 09.06.1985, which was later confirmed and made Rule of the Court by the Rajasthan High Court on 01.12.1993 and the Special Leave Petition filed by the appellant against the said order was dismissed on 29.03.1994 and the Award had attained finality, the respondent filed a Civil Suit No.60 of 1996 for specific performance of the Agreement dated 01.02.1980. It was this suit for specific performance of agreement under which a direction could have been issued for execution of the sale deed in terms of the Agreement dated 01.02.1980. However, the same was unconditionally withdrawn on 13.02.2006, on an application filed by the respondent on 06.02.2006. With the withdrawal of such suit for specific performance, the matter with regard to the execution of the sale deed in terms of the Agreement dated 01.02.1980 came to an end. The effect of withdrawing Civil Suit No. 60 of 1996 would be that the plaintiff therein (respondent herein) had abandoned its claim of execution of the sale deed in terms of the Agreement dated 01.02.1980, which would be clear from the provisions of Rule 1(4) of Order XXIII CPC30. From the facts of this case, it is clear that the Award passed by the Arbitrator could not be independently executed, as the same was only for fixation of price of land and not for enforcement of the Agreement. The Award was only declaratory of the price of the land. As per the agreement, if the respondent agreed to the price so fixed, it could then get the sale deed executed in terms of the Agreement dated 01.02.1980 as it had the option of either accepting the price and getting the sale deed executed, or not accepting the price and thus not getting the sale deed executed. This would clearly mean that the Award was merely for the declaration of the price of the land, which would be subject to the agreement and it was not necessary for the respondent to get the sale deed executed at the price so determined by the Arbitrator. What was thus executable was the agreement, and not the Award. The relief granted by the Court below for execution of the sale deed in terms of the Award, is thus outside the realm of law, as the Award did not contemplate the transfer of land in favour of the respondent, but only determined the price of land31. It is also noteworthy that the application for execution of Award filed on 16.05.1994 before the Additional District Judge-I, Bharatpur did not provide for any provision of law under which the same was filed. Though, in paragraph 2 of the said application, it was mentioned that the Award of the Arbitrator contained a direction for execution of the Award, but in fact there was no such direction issued in the Award, in which the Arbitrator had only fixed the price of the land and nothing more32. In our view, once the respondent had given up its claim of execution of sale deed in terms of the Agreement dated 01.02.1980 by withdrawing the suit for specific performance of the agreement (Civil Suit No. 60 of 1996), which was permitted to be withdrawn unconditionally on 13.02.2006, the appellant had abandoned its claim for execution of the sale deed. Thus, in our opinion, the respondent could not be permitted to achieve the goal of execution of sale deed by indirectly claiming for execution of Award, when the direct claim for execution of sale deed of the Agreement dated 01.02.1980 had been abandoned by the respondent33. At the cost of repetition, it may be mentioned that the specific performance could only be of the Agreement dated 01.02.1980 and not of the Award dated 09.06.1985. Even the operative portion of the Award also does not give any direction for execution of the sale deed. It was after the passing of the Award that the respondent could have fallen back on the agreement for execution of the sale deed, which respondent did by filing the suit for specific performance, but abandoned such claim by withdrawing the suit unconditionally34. The submission of the learned Senior Counsel for the respondent that substantial justice has been done by the Court by directing execution of the sale deed, is not worthy of acceptance. In a Civil Case, the Courts have to follow the law in letter and spirit, which has not been done in the present case, as in law the sale deed could have been directed to be executed in execution of the Agreement dated 01.02.1980 and not the Award, which was only a declaration, fixing the price of landIt is thus clear that execution of an award can be only to the extent what has been awarded/decreed and not beyond the same. In the present case, the Arbitrator in its Award had only declared the price of land and nothing more. Thus, the question of execution of a sale deed of the land at the price so declared by the Arbitrator in its Award, could not be directed39. Even otherwise, there cannot be any equity in favour of the respondent, as neither any amount was paid nor deposited by the respondent. No earnest money was also paid by the respondent. It was only the stamp paper worth Rs.1,21,870/-, which was deposited by the respondent along with a deposit of Rs.5,500/- in Court at the time of filing of the application on 16.05.1994 for execution of the Award40. It is also noteworthy that neither the Agreement dated 01.02.1980 nor the Award dated 09.06.1985 had been registered under the Registration Act, 190841. Although, in the present case, the Award did not relate to right, title or interest in an immovable property and was only for determination of the price of land, yet if the execution court was to treat the same for execution of sale deed of land (immovable property), it ought to have considered the impact of non-registration of such Award, which has not been done in the present caseThe question in the present case is different, which is as to whether the execution of an award could have been directed in the absence of there being any direction in the Award for execution of the sale deed, which direction could have been given only in the case of execution of the Agreement dated 01.02.1980. The question under consideration in the aforesaid case was that of a decree which was under execution, whereas there was no such decree passed by any Court which was to be executed in the present case. The facts of the present case are thus distinguishable from those in the aforesaid case43. Learned Senior Counsel for the respondent has also relied on the decisions of this Court rendered in Meenakshi Saxena vs ECGC Limited (2018) 7 SCC 479 as well as Topanmal Chhotamal vs Kundomal Gangaram AIR 1960 SC 388 ,which in our opinion are both distinguishable on factsIn the present case, the Court is concerned about execution of the Award and not the Agreement. In the Award passed by the Arbitrator, the price of land was fixed, which was to be executed in terms of the Agreement dated 01.02.1980, and that too at the option of the respondent. Thus, there could be no direction to execute the sale deed at the price fixed in the Award, that too in a petition for execution of the Award, without there being any prayer for execution of the Agreement dated 01.02.198044. Going behind the decree for doing complete justice would not mean that the entire nature of the case could be changed, and what was not awarded in favour of the respondent, could be granted by the executing court. It was only after the respondent had exercised its right to purchase the land at the price fixed by the Arbitrator that a right to enforce the Agreement could have arisen in favour of the respondent. The Award of the Arbitrator, in the present case, in itself was not a conclusive contract between the parties, which could be executed.

### Instruction: Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)? ### Input: the land at the price so declared by the Arbitrator in its Award, could not be directed. 39. Even otherwise, there cannot be any equity in favour of the respondent, as neither any amount was paid nor deposited by the respondent. No earnest money was also paid by the respondent. It was only the stamp paper worth Rs.1,21,870/-, which was deposited by the respondent along with a deposit of Rs.5,500/- in Court at the time of filing of the application on 16.05.1994 for execution of the Award. 40. It is also noteworthy that neither the Agreement dated 01.02.1980 nor the Award dated 09.06.1985 had been registered under the Registration Act, 1908. This Court in the case of Ramesh Kumar vs. Furu Ram (2011) 8 SCC 613 had considered the effect of non-registration of an Arbitration Award relating to right, title and interest in an immovable property and held as under: 46. Thus the awards are clearly documents which purport or operate to create and declare a right, title or interest in an immovable property of the value of more than Rs 100 which was not the subject of the dispute or reference to arbitration. Therefore, the awards were compulsorily registrable. If they were not registered, they could not be acted upon under Section 49 of the Registration Act, 1908 nor could a decree be passed in terms of such unregistered awards. 41. Although, in the present case, the Award did not relate to right, title or interest in an immovable property and was only for determination of the price of land, yet if the execution court was to treat the same for execution of sale deed of land (immovable property), it ought to have considered the impact of non-registration of such Award, which has not been done in the present case. 42. In support of his contention that the powers of the executing Court are wide enough, learned Senior Counsel for the respondent has relied on the decision of this Court in the case of Bhavan Vaja vs Solanki Hanuji Khodaji Mansang (1973) 2 SCC 40 , wherein it has been held that: 20…………For Construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it……… The question in the present case is different, which is as to whether the execution of an award could have been directed in the absence of there being any direction in the Award for execution of the sale deed, which direction could have been given only in the case of execution of the Agreement dated 01.02.1980. The question under consideration in the aforesaid case was that of a decree which was under execution, whereas there was no such decree passed by any Court which was to be executed in the present case. The facts of the present case are thus distinguishable from those in the aforesaid case. 43. Learned Senior Counsel for the respondent has also relied on the decisions of this Court rendered in Meenakshi Saxena vs ECGC Limited (2018) 7 SCC 479 as well as Topanmal Chhotamal vs Kundomal Gangaram AIR 1960 SC 388 , which in our opinion are both distinguishable on facts. In the case of Meenakshi Saxena (supra), there was a clear verdict of the Consumer Court, which was to be executed by the Court. In paragraph 17 of the said judgment, this Court held that the whole purpose of the execution proceedings is to enforce the verdict of the Court. Executing court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. In the case of Topanmal (supra), the decree under consideration was against the partnership firm and was to be executed against the personal assets of the partners. In paragraph 4 of the said judgment, this Court held that at the worst the decree can be said to be ambiguous. In such a case it is the duty of the executing Court to construe the decree. For the purpose of interpreting a decree, when its terms are ambiguous, the Court would certainly be entitled to look into the pleadings and the judgment: see Manakchand v. Manoharlal, 71 Ind. App. 65: (AIR 1944 P.C. 46). In the plaint in the Agra suit, Suit No. 205 of 1949, not only relief was asked for against the firm, but also a personal decree was claimed against defendants 2 to 6. In the present case, the Court is concerned about execution of the Award and not the Agreement. In the Award passed by the Arbitrator, the price of land was fixed, which was to be executed in terms of the Agreement dated 01.02.1980, and that too at the option of the respondent. Thus, there could be no direction to execute the sale deed at the price fixed in the Award, that too in a petition for execution of the Award, without there being any prayer for execution of the Agreement dated 01.02.1980. 44. Going behind the decree for doing complete justice would not mean that the entire nature of the case could be changed, and what was not awarded in favour of the respondent, could be granted by the executing court. It was only after the respondent had exercised its right to purchase the land at the price fixed by the Arbitrator that a right to enforce the Agreement could have arisen in favour of the respondent. The Award of the Arbitrator, in the present case, in itself was not a conclusive contract between the parties, which could be executed. ### Response: 1

Mangru Mahto & Ors Vs. Shri Thakur Taraknathji Tarakeshwar Math & Ors

Kishore, 21 Cal WN 88 at p. 92: (AIR 1917 Cal 222 at p. 225) Mookerjee J. held that a mortgagor in possession may grant a lease conformable to usage in the ordinary course of management, for instance he may create a tenancy from year to year in the case of agricultural lands or from month to month in the case of houses. But he is not competent to grant a lease on unusual terms or to alter the character of the land or to authorise its use in a manner or for a purpose different from the mode in which he himself had used before he granted the mortgage. This view of the law as it stood before the enactment of S. 65-A was approved in Raja Kamakshya Narayan Singh v Chohan Ram 1953 SCR 108 at p. 118: (AIR 1952 SC 401 at pp. 404-405) and this Court held that the question whether the mortgagor in possession has power to lease the mortgaged property must be determined with reference to the authority of the mortgagor as the bailiff or agent for the mortgagee to deal with the property in the usual course of management. In Gobinda Chandra Saha v. Sasadhar Mandal, AIR 1947 Cal 73 at p. 75 B. K. Mukherjea, J., pointed out that normally a permanent lease with rent fixed in perpetuity is not sanctioned by the ordinary course of management. He observed:-"The mortgagor might be within his rights to create a lease which is from month to month or from year to year as the case might be but he cannot grant a permanent lease with a rent fixed in perpetuity. This amounts to an alienation of his right to increase the rent in future and is as good as the sale of the property itself. This is not sanctioned by the ordinary course of management as has been mentioned above nor is it warranted by the previous user of this particular property." 9. In the present case, defendants 2-7 were lessees under five leases granted by the mortgagor in June 1934. All these defendants claimed to be permanent lessees with rent fixed in perpetuity. Four of the leases were granted by registered pattas. In respect of four leases the mortgagor received nazrana or premium. All the leases were created after the property was advertised for sale in execution of the mortgage decree. The High Court has found that the leases were created by the mortgagor in bad faith with a view to cause loss to the mortgagee-decree-holder. The leases were not in the ordinary course of management by the mortgagor as the agent or bailiff of the mortgagee and were not binding on the mortgagee. 10. On behalf of the appellants it was argued that the leases might not be binding on Kashinath while he was the mortgagee, but after he purchased the property he ceased to be a mortgagee and he could not thereafter assert that the leases were not binding on him. This novel argument is ingenious but unsound. An auction-purchaser at a sale held in execution of a mortgage decree buys not only the interest of the mortgagor but also the interest of the mortgagee. If the lease does not bind the mortgagee, it does not equally bind the auction-purchaser. It is interesting to notice that in Rust v. Goodale 1957-1 Ch 33 at pp. 42, 43 Harman J., held that the right of the mortgagee to treat a tenant of the mortgagor as a trespasser was a right which passed on sale or foreclosure to his assignee. 11. A lease granted by the mortgagor, out of the ordinary course of management, though not binding on the mortgagee, is binding as between the mortgagor and the lessee. Such a lesser acquires an interest in the right of redemption and is entitled to redeem. If such a lease is created before the institution of a suit relating to the mortgage the lessee must be joined as a party to the suit under O. 34, R. 1, C. P. C., otherwise he will not be bound by the decree passed in the suit and will continue to retain his right of redemption. But in view of S. 52 of the Transfer of Property Act, if the mortgagor grants such a lease during the pendency of a suit for sale by the mortgagee, the lessee is bound by the result of the litigation. If the property is sold in execution of the decree passed in the suit, the lessee cannot resist a claim for possession by the auction-purchaser. The lessee could apply for being joined as a party to the suit and ask for an opportunity to redeem the property. But if he allows the property to be sold in execution of the decree, he loses his right of redemption. In the present case, the lessees allowed the suit lands to be sold in execution of the mortgage decree and they have now lost the right of redemption. They cannot resist the claim of the auction-purchaser for recovery of possession of the lands. 12. If a mortgagor in possession of the mortgaged property executes a lease of the property in the ordinary course of management as the agent or bailiff of the mortgagee during the pendency of a suit by the mortgagee to enforce the mortgage, a question may arise whether such a lease is in the eye of the law a lease granted by the mortgagee through his agent and therefore binding on him. But in the present case, that question does not arise as the leases were not granted by the mortgagor in the ordinary course of management as the bailiff or agent of the mortgagee. 13. The High Court held that the leases were steam transactions. We do not think it necessary to decide this question. Even assuming that the leases were not sham transactions they were not binding on Kashinath and the deity. The High Court rightly decreed the suit

0[ds]We think that this contention should be rejected. In view of the orders passed against Kashinath in the claim proceedings and his failure to institute suits under O. 21, R. 63, C. P. C., Kashinath was precluded from claiming that he had the right to attach the suit lands execution of his money decree, but he was not precluded from claiming that he had the right to sell the lands in execution of his mortgage decree. Rules 58 to 62 of Order 21, C. P. C., provide for a summary investigation of the claims and objections to the attachment of any property attached in execution of a decreeA claim proceeding under R. 58 is not a suit or a proceeding analogous to a suit. An order in the claim proceeding does not operate as res judicata. It is because of Rule 63 that the order becomes conclusive. The effect of R 63 is that unless a suit is brought as provided by the rule, the party against whom the order in the claim proceeding is made or any person claiming through him cannot re-agitate in any other suit or proceeding against the other party or any person claiming through him the question whether the property was or was not liable to attachment and sale in execution of the decree out of which the claim proceeding arose, but the bar of Rule 63 extends no furtherBut we cannot agree with those observations. The order in the summary proceeding under R. 58 does not operate as res judicata. The reason why the garnishee could not re-agitate his objections was that in view of R. 63 he was precluded from asserting that the decree-holder was entitled to attach and sell the particular debt on the footing that it was due to the judgment-debtorThe observation that the party dissatisfied with the order made under S. 278 of theCode of Civil Procedure, 1882, could have appealed from the order, seems to have been made per incuriam. It seems that no appeal lay from such an order. The reason why Lalji Lal was precluded from contending that the property was liable to be attached and sold in execution of the decree obtained by him was that in the absence of a suit under S. 283 of C. P. C. of 1882, he and Sarju Prasad claiming title under him, could not subsequently contend that the property was liable to be sold in execution of the decree. In the two cases discussed above, the adverse orders in the claim proceeding became conclusive on the question whether the property was liable to attachment and sale in execution of the particular decree then sought to be executed. Equally, in the absence of any suit under O. 21, R. 63, C. P. C., the adverse orders passed against Kashinath conclusively decided that the suit lands were not liable to be sold in execution of the money decree obtained by him against Ramtahal Pandey. But those orders were not conclusive on the question whether the lands were liable to be sold in execution of the mortgage decree obtained by Kashinath against Ramanandan LalThis novel argument is ingenious but unsound. An auction-purchaser at a sale held in execution of a mortgage decree buys not only the interest of the mortgagor but also the interest of the mortgagee. If the lease does not bind the mortgagee, it does not equally bind the auction-purchaserIn the present case, the lessees allowed the suit lands to be sold in execution of the mortgage decree and they have now lost the right of redemption. They cannot resist the claim of the auction-purchaser for recovery of possession of the lands12. If a mortgagor in possession of the mortgaged property executes a lease of the property in the ordinary course of management as the agent or bailiff of the mortgagee during the pendency of a suit by the mortgagee to enforce the mortgage, a question may arise whether such a lease is in the eye of the law a lease granted by the mortgagee through his agent and therefore binding on him. But in the present case, that question does not arise as the leases were not granted by the mortgagor in the ordinary course of management as the bailiff or agent of the mortgagee13. The High Court held that the leases were steam transactions. We do not think it necessary to decide this question. Even assuming that the leases were not sham transactions they were not binding on Kashinath and the deity. The High Court rightly decreed the suit

### 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: Kishore, 21 Cal WN 88 at p. 92: (AIR 1917 Cal 222 at p. 225) Mookerjee J. held that a mortgagor in possession may grant a lease conformable to usage in the ordinary course of management, for instance he may create a tenancy from year to year in the case of agricultural lands or from month to month in the case of houses. But he is not competent to grant a lease on unusual terms or to alter the character of the land or to authorise its use in a manner or for a purpose different from the mode in which he himself had used before he granted the mortgage. This view of the law as it stood before the enactment of S. 65-A was approved in Raja Kamakshya Narayan Singh v Chohan Ram 1953 SCR 108 at p. 118: (AIR 1952 SC 401 at pp. 404-405) and this Court held that the question whether the mortgagor in possession has power to lease the mortgaged property must be determined with reference to the authority of the mortgagor as the bailiff or agent for the mortgagee to deal with the property in the usual course of management. In Gobinda Chandra Saha v. Sasadhar Mandal, AIR 1947 Cal 73 at p. 75 B. K. Mukherjea, J., pointed out that normally a permanent lease with rent fixed in perpetuity is not sanctioned by the ordinary course of management. He observed:-"The mortgagor might be within his rights to create a lease which is from month to month or from year to year as the case might be but he cannot grant a permanent lease with a rent fixed in perpetuity. This amounts to an alienation of his right to increase the rent in future and is as good as the sale of the property itself. This is not sanctioned by the ordinary course of management as has been mentioned above nor is it warranted by the previous user of this particular property." 9. In the present case, defendants 2-7 were lessees under five leases granted by the mortgagor in June 1934. All these defendants claimed to be permanent lessees with rent fixed in perpetuity. Four of the leases were granted by registered pattas. In respect of four leases the mortgagor received nazrana or premium. All the leases were created after the property was advertised for sale in execution of the mortgage decree. The High Court has found that the leases were created by the mortgagor in bad faith with a view to cause loss to the mortgagee-decree-holder. The leases were not in the ordinary course of management by the mortgagor as the agent or bailiff of the mortgagee and were not binding on the mortgagee. 10. On behalf of the appellants it was argued that the leases might not be binding on Kashinath while he was the mortgagee, but after he purchased the property he ceased to be a mortgagee and he could not thereafter assert that the leases were not binding on him. This novel argument is ingenious but unsound. An auction-purchaser at a sale held in execution of a mortgage decree buys not only the interest of the mortgagor but also the interest of the mortgagee. If the lease does not bind the mortgagee, it does not equally bind the auction-purchaser. It is interesting to notice that in Rust v. Goodale 1957-1 Ch 33 at pp. 42, 43 Harman J., held that the right of the mortgagee to treat a tenant of the mortgagor as a trespasser was a right which passed on sale or foreclosure to his assignee. 11. A lease granted by the mortgagor, out of the ordinary course of management, though not binding on the mortgagee, is binding as between the mortgagor and the lessee. Such a lesser acquires an interest in the right of redemption and is entitled to redeem. If such a lease is created before the institution of a suit relating to the mortgage the lessee must be joined as a party to the suit under O. 34, R. 1, C. P. C., otherwise he will not be bound by the decree passed in the suit and will continue to retain his right of redemption. But in view of S. 52 of the Transfer of Property Act, if the mortgagor grants such a lease during the pendency of a suit for sale by the mortgagee, the lessee is bound by the result of the litigation. If the property is sold in execution of the decree passed in the suit, the lessee cannot resist a claim for possession by the auction-purchaser. The lessee could apply for being joined as a party to the suit and ask for an opportunity to redeem the property. But if he allows the property to be sold in execution of the decree, he loses his right of redemption. In the present case, the lessees allowed the suit lands to be sold in execution of the mortgage decree and they have now lost the right of redemption. They cannot resist the claim of the auction-purchaser for recovery of possession of the lands. 12. If a mortgagor in possession of the mortgaged property executes a lease of the property in the ordinary course of management as the agent or bailiff of the mortgagee during the pendency of a suit by the mortgagee to enforce the mortgage, a question may arise whether such a lease is in the eye of the law a lease granted by the mortgagee through his agent and therefore binding on him. But in the present case, that question does not arise as the leases were not granted by the mortgagor in the ordinary course of management as the bailiff or agent of the mortgagee. 13. The High Court held that the leases were steam transactions. We do not think it necessary to decide this question. Even assuming that the leases were not sham transactions they were not binding on Kashinath and the deity. The High Court rightly decreed the suit ### Response: 0

JAHANGIR HUSSAIN Vs. THE STATE OF WEST BENGAL

7th March, 2000 at about 4 p.m. the accused persons on trial along with another accused Tony Anthony (since deceased) intercepted one Ranjan Ojha at the crossing of Brabourne Road and Sukeas Lane within the P.S. Hara Street, Calcutta and identified themselves as officers of Customs falsely and asked Ranjan Ojha to get into a taxi.The said Ranjan Ojha had cash of Rs.5 lakhs with him which he collected from one Suresh Saraf and Naresh Kumar Kabra being so directed by his employer Dinesh Kabra. He kept the cash amount of Rs.5 lakhs in a bag being carried by him. The accused persons encircled him and then took him forcibly into a stationary taxi cab after overpowering in him. When he tried to raise alarm the miscreants covered his mouth with their hands and started assaulting him with fists and blows. The vehicle sped away from the P.O. and the miscreants snatched the bag containing cash of Rs. 5 lakhs from the informant Ranjan Ojha. The informant was then taken to a place in from of premises No.1, Tapsia Road (South) at about 5 p.m. and he was then forced out of the taxi which then sped away. The informant then informed his employer Dinesh Kabra about this incident and then reported the matter to Tapsia Police Station.It was specifically stated by the informant that all the miscreants were of the age group of 25/30 years and the informant hoped that he would be able to identify them. He also reported the police that two of the miscreants were carrying mobile phone with them. After investigation, all the accused were charged for the offences under Sections 170/395 of the IPC. Initially, there were five accused persons. However, one of the accused Tony Anthony died during the pendency of the trial. The remaining accused pleaded not guilty and therefore they came to be tried by the learned Sessions Court for the aforesaid offences. The sessions Court case was numbered as Sessions Case No. 47/2000.2.1 To prove the case against the accused, the prosecution examined in all 24 witnesses. The appellants herein - original accused nos. 4 & 3 respectively, were, in fact, identified by PW2 in the T.I. Parade. There was also recovery of money looted from the accused persons, i.e., Rs.10,000/- from the custody of Jahangir Hussain and Rs. 1 lakh from the custody of Parmeshwar Lal Soni. That after closing pursis was submitted by the prosecution further statement of the accused persons under Section 313 CR.P.C. were recorded. That all the incriminating materials were brought to the notice of the accused. However, the case of the accused was a case of denial.3. That thereafter, on appreciation of evidence, the learned trial Court held the accused Jahangir Hussain (original accused no.4) guilty for the offence under Section 395 of the IPC and held the accused Parmeshwar Lal Soni (original accused no.3) guilty for the offence under Section 412 of the IPC. The learned trial Court sentenced one Shahid Ali and Jahangir Hussain to suffer R.I. for seven years and to pay a fine of Rs.5,000/-, in default, to suffer R.I. for one year each. The learned trial Court also sentenced Parmeshwar Lal Soni and 5 Ramesh Singh @ Lotan Singh to suffer R.I. for seven years and to pay a fine of Rs.5,000/-, in default, to suffer R.I. for one year each.3.1 The conviction and sentence imposed by the learned trial Court came to be confirmed by the High Court by the impugned judgment and order.4. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court, convicting Jahangir Hussain for the offence under Section 395 of the IPC and convicting Parmeshwar Lal Soni for the offence under Section 412 of the IPC, the original accused nos. 4 & 3 have preferred the present appeals.5. We have heard the learned advocates for the respective parties at length.5.1 We have gone through and considered in detail the judgment and order passed by the learned trial Court as well as the impugned judgment and order passed by the High Court. We have minutely considered and even re-appreciated the entire evidence on record.5.2 Having heard the learned advocates for the respective parties and considering the findings recorded by both the courts below and the reasoning given, we are of the opinion that the courts below have not committed any error in holding Jahangir Hussain, original accused no.4, guilty for the offence under Section 395 of the IPC and in holding Parmeshwar Lal Soni, original accused no.3, guilty for the offence under Section 412 of the IPC. PW2 has identified Jahangir Hussain in T.I. Parade.There is a recovery of Rs.1 lakh from the custody and possession of Parmeshwar Lal Soni and Rs.10,000/- from the custody and possession of Jahangir Hussain, which were at the instance of the accused themselves. Therefore, both the courts below have rightly held the accused guilty for the offences for which they were tried and convicted.6. Learned advocate appearing on behalf of the appellants, in the alternative, has prayed to impose the lesser punishment and consequently to modify the sentence imposed by the courts below mainly on the grounds that the incident had occurred nearly 19 years ago; that there was no previous antecedents; Jahangir Hussain at the time of the offence was 7 aged about 28 years in the year 2000 and is now 45 years of age; that he has an aged father of 70 years and mother of 68 years. That Parmeshwar Lal Soni has undergone nearly 54 months out of the total period of 84 months; that he was 48 years of age in the year 2002 and is now aged about 64 years; it is also submitted by the learned advocate appearing on behalf of the accused - Jahangir Hussain that he is ready to pay the enhanced fine, although his monetary condition is poor. Hence, he has prayed for consideration of reducing the sentence to the period already undergone.

1[ds]5.1 We have gone through and considered in detail the judgment and order passed by the learned trial Court as well as the impugned judgment and order passed by the High Court. We have minutely considered and even re-appreciated the entire evidence onHaving heard the learned advocates for the respective parties and considering the findings recorded by both the courts below and the reasoning given, we are of the opinion that the courts below have not committed any error in holding Jahangir Hussain, original accused no.4, guilty for the offence under Section 395 of the IPC and in holding Parmeshwar Lal Soni, original accused no.3, guilty for the offence under Section 412 of the IPC. PW2 has identified Jahangir Hussain in T.I.is a recovery of Rs.1 lakh from the custody and possession of Parmeshwar Lal Soni and Rs.10,000/- from the custody and possession of Jahangir Hussain, which were at the instance of the accused themselves. Therefore, both the courts below have rightly held the accused guilty for the offences for which they were tried and convicted.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: 7th March, 2000 at about 4 p.m. the accused persons on trial along with another accused Tony Anthony (since deceased) intercepted one Ranjan Ojha at the crossing of Brabourne Road and Sukeas Lane within the P.S. Hara Street, Calcutta and identified themselves as officers of Customs falsely and asked Ranjan Ojha to get into a taxi.The said Ranjan Ojha had cash of Rs.5 lakhs with him which he collected from one Suresh Saraf and Naresh Kumar Kabra being so directed by his employer Dinesh Kabra. He kept the cash amount of Rs.5 lakhs in a bag being carried by him. The accused persons encircled him and then took him forcibly into a stationary taxi cab after overpowering in him. When he tried to raise alarm the miscreants covered his mouth with their hands and started assaulting him with fists and blows. The vehicle sped away from the P.O. and the miscreants snatched the bag containing cash of Rs. 5 lakhs from the informant Ranjan Ojha. The informant was then taken to a place in from of premises No.1, Tapsia Road (South) at about 5 p.m. and he was then forced out of the taxi which then sped away. The informant then informed his employer Dinesh Kabra about this incident and then reported the matter to Tapsia Police Station.It was specifically stated by the informant that all the miscreants were of the age group of 25/30 years and the informant hoped that he would be able to identify them. He also reported the police that two of the miscreants were carrying mobile phone with them. After investigation, all the accused were charged for the offences under Sections 170/395 of the IPC. Initially, there were five accused persons. However, one of the accused Tony Anthony died during the pendency of the trial. The remaining accused pleaded not guilty and therefore they came to be tried by the learned Sessions Court for the aforesaid offences. The sessions Court case was numbered as Sessions Case No. 47/2000.2.1 To prove the case against the accused, the prosecution examined in all 24 witnesses. The appellants herein - original accused nos. 4 & 3 respectively, were, in fact, identified by PW2 in the T.I. Parade. There was also recovery of money looted from the accused persons, i.e., Rs.10,000/- from the custody of Jahangir Hussain and Rs. 1 lakh from the custody of Parmeshwar Lal Soni. That after closing pursis was submitted by the prosecution further statement of the accused persons under Section 313 CR.P.C. were recorded. That all the incriminating materials were brought to the notice of the accused. However, the case of the accused was a case of denial.3. That thereafter, on appreciation of evidence, the learned trial Court held the accused Jahangir Hussain (original accused no.4) guilty for the offence under Section 395 of the IPC and held the accused Parmeshwar Lal Soni (original accused no.3) guilty for the offence under Section 412 of the IPC. The learned trial Court sentenced one Shahid Ali and Jahangir Hussain to suffer R.I. for seven years and to pay a fine of Rs.5,000/-, in default, to suffer R.I. for one year each. The learned trial Court also sentenced Parmeshwar Lal Soni and 5 Ramesh Singh @ Lotan Singh to suffer R.I. for seven years and to pay a fine of Rs.5,000/-, in default, to suffer R.I. for one year each.3.1 The conviction and sentence imposed by the learned trial Court came to be confirmed by the High Court by the impugned judgment and order.4. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court, convicting Jahangir Hussain for the offence under Section 395 of the IPC and convicting Parmeshwar Lal Soni for the offence under Section 412 of the IPC, the original accused nos. 4 & 3 have preferred the present appeals.5. We have heard the learned advocates for the respective parties at length.5.1 We have gone through and considered in detail the judgment and order passed by the learned trial Court as well as the impugned judgment and order passed by the High Court. We have minutely considered and even re-appreciated the entire evidence on record.5.2 Having heard the learned advocates for the respective parties and considering the findings recorded by both the courts below and the reasoning given, we are of the opinion that the courts below have not committed any error in holding Jahangir Hussain, original accused no.4, guilty for the offence under Section 395 of the IPC and in holding Parmeshwar Lal Soni, original accused no.3, guilty for the offence under Section 412 of the IPC. PW2 has identified Jahangir Hussain in T.I. Parade.There is a recovery of Rs.1 lakh from the custody and possession of Parmeshwar Lal Soni and Rs.10,000/- from the custody and possession of Jahangir Hussain, which were at the instance of the accused themselves. Therefore, both the courts below have rightly held the accused guilty for the offences for which they were tried and convicted.6. Learned advocate appearing on behalf of the appellants, in the alternative, has prayed to impose the lesser punishment and consequently to modify the sentence imposed by the courts below mainly on the grounds that the incident had occurred nearly 19 years ago; that there was no previous antecedents; Jahangir Hussain at the time of the offence was 7 aged about 28 years in the year 2000 and is now 45 years of age; that he has an aged father of 70 years and mother of 68 years. That Parmeshwar Lal Soni has undergone nearly 54 months out of the total period of 84 months; that he was 48 years of age in the year 2002 and is now aged about 64 years; it is also submitted by the learned advocate appearing on behalf of the accused - Jahangir Hussain that he is ready to pay the enhanced fine, although his monetary condition is poor. Hence, he has prayed for consideration of reducing the sentence to the period already undergone. ### Response: 1

Mohammad Baqar & Others Vs. Naim-Un-Nisa Bibi & Others

died, and his three sons and two daughters were brought on record as his legal representatives on 4-1-1943. These were the persons who were interested in the subject-matter of the decree, which was under appeal.Now, the document on which the appellants rely as being the compromise is signed by the second defendant, Sheik Mohammad Baqar, but the heirs of the deceased first defendants are not parties thereto. On the side of the plaintiffs, the document purports to bear the thumb-impression of the first plaintiff, and of three of the children of the deceased second plaintiff, Mohammad Ibrahim, one of the sons of the second plaintiff, and the son and the daughter of the deceased Zainab Bi are not eo nomine parties to it.Mohamed Ibrahim, having subsequently died, his three sons have been brought on record as his legal representatives, and they do not admit the genuineness of this document, and further contend that even if true, it is ineffective as neither the heirs of the deceased first defendant nor some of the heirs of the deceased second plaintiff are parties thereto.They contend that as the compromise relates to a partition decree, and as under the proposed compromise the plaintiffs are to take one group, it was impossible to give effect to that compromise, unless all the parties to the decree consented, and that as some of them have admittedly not joined in the compromise, it could not be made a rule of court under O. 23, R. 3.5. In our opinion, the application must fail on the short ground that the compromise is not proved. The appellants applied to the High Court to have the compromise recorded and transmitted to this Court. In their application, they stated that the sons of the first defendant, though agreeable to the terms of the compromise at one stage, changed their mind later on.Even with reference to the parties whose names appeared on the document, as the compromises was not admitted the High Court called for a report from the Civil Judge Jaunpur as to the truth thereof. But none of the parties turned up at the hearing before the Civil Judge though the matter was before him twice, with the result that he sent a report that the compromise had not been verified.This report was accepted by the learned Judges in their order dated 29-7-1949. On the materials before us, there is no. proof that there was any compromise between the parties and the petition under O. 23, R. 3 to pass a decree in terms of compromise must accordingly be dismissed.6. On the merits, two contentions have been pressed before us : (1) that the family custom excluding the females from taking as heirs must be held to be established, and (2) that the claim of the plaintiffs is barred by limitation. The burden of proving a custom in derogation of the general law being heavily on the party who sets it up, it was incumbent on the appellants to prove by clear and cogent evidence that there was such a custom as was pleaded by them.It is admitted that there is no. documentary evidence in support of it. The appellants examined six witnesses in proof of it. The trial Judge was not impressed by their evidence, and has given good reasons for rejecting it. No. serious attempt appears to have been made before the High Court to rehabilitate them.The strongest piece of evidence relied on by the appellants, is an entry in the mutation of records made in 1893, in which it is stated that the daughters are excluded by custom for sharing in the inheritance, and that therefore the names of the sons of Ataullah alone are entered as his heirs. It appears from this very record that the source of this information was the first defendant himself, who at that time is stated to have been about 22 years old.It is obvious that a statement as to custom from a person of that age cannot command much weight, as that must largely depend on his means of knowledge. In view of the fact that he was himself a person interacted, his statement must be discarded as too slender for supporting the custom. We do not find any sufficient grounds for disturbing the concurrent findings of the Courts below on this point, and the custom pleaded by the defendants must, therefore, be held not to have been established.7. Then, there is the question of limitation. The parties to the action are co-sharers, and as under the law, possession of one co-sharer is possession of all co-sharers it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period.The facts found are that the plaintiffs were minors at the time of their fathers death, that they continued to live with their brothers in the same house down to the year 1918, that thereafter they went to reside with their husbands but that they continued to draw from the family chest for all expenses.The Courts below have found that as the plaintiffs were in enjoyment of the income from the estate there was no. ouster; and that is clearly right. It was not until 1933 when the defendants executed the waqf deed that there was any denial of the title of the plaintiffs, an down to that date, they had been in enjoyment of the properties.It was argued that what the plaintiffs received was only maintenance, and could not be attributed to their right to a share in the properties. But the evidence shows that the receipts were not merely for maintenance, and that they were of the same character as the receipts by the defendants themselves from the estate during this period. Moreover, there can be no. question of ouster, if there is participation in the profits to any degree. On the facts found, therefore, no question of adverse possession arises.

0[ds]5. In our opinion, the application must fail on the short ground that the compromise is not proved. The appellants applied to the High Court to have the compromise recorded and transmitted to this Court. In their application, they stated that the sons of the first defendant, though agreeable to the terms of the compromise at one stage, changed their mind later on.Even with reference to the parties whose names appeared on the document, as the compromises was not admitted the High Court called for a report from the Civil Judge Jaunpur as to the truth thereof. But none of the parties turned up at the hearing before the Civil Judge though the matter was before him twice, with the result that he sent a report that the compromise had not been verified.This report was accepted by the learned Judges in their order datedOn the materials before us, there is no. proof that there was any compromise between the parties and the petition under O. 23, R. 3 to pass a decree in terms of compromise must accordingly be dismissed.6. On the merits, two contentions have been pressed before us : (1) that the family custom excluding the females from taking as heirs must be held to be established, and (2) that the claim of the plaintiffs is barred by limitation. The burden of proving a custom in derogation of the general law being heavily on the party who sets it up, it was incumbent on the appellants to prove by clear and cogent evidence that there was such a custom as was pleaded by them.It is admitted that there is no. documentary evidence in support of it. The appellants examined six witnesses in proof of it. The trial Judge was not impressed by their evidence, and has given good reasons for rejecting it. No. serious attempt appears to have been made before the High Court to rehabilitate them.The strongest piece of evidence relied on by the appellants, is an entry in the mutation of records made in 1893, in which it is stated that the daughters are excluded by custom for sharing in the inheritance, and that therefore the names of the sons of Ataullah alone are entered as his heirs. It appears from this very record that the source of this information was the first defendant himself, who at that time is stated to have been about 22 years old.It is obvious that a statement as to custom from a person of that age cannot command much weight, as that must largely depend on his means of knowledge. In view of the fact that he was himself a person interacted, his statement must be discarded as too slender for supporting the custom. We do not find any sufficient grounds for disturbing the concurrent findings of the Courts below on this point, and the custom pleaded by the defendants must, therefore, be held not to have beenCourts below have found that as the plaintiffs were in enjoyment of the income from the estate there was no. ouster; and that is clearly right. It was not until 1933 when the defendants executed the waqf deed that there was any denial of the title of the plaintiffs, an down to that date, they had been in enjoyment of thewas argued that what the plaintiffs received was only maintenance, and could not be attributed to their right to a share in the properties.But the evidence shows that the receipts were not merely for maintenance, and that they were of the same character as the receipts by the defendants themselves from the estate during this period. Moreover, there can be no. question of ouster, if there is participation in the profits to any degree. On the facts found, therefore, no question of adverse possession arises.

### 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: died, and his three sons and two daughters were brought on record as his legal representatives on 4-1-1943. These were the persons who were interested in the subject-matter of the decree, which was under appeal.Now, the document on which the appellants rely as being the compromise is signed by the second defendant, Sheik Mohammad Baqar, but the heirs of the deceased first defendants are not parties thereto. On the side of the plaintiffs, the document purports to bear the thumb-impression of the first plaintiff, and of three of the children of the deceased second plaintiff, Mohammad Ibrahim, one of the sons of the second plaintiff, and the son and the daughter of the deceased Zainab Bi are not eo nomine parties to it.Mohamed Ibrahim, having subsequently died, his three sons have been brought on record as his legal representatives, and they do not admit the genuineness of this document, and further contend that even if true, it is ineffective as neither the heirs of the deceased first defendant nor some of the heirs of the deceased second plaintiff are parties thereto.They contend that as the compromise relates to a partition decree, and as under the proposed compromise the plaintiffs are to take one group, it was impossible to give effect to that compromise, unless all the parties to the decree consented, and that as some of them have admittedly not joined in the compromise, it could not be made a rule of court under O. 23, R. 3.5. In our opinion, the application must fail on the short ground that the compromise is not proved. The appellants applied to the High Court to have the compromise recorded and transmitted to this Court. In their application, they stated that the sons of the first defendant, though agreeable to the terms of the compromise at one stage, changed their mind later on.Even with reference to the parties whose names appeared on the document, as the compromises was not admitted the High Court called for a report from the Civil Judge Jaunpur as to the truth thereof. But none of the parties turned up at the hearing before the Civil Judge though the matter was before him twice, with the result that he sent a report that the compromise had not been verified.This report was accepted by the learned Judges in their order dated 29-7-1949. On the materials before us, there is no. proof that there was any compromise between the parties and the petition under O. 23, R. 3 to pass a decree in terms of compromise must accordingly be dismissed.6. On the merits, two contentions have been pressed before us : (1) that the family custom excluding the females from taking as heirs must be held to be established, and (2) that the claim of the plaintiffs is barred by limitation. The burden of proving a custom in derogation of the general law being heavily on the party who sets it up, it was incumbent on the appellants to prove by clear and cogent evidence that there was such a custom as was pleaded by them.It is admitted that there is no. documentary evidence in support of it. The appellants examined six witnesses in proof of it. The trial Judge was not impressed by their evidence, and has given good reasons for rejecting it. No. serious attempt appears to have been made before the High Court to rehabilitate them.The strongest piece of evidence relied on by the appellants, is an entry in the mutation of records made in 1893, in which it is stated that the daughters are excluded by custom for sharing in the inheritance, and that therefore the names of the sons of Ataullah alone are entered as his heirs. It appears from this very record that the source of this information was the first defendant himself, who at that time is stated to have been about 22 years old.It is obvious that a statement as to custom from a person of that age cannot command much weight, as that must largely depend on his means of knowledge. In view of the fact that he was himself a person interacted, his statement must be discarded as too slender for supporting the custom. We do not find any sufficient grounds for disturbing the concurrent findings of the Courts below on this point, and the custom pleaded by the defendants must, therefore, be held not to have been established.7. Then, there is the question of limitation. The parties to the action are co-sharers, and as under the law, possession of one co-sharer is possession of all co-sharers it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period.The facts found are that the plaintiffs were minors at the time of their fathers death, that they continued to live with their brothers in the same house down to the year 1918, that thereafter they went to reside with their husbands but that they continued to draw from the family chest for all expenses.The Courts below have found that as the plaintiffs were in enjoyment of the income from the estate there was no. ouster; and that is clearly right. It was not until 1933 when the defendants executed the waqf deed that there was any denial of the title of the plaintiffs, an down to that date, they had been in enjoyment of the properties.It was argued that what the plaintiffs received was only maintenance, and could not be attributed to their right to a share in the properties. But the evidence shows that the receipts were not merely for maintenance, and that they were of the same character as the receipts by the defendants themselves from the estate during this period. Moreover, there can be no. question of ouster, if there is participation in the profits to any degree. On the facts found, therefore, no question of adverse possession arises. ### Response: 0

Angurbala Mullick Vs. Debabrata Mullick

document. It is to be noted that Mrityunjoy was the owner of the dedicated properties and the real founder of the endowment. The mother was associated with him in the act of dedication because it was she who consecrated and established the deity and was looking after its worship and service since it was installed. It was in the fitness of things therefore that Mrityunjoy should request his mother to become the first shebait and this is exactly what is recited in the indenture. After the death of Nitto Sundari, Mrityunjoy, the founder, himself, was to be the shebait and save and except the provision made in favour of Kiranbala, his existing wife, the devolution of shebaitship has been directed to be in the line of heirs of the founder. There is no indication of any intention to treat the heirs as the objects of an independent gift. It may be noted that this identical point was raised before the Federal Court in Umayal Achi v. Lakshmi Achi [[1945] F.C.R. 1] with regard to the devolution of trust estates. The direction in the will in that case was that they should go to the heirs. It was held by Varadachariar J. that it was not reasonable to construe such words as words of gift and not of devolution.26. On the question of construction Mr. Banerjees main argument is that if the relevant provisions of the indenture dealing with devolution of shebaitship are read as a whole, it will be manifest that the executants of the deed intended that the issue of Mrityunjoy were to have preference over other heirs in the matter of succession to shebaitship; and that an heir who is not an issue could not come in so long as an issue remained alive. The relevant portion of the document has been set out already and it provides in the first place that after the death of Nitto Sundari, her son, the said Mrityunjoy Mullick, shall become the shebait, after him his wife Smt. Kiranbala Dassi, and after her death, the heirs of the said Mrityunjoy Mullick shall be and act as shebaits. Then there is a proviso to the effect that if the said Mrityunjoy shall happen to die without any issue or without giving any authority to his wife, him surviving, to adopt, then in such case it shall be competent for Mrityunjoy to appoint by will or otherwise a shebait who would act as such after the death of the said wife; but in case the said Mrityunjoy Mullick shall happen to die without any issue, the shebaitship of the said Thakur after the death of his wife shall devolve upon his heirs under Hindu Law. Mr. Banerjee lays stress upon the proviso, particularly the last portion of it and it contains, according to him, a clear direction that it is only on the failure of issue that the heirs of Mrityunjoy can come in as shebaits. In order that the proviso may be reconciled with the clause that precedes it, Mr. Banerjee invites us to hold that the word "heirs" in the previous clause should be taken to mean only the issue of Mrityunjoy.27. We do not think that the interpretation suggested by the learned counsel is the proper one. A proviso is normally an excepting or a qualifying clause and the effect of it is to except out of the preceding clause upon which it is engrafted something which but for the proviso would be within it. The word "heirs" cannot normally be limited to issue only. It must mean all persons who are entitled to the property of another under the law of inheritance. So far as the main provision is concerned there is nothing in the language or in the context to suggest that the word "heirs" has not been used in its ordinary or natural sense. Mr. Banerjee argues that the proviso in that case would be wholly inexplicable whereas it is a sound canon of construction that all the parts of a document should be read together and no portion is to be omitted. In our opinion, the clause that precedes the proviso lays down the general rule relating to devolution of shebaitship. The expression "heirs" has not been used in any restricted or limited sense and extends to all persons who are entitled to succeed under the law. The proviso engrafts an exception upon the general rule. What it does is to give a power to Mrityunjoy to appoint a shebait, who would come as such after his death in the contingency of his dying without any issue and without giving any authority to his wife to adopt a son. It may be noted that the word "issue" includes both son and daughter and the power of appointment cannot be exercised by Mrityunjoy even if he has a daughter living. The proviso thus qualifies the main provision to this extent that if the particular contingency that is mentioned here is fulfilled, Mrityunjoy would be entitled to appoint a shebait, although no such power can be deduced from the general clause. In case the contingency does happen but the wife is not given any power of adoption and no appointment is also made by Mrityunjoy, the consequence would certainly be that the other heirs of Mrityunjoy would succeed as shebaits and this is what is laid down in the concluding portion of the proviso. The expression "his heirs" at the end of the proviso would certainly mean heirs other than the son and daughter of Mrityunjoy. As Mrityunjoy actually left a son, the contingency contemplated by the proviso did not arise at all and in these circumstances the proviso is to be ignored altogether for purposes of construction and it is not proper to attempt to spell, out of it, by implication, something which is not only not in the main provisions but is contradictory to it. We think, therefore, that this contention of Mr. Banerjee also must fail.

1[ds]13. The exact legal position of a shebait may not be capable of precise definition but its implications are fairly well established. It is settled by the pronouncement of the Judicial Committee in Vidya Varuti v. Balusami [48 I.A. 302] that the relation of a shebait in regard to debutter property is not that of a trustee to trust property under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui que trust. In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the shebait or mahant is a mere manager. But though a shebait is a manager and not a trustee in the technical sense, it would not he correct to describe the shebaitship as a mere office. The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property. This was elaborately discussed by a Full Bench of the Calcutta High Court in Manohar Mukherji v. Bhupendra Nath Mukherji [I.L.R. 60 Cal. 452] and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary [63 I.A. 448] and again in Bhabatarini v. Ashalata [70 I.A. 57]. The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasize the proprietary element in the shebaiti right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu law from an early date. "According to Hindu law," observed Lord Hobhouse in Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee [16 I.A. 137], when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution." Unless, therefore, the founder has disposed of the shebaitship in any particular mannerand this right of disposition is inherent in the founderor except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder.14. Turning now to the Hindu Womens Rights to Property Act, it will be seen that the object of the Act, as set out in the preamble, is to give better rights to women in respect of property.It will be seen that section 3(1) abrogates the general rule of Hindu law according to which a widow succeeds to her deceased husbands property only in default of male issue and she is now entitled to the same share as a son along with or in default of male issue. Similar rights have been given by the two provisos attached to section 3(1) to the widow of a predeceased son and also to the widow of a predeceased son of a predeceased son. Section 3(1) speaks of "any property". The expression prima facie includes, unless something to the contrary can be spelt out from the other provisions of the Act, all forms or types of interest answering to the description of "property" in law. Of course, the property must be heritable property in respect to which alone the question of succession may legitimatelyargument does not appear to us to be at all convincing. Precisely the same thing happens when the shebaiti right devolves upon a female heir under the ordinary law of inheritance. If a shebait dies leaving behind him a widow and no male issue, the widow would succeed to shebaitship under ordinary law but her rights in respect of the shebaiti would be restricted in the same manner as they would have been if the successor was the son. This is because there are certain limitations and restrictions attached to and inherent in the shebaiti right itself and they exist irrespective of the fact as to whether the shebaitship devolves upon a male or a female heir. But although as regards powers of alienation the disability of the male and the female shebaits may be identical, there is yet a distinction between them as regards the other limitation or characteristic of a Hindu womans estate. When Hindu female heir succeeds to the property of a male propositus, she cannot transmit the interest which she inherits, to her own heirs upon her death. The property goes after her death not to her heirs but to the heirs of the last male owner. This rule applies even when the right which devolves upon a widow is the right of a shebait. After her death the shebaiti right would not pass to her stridhana heirs but would go to heirs of the last shebait [Anuragi Kuer v. Paramanand, A.I.R. 1939 Pat. 1] .(3) of section 3, therefore, is of no assistance to Mr. Banerjeesargument, in our opinion, cannot be accepted as sound. Section 2 of the Act which has been referred to above makes the provisions of section 3 applicable only when a Hindu dies intestate. A person is ordinarily regarded as dying intestate when he has left no will disposing of his properties. A doubt might arise as to whether this Act would apply when a will was actually executed by a deceased, but for some reason or other it was incapable of taking effect and it was for the purpose of removing such doubt that this section was added by the amending Act of 1938. The language of section 5 of the Act is exactly the same as that of section 30 of the Indian Succession Act and the object underlying both these provisions appears to be identical. Mere execution of a will is not enough to exclude the operation of the Act. The will must be an operative will and if the will is void or incapable of taking effect, it would be deemed that the testator has died intestate. If the property isas Mr. Banerjee puts it, no testamentary disposition of such property is possible or could take effect in law and the testator must in such circumstances be deemed to have died intestate in respect of such property. Thus, there is nothing in any of the provisions of the Act from which an inference could be drawn that the expression "property" as used in section 3(1) has a limited or restricted interpretation and is not applicable to shebaitship, which is recognized as property in Hinduobservation that Hindu law regards trusteeship as property for certain purposes is of a most general character and it has to be noted that not only the word "shebaitship" has not been used by the learned Judge but he does not even confine his remarks even to religious trusts. Moreover, trusteeship is not certainly equivalent to shebaitship. On the other hand, the reference made by the learned Judge to the limited objective of the Act affords an indication that he had in mind a trust of such a character where the trustee had no personal interest in the trust property. The object of the Act, as stated above, is to give better rights to women in respect of property. If a trusteeship, even if it is regarded as property, carries with it no emoluments or any beneficial interest for the trustee and consists of nothing else But a bundle of obligations and duties, it might possibly be said that the giving of share in such rights to a Hindu widow would not in any wan improve her position. But the position would be obviously different if there is a beneficial interest of a substantial kind inseparably connected with the duties of a particular office. They again, the learned Judge possibly used the expression "private property" in a somewhat loose sense as meaning personal property in respect to which the proprietor has a beneficial interest of his own. The reference to section 3(3) of the Hindu Womens Rights to Property Act is, as we have indicated already, not much helpful for the purpose of construing the Act. After all, we must take the decision as it stands and it is not right to call into aid a particular reason assigned by the learned Judge, for the purpose of carrying the decision beyond what it actually purports to lay down. We think that a very proper view of the effect of this decision of the Federal Court has been taken by a Division Bench of the Madras High Court in P. Suryanarayanacharyulu v. P. Seshamma . There the question arose in connection with the rights associated with the office of archakatvam, which is a hereditary religious office and the holder or holders of it for the time being are beneficially entitled to enjoy the income of the endowed property. It was held that the principle laid down by the Federal Court in Umayal Achi v. Lakshmi Achi [[1945] F.C.R. 1] has no application to a case relating to the office of archakatvan. It is pointed out by the Madras High Court that though the observations of the learned Judge in the Federal Court are wide, the decision proceeded only on the main ground that the Act governs succession to property beneficially owned by the propositus. In our opinion, the same reasons apply to the case of the hereditary shebait of a private debutter, particularly where, as in the present case, 25 per cent. of the net income of the endowed properties has been given to the shebait of shebaits for the time being as their remuneration. Our conclusion, therefore, is that there is nothing in any of the provisions of the Hindu Womens Rights Property Act which excludes from the scope of operation of the Act succession to shebaitship is a recognized form of property in Hindu Law.23. Assuming that the word "property" in Act XXIII of 1937 is to be interpreted to mean property in common and ordinarily accepted sense and is not to be extended to any special or peculiar type of property, even then we think that the other contention of Mr. Tek Chand is perfectly sound. Succession of shebaitship, even though there is an ingredient of in it, follows succession to ordinary or secular property. It is the general law of succession that governs succession to shebaitship as well. While the general law now been changed by reason of Act XVIII of 1937, there does not appear to be any cogent reason why the law as it stands at present should not be made applicable in the case of devolution of shebaitship.24.The last contention of Mr. Tek Chand that under the indenture itself the wife of Mrityunjoy and Kiranbala particularly has been given rights of succession to shebaitship prior to any issue of Mrityunjoy manifestly untenable and as the learned counsel was not at all serious in pressing this point, we consider unnecessary to discuss it anymay be stated at the outset that we are not at all impressed by the argument of the learned counsel that the words "heirs of the said Mrityunjoy" occurring in the document are to be construed as words not of inheritance but of grant.Such construction would be against the language and the whole tenor of the document. It is to be noted that Mrityunjoy was the owner of the dedicated properties and the real founder of the endowment. The mother was associated with him in the act of dedication because it was she who consecrated and established the deity and was looking after its worship and service since it was installed. It was in the fitness of things therefore that Mrityunjoy should request his mother to become the first shebait and this is exactly what is recited in the indenture. After the death of Nitto Sundari, Mrityunjoy, the founder, himself, was to be the shebait and save and except the provision made in favour of Kiranbala, his existing wife, the devolution of shebaitship has been directed to be in the line of heirs of the founder. There is no indication of any intention to treat the heirs as the objects of an independent gift. It may be noted that this identical point was raised before the Federal Court in Umayal Achi v. Lakshmi Achi [[1945] F.C.R. 1] with regard to the devolution of trust estates. The direction in the will in that case was that they should go to the heirs. It was held by Varadachariar J. that it was not reasonable to construe such words as words of gift and not of devolution.We do not think that the interpretation suggested by the learned counsel is the proper one. A proviso is normally an excepting or a qualifying clause and the effect of it is to except out of the preceding clause upon which it is engrafted something which but for the proviso would be within it. The word "heirs" cannot normally be limited to issue only. It must mean all persons who are entitled to the property of another under the law of inheritance. So far as the main provision is concerned there is nothing in the language or in the context to suggest that the word "heirs" has not been used in its ordinary or naturalour opinion, the clause that precedes the proviso lays down the general rule relating to devolution of shebaitship. The expression "heirs" has not been used in any restricted or limited sense and extends to all persons who are entitled to succeed under the law. The proviso engrafts an exception upon the general rule. What it does is to give a power to Mrityunjoy to appoint a shebait, who would come as such after his death in the contingency of his dying without any issue and without giving any authority to his wife to adopt a son. It may be noted that the word "issue" includes both son and daughter and the power of appointment cannot be exercised by Mrityunjoy even if he has a daughter living. The proviso thus qualifies the main provision to this extent that if the particular contingency that is mentioned here is fulfilled, Mrityunjoy would be entitled to appoint a shebait, although no such power can be deduced from the general clause. In case the contingency does happen but the wife is not given any power of adoption and no appointment is also made by Mrityunjoy, the consequence would certainly be that the other heirs of Mrityunjoy would succeed as shebaits and this is what is laid down in the concluding portion of the proviso. The expression "his heirs" at the end of the proviso would certainly mean heirs other than the son and daughter of Mrityunjoy. As Mrityunjoy actually left a son, the contingency contemplated by the proviso did not arise at all and in these circumstances the proviso is to be ignored altogether for purposes of construction and it is not proper to attempt to spell, out of it, by implication, something which is not only not in the main provisions but is contradictory to it. We think, therefore, that this contention of Mr. Banerjee also must fail.

### 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: document. It is to be noted that Mrityunjoy was the owner of the dedicated properties and the real founder of the endowment. The mother was associated with him in the act of dedication because it was she who consecrated and established the deity and was looking after its worship and service since it was installed. It was in the fitness of things therefore that Mrityunjoy should request his mother to become the first shebait and this is exactly what is recited in the indenture. After the death of Nitto Sundari, Mrityunjoy, the founder, himself, was to be the shebait and save and except the provision made in favour of Kiranbala, his existing wife, the devolution of shebaitship has been directed to be in the line of heirs of the founder. There is no indication of any intention to treat the heirs as the objects of an independent gift. It may be noted that this identical point was raised before the Federal Court in Umayal Achi v. Lakshmi Achi [[1945] F.C.R. 1] with regard to the devolution of trust estates. The direction in the will in that case was that they should go to the heirs. It was held by Varadachariar J. that it was not reasonable to construe such words as words of gift and not of devolution.26. On the question of construction Mr. Banerjees main argument is that if the relevant provisions of the indenture dealing with devolution of shebaitship are read as a whole, it will be manifest that the executants of the deed intended that the issue of Mrityunjoy were to have preference over other heirs in the matter of succession to shebaitship; and that an heir who is not an issue could not come in so long as an issue remained alive. The relevant portion of the document has been set out already and it provides in the first place that after the death of Nitto Sundari, her son, the said Mrityunjoy Mullick, shall become the shebait, after him his wife Smt. Kiranbala Dassi, and after her death, the heirs of the said Mrityunjoy Mullick shall be and act as shebaits. Then there is a proviso to the effect that if the said Mrityunjoy shall happen to die without any issue or without giving any authority to his wife, him surviving, to adopt, then in such case it shall be competent for Mrityunjoy to appoint by will or otherwise a shebait who would act as such after the death of the said wife; but in case the said Mrityunjoy Mullick shall happen to die without any issue, the shebaitship of the said Thakur after the death of his wife shall devolve upon his heirs under Hindu Law. Mr. Banerjee lays stress upon the proviso, particularly the last portion of it and it contains, according to him, a clear direction that it is only on the failure of issue that the heirs of Mrityunjoy can come in as shebaits. In order that the proviso may be reconciled with the clause that precedes it, Mr. Banerjee invites us to hold that the word "heirs" in the previous clause should be taken to mean only the issue of Mrityunjoy.27. We do not think that the interpretation suggested by the learned counsel is the proper one. A proviso is normally an excepting or a qualifying clause and the effect of it is to except out of the preceding clause upon which it is engrafted something which but for the proviso would be within it. The word "heirs" cannot normally be limited to issue only. It must mean all persons who are entitled to the property of another under the law of inheritance. So far as the main provision is concerned there is nothing in the language or in the context to suggest that the word "heirs" has not been used in its ordinary or natural sense. Mr. Banerjee argues that the proviso in that case would be wholly inexplicable whereas it is a sound canon of construction that all the parts of a document should be read together and no portion is to be omitted. In our opinion, the clause that precedes the proviso lays down the general rule relating to devolution of shebaitship. The expression "heirs" has not been used in any restricted or limited sense and extends to all persons who are entitled to succeed under the law. The proviso engrafts an exception upon the general rule. What it does is to give a power to Mrityunjoy to appoint a shebait, who would come as such after his death in the contingency of his dying without any issue and without giving any authority to his wife to adopt a son. It may be noted that the word "issue" includes both son and daughter and the power of appointment cannot be exercised by Mrityunjoy even if he has a daughter living. The proviso thus qualifies the main provision to this extent that if the particular contingency that is mentioned here is fulfilled, Mrityunjoy would be entitled to appoint a shebait, although no such power can be deduced from the general clause. In case the contingency does happen but the wife is not given any power of adoption and no appointment is also made by Mrityunjoy, the consequence would certainly be that the other heirs of Mrityunjoy would succeed as shebaits and this is what is laid down in the concluding portion of the proviso. The expression "his heirs" at the end of the proviso would certainly mean heirs other than the son and daughter of Mrityunjoy. As Mrityunjoy actually left a son, the contingency contemplated by the proviso did not arise at all and in these circumstances the proviso is to be ignored altogether for purposes of construction and it is not proper to attempt to spell, out of it, by implication, something which is not only not in the main provisions but is contradictory to it. We think, therefore, that this contention of Mr. Banerjee also must fail. ### Response: 1

Collector of Central Excise, Madras Vs. MRF Ltd

1. This appeal by the assessee is directed against the judgment and order of the Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench at Madras dated 24-9-1986 whereby the assessees claim for refund of excise duty on the differential between the price on the date of removal and the reduced price at which the tyres were sold on the direction of the Government, was rejected. The assessee contends that their price list was approved on 14-5-1983 but subsequent thereto on account of consumer resistance, the Ministry of Commerce, Government of India, directed them, pursuant to the decision taken at the meeting with tyre manufacturers, to roll back the prices to pre-14-5-1983 level and it is on account of this roll back of prices that there came about a differential in the price on the basis of which the assessee claimed refund of excise duty to that extent. The Tribunal came to the conclusion that under Rule 9-A and Rule 173-C(2)(vi) of the Central Excise Rules, the duty was chargeable on the excisable goods at the rate and on the price prevailing on the date of actual removal as shown by the assessee and the subsequent reduction in the price even at the behest of the Government could not create a right in favour of the assessee to refund of excise duty on the differential in the price. The Tribunal also came to the conclusion that the subsequent reduction in the price for whatever reason was totally irrelevant so far as the liability to pay excise duty was concerned and, therefore, the claim could not be entertained. On this broad premises, the claim of the assessee for refund came to be rejected and hence the assessee is before us by way of an appeal2. We have heard the learned counsel for the assessee. Once the assessee has cleared the goods on the classification and price indicated by him at the time of the removal of the goods from the factory gate, the assessee becomes liable to payment of duty on that date and time and subsequent reduction in prices for whatever reason cannot be a matter of concern to the Central Excise Department insofar as the liability to payment of excise duty was concerned. This is the view which was taken by the Tribunal in the case of Indo Hacks Ltd. v. CCE[(Trib)] and it seems to us that the Tribunals view that the duty is chargeable at the rate and price when the commodity is cleared at the factory gate and not on the price reduced at a subsequent date is unexceptionable. Besides as rightly observed by the Tribunal the subsequent fluctuation in the prices of the commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned. That being so, even if we assume that the roll back in the price of tyres manufactured by the appellant Company was occasioned on account of the directive issued by the Central Government, that by itself, without anything more, would not entitle the appellant to claim a refund on the price differential unless it is shown that there was some agreement in this behalf with the Government and the latter and agreed to refund the excise duty to the extent of the reduced price.

0[ds]2. We have heard the learned counsel for the assessee. Once the assessee has cleared the goods on the classification and price indicated by him at the time of the removal of the goods from the factory gate, the assessee becomes liable to payment of duty on that date and time and subsequent reduction in prices for whatever reason cannot be a matter of concern to the Central Excise Department insofar as the liability to payment of excise duty was concerned. This is the view which was taken by the Tribunal in the case of Indo Hacks Ltd. v. CCE[(Trib)] and it seems to us that the Tribunals view that the duty is chargeable at the rate and price when the commodity is cleared at the factory gate and not on the price reduced at a subsequent date is unexceptionable. Besides as rightly observed by the Tribunal the subsequent fluctuation in the prices of the commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned. That being so, even if we assume that the roll back in the price of tyres manufactured by the appellant Company was occasioned on account of the directive issued by the Central Government, that by itself, without anything more, would not entitle the appellant to claim a refund on the price differential unless it is shown that there was some agreement in this behalf with the Government and the latter and agreed to refund the excise duty to the extent of the reduced price.

### 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: 1. This appeal by the assessee is directed against the judgment and order of the Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench at Madras dated 24-9-1986 whereby the assessees claim for refund of excise duty on the differential between the price on the date of removal and the reduced price at which the tyres were sold on the direction of the Government, was rejected. The assessee contends that their price list was approved on 14-5-1983 but subsequent thereto on account of consumer resistance, the Ministry of Commerce, Government of India, directed them, pursuant to the decision taken at the meeting with tyre manufacturers, to roll back the prices to pre-14-5-1983 level and it is on account of this roll back of prices that there came about a differential in the price on the basis of which the assessee claimed refund of excise duty to that extent. The Tribunal came to the conclusion that under Rule 9-A and Rule 173-C(2)(vi) of the Central Excise Rules, the duty was chargeable on the excisable goods at the rate and on the price prevailing on the date of actual removal as shown by the assessee and the subsequent reduction in the price even at the behest of the Government could not create a right in favour of the assessee to refund of excise duty on the differential in the price. The Tribunal also came to the conclusion that the subsequent reduction in the price for whatever reason was totally irrelevant so far as the liability to pay excise duty was concerned and, therefore, the claim could not be entertained. On this broad premises, the claim of the assessee for refund came to be rejected and hence the assessee is before us by way of an appeal2. We have heard the learned counsel for the assessee. Once the assessee has cleared the goods on the classification and price indicated by him at the time of the removal of the goods from the factory gate, the assessee becomes liable to payment of duty on that date and time and subsequent reduction in prices for whatever reason cannot be a matter of concern to the Central Excise Department insofar as the liability to payment of excise duty was concerned. This is the view which was taken by the Tribunal in the case of Indo Hacks Ltd. v. CCE[(Trib)] and it seems to us that the Tribunals view that the duty is chargeable at the rate and price when the commodity is cleared at the factory gate and not on the price reduced at a subsequent date is unexceptionable. Besides as rightly observed by the Tribunal the subsequent fluctuation in the prices of the commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned. That being so, even if we assume that the roll back in the price of tyres manufactured by the appellant Company was occasioned on account of the directive issued by the Central Government, that by itself, without anything more, would not entitle the appellant to claim a refund on the price differential unless it is shown that there was some agreement in this behalf with the Government and the latter and agreed to refund the excise duty to the extent of the reduced price. ### Response: 0

Brace Transport Corporation of Monrovia, Bermuda Vs. Orient Middle East Lines Limited, Saudi Arabia & Others

enforcement will not be chosen by or on behalf of the parties. It will depend upon the circumstances of each particular case.So far as recognition of an international award is concerned, the successful party only needs to seek recognition if proceedings are brought against him in respect of a matter which has already been dealt with and made the subject of an award. The party who is sued will then wish to rely on the award by way of defence, or set off, or in some other way in the Court proceedings. For this purpose, he will ask the Court concerned to recognise the award as binding on the persons between whom it was made. It is impossible to know in what Court or in what country such proceedings are likely to be brought, and this fact emphasises once again how important it is that international awards should be truly inter?national in their validity and effect.Where it becomes necessary to enforce an international award, the position is different. The first step is to determine the country or countries in which enforcement is to be sought. In order to reach this decision, the party seeking enforcement needs to locate the State or States in which the losing party has (or is likely to have) assets available to meet the award.12. Now Section 5(1) of the said Act says that any person interested in a foreign award may apply to any Court having jurisdiction over the subject matter of the award that the award be filed in Court. Dr. Ghosh learned Counsel for the appellant submitted that the said vessel was within the jurisdiction of the Bhavnagar Court and the Bhavnagar Court had, therefore, jurisdiction to take the award on file. The jurisdiction paragraph of the application to the Bhavnagar Court reads thus:The petitioners submit that the respondent Nos. 1 and or 2 have no assets whatsoever with the jurisdiction of this Honble Court or elsewhere in India. The only assets which is available within the jurisdiction of this Honble Court is the said vessel, ?SAUDI CLOUD.? The petitioners submit that the respondent Nos. 1 and/or 2 and/or 3. With intent to delay obstruct and defeat the execution of any decree that may be passed in this petition against them have sold the said vessel ?SAUDI CLOUD.? The petitioners further submit that they have a maritime lien on the said vessel ?SAUDI CLOUD? and the respondent Nos.1 and/or 2 and/or submit that it is just necessary and in the interest of justice that this Honble Court be pleased to order attachment before judgment of the vessel ?SAUDI CLOUD? at present lying in port Alang in the district of Bhavnagar, Gujarat.The said vessel having been sold to the 3rd and 4th respondents it is no more an asset of the 1st or 2nd respondents and the award cannot be executed there against, which is why the appellants claim in the application to have a maritime lien. But the Bhavnagar Court has, admittedly, no jurisdiction to enforce a maritime lien, assuming it to exist.13. It was then submitted by Mr. Ghosh that the subject-matter of the award was money and the 1st and 2nd respondents had money in the jurisdiction of the Bhavnagar Court in the form of part of the purchase price of the said vessel payable to them by the 3rd and 4th respondents.14. This being an award for money its subject matter may be said to be money, just as the subject-matter of a money-decree may be said to be money.15. The appellants application to the Bhavnagar Court stated, as reproduced above, that the first and second respondents had no assets within the jurisdiction of the Bhavnagar Court or elsewhere in India. However, having regard to the object of the said Act, note may be taken of events that have transpired subsequently. The case of the 4th respondent before the Bhavnagar Court was that it had paid over the full purchase price of the said vessel to the 3rd respondent. Thereupon the Bhavnagar Court injuncted the 3rd respondent from paying the amount of Rs. 6,40,000 to the 1st and 2nd respondents and permitted the 4th respondent to break the said vessel. When this Court called upon the 3rd and the 4th respon?dents to deposit the amount of Rs. 6,40,000 in its Registry, it was as we find from the record, the 3rd respondent which made the deposit. The deposit was made without protest and the 3rd respondent has not appeared before this Court to contend that the amount of Rs. 6,40,000 was not due to the 1st and 2nd respondents as part of the purchase price of the said vessel. It can, therefore, be said that the 3rd respondent was holding monies, in the amount of Rs. 6,40,000, of the 1st and 2nd respondents.16. The 3rd respondent as the cause title shows, is a Government company that has its registered office at Calcutta and a regional office at Bombay. It is not known where the 3rd respondent held the said amount of Rs. 6,40,000.17. It is now for the appellant to ascertain where the monies were so held and, if they were held within the jurisdiction of the Bhavnagar Court, to apply for an amendment of the jurisdiction paragraph of its application to the Bhavnagar Court accordingly. The Bhavnagar Court would then, after notice to the parties, consider whether or not the amendment should be allowed. It would, ordinarily having regard to the object of the said Act and the fact that these events have transpired after the application to it was filed, allow the amendment. Thereafter, it would determine whether the averment in the amendment is correct. In the event that it came to the conclusion that the 1st and 2nd respondents had monies within its jurisdiction, it could be said to have jurisdiction to take the award on file under Section 5 of the said Act and it would proceed thereafter under the subsequent provisions of the said Act.

1[ds]11. Before we deal with the facts of the case before us, a statement of some broad principles is necessary. The New York Convention speaks of ?recognition and enforcement? of an award. An award may be recognised, without being enforced; but if it is enforced, then it is necessarily recognised. Recognition alone may be asked for as a shield againstof issues with which the award deals. Where a Court is asked to enforce an award, it must recognise not only the legal effect of the award but must use legal sanctions to ensure that it is carried out. In the Law and Practice of International Commercial Arbitration by Redfern and Hunter (1986 edition) it is said (at pages 337 and 338):A party seeking to enforce an award in an international commercial arbitration may have a choice of country in which to do so; as it is sometimes expressed, the party may be able to go forum shopping. This depends upon the location of the assets of losing party. Since the purpose of enforcement proceedings is to try to ensure compliance with an award by the legal attachment or seizure of the defaulting partys assets, legal proceedings of some kind are necessary to obtain little to the assets seized or their proceeds of sale. These legal proceedings must be taken in the State or States in which the property or other assets of the losing party are located.X xx xIn other words, the place of arbitration will have been chosen as a neutral forum. It will be rare for the parties to have assets situated within this neutral country; and the award if it has to be enforced, must generally be enforced in a country other than that in which it was made. This is why it is so important that international awards should be recognisable and enforceable internationally, and not merely in the country in which they are made; moreover, unlike the place of arbitration, the place of recognition and enforcement will not be chosen by or on behalf of the parties. It will depend upon the circumstances of each particular case.So far as recognition of an international award is concerned, the successful party only needs to seek recognition if proceedings are brought against him in respect of a matter which has already been dealt with and made the subject of an award. The party who is sued will then wish to rely on the award by way of defence, or set off, or in some other way in the Court proceedings. For this purpose, he will ask the Court concerned to recognise the award as binding on the persons between whom it was made. It is impossible to know in what Court or in what country such proceedings are likely to be brought, and this fact emphasises once again how important it is that international awards should be trulyin their validity and effect.Where it becomes necessary to enforce an international award, the position is different. The first step is to determine the country or countries in which enforcement is to be sought. In order to reach this decision, the party seeking enforcement needs to locate the State or States in which the losing party has (or is likely to have) assets available to meet the award.12. Now Section 5(1) of the said Act says that any person interested in a foreign award may apply to any Court having jurisdiction over the subject matter of the award that the award be filed in Court. Dr. Ghosh learned Counsel for the appellant submitted that the said vessel was within the jurisdiction of the Bhavnagar Court and the Bhavnagar Court had, therefore, jurisdiction to take the award on file. The jurisdiction paragraph of the application to the Bhavnagar Court reads thus:The petitioners submit that the respondent Nos. 1 and or 2 have no assets whatsoever with the jurisdiction of this Honble Court or elsewhere in India. The only assets which is available within the jurisdiction of this Honble Court is the said vessel, ?SAUDI CLOUD.? The petitioners submit that the respondent Nos. 1 and/or 2 and/or 3. With intent to delay obstruct and defeat the execution of any decree that may be passed in this petition against them have sold the said vessel ?SAUDI CLOUD.? The petitioners further submit that they have a maritime lien on the said vessel ?SAUDI CLOUD? and the respondent Nos.1 and/or 2 and/or submit that it is just necessary and in the interest of justice that this Honble Court be pleased to order attachment before judgment of the vessel ?SAUDI CLOUD? at present lying in port Alang in the district of Bhavnagar, Gujarat.The said vessel having been sold to the 3rd and 4th respondents it is no more an asset of the 1st or 2nd respondents and the award cannot be executed there against, which is why the appellants claim in the application to have a maritime lien. But the Bhavnagar Court has, admittedly, no jurisdiction to enforce a maritime lien, assuming it to exist.13. It was then submitted by Mr. Ghosh that theof the award was money and the 1st and 2nd respondents had money in the jurisdiction of the Bhavnagar Court in the form of part of the purchase price of the said vessel payable to them by the 3rd and 4th respondents.14. This being an award for money its subject matter may be said to be money, just as theree may be said to be money.15. The appellants application to the Bhavnagar Court stated, as reproduced above, that the first and second respondents had no assets within the jurisdiction of the Bhavnagar Court or elsewhere in India. However, having regard to the object of the said Act, note may be taken of events that have transpired subsequently. The case of the 4th respondent before the Bhavnagar Court was that it had paid over the full purchase price of the said vessel to the 3rd respondent. Thereupon the Bhavnagar Court injuncted the 3rd respondent from paying the amount of Rs. 6,40,000 to the 1st and 2nd respondents and permitted the 4th respondent to break the said vessel. When this Court called upon the 3rd and the 4thto deposit the amount of Rs. 6,40,000 in its Registry, it was as we find from the record, the 3rd respondent which made the deposit. The deposit was made without protest and the 3rd respondent has not appeared before this Court to contend that the amount of Rs. 6,40,000 was not due to the 1st and 2nd respondents as part of the purchase price of the said vessel. It can, therefore, be said that the 3rd respondent was holding monies, in the amount of Rs. 6,40,000, of the 1st and 2nd respondents.16. The 3rd respondent as the cause title shows, is a Government company that has its registered office at Calcutta and a regional office at Bombay. It is not known where the 3rd respondent held the said amount of Rs. 6,40,000.17. It is now for the appellant to ascertain where the monies were so held and, if they were held within the jurisdiction of the Bhavnagar Court, to apply for an amendment of the jurisdiction paragraph of its application to the Bhavnagar Court accordingly. The Bhavnagar Court would then, after notice to the parties, consider whether or not the amendment should be allowed. It would, ordinarily having regard to the object of the said Act and the fact that these events have transpired after the application to it was filed, allow the amendment. Thereafter, it would determine whether the averment in the amendment is correct. In the event that it came to the conclusion that the 1st and 2nd respondents had monies within its jurisdiction, it could be said to have jurisdiction to take the award on file under Section 5 of the said Act and it would proceed thereafter under the subsequent provisions of the said 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: enforcement will not be chosen by or on behalf of the parties. It will depend upon the circumstances of each particular case.So far as recognition of an international award is concerned, the successful party only needs to seek recognition if proceedings are brought against him in respect of a matter which has already been dealt with and made the subject of an award. The party who is sued will then wish to rely on the award by way of defence, or set off, or in some other way in the Court proceedings. For this purpose, he will ask the Court concerned to recognise the award as binding on the persons between whom it was made. It is impossible to know in what Court or in what country such proceedings are likely to be brought, and this fact emphasises once again how important it is that international awards should be truly inter?national in their validity and effect.Where it becomes necessary to enforce an international award, the position is different. The first step is to determine the country or countries in which enforcement is to be sought. In order to reach this decision, the party seeking enforcement needs to locate the State or States in which the losing party has (or is likely to have) assets available to meet the award.12. Now Section 5(1) of the said Act says that any person interested in a foreign award may apply to any Court having jurisdiction over the subject matter of the award that the award be filed in Court. Dr. Ghosh learned Counsel for the appellant submitted that the said vessel was within the jurisdiction of the Bhavnagar Court and the Bhavnagar Court had, therefore, jurisdiction to take the award on file. The jurisdiction paragraph of the application to the Bhavnagar Court reads thus:The petitioners submit that the respondent Nos. 1 and or 2 have no assets whatsoever with the jurisdiction of this Honble Court or elsewhere in India. The only assets which is available within the jurisdiction of this Honble Court is the said vessel, ?SAUDI CLOUD.? The petitioners submit that the respondent Nos. 1 and/or 2 and/or 3. With intent to delay obstruct and defeat the execution of any decree that may be passed in this petition against them have sold the said vessel ?SAUDI CLOUD.? The petitioners further submit that they have a maritime lien on the said vessel ?SAUDI CLOUD? and the respondent Nos.1 and/or 2 and/or submit that it is just necessary and in the interest of justice that this Honble Court be pleased to order attachment before judgment of the vessel ?SAUDI CLOUD? at present lying in port Alang in the district of Bhavnagar, Gujarat.The said vessel having been sold to the 3rd and 4th respondents it is no more an asset of the 1st or 2nd respondents and the award cannot be executed there against, which is why the appellants claim in the application to have a maritime lien. But the Bhavnagar Court has, admittedly, no jurisdiction to enforce a maritime lien, assuming it to exist.13. It was then submitted by Mr. Ghosh that the subject-matter of the award was money and the 1st and 2nd respondents had money in the jurisdiction of the Bhavnagar Court in the form of part of the purchase price of the said vessel payable to them by the 3rd and 4th respondents.14. This being an award for money its subject matter may be said to be money, just as the subject-matter of a money-decree may be said to be money.15. The appellants application to the Bhavnagar Court stated, as reproduced above, that the first and second respondents had no assets within the jurisdiction of the Bhavnagar Court or elsewhere in India. However, having regard to the object of the said Act, note may be taken of events that have transpired subsequently. The case of the 4th respondent before the Bhavnagar Court was that it had paid over the full purchase price of the said vessel to the 3rd respondent. Thereupon the Bhavnagar Court injuncted the 3rd respondent from paying the amount of Rs. 6,40,000 to the 1st and 2nd respondents and permitted the 4th respondent to break the said vessel. When this Court called upon the 3rd and the 4th respon?dents to deposit the amount of Rs. 6,40,000 in its Registry, it was as we find from the record, the 3rd respondent which made the deposit. The deposit was made without protest and the 3rd respondent has not appeared before this Court to contend that the amount of Rs. 6,40,000 was not due to the 1st and 2nd respondents as part of the purchase price of the said vessel. It can, therefore, be said that the 3rd respondent was holding monies, in the amount of Rs. 6,40,000, of the 1st and 2nd respondents.16. The 3rd respondent as the cause title shows, is a Government company that has its registered office at Calcutta and a regional office at Bombay. It is not known where the 3rd respondent held the said amount of Rs. 6,40,000.17. It is now for the appellant to ascertain where the monies were so held and, if they were held within the jurisdiction of the Bhavnagar Court, to apply for an amendment of the jurisdiction paragraph of its application to the Bhavnagar Court accordingly. The Bhavnagar Court would then, after notice to the parties, consider whether or not the amendment should be allowed. It would, ordinarily having regard to the object of the said Act and the fact that these events have transpired after the application to it was filed, allow the amendment. Thereafter, it would determine whether the averment in the amendment is correct. In the event that it came to the conclusion that the 1st and 2nd respondents had monies within its jurisdiction, it could be said to have jurisdiction to take the award on file under Section 5 of the said Act and it would proceed thereafter under the subsequent provisions of the said Act. ### Response: 1

State of Kerala Vs. Messrs Madras Rubber Factory Limited & Others

be followed for the realisation of the statutory dues. It is in this context that sub-section (2) enables the framing of the rules whereby the duty instead of being realised from the producer is realised at a latter stage, namely, from the manufacturer. Once the liability of payment of cess has got attached to the rubber when manufactured and that duty is ultimately paid by the end user, namely, the manufacturer, it would be implicit that t he element of the cess payable would be one of the factors in determining the price payable in respect thereof. The aforesaid analysis is also supported by a recent decision of this Court in the case of Mohan Breweries a Distilleries Ltd. Vs. Com missioner Tax Officer, Madras and Ors. In that case liquor was manufactured by the appellant. According of Section 18 B of the Tamil Nadu prohibition Act, 1937 excise duty at a specified rate was leviable on all excisable items manufactured under any licence granted under the Act. Section 18 C provided that the excise duty under Section 18B could be paid in one or more of the ways provided under Section 18C. Rule 22 of the TNIMFL Rules, 1981 provided that the excise duty shall be paid by the person who removes the goods from a manufactory. Sub-rule (2) of Rule 22 further provided that a vend fee of rupees two per bulk litre shall be paid by the licensee on all stocks of Indian-made Foreign Spirit issued from the manufacturer. Rule 15 (1) of the Tamil Nadu Indian-made Foreign Spirits (supply by wholesale) Rules, 1981 required the licensee, namely, the wholesaler to pay the excise duty on removal of the stock by him. The contention which was raised by the manufacturer was that in view of the provisions of the Act and the said Rules, the liability to pay the excise duty lay not upon the manufacturer but upon the wholesaler, who was the licensee who was required to pay under the aforesaid Rule 15 (1) of the Tamil Nadu Indian- made Foreign Spirits (supply by wholesale) Rules, 1981. In this connection it was submitted that the manufacturer neither collected the excise duty from the wholesaler nor had they statutory or contractual authority to realise the same from it and, therefore, the manufacturers were not liable to pay sales tax on the excise duty which was neither part of the sale price nor a consideration for the sale Repelling this contention it was held that excise duty was levied upon the goods manufactured, though its collection may be deferred to such latter stage as was administratively or otherwise most convenient. After referring to as case in Union of India Vs. Bombay Tyre International Ltd. and Ors., it was observed that the method of collection did not affect the essence of duty but only related to the machinery of collection for administrative convenience. Dealing with Rule 22 and its effect, it was observed tha t "as we look at it, the primary obligations to pay excise duty on the IMFL is of the manufacturer thereof. Rule 22 only provides for a convenient method for its collection. When the excise duty is collected from a party removing the IMFL from the factory its producer, other than the manufacturer, the payment of excise duty is in discharge of the obligation of the manufacturer. That party does not, as it would ordinarily do, pay the excise duty component along with the sale price of the IM FL it purchases from the manufacturer; it pays the sale price to the manufacturer and it pays the excise duty into the Treasury for and on behalf of the manufacturer. In effect, therefore, the element of excise duty does enter into the turnover of the manufacturer just as much as it would ordinarily do. The definition of "turnover" in Section 2 (r) of the Sales Tax Act, referring as it does to "the aggregate amount for which goods ar bought of sold" and "whether for case or ...other valuable consideration", is wide enough to cover such excise duty. That the excise duty does not physically enter the manufacturers till is, as held in the second Mc Dowell case, not the decisive test for determining whether or not it would be a part of the manufacturers turnover." * In our opinion the aforesaid decision is clearly applicable to the present case. Like the Mohan Brewerles case the excise duty under Section 12 (1) is levied on the production or manufacture of r ubber at the rate specified thereunder. it is only by Rule 33 (1) similar to Rule 22 of TNIMFL that the cess had to be paid at a stage subsequent to the production. Merely because for the sake of convenience the excise duty, which would essentially b e payable at the time of production of rubber is realised at a latter point of time it cannot mean that the excise duty, in the form of cess, was not part of the sales turnover of the producer and correspondingly, be the purchase turnover of the purch aser of rubber.In our opinion, therefore, the incidence of duty is directly relatable to the production of rubber. The character of levy is not altered merely because the payment of duty is deferred till the purchase of the rubber by the manufacturer, The character of levy is on the production of the rubber and the duty paid should, therefore, be deemed to be part of the price that the producer had paid for the goods purchased. Neither a provision for deferred payment nor the liability case on the manufacturer of rubber goods for payment of the duty to facilitate easy collection, can alter the duty as being one on the production of rubber as provided by Section 12 (1) of the Rubber Act and such duty even though paid lat er, will be a part of the price of goods purchased and would, therefore, form part of the producers turnover.

1[ds]In our opinion the aforesaid decision is clearly applicable to the present case. Like the Mohan Brewerles case the excise duty under Section 12 (1) is levied on the production or manufacture of r ubber at the rate specified thereunder. it is only by Rule 33 (1) similar to Rule 22 of TNIMFL that the cess had to be paid at a stage subsequent to the production. Merely because for the sake of convenience the excise duty, which would essentially b e payable at the time of production of rubber is realised at a latter point of time it cannot mean that the excise duty, in the form of cess, was not part of the sales turnover of the producer and correspondingly, be the purchase turnover of the purch aser of rubber.In our opinion, therefore, the incidence of duty is directly relatable to the production of rubber. The character of levy is not altered merely because the payment of duty is deferred till the purchase of the rubber by the manufacturer, The character of levy is on the production of the rubber and the duty paid should, therefore, be deemed to be part of the price that the producer had paid for the goods purchased. Neither a provision for deferred payment nor the liability case on the manufacturer of rubber goods for payment of the duty to facilitate easy collection, can alter the duty as being one on the production of rubber as provided by Section 12 (1) of the Rubber Act and such duty even though paid lat er, will be a part of the price of goods purchased and would, therefore, form part of the producersaforesaid analysis is also supported by a recent decision of this Court in the case of Mohan Breweries a Distilleries Ltd. Vs. Com missioner Tax Officer, Madras and Ors. In that case liquor was manufactured by the appellant. According of Section 18 B of the Tamil Nadu prohibition Act, 1937 excise duty at a specified rate was leviable on all excisable items manufactured under any licence granted under the Act. Section 18 C provided that the excise duty under Section 18B could be paid in one or more of the ways provided under Section 18C. Rule 22 of the TNIMFL Rules, 1981 provided that the excise duty shall be paid by the person who removes the goods from a manufactory.(2) of Rule 22 further provided that a vend fee of rupees two per bulk litre shall be paid by the licensee on all stocks ofForeign Spirit issued from the manufacturer. Rule 15 (1) of the Tamil NaduForeign Spirits (supply by wholesale) Rules, 1981 required the licensee, namely, the wholesaler to pay the excise duty on removal of the stock by him. The contention which was raised by the manufacturer was that in view of the provisions of the Act and the said Rules, the liability to pay the excise duty lay not upon the manufacturer but upon the wholesaler, who was the licensee who was required to pay under the aforesaid Rule 15 (1) of the Tamil Nadu Indianmade Foreign Spirits (supply by wholesale) Rules, 1981. In this connection it was submitted that the manufacturer neither collected the excise duty from the wholesaler nor had they statutory or contractual authority to realise the same from it and, therefore, the manufacturers were not liable to pay sales tax on the excise duty which was neither part of the sale price nor a consideration for the sale Repelling this contention it was held that excise duty was levied upon the goods manufactured, though its collection may be deferred to such latter stage as was administratively or otherwise most convenient. After referring to as case in Union of India Vs. Bombay Tyre International Ltd. and Ors., it was observed that the method of collection did not affect the essence of duty but only related to the machinery of collection for administrative convenience. Dealing with Rule 22 and its effect, it was observed tha t "as we look at it, the primary obligations to pay excise duty on the IMFL is of the manufacturer thereof. Rule 22 only provides for a convenient method for its collection. When the excise duty is collected from a party removing the IMFL from the factory its producer, other than the manufacturer, the payment of excise duty is in discharge of the obligation of the manufacturer. That party does not, as it would ordinarily do, pay the excise duty component along with the sale price of the IM FL it purchases from the manufacturer; it pays the sale price to the manufacturer and it pays the excise duty into the Treasury for and on behalf of the manufacturer. In effect, therefore, the element of excise duty does enter into the turnover of the manufacturer just as much as it would ordinarily do. The definition of "turnover" in Section 2 (r) of the Sales Tax Act, referring as it does to "the aggregate amount for which goods ar bought of sold" and "whether for case or ...other valuable consideration", is wide enough to cover such excise duty. That the excise duty does not physically enter the manufacturers till is, as held in the second Mc Dowell case, not the decisive test for determining whether or not it would be a part of the manufacturers turnover."

### Instruction: Assess the case proceedings and provide a prediction: is the court likely to rule in favor of (1) or against (0) the appellant/petitioner? ### Input: be followed for the realisation of the statutory dues. It is in this context that sub-section (2) enables the framing of the rules whereby the duty instead of being realised from the producer is realised at a latter stage, namely, from the manufacturer. Once the liability of payment of cess has got attached to the rubber when manufactured and that duty is ultimately paid by the end user, namely, the manufacturer, it would be implicit that t he element of the cess payable would be one of the factors in determining the price payable in respect thereof. The aforesaid analysis is also supported by a recent decision of this Court in the case of Mohan Breweries a Distilleries Ltd. Vs. Com missioner Tax Officer, Madras and Ors. In that case liquor was manufactured by the appellant. According of Section 18 B of the Tamil Nadu prohibition Act, 1937 excise duty at a specified rate was leviable on all excisable items manufactured under any licence granted under the Act. Section 18 C provided that the excise duty under Section 18B could be paid in one or more of the ways provided under Section 18C. Rule 22 of the TNIMFL Rules, 1981 provided that the excise duty shall be paid by the person who removes the goods from a manufactory. Sub-rule (2) of Rule 22 further provided that a vend fee of rupees two per bulk litre shall be paid by the licensee on all stocks of Indian-made Foreign Spirit issued from the manufacturer. Rule 15 (1) of the Tamil Nadu Indian-made Foreign Spirits (supply by wholesale) Rules, 1981 required the licensee, namely, the wholesaler to pay the excise duty on removal of the stock by him. The contention which was raised by the manufacturer was that in view of the provisions of the Act and the said Rules, the liability to pay the excise duty lay not upon the manufacturer but upon the wholesaler, who was the licensee who was required to pay under the aforesaid Rule 15 (1) of the Tamil Nadu Indian- made Foreign Spirits (supply by wholesale) Rules, 1981. In this connection it was submitted that the manufacturer neither collected the excise duty from the wholesaler nor had they statutory or contractual authority to realise the same from it and, therefore, the manufacturers were not liable to pay sales tax on the excise duty which was neither part of the sale price nor a consideration for the sale Repelling this contention it was held that excise duty was levied upon the goods manufactured, though its collection may be deferred to such latter stage as was administratively or otherwise most convenient. After referring to as case in Union of India Vs. Bombay Tyre International Ltd. and Ors., it was observed that the method of collection did not affect the essence of duty but only related to the machinery of collection for administrative convenience. Dealing with Rule 22 and its effect, it was observed tha t "as we look at it, the primary obligations to pay excise duty on the IMFL is of the manufacturer thereof. Rule 22 only provides for a convenient method for its collection. When the excise duty is collected from a party removing the IMFL from the factory its producer, other than the manufacturer, the payment of excise duty is in discharge of the obligation of the manufacturer. That party does not, as it would ordinarily do, pay the excise duty component along with the sale price of the IM FL it purchases from the manufacturer; it pays the sale price to the manufacturer and it pays the excise duty into the Treasury for and on behalf of the manufacturer. In effect, therefore, the element of excise duty does enter into the turnover of the manufacturer just as much as it would ordinarily do. The definition of "turnover" in Section 2 (r) of the Sales Tax Act, referring as it does to "the aggregate amount for which goods ar bought of sold" and "whether for case or ...other valuable consideration", is wide enough to cover such excise duty. That the excise duty does not physically enter the manufacturers till is, as held in the second Mc Dowell case, not the decisive test for determining whether or not it would be a part of the manufacturers turnover." * In our opinion the aforesaid decision is clearly applicable to the present case. Like the Mohan Brewerles case the excise duty under Section 12 (1) is levied on the production or manufacture of r ubber at the rate specified thereunder. it is only by Rule 33 (1) similar to Rule 22 of TNIMFL that the cess had to be paid at a stage subsequent to the production. Merely because for the sake of convenience the excise duty, which would essentially b e payable at the time of production of rubber is realised at a latter point of time it cannot mean that the excise duty, in the form of cess, was not part of the sales turnover of the producer and correspondingly, be the purchase turnover of the purch aser of rubber.In our opinion, therefore, the incidence of duty is directly relatable to the production of rubber. The character of levy is not altered merely because the payment of duty is deferred till the purchase of the rubber by the manufacturer, The character of levy is on the production of the rubber and the duty paid should, therefore, be deemed to be part of the price that the producer had paid for the goods purchased. Neither a provision for deferred payment nor the liability case on the manufacturer of rubber goods for payment of the duty to facilitate easy collection, can alter the duty as being one on the production of rubber as provided by Section 12 (1) of the Rubber Act and such duty even though paid lat er, will be a part of the price of goods purchased and would, therefore, form part of the producers turnover. ### Response: 1

State of Punjab & Another Vs. M.L. Puri

Alagiriswami, J.1. The appeal before it was disposed of by the Punjab and Haryana High Court solely on the ground that the sanction to prosecute the respondent was not given by the Governor. Since then this Court has decided in Shamsher Singhs case (19741 2 SCC 831= (AIR 1974 SC 2192 ) that the Governor need not look into any matter personally if the Rules of Business made under Article 166 empower any officer of the Government to deal with the matter. All the same Mr. Sanghi appearing on behalf of the respondent urges that the question whether there was a valid sanction to prosecute the respondent should be gone into by this Court. He urges that during the period when the sanction was given the Haryana State was under Presidents rule and therefore Art, 166 was not in force and the Governor himself would have had to see the case and sanction it, On the other hand it is stated on behalf of the appellants that this case had been seen by the Chief Minister earlier and he had sanctioned the prosecution and all that remained was a formal order embodying that decision and it was that order which had been signed by the Chief Secretary during the period when Haryana was under Presidents rule. There are, however no materials on record to show whether the Chief Minister had seen it because on the earlier occasion when the question of the validity of the sanction was at issue, the matter was decided purely on the basis that the Governor had not seen it. In view of the decision in Shamsher Singhs case (supra), validity of the sanction will have to be decided both on the basis whether the Chief Minister had seen the case as also on the basis whether the Chief Secretary could be said to have made the sanction order. We say nothing as to whether the prosecution would be entitled to let in any fresh evidence as to whether the Chief Minister had sanctioned the prosecution originally. We therefore consider it proper that the High Court should consider all these matters and also deal with the case on merits and dispose of it afresh. There are three appeals before this Court: one by the Government of Punjab and the other by the Government of Haryana against the Judgment of the High Court holding that there was no valid sanction. There is also an appeal by the Haryana Government against the order of the High Court holding that the Haryana Government was not entitled to a certificate. In the view we are taking we do not "think it necessary to decide that appeal.

0[ds]In view of the decision in Shamsher Singhs case (supra), validity of the sanction will have to be decided both on the basis whether the Chief Minister had seen the case as also on the basis whether the Chief Secretary could be said to have made the sanction order. We say nothing as to whether the prosecution would be entitled to let in any fresh evidence as to whether the Chief Minister had sanctioned the prosecution originally. We therefore consider it proper that the High Court should consider all these matters and also deal with the case on merits and dispose of it afresh. There are three appeals before this Court: one by the Government of Punjab and the other by the Government of Haryana against the Judgment of the High Court holding that there was no valid sanction. There is also an appeal by the Haryana Government against the order of the High Court holding that the Haryana Government was not entitled to a certificate. In the view we are taking we do not "think it necessary to decide that 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: Alagiriswami, J.1. The appeal before it was disposed of by the Punjab and Haryana High Court solely on the ground that the sanction to prosecute the respondent was not given by the Governor. Since then this Court has decided in Shamsher Singhs case (19741 2 SCC 831= (AIR 1974 SC 2192 ) that the Governor need not look into any matter personally if the Rules of Business made under Article 166 empower any officer of the Government to deal with the matter. All the same Mr. Sanghi appearing on behalf of the respondent urges that the question whether there was a valid sanction to prosecute the respondent should be gone into by this Court. He urges that during the period when the sanction was given the Haryana State was under Presidents rule and therefore Art, 166 was not in force and the Governor himself would have had to see the case and sanction it, On the other hand it is stated on behalf of the appellants that this case had been seen by the Chief Minister earlier and he had sanctioned the prosecution and all that remained was a formal order embodying that decision and it was that order which had been signed by the Chief Secretary during the period when Haryana was under Presidents rule. There are, however no materials on record to show whether the Chief Minister had seen it because on the earlier occasion when the question of the validity of the sanction was at issue, the matter was decided purely on the basis that the Governor had not seen it. In view of the decision in Shamsher Singhs case (supra), validity of the sanction will have to be decided both on the basis whether the Chief Minister had seen the case as also on the basis whether the Chief Secretary could be said to have made the sanction order. We say nothing as to whether the prosecution would be entitled to let in any fresh evidence as to whether the Chief Minister had sanctioned the prosecution originally. We therefore consider it proper that the High Court should consider all these matters and also deal with the case on merits and dispose of it afresh. There are three appeals before this Court: one by the Government of Punjab and the other by the Government of Haryana against the Judgment of the High Court holding that there was no valid sanction. There is also an appeal by the Haryana Government against the order of the High Court holding that the Haryana Government was not entitled to a certificate. In the view we are taking we do not "think it necessary to decide that appeal. ### Response: 0

Arun Kumar Ghosh Vs. State of West Bengal

for detention was vague, in that, it contained numerous, alleged acts, including some which would not fall within clause (d) of Section 3(2), that those which did not fall within that clause would be extraneous and irrelevant and that their inclusion in that ground vitiated the impugned order. It was urged that volunteering to become a member of the Action Squad of the party and resolving or deciding to prevent the mid-term election from being held, particularly in Shibpur area, were matters which did not strictly fall under clause (d), and that their inclusion in ground No. (1) along with matters which did fall under that clause was fatal to the detention order in the sense that it would be impossible to say on which part of the petitioners activities, whether on relevant or irrelevant activities, the District Magistrates satisfaction was arrived at. 5. In support of this contention, counsel sought assistance from the decision of this Court in Dwarka Das Bhatia v. State of Jammu and Kashmir (1956 SCR 948 : AIR 1957 SC 164 : 1957 Cr LJ 316). That was a case under the Jammu and Kashmir Preventive Detention Act, 2011, under which a detention order was made against the petitioner therein on the ground that his detection became necessary with a view to prevent him acting in a manner prejudicial to the maintenance of supplies and services essential to the community and was based on alleged smuggling by him to Pakistan of certain essential goods, such as shaffon cloth, zari and mercury. Shaffon cloth and zari were, however, not essential goods, and as regards mercury, which was essential goods, it was not established that the smuggling as regards attributed to the petitioner consisted substantially of mercury only or that smuggling as reads shaffon cloth and zari was inconsequential. On these facts, the detention order was set aside on the ground that the subjective satisfaction of the detaining authority must be properly based on all the reasons on which it purports to be based. If some, out of those reasons, were found to be non-existent or irrelevant, the Court could not predicate what the subjective satisfaction of the authority would have been on the exclusion of those reasons. To uphold the order on the remaining reasons would be to substitute the objective standards of the Court for the subjective satisfaction of the authority. 6. The question is whether this decision can apply to the grounds of detention in the present case. In other words, is it possible to say that ground No. (1) contains both relevant and irrelevant matters, so that it would not be possible to predicate that the District Magistrate would have reached his satisfaction if the irrelevant matters in that ground were excluded. 7. Ground No. (1) if properly read, first describes a secret meeting of the member of Naxalite party held on January 14, 1971 and then its proceeding. These proceedings, as narrated in the ground, fall into four parts, namely, (1) that the petitioner volunteered to become a member of its Action Squad, which presumably carries out and implements the decisions taken by the party and assured the members present there to supply pipe guns, ammunition and materials for manufacturing bombs to the Action Squad, (2) that he urged the members to select teachers who supported the CPI (M), and who were responsible for propaganda against the Naxalite party among students and to remove them from the way of the party by killing them, (3) that the party should continue its raids in educational institutions, post offices, police pickets etc. and to annihilate jotedars, police personnel, businessmen and members of rival political parties, and (4) that the petitioner and those present at the meeting resolved to prevent the mid-term election from being held, particularly in Shibpur area, to achieve which educational institutions, post offices, police camps and other Government offices should be raided and jotedars, businessmen, police personnel etc. should be killed. 8. It could perhaps be urged that becoming a member of the Action Squad of a party or even attempting to prevent a mid-term election from being held would be activities which, taken by themselves, might not fall under clause (d) of Section 3(2), and therefore, would be irrelevant for the purpose of reaching the subjective satisfaction under Section 3(1). But the grounds must be read as a whole and not in parts, one isolated from the rest. If read as a whole, it is perfectly clear that while volunteering to become a member of the Action Squad, the petitioner also offered to supply guns and ammunition to carry out the objectives resolved upon in that meeting, which frankly were to remove those who came in the way of the party by killing them with firearms and ammunition, which the petitioner offered to supply. The other objective was to prevent the mid-terms election, particularly in Shibpur area. That was sought to be achieved by raids on educational institutions, post offices, police camps and other Government offices and by killing jotedars, businessman, police personnel etc., and creating by such activities such confusion and chaos that holding of the election would become impossible. It is clear, thus, that the elimination of those who carried on propaganda against the interests of the party and preventing the election from being held were to be achieved by means of killing with guns and ammunition which the petitioner volunteered to supply and by destroying educational institutions, Government offices, police camps and thereby creating disorder, in Shibpur area particularly, so that, no election could possibly be held. Read as a whole, it is impossible to find any irrelevant or extraneous matter mixed up with relevant matter in ground No. (1). There is, thus, no analogy between the present case and that of Dwarka Das Bhatias case (supra) from which counsel sought support. In our view ground No. (1) does not suffer from the infirmity for which the detention order in that case was held to be bad.

0[ds]7. Ground No. (1) if properly read, first describes a secret meeting of the member of Naxalite party held on January 14, 1971 and then its proceeding. These proceedings, as narrated in the ground, fall into four parts, namely, (1) that the petitioner volunteered to become a member of its Action Squad, which presumably carries out and implements the decisions taken by the party and assured the members present there to supply pipe guns, ammunition and materials for manufacturing bombs to the Action Squad, (2) that he urged the members to select teachers who supported the CPI (M), and who were responsible for propaganda against the Naxalite party among students and to remove them from the way of the party by killing them, (3) that the party should continue its raids in educational institutions, post offices, police pickets etc. and to annihilate jotedars, police personnel, businessmen and members of rival political parties, and (4) that the petitioner and those present at the meeting resolved to prevent them election from being held, particularly in Shibpur area, to achieve which educational institutions, post offices, police camps and other Government offices should be raided and jotedars, businessmen, police personnel etc. should be killed8. It could perhaps be urged that becoming a member of the Action Squad of a party or even attempting to prevent am election from being held would be activities which, taken by themselves, might not fall under clause (d) of Section 3(2), and therefore, would be irrelevant for the purpose of reaching the subjective satisfaction under Section 3(1). But the grounds must be read as a whole and not in parts, one isolated from the rest. If read as a whole, it is perfectly clear that while volunteering to become a member of the Action Squad, the petitioner also offered to supply guns and ammunition to carry out the objectives resolved upon in that meeting, which frankly were to remove those who came in the way of the party by killing them withfirearmsand ammunition, which the petitioner offered to supply. The other objective was to prevent thes election, particularly in Shibpur area. That was sought to be achieved by raids on educational institutions, post offices, police camps and other Government offices and by killing jotedars, businessman, police personnel etc., and creating by such activities such confusion and chaos that holding of the election would become impossible. It is clear, thus, that the elimination of those who carried on propaganda against the interests of the party and preventing the election from being held were to be achieved by means of killing with guns and ammunition which the petitioner volunteered to supply and by destroying educational institutions, Government offices, police camps and thereby creating disorder, in Shibpur area particularly, so that, no election could possibly be held. Read as a whole, it is impossible to find any irrelevant or extraneous matter mixed up with relevant matter in ground No. (1). There is, thus, no analogy between the present case and that of Dwarka Das Bhatias case (supra) from which counsel sought support. In our view ground No. (1) does not suffer from the infirmity for which the detention order in that case was held to be bad.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: for detention was vague, in that, it contained numerous, alleged acts, including some which would not fall within clause (d) of Section 3(2), that those which did not fall within that clause would be extraneous and irrelevant and that their inclusion in that ground vitiated the impugned order. It was urged that volunteering to become a member of the Action Squad of the party and resolving or deciding to prevent the mid-term election from being held, particularly in Shibpur area, were matters which did not strictly fall under clause (d), and that their inclusion in ground No. (1) along with matters which did fall under that clause was fatal to the detention order in the sense that it would be impossible to say on which part of the petitioners activities, whether on relevant or irrelevant activities, the District Magistrates satisfaction was arrived at. 5. In support of this contention, counsel sought assistance from the decision of this Court in Dwarka Das Bhatia v. State of Jammu and Kashmir (1956 SCR 948 : AIR 1957 SC 164 : 1957 Cr LJ 316). That was a case under the Jammu and Kashmir Preventive Detention Act, 2011, under which a detention order was made against the petitioner therein on the ground that his detection became necessary with a view to prevent him acting in a manner prejudicial to the maintenance of supplies and services essential to the community and was based on alleged smuggling by him to Pakistan of certain essential goods, such as shaffon cloth, zari and mercury. Shaffon cloth and zari were, however, not essential goods, and as regards mercury, which was essential goods, it was not established that the smuggling as regards attributed to the petitioner consisted substantially of mercury only or that smuggling as reads shaffon cloth and zari was inconsequential. On these facts, the detention order was set aside on the ground that the subjective satisfaction of the detaining authority must be properly based on all the reasons on which it purports to be based. If some, out of those reasons, were found to be non-existent or irrelevant, the Court could not predicate what the subjective satisfaction of the authority would have been on the exclusion of those reasons. To uphold the order on the remaining reasons would be to substitute the objective standards of the Court for the subjective satisfaction of the authority. 6. The question is whether this decision can apply to the grounds of detention in the present case. In other words, is it possible to say that ground No. (1) contains both relevant and irrelevant matters, so that it would not be possible to predicate that the District Magistrate would have reached his satisfaction if the irrelevant matters in that ground were excluded. 7. Ground No. (1) if properly read, first describes a secret meeting of the member of Naxalite party held on January 14, 1971 and then its proceeding. These proceedings, as narrated in the ground, fall into four parts, namely, (1) that the petitioner volunteered to become a member of its Action Squad, which presumably carries out and implements the decisions taken by the party and assured the members present there to supply pipe guns, ammunition and materials for manufacturing bombs to the Action Squad, (2) that he urged the members to select teachers who supported the CPI (M), and who were responsible for propaganda against the Naxalite party among students and to remove them from the way of the party by killing them, (3) that the party should continue its raids in educational institutions, post offices, police pickets etc. and to annihilate jotedars, police personnel, businessmen and members of rival political parties, and (4) that the petitioner and those present at the meeting resolved to prevent the mid-term election from being held, particularly in Shibpur area, to achieve which educational institutions, post offices, police camps and other Government offices should be raided and jotedars, businessmen, police personnel etc. should be killed. 8. It could perhaps be urged that becoming a member of the Action Squad of a party or even attempting to prevent a mid-term election from being held would be activities which, taken by themselves, might not fall under clause (d) of Section 3(2), and therefore, would be irrelevant for the purpose of reaching the subjective satisfaction under Section 3(1). But the grounds must be read as a whole and not in parts, one isolated from the rest. If read as a whole, it is perfectly clear that while volunteering to become a member of the Action Squad, the petitioner also offered to supply guns and ammunition to carry out the objectives resolved upon in that meeting, which frankly were to remove those who came in the way of the party by killing them with firearms and ammunition, which the petitioner offered to supply. The other objective was to prevent the mid-terms election, particularly in Shibpur area. That was sought to be achieved by raids on educational institutions, post offices, police camps and other Government offices and by killing jotedars, businessman, police personnel etc., and creating by such activities such confusion and chaos that holding of the election would become impossible. It is clear, thus, that the elimination of those who carried on propaganda against the interests of the party and preventing the election from being held were to be achieved by means of killing with guns and ammunition which the petitioner volunteered to supply and by destroying educational institutions, Government offices, police camps and thereby creating disorder, in Shibpur area particularly, so that, no election could possibly be held. Read as a whole, it is impossible to find any irrelevant or extraneous matter mixed up with relevant matter in ground No. (1). There is, thus, no analogy between the present case and that of Dwarka Das Bhatias case (supra) from which counsel sought support. In our view ground No. (1) does not suffer from the infirmity for which the detention order in that case was held to be bad. ### Response: 0

M/S GENENTECH INC Vs. DRUGS CONTROLLER GENERAL OF INDIA

with Biocon and Mylan. The Division Bench felt that respondent no.3 is on similar footing as Biocon and Mylan and therefore parity in marketing of their respective biosimilar product can be allowed. 18. In their challenge to the impugned order, the appellants have contended that in passing the impugned order, the Division Bench had failed to simultaneously consider and dispose of the pending appeals and the interim applications filed by the plaintiffs. We had earlier referred to the order passed by this Court on 8.3.2019 in SLP (C) No.6203/2019 which required the High Court to simultaneously take up the appeals and the interim applications filed by both sides. Although some of the contentions raised by the appellants counsel were taken into consideration, those submissions were examined by the Division Bench only in the context of the application filed by respondent no.3. On this aspect, the learned senior counsel for respondent no.3 submitted that non mentioning of the FAO and the IA of the appellants was an inadvertent omission. However such submission, in the face of the specific observation made by the Division Bench in paragraph 51 of the impugned order, cannot be accepted by us. 19. When the impugned order of the Division Bench is read in the context of the express direction of this Court, it is clearly discernible that the Division Bench had only considered the appeal and application filed by Reliance on merit that is FAO(OS) No. 227/2016 and C.M. Appl. No. 22510/2016; without entertaining the appellants application. In fact the Bench itself clarified the position in paragraph 51 of the impugned order by stating the following:- ……. ………….…… 51. We have heard learned counsels and considered their respective submissions. The submissions made on behalf of the parties are being examined in the context of the appellants application for stay of the impugned order. …………. …… …….. …… ……. …… ………………. 20. The fact that the Division Bench was singularly concerned with taking up the Reliances interim application is further established from the separate order passed on 16.7.2019 in FAO (OS) No. 132, 133, 226, 227 and 268 of 2016 which directs the applications (including the appeal and the application of the plaintiffs) to be listed on 11.2.2020. By way of a separate order, of the same date i.e. 16.7.2019, the Division Bench reserved orders on Reliances application. Therefore, it is difficult for us to accept as has been suggested by the learned Senior Counsel for the respondent no.3 that the segregation of the application of one party by the Division Bench, could be an inadvertent error. 21. In the above context, the Division Bench even without considering the appellants interim application through their observations in paragraph 57, had clearly shut out any scope for the appellants application to be heard and in effect, ordered on the application. 22. In the interim order passed by the learned Single Judge on 25.4.2016, the conditions imposed on Reliances product by the DCGI were taken into account. The said interim order was operating without causing much hindrance and respondent No. 3 was successful in participation in government tenders and supplies, with their drug. Therefore, the contrary submission made by the learned Senior Counsel for respondent no.3 is found to be incorrect. 23. As regards the contention made by Mr. Poorvayya that the condition imposed by the learned Single Judge on the packaging/labelling is contrary to the statutory prescriptions, it must be borne in mind that the arrangement ordered by the learned Single Judge has been in operation since 25.04.2016. Therefore without a final decision on the suit on the basis of relevant evidence, the continuing arrangement in our opinion should not have been disturbed, on this count. 24. The appellants suit before the Delhi High Court is not a trade mark action nor it is an attempt to enforce the appellants patent, which admittedly expired in 2013. The suit is an action for extended passing off and to prevent the respondent from using the appellants data and improper reference to its drug Trastuzumab. Therefore, the expiry of the appellants patent right on the drug Trastuzumab may not have any direct bearing on the contention raised in the Reliance suit. 25. As regards the submission on the timing of the suit and the other contentions raised on the approval secured from the Subject Expert Committee, these are matters which should appropriately be dealt with when the suit is finally decided. Those need not be factored in at this stage, in support of the impugned interim order. 26. Reverting back to the impugned order, the Division Bench had not only considered the contention raised by the appellants in paragraphs 41 to 50 but then rejected those, in paragraphs 52 to 60 of the same order. In such circumstances, directing the Division Bench to now consider the appellants appeal FAO No. 227/2016 and CM No. 26902 of 2016 would in our view be nothing but an empty formality, more particularly in the present appeal when this Court taking note of the order passed by the learned Single Judge imposing conditions and the same being in operation from 25.4.2016 has approved the same to be an appropriate interlocutory order considering the nature of the suit where all other issues are to be considered. 27. Because of the foregoing, and more particularly because the Division Bench did not keep in view the order of this Court dated 8.3.2019 to ensure analogous consideration of the interim applications of both sides in terms of this Courts earlier direction and having regard to the fact that the position prevailing since last three and a half years (pursuant to the learned Single Judges order dated 25.4.2016) have been upset without considering the issue of balance of convenience, we are persuaded to hold that the Division Bench was in error. Without analogous consideration of the appellants applications, the Court should not have unsettled the prevailing situation for the last three and half years, without final conclusion of the Reliance suit.

1[ds]17. As permitted by the interim order dated 25.4.2016, the respondent no.3 launched their bio similar product TrastuRel and they have been in the market with their drug for the last about three and a half years. They have also participated in Government tenders and when certain doubts were raised on whether the drug TrastuRel is biosimilar with Trastuzumab, the High Court had intervened in favour of respondent no.3, in separate proceeding. However, while the interim order passed by the learned Single Judge did not stop the marketing of the drug TrastuRel, the Division Bench even while adverting to the concern raised by the learned Single Judge on the issues, which are to be determined when the suit is finally decided, allowed respondent no.3 the parity of operation with Biocon and Mylan. The Division Bench felt that respondent no.3 is on similar footing as Biocon and Mylan and therefore parity in marketing of their respective biosimilar product can be allowed18. In their challenge to the impugned order, the appellants have contended that in passing the impugned order, the Division Bench had failed to simultaneously consider and dispose of the pending appeals and the interim applications filed by the plaintiffs. We had earlier referred to the order passed by this Court on 8.3.2019 in SLP (C) No.6203/2019 which required the High Court to simultaneously take up the appeals and the interim applications filed by both sides. Although some of the contentions raised by the appellants counsel were taken into consideration, those submissions were examined by the Division Bench only in the context of the application filed by respondent no.3. On this aspect, the learned senior counsel for respondent no.3 submitted that non mentioning of the FAO and the IA of the appellants was an inadvertent omission. However such submission, in the face of the specific observation made by the Division Bench in paragraph 51 of the impugned order, cannot be accepted by us20. The fact that the Division Bench was singularly concerned with taking up the Reliances interim application is further established from the separate order passed on 16.7.2019 in FAO (OS) No. 132, 133, 226, 227 and 268 of 2016 which directs the applications (including the appeal and the application of the plaintiffs) to be listed on 11.2.2020. By way of a separate order, of the same date i.e. 16.7.2019, the Division Bench reserved orders on Reliances application. Therefore, it is difficult for us to accept as has been suggested by the learned Senior Counsel for the respondent no.3 that the segregation of the application of one party by the Division Bench, could be an inadvertent error21. In the above context, the Division Bench even without considering the appellants interim application through their observations in paragraph 57, had clearly shut out any scope for the appellants application to be heard and in effect, ordered on the application22. In the interim order passed by the learned Single Judge on 25.4.2016, the conditions imposed on Reliances product by the DCGI were taken into account. The said interim order was operating without causing much hindrance and respondent No. 3 was successful in participation in government tenders and supplies, with their drug. Therefore, the contrary submission made by the learned Senior Counsel for respondent no.3 is found to be incorrect23. As regards the contention made by Mr. Poorvayya that the condition imposed by the learned Single Judge on the packaging/labelling is contrary to the statutory prescriptions, it must be borne in mind that the arrangement ordered by the learned Single Judge has been in operation since 25.04.2016. Therefore without a final decision on the suit on the basis of relevant evidence, the continuing arrangement in our opinion should not have been disturbed, on this count24. The appellants suit before the Delhi High Court is not a trade mark action nor it is an attempt to enforce the appellants patent, which admittedly expired in 2013. The suit is an action for extended passing off and to prevent the respondent from using the appellants data and improper reference to its drug Trastuzumab. Therefore, the expiry of the appellants patent right on the drug Trastuzumab may not have any direct bearing on the contention raised in the Reliance suit25. As regards the submission on the timing of the suit and the other contentions raised on the approval secured from the Subject Expert Committee, these are matters which should appropriately be dealt with when the suit is finally decided. Those need not be factored in at this stage, in support of the impugned interim order26. Reverting back to the impugned order, the Division Bench had not only considered the contention raised by the appellants in paragraphs 41 to 50 but then rejected those, in paragraphs 52 to 60 of the same order. In such circumstances, directing the Division Bench to now consider the appellants appeal FAO No. 227/2016 and CM No. 26902 of 2016 would in our view be nothing but an empty formality, more particularly in the present appeal when this Court taking note of the order passed by the learned Single Judge imposing conditions and the same being in operation from 25.4.2016 has approved the same to be an appropriate interlocutory order considering the nature of the suit where all other issues are to be considered27. Because of the foregoing, and more particularly because the Division Bench did not keep in view the order of this Court dated 8.3.2019 to ensure analogous consideration of the interim applications of both sides in terms of this Courts earlier direction and having regard to the fact that the position prevailing since last three and a half years (pursuant to the learned Single Judges order dated 25.4.2016) have been upset without considering the issue of balance of convenience, we are persuaded to hold that the Division Bench was in error. Without analogous consideration of the appellants applications, the Court should not have unsettled the prevailing situation for the last three and half years, without final conclusion of the Reliance suit.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: with Biocon and Mylan. The Division Bench felt that respondent no.3 is on similar footing as Biocon and Mylan and therefore parity in marketing of their respective biosimilar product can be allowed. 18. In their challenge to the impugned order, the appellants have contended that in passing the impugned order, the Division Bench had failed to simultaneously consider and dispose of the pending appeals and the interim applications filed by the plaintiffs. We had earlier referred to the order passed by this Court on 8.3.2019 in SLP (C) No.6203/2019 which required the High Court to simultaneously take up the appeals and the interim applications filed by both sides. Although some of the contentions raised by the appellants counsel were taken into consideration, those submissions were examined by the Division Bench only in the context of the application filed by respondent no.3. On this aspect, the learned senior counsel for respondent no.3 submitted that non mentioning of the FAO and the IA of the appellants was an inadvertent omission. However such submission, in the face of the specific observation made by the Division Bench in paragraph 51 of the impugned order, cannot be accepted by us. 19. When the impugned order of the Division Bench is read in the context of the express direction of this Court, it is clearly discernible that the Division Bench had only considered the appeal and application filed by Reliance on merit that is FAO(OS) No. 227/2016 and C.M. Appl. No. 22510/2016; without entertaining the appellants application. In fact the Bench itself clarified the position in paragraph 51 of the impugned order by stating the following:- ……. ………….…… 51. We have heard learned counsels and considered their respective submissions. The submissions made on behalf of the parties are being examined in the context of the appellants application for stay of the impugned order. …………. …… …….. …… ……. …… ………………. 20. The fact that the Division Bench was singularly concerned with taking up the Reliances interim application is further established from the separate order passed on 16.7.2019 in FAO (OS) No. 132, 133, 226, 227 and 268 of 2016 which directs the applications (including the appeal and the application of the plaintiffs) to be listed on 11.2.2020. By way of a separate order, of the same date i.e. 16.7.2019, the Division Bench reserved orders on Reliances application. Therefore, it is difficult for us to accept as has been suggested by the learned Senior Counsel for the respondent no.3 that the segregation of the application of one party by the Division Bench, could be an inadvertent error. 21. In the above context, the Division Bench even without considering the appellants interim application through their observations in paragraph 57, had clearly shut out any scope for the appellants application to be heard and in effect, ordered on the application. 22. In the interim order passed by the learned Single Judge on 25.4.2016, the conditions imposed on Reliances product by the DCGI were taken into account. The said interim order was operating without causing much hindrance and respondent No. 3 was successful in participation in government tenders and supplies, with their drug. Therefore, the contrary submission made by the learned Senior Counsel for respondent no.3 is found to be incorrect. 23. As regards the contention made by Mr. Poorvayya that the condition imposed by the learned Single Judge on the packaging/labelling is contrary to the statutory prescriptions, it must be borne in mind that the arrangement ordered by the learned Single Judge has been in operation since 25.04.2016. Therefore without a final decision on the suit on the basis of relevant evidence, the continuing arrangement in our opinion should not have been disturbed, on this count. 24. The appellants suit before the Delhi High Court is not a trade mark action nor it is an attempt to enforce the appellants patent, which admittedly expired in 2013. The suit is an action for extended passing off and to prevent the respondent from using the appellants data and improper reference to its drug Trastuzumab. Therefore, the expiry of the appellants patent right on the drug Trastuzumab may not have any direct bearing on the contention raised in the Reliance suit. 25. As regards the submission on the timing of the suit and the other contentions raised on the approval secured from the Subject Expert Committee, these are matters which should appropriately be dealt with when the suit is finally decided. Those need not be factored in at this stage, in support of the impugned interim order. 26. Reverting back to the impugned order, the Division Bench had not only considered the contention raised by the appellants in paragraphs 41 to 50 but then rejected those, in paragraphs 52 to 60 of the same order. In such circumstances, directing the Division Bench to now consider the appellants appeal FAO No. 227/2016 and CM No. 26902 of 2016 would in our view be nothing but an empty formality, more particularly in the present appeal when this Court taking note of the order passed by the learned Single Judge imposing conditions and the same being in operation from 25.4.2016 has approved the same to be an appropriate interlocutory order considering the nature of the suit where all other issues are to be considered. 27. Because of the foregoing, and more particularly because the Division Bench did not keep in view the order of this Court dated 8.3.2019 to ensure analogous consideration of the interim applications of both sides in terms of this Courts earlier direction and having regard to the fact that the position prevailing since last three and a half years (pursuant to the learned Single Judges order dated 25.4.2016) have been upset without considering the issue of balance of convenience, we are persuaded to hold that the Division Bench was in error. Without analogous consideration of the appellants applications, the Court should not have unsettled the prevailing situation for the last three and half years, without final conclusion of the Reliance suit. ### Response: 1

Management of Churakulam Tea Estate Private, Limited Vs. Its Workmen & Another

such proceedings:* * * *"22. The expression Board is defined inSection2 (c) as a Board of Conciliation, constituted under the Act. Admittedly there were no conciliation proceedings pending before such a Board on November 30, 1961, the day on which the factory workers went on strike and hence the strike does not come underSection23 (a). No doubt if the strike, in this case, is hit bySection23 (a), it will be illegal underSection24 (1) (i) of the Act; but we have already held that it does not come underSection23 (a) of the Act. It follows that the strike, in this case, cannot be considered to be illegal.23. Alternatively, Mr. Gokhale contended that in any event the strike on November 30, 1961, was thoroughly unjustified. Counsel urged that the management had participated in the conciliation proceedings, relating to the claim for bonus and, when those proceedings failed, the question of referring the dispute, for adjudication, was pending before the Government. The workmen could have made a request to the Government to refer the dispute for adjudication and, therefore, the factory workers going on strike cannot be justified. In this connection Mr. Gokhale referred us to the observations, made by this Court in Management of Chandramalai Estate, Ernakulam v. Its Workmen, (1960) 3 SCR 451 =(AIR 1960 SC 902 ). In the said decision, this Court deprecated the conduct of workmen going on a strike, without waiting for a reasonable time to know the result of the report of conciliation proceedings. In our opinion, this decision does not at all support the appellant.24. There is a fundamental fallacy, in this contention of the appellant, when it proceeds on the basis that the strike by the factory workers, on November 30, 1961, was directly in connection with the demand for bonus for the years 1957 to 1959. On the other hand the evidence, which has been placed before us by Mr. Puri, learned Counsel for the respondent, clearly establishes that the strike was as a protest against the unreasonable attitude of the management in boycotting the conference held on November 28, 1961, by the Labour Minister of the State. The evidence of W-1, the Secretary of the Union, is to the effect that to protest against the attitude of the management in boycotting the conference held on November 23, 1961, the factory workers went on a token strike for half a day, on November 30, 1961. There is no cross-examination of this witness, on this aspect. There is also nothing in the evidence adduced by the management to show that the strike on November 30, 1961 was not for the reason spoken to by the Union Secretary. Therefore, the strike must be held to be neither illegal nor unjustified and in consequence it must be further held that the factory workers are entitled to wages for that day. The finding of the Tribunal in this regard, is accepted.25. The last question, that arises for consideration, relates to the claim for wages of the workmen, for the period of lay-off, viz., December 1, 1961 to December 8, 1961. On the very day that the factory workers went on strike i.e., November 30, 1961, the management put up a notice, Ex. M-15, to the effect that since all the factory workers had gone on strike at 1 P. M. without previous intimation, the management was forced to lay-off without compensation all the workmen in the entire establishment as from December 1, 1961, underSection25E (iii) of the Act which lays down that no compensation shall be paid to a workman who has been laid-off, if such laying-off; is due to a strike or slowing down of production on the part of workmen in another part of the establishment. The correspondence shows that due to the intervention of the Deputy Labour Officer, the Management was assured, on December 7, 1961, that the workmen would not resort to any strike and accordingly, the lay-off was withdrawn from December 8, 1961, but the management stated that no compensation would be paid for the period of the lay-off.26. Here, again, the plea of the workers is that all of them reported for duty on December 1, 1961, but they were not given any work by the management on the ground that there was a lay-off. This plea has been found to be true, by the Tribunal; but, according to the management, the lay-off, in this case, during this period, is justified, under the provisions ofSection25E (iii) and hence the workmen are not entitled to compensation. According to the management, inasmuch as there was a strike in the factory section, work in the other sections could not be carried on; and, as the management were not sure whether the workmen would turn up for work, lay-off, in the circumstances, was justified. We are not inclined to accept this contention advanced on behalf of the management. We have already referred to the finding of the Tribunal that twenty-seven factory workmen alone went on strike on November 30, 1961, and the entire body of workmen presented themselves for work on December 1, 1961, but they were declined work by the management on the ground of lay-off. The plea of the management that they suffered loss, on account of the half a days strike on November 30, 1961, justifying the lay-off, has not been accepted by the Tribunal. In fact the Tribunal has accepted the plea of the workmen that the effect of the three hours token strike on November 30, 1961, would not have resulted in any loss to the management, if they had allowed the workmen to do work on December 1, 1961. The Tribunal has also held that the lay-off, by the management, was as a retaliatory or vindictive measure against the factory workers, who went on strike on November 30, 1961. We are in agreement with the findings, recorded by the Tribunal in this behalf and the award by the Tribunal of wages to the workmen for this period is justified.

1[ds]It will be seen from the above extract that an additional circumstance has also been insisted upon, in the case of customary or traditional bonus, that the payment must have been at a uniform rate throughout to justify an inference that the payment at such and such a rate had become customary and traditional in the particular concern. Therefore, even if the claim, in the case before us, is considered as a customary or traditional bonus, this test will have to be satisfied and, as mentioned earlier, it is lacking in this case.Pausing here it must be noted that the payment, at a uniform rate, was not found necessary for establishing a claim for payment of bonus, as an implied condition of service, as that claim was held to relate to a festival. This aspect has been missed by the Tribunal in the award under consideration, and it has proceeded on the basis that this Court has laid down that, notwithstanding that a payment is not at a uniform rate, nevertheless, a claim based on an implied condition of service, can be recognised, provided the other tests are satisfied.From the decisions, cited above, it follows that the Tribunal, in the instant case, was wrong in holding that an inference could be drawn for payment of bonus, as an implied condition of service, in the circumstances of the present case, the payment, admitted, was not uniform and was not connected with any festival. In our view, it is impossible to infer an implied condition of service, where payment has not been uniform in the past, unless such payment can he connected with some festival. In this case, admittedly, the payments have neither been uniform, nor were they connected with any festival.19. The claim cannot also be sustained; even as a customary or traditional bonus, because, apart from the fact that it is not connected with any festival, one of the essential ingredients, viz., that the payment should have been at a uniform rate throughout, is also admittedly lacking in this case.Therefore, the Tribunal was in error in awarding bonus for the three years in question.20.The second question, that arose for consideration by the Tribunal, related to the claim for wages, of thefactory workers, who went on strike on November 30,1961. There is nocontroversy that the factory workers alone went on strike, for half a day, on November 30, 1961. The Tribunal has awarded wages for this period. Mr.Gokhale, learned Counsel, contended that the strike was both illegal and unjustified.The events leading up to the strike, on that date, may be briefly noted. The conciliation proceedings relating to the claim for bonus having failed, the question of referring for adjudication to the Tribunal was under consideration of the Government. The Labour Minister had called for a conference of the representatives of the management and the workmen and the conference had been fixed on November 23, 1961. The representatives of the workmen attended the conference, but the management boycotted the same. It is the case of the workmen that to protest against the recalcitrant attitude of the management in not attending the conference, thefactory workers alone went on strike, from 1 P. M. on November 30,doubt if the strike, in this case, is hit bySection23 (a), it will be illegal underSection24 (1) (i) of the Act; but we have already held that it does not come underSection23 (a) of the Act. It follows that the strike, in this case, cannot be considered to beour opinion, this decision does not at all support the appellant.There is a fundamental fallacy, in this contention of the appellant, when it proceeds on the basis that the strike by the factory workers, on November 30, 1961, was directly in connection with the demand for bonus for the years 1957 to 1959. On the other hand the evidence, which has been placed before us by Mr. Puri, learned Counsel for the respondent, clearly establishes that the strike was as a protest against the unreasonable attitude of the management in boycotting the conference held on November 28, 1961, by the Labour Minister of the State. The evidence ofthe Secretary of the Union, is to the effect that to protest against the attitude of the management in boycotting the conference held on November 23, 1961, the factory workers went on a token strike for half a day, on November 30,1961. There is noof this witness, on this aspect. There is also nothing in the evidence adduced by the management to show that the strike on November 30, 1961 was not for the reason spoken to by the Union Secretary. Therefore, the strike must be held to be neither illegal nor unjustified and in consequence it must be further held that the factory workers are entitled to wages for that day. The finding of the Tribunal in this regard, is accepted.25. The last question, that arises for consideration, relates to the claim for wages of the workmen, for the period ofviz., December 1, 1961 to December 8, 1961. On the very day that the factory workers went on strike i.e., November 30, 1961, the management put up a notice, Ex.to the effect that since all the factory workers had gone on strike at 1 P. M. without previous intimation, the management was forced towithout compensation all the workmen in the entire establishment as from December 1, 1961, underSection25E (iii) of the Act which lays down that no compensation shall be paid to a workman who has beenff; is due to a strike or slowing down of production on the part of workmen in another part of the establishment. The correspondence shows that due to the intervention of the Deputy Labour Officer, the Management was assured, on December 7, 1961, that the workmen would not resort to any strike and accordingly, theHere, again, the plea of the workers is that all of them reported for duty on December 1, 1961, but they were not given any work by the management on the ground that there was aThis plea has been found to be true, by the Tribunal; but, according to the management, thein this case, during this period, is justified, under the provisions ofSection25E (iii) and hence the workmen are not entitled to compensation. According to the management, inasmuch as there was a strike in the factory section, work in the other sections could not be carried on; and, as the management were not sure whether the workmen would turn up for work,in the circumstances, was justified. We are not inclined to accept this contention advanced on behalf of the management. We have already referred to the finding of the Tribunal thatfactory workmen alone went on strike on November 30, 1961, and the entire body of workmen presented themselves for work on December 1, 1961, but they were declined work by the management on the ground ofThe plea of the management that they suffered loss, on account of the half a days strike on November 30, 1961, justifying thehas not been accepted by the Tribunal. In fact the Tribunal has accepted the plea of the workmen that the effect of the three hours token strike on November 30, 1961, would not have resulted in any loss to the management, if they had allowed the workmen to do work on December 1, 1961. The Tribunal has also held that theby the management, was as a retaliatory or vindictive measure against thefactory workers, who went on strike on November 30,We are in agreement with the findings, recorded by the Tribunal in this behalf and the award by the Tribunal of wages to the workmen for this period is justified.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: such proceedings:* * * *"22. The expression Board is defined inSection2 (c) as a Board of Conciliation, constituted under the Act. Admittedly there were no conciliation proceedings pending before such a Board on November 30, 1961, the day on which the factory workers went on strike and hence the strike does not come underSection23 (a). No doubt if the strike, in this case, is hit bySection23 (a), it will be illegal underSection24 (1) (i) of the Act; but we have already held that it does not come underSection23 (a) of the Act. It follows that the strike, in this case, cannot be considered to be illegal.23. Alternatively, Mr. Gokhale contended that in any event the strike on November 30, 1961, was thoroughly unjustified. Counsel urged that the management had participated in the conciliation proceedings, relating to the claim for bonus and, when those proceedings failed, the question of referring the dispute, for adjudication, was pending before the Government. The workmen could have made a request to the Government to refer the dispute for adjudication and, therefore, the factory workers going on strike cannot be justified. In this connection Mr. Gokhale referred us to the observations, made by this Court in Management of Chandramalai Estate, Ernakulam v. Its Workmen, (1960) 3 SCR 451 =(AIR 1960 SC 902 ). In the said decision, this Court deprecated the conduct of workmen going on a strike, without waiting for a reasonable time to know the result of the report of conciliation proceedings. In our opinion, this decision does not at all support the appellant.24. There is a fundamental fallacy, in this contention of the appellant, when it proceeds on the basis that the strike by the factory workers, on November 30, 1961, was directly in connection with the demand for bonus for the years 1957 to 1959. On the other hand the evidence, which has been placed before us by Mr. Puri, learned Counsel for the respondent, clearly establishes that the strike was as a protest against the unreasonable attitude of the management in boycotting the conference held on November 28, 1961, by the Labour Minister of the State. The evidence of W-1, the Secretary of the Union, is to the effect that to protest against the attitude of the management in boycotting the conference held on November 23, 1961, the factory workers went on a token strike for half a day, on November 30, 1961. There is no cross-examination of this witness, on this aspect. There is also nothing in the evidence adduced by the management to show that the strike on November 30, 1961 was not for the reason spoken to by the Union Secretary. Therefore, the strike must be held to be neither illegal nor unjustified and in consequence it must be further held that the factory workers are entitled to wages for that day. The finding of the Tribunal in this regard, is accepted.25. The last question, that arises for consideration, relates to the claim for wages of the workmen, for the period of lay-off, viz., December 1, 1961 to December 8, 1961. On the very day that the factory workers went on strike i.e., November 30, 1961, the management put up a notice, Ex. M-15, to the effect that since all the factory workers had gone on strike at 1 P. M. without previous intimation, the management was forced to lay-off without compensation all the workmen in the entire establishment as from December 1, 1961, underSection25E (iii) of the Act which lays down that no compensation shall be paid to a workman who has been laid-off, if such laying-off; is due to a strike or slowing down of production on the part of workmen in another part of the establishment. The correspondence shows that due to the intervention of the Deputy Labour Officer, the Management was assured, on December 7, 1961, that the workmen would not resort to any strike and accordingly, the lay-off was withdrawn from December 8, 1961, but the management stated that no compensation would be paid for the period of the lay-off.26. Here, again, the plea of the workers is that all of them reported for duty on December 1, 1961, but they were not given any work by the management on the ground that there was a lay-off. This plea has been found to be true, by the Tribunal; but, according to the management, the lay-off, in this case, during this period, is justified, under the provisions ofSection25E (iii) and hence the workmen are not entitled to compensation. According to the management, inasmuch as there was a strike in the factory section, work in the other sections could not be carried on; and, as the management were not sure whether the workmen would turn up for work, lay-off, in the circumstances, was justified. We are not inclined to accept this contention advanced on behalf of the management. We have already referred to the finding of the Tribunal that twenty-seven factory workmen alone went on strike on November 30, 1961, and the entire body of workmen presented themselves for work on December 1, 1961, but they were declined work by the management on the ground of lay-off. The plea of the management that they suffered loss, on account of the half a days strike on November 30, 1961, justifying the lay-off, has not been accepted by the Tribunal. In fact the Tribunal has accepted the plea of the workmen that the effect of the three hours token strike on November 30, 1961, would not have resulted in any loss to the management, if they had allowed the workmen to do work on December 1, 1961. The Tribunal has also held that the lay-off, by the management, was as a retaliatory or vindictive measure against the factory workers, who went on strike on November 30, 1961. We are in agreement with the findings, recorded by the Tribunal in this behalf and the award by the Tribunal of wages to the workmen for this period is justified. ### Response: 1

Jagdish Vs. State of Haryana

to be discarded, the role not to be accepted. Mr Sachher has also submitt ed that although Om Prakash and Joginder Pal deposed that they were eye witnesses to the incident of murder committed by Jagdish, it is quite apparent that Jagdish was not known to the said eye witnesses. Therefore, mere assertion by PW 1 and PW 2 that Jagdish was known to them from before cannot be accepted. It has come out from the evidences adduced by the said eye witnesses that they did not know the other co-villagers and also the Sarpanch and other important persons in the village of Jagdish. It has not been satisfactorily established how the said PWs. 1 and 2 had come to know Jagdish from before. Therefore, simply because in the FIR the name of Jagdish was given, Jagdish cannot be convicted for want of convincing evidence.Mr. Sachher has also submitted that the doctor holding post mortem on the deceased Pritam Lal Chopra had noticed singing and blackening on the person of the deceased. Such singing and blackening can take place if the victim is fired fr om a very close range, but the eye witnesses had stated that Jagdish had fired on the deceased from a distance of 3 to 4 feet. No singing or blackening would have taken place if the victim had been fired from a distance of 3 to 4 feet. Such fa ct only indicates that the said two witnesses had not seen Jagdish firing on Pritam Lal.Mr. Sachher has also contended that the report of the ballistic expert should not be accepted to be reliable because the ballistic expert has n ot noted the characteristics of weapon, namely, pistol Ex. P.5 in his report. In the absence of such noting of the characteristics of the weapon, his deposition becomes doubtful as to whether he had clearly noticed the characteristics of the weapon . Mr. Sachher has also contended that the alleged disclosure statement and consequential recovery of pistol and cartridge, by the police should not be believed. He has submitted that the seizure witness was not a local person but admittedly a chance witness. Mr. Sachher has submitted that search and seizure must be done by taking all precautions to ensure that such search and seizure had been done honestly and there was clear transparency in such search and seizure. M r. Sachher has also submitted that the name of the witnesses were not mentioned in the daily diary. It is, therefore, doubtful whether the alleged FIR was registered on the basis of the statement of Joginder Pal shortly after the incident as alleged by the prosecution. It is not unlikely that at a later stage, the FIR was fabricated by cooking a false story and giving the names of the accused. Mr. Sachher has, therefore, submitted that in the facts and circumstances of the case, th ere is enough scope to doubt the correctness of the prosecution story. The appellant, therefore, is entitled to get the benefit of doubt and his convictions and sentences are liable to be set aside.Such contention of Mr. Sachher has, howe ver, bee disputed by Mr. Siwach , learned counsel appearing for the respondent-state. Mr. Siwach has submitted that within two hours from the said incident of murder, the FIR was lodged where the name of Jagdish alongwith the name of his father an d other particulars were mentioned. He has also submitted that simply because characteristics of the weapon of assault was not mentioned by the Ballistic expert, there is no occasion to discard his evidence because the identity of the pistol which was seized on the basis of the disclosure statement by the accused Jagdish has been clearly established. Mr. Siwach has also submitted that non- mentioning of the name of the witnesses in the daily diary cannot vitiate the prosecution case when the name of the accused with relevant particulars was clearly mentioned in the FIR lodged without any delay. By convincing evidences of the eye witnesses the complicity of Jagdish in the commission of the said murder has bee n established. He has, therefore, submitted that this appeal should be dismissed. After giving our careful consideration to the facts and circumstances of the case and the evidences adduced through which we have been taken, it appears to us that the incident of murder had taken place at about 4.00 P.M. PW 1 and PW 2 immediately had removed the victim to the hospital where he was declared dead by the doctor who had examined the deceased and on the basis of ruqua sent by the doctor, the police came to the hospital and immediately on the arrival of the police statement of PW 1 forming the FIR was recorded. In the said FIR the name of the appellant Jagdish was clearly mentioned by indicating the name of his father and other particulars. There is nothing on record on the basis of which it can be reasonably held that such FIR was fabricated. There is no good reason to discard the evidences of the eye witnesses of PW 1 and PW 2 only because the co- villagers of Jagdish were not known to them. It also appears to us that a recovery of the weapon of assault on the basis of disclosure statement made by the accused had been established convincingly and the report of the ballistic expert also establishes that the bullet which was recovered from the body of the deceased at the tie of post mortem examination was fired from the pistol which was recovered on the basis of disclosure statement made by the accused Jagdish. The manner in which Pritam Lal Chopra was murdered by firing pistol shot from behind as indicated by the said two eye witness also stands corroborated from the medical evidence about the nature of the injury suffered by the said deceased. Therefore, the complicity of the appellant Jagdish in committing the murder of the deceased has been clearly established.

0[ds]After giving our careful consideration to the facts and circumstances of the case and the evidences adduced through which we have been taken, it appears to us that the incident of murder had taken place at about 4.00 P.M. PW 1 and PW 2 immediately had removed the victim to the hospital where he was declared dead by the doctor who had examined the deceased and on the basis of ruqua sent by the doctor, the police came to the hospital and immediately on the arrival of the police statement of PW 1 forming the FIR was recorded. In the said FIR the name of the appellant Jagdish was clearly mentioned by indicating the name of his father and other particulars. There is nothing on record on the basis of which it can be reasonably held that such FIR was fabricated. There is no good reason to discard the evidences of the eye witnesses of PW 1 and PW 2 only because the covillagers of Jagdish were not known to them. It also appears to us that a recovery of the weapon of assault on the basis of disclosure statement made by the accused had been established convincingly and the report of the ballistic expert also establishes that the bullet which was recovered from the body of the deceased at the tie of post mortem examination was fired from the pistol which was recovered on the basis of disclosure statement made by the accused Jagdish. The manner in which Pritam Lal Chopra was murdered by firing pistol shot from behind as indicated by the said two eye witness also stands corroborated from the medical evidence about the nature of the injury suffered by the said deceased. Therefore, the complicity of the appellant Jagdish in committing the murder of the deceased has been clearly established.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: to be discarded, the role not to be accepted. Mr Sachher has also submitt ed that although Om Prakash and Joginder Pal deposed that they were eye witnesses to the incident of murder committed by Jagdish, it is quite apparent that Jagdish was not known to the said eye witnesses. Therefore, mere assertion by PW 1 and PW 2 that Jagdish was known to them from before cannot be accepted. It has come out from the evidences adduced by the said eye witnesses that they did not know the other co-villagers and also the Sarpanch and other important persons in the village of Jagdish. It has not been satisfactorily established how the said PWs. 1 and 2 had come to know Jagdish from before. Therefore, simply because in the FIR the name of Jagdish was given, Jagdish cannot be convicted for want of convincing evidence.Mr. Sachher has also submitted that the doctor holding post mortem on the deceased Pritam Lal Chopra had noticed singing and blackening on the person of the deceased. Such singing and blackening can take place if the victim is fired fr om a very close range, but the eye witnesses had stated that Jagdish had fired on the deceased from a distance of 3 to 4 feet. No singing or blackening would have taken place if the victim had been fired from a distance of 3 to 4 feet. Such fa ct only indicates that the said two witnesses had not seen Jagdish firing on Pritam Lal.Mr. Sachher has also contended that the report of the ballistic expert should not be accepted to be reliable because the ballistic expert has n ot noted the characteristics of weapon, namely, pistol Ex. P.5 in his report. In the absence of such noting of the characteristics of the weapon, his deposition becomes doubtful as to whether he had clearly noticed the characteristics of the weapon . Mr. Sachher has also contended that the alleged disclosure statement and consequential recovery of pistol and cartridge, by the police should not be believed. He has submitted that the seizure witness was not a local person but admittedly a chance witness. Mr. Sachher has submitted that search and seizure must be done by taking all precautions to ensure that such search and seizure had been done honestly and there was clear transparency in such search and seizure. M r. Sachher has also submitted that the name of the witnesses were not mentioned in the daily diary. It is, therefore, doubtful whether the alleged FIR was registered on the basis of the statement of Joginder Pal shortly after the incident as alleged by the prosecution. It is not unlikely that at a later stage, the FIR was fabricated by cooking a false story and giving the names of the accused. Mr. Sachher has, therefore, submitted that in the facts and circumstances of the case, th ere is enough scope to doubt the correctness of the prosecution story. The appellant, therefore, is entitled to get the benefit of doubt and his convictions and sentences are liable to be set aside.Such contention of Mr. Sachher has, howe ver, bee disputed by Mr. Siwach , learned counsel appearing for the respondent-state. Mr. Siwach has submitted that within two hours from the said incident of murder, the FIR was lodged where the name of Jagdish alongwith the name of his father an d other particulars were mentioned. He has also submitted that simply because characteristics of the weapon of assault was not mentioned by the Ballistic expert, there is no occasion to discard his evidence because the identity of the pistol which was seized on the basis of the disclosure statement by the accused Jagdish has been clearly established. Mr. Siwach has also submitted that non- mentioning of the name of the witnesses in the daily diary cannot vitiate the prosecution case when the name of the accused with relevant particulars was clearly mentioned in the FIR lodged without any delay. By convincing evidences of the eye witnesses the complicity of Jagdish in the commission of the said murder has bee n established. He has, therefore, submitted that this appeal should be dismissed. After giving our careful consideration to the facts and circumstances of the case and the evidences adduced through which we have been taken, it appears to us that the incident of murder had taken place at about 4.00 P.M. PW 1 and PW 2 immediately had removed the victim to the hospital where he was declared dead by the doctor who had examined the deceased and on the basis of ruqua sent by the doctor, the police came to the hospital and immediately on the arrival of the police statement of PW 1 forming the FIR was recorded. In the said FIR the name of the appellant Jagdish was clearly mentioned by indicating the name of his father and other particulars. There is nothing on record on the basis of which it can be reasonably held that such FIR was fabricated. There is no good reason to discard the evidences of the eye witnesses of PW 1 and PW 2 only because the co- villagers of Jagdish were not known to them. It also appears to us that a recovery of the weapon of assault on the basis of disclosure statement made by the accused had been established convincingly and the report of the ballistic expert also establishes that the bullet which was recovered from the body of the deceased at the tie of post mortem examination was fired from the pistol which was recovered on the basis of disclosure statement made by the accused Jagdish. The manner in which Pritam Lal Chopra was murdered by firing pistol shot from behind as indicated by the said two eye witness also stands corroborated from the medical evidence about the nature of the injury suffered by the said deceased. Therefore, the complicity of the appellant Jagdish in committing the murder of the deceased has been clearly established. ### Response: 0

Bhupendra Kumar Chimanbhai Kachiya Patel & Others Vs. Divisional Controller GSRTC Nadiad

reads as under:“In reference to the representation made to delete the provision of the section 29 of the settlement dated 23/11/1984 and implement the provision of section 43 of the settlement dated 22/10/1964 it is determined that after preparing the Division wise list of the selected employees they will be given temporary/daily wager appointment against the permanent posts in the division/unit, and if such appointed temporary/daily wager has worked continuously for 180 days including the weekly holiday/paid holiday and authorize leave then they will be taken on time scale. This provision will not be applicable to the employees on work charge working in the Civil Engineering Department and such appointed temporary/daily wager has worked continuously for 180 days including the weekly holiday/paid holiday and authorized leave then they will be taken in time scale and they will be entitled to all benefits available to time scale employees. The absence due to authorized leave for the above purpose will not be considered break and these days will not be considered for 180 days service.As per permission of S.T.T. 1981, if the recruitment of the staff has been done as a temporary or badli kamdar then after completion of their 180 days of service on the permitted vacancies they would be taken on time scale serially.Such workers will be granted all benefits as per the Rules along with the notional increment with effect from 1.8.87 and there will not be any recoveries made from them nor there will be any arrears paid.The workmen taken into service are not required during the monsoon, therefore they can be retrenched as per the requirement and after the monsoon if their services are required then again as per seniority they will be taken in time scale. If there is any permanent post vacant then the appointment of the administrative staff will be made on time scale.”28. It is not in dispute that the Corporation has followed the procedure provided in clause 20 while granting the employees their permanent cadre and the time scale of conductor. In other words, all eligible “Badali Kamdars” were absorbed in the set up and accordingly granted benefit in terms of the procedure prescribed in clause 20 of the Settlement.29. It is also clear from the undisputed facts that firstly, the appellant (employee concerned) was appointed as "Badali Kamdar" in the set up of Corporation on 04.06.1999; Secondly, clear vacancy arose in the permanent cadre of Conductor in and around 27.08.2008; Thirdly, as per the seniority list of the “Badali Kamdars”, the appellant was accordingly absorbed in the permanent cadre at the time scale with effect from 27.08.2008 on completion of 180 days of his service in the cadre and, as a consequence thereof, was given all the benefits of the said post from the said date; and lastly, since then the appellant and all employees alike him are continuing on their respective post.30. In our considered opinion, in the light of what we have held above, there is no basis for the appellants (employees) to claim the aforesaid benefit from the date of their initial appointment as “Badali Kamdar”. Indeed, there is neither any factual foundation nor any legal foundation to claim such benefit.31. Learned counsel for the appellants was also not able to show any document, such as any term/condition in the appointment letter or in the settlement or any Rule/Regulation framed by the Corporation recognizing such right in appellants’ favour to enable them to claim such benefit from the date of their initial appointment.32. Clause 20 of the Settlement is the only clause which recognizes the appellant’s right for consideration of his case on individual basis and to grant him the benefit subject to his fulfilling conditions specified therein which, in appellant’s case, were found satisfied and accordingly, he was granted the benefit along with each such employees.33. It is pertinent to mention that the appellants neither challenged the settlement nor its applicability. In other words, the legality or/and binding nature of settlement dated 21.12.1989 was never questioned in these proceedings. In this view of the matter, the settlement is binding on both parties in terms of Section 18 of the Act.34. The concept of “Badli Kamdar” is statutorily recognized under the Act. Explanation to Section 25C defines the term “Badli Kamdar”. The appellant never questioned his status as “Badli Kamdar”. Indeed, it is due to the status of “Badli Kamdar”, which he enjoyed for few years in the service of Corporation, he got the benefit of absorption in permanent cadre.35. So far as the reliance placed by the learned counsel for the appellants on some previous judicial orders are concerned, in our view, they are of no help to the appellants inasmuch as those orders turned on the facts involved in the case and secondly, we find that in those cases, parties did not even lead any evidence (see Para-3 of the order dated 27.01.2000 passed in SCA No. 393/2000 page 45 of Paper Book), and lastly, one case was based on clause 49 of 1956 settlement and clause 19 of 1985 settlement.36. In substance, in our view, those orders did not directly deal with the issues, which are the subject matter of these appeals and, even if, they deal with the issue in question, as urged by the learned counsel, then also, in our view, those cases turned on their own facts.37. In this view of the matter, those orders were rightly not relied on by the High Court and we find no good ground to take different view and accordingly reject this submission.38. Mr. Colin Gondsalves, learned senior counsel for the appellants then referred extensively to the evidence led by the parties to support his submission.39. We are afraid we cannot appreciate the evidence in the appeals filed under Article 136 of the Constitution. It is more so when the Single Judge and Division Bench did not agree with the factual findings of the Tribunal and rightly reversed those findings. It is binding on this Court.

0[ds]23. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeals.24. As rightly argued by the learned ASG, the issue in question has to be decided in the light of clause 20 of the Settlement.25. One cannot dispute the legal proposition that the settlement once arrived at between the employer and the employees as provided in Section 18 of the Act, it is binding on the employer and the employees.It is also clear from the undisputed facts that firstly, the appellant (employee concerned) was appointed as "Badali Kamdar" in the set up of Corporation on 04.06.1999; Secondly, clear vacancy arose in the permanent cadre of Conductor in and around 27.08.2008; Thirdly, as per the seniority list of the, the appellant was accordingly absorbed in the permanent cadre at the time scale with effect from 27.08.2008 on completion of 180 days of his service in the cadre and, as a consequence thereof, was given all the benefits of the said post from the said date; and lastly, since then the appellant and all employees alike him are continuing on their respective post.30. In our considered opinion, in the light of what we have held above, there is no basis for the appellants (employees) to claim the aforesaid benefit from the date of their initial appointment as. Indeed, there is neither any factual foundation nor any legal foundation to claim such benefit.31. Learned counsel for the appellants was also not able to show any document, such as any term/condition in the appointment letter or in the settlement or any Rule/Regulation framed by the Corporation recognizing such right infavour to enable them to claim such benefit from the date of their initial appointment.32. Clause 20 of the Settlement is the only clause which recognizes theright for consideration of his case on individual basis and to grant him the benefit subject to his fulfilling conditions specified therein which, incase, were found satisfied and accordingly, he was granted the benefit along with each such employees.33. It is pertinent to mention that the appellants neither challenged the settlement nor its applicability. In other words, the legality or/and binding nature of settlement dated 21.12.1989 was never questioned in these proceedings. In this view of the matter, the settlement is binding on both parties in terms of Section 18 of the Act.34. The concept ofis statutorily recognized under the Act. Explanation to Section 25C defines the term. The appellant never questioned his status as. Indeed, it is due to the status of, which he enjoyed for few years in the service of Corporation, he got the benefit of absorption in permanent cadre.35. So far as the reliance placed by the learned counsel for the appellants on some previous judicial orders are concerned, in our view, they are of no help to the appellants inasmuch as those orders turned on the facts involved in the case and secondly, we find that in those cases, parties did not even lead any evidence (seeof the order dated 27.01.2000 passed in SCA No. 393/2000 page 45 of Paper Book), and lastly, one case was based on clause 49 of 1956 settlement and clause 19 of 1985 settlement.36. In substance, in our view, those orders did not directly deal with the issues, which are the subject matter of these appeals and, even if, they deal with the issue in question, as urged by the learned counsel, then also, in our view, those cases turned on their own facts.37. In this view of the matter, those orders were rightly not relied on by the High Court and we find no good ground to take different view and accordingly reject this submission.38. Mr. Colin Gondsalves, learned senior counsel for the appellants then referred extensively to the evidence led by the parties to support his submission.39. We are afraid we cannot appreciate the evidence in the appeals filed under Article 136 of the Constitution. It is more so when the Single Judge and Division Bench did not agree with the factual findings of the Tribunal and rightly reversed those findings. It is binding on this Court.

### 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: reads as under:“In reference to the representation made to delete the provision of the section 29 of the settlement dated 23/11/1984 and implement the provision of section 43 of the settlement dated 22/10/1964 it is determined that after preparing the Division wise list of the selected employees they will be given temporary/daily wager appointment against the permanent posts in the division/unit, and if such appointed temporary/daily wager has worked continuously for 180 days including the weekly holiday/paid holiday and authorize leave then they will be taken on time scale. This provision will not be applicable to the employees on work charge working in the Civil Engineering Department and such appointed temporary/daily wager has worked continuously for 180 days including the weekly holiday/paid holiday and authorized leave then they will be taken in time scale and they will be entitled to all benefits available to time scale employees. The absence due to authorized leave for the above purpose will not be considered break and these days will not be considered for 180 days service.As per permission of S.T.T. 1981, if the recruitment of the staff has been done as a temporary or badli kamdar then after completion of their 180 days of service on the permitted vacancies they would be taken on time scale serially.Such workers will be granted all benefits as per the Rules along with the notional increment with effect from 1.8.87 and there will not be any recoveries made from them nor there will be any arrears paid.The workmen taken into service are not required during the monsoon, therefore they can be retrenched as per the requirement and after the monsoon if their services are required then again as per seniority they will be taken in time scale. If there is any permanent post vacant then the appointment of the administrative staff will be made on time scale.”28. It is not in dispute that the Corporation has followed the procedure provided in clause 20 while granting the employees their permanent cadre and the time scale of conductor. In other words, all eligible “Badali Kamdars” were absorbed in the set up and accordingly granted benefit in terms of the procedure prescribed in clause 20 of the Settlement.29. It is also clear from the undisputed facts that firstly, the appellant (employee concerned) was appointed as "Badali Kamdar" in the set up of Corporation on 04.06.1999; Secondly, clear vacancy arose in the permanent cadre of Conductor in and around 27.08.2008; Thirdly, as per the seniority list of the “Badali Kamdars”, the appellant was accordingly absorbed in the permanent cadre at the time scale with effect from 27.08.2008 on completion of 180 days of his service in the cadre and, as a consequence thereof, was given all the benefits of the said post from the said date; and lastly, since then the appellant and all employees alike him are continuing on their respective post.30. In our considered opinion, in the light of what we have held above, there is no basis for the appellants (employees) to claim the aforesaid benefit from the date of their initial appointment as “Badali Kamdar”. Indeed, there is neither any factual foundation nor any legal foundation to claim such benefit.31. Learned counsel for the appellants was also not able to show any document, such as any term/condition in the appointment letter or in the settlement or any Rule/Regulation framed by the Corporation recognizing such right in appellants’ favour to enable them to claim such benefit from the date of their initial appointment.32. Clause 20 of the Settlement is the only clause which recognizes the appellant’s right for consideration of his case on individual basis and to grant him the benefit subject to his fulfilling conditions specified therein which, in appellant’s case, were found satisfied and accordingly, he was granted the benefit along with each such employees.33. It is pertinent to mention that the appellants neither challenged the settlement nor its applicability. In other words, the legality or/and binding nature of settlement dated 21.12.1989 was never questioned in these proceedings. In this view of the matter, the settlement is binding on both parties in terms of Section 18 of the Act.34. The concept of “Badli Kamdar” is statutorily recognized under the Act. Explanation to Section 25C defines the term “Badli Kamdar”. The appellant never questioned his status as “Badli Kamdar”. Indeed, it is due to the status of “Badli Kamdar”, which he enjoyed for few years in the service of Corporation, he got the benefit of absorption in permanent cadre.35. So far as the reliance placed by the learned counsel for the appellants on some previous judicial orders are concerned, in our view, they are of no help to the appellants inasmuch as those orders turned on the facts involved in the case and secondly, we find that in those cases, parties did not even lead any evidence (see Para-3 of the order dated 27.01.2000 passed in SCA No. 393/2000 page 45 of Paper Book), and lastly, one case was based on clause 49 of 1956 settlement and clause 19 of 1985 settlement.36. In substance, in our view, those orders did not directly deal with the issues, which are the subject matter of these appeals and, even if, they deal with the issue in question, as urged by the learned counsel, then also, in our view, those cases turned on their own facts.37. In this view of the matter, those orders were rightly not relied on by the High Court and we find no good ground to take different view and accordingly reject this submission.38. Mr. Colin Gondsalves, learned senior counsel for the appellants then referred extensively to the evidence led by the parties to support his submission.39. We are afraid we cannot appreciate the evidence in the appeals filed under Article 136 of the Constitution. It is more so when the Single Judge and Division Bench did not agree with the factual findings of the Tribunal and rightly reversed those findings. It is binding on this Court. ### Response: 0

B. Shankara Rao Badami & Ors Vs. State Of Mysore & Anr

clearly so demand, a statute is not to be construed so as to take away the property of a subject without compensation: Attorney-General v. De Keysers Royal Hotel 1920 AC 508. The power to take compulsorily raises by implication a right to payment : Central Control Board v. Cannon Brewery, Co., Ltd., 1919 AC 744. The words "subject to the provisions of Entry 42, in List III" in Entry 36 reinforce the argument, as these words must be taken to mean that the power to make a law with respect to acquisition of property should be exercised subject to the condition that such law should also provide for the matters referred to in Entry 42, in other words, a twofold restriction as to public purpose and payment of compensation (both of which are referred to in Entry 42) is imposed on the exercise of the law-making power under Entry 36. Entry 36 at the material time read as follows:"Acquisition or requisition of property, except for the purposes of the Union, subject to the provisions of Entry 42 of list III".Entry 42 was to the following effect:"Principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given".By the Constitution (7th Amendment) Act, 1956, Entries 36 of List II. 33 of List I were omitted and Entry 42 of List III was altered and the altered entry reads as follows:"Acquisition and requisitioning of property".It was however pointed out on behalf of the petitioners that the amendment was not retrospective and the validity of the impugned Act must be rested by the language of Entries 36 of List II and 42 of List III as they stood at the material time.9. In our opinion, there is no substance in the argument. It is true, that under the common law of eminent domain as recognised in Anglo Saxon jurisprudence the State cannot take the property of its subject unless such property is required for a public purpose and without compensating the owner for its loss. But, when these limitations are expressly provided for in Article 31 (2) and it is further enacted that no law shall be made which takes away or abridges these safeguards, and any such law, if made, shall be void,there can be no room for implication and the words acquisition of property" in Entry 36 must be understood in their natural sence of the act of acquiring property, without importing into the phrase an obligation to pay compensation or a condition as to the existence of a public purpose. In other words, it is not correct to treat the obligation to pay compensation as implicit in the legislative Entry 33 of List I or legislative Entry 36 of List II for it is separately and expressly provided for in Article 31 (2). The well known maxim expressum facit cessare tacitum is indeed a principle of logic and commonsense and not merely a technical rule of construction. The express provision in Article 31 (2) that a law of acquisition in order to be valid must provide for compensation will therefore necessarily exclude all suggestion of an implied obligation to provide for compensation sought to be imported into the meaning of the word "acquisition" in Entry 36 of List II. In the face of the express provision of Article 31 (2), there remains no room for reading any such implication in the legislative heads. The entries in the Lists of the Seventh Schedule are designed to define and delimit the respective areas of legislative competence of the Union and States Legislatures. Such a context is hardly appropriate for the imposition of implied restrictions on the exercise of legislative powers, which are ordinarily matters for positive enactment in the body of the Constitution.10. It was said that the words "subject to the provisions of Entry 42 of List III" must be taken to mean that the law-making power under Entry 36 could be exercised subject to the two conditions as to public purpose and payment of compensation both of which are referred to in Entry 42. In our opinion, the contention is unsound. The two entries are merely heads of legislation and are neither interdependent nor complementary to each other. These words in Entry 36 mean no more than that any law made under Entry 36 by a State Legislation can be displaced or overridden by the Union Legislation making a law under Entry 42 of List III. It is important to notice that similar words do not occur in Entry 33 of List I which confers on Parliament the power to make laws with respect to acquisition of property for the purpose of the Union.For if these restrictive conditions as to public purpose and payment of compensation are to be derived only from those words, then it must follow that in the absence of those words, Parliament can make law, authorising acquisition of property without a public and without a provision for compensation.No reason was suggested why Parliamentary Legislation with respect to such acquisition of property is to be free from such restrictive condition, while State Legislation should be subject to them. The true inference is that the power to make law belonging to both Parliament and the State Legislatures can be excercised only subject to the aforesaid two restrictions not by reason of anything contained in the legislative entries themselves but by reason of positive provisions contained in Article 31 (2). But as legislation falling within Article 31A cannot be called in question in a Court of law for non-compliance with those provisions such legislation cannot be struck down as unconstitutional and void. In our opinion, Counsel on behalf of the petitioners is unable to make good his argument that the impugned Act was beyond the legislative competence of the Mysore Legislature at the time when it was enacted.

1[ds]The impugned Act is entitled as an Act to provide for the "abolition of personal inams and certain miscellaneous inams in the State of Mysore except Bellary District." The preamble states that it is expedient in the public interest to provide for the abolition of personal inams and certain miscellaneous inams in the State of Mysore except Bellary District and for other matters connected therewith. Section 1 (4) enacts that this section and Sections 2, 27, 38 and 40 shall come into force in respect of any inam village, or minor inam in an un-alienated village, on such date as the Government may by notification appoint.In the present case, it is plain that under Article 31A as introduced by the 1st Amendment to the Constitution or as altered by the 4th Amendment, the impugned Act is protected from attack in any Court on the ground that it contravenes the provisions of Article 31 (2) of the Constitution. The reason is that the impugned Act is a law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of such rights as contemplated by Article 31A of the Constitution. The impugned Act provides for acquisition of the rights of inamdars in inam estates in Mysore State and it is intended to abolish all intermediate holders who were termed as superior holders and to establish direct relationship between the Government and occupants of land in the Inam Villages in respect of which notifications had been issued. The legislation was under taken as a part of agrarian reform which the Mysore State Legislature proposed to bring about in the former State of Mysore. The impugned statute, therefore, falls under the protection of Article 31A of the Constitution and cannot be challenged on the ground that Article 31 has been violated, that no principle of compensation has been provided or that the compensation provided for is illusory orthat case the petitioners lands were notified for acquisition or the purpose of housing schemes and the object of the acquisition was slum clearance. In that case also it was held by this Court that the principle of Bela Banerjees case, 1954 SCR 558 = (AIR 1954 SC 170 ) (supra) should be applied and by virtue of Article 31 (2) the Legislature in making the law of acquisition must provide for a "just equivalent" of what the owner has been deprived of or specify the principles for the purpose of ascertaining such "just equivalent." It was pointed out that the comparative study of the principle Act and the Amending Act showed that if land was acquired for a housing scheme under the Amending Act, the claimant would get a lesser value than what he would get for the same or similar land acquired for some public purpose under the principal Act. The discrimination between persons whose lands were acquired for housing schemes and those whose lands were acquired for other public purposes could not be sustained on the principal of reasonable classification and the Amending Act clearly violated Article 14 of the Constitution and was void. In our opinion, the ratio of the two decisions in 1964-6 SCR 936 = (AIR 1965 SC 190 ) and 1965-1 SCR 614 = (AIR 1965 SC 1017 ) (supra) has no application to the present case because those cases related to legislation not dealing with agrarian reform and the protection of Article 31A of the Constitution was not available to either of the statutes challenged in those cases.In our opinion, there is no substance in the argument. It is true, that under the common law of eminent domain as recognised in Anglo Saxon jurisprudence the State cannot take the property of its subject unless such property is required for a public purpose and without compensating the owner for its loss. But, when these limitations are expressly provided for in Article 31 (2) and it is further enacted that no law shall be made which takes away or abridges these safeguards, and any such law, if made, shall be void,there can be no room for implication and the words acquisition of property" in Entry 36 must be understood in their natural sence of the act of acquiring property, without importing into the phrase an obligation to pay compensation or a condition as to the existence of a public purpose. In other words, it is not correct to treat the obligation to pay compensation as implicit in the legislative Entry 33 of List I or legislative Entry 36 of List II for it is separately and expressly provided for in Article 31 (2). The well known maxim expressum facit cessare tacitum is indeed a principle of logic and commonsense and not merely a technical rule of construction. The express provision in Article 31 (2) that a law of acquisition in order to be valid must provide for compensation will therefore necessarily exclude all suggestion of an implied obligation to provide for compensation sought to be imported into the meaning of the word "acquisition" in Entry 36 of List II. In the face of the express provision of Article 31 (2), there remains no room for reading any such implication in the legislative heads. The entries in the Lists of the Seventh Schedule are designed to define and delimit the respective areas of legislative competence of the Union and States Legislatures. Such a context is hardly appropriate for the imposition of implied restrictions on the exercise of legislative powers, which are ordinarily matters for positive enactment in the body of theour opinion, the contention is unsound. The two entries are merely heads of legislation and are neither interdependent nor complementary to each other. These words in Entry 36 mean no more than that any law made under Entry 36 by a State Legislation can be displaced or overridden by the Union Legislation making a law under Entry 42 of List III. It is important to notice that similar words do not occur in Entry 33 of List I which confers on Parliament the power to make laws with respect to acquisition of property for the purpose of the Union.For if these restrictive conditions as to public purpose and payment of compensation are to be derived only from those words, then it must follow that in the absence of those words, Parliament can make law, authorising acquisition of property without a public and without a provision for compensation.No reason was suggested why Parliamentary Legislation with respect to such acquisition of property is to be free from such restrictive condition, while State Legislation should be subject to them. The true inference is that the power to make law belonging to both Parliament and the State Legislatures can be excercised only subject to the aforesaid two restrictions not by reason of anything contained in the legislative entries themselves but by reason of positive provisions contained in Article 31 (2). But as legislation falling within Article 31A cannot be called in question in a Court of law for non-compliance with those provisions such legislation cannot be struck down as unconstitutional and void. In our opinion, Counsel on behalf of the petitioners is unable to make good his argument that the impugned Act was beyond the legislative competence of the Mysore Legislature at the time when it was enacted.

### 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: clearly so demand, a statute is not to be construed so as to take away the property of a subject without compensation: Attorney-General v. De Keysers Royal Hotel 1920 AC 508. The power to take compulsorily raises by implication a right to payment : Central Control Board v. Cannon Brewery, Co., Ltd., 1919 AC 744. The words "subject to the provisions of Entry 42, in List III" in Entry 36 reinforce the argument, as these words must be taken to mean that the power to make a law with respect to acquisition of property should be exercised subject to the condition that such law should also provide for the matters referred to in Entry 42, in other words, a twofold restriction as to public purpose and payment of compensation (both of which are referred to in Entry 42) is imposed on the exercise of the law-making power under Entry 36. Entry 36 at the material time read as follows:"Acquisition or requisition of property, except for the purposes of the Union, subject to the provisions of Entry 42 of list III".Entry 42 was to the following effect:"Principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given".By the Constitution (7th Amendment) Act, 1956, Entries 36 of List II. 33 of List I were omitted and Entry 42 of List III was altered and the altered entry reads as follows:"Acquisition and requisitioning of property".It was however pointed out on behalf of the petitioners that the amendment was not retrospective and the validity of the impugned Act must be rested by the language of Entries 36 of List II and 42 of List III as they stood at the material time.9. In our opinion, there is no substance in the argument. It is true, that under the common law of eminent domain as recognised in Anglo Saxon jurisprudence the State cannot take the property of its subject unless such property is required for a public purpose and without compensating the owner for its loss. But, when these limitations are expressly provided for in Article 31 (2) and it is further enacted that no law shall be made which takes away or abridges these safeguards, and any such law, if made, shall be void,there can be no room for implication and the words acquisition of property" in Entry 36 must be understood in their natural sence of the act of acquiring property, without importing into the phrase an obligation to pay compensation or a condition as to the existence of a public purpose. In other words, it is not correct to treat the obligation to pay compensation as implicit in the legislative Entry 33 of List I or legislative Entry 36 of List II for it is separately and expressly provided for in Article 31 (2). The well known maxim expressum facit cessare tacitum is indeed a principle of logic and commonsense and not merely a technical rule of construction. The express provision in Article 31 (2) that a law of acquisition in order to be valid must provide for compensation will therefore necessarily exclude all suggestion of an implied obligation to provide for compensation sought to be imported into the meaning of the word "acquisition" in Entry 36 of List II. In the face of the express provision of Article 31 (2), there remains no room for reading any such implication in the legislative heads. The entries in the Lists of the Seventh Schedule are designed to define and delimit the respective areas of legislative competence of the Union and States Legislatures. Such a context is hardly appropriate for the imposition of implied restrictions on the exercise of legislative powers, which are ordinarily matters for positive enactment in the body of the Constitution.10. It was said that the words "subject to the provisions of Entry 42 of List III" must be taken to mean that the law-making power under Entry 36 could be exercised subject to the two conditions as to public purpose and payment of compensation both of which are referred to in Entry 42. In our opinion, the contention is unsound. The two entries are merely heads of legislation and are neither interdependent nor complementary to each other. These words in Entry 36 mean no more than that any law made under Entry 36 by a State Legislation can be displaced or overridden by the Union Legislation making a law under Entry 42 of List III. It is important to notice that similar words do not occur in Entry 33 of List I which confers on Parliament the power to make laws with respect to acquisition of property for the purpose of the Union.For if these restrictive conditions as to public purpose and payment of compensation are to be derived only from those words, then it must follow that in the absence of those words, Parliament can make law, authorising acquisition of property without a public and without a provision for compensation.No reason was suggested why Parliamentary Legislation with respect to such acquisition of property is to be free from such restrictive condition, while State Legislation should be subject to them. The true inference is that the power to make law belonging to both Parliament and the State Legislatures can be excercised only subject to the aforesaid two restrictions not by reason of anything contained in the legislative entries themselves but by reason of positive provisions contained in Article 31 (2). But as legislation falling within Article 31A cannot be called in question in a Court of law for non-compliance with those provisions such legislation cannot be struck down as unconstitutional and void. In our opinion, Counsel on behalf of the petitioners is unable to make good his argument that the impugned Act was beyond the legislative competence of the Mysore Legislature at the time when it was enacted. ### Response: 1

POORAN SINGH Vs. DHANIRAM (SINCE DEAD) THR. LEGAL HEIRS

said to have been served on him and purporting to bear his signature in fact does not bear his signature and that it contains a forge signature of the petitioner. He having failed to take this plea before the fact finding authorities, cannot take it for the first time under Article 226 of the Constitution. If the petitioner was given an opportunity by serving notice on him and he failed to appear without any sufficient cause, he alone is to be blamed for that.It was then urged by counsel for the petitioner that in view of section 170C of the M.P. Land Revenue Code, no counsel could have appeared for respondent no.5 before the Collector without obtaining the permission of the Collector. The question as to whether counsel who appeared for respondent no. 5 had obtained any permission from the Collector or not, is again a question of fact and it should have been raised before the fact finding authorities. It cannot be raised for the first time in a writ petition.No other point has been pressed.In the result, the petition is dismissed.”8. On 19 July 1986, possession was restored to Beniram, the predecessor-in-interest of the appellant.9. After the dismissal of the writ petition by the High Court, Dhaniram filed a suit before the Civil Judge Class II, Balod against the appellant seeking a permanent injunction, possession and a declaration that the order dated 5 June 1985 of the Collector was null and void. The appellant contested the suit. The suit was rejected on 11 December 1995. However, in a first appeal , the District Judge, Durg set aside the order of the Trial Court and decreed the suit. The appellant unsuccessfully challenged the order of the first appellate court in a Second Appeal. The Second Appeal having been dismissed on 25 February 2015, these proceedings were instituted.10. After the rejection of the suit on 11 December 1995, Section 257 (L-1) was introduced by an amendment of the Madhya Pradesh Land Revenue Code in order to bar the jurisdiction of the civil court to entertain suits pertaining to orders under Section 170B. Section 257, insofar as is material, reads as follows:“257. Except as otherwise provided in this Code, or in any other enactment for the time being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters :-(a) any decision regarding the purpose to which land is appropriated under Section 59;(b) any question as to the validity or effect of the notification of a revenue survey or any question as to the term of a settlement;(c) any claim to modify a decision determining abadi made by a Settlement Officer or Collector;(d) any claim against the State Government to hold land free of land revenue, or at less than the fair assessment, or to be assigned in whole or in part the land revenue assessed on any land;(e) the amount of land revenue assessed or reassessed under this Code or any other enactment for the time being in force;(f) any claim against the State Government to have any entry made in any land records or to have any such entry omitted or amended.(g) any question regarding the demarcation of boundaries or fixing of boundary marks under Chapter X;(h) any claim against the State Government connected with or arising out of, the collection of land revenue or the recovery of any sum which is recoverable as land revenue under this Code or any other enactment;(i) any claim against the State Government or against a Revenue Officer for remission or suspension of land revenue, or for a declaration that crops have failed in any year;(j) any decision regarding forfeiture in cases of certain transfers under Section 166;(k) ejectment of a lesser of a bhumiswami under sub- section (4) of Section 168;1(l) any claim to set aside transfer by a bhumiswami under subsection (1) of Section 170 and clauses (a) and (b) of sub-section (2) of Section 170-A;]2(l-1) any matter covered under Section 170-B.]”11. The High Court by its impugned order held that:(i) no enquiry had been made by the Collector under Section 170B;(ii) the presumption under Section 170B is rebuttable;(iii) the amendment introducing Section 257 (L-1) on 15 December 1995 would have no application to the suit which was instituted on 18 February 1992; and(iv) in view of (ii), the bar of jurisdiction was not attracted.12. The basic issue which falls for consideration is whether it was open to the respondent to institute a suit to challenge the order passed by the Collector, Durg on 5 June 1985, when an earlier challenge to the legality of the order had culminated in the final judgment of the High Court on 16 February 1987. The answer to that issue must lie in the negative. The order of the Collector was placed in issue before the High Court in MP 367 of 1987. The order which has been extracted in the earlier part of the judgment indicates that the challenge was on the ground that the notice of the appeal before the Collector had not been served on the original respondent, Dhaniram. The judgment of the High Court enquired into the legality of the order passed by the Collector. The High Court came to the conclusion that the order was in accordance with law. The writ petition was dismissed. Once the order of the Collector was affirmed in the final judgment and order of the High Court dated 16 February 1987, it was not open to a civil court to arrive at a conclusion to the contrary. The High Court, in our view, has manifestly erred in ignoring the clear effect of the earlier order dated 16 February 1987.

1[ds]The answer to that issue must lie in the negative. The order of the Collector was placed in issue before the High Court in MP 367 of 1987. The order which has been extracted in the earlier part of the judgment indicates that the challenge was on the ground that the notice of the appeal before the Collector had not been served on the original respondent, Dhaniram. The judgment of the High Court enquired into the legality of the order passed by the Collector. The High Court came to the conclusion that the order was in accordance with law. The writ petition was dismissed. Once the order of the Collector was affirmed in the final judgment and order of the High Court dated 16 February 1987, it was not open to a civil court to arrive at a conclusion to the contrary. The High Court, in our view, has manifestly erred in ignoring the clear effect of the earlier order dated 16 February 1987.

### 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: said to have been served on him and purporting to bear his signature in fact does not bear his signature and that it contains a forge signature of the petitioner. He having failed to take this plea before the fact finding authorities, cannot take it for the first time under Article 226 of the Constitution. If the petitioner was given an opportunity by serving notice on him and he failed to appear without any sufficient cause, he alone is to be blamed for that.It was then urged by counsel for the petitioner that in view of section 170C of the M.P. Land Revenue Code, no counsel could have appeared for respondent no.5 before the Collector without obtaining the permission of the Collector. The question as to whether counsel who appeared for respondent no. 5 had obtained any permission from the Collector or not, is again a question of fact and it should have been raised before the fact finding authorities. It cannot be raised for the first time in a writ petition.No other point has been pressed.In the result, the petition is dismissed.”8. On 19 July 1986, possession was restored to Beniram, the predecessor-in-interest of the appellant.9. After the dismissal of the writ petition by the High Court, Dhaniram filed a suit before the Civil Judge Class II, Balod against the appellant seeking a permanent injunction, possession and a declaration that the order dated 5 June 1985 of the Collector was null and void. The appellant contested the suit. The suit was rejected on 11 December 1995. However, in a first appeal , the District Judge, Durg set aside the order of the Trial Court and decreed the suit. The appellant unsuccessfully challenged the order of the first appellate court in a Second Appeal. The Second Appeal having been dismissed on 25 February 2015, these proceedings were instituted.10. After the rejection of the suit on 11 December 1995, Section 257 (L-1) was introduced by an amendment of the Madhya Pradesh Land Revenue Code in order to bar the jurisdiction of the civil court to entertain suits pertaining to orders under Section 170B. Section 257, insofar as is material, reads as follows:“257. Except as otherwise provided in this Code, or in any other enactment for the time being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters :-(a) any decision regarding the purpose to which land is appropriated under Section 59;(b) any question as to the validity or effect of the notification of a revenue survey or any question as to the term of a settlement;(c) any claim to modify a decision determining abadi made by a Settlement Officer or Collector;(d) any claim against the State Government to hold land free of land revenue, or at less than the fair assessment, or to be assigned in whole or in part the land revenue assessed on any land;(e) the amount of land revenue assessed or reassessed under this Code or any other enactment for the time being in force;(f) any claim against the State Government to have any entry made in any land records or to have any such entry omitted or amended.(g) any question regarding the demarcation of boundaries or fixing of boundary marks under Chapter X;(h) any claim against the State Government connected with or arising out of, the collection of land revenue or the recovery of any sum which is recoverable as land revenue under this Code or any other enactment;(i) any claim against the State Government or against a Revenue Officer for remission or suspension of land revenue, or for a declaration that crops have failed in any year;(j) any decision regarding forfeiture in cases of certain transfers under Section 166;(k) ejectment of a lesser of a bhumiswami under sub- section (4) of Section 168;1(l) any claim to set aside transfer by a bhumiswami under subsection (1) of Section 170 and clauses (a) and (b) of sub-section (2) of Section 170-A;]2(l-1) any matter covered under Section 170-B.]”11. The High Court by its impugned order held that:(i) no enquiry had been made by the Collector under Section 170B;(ii) the presumption under Section 170B is rebuttable;(iii) the amendment introducing Section 257 (L-1) on 15 December 1995 would have no application to the suit which was instituted on 18 February 1992; and(iv) in view of (ii), the bar of jurisdiction was not attracted.12. The basic issue which falls for consideration is whether it was open to the respondent to institute a suit to challenge the order passed by the Collector, Durg on 5 June 1985, when an earlier challenge to the legality of the order had culminated in the final judgment of the High Court on 16 February 1987. The answer to that issue must lie in the negative. The order of the Collector was placed in issue before the High Court in MP 367 of 1987. The order which has been extracted in the earlier part of the judgment indicates that the challenge was on the ground that the notice of the appeal before the Collector had not been served on the original respondent, Dhaniram. The judgment of the High Court enquired into the legality of the order passed by the Collector. The High Court came to the conclusion that the order was in accordance with law. The writ petition was dismissed. Once the order of the Collector was affirmed in the final judgment and order of the High Court dated 16 February 1987, it was not open to a civil court to arrive at a conclusion to the contrary. The High Court, in our view, has manifestly erred in ignoring the clear effect of the earlier order dated 16 February 1987. ### Response: 1

A.V. Nachane and Another Vs. Union of India and Another

these observations expressed the majority view of a bench of seven judges bearing directly on the point that arises for decision in the instant case and A are binding on us. We therefore hold that r ule 3 operating retrospectively cannot nullify the effect of the writ issued in D. J. Bahadurs case which directed the Life Insurance Corporation to give effect to the terms of the 1974 settlements relating to bonus until superseded by a fresh s ettlement, an industrial award or relevant legislation. The Life insurance Corporation (Amendment) Act, 1981 and the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981 are relevant legis lation. However in view of the decision in Madan Mohan Pathaks case, these rules, in so far as they seek to abrogate the terms of the 1974 settlements relating to bonus, can operate only prospectively, that is, from Februa ry 2, 1981, the date of publication of the rules. The petitions are allowed to this extent only.In the circumstances of the case we make no order as to costs. CHINNAPPA REDDY, J. 20. I have had the advantage of perusing the opinion of my brother Gupta J., I agree with his conclusion that the Life Insurance Corporation (Amendment) Act I of 1981 can operate but prospectively in so far as it seeks to nullify the terms of the 1974 settlements in regard to the payment o f bonus. On some of the other questions I have certain reservations. I do not, however, desire to express any opinion on those questions as my brother Pathak J., has indicated that he is inclined to agree with Gupta J., on those questions. Perhaps I will do well to add a few words of my own on the question of retrospectivity. I am spared the necessity of stating the facts as those that are necessary have been stated by my brother Gupta J. 21. The 1974 settlements provided, among various other matters, for the payment of annual cash bonus (not a profit sharing bonus) to their Class Ill and Class IV employees at the rate of 15 per cent of the annual salary. The settlements were to be operative from 1st April 1973 to 31st March 1977. That the settlements were to be operative from 1st April 1973 to 31st March 1977 did not mean that the settlements would cease to be effective peremptorily from 1- 4-1977 and, therefore, the a nnual cash bonus stipulated under the settlements would cease to be payable from that date onwards. The settlements would continue to be binding even after 31-3.1977 and would not be liable to be terminated by the issuance of a unilateral notice by the employer purporting to terminate the settlements. The settlements would cease to be effective only when they were replaced by a fresh settlement, an industrial award or relevant legislation. This is the law and this was what the law was pronounced to be in Life Insurance Corporation of India v. D. J Bahadur(1) on a consideration of the relevant provisions and precedents.The attempt made to supersede the settlements, in so far as they related to the payment of bonus, by enacting the Life In surance Corporation (Modification of Settlement) Act 1976 failed, firstly because the Act was held to violate the provisions of Article 31(2) of the Constitution and secondly because the Act could not have retrospective effect so as to absolve the Life In surance Corporation from obeying the writ of mandamus issued by the Calcutta High Court, which had become final and binding on the parties. This was the decision of this Court in Madan Mohan Pathak v. Union of India(a), all the seven judge s who constituted the Bench agreeing that the Act violated the provisions of Article 31(21 and four out of the seven judges, namely, Beg C. J., Bhagwati, Krishna Iyer and Desai JJ., taking the view that the Act did not have the effect of nulli fying the writ of mandamus issued by the Calcutta High Court and the other three Judges, Chandrachud, Fazal Ali and Shinghal JJ, preferring not to express any view on that question. 22. The second attempt to nullify the 1974 settlements in re gard to payment of bonus, by issuing notices under section 19(2) and Section 9-A of the Industrial Disputes Act and by amending the Standardization order and the Staff Regulations, was frustrated by the judgment of this Court in Life Insurance Corporation of India v. D.A.. Bandar, the Court taking the view that the two settlements could only be superseded by a fresh settlement, an industrial award or relevant legislation. In this case, the Court issued a writ to the Life Insurance Co rporation "to give effect to the terms of the settlements of 1974 relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation". 23. The effect of the two judgments in Madan Mohan Pathaks case and D. J, Bahadhurs case was clear: the settlements of 1974, in so far as they related to bonus could only be superseded by a fresh settlement. an industrial award or relevant legislation. But any such supersession could only have future effect, but not retrospective effect so as to dissentient the Class III and Class IV employees of the Life Insurance Corporation from receiving the cash bonus which had been earned by them, day by day and which the Life Insuran ce Corporation of India was under an obligation to pay in terms of the writ issued in D. J. Bahadurs case. The present attempt made by the 1981 amending Act and the rules thereunder to scuttle the payment of bonus with effect from a date anterior to the date of the enactment must, therefore, fail. The employees are entitled to be paid the bonus earned by them before the date of publication of the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981.

1[ds]We have already said that the material produced on behalf of the Union of India and the Corporation to show that the terms and conditions of service of the employees in several other undertakings in the public sector compared unfavourably to those of the Corporation employees was not conclusive. But the burden of establishing hostile discrimination was on the petition ers who challenged the Amendment Act and the rules. It was for them to show that the employees of the Life Insurance Corporation and the employees of the other establishment to whom the provisions of the Industrial Disputes Act were appl icable were similarly circumstanced to justify the contention that by excluding the employees of the Corporation from the purview of the Industrial Disputes Act they had been discriminated against. There is no material before us on the basis of which we can hold that the Amendment Act of 1981 and the rules made on February 2, 1981 infringe Article 14. We do not think that on the facts of this Case Express Newspapers (Private) Limited and another v. Union of India, (1) Moti Ram Deka etc. v. General Manager N.E.F. Railways, Maligaon, Pandu etc., (2) relied on by the petitioners, have any application.It was contended thatn (2C) added to section 48 of the Life Insurance Corporation Act, 1956 by the Amendm ent Act of 1981 was invalid because of excessive delegation of legislative functions and that ifn (2C) which is an integral part of the Amendment Act was ultra vires, the entire Amendment Act would be unconstitutional T he Amendment Act introduced clause (cc) in section 48(2) authorising the Central Government to make rules in respect of the terms and conditions of service of the employees and agents of the Corporation.n (2C) of section 48 provides in ter alia that rules made under clause (cc) shall have effect notwithstanding anything contained in the Industrial Disputes Act, 1947 or any other law for the time being in force. The argument is that the rules made under section 48(2) (cc) can vi rtually repeal the Industrial Disputes Act and other laws to the extent they are inconsistent with these rules. Repealing a law, it was submitted on the authority of In re Delhi Laws Act, (l) was an essential legislative function which had been del egated to the Central Government and that the delegation was therefore excessive. It is now well settled that it is competent for the legislature to delegate to other authorities the power to frame rules to carry out the purpo ses of the law made by it (see In re the Delhi Laws Act, (l) Raj Narain Singh v. The Chairman, Patna Administration Committee, Patna and another, (2) and D.S. Garewal v. State of Punjab and another(3) but the essential legislative funct ions cannot be delegated. What is essential legislative function has been explained by Mukerjee., J. in the Delhi Laws case as follows:e essential legislative function consists in the determination or choosing of the legislative poli cy and of formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of thatn Raj Narain Singh v. The Chairman, Patna Administration Committee, Patna, and another(2) a bench of five Judges of this Court held that an executive authority can be empowered by a statute to modify either existing or future laws but not in any essential feature. In the instant case section 48(2C) read with section 48(2) (cc) authorises the Cen tral Government to make rules to carry out the purposes of the Act notwithstanding the Industrial Disputes Act or any other law. This means that in respect of the matters covered by the rules the provisions of the Industrial Disputes Act or any other law will not be operative. The argument is thatn (2C) or any other provision introduced in the principal Act by the Amendment Act does not lay down any legislative policy nor supply any guidelines as to the exten t to which theg authority would be competent to override the provisions of the Industrial Disputes Act or other laws. Reference was made to Municipal Corporation af Delhi v. Birla Cotton Spinning and Weaving Mills, Delhi and another, (l) Gwal ior Rayon Silk Manufacturing (Weaving) Company Limited v. Assistant Commissioner ofx and others, (2) for the proposition that unlimited right of delegation is not inherent in the legislative power itself14. We think thel was right in his submission that what has been said of section 6 of the Essential Supplies (Tempo rary Powers) Act should hold good for subsection (2C) of section 48 of the Life Insurance Corporation Act which is similar in terms in so far as it authorises the Central Government to make rules bypassing the existing laws. Mahajan C.J., also h olds that assuming that the rules framed under the Act had the effect of repealing the l l existing laws, the power to repeal is exercised not by the delegate but by the Act itself. This is what he says on this point:"Conceding, howeve r, for the sake of argument that to the extent of a repugnancy between an order made under section 3 and the provisions of an existing law, to the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any Act of the delegate, but the repeal is by the legislative Act of the Parliament itself. By enacting section 6 Parliament itself has declared that an order made under section 3 sh all have effect notwithstanding any inconsistency in this order with any enactment other than this Act. This is not a declaration made by the delegate but the Legislature itself has declared its will that way in section 6. The abrogation or the implied repeal is by force of the legislative declaration contained in section 6 and is not by force of the order made by the delegate under section 3. The power of the delegate is only to make an order unde r section 3. Once the delegate has made that order its power is exhausted. Section 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any i nconsistency therewith contained in any enactment other than this Act. Parliament being supreme, it certainly could make a law abrogating or repealing by implication provisions of anyg law and no exception could be t aken on the ground of excessive delegation to the Act of the Parliamente Attorney General relied strongly on these observations in submitting that it is not really the rules framed by the Central Government in exercise of t he delegated authority that override the Industrial Disputes Act or any other existing law but the power of abrogating the existing laws is inn (2C) of section 48 enacted by Parliament itself. The observations quoted above from Harishankar Baglas case which was decided by a bench of five Judges appear to support the Attorney Generals contention15. The question however remains to be answered,does the Life Insurance Corporation Act, 1956 as amended in 1981 state an y policy to guide theg authority ?We have earlier referred to the observations of Mukerjea J., in the Delhi Laws case that the legislature can formulate a policy as broadly and with as little or as much details as it thinks proper and may delegate the rest of the Iegislative work to a subordinate authority who will work out the details within the framework of the policy. In Harishanker Baglas case one of the questions for decision was whether section 3 of the A Essential Supplies (Temporary Powers) Act, 1946 amounts to delegation of legislative power outside the permissible limits. It was held that legislature had laid down a legislative principle which was "maintaining or increasing supplies of any essential commodity, " and "securing their equitable distribution and availability at fair prices." That statement was held as offering sufficient guidance to the Central Government in exercising its powers under section 3. In the instant case the policy as stated in the preamble of the Amendment Act is that "for securing the interests of the Life Insurance Corporation of India and itss and to control the cost of administration, it is necessary that revision of the terms a nd conditions of service applicable to the employees and agents of the Corporation should be undertaken expeditiously". The policy stated here is at least as clear as the one held in Harishanker Baglas case offering sufficient guidance to the Central Government in exercising its powers under that Acts We have referred to section 48(3) of the Life Insurance Corporation Act which requires that every rule made by the Central Government under this Act shall be laid before each House o f Parliament and that if both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be. This Court in D.S. Grewal v. State of Punjab and another(supra) observed as follows in respect of a similar provision requiring the rules made by the delegated authority to be laid on the table of Parliament and making the rules subject to modificat ion, whether by way of repeal or amendment on a motion made bys makes it perfectly clear that Parliament has in no way abdicated its authority, but is keeping strict vigilance and control over its delegate."16. In view of what has been held in Harishanker Bagla and D. S. Grewal, both of which were decided by a larger bench, we do not find it possible to accept the contention that the Act is invalid on the ground of excessive delegation of legislative functionsIn our opinion this contention has substa nce. Clause (cc) of section 48(2) empowers the Central Government to make rules with regard to the terms and conditions of service of the employees and agents of the Corporation.n (2A) of section 48 provides that the regulations made u nder section 49 of the Act and "other provisions as in force before the commencement of the Amendment Act with respect to the said terms and conditions are to be deemed as rules made under clause (cc) of section 48(2).n (2B) of section 48 says that the power to make rules conferred by clause (cc) ofn (2) shall include the power to add, vary or repeal the regulations and "other provisions" referred to in sub section (2A) with retrospective effect from a date not e arlier than June 20, 1979. Clearly a writ issued by this Court is not a regulation nor can it be described as other provision which expression possibly includes circulars and administrative directions.n (2C) of section 48 however provi des inter alia that any rules made under clause (cc) with retrospective effect from any date shall be deemed to have had effect from that date notwithstanding any judgment, decree or order of any court, tribunal or other authority. The order disp osing of D. J. Bahadurs case, made on November 10, 1980n view of the opinion expressed by the majority, the appeal is dismissed with costs to the first, second and third respondents, and the Transfer Petition No. 1 of 1 979 stands allowed insofar that a writ will issue to the Life Insurance Corporation directing it to give effect to the terms of the settlements of 1974 relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation. Costs in respect of the Transfer Petition will be paid to the petitioners by the second respondent."But these observations expressed the majority view of a bench of seven judges bearing directly on the point that arises for decision in the instant case and A are binding on us. We therefore hold that r ule 3 operating retrospectively cannot nullify the effect of the writ issued in D. J. Bahadurs case which directed the Life Insurance Corporation to give effect to the terms of the 1974 settlements relating to bonus until superseded by a fresh s ettlement, an industrial award or relevant legislation. The Life insurance Corporation (Amendment) Act, 1981 and the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981 are relevant legis lation. However in view of the decision in Madan Mohan Pathaks case, these rules, in so far as they seek to abrogate the terms of the 1974 settlements relating to bonus, can operate only prospectively, that is, from Februa ry 2, 1981, the date of publication of the rules. The petitions are allowed to this extent only.In the circumstances of the case we make no order as to costs.

### 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: these observations expressed the majority view of a bench of seven judges bearing directly on the point that arises for decision in the instant case and A are binding on us. We therefore hold that r ule 3 operating retrospectively cannot nullify the effect of the writ issued in D. J. Bahadurs case which directed the Life Insurance Corporation to give effect to the terms of the 1974 settlements relating to bonus until superseded by a fresh s ettlement, an industrial award or relevant legislation. The Life insurance Corporation (Amendment) Act, 1981 and the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981 are relevant legis lation. However in view of the decision in Madan Mohan Pathaks case, these rules, in so far as they seek to abrogate the terms of the 1974 settlements relating to bonus, can operate only prospectively, that is, from Februa ry 2, 1981, the date of publication of the rules. The petitions are allowed to this extent only.In the circumstances of the case we make no order as to costs. CHINNAPPA REDDY, J. 20. I have had the advantage of perusing the opinion of my brother Gupta J., I agree with his conclusion that the Life Insurance Corporation (Amendment) Act I of 1981 can operate but prospectively in so far as it seeks to nullify the terms of the 1974 settlements in regard to the payment o f bonus. On some of the other questions I have certain reservations. I do not, however, desire to express any opinion on those questions as my brother Pathak J., has indicated that he is inclined to agree with Gupta J., on those questions. Perhaps I will do well to add a few words of my own on the question of retrospectivity. I am spared the necessity of stating the facts as those that are necessary have been stated by my brother Gupta J. 21. The 1974 settlements provided, among various other matters, for the payment of annual cash bonus (not a profit sharing bonus) to their Class Ill and Class IV employees at the rate of 15 per cent of the annual salary. The settlements were to be operative from 1st April 1973 to 31st March 1977. That the settlements were to be operative from 1st April 1973 to 31st March 1977 did not mean that the settlements would cease to be effective peremptorily from 1- 4-1977 and, therefore, the a nnual cash bonus stipulated under the settlements would cease to be payable from that date onwards. The settlements would continue to be binding even after 31-3.1977 and would not be liable to be terminated by the issuance of a unilateral notice by the employer purporting to terminate the settlements. The settlements would cease to be effective only when they were replaced by a fresh settlement, an industrial award or relevant legislation. This is the law and this was what the law was pronounced to be in Life Insurance Corporation of India v. D. J Bahadur(1) on a consideration of the relevant provisions and precedents.The attempt made to supersede the settlements, in so far as they related to the payment of bonus, by enacting the Life In surance Corporation (Modification of Settlement) Act 1976 failed, firstly because the Act was held to violate the provisions of Article 31(2) of the Constitution and secondly because the Act could not have retrospective effect so as to absolve the Life In surance Corporation from obeying the writ of mandamus issued by the Calcutta High Court, which had become final and binding on the parties. This was the decision of this Court in Madan Mohan Pathak v. Union of India(a), all the seven judge s who constituted the Bench agreeing that the Act violated the provisions of Article 31(21 and four out of the seven judges, namely, Beg C. J., Bhagwati, Krishna Iyer and Desai JJ., taking the view that the Act did not have the effect of nulli fying the writ of mandamus issued by the Calcutta High Court and the other three Judges, Chandrachud, Fazal Ali and Shinghal JJ, preferring not to express any view on that question. 22. The second attempt to nullify the 1974 settlements in re gard to payment of bonus, by issuing notices under section 19(2) and Section 9-A of the Industrial Disputes Act and by amending the Standardization order and the Staff Regulations, was frustrated by the judgment of this Court in Life Insurance Corporation of India v. D.A.. Bandar, the Court taking the view that the two settlements could only be superseded by a fresh settlement, an industrial award or relevant legislation. In this case, the Court issued a writ to the Life Insurance Co rporation "to give effect to the terms of the settlements of 1974 relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation". 23. The effect of the two judgments in Madan Mohan Pathaks case and D. J, Bahadhurs case was clear: the settlements of 1974, in so far as they related to bonus could only be superseded by a fresh settlement. an industrial award or relevant legislation. But any such supersession could only have future effect, but not retrospective effect so as to dissentient the Class III and Class IV employees of the Life Insurance Corporation from receiving the cash bonus which had been earned by them, day by day and which the Life Insuran ce Corporation of India was under an obligation to pay in terms of the writ issued in D. J. Bahadurs case. The present attempt made by the 1981 amending Act and the rules thereunder to scuttle the payment of bonus with effect from a date anterior to the date of the enactment must, therefore, fail. The employees are entitled to be paid the bonus earned by them before the date of publication of the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981. ### Response: 1

State Of Karnataka Vs. Krishna Bhima Walvakar & Anr

legal fiction, treats the owners to have control over the edible oil, edible oil seeds and cakes, in transit. The respondent No. 4, being the purchaser, also comes within the definition of stock-holder by reason of the said Explanation. There is nothing to show that the consignor had, reserved the jus-disponendi by the terms of the contract or appropriation and, therefore, the property in the goods passed to the respondent No. 4 on their delivery to a common carrier under S. 25 of the Sale of Goods Act, 1930 12. The allegation in the complaint is that 40 barrels of groundnut oil weighing 7, 200 kg. were being transported by the truck bearing No. MHL 2675 without furnishing the requisite declaration in Form II and it was intercepted at the Hukeri cheek-post by the Sub-Inspector of Police. In response to a notice issued by the Deputy Commissioner under section 6-B of the Act, the respondent No. 4 produced before him the documents of title in relation to the goods. From these documents, it is clear that the consignor was Sri Satyanarayana Oil Mills, Kampli and the consignee was Messers Anant Oil Mills, Nippani and that the truck was laden with the consignment. These facts were also borne out by the particulars furnished in the declaration in Form 39 under the Mysore Sales Tax Act, 1957 13. It appears from these documents that Sri Satyanarayana Oil Mills, after despatching the consignment, purported to furnish the declaration in Form II to the Tahsildar, Hospet, which was received by him on 7-6-1977, requesting for the release of the groundnut oil in question. The respondent No. 4 contended before the Deputy Commissioner that there was substantial compliance of the requirements of sub-clauses (2)(a) and (b) of Clause 3 of the Order and, therefore, the Seized groundnut oil be released; but he rejected the contention on the ground that the declaration in Form II was required to be filed before the specified officer before the goods left the place. The Deputy Commissioner requisitioned the form produced before the Tahsildar, but it did not bear any date. He was of the view that the declaration was not sent by registered post on 6-6-1977 as asserted, but had apparently been handed over in the Taluka Office and acknowledgment obtained for the same. The Deputy Commissioner observed that the requirement of law was that the declaration in Form II had to be produced at every check-post during transit, and this was not done. The driver of the truck did not have a copy of the declaration in Form II, but only the declaration in Form 39 which could not be taken to be in compliance of law. Obviously, the stock-holder, Sri Satyanarayana Oil Mills, after despatching the consignment of groundnut oil, purported to furnish the declaration in Form II. This was in complete breach of the requirements of sub-cls. (2)(a) and (b) of Clause 3 of the Order. The Deputy Commissioner, therefore, held that the respondents having contravened the provisions of sub-clauses (2)(a) and (b) of Clause 3 of the Order, the seized truck along with the entire consignment of the groundnut oil was liable to be confiscated under S. 6-A of the Act. The learned Sessions Judge, in our opinion, rightly confirmed the order of confiscation passed by the Deputy Commissioner under S. 6-A of the Act as it was unassailable. At no point of time was there a contention raised that the Deputy Commissioner had failed to exercise his discretion as to the quantity of the groundnut oil liable to be seized. It is now too late in the day to urge the point before this Court 14. As to point No. (2), there is no warrant for the submission that there was nothing to show that the groundnut oil had been seized and, therefore, the power of confiscation was not exercisable by the Deputy Commissioner under section 6-A of the Act. It is manifest from the order of the Deputy Commissioner that there was a contravention of sub-clauses (2)(a) and (b) of Clause 3 of the Order and that the Sub-Inspector of Police seized both the truck and the consignment of groundnut oil, and forwarded the same to him along with his report for taking action under S. 6-A of the Act. The contention of the Public Prosecutor before the Deputy Commissioner was that the seized truck and the groundnut oil were liable to be confiscated. The very fact that the seized groundnut oil was released to the respondent No. 4 on his furnishing a bank guarantee for Rs. 70, 000/- for the price of the consignment of the groundnut oil clearly shows that it had been seized. It is, therefore, idle to contend that the power of confiscation under S. 6-A of the Act was not exercisable for want of seizure 15. As to point No. (3), from the narration of facts above, it is amply clear that there was breach of the requirements of S. 6-B of the Act of the part of the Deputy Commissioner. The record shows that the Deputy Commissioner, on receipt of the report of the Sub-Insector of Police mentioning the fact of contravention of sub-clauses (2)(a) and (b) of Clause 3 of the Order and forwarding the seized truck and the consignment of groundnut oil, issued notice to the parties concerned under S. 6-B of the Act to show cause against their confiscation. In response to the notice, the respondent No. 4 appeared before the Deputy Commissioner and filed a copy of the invoice together with a copy of the declaration in Form 39 under the Mysore Sales Tax Act, 1957. The Deputy Commissioner sent for the declaration in Form II as furnished to the Tahsildar which did not bear a date. He also gave hearing to the parties. That being so, the validity of the or of confiscation under S. 6-C cannot be challenged on the ground that the requirements of S. 6-B had not been fulfilled

1[ds]9. As to point No. (1), It is axiomatic that the power of confiscation of an essential commodity seized for contravention of an order issued under S. 3, is a discretionary power. The use of the word may, however, does not necessarily meant that the Deputy Commissioner cannot in the given circumstances of a particular case, direct the confiscation of the entire consignment of an essential commodity in relation to which there is a contravention of any of the orders issued under S. 3 of the Act. It all depends on the facts and circumstances of each case whether the confiscation should be an of entire consignment or part of it, depending upon the nature of the contravention. The power conferred on the Deputy Commissioner under S. 6-A of the Act by the use of the word may, makes the power coupled with a public duty. Some times it may be in the public interest to direct confiscation of the entire consignment of an essential commodity when there is deliberate contravention when there is deliberate contravention of the provisions of an order issued under S. 3 of the Act10. In the facts and circumstances of the present case, it cannot be doubted, for a moment that the Deputy Commissioner acted in the public interest to direct confiscation of the entire consignment of the groundnut oil, as it was being transported from one place to another without furnishing the requisite declaration in Form II. All systems of control, supply and distribution of essential commodities would fail unless the various control orders issued by the Central Government under S. 3 of the Act in relation thereto are strictly observed. These control orders are issued under S. 3 when the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of essential commodities or for securing equitable distribution and availability at fair prices etc. Sub-clauses (2)(a) and (b) of Clause 3 of the Order enjoin that the stock-holder shall make a declaration in Form II in relation to movement of edible oil, edible oil seeds and oil cakes, to the Tahsildar incharge of the taluka of the place from where such edible oil, edible oil seeds and oil cakes are transported before such edible oil, edible oil seeds or oil cakes leave the place. The whole purpose is to maintain a control over the stock of such essential commodities at a place with a view to secure their equitable distribution and availability at fair prices. The requirements of sub-cls. (2)(a) and (b) of Clause 3 of the Order are clearly mandatory14. As to point No. (2), there is no warrant for the submission that there was nothing to show that the groundnut oil had been seized and, therefore, the power of confiscation was not exercisable by the Deputy Commissioner under section 6-A of the Act. It is manifest from the order of the Deputy Commissioner that there was a contravention of sub-clauses (2)(a) and (b) of Clause 3 of the Order and that the Sub-Inspector of Police seized both the truck and the consignment of groundnut oil, and forwarded the same to him along with his report for taking action under S. 6-A of the Act. The contention of the Public Prosecutor before the Deputy Commissioner was that the seized truck and the groundnut oil were liable to be confiscated. The very fact that the seized groundnut oil was released to the respondent No. 4 on his furnishing a bank guarantee for Rs. 70, 000/- for the price of the consignment of the groundnut oil clearly shows that it had been seized. It is, therefore, idle to contend that the power of confiscation under S. 6-A of the Act was not exercisable for want of seizure15. As to point No. (3), from the narration of facts above, it is amply clear that there was breach of the requirements of S. 6-B of the Act of the part of the Deputy Commissioner. The record shows that the Deputy Commissioner, on receipt of the report of the Sub-Insector of Police mentioning the fact of contravention of sub-clauses (2)(a) and (b) of Clause 3 of the Order and forwarding the seized truck and the consignment of groundnut oil, issued notice to the parties concerned under S. 6-B of the Act to show cause against their confiscation. In response to the notice, the respondent No. 4 appeared before the Deputy Commissioner and filed a copy of the invoice together with a copy of the declaration in Form 39 under the Mysore Sales Tax Act, 1957. The Deputy Commissioner sent for the declaration in Form II as furnished to the Tahsildar which did not bear a date. He also gave hearing to the parties. That being so, the validity of the or of confiscation under S. 6-C cannot be challenged on the ground that the requirements of S. 6-B had not been fulfilled

### 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: legal fiction, treats the owners to have control over the edible oil, edible oil seeds and cakes, in transit. The respondent No. 4, being the purchaser, also comes within the definition of stock-holder by reason of the said Explanation. There is nothing to show that the consignor had, reserved the jus-disponendi by the terms of the contract or appropriation and, therefore, the property in the goods passed to the respondent No. 4 on their delivery to a common carrier under S. 25 of the Sale of Goods Act, 1930 12. The allegation in the complaint is that 40 barrels of groundnut oil weighing 7, 200 kg. were being transported by the truck bearing No. MHL 2675 without furnishing the requisite declaration in Form II and it was intercepted at the Hukeri cheek-post by the Sub-Inspector of Police. In response to a notice issued by the Deputy Commissioner under section 6-B of the Act, the respondent No. 4 produced before him the documents of title in relation to the goods. From these documents, it is clear that the consignor was Sri Satyanarayana Oil Mills, Kampli and the consignee was Messers Anant Oil Mills, Nippani and that the truck was laden with the consignment. These facts were also borne out by the particulars furnished in the declaration in Form 39 under the Mysore Sales Tax Act, 1957 13. It appears from these documents that Sri Satyanarayana Oil Mills, after despatching the consignment, purported to furnish the declaration in Form II to the Tahsildar, Hospet, which was received by him on 7-6-1977, requesting for the release of the groundnut oil in question. The respondent No. 4 contended before the Deputy Commissioner that there was substantial compliance of the requirements of sub-clauses (2)(a) and (b) of Clause 3 of the Order and, therefore, the Seized groundnut oil be released; but he rejected the contention on the ground that the declaration in Form II was required to be filed before the specified officer before the goods left the place. The Deputy Commissioner requisitioned the form produced before the Tahsildar, but it did not bear any date. He was of the view that the declaration was not sent by registered post on 6-6-1977 as asserted, but had apparently been handed over in the Taluka Office and acknowledgment obtained for the same. The Deputy Commissioner observed that the requirement of law was that the declaration in Form II had to be produced at every check-post during transit, and this was not done. The driver of the truck did not have a copy of the declaration in Form II, but only the declaration in Form 39 which could not be taken to be in compliance of law. Obviously, the stock-holder, Sri Satyanarayana Oil Mills, after despatching the consignment of groundnut oil, purported to furnish the declaration in Form II. This was in complete breach of the requirements of sub-cls. (2)(a) and (b) of Clause 3 of the Order. The Deputy Commissioner, therefore, held that the respondents having contravened the provisions of sub-clauses (2)(a) and (b) of Clause 3 of the Order, the seized truck along with the entire consignment of the groundnut oil was liable to be confiscated under S. 6-A of the Act. The learned Sessions Judge, in our opinion, rightly confirmed the order of confiscation passed by the Deputy Commissioner under S. 6-A of the Act as it was unassailable. At no point of time was there a contention raised that the Deputy Commissioner had failed to exercise his discretion as to the quantity of the groundnut oil liable to be seized. It is now too late in the day to urge the point before this Court 14. As to point No. (2), there is no warrant for the submission that there was nothing to show that the groundnut oil had been seized and, therefore, the power of confiscation was not exercisable by the Deputy Commissioner under section 6-A of the Act. It is manifest from the order of the Deputy Commissioner that there was a contravention of sub-clauses (2)(a) and (b) of Clause 3 of the Order and that the Sub-Inspector of Police seized both the truck and the consignment of groundnut oil, and forwarded the same to him along with his report for taking action under S. 6-A of the Act. The contention of the Public Prosecutor before the Deputy Commissioner was that the seized truck and the groundnut oil were liable to be confiscated. The very fact that the seized groundnut oil was released to the respondent No. 4 on his furnishing a bank guarantee for Rs. 70, 000/- for the price of the consignment of the groundnut oil clearly shows that it had been seized. It is, therefore, idle to contend that the power of confiscation under S. 6-A of the Act was not exercisable for want of seizure 15. As to point No. (3), from the narration of facts above, it is amply clear that there was breach of the requirements of S. 6-B of the Act of the part of the Deputy Commissioner. The record shows that the Deputy Commissioner, on receipt of the report of the Sub-Insector of Police mentioning the fact of contravention of sub-clauses (2)(a) and (b) of Clause 3 of the Order and forwarding the seized truck and the consignment of groundnut oil, issued notice to the parties concerned under S. 6-B of the Act to show cause against their confiscation. In response to the notice, the respondent No. 4 appeared before the Deputy Commissioner and filed a copy of the invoice together with a copy of the declaration in Form 39 under the Mysore Sales Tax Act, 1957. The Deputy Commissioner sent for the declaration in Form II as furnished to the Tahsildar which did not bear a date. He also gave hearing to the parties. That being so, the validity of the or of confiscation under S. 6-C cannot be challenged on the ground that the requirements of S. 6-B had not been fulfilled ### Response: 1

Reckitt Benckiser India Limited Vs. Alekzander Prabhu

dark tan was increased by the appellant from Rs. 16.35 to 17.50 around June,. 1997 and that the free gift which has been sought to be offered was really a devious way of recovering the price already covered in the price of a 40 gms tin. The complaint had been filed under section 10(a)(i) of the Monopolies and Restrictive Trade Practices, Act 1969. In response to the show cause notice, which was issued, the appellant pointed out that the complaint itself was not maintainable as the complainant was not in fact a consumer. It was also pointed out that the complaint was filed well before the scheme was launched or introduced in Bangalore where the complainant resided. On the merits, it was stated that the price of a shoe-polish tin of 40 gms had been increased much prior to the formulation and implementation of the scheme. The increase in price has been necessitated by several circumstances, which were detailed in the affidavit filed by the appellant company before the Commission. It was also pointed out that the price increase carried out by the appellant was in keeping with the market trend and that the same price was being charged for similar products by other manufacturers. It was asserted that the scheme had been formulated as a goodwill measure and no part of the cost of the free gift had been passed on the consumers, nor was the increase in the price of the 40 gms tin of shoe polish inclusive of any part of the cost of the 15 gms tin of dark tan shoe polish. It was given as a free gift. The appellant also annexed several documents to its reply such as invoices showing prices at which 15 gms shoe polish tin had been sold between the period 13.7.96 to 19.10.97: copies of the bill of entries and invoice-cum-challans showing that the increase in the price of paraffin wax was contributing to the increase of the price of shoe-polish; documents showing increase of the salaries being paid to the employees of the appellant and a copy of the survey report by a market survey agency to the effect that from before the period that the gift offer scheme was launched the sale of shoe-polish tins of both sizes, namely 40 gms and 15 gms, had registered an increase as compared to the same period for the previous year. (3) The complainant, in his rejoinder before the commission did not seriously dispute that he was not a consumer. However, the commission persisted with the inquiry by converting the complaint into "a public interest suit". The director general (investigation and registration) was also directed to prosecute the case in public interest. The complainant was also directed to furnish all relevant documents to the director general and to assist the director general in the proceedings. (4) It appears that the complainant took no further interest in the proceedings before the commission and indeed has not appeared before this Court despite several attempts to serve him not personally and by publication. The director general also did not file any affidavit of evidence before the commission nor called any witness in support of the allegations contained in the complaint. The commission, however, found against the appellant in a manner and on grounds, which are unacceptable, (i) the commission proceeded with the matter as if the onus was on the appellant to prove the negative and not on the complainant or the director general, as the case may be, to establish the allegations made against the appellant. As stated in the decision of this Court in H.M.M. Ltd. v. Monopolies and Restrictive Trade Practices Commission1 "It was the director general who made this application and it was for him to establish it. Since he did not, the allegation ought to have been rejected," (ii) The commission appears to have proceeded on the basis that no evidence had been produced by the appellant despite the documents filed by the appellant alongwith its reply to the show cause notice of inquiry. In contradiction to the observation that no evidence had been produced, the commission noted that "Certain invoices were annexed with the respondents reply to the notice of inquiry, the same are not quite legible." In the absence of any document on the part of the complainant or any traverse in regard to the specific statements and details given by the appellant and in the absence of any dispute as to the genuineness of the documents relied upon by the appellant in its reply, the commission should not have rejected the evidence produced by the appellant in the manner it did; and (iii) the conclusion of the commission that the appellants free gift of 15 gms of dark tan tin on every purchase of 40 gms tin of shoe polish was not actually given free of charge but its cost was purely covered by the price increased prior to the launching of the gift scheme in question was illogical and does not appear to be a conclusion which could be rationally arrived at on the basis of the materials on record. (5) It has been pointed out to us by learned counsel appearing on behalf of the appellant that the scheme had in fact ceased to operate in November, 1997 and the stock of free gifts had been liquidated. Nevertheless, the commission apart from issuing an order to the appellant "to cease the aforesaid practice forthwith" also directed the appellant "to desist from adoption of and indulgence in the same or similar objectionable trade practices" in future. It is submitted by learned counsel that it was not open to the commission to issue a blanket order pre-empting the introduction of another scheme without any separate inquiry and assessment of the facts which would be relevant in connection with that scheme. It is not necessary for us to determine this issue particularly when we have held that the decision of the commission is not maintainable on merits.

1[ds]On the merits, it was stated that the price of atin of 40 gms had been increased much prior to the formulation and implementation of the scheme. The increase in price has been necessitated by several circumstances, which were detailed in the affidavit filed by the appellant company before the Commission. It was also pointed out that the price increase carried out by the appellant was in keeping with the market trend and that the same price was being charged for similar products by other manufacturers. It was asserted that the scheme had been formulated as a goodwill measure and no part of the cost of the free gift had been passed on the consumers, nor was the increase in the price of the 40 gms tin of shoe polish inclusive of any part of the cost of the 15 gms tin of dark tan shoe polish. It was given as a freeappellant also annexed several documents to its reply such as invoices showing prices at which 15 gms shoe polish tin had been sold between the period 13.7.96 to 19.10.97: copies of the bill of entries andshowing that the increase in the price of paraffin wax was contributing to the increase of the price ofdocuments showing increase of the salaries being paid to the employees of the appellant and a copy of the survey report by a market survey agency to the effect that from before the period that the gift offer scheme was launched the sale oftins of both sizes, namely 40 gms and 15 gms, had registered an increase as compared to the same period for the previousIt appears that the complainant took no further interest in the proceedings before the commission and indeed has not appeared before this Court despite several attempts to serve him not personally and by publication. The director general also did not file any affidavit of evidence before the commission nor called any witness in support of the allegations contained in the complaint. The commission, however, found against the appellant in a manner and on grounds, which are unacceptable, (i) the commission proceeded with the matter as if the onus was on the appellant to prove the negative and not on the complainant or the director general, as the case may be, to establish the allegations made against theIt has been pointed out to us by learned counsel appearing on behalf of the appellant that the scheme had in fact ceased to operate in November, 1997 and the stock of free gifts had been liquidated. Nevertheless, the commission apart from issuing an order to the appellant "to cease the aforesaid practice forthwith" also directed the appellant "to desist from adoption of and indulgence in the same or similar objectionable trade practices" in future. It is submitted by learned counsel that it was not open to the commission to issue a blanket orderthe introduction of another scheme without any separate inquiry and assessment of the facts which would be relevant in connection with that scheme. It is not necessary for us to determine this issue particularly when we have held that the decision of the commission is not maintainable on merits.

### 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: dark tan was increased by the appellant from Rs. 16.35 to 17.50 around June,. 1997 and that the free gift which has been sought to be offered was really a devious way of recovering the price already covered in the price of a 40 gms tin. The complaint had been filed under section 10(a)(i) of the Monopolies and Restrictive Trade Practices, Act 1969. In response to the show cause notice, which was issued, the appellant pointed out that the complaint itself was not maintainable as the complainant was not in fact a consumer. It was also pointed out that the complaint was filed well before the scheme was launched or introduced in Bangalore where the complainant resided. On the merits, it was stated that the price of a shoe-polish tin of 40 gms had been increased much prior to the formulation and implementation of the scheme. The increase in price has been necessitated by several circumstances, which were detailed in the affidavit filed by the appellant company before the Commission. It was also pointed out that the price increase carried out by the appellant was in keeping with the market trend and that the same price was being charged for similar products by other manufacturers. It was asserted that the scheme had been formulated as a goodwill measure and no part of the cost of the free gift had been passed on the consumers, nor was the increase in the price of the 40 gms tin of shoe polish inclusive of any part of the cost of the 15 gms tin of dark tan shoe polish. It was given as a free gift. The appellant also annexed several documents to its reply such as invoices showing prices at which 15 gms shoe polish tin had been sold between the period 13.7.96 to 19.10.97: copies of the bill of entries and invoice-cum-challans showing that the increase in the price of paraffin wax was contributing to the increase of the price of shoe-polish; documents showing increase of the salaries being paid to the employees of the appellant and a copy of the survey report by a market survey agency to the effect that from before the period that the gift offer scheme was launched the sale of shoe-polish tins of both sizes, namely 40 gms and 15 gms, had registered an increase as compared to the same period for the previous year. (3) The complainant, in his rejoinder before the commission did not seriously dispute that he was not a consumer. However, the commission persisted with the inquiry by converting the complaint into "a public interest suit". The director general (investigation and registration) was also directed to prosecute the case in public interest. The complainant was also directed to furnish all relevant documents to the director general and to assist the director general in the proceedings. (4) It appears that the complainant took no further interest in the proceedings before the commission and indeed has not appeared before this Court despite several attempts to serve him not personally and by publication. The director general also did not file any affidavit of evidence before the commission nor called any witness in support of the allegations contained in the complaint. The commission, however, found against the appellant in a manner and on grounds, which are unacceptable, (i) the commission proceeded with the matter as if the onus was on the appellant to prove the negative and not on the complainant or the director general, as the case may be, to establish the allegations made against the appellant. As stated in the decision of this Court in H.M.M. Ltd. v. Monopolies and Restrictive Trade Practices Commission1 "It was the director general who made this application and it was for him to establish it. Since he did not, the allegation ought to have been rejected," (ii) The commission appears to have proceeded on the basis that no evidence had been produced by the appellant despite the documents filed by the appellant alongwith its reply to the show cause notice of inquiry. In contradiction to the observation that no evidence had been produced, the commission noted that "Certain invoices were annexed with the respondents reply to the notice of inquiry, the same are not quite legible." In the absence of any document on the part of the complainant or any traverse in regard to the specific statements and details given by the appellant and in the absence of any dispute as to the genuineness of the documents relied upon by the appellant in its reply, the commission should not have rejected the evidence produced by the appellant in the manner it did; and (iii) the conclusion of the commission that the appellants free gift of 15 gms of dark tan tin on every purchase of 40 gms tin of shoe polish was not actually given free of charge but its cost was purely covered by the price increased prior to the launching of the gift scheme in question was illogical and does not appear to be a conclusion which could be rationally arrived at on the basis of the materials on record. (5) It has been pointed out to us by learned counsel appearing on behalf of the appellant that the scheme had in fact ceased to operate in November, 1997 and the stock of free gifts had been liquidated. Nevertheless, the commission apart from issuing an order to the appellant "to cease the aforesaid practice forthwith" also directed the appellant "to desist from adoption of and indulgence in the same or similar objectionable trade practices" in future. It is submitted by learned counsel that it was not open to the commission to issue a blanket order pre-empting the introduction of another scheme without any separate inquiry and assessment of the facts which would be relevant in connection with that scheme. It is not necessary for us to determine this issue particularly when we have held that the decision of the commission is not maintainable on merits. ### Response: 1

Kalawati Devi Harlalka Vs. Commissioner Of Income-Tax, West Bengal & Ors

the narrower meaning suggested by the learned counsel for the appellants In our view, the answer to this question must be in the negative.It seems to us that Section 297 is meant to provide as far as possible for all contingencies which may arise out of the repeal of the 1922 Act.It deals with pending appeals, revisions, etc. It deals with non-completed assessments pending at the commencement of the 1961 Act and assessments to be made after the commencement of the 1961 Act as a result of returns of income filed after the commencement of the 1961 Act, Then in Cl. (d) it deals with assessments in respect of escaped income; in Clauses (f) and (g) it deals with levy of penalties Clause (h) continues the effect of elections or declarations made under the 1922 Act; Cl. (i) deals with refunds; Clause (j) deals with recovery; Cl. (k) deals generally with all agreements, notifications, orders issued under the 1922 Act Clause (1) continues the notifications issued under Section 60 (1) of the 1922 Act and Clause (m) guards against the application of a longer period of limitation prescribed under the 1961 Act to certain applications, appeals, etc. It is hardly believable in this context that Parliament did not think of appeals and revisions in respect of assessment orders already made or which it had authorised to be made under Clause (a) of Section 297 (2).17. The learned counsel for the appellant submits that Parliament had S. 6 of the General Clauses Act in view, and therefore no express provision was made dealing with appeals and revisions, etc.In our view, Section 6 of the General Clauses Act would not apply because Section 297(2) evidences an intention to the contrary.In Union of India v. Madan Gopal Kabra, (1954) 24 ITR 58 = (AIR 1954 SC.158 ) while interpreting Section 13 of the Finance Act, 1950, already extracted above, this Court Observed at p. 68 (of ITR) = (at p. 162 of AIR) :"Nor can section 6 of the General Clauses Act 1897, serve to keep alive the liability to pay tax on the income of the year 194950 assuming it to have accrued under the repealed State law, for a "different intention" clearly appears in sections a and 13 of the Finance Act read together as indicated above."It is true that whether a different intention appears or not must depend on the language and content of section 297 (2).It seems to us, however, that by providing for so many matters mentioned above some in accord with what would have been the result under Section 6 of the General Clauses Act and some contrary to what have been the result wider Section 6, Parliament has clearly evidenced an intention to the contrary18. It Section 6 of the General Clauses Act is out of the way, there is no doubt that Parliament should not be credited with the intention of not providing for appeals and revisions, etc. against the assessment orders made under the 1922 Act. In this context, we must give the expression "proceedings for the assessment of that person" in Cl. (a) of Section 297 (2) a very comprehensive meaning.19. At any rate, if the Income Tax (Removal of Difficulties) Order, 1962, is valid, para 4 of the said order clearly covers the present case and would give jurisdiction to the Commissioner to issue the impugned notice.20. Relying on Jalan Trading Co. (Private) Ltd. v. Mill Mazdoor Union, (1966) 2 Lab LJ 546 = (AIR 1987 SC 691) the learned counsel for the appellant urges that Section 298 is void. In our view, the present case is covered by the decision of this Court in Commr. of Income-tax v. Dewan Bahadur Ramgopal Mills Ltd., (1961) 41 ITR 280 = (AIR 1961 SC 388) where a similar order called the Taxation Laws (Part B States (Removal of Difficulties) Order, 1950, made under Sec. 12 of the Finance Act, 1950, was upheld. Section 12 read as follows :"If any difficulty arises in giving effect to the provisions of any of the Acts, rules or orders extended by section 3 or section 11 to any State or merged territory, the Central Government may, by order, make such provision, or give such direction, as appears to it to be necessary for removing the difficulty."21. S. K. Das, J., speaking for the Court observed at p. 288 (of ITR) = (at p. 340 of AIR) :"Furthermore, the true scope and effect of section 12 seems to be that it is for the Central Government to determine if any difficulty of the nature indicated in the section has arisen and then to make such order, or give such direction, as appears to it to be necessary to remove the difficulty. Parliament has left the matter to the executive; but that does not make the notification of 1956 bad. In Banarsi Das Bhanot v. State of Madhya Pradesh, (1958) 9 STC 388 = (AIR 1958 SC 909 ) we said at p. 485 (of STC) = (at p. 913 of AIR):"Now the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like. We are, therefore, of the view that the notification of 1956 was validly made under section 12 and is not ultra vires the powers conferred on the Central Government by that section."22. It is true that in that case the attack was on the notification and not on the section itself, but it seems to us that the ratio given by the Court is appropriate to cover the validity of the section itself. Furthermore, the terms of section 37 of the Payment of Bonus Act 1965 are different and the Bonus Act is not a taxing law.23.

0[ds]It seems to us that the High Court is right in holding that Section 297 (2) (a) of the 196l Act includes within its scope a proceeding under Section 33B of the 1922 Act. There is no doubt that the word "assessment" does have subject to the context a very wide meaning.It is quite clear from the authorities cited above that the word "assessment" can bear a very comprehensive meaning, it can comprehend the whole procedure for ascertaining and imposing liability upon the tax-payer.It There then anything in the context of Section 297 which compels us to give to the expression "proceedings for the assessment" the narrower meaning suggested by the learned counsel for the appellants In our view, the answer to this question must be in the negative.It seems to us that Section 297 is meant to provide as far as possible for all contingencies which may arise out of the repeal of the 1922 Act.It deals with pending appeals, revisions, etc. It deals with non-completed assessments pending at the commencement of the 1961 Act and assessments to be made after the commencement of the 1961 Act as a result of returns of income filed after the commencement of the 1961 Act, Then in Cl. (d) it deals with assessments in respect of escaped income; in Clauses (f) and (g) it deals with levy of penalties Clause (h) continues the effect of elections or declarations made under the 1922 Act; Cl. (i) deals with refunds; Clause (j) deals with recovery; Cl. (k) deals generally with all agreements, notifications, orders issued under the 1922 Act Clause (1) continues the notifications issued under Section 60 (1) of the 1922 Act and Clause (m) guards against the application of a longer period of limitation prescribed under the 1961 Act to certain applications, appeals, etc. It is hardly believable in this context that Parliament did not think of appeals and revisions in respect of assessment orders already made or which it had authorised to be made under Clause (a) of Section 297our view, Section 6 of the General Clauses Act would not apply because Section 297(2) evidences an intention to theis true that whether a different intention appears or not must depend on the language and content of section 297 (2).It seems to us, however, that by providing for so many matters mentioned above some in accord with what would have been the result under Section 6 of the General Clauses Act and some contrary to what have been the result wider Section 6, Parliament has clearly evidenced an intention to theIt Section 6 of the General Clauses Act is out of the way, there is no doubt that Parliament should not be credited with the intention of not providing for appeals and revisions, etc. against the assessment orders made under the 1922 Act. In this context, we must give the expression "proceedings for the assessment of that person" in Cl. (a) of Section 297 (2) a very comprehensive meaning.At any rate, if the Income Tax (Removal of Difficulties) Order, 1962, is valid, para 4 of the said order clearly covers the present case and would give jurisdiction to the Commissioner to issue the impugnedour view, the present case is covered by the decision of this Court in Commr. of Income-tax v. Dewan Bahadur Ramgopal Mills Ltd., (1961) 41 ITR 280 = (AIR 1961 SC 388) where a similar order called the Taxation Laws (Part B States (Removal of Difficulties) Order, 1950, made under Sec. 12 of the Finance Act, 1950, wasis true that in that case the attack was on the notification and not on the section itself, but it seems to us that the ratio given by the Court is appropriate to cover the validity of the section itself. Furthermore, the terms of section 37 of the Payment of Bonus Act 1965 are different and the Bonus Act is not a taxing law.

### 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 narrower meaning suggested by the learned counsel for the appellants In our view, the answer to this question must be in the negative.It seems to us that Section 297 is meant to provide as far as possible for all contingencies which may arise out of the repeal of the 1922 Act.It deals with pending appeals, revisions, etc. It deals with non-completed assessments pending at the commencement of the 1961 Act and assessments to be made after the commencement of the 1961 Act as a result of returns of income filed after the commencement of the 1961 Act, Then in Cl. (d) it deals with assessments in respect of escaped income; in Clauses (f) and (g) it deals with levy of penalties Clause (h) continues the effect of elections or declarations made under the 1922 Act; Cl. (i) deals with refunds; Clause (j) deals with recovery; Cl. (k) deals generally with all agreements, notifications, orders issued under the 1922 Act Clause (1) continues the notifications issued under Section 60 (1) of the 1922 Act and Clause (m) guards against the application of a longer period of limitation prescribed under the 1961 Act to certain applications, appeals, etc. It is hardly believable in this context that Parliament did not think of appeals and revisions in respect of assessment orders already made or which it had authorised to be made under Clause (a) of Section 297 (2).17. The learned counsel for the appellant submits that Parliament had S. 6 of the General Clauses Act in view, and therefore no express provision was made dealing with appeals and revisions, etc.In our view, Section 6 of the General Clauses Act would not apply because Section 297(2) evidences an intention to the contrary.In Union of India v. Madan Gopal Kabra, (1954) 24 ITR 58 = (AIR 1954 SC.158 ) while interpreting Section 13 of the Finance Act, 1950, already extracted above, this Court Observed at p. 68 (of ITR) = (at p. 162 of AIR) :"Nor can section 6 of the General Clauses Act 1897, serve to keep alive the liability to pay tax on the income of the year 194950 assuming it to have accrued under the repealed State law, for a "different intention" clearly appears in sections a and 13 of the Finance Act read together as indicated above."It is true that whether a different intention appears or not must depend on the language and content of section 297 (2).It seems to us, however, that by providing for so many matters mentioned above some in accord with what would have been the result under Section 6 of the General Clauses Act and some contrary to what have been the result wider Section 6, Parliament has clearly evidenced an intention to the contrary18. It Section 6 of the General Clauses Act is out of the way, there is no doubt that Parliament should not be credited with the intention of not providing for appeals and revisions, etc. against the assessment orders made under the 1922 Act. In this context, we must give the expression "proceedings for the assessment of that person" in Cl. (a) of Section 297 (2) a very comprehensive meaning.19. At any rate, if the Income Tax (Removal of Difficulties) Order, 1962, is valid, para 4 of the said order clearly covers the present case and would give jurisdiction to the Commissioner to issue the impugned notice.20. Relying on Jalan Trading Co. (Private) Ltd. v. Mill Mazdoor Union, (1966) 2 Lab LJ 546 = (AIR 1987 SC 691) the learned counsel for the appellant urges that Section 298 is void. In our view, the present case is covered by the decision of this Court in Commr. of Income-tax v. Dewan Bahadur Ramgopal Mills Ltd., (1961) 41 ITR 280 = (AIR 1961 SC 388) where a similar order called the Taxation Laws (Part B States (Removal of Difficulties) Order, 1950, made under Sec. 12 of the Finance Act, 1950, was upheld. Section 12 read as follows :"If any difficulty arises in giving effect to the provisions of any of the Acts, rules or orders extended by section 3 or section 11 to any State or merged territory, the Central Government may, by order, make such provision, or give such direction, as appears to it to be necessary for removing the difficulty."21. S. K. Das, J., speaking for the Court observed at p. 288 (of ITR) = (at p. 340 of AIR) :"Furthermore, the true scope and effect of section 12 seems to be that it is for the Central Government to determine if any difficulty of the nature indicated in the section has arisen and then to make such order, or give such direction, as appears to it to be necessary to remove the difficulty. Parliament has left the matter to the executive; but that does not make the notification of 1956 bad. In Banarsi Das Bhanot v. State of Madhya Pradesh, (1958) 9 STC 388 = (AIR 1958 SC 909 ) we said at p. 485 (of STC) = (at p. 913 of AIR):"Now the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like. We are, therefore, of the view that the notification of 1956 was validly made under section 12 and is not ultra vires the powers conferred on the Central Government by that section."22. It is true that in that case the attack was on the notification and not on the section itself, but it seems to us that the ratio given by the Court is appropriate to cover the validity of the section itself. Furthermore, the terms of section 37 of the Payment of Bonus Act 1965 are different and the Bonus Act is not a taxing law.23. ### Response: 0

Union Of India Vs. Jai Narain Misra

of claim to the arbitrator. By his letter dated May 6, 1947 he added 6 more items of claim. The Union of India made a counter-claim. The arbitrator was thus required to decide 29 disputed items of claims and the counter claim. The award recited that certain differences between the parties in respect of contract No. ES 2944 of 1944 had been referred to the arbitrator for his decision and that a final award was being made of and concerning the matters referred to him. The relevant part of the award was as follows:-"I award and direct that the following sums be paid by the respondent to the claimant.(1) Rupees twenty-two thousand two hundred and ninety two annas five being the amount due to the claimant as calculated by the respondent.(2) Rupees six thousand being the amount of security deposit paid by the claimant and now in possession of the respondent.(3) Rupees seventy nine thousand three hundred and thirty nine.The total amount to be paid by the respondent to the claimant is therefore one lakh seven thousand six hundred and thirty one annas five.Each party to the dispute shall bear its own costs, including the cost of the stamp duty on the award."3. The High Court held that the award suffered from a patent ambiguity for the following reasons. It was not clear why the arbitrator awarded the first item of Rs. 22,292/5/- and the 3rd item of Rs. 79,339/- separately. The arbitrator found only the first item of Rs. 22,292/5/- to be due to the respondent; it was not clear whether he intended also to award the 3rd item of Rupees. 79,339/- to the respondent. As the dispute consisted of 29 items of claims and a counter-claim, the arbitrator should have made an award in respect of all the items separately or in combination or should have made a lump award in respect of all the items. We are unable to accept this line of reasoning.4. The award on the face of it professes to be of and concerning all matters. submitted to the arbitrator. In respect of all such matters the arbitrator awarded a sum of Rs. 107631/5/- to the respondent. This amount was made up of three sums separately mentioned in the award. It was not the case of the respondent in the Trial Court that the award was uncertain or not intelligible. The objection was taken for the first time before the High Court. On the record there is nothing to show that the award was not intelligible to the parties.5. The Court leans towards the construction that the award is certain. Prima facie the award is good, and it is for the defendant to show that it is uncertain. Per Jervis, C. J. in Mays v. Cannell, (1854) 24 LJ QB 41 at p. 45. There is no ambiguity about the first and the third items of the award. The uncontradicted evidence of S. Choudhary, the witness for Government is "Item No. 1 of the award is that which was calculated by us in the government bill. Item No. 3 is in respect of remaining claim of the plaintiff". Item No. 1 thus represents the sum admitted by the government to be due to the respondent, and item No. 3 represents the additional sum found by the arbitrator to the be due to him.6. The arbitrator is not bound to give an award on each point. He can make his award on the whole case, See Ghulam Khan v. Mohammad Hassan, (1901) ILR 29 Cal 167 at p. 186 (PC). An arbitrator may award one sum generally in respect of all money claims submitted to him, unless the submission requires him to award separately on some one or more of them, see Whiteworth v. Hulse, (1866) LR 1 Ex 251. The arbitrator can lawfully make an award of a sum admitted to be due and a lump sum in respect of the remaining claim. As the final award in favour of the respondent professes to be made of an concerning all the matters referred to him, it must be presumed that in making it the arbitrator has taken into consideration all the claims and counter claims, see Harrison v. Creswick, (1853) 13 CB 399, Jewell v. Christie, (1867) 2 CP 296.We hold that the award is a final and certain determination of all the disputes referred.7. The arbitrator made an award in respect of the second item under some misapprehension. The security deposit of Rs. 6000 had been returned to the respondent and there was no dispute about it before the arbitrator. In the circumstances, the arbitrator had no authority to award Rs. 6000 to the respondent on account of the security deposit. This part of the award is clearly separable and may be struck out. Moreover, the award of Rs. 6000 is to the advantage of the respondent; and the Court usually declines to set aside an award at the instance of a party who has not suffered any injury by the error, see Narsingh Narain Singh v. Ajodhya Prasad Singh, (1912) 15 Cal LJ 110 at p. 113. We find also that the award of Rs. 6000 is now of no consequence. After the award was made, the respondent received a sum of Rs. 100594/7/- in full settlement of the award, presumably after giving the government credit for the sum of Rs. 6000 already received by him.8. We therefore hold that there is no ground for setting aside the award. The award is not vague and/or uncertain and does not suffer from any other infirmity.9. Mr. Mehta also contended that (1) the appeal before the High Court was not maintainable under Sections 17 and 39 of the Arbitration Act, 1940 and (2) the respondent having received payments in full settlement of the award was estopped from challenging it. We do not find it necessary to decide these points in view of our conclusion that the award is not liable to be set aside.

1[ds]7. The arbitrator made an award in respect of the second item under some misapprehension. The security deposit of Rs. 6000 had been returned to the respondent and there was no dispute about it before the arbitrator. In the circumstances, the arbitrator had no authority to award Rs. 6000 to the respondent on account of the security deposit. This part of the award is clearly separable and may be struck out. Moreover, the award of Rs. 6000 is to the advantage of the respondent; and the Court usually declines to set aside an award at the instance of a party who has not suffered any injury by thefind also that the award of Rs. 6000 is now of no consequence. After the award was made, the respondent received a sum of Rs. 100594/7/- in full settlement of the award, presumably after giving the government credit for the sum of Rs. 6000 already received by him.8. We therefore hold that there is no ground for setting aside the award. The award is not vague and/or uncertain and does not suffer from any other infirmity.9. Mr. Mehta also contended that (1) the appeal before the High Court was not maintainable under Sections 17 and 39 ofthe Arbitration Act, 1940 and (2) the respondent having received payments in full settlement of the award was estopped from challenging it. We do not find it necessary to decide these points in view of our conclusion that the award is not liable to be set aside.

### 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: of claim to the arbitrator. By his letter dated May 6, 1947 he added 6 more items of claim. The Union of India made a counter-claim. The arbitrator was thus required to decide 29 disputed items of claims and the counter claim. The award recited that certain differences between the parties in respect of contract No. ES 2944 of 1944 had been referred to the arbitrator for his decision and that a final award was being made of and concerning the matters referred to him. The relevant part of the award was as follows:-"I award and direct that the following sums be paid by the respondent to the claimant.(1) Rupees twenty-two thousand two hundred and ninety two annas five being the amount due to the claimant as calculated by the respondent.(2) Rupees six thousand being the amount of security deposit paid by the claimant and now in possession of the respondent.(3) Rupees seventy nine thousand three hundred and thirty nine.The total amount to be paid by the respondent to the claimant is therefore one lakh seven thousand six hundred and thirty one annas five.Each party to the dispute shall bear its own costs, including the cost of the stamp duty on the award."3. The High Court held that the award suffered from a patent ambiguity for the following reasons. It was not clear why the arbitrator awarded the first item of Rs. 22,292/5/- and the 3rd item of Rs. 79,339/- separately. The arbitrator found only the first item of Rs. 22,292/5/- to be due to the respondent; it was not clear whether he intended also to award the 3rd item of Rupees. 79,339/- to the respondent. As the dispute consisted of 29 items of claims and a counter-claim, the arbitrator should have made an award in respect of all the items separately or in combination or should have made a lump award in respect of all the items. We are unable to accept this line of reasoning.4. The award on the face of it professes to be of and concerning all matters. submitted to the arbitrator. In respect of all such matters the arbitrator awarded a sum of Rs. 107631/5/- to the respondent. This amount was made up of three sums separately mentioned in the award. It was not the case of the respondent in the Trial Court that the award was uncertain or not intelligible. The objection was taken for the first time before the High Court. On the record there is nothing to show that the award was not intelligible to the parties.5. The Court leans towards the construction that the award is certain. Prima facie the award is good, and it is for the defendant to show that it is uncertain. Per Jervis, C. J. in Mays v. Cannell, (1854) 24 LJ QB 41 at p. 45. There is no ambiguity about the first and the third items of the award. The uncontradicted evidence of S. Choudhary, the witness for Government is "Item No. 1 of the award is that which was calculated by us in the government bill. Item No. 3 is in respect of remaining claim of the plaintiff". Item No. 1 thus represents the sum admitted by the government to be due to the respondent, and item No. 3 represents the additional sum found by the arbitrator to the be due to him.6. The arbitrator is not bound to give an award on each point. He can make his award on the whole case, See Ghulam Khan v. Mohammad Hassan, (1901) ILR 29 Cal 167 at p. 186 (PC). An arbitrator may award one sum generally in respect of all money claims submitted to him, unless the submission requires him to award separately on some one or more of them, see Whiteworth v. Hulse, (1866) LR 1 Ex 251. The arbitrator can lawfully make an award of a sum admitted to be due and a lump sum in respect of the remaining claim. As the final award in favour of the respondent professes to be made of an concerning all the matters referred to him, it must be presumed that in making it the arbitrator has taken into consideration all the claims and counter claims, see Harrison v. Creswick, (1853) 13 CB 399, Jewell v. Christie, (1867) 2 CP 296.We hold that the award is a final and certain determination of all the disputes referred.7. The arbitrator made an award in respect of the second item under some misapprehension. The security deposit of Rs. 6000 had been returned to the respondent and there was no dispute about it before the arbitrator. In the circumstances, the arbitrator had no authority to award Rs. 6000 to the respondent on account of the security deposit. This part of the award is clearly separable and may be struck out. Moreover, the award of Rs. 6000 is to the advantage of the respondent; and the Court usually declines to set aside an award at the instance of a party who has not suffered any injury by the error, see Narsingh Narain Singh v. Ajodhya Prasad Singh, (1912) 15 Cal LJ 110 at p. 113. We find also that the award of Rs. 6000 is now of no consequence. After the award was made, the respondent received a sum of Rs. 100594/7/- in full settlement of the award, presumably after giving the government credit for the sum of Rs. 6000 already received by him.8. We therefore hold that there is no ground for setting aside the award. The award is not vague and/or uncertain and does not suffer from any other infirmity.9. Mr. Mehta also contended that (1) the appeal before the High Court was not maintainable under Sections 17 and 39 of the Arbitration Act, 1940 and (2) the respondent having received payments in full settlement of the award was estopped from challenging it. We do not find it necessary to decide these points in view of our conclusion that the award is not liable to be set aside. ### Response: 1

Income Tax Officer 'A' Ward, Calcutta Vs. Ramnarayan Bhojnagarwala

KRISHNA IYER, J.1. This is really a case where litigation would have been avoided, had the concerned Income-tax Officer carried out the directions issued by the Appellate Assistant Commissioner, with quick dispatch to determine the ownership of the deposit in the Bank account as between the respondent before us and his nephew Madanlal.2. The FactsThere was a Bank account in which a huge sum was seen as lying in deposit. The assessing authority proceeded on the footing that the amount represented the income of one Madanlal, in whose name the Bank account stood. He contested his ownership and urged that really this sum belonged to his uncle who is the respondent before us. Any way his contention was over-ruled by the Income-tax Officer, but, in appeal, the Appellate Assistant Commissioner set aside the order and directed that the Income-tax Officer do determine the real ownership of the bank deposit. This was done in September 1970. It is admitted before us that although we are in October 1975, the Income Tax Officer has not yet determined the real ownership of the deposit as between the uncle and the nephew. There is no valid reason why the Income Tax Officer should have delayed so long and indeed administrative officers and tribunals are taking much longer time than is necessary, thereby defeating the whole purpose of creating quasi-judicial tribunals calculated to produce quick decisions, especially in fiscal matter. Five years to dawdle over the decision of a small matter directed by an appellate authority amounts to indiscipline subversive of the rule of law. We hope that the Administration, takes serious notice of delays caused by tax officers lethargy, under some pretext or other, in speeding up enquiries into incomes and finalizing assessments. The mere fact that a Writ Petition was pending in the High Court, especially in the background of no stay having been granted, shows that the alibi of a High Court proceeding cannot be successfully put forward by the Income-tax Officer for his slow motion in settling the question directed by his Appellate Officer. Law must move quick not merely in the Courts but also before tribunals and officers charged with the duty of expeditious administrative justice. We emphasize this because if the Income Tax Officer had fixed the ownership of the deposit years ago, maybe the respondent before us might not have had to go up in litigation in High Court and the Income Tax Department itself would not have had to proceed against him.We have no doubt that either the uncle or nephew must pay the tax under normal circumstances and they cannot play off one against the another to defeat the claims of the Revenue. Even so, High Court has dispose d of this case in appeal before the Division Bench on certain assumptions and representations, for which counsel for the Income-tax Department was largely responsible. The result is that there has been no investigation into the basic question raised before the High Court by the respondent that the Income Tax Officer had no jurisdiction to start proceedings under Section 148 on the scorce that he had no reasonable belief, which is the sine qua non for the initiation of such proceedings. This question remains to be decided by the High Court.

1[ds]It is admitted before us that although we are in October 1975, the Income Tax Officer has not yet determined the real ownership of the deposit as between the uncle and the nephew. There is no valid reason why the Income Tax Officer should have delayed so long and indeed administrative officers and tribunals are taking much longer time than is necessary, thereby defeating the whole purpose of creating quasi-judicial tribunals calculated to produce quick decisions, especially in fiscal matter. Five years to dawdle over the decision of a small matter directed by an appellate authority amounts to indiscipline subversive of the rule of law. We hope that the Administration, takes serious notice of delays caused by tax officers lethargy, under some pretext or other, in speeding up enquiries into incomes and finalizing assessments. The mere fact that a Writ Petition was pending in the High Court, especially in the background of no stay having been granted, shows that the alibi of a High Court proceeding cannot be successfully put forward by the Income-tax Officer for his slow motion in settling the question directed by his Appellate Officer. Law must move quick not merely in the Courts but also before tribunals and officers charged with the duty of expeditious administrative justice. We emphasize this because if the Income Tax Officer had fixed the ownership of the deposit years ago, maybe the respondent before us might not have had to go up in litigation in High Court and the Income Tax Department itself would not have had to proceed against him.We have no doubt that either the uncle or nephew must pay the tax under normal circumstances and they cannot play off one against the another to defeat the claims of the Revenue. Even so, High Court has dispose d of this case in appeal before the Division Bench on certain assumptions and representations, for which counsel for the Income-tax Department was largely responsible. The result is that there has been no investigation into the basic question raised before the High Court by the respondent that the Income Tax Officer had no jurisdiction to start proceedings under Section 148 on the scorce that he had no reasonable belief, which is the sine qua non for the initiation of such proceedings. This question remains to be decided 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: KRISHNA IYER, J.1. This is really a case where litigation would have been avoided, had the concerned Income-tax Officer carried out the directions issued by the Appellate Assistant Commissioner, with quick dispatch to determine the ownership of the deposit in the Bank account as between the respondent before us and his nephew Madanlal.2. The FactsThere was a Bank account in which a huge sum was seen as lying in deposit. The assessing authority proceeded on the footing that the amount represented the income of one Madanlal, in whose name the Bank account stood. He contested his ownership and urged that really this sum belonged to his uncle who is the respondent before us. Any way his contention was over-ruled by the Income-tax Officer, but, in appeal, the Appellate Assistant Commissioner set aside the order and directed that the Income-tax Officer do determine the real ownership of the bank deposit. This was done in September 1970. It is admitted before us that although we are in October 1975, the Income Tax Officer has not yet determined the real ownership of the deposit as between the uncle and the nephew. There is no valid reason why the Income Tax Officer should have delayed so long and indeed administrative officers and tribunals are taking much longer time than is necessary, thereby defeating the whole purpose of creating quasi-judicial tribunals calculated to produce quick decisions, especially in fiscal matter. Five years to dawdle over the decision of a small matter directed by an appellate authority amounts to indiscipline subversive of the rule of law. We hope that the Administration, takes serious notice of delays caused by tax officers lethargy, under some pretext or other, in speeding up enquiries into incomes and finalizing assessments. The mere fact that a Writ Petition was pending in the High Court, especially in the background of no stay having been granted, shows that the alibi of a High Court proceeding cannot be successfully put forward by the Income-tax Officer for his slow motion in settling the question directed by his Appellate Officer. Law must move quick not merely in the Courts but also before tribunals and officers charged with the duty of expeditious administrative justice. We emphasize this because if the Income Tax Officer had fixed the ownership of the deposit years ago, maybe the respondent before us might not have had to go up in litigation in High Court and the Income Tax Department itself would not have had to proceed against him.We have no doubt that either the uncle or nephew must pay the tax under normal circumstances and they cannot play off one against the another to defeat the claims of the Revenue. Even so, High Court has dispose d of this case in appeal before the Division Bench on certain assumptions and representations, for which counsel for the Income-tax Department was largely responsible. The result is that there has been no investigation into the basic question raised before the High Court by the respondent that the Income Tax Officer had no jurisdiction to start proceedings under Section 148 on the scorce that he had no reasonable belief, which is the sine qua non for the initiation of such proceedings. This question remains to be decided by the High Court. ### Response: 1

State of Madhya Pradesh & Another Vs. Firm Gobardhan Dass Kailash Nath

the rules made by the then Rewa State as were applicable. Before the said tenders could be said to have ripened into a concluded contract, they had not only to be accepted but also sanctioned by the Chief Conservator for and on behalf of the State.9. The conditions, subject to which the said tenders could be validly made, were that the person making such a tender had to deposit on the spot 25 per cent of the purchase price as the initial deposit and the final bid, if accepted, had to be sanctioned by the Chief Conservator at the spot. Condition 8 then provided that the balance of the price, that is to say, the remaining 75 per cent of such price, had to be paid within one month from the date of the purchase. If the person making the tender failed to pay the remaining balance of 75 per cent of the price, the State would be entitled to forfeit the initial deposit of 25 per cent and to resell the goods and recover the deficit, if any, from the purchaser. Conditions 5 and 6 were conditions of sale subject to which a tender could be validly accepted and sanctioned by the Chief Conservator. There was no proof, by way of anything in writing, to show that such a sanction was in fact given. There was equally no proof that the Chief Conservator had the authority to waive the conditions, subject to which only tenders could be validly accepted and sanctioned. In the absence of the initial deposit of 25 per cent of the purchase price having been made on the spot, the tenders could neither be validly accepted nor sanctioned by the Chief Conservator. In the absence of any authority to waive the said conditions, there was no valid acceptance or sanction of the said tenders. The true position, therefore, was that the offering of the said tenders by the respondent firm and their purported acceptance by the Forest authorities never ripened into a concluded contract. Further, the rules defined a forest contract and required that such a contract had to be in writing and in the prescribed form. It was contended that the prescribed form was such that such a contract could not fit in in any such form. That undoubtedly is so. But that only meant that the prescribed form would not apply, and would not mean that the rest of the rule requiring the contract to be in writing could not apply. It is not disputed that the contract in question was not in writing.10. The conclusion that the offer and the purported acceptance of the said tenders did not result in a concluded contract is strengthened by a perusal of all the conditions of sale as a whole. When so read, they disclose that when a person offered a tender he had to deposit on the spot 25 per cent of the purchase price offered by him therein. The tender could not be accepted, much less sanctioned, unless such an initial deposit was made on the spot. Neither the said conditions nor the rules provided for waiving the condition of having to make the initial deposit of 25 per cent on the spot or for extending time for making such initial deposit. The next stage provided by the conditions was that the remaining balance of the price, that is, the remaining 75 per cent of the price, had to be paid within one month from the date of the acceptance and sanction of the tender. Condition 8, therefore, provided as a consequence of Condition 5, that in the event of default by the purchaser in payment of the remaining balance of 75 per cent of the price, the State would become entitled to forfeit the initial deposit of 25 per cent already made and to resell the goods in question and claim the difference between the contract price and the resale price. Such difference would become payable by reason of R. 30 (3) (e) and under S. 82 of the Forest Act as arrears of land revenue. Condition 8 thus postulated that upon a tender being opened, but before it was accepted or sanctioned, the initial deposit was made by the would-be purchaser and upon such deposit having been made, the tender could be accepted and sanctioned resulting into a concluded contract and the person so making the tender would become the buyer of the goods. No rule or order was brought to our notice which permitted the Chief Conservator either to waive Condition 5 or to extend the time for making the initial deposit. Indeed, there could not be any such rule. The reason is that according to these conditions the balance of the price, that is, 75 per cent of the price remaining unpaid, had to be paid within one month and the goods had also to be taken delivery of and removed within that period. This can only happen if the initial deposit of 25 per cent was made on the spot and the tender was thereupon accepted and sanctioned on the spot. On such acceptance and sanction, the person whose tender was accepted would become the buyer, in whom property in goods would vest and who, therefore, would take delivery and pay the balance of the price within one month, and who in default of payment of the remaining 75 per cent of the price would become liable to lose the initial deposit of 25 per cent of the price deposited by him earlier when his tender was accepted.11. The initial deposit not having been made according to Condition 5 to which acceptance of the tender was subject, the purported acceptance was not a valid one, there was no concluded contract and therefore neither Conditions nor Rule 30 (3) (e) became applicable. That being so, the High Court was right in its conclusion that the said amount of Rs. 1,39,000 and odd was not recoverable as arrears of land revenue.

0[ds]7. In our opinion the conclusions arrived at by the High Court on the facts and circumstances of the case were correct and require no interference from us.8. The undisputed facts are that in response to the notice issued by the Chief Conservator the respondent firm offered their tenders for the purchase of the said forest products. Its tenders being the highest, they were accepted for and on behalf of the Chief Conservator. However, the tenders were, as aforesaid, made subject to the said conditions of sale and to such of the rules made by the then Rewa State as were applicable. Before the said tenders could be said to have ripened into a concluded contract, they had not only to be accepted but also sanctioned by the Chief Conservator for and on behalf of the State.9. The conditions, subject to which the said tenders could be validly made, were that the person making such a tender had to deposit on the spot 25 per cent of the purchase price as the initial deposit and the final bid, if accepted, had to be sanctioned by the Chief Conservator at the spot. Condition 8 then provided that the balance of the price, that is to say, the remaining 75 per cent of such price, had to be paid within one month from the date of the purchase. If the person making the tender failed to pay the remaining balance of 75 per cent of the price, the State would be entitled to forfeit the initial deposit of 25 per cent and to resell the goods and recover the deficit, if any, from the purchaser. Conditions 5 and 6 were conditions of sale subject to which a tender could be validly accepted and sanctioned by the Chief Conservator. There was no proof, by way of anything in writing, to show that such a sanction was in fact given. There was equally no proof that the Chief Conservator had the authority to waive the conditions, subject to which only tenders could be validly accepted and sanctioned. In the absence of the initial deposit of 25 per cent of the purchase price having been made on the spot, the tenders could neither be validly accepted nor sanctioned by the Chief Conservator. In the absence of any authority to waive the said conditions, there was no valid acceptance or sanction of the said tenders. The true position, therefore, was that the offering of the said tenders by the respondent firm and their purported acceptance by the Forest authorities never ripened into a concluded contract. Further, the rules defined a forest contract and required that such a contract had to be in writing and in the prescribed form. It was contended that the prescribed form was such that such a contract could not fit in in any such form. That undoubtedly is so. But that only meant that the prescribed form would not apply, and would not mean that the rest of the rule requiring the contract to be in writing could not apply. It is not disputed that the contract in question was not in writing.10. The conclusion that the offer and the purported acceptance of the said tenders did not result in a concluded contract is strengthened by a perusal of all the conditions of sale as a whole. When so read, they disclose that when a person offered a tender he had to deposit on the spot 25 per cent of the purchase price offered by him therein. The tender could not be accepted, much less sanctioned, unless such an initial deposit was made on the spot. Neither the said conditions nor the rules provided for waiving the condition of having to make the initial deposit of 25 per cent on the spot or for extending time for making such initial deposit. The next stage provided by the conditions was that the remaining balance of the price, that is, the remaining 75 per cent of the price, had to be paid within one month from the date of the acceptance and sanction of the tender. Condition 8, therefore, provided as a consequence of Condition 5, that in the event of default by the purchaser in payment of the remaining balance of 75 per cent of the price, the State would become entitled to forfeit the initial deposit of 25 per cent already made and to resell the goods in question and claim the difference between the contract price and the resale price. Such difference would become payable by reason of R. 30 (3) (e) and under S. 82 of the Forest Act as arrears of land revenue. Condition 8 thus postulated that upon a tender being opened, but before it was accepted or sanctioned, the initial deposit was made by thepurchaser and upon such deposit having been made, the tender could be accepted and sanctioned resulting into a concluded contract and the person so making the tender would become the buyer of the goods. No rule or order was brought to our notice which permitted the Chief Conservator either to waive Condition 5 or to extend the time for making the initial deposit. Indeed, there could not be any such rule. The reason is that according to these conditions the balance of the price, that is, 75 per cent of the price remaining unpaid, had to be paid within one month and the goods had also to be taken delivery of and removed within that period. This can only happen if the initial deposit of 25 per cent was made on the spot and the tender was thereupon accepted and sanctioned on the spot. On such acceptance and sanction, the person whose tender was accepted would become the buyer, in whom property in goods would vest and who, therefore, would take delivery and pay the balance of the price within one month, and who in default of payment of the remaining 75 per cent of the price would become liable to lose the initial deposit of 25 per cent of the price deposited by him earlier when his tender was accepted.11. The initial deposit not having been made according to Condition 5 to which acceptance of the tender was subject, the purported acceptance was not a valid one, there was no concluded contract and therefore neither Conditions nor Rule 30 (3) (e) became applicable. That being so, the High Court was right in its conclusion that the said amount of Rs. 1,39,000 and odd was not recoverable as arrears of land revenue.

### 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: the rules made by the then Rewa State as were applicable. Before the said tenders could be said to have ripened into a concluded contract, they had not only to be accepted but also sanctioned by the Chief Conservator for and on behalf of the State.9. The conditions, subject to which the said tenders could be validly made, were that the person making such a tender had to deposit on the spot 25 per cent of the purchase price as the initial deposit and the final bid, if accepted, had to be sanctioned by the Chief Conservator at the spot. Condition 8 then provided that the balance of the price, that is to say, the remaining 75 per cent of such price, had to be paid within one month from the date of the purchase. If the person making the tender failed to pay the remaining balance of 75 per cent of the price, the State would be entitled to forfeit the initial deposit of 25 per cent and to resell the goods and recover the deficit, if any, from the purchaser. Conditions 5 and 6 were conditions of sale subject to which a tender could be validly accepted and sanctioned by the Chief Conservator. There was no proof, by way of anything in writing, to show that such a sanction was in fact given. There was equally no proof that the Chief Conservator had the authority to waive the conditions, subject to which only tenders could be validly accepted and sanctioned. In the absence of the initial deposit of 25 per cent of the purchase price having been made on the spot, the tenders could neither be validly accepted nor sanctioned by the Chief Conservator. In the absence of any authority to waive the said conditions, there was no valid acceptance or sanction of the said tenders. The true position, therefore, was that the offering of the said tenders by the respondent firm and their purported acceptance by the Forest authorities never ripened into a concluded contract. Further, the rules defined a forest contract and required that such a contract had to be in writing and in the prescribed form. It was contended that the prescribed form was such that such a contract could not fit in in any such form. That undoubtedly is so. But that only meant that the prescribed form would not apply, and would not mean that the rest of the rule requiring the contract to be in writing could not apply. It is not disputed that the contract in question was not in writing.10. The conclusion that the offer and the purported acceptance of the said tenders did not result in a concluded contract is strengthened by a perusal of all the conditions of sale as a whole. When so read, they disclose that when a person offered a tender he had to deposit on the spot 25 per cent of the purchase price offered by him therein. The tender could not be accepted, much less sanctioned, unless such an initial deposit was made on the spot. Neither the said conditions nor the rules provided for waiving the condition of having to make the initial deposit of 25 per cent on the spot or for extending time for making such initial deposit. The next stage provided by the conditions was that the remaining balance of the price, that is, the remaining 75 per cent of the price, had to be paid within one month from the date of the acceptance and sanction of the tender. Condition 8, therefore, provided as a consequence of Condition 5, that in the event of default by the purchaser in payment of the remaining balance of 75 per cent of the price, the State would become entitled to forfeit the initial deposit of 25 per cent already made and to resell the goods in question and claim the difference between the contract price and the resale price. Such difference would become payable by reason of R. 30 (3) (e) and under S. 82 of the Forest Act as arrears of land revenue. Condition 8 thus postulated that upon a tender being opened, but before it was accepted or sanctioned, the initial deposit was made by the would-be purchaser and upon such deposit having been made, the tender could be accepted and sanctioned resulting into a concluded contract and the person so making the tender would become the buyer of the goods. No rule or order was brought to our notice which permitted the Chief Conservator either to waive Condition 5 or to extend the time for making the initial deposit. Indeed, there could not be any such rule. The reason is that according to these conditions the balance of the price, that is, 75 per cent of the price remaining unpaid, had to be paid within one month and the goods had also to be taken delivery of and removed within that period. This can only happen if the initial deposit of 25 per cent was made on the spot and the tender was thereupon accepted and sanctioned on the spot. On such acceptance and sanction, the person whose tender was accepted would become the buyer, in whom property in goods would vest and who, therefore, would take delivery and pay the balance of the price within one month, and who in default of payment of the remaining 75 per cent of the price would become liable to lose the initial deposit of 25 per cent of the price deposited by him earlier when his tender was accepted.11. The initial deposit not having been made according to Condition 5 to which acceptance of the tender was subject, the purported acceptance was not a valid one, there was no concluded contract and therefore neither Conditions nor Rule 30 (3) (e) became applicable. That being so, the High Court was right in its conclusion that the said amount of Rs. 1,39,000 and odd was not recoverable as arrears of land revenue. ### Response: 0

Monaben Ketanbhai Shah Vs. State Of Gujarat

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. Thus, vicarious liability has been fastened on those who are in-charge of and responsible to the company for the conduct of its business. For the purpose of Section 141, a firm comes within the ambit of a company.4. It is not necessary to reproduce the language of Section 141 verbatim in the complaint since the complaint is required to be read as a whole. If the substance of the allegations made in the complaint fulfill the requirements of Section 141, the complaint has to proceed and is required to be tried with. It is also true that in construing a complaint a hyper-technical approach should not be adopted so as to quash the same. The laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions resulting in enactment of Sections 138 and 141 has to be borne in mind. These provisions create a statutory presumption of dishonesty exposing a person to criminal liability if payment is not made within statutory period even after issue of notice. It is also true that the power of quashing is required to be exercised very sparingly and where, read as a whole, factual foundation for the offence has been laid in the complaint, it should not be quashed. All the same, it is also to be remembered that it is the duty of the Court to discharge the accused if taking everything stated in the complaint as correct and construing the allegations made therein liberally in favour of the complainant, the ingredients of the offence are altogether lacking. The present case falls in this category as would be evident from the facts notice hereinafter.5. The High Court in the impugned judgment has held that "on its perusal, it is clear that the respondent No. 2 original complainant has made specific allegations against the accused persons including the present petitioners in the complaint that the petitioners are partners of the partnership firm and the petitioners have taken active interest in the business". The aforesaid finding is not supported by the complaint. There are no averments in the complaint that the appellants have taken active interest in the business. There are two material paragraphs in the complaint and rest of the complaint sets out the names of the witnesses to be examined by the complainant besides the prayer clause. The two paragraphs read as under: "(1) The accused in this matter, for the development of their business had taken amount of Rs. 60,000/- through Agent on 8.1.1998 which was paid by us vide cheque No. 7432109 drawn on Canara Bank for Rs. 60,000/- which are received by the accused, therefore, the receipt was also issued on 8.1.1998.(2) The said amount was for 2.5 months. Therefore, the accused had issued us a cheque No. 3358762 dated 23.3.1998 drawn on State Bank of Saurashtra, Kalanala Branch, Bhavnagar for a sum of Rs. 62,250/-. On presentation of the said cheque in our account the accused had stopped payment on the said cheque so it was returned. The Canara Bank was given intimation in this regard by letter dated 17.9.1998 S.B.S. Kalanala, Bhavnagar. And, therefore, on 19.9.1998 the Canara Bank informed us, so the notice through Advocate dated 28.9.1998 was issued to the accused. And although all of them are served but no amount is paid." 6. The material part of the title of the complaint reads thus: "Karta of Himanshu Jayantilal,H.U.F.Himmanshu Jayantilal Thakkar...... ComplainantversusPartners of Sona Fibers(1) Shah Madhumati Harshadraj(2) Harshadrai V. Shah (H.U.F.)(3) Monaben Ketanbhai Shah(4) Sonaben R. Shah(5) Rupaben Harshabhai Shah........ ........ ..................Accused" 7. From the above, it is evident that in the complaint there are no averments against the appellants except stating in the title that they are partners of the firm. Learned counsel for the respondents/complainant contended that a copy of the partnership deed was also filed which would show that the appellants were active in the business. No such document was filed with the complaint or made part thereof. The filing of the partnership deed later is of no consequence for determining the point in issue. Section 141 does not make all partners liable for the offence. The criminal liability has been fastened on those who, at the time of the commission of the offence, was in charge of and was responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The present case is of total absence of requisite averments in the complaint. 8. In K.P.G. Nair vs. Jindal Menthol India Ltd. [(2001) 10 SCC 218] , this Court held that the substance of allegations read as a whole should answer and fulfill the requirements of the ingredients of Section 141. The criminal complaint was quashed in Katta Sujatha (Smt.) vs. Fertilizers & Chemicals Travancore Ltd. & Anr. [(2002) 7 SCC 655] , since in the complaint it was not stated that the accused was in charge of the business and was responsible for the conduct of the business of the firm nor was their any other allegation that she had connived with any other partner in the matter of issue of cheque.

1[ds]The High Court in the impugned judgment has held that "on its perusal, it is clear that the respondent No. 2 original complainant has made specific allegations against the accused persons including the present petitioners in the complaint that the petitioners are partners of the partnership firm and the petitioners have taken active interest in the business". The aforesaid finding is not supported by the complaint. There are no averments in the complaint that the appellants have taken active interest in the business. There are two material paragraphs in the complaint and rest of the complaint sets out the names of the witnesses to be examined by the complainant besides the prayer clause. The two paragraphs read ase accused in this matter, for the development of their business had taken amount of Rs. 60,000/- through Agent on 8.1.1998 which was paid by us vide cheque No. 7432109 drawn on Canara Bank for Rs. 60,000/- which are received by the accused, therefore, the receipt was also issued on 8.1.1998.(2) The said amount was for 2.5 months. Therefore, the accused had issued us a cheque No. 3358762 dated 23.3.1998 drawn on State Bank of Saurashtra, Kalanala Branch, Bhavnagar for a sum of Rs. 62,250/-. On presentation of the said cheque in our account the accused had stopped payment on the said cheque so it was returned. The Canara Bank was given intimation in this regard by letter dated 17.9.1998 S.B.S. Kalanala, Bhavnagar. And, therefore, on 19.9.1998 the Canara Bank informed us, so the notice through Advocate dated 28.9.1998 was issued to the accused. And although all of them are served but no amount is paid.e material part of the title of the complaint readsf Himanshu Jayantilal,H.U.F.Himmanshu Jayantilal Thakkar...... ComplainantversusPartners of Sona Fibers(1) Shah Madhumati Harshadraj(2) Harshadrai V. Shah (H.U.F.)(3) Monaben Ketanbhai Shah(4) Sonaben R. Shah(5) Rupaben Harshabhai Shah........ ........ ..................From the above, it is evident that in the complaint there are no averments against the appellants except stating in the title that they are partners of the firm.Learned counsel for the respondents/complainant contended that a copy of the partnership deed was also filed which would show that the appellants were active in the business.No such document was filed with the complaint or made part thereof. The filing of the partnership deed later is of no consequence for determining the point in issue. Section 141 does not make all partners liable for the offence. The criminal liability has been fastened on those who, at the time of the commission of the offence, was in charge of and was responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The present case is of total absence of requisite averments in theK.P.G. Nair vs. Jindal Menthol India Ltd. [(2001) 10 SCC 218] , this Court held that the substance of allegations read as a whole should answer and fulfill the requirements of the ingredients of Section 141. The criminal complaint was quashed in Katta Sujatha (Smt.) vs. Fertilizers & Chemicals Travancore Ltd. & Anr. [(2002) 7 SCC 655] , since in the complaint it was not stated that the accused was in charge of the business and was responsible for the conduct of the business of the firm nor was their any other allegation that she had connived with any other partner in the matter of issue of cheque.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: 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. Thus, vicarious liability has been fastened on those who are in-charge of and responsible to the company for the conduct of its business. For the purpose of Section 141, a firm comes within the ambit of a company.4. It is not necessary to reproduce the language of Section 141 verbatim in the complaint since the complaint is required to be read as a whole. If the substance of the allegations made in the complaint fulfill the requirements of Section 141, the complaint has to proceed and is required to be tried with. It is also true that in construing a complaint a hyper-technical approach should not be adopted so as to quash the same. The laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions resulting in enactment of Sections 138 and 141 has to be borne in mind. These provisions create a statutory presumption of dishonesty exposing a person to criminal liability if payment is not made within statutory period even after issue of notice. It is also true that the power of quashing is required to be exercised very sparingly and where, read as a whole, factual foundation for the offence has been laid in the complaint, it should not be quashed. All the same, it is also to be remembered that it is the duty of the Court to discharge the accused if taking everything stated in the complaint as correct and construing the allegations made therein liberally in favour of the complainant, the ingredients of the offence are altogether lacking. The present case falls in this category as would be evident from the facts notice hereinafter.5. The High Court in the impugned judgment has held that "on its perusal, it is clear that the respondent No. 2 original complainant has made specific allegations against the accused persons including the present petitioners in the complaint that the petitioners are partners of the partnership firm and the petitioners have taken active interest in the business". The aforesaid finding is not supported by the complaint. There are no averments in the complaint that the appellants have taken active interest in the business. There are two material paragraphs in the complaint and rest of the complaint sets out the names of the witnesses to be examined by the complainant besides the prayer clause. The two paragraphs read as under: "(1) The accused in this matter, for the development of their business had taken amount of Rs. 60,000/- through Agent on 8.1.1998 which was paid by us vide cheque No. 7432109 drawn on Canara Bank for Rs. 60,000/- which are received by the accused, therefore, the receipt was also issued on 8.1.1998.(2) The said amount was for 2.5 months. Therefore, the accused had issued us a cheque No. 3358762 dated 23.3.1998 drawn on State Bank of Saurashtra, Kalanala Branch, Bhavnagar for a sum of Rs. 62,250/-. On presentation of the said cheque in our account the accused had stopped payment on the said cheque so it was returned. The Canara Bank was given intimation in this regard by letter dated 17.9.1998 S.B.S. Kalanala, Bhavnagar. And, therefore, on 19.9.1998 the Canara Bank informed us, so the notice through Advocate dated 28.9.1998 was issued to the accused. And although all of them are served but no amount is paid." 6. The material part of the title of the complaint reads thus: "Karta of Himanshu Jayantilal,H.U.F.Himmanshu Jayantilal Thakkar...... ComplainantversusPartners of Sona Fibers(1) Shah Madhumati Harshadraj(2) Harshadrai V. Shah (H.U.F.)(3) Monaben Ketanbhai Shah(4) Sonaben R. Shah(5) Rupaben Harshabhai Shah........ ........ ..................Accused" 7. From the above, it is evident that in the complaint there are no averments against the appellants except stating in the title that they are partners of the firm. Learned counsel for the respondents/complainant contended that a copy of the partnership deed was also filed which would show that the appellants were active in the business. No such document was filed with the complaint or made part thereof. The filing of the partnership deed later is of no consequence for determining the point in issue. Section 141 does not make all partners liable for the offence. The criminal liability has been fastened on those who, at the time of the commission of the offence, was in charge of and was responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The present case is of total absence of requisite averments in the complaint. 8. In K.P.G. Nair vs. Jindal Menthol India Ltd. [(2001) 10 SCC 218] , this Court held that the substance of allegations read as a whole should answer and fulfill the requirements of the ingredients of Section 141. The criminal complaint was quashed in Katta Sujatha (Smt.) vs. Fertilizers & Chemicals Travancore Ltd. & Anr. [(2002) 7 SCC 655] , since in the complaint it was not stated that the accused was in charge of the business and was responsible for the conduct of the business of the firm nor was their any other allegation that she had connived with any other partner in the matter of issue of cheque. ### Response: 1

Gov.Body,L.P Shahi College, Patna Vs. Seema Mishra

have been directed to inform that for the post of Lecturer in Labour & Social Welfare Dept. of your college, advertisement was made by the Commission vide Advertisement No.315/94. After holding the interview of the candidates, this commission recommends the names of following candidates in the order of preference for appointment on the post of Lecturer provided affiliation for the current session is obtained.First Post: 1. Dr. Siyaram Sharma-First2. Smt. Seema Mishra-Second”Contention of appellant is that as per the above communication, the Commission recommended two persons for the first post, one of them viz., Dr. Siyaram Sharma was appointed and since there was no recommendation for the second post, no appointment was made to the second post.11. As per the provisions of the Act, the Commission is required to make recommendations of two persons for every post, arranged in the order of preference, out of which the Governing Body of the College is to make appointments and no person whose name is not recommended by the Commission can be appointed by the Governing Body. This will be evident from sub-sections (9) and (10) of Section 2 of the Act, which read as under:-“Section 2……(9) The Commission shall recommend for appointment to every post of teacher names of two persons arranged in order of preference and considered by the Commission to be the best qualified therefor. The recommendation shall be valid for one year from the date of the recommendation by the Commission.(10) In making any such appointment the Governing Body of the college shall, within three months from the date of the receipt of the recommendation under sub-section (9), make its selection out of the names recommended by the Commission, and in no case shall Governing Body appoint a person who is not recommended by the Commission.”Since two posts were advertised for the appellant-College, in terms of Section 2(9) of the Act, it was mandatory on the part of the Commission to recommend two plus two candidates. But the Commission recommended only two candidates for the first post.The second respondent-Commission has not followed the mandatory provision of Section 2(9) in recommending two plus two candidates for the two posts of lecturers advertised for the appellant-College.12. The writ petition filed by the first respondent in the year 2000 was disposed on 02.11.2007. After referring to the Commission’s communication dated 15.06.1999, the learned Single Judge observed “the Commission’s letter of recommendation was inartistically worded. It appears to me that the Commission intended to recommend the two names against the two posts”. Pointing out that the first respondent’s suitability was not in doubt and that she has been deprived of her appointment for no fault of hers, the learned Single Judge allowed the writ petition, inter alia, issuing directions as aforesaid.13. Before the Division Bench, Mr. Yugul Prasad, counsel appearing on behalf of the Commission submitted that an error had crept in, in the recommendation of the Commission. After referring to this submission, the Division Bench observed as under:“…When the post is available the Commission was asked to rectify such error and in most of the cases the Commission has explained such error and made statement before this Hon’ble Court with regard to the appointment of the respondent-petitioner...”Having said so, after referring to the communication of the Commission dated 15.06.1999, the Division Bench took the view that the name of Dr. Siyaram Sharma was recommended for the first post and the name of first respondent was recommended for the second post. The communication of the Commission dated 15.06.1999 clearly states that the first respondent’s name was recommended as second preference for the first post.14. Under Section 2(10) of the Act, the Governing Body of the College shall select for appointment from the names recommended by the Commission. Thus, the Governing Body has the right to select the candidates in the order of preference. But since two posts were available, the Commission ought to have recommended two plus two candidates. The High Court rightly observed that the Commission had violated the mandatory provision of Section 2(9). Since there was violation of the statutory provisions by the second respondent-Commission and going by the submission made on behalf of the Commission before the High Court, the name of the first respondent is to be considered for the second post available. She should not be made to suffer injustice for no fault of her own.15. The first respondent’s suitability for appointment is not in doubt; instead of recommending the first respondent to the second post, the Commission was not justified in recommending her name as second preference for the first post and stopping at that. The reasons are not far to seek. In the second post available in the appellant-L.P. Shahi College of Labour and Social Welfare, Dr. Ramdeo Prasad Sharma (appellant in the connected matter i.e. in the appeal arising out of SLP (C) No. 978 of 2012) has already been working temporarily in the Department of Labour and Social Welfare. Even though the said Ramdeo Prasad Sharma applied for the post, his name was not recommended. Be it noted that the said Dr. Ramdeo Prasad Sharma has not challenged his non-selection by the Commission. In violation of Section 57A of the Bihar State Universities Act, appellant College continued Dr. Ramdeo Prasad Sharma in the said post which is in violation of the provisions of Bihar State Universities Act. Continuance of Ramdeo Prasad Sharma in the post was improper, arbitrary and in disregard of the statutory provisions. The appellant-Ramdeo Prasad Sharma is said to have retired at the age of superannuation in January, 2016 and that post in the Department of Labour and Social Welfare is presently vacant.16. Since there was violation of Section 2 (9) of the Bihar College Service Commission Act, 1976 and that of Section 57A of Bihar State Universities Act, the High Court has rightly allowed the writ petition filed by the first respondent, inter alia, issuing directions as stated above. We do not find any reason warranting interference with impugned judgment.

0[ds]14. Under Section 2(10) of the Act, the Governing Body of the College shall select for appointment from the names recommended by the Commission. Thus, the Governing Body has the right to select the candidates in the order of preference. But since two posts were available, the Commission ought to have recommended two plus two candidates. The High Court rightly observed that the Commission had violated the mandatory provision of Section 2(9). Since there was violation of the statutory provisions by the secondand going by the submission made on behalf of the Commission before the High Court, the name of the first respondent is to be considered for the second post available. She should not be made to suffer injustice for no fault of her own.15. The firstShahi College of Labour and Social Welfare, Dr. Ramdeo Prasad Sharma (appellant in the connected matter i.e. in the appeal arising out of SLP (C) No. 978 of 2012) has already been working temporarily in the Department of Labour and Social Welfare. Even though the said Ramdeo Prasad Sharma applied for the post, his name was not recommended. Be it noted that the said Dr. Ramdeo Prasad Sharma has not challenged hisby the Commission. In violation of Section 57A of the Bihar State Universities Act, appellant College continued Dr. Ramdeo Prasad Sharma in the said post which is in violation of the provisions of Bihar State Universities Act. Continuance of Ramdeo Prasad Sharma in the post was improper, arbitrary and in disregard of the statutory provisions. ThePrasad Sharma is said to have retired at the age of superannuation in January, 2016 and that post in the Department of Labour and Social Welfare is presently vacant.16. Since there was violation of Section 2 (9) of the Bihar College Service Commission Act, 1976 and that of Section 57A of Bihar State Universities Act, the High Court has rightly allowed the writ petition filed by the first respondent, inter alia, issuing directions as stated above. We do not find any reason warranting interference with impugned judgment.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: have been directed to inform that for the post of Lecturer in Labour & Social Welfare Dept. of your college, advertisement was made by the Commission vide Advertisement No.315/94. After holding the interview of the candidates, this commission recommends the names of following candidates in the order of preference for appointment on the post of Lecturer provided affiliation for the current session is obtained.First Post: 1. Dr. Siyaram Sharma-First2. Smt. Seema Mishra-Second”Contention of appellant is that as per the above communication, the Commission recommended two persons for the first post, one of them viz., Dr. Siyaram Sharma was appointed and since there was no recommendation for the second post, no appointment was made to the second post.11. As per the provisions of the Act, the Commission is required to make recommendations of two persons for every post, arranged in the order of preference, out of which the Governing Body of the College is to make appointments and no person whose name is not recommended by the Commission can be appointed by the Governing Body. This will be evident from sub-sections (9) and (10) of Section 2 of the Act, which read as under:-“Section 2……(9) The Commission shall recommend for appointment to every post of teacher names of two persons arranged in order of preference and considered by the Commission to be the best qualified therefor. The recommendation shall be valid for one year from the date of the recommendation by the Commission.(10) In making any such appointment the Governing Body of the college shall, within three months from the date of the receipt of the recommendation under sub-section (9), make its selection out of the names recommended by the Commission, and in no case shall Governing Body appoint a person who is not recommended by the Commission.”Since two posts were advertised for the appellant-College, in terms of Section 2(9) of the Act, it was mandatory on the part of the Commission to recommend two plus two candidates. But the Commission recommended only two candidates for the first post.The second respondent-Commission has not followed the mandatory provision of Section 2(9) in recommending two plus two candidates for the two posts of lecturers advertised for the appellant-College.12. The writ petition filed by the first respondent in the year 2000 was disposed on 02.11.2007. After referring to the Commission’s communication dated 15.06.1999, the learned Single Judge observed “the Commission’s letter of recommendation was inartistically worded. It appears to me that the Commission intended to recommend the two names against the two posts”. Pointing out that the first respondent’s suitability was not in doubt and that she has been deprived of her appointment for no fault of hers, the learned Single Judge allowed the writ petition, inter alia, issuing directions as aforesaid.13. Before the Division Bench, Mr. Yugul Prasad, counsel appearing on behalf of the Commission submitted that an error had crept in, in the recommendation of the Commission. After referring to this submission, the Division Bench observed as under:“…When the post is available the Commission was asked to rectify such error and in most of the cases the Commission has explained such error and made statement before this Hon’ble Court with regard to the appointment of the respondent-petitioner...”Having said so, after referring to the communication of the Commission dated 15.06.1999, the Division Bench took the view that the name of Dr. Siyaram Sharma was recommended for the first post and the name of first respondent was recommended for the second post. The communication of the Commission dated 15.06.1999 clearly states that the first respondent’s name was recommended as second preference for the first post.14. Under Section 2(10) of the Act, the Governing Body of the College shall select for appointment from the names recommended by the Commission. Thus, the Governing Body has the right to select the candidates in the order of preference. But since two posts were available, the Commission ought to have recommended two plus two candidates. The High Court rightly observed that the Commission had violated the mandatory provision of Section 2(9). Since there was violation of the statutory provisions by the second respondent-Commission and going by the submission made on behalf of the Commission before the High Court, the name of the first respondent is to be considered for the second post available. She should not be made to suffer injustice for no fault of her own.15. The first respondent’s suitability for appointment is not in doubt; instead of recommending the first respondent to the second post, the Commission was not justified in recommending her name as second preference for the first post and stopping at that. The reasons are not far to seek. In the second post available in the appellant-L.P. Shahi College of Labour and Social Welfare, Dr. Ramdeo Prasad Sharma (appellant in the connected matter i.e. in the appeal arising out of SLP (C) No. 978 of 2012) has already been working temporarily in the Department of Labour and Social Welfare. Even though the said Ramdeo Prasad Sharma applied for the post, his name was not recommended. Be it noted that the said Dr. Ramdeo Prasad Sharma has not challenged his non-selection by the Commission. In violation of Section 57A of the Bihar State Universities Act, appellant College continued Dr. Ramdeo Prasad Sharma in the said post which is in violation of the provisions of Bihar State Universities Act. Continuance of Ramdeo Prasad Sharma in the post was improper, arbitrary and in disregard of the statutory provisions. The appellant-Ramdeo Prasad Sharma is said to have retired at the age of superannuation in January, 2016 and that post in the Department of Labour and Social Welfare is presently vacant.16. Since there was violation of Section 2 (9) of the Bihar College Service Commission Act, 1976 and that of Section 57A of Bihar State Universities Act, the High Court has rightly allowed the writ petition filed by the first respondent, inter alia, issuing directions as stated above. We do not find any reason warranting interference with impugned judgment. ### Response: 0

Mohd. Qadim Vs. Khurshed Ahmed Hashmi and Another

SHAH, J.1. By our order dated December 1, 1969, we requested the Sunni Central Waqfs Board constituted under the U.P. Muslim Waqfs Act 16 of 1960, to frame a scheme and recommend to this Court the name of a person who according to them, would be a fit person to be a mutawalli of this Waqf. We observed that in making the recommendation the Board will take into account the extent of the estate, the interest of the beneficiaries, the qualification of the proposed mutawalli and his status and the possibility that he will be able to devote sufficient time to the management of the Waqf and other relevant matters.2. The Board has now submitted a scheme to this Court. No objection has been raised on behalf of the appellant to the provisions of the scheme. The only objection raised by Mr. Sinha, appearing on behalf of the appellant, is to the recommendation that the respondent Khurshed should be appointed a mutawalli. Several grounds have been alleged in the reply affidavit filed by the appellant. It is urged that Nawab Modh. Yusf, grandfather of Khurshed had been guilty of mis-application of the funds of the Waqf and that Ahmed Hashmi, father of Khurshed, was also responsible for misapplication of the funds. But these two persons are dead and we are not concerned, in providing a scheme for ensuing the safety and proper management of the Waqf to make up these old matters in this appeal. The primary question is about the proper management of the Waqf and its affairs. About Khurshed Ahmed Hashmi it was stated by the appellant in the affidavit originally filed by him that the Sunni Central Waqf Board "maintains partiality to Ahmed Hashmi as though it were a natural right of succession". But this would be doing injustice to the recommendation. The Board has not recognised the right of Khurshed Hashmi as a son of Ahmed Hashmi. In a supplementary affidavit which has been filed by the appellant it is alleged that the Waqf was liable to pay large sums of money to the local Municipality and the respondent Khurshed had applied to the Municipality that some vacant land belonging to the Waqf may be taken over in satisfaction of the claim. It is not clear, however, from the record as to when the liability for payment of municipal taxes in respect of which suits had been filed accrued and whether it was by reason of any mismanagement of the affairs of the Waqf that this liability remained unsatisfied. We are unable to hold that merely because a request has been made that a vacant land belonging to the Waqf may be taken over by the Municipality and the liability of the Waqf may be satisfied out of the price is a ground for holding that the recommendation made by the Waqf Board should not be accepted.

1[ds]2. The Board has now submitted a scheme to this Court. No objection has been raised on behalf of the appellant to the provisions of the scheme.The only objection raised by Mr. Sinha, appearing on behalf of the appellant, is to the recommendation that the respondent Khurshed should be appointed a mutawalli.Several grounds have been alleged in the reply affidavit filed by the appellant. It is urged that Nawab Modh. Yusf, grandfather of Khurshed had been guilty ofmisapplication of theof the Waqf and that Ahmed Hashmi, father of Khurshed, was also responsible formisapplication of theBut these two persons are dead and we are not concerned, in providing a scheme for ensuing the safety and proper management of the Waqf to make up these old matters in this appeal. The primary question is about the proper management of the Waqf and its affairs. About Khurshed Ahmed Hashmi it was stated by the appellant in the affidavit originally filed by him that the Sunni Central Waqf Board "maintains partiality to Ahmed Hashmi as though it were a natural right of succession". But this would be doing injustice to the recommendation. The Board has not recognised the right of Khurshed Hashmi as a son of Ahmed Hashmi. In a supplementary affidavit which has been filed by the appellant it is alleged that the Waqf was liable to pay large sums of money to the local Municipality and the respondent Khurshed had applied to the Municipality that some vacant land belonging to the Waqf may be taken over in satisfaction of the claim. It is not clear, however, from the record as to when the liability for payment of municipal taxes in respect of which suits had been filed accrued and whether it was by reason of any mismanagement of the affairs of the Waqf that this liability remained unsatisfied. We are unable to hold that merely because a request has been made that a vacant land belonging to the Waqf may be taken over by the Municipality and the liability of the Waqf may be satisfied out of the price is a ground for holding that the recommendation made by the Waqf Board should not be accepted.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: SHAH, J.1. By our order dated December 1, 1969, we requested the Sunni Central Waqfs Board constituted under the U.P. Muslim Waqfs Act 16 of 1960, to frame a scheme and recommend to this Court the name of a person who according to them, would be a fit person to be a mutawalli of this Waqf. We observed that in making the recommendation the Board will take into account the extent of the estate, the interest of the beneficiaries, the qualification of the proposed mutawalli and his status and the possibility that he will be able to devote sufficient time to the management of the Waqf and other relevant matters.2. The Board has now submitted a scheme to this Court. No objection has been raised on behalf of the appellant to the provisions of the scheme. The only objection raised by Mr. Sinha, appearing on behalf of the appellant, is to the recommendation that the respondent Khurshed should be appointed a mutawalli. Several grounds have been alleged in the reply affidavit filed by the appellant. It is urged that Nawab Modh. Yusf, grandfather of Khurshed had been guilty of mis-application of the funds of the Waqf and that Ahmed Hashmi, father of Khurshed, was also responsible for misapplication of the funds. But these two persons are dead and we are not concerned, in providing a scheme for ensuing the safety and proper management of the Waqf to make up these old matters in this appeal. The primary question is about the proper management of the Waqf and its affairs. About Khurshed Ahmed Hashmi it was stated by the appellant in the affidavit originally filed by him that the Sunni Central Waqf Board "maintains partiality to Ahmed Hashmi as though it were a natural right of succession". But this would be doing injustice to the recommendation. The Board has not recognised the right of Khurshed Hashmi as a son of Ahmed Hashmi. In a supplementary affidavit which has been filed by the appellant it is alleged that the Waqf was liable to pay large sums of money to the local Municipality and the respondent Khurshed had applied to the Municipality that some vacant land belonging to the Waqf may be taken over in satisfaction of the claim. It is not clear, however, from the record as to when the liability for payment of municipal taxes in respect of which suits had been filed accrued and whether it was by reason of any mismanagement of the affairs of the Waqf that this liability remained unsatisfied. We are unable to hold that merely because a request has been made that a vacant land belonging to the Waqf may be taken over by the Municipality and the liability of the Waqf may be satisfied out of the price is a ground for holding that the recommendation made by the Waqf Board should not be accepted. ### Response: 1

Kusum Agarwal Vs. M/S. Harsha Associates Pvt. Ltd

Deepak Gupta, J.1. Leave granted.2. The respondent was building an office complex and issued an advertisement "Commercial space in Harsha Commercial Complex" to be constructed on Plot No.1, Local Shopping Centre, Gazipur, Delhi. The appellants who are the husband and wife jointly applied for one shop in the Complex which was offered to them by the respondent for a total consideration of Rs. 4,80,000/-. Pursuant to this, an agreement was entered into between the parties on25.01.2004, whereby one shop was agreed to be sold to the appellants for a total consideration of Rs. 4,80,000/- to be paid in installments.3. On 06.12.2004, the respondent wrote a letter to appellant no.1informing her that the shop is ready, requested the appellants to pay the balance amount of Rs. 2,75,000/- and maintenance charges etc., i.e. a total amount of Rs. 3,16,930.96/-on or before 15.12.2004. According to the appellants, though they were ready to pay this amount the shop was not handed over to them. The appellants sent a letter to the respondent on 19.04.2005 informing the respondent that Rs. 2,05,000/- had already been paid and they are ready to take possession of the shop and pay the balance amount. Since possession of the shop was not delivered, the appellants filed a complaint before the District Consumer Disputes Redressal Forum, Delhi (for short `District Forum). Defence taken by the respondent was that the appellants were not ready and willing to pay the balance amount and, therefore, their amount had been forfeited. The District Forum directed the respondent to handover the possession of the shop to the appellants on payment of the balance amount of Rs. 2,45,000/- with interest @18% per annum from 28.03.2004 till the date of delivery of the possession along with other sundry charges. Thereafter, the appellants issued cheques for these amounts but the possession of shop was not delivered.4. The respondent filed an appeal before the State Consumer Disputes Redressal Commission, New Delhi (for short `the State Commission) and during the course of appeal it was disclosed by the respondent for the first time that the shop in question had already been sold prior to December, 2004 when letter was written to the appellants. The State Commission noticed that Rs.1,95,000/- had been paid earlier and Rs. 10,000/- had been paid later and, therefore, directed the repayment of this amount within a period of one month. No interest was awarded and the appellants, therefore, filed revision petition before the National Consumer Disputes Redressal Commission, New Delhi (for short `the National Commission). The National Commission did not decide the matter on merits but held that the space was a commercial space and, therefore, the appellants were not consumers and dismissed the petition.5. At the outset, we may notice that this was not a defence raised by the respondent either before the District Forum or before the State Commission. In fact, the respondent had not even challenged the order of the State Commission. In our view, the National Commission, in a revision petition filed by the complainant praying for increase of compensation and payment of interest, could not have dismissed the petition itself. We, therefore, set aside the order of the National Commission.6. As far as the merits are concerned, the conduct of the respondent clearly shows that he had not come to court with clean hands. In fact, in December, 2004 when a letter was written to the appellants offering them the commercial space in question, the same had already been sold to someone else. It would also be pertinent to mention that before the District Forum statement had been made by the counsel for the respondent that the shop in question was lying vacant and, therefore, the District Forum had passed the directions mentioned hereinabove. Later, it was stated that this statement had wrongly been made by the counsel due to mis-communication. The fact remains that the shop booked by the appellants was sold to another customer on 04.11.2004, even before the letter dated 06.12.2004 was sent to the appellants. It is, therefore, a clear-cut case of deficiency in service by the respondent.

1[ds]6. As far as the merits are concerned, the conduct of the respondent clearly shows that he had not come to court with clean hands. In fact, in December, 2004 when a letter was written to the appellants offering them the commercial space in question, the same had already been sold to someone else. It would also be pertinent to mention that before the District Forum statement had been made by the counsel for the respondent that the shop in question was lying vacant and, therefore, the District Forum had passed the directions mentioned hereinabove. Later, it was stated that this statement had wrongly been made by the counsel due toThe fact remains that the shop booked by the appellants was sold to another customer on 04.11.2004, even before the letter dated 06.12.2004 was sent to the appellants. It is, therefore, acase of deficiency in service by the respondent.

### 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: Deepak Gupta, J.1. Leave granted.2. The respondent was building an office complex and issued an advertisement "Commercial space in Harsha Commercial Complex" to be constructed on Plot No.1, Local Shopping Centre, Gazipur, Delhi. The appellants who are the husband and wife jointly applied for one shop in the Complex which was offered to them by the respondent for a total consideration of Rs. 4,80,000/-. Pursuant to this, an agreement was entered into between the parties on25.01.2004, whereby one shop was agreed to be sold to the appellants for a total consideration of Rs. 4,80,000/- to be paid in installments.3. On 06.12.2004, the respondent wrote a letter to appellant no.1informing her that the shop is ready, requested the appellants to pay the balance amount of Rs. 2,75,000/- and maintenance charges etc., i.e. a total amount of Rs. 3,16,930.96/-on or before 15.12.2004. According to the appellants, though they were ready to pay this amount the shop was not handed over to them. The appellants sent a letter to the respondent on 19.04.2005 informing the respondent that Rs. 2,05,000/- had already been paid and they are ready to take possession of the shop and pay the balance amount. Since possession of the shop was not delivered, the appellants filed a complaint before the District Consumer Disputes Redressal Forum, Delhi (for short `District Forum). Defence taken by the respondent was that the appellants were not ready and willing to pay the balance amount and, therefore, their amount had been forfeited. The District Forum directed the respondent to handover the possession of the shop to the appellants on payment of the balance amount of Rs. 2,45,000/- with interest @18% per annum from 28.03.2004 till the date of delivery of the possession along with other sundry charges. Thereafter, the appellants issued cheques for these amounts but the possession of shop was not delivered.4. The respondent filed an appeal before the State Consumer Disputes Redressal Commission, New Delhi (for short `the State Commission) and during the course of appeal it was disclosed by the respondent for the first time that the shop in question had already been sold prior to December, 2004 when letter was written to the appellants. The State Commission noticed that Rs.1,95,000/- had been paid earlier and Rs. 10,000/- had been paid later and, therefore, directed the repayment of this amount within a period of one month. No interest was awarded and the appellants, therefore, filed revision petition before the National Consumer Disputes Redressal Commission, New Delhi (for short `the National Commission). The National Commission did not decide the matter on merits but held that the space was a commercial space and, therefore, the appellants were not consumers and dismissed the petition.5. At the outset, we may notice that this was not a defence raised by the respondent either before the District Forum or before the State Commission. In fact, the respondent had not even challenged the order of the State Commission. In our view, the National Commission, in a revision petition filed by the complainant praying for increase of compensation and payment of interest, could not have dismissed the petition itself. We, therefore, set aside the order of the National Commission.6. As far as the merits are concerned, the conduct of the respondent clearly shows that he had not come to court with clean hands. In fact, in December, 2004 when a letter was written to the appellants offering them the commercial space in question, the same had already been sold to someone else. It would also be pertinent to mention that before the District Forum statement had been made by the counsel for the respondent that the shop in question was lying vacant and, therefore, the District Forum had passed the directions mentioned hereinabove. Later, it was stated that this statement had wrongly been made by the counsel due to mis-communication. The fact remains that the shop booked by the appellants was sold to another customer on 04.11.2004, even before the letter dated 06.12.2004 was sent to the appellants. It is, therefore, a clear-cut case of deficiency in service by the respondent. ### Response: 1

Swinder Singh Vs. State of Punjab

members of Raj Singh to whom the girl had been betrothed. 3. On receipt of that information Raj Singh decided not to marry the girl. It is also admitted that this girl Balwindro thereafter died either of poisoning or by being killed by her relatives. However, the fact remains that the girl died under some suspicious circumstances. This according to the prosecution was the motive for the appellant to put an end to the life of the deceased whom the appellant suspected to have been responsible for the tragic end of his sister. It is, said that the appellant, thereafter, was not in talking terms with the deceased for about six months. Subsequently, he developed his friendship again with the deceased. The next piece of evidence the prosecution has attempted to adduce is that the appellant and the deceased travelled together by a bus to Amritsar. To substantiate this part of the case the prosecution has examined PWs 6 and 7. Yet another circumstantial piece of evidence put forth by the prosecutions that the deceased was taken to the hospital, SGTB-Hospital, Amritsar by the appellant where he was examined by PW 1 (Doctor). He examined Prabhdiyal Singh who was at the time was in a state of coma and having alcoholic smell. The deceased was taken to the hospital by the appellant about 8.10 p. m. and he expired at 8.40 p. m. Postmortem was conducted by PW 1 who found four abrasions on the body of the deceased, which injuries in the opinion of the medical officer could have been caused by a blunt weapon. The viscera was sent for chemical analysis. On receipt of the report of the chemical examiner, PW 1 gave his opinion stating that the death of the deceased in his opinion was due to strychnine and alcohol poison. According to the medical officer the blood alcohol found in this case showed that it was a fatal dose of alcohol. The case was registered by PW 8 and the same was investigated. However, the police filed a report referring the case on the ground that the evidence gathered during the investigation was not sufficient for presenting a challan against the appellant. 4. It was only thereafter the mother of the deceased PW 5 gave a private complaint. The Magistrate who after taking the evidence committed the case for trial. The Trial Court for the reasons mentioned in its judgment found the appellant guilty of the offence under Section 302, IPC and convicted and sentenced him thereunder as aforementioned which judgment of the Trial Court for the reason given by the High Court was confirmed. Hence this appeal. 5. It is true that the evidence discloses strong motive for the appellant against the deceased. Not denying the fact that the deceased died of taking poison mixed in alcohol but the question that arises for consideration is as to whether the appellant and the appellant alone was responsible for causing the death of the deceased by administering the alcohol mixed with poison. The explanation given by the appellant is that he was a close friend of the deceased, that on the date of occurrence, he met the deceased near the Railway Station of Amritsar in a drunken condition; that at the request of the deceased he took him to SGTB Hospital where the deceased ultimately died and that thereafter, he informed PW 5 about the death of the deceased at about midnight on 1-4-1976. So far as the evidence regarding the movement of the deceased in the company of the appellant on the fateful day, the prosecution has rested its case on the evidence of PWs 6 and 7. The High Court after discussing the evidence of these two witnesses in detail has made the following observation : "We have thus considered it safer to exclude the evidence given by Tehal Singh like that of Ajaib Singh for determining whether from the remaining evidence it can be taken to be established that the deceased had come along with the appellant to Amritsar and then remained with him for whole of the day on April 1, 1976." 6. We see no reason to depart from the above conclusion arrived at by the High Court. In the hospital the appellant has given his name as the person who brought the deceased in a drunken condition. Barring the above circumstances, there is no other evidence connecting the appellant with the crime or at least for drawing an illation as to whether he gave alcohol or whether he purchased any poison from any shop or whether he mixed any poison with alcohol and administered it to him. In other words, the main link in the chain of circumstances is completely broken and there is no connecting evidence whatsoever worth mentioning incriminating the appellant with the crime in question. 7. It appears that both the Courts below by overlooking the fact that the chain of circumstances is completely broken have recorded the conviction evidently on strong suspicion based on the evidence that there was a strong motive for the appellant to snap the life thread of the deceased. 8. It is no doubt true as we have pointed out earlier that there is a strong suspicion against the appellant, but as pointed out by this Court in Pabitar Singh v. State of Bihar, 1972(3) SCC 354 : AIR 1972 SC 1899 although there may be grave suspicion against an accused person, still the prosecution is bound to establish facts from which the Court can reasonably arrive at a conclusion that the offence was committed by the accused. It may be recalled that this Court repeatedly observed that the suspicion however grave cannot take the place of legal proof. 9. For all the reasons stated above, we are enable to subscribe to the conclusion of the Courts below that the appellant is guilty of the offence with which he now stands convicted, since in our opinion such a conclusion is perverse and improper.

1[ds]5. It is true that the evidence discloses strong motive for the appellant against theexplanation given by the appellant is that he was a close friend of the deceased, that on the date of occurrence, he met the deceased near the Railway Station of Amritsar in a drunken condition; that at the request of the deceased he took him to SGTB Hospital where the deceased ultimately died and that thereafter, he informed PW 5 about the death of the deceased at about midnight onSo far as the evidence regarding the movement of the deceased in the company of the appellant on the fateful day, the prosecution has rested its case on the evidence of PWs 6 and 7.We see no reason to depart from the above conclusion arrived at by the High Court. In the hospital the appellant has given his name as the person who brought the deceased in a drunken condition. Barring the above circumstances, there is no other evidence connecting the appellant with the crime or at least for drawing an illation as to whether he gave alcohol or whether he purchased any poison from any shop or whether he mixed any poison with alcohol and administered it to him. In other words, the main link in the chain of circumstances is completely broken and there is no connecting evidence whatsoever worth mentioning incriminating the appellant with the crime in question.It appears that both the Courts below by overlooking the fact that the chain of circumstances is completely broken have recorded the conviction evidently on strong suspicion based on the evidence that there was a strong motive for the appellant to snap the life thread of the deceased.For all the reasons stated above, we are enable to subscribe to the conclusion of the Courts below that the appellant is guilty of the offence with which he now stands convicted, since in our opinion such a conclusion is perverse and improper.

### 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: members of Raj Singh to whom the girl had been betrothed. 3. On receipt of that information Raj Singh decided not to marry the girl. It is also admitted that this girl Balwindro thereafter died either of poisoning or by being killed by her relatives. However, the fact remains that the girl died under some suspicious circumstances. This according to the prosecution was the motive for the appellant to put an end to the life of the deceased whom the appellant suspected to have been responsible for the tragic end of his sister. It is, said that the appellant, thereafter, was not in talking terms with the deceased for about six months. Subsequently, he developed his friendship again with the deceased. The next piece of evidence the prosecution has attempted to adduce is that the appellant and the deceased travelled together by a bus to Amritsar. To substantiate this part of the case the prosecution has examined PWs 6 and 7. Yet another circumstantial piece of evidence put forth by the prosecutions that the deceased was taken to the hospital, SGTB-Hospital, Amritsar by the appellant where he was examined by PW 1 (Doctor). He examined Prabhdiyal Singh who was at the time was in a state of coma and having alcoholic smell. The deceased was taken to the hospital by the appellant about 8.10 p. m. and he expired at 8.40 p. m. Postmortem was conducted by PW 1 who found four abrasions on the body of the deceased, which injuries in the opinion of the medical officer could have been caused by a blunt weapon. The viscera was sent for chemical analysis. On receipt of the report of the chemical examiner, PW 1 gave his opinion stating that the death of the deceased in his opinion was due to strychnine and alcohol poison. According to the medical officer the blood alcohol found in this case showed that it was a fatal dose of alcohol. The case was registered by PW 8 and the same was investigated. However, the police filed a report referring the case on the ground that the evidence gathered during the investigation was not sufficient for presenting a challan against the appellant. 4. It was only thereafter the mother of the deceased PW 5 gave a private complaint. The Magistrate who after taking the evidence committed the case for trial. The Trial Court for the reasons mentioned in its judgment found the appellant guilty of the offence under Section 302, IPC and convicted and sentenced him thereunder as aforementioned which judgment of the Trial Court for the reason given by the High Court was confirmed. Hence this appeal. 5. It is true that the evidence discloses strong motive for the appellant against the deceased. Not denying the fact that the deceased died of taking poison mixed in alcohol but the question that arises for consideration is as to whether the appellant and the appellant alone was responsible for causing the death of the deceased by administering the alcohol mixed with poison. The explanation given by the appellant is that he was a close friend of the deceased, that on the date of occurrence, he met the deceased near the Railway Station of Amritsar in a drunken condition; that at the request of the deceased he took him to SGTB Hospital where the deceased ultimately died and that thereafter, he informed PW 5 about the death of the deceased at about midnight on 1-4-1976. So far as the evidence regarding the movement of the deceased in the company of the appellant on the fateful day, the prosecution has rested its case on the evidence of PWs 6 and 7. The High Court after discussing the evidence of these two witnesses in detail has made the following observation : "We have thus considered it safer to exclude the evidence given by Tehal Singh like that of Ajaib Singh for determining whether from the remaining evidence it can be taken to be established that the deceased had come along with the appellant to Amritsar and then remained with him for whole of the day on April 1, 1976." 6. We see no reason to depart from the above conclusion arrived at by the High Court. In the hospital the appellant has given his name as the person who brought the deceased in a drunken condition. Barring the above circumstances, there is no other evidence connecting the appellant with the crime or at least for drawing an illation as to whether he gave alcohol or whether he purchased any poison from any shop or whether he mixed any poison with alcohol and administered it to him. In other words, the main link in the chain of circumstances is completely broken and there is no connecting evidence whatsoever worth mentioning incriminating the appellant with the crime in question. 7. It appears that both the Courts below by overlooking the fact that the chain of circumstances is completely broken have recorded the conviction evidently on strong suspicion based on the evidence that there was a strong motive for the appellant to snap the life thread of the deceased. 8. It is no doubt true as we have pointed out earlier that there is a strong suspicion against the appellant, but as pointed out by this Court in Pabitar Singh v. State of Bihar, 1972(3) SCC 354 : AIR 1972 SC 1899 although there may be grave suspicion against an accused person, still the prosecution is bound to establish facts from which the Court can reasonably arrive at a conclusion that the offence was committed by the accused. It may be recalled that this Court repeatedly observed that the suspicion however grave cannot take the place of legal proof. 9. For all the reasons stated above, we are enable to subscribe to the conclusion of the Courts below that the appellant is guilty of the offence with which he now stands convicted, since in our opinion such a conclusion is perverse and improper. ### Response: 1

JAMILA BEGUM (D) THR. LRS Vs. SHAMI MOHD

in accordance with Order 34 Rule 7 CPC. The High Court has passed a decree for redemption of mortgage simpliciter without following the provisions of the Code of Civil Procedure. The High Court also erred in directing the delivery of possession of the suit property to respondent No.1-plaintiff and the same cannot be sustained. The High Court could not have passed the decree for redemption without following the procedure laid down in Order 34 Rule 7 and 8 of the Code of Civil Procedure which lays down a detailed procedure for passing a preliminary decree and final decree in a suit for redemption which was not followed by the High Court.34. Suit barred by limitation :- As discussed, suit was filed for declaration that the mortgage deed dated 21.11.1967 as well as sale deed dated 21.12.1970 executed by Wali Mohd. were not executed by him out of his free will and are void. In paragraph (14) of the plaint, it is averred that the cause of action of the suit arose on 21.11.1967 and 21.12.1970. Under Articles 58 and 59 of the Schedule to the Limitation Act, 1963 in a suit filed for any declaration is to be filed within three years when the right to sue accrues. Under Article 59 of the Limitation Act, suit filed to cancel or set aside the instrument or decree, the suit has to be filed within three years from the date when the facts entitling the plaintiff to set aside or cancel the instrument or decree became first known to him. Plaintiff-Shami Mohd. has admitted in his evidence that he got knowledge about the execution of the sale deed dated 21.12.1970 on the third day of death of his father - 17.05.1971. The suit must have been filed within three years of the date of knowledge or the date of the sale deed but the suit was filed on 12.07.1978. In the case in hand, suit filed challenging the validity of the mortgage deed dated 21.11.1967 and sale deed dated 21.12.1970 is beyond the period of limitation of three years as prescribed under Articles 58 and 59 of the Schedule to the Limitation Act and barred by limitation.35. There is no justification for the first appellate Court to record findings based on the arguments advanced. Even in the absence of pleadings and evidence, the first appellate Court recorded finding that there was no necessity for Wali Mohd. to execute mortgage deed and within short while thereafter, sale deed as he never performed Haj Pilgrimage and never did any business as written in the documents. Likewise, the first appellate Court recorded its own findings on inadequacy of consideration for the sale deed, even though no such plea was taken by respondent No.1-Shami Mohd.36. The first appellate Court being the final court of fact has jurisdiction to reverse or affirm the findings of the trial court. Considering the nature and scope of the first appellate Court in Vinod Kumar v. Gangadhar (2015) 1 SCC 391 , it was held as under:"15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy (2010) 13 SCC 530 , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words:?3. How the regular first appeal is to be disposed of by the appellate Court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate Court shall state:(a) the points for determination;(b) the decision thereon;(c) the reasons for the decision; and(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.4. The appellate Court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs. (2001) 3 SCC 179 , SCC p. 188, para 15 and Madhukar and Others v. Sangram and Others (2001) 4 SCC 756 SCC p. 758, para 5.)?The Court of first appeal has jurisdiction to reverse or affirm the findings of the trial Court. When the Court of first appeal takes a different view, the judgment of the first appellate Court must show the conscious application of mind and record its findings based on the evidence adduced by the parties and the judgment must record the reasons as to why the first appellate Court differs from the judgment of the Trial Court. In this case, judgment of the lower appellate Court has not answered all the points arising for determination and the evidence adduced thereon. Likewise, the High Court has not recorded any finding either on fact or on law. The High Court proceeded on the footing as if the suit was a simple suit for redemption of mortgage. Without appreciation of evidence adduced by the parties and sale deed dated 21.12.1970, the High Court erred in ordering the redemption of mortgage and delivery of possession. The impugned judgment of the High Court cannot be sustained and is liable to be set aside.

1[ds]14. It is also well settled that if by reason of a valid gift the thing gifted has gone out of the donee?s ownership, the same cannot be revoked. The donor may lawfully make a gift of a property in the possession of a lessee or a mortgagee. For effecting a valid gift, the delivery of constructive possession of the property to the donee would serve the purpose. Even a gift of a property in possession of trespasser is permissible in law provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession.respondent No.1- plaintiff claims through oral gift followed by the Will dated 30.09.1970. As discussed earlier, tenants were in occupation of the suit house. Respondent-plaintiff has not proved as to how at the time of oral gift, the possession was delivered to him. Nothing is brought on record to show that respondent No.1-Shami Mohd. has taken any steps to get the property mutated in his name. Likewise, nothing is brought on record to show that pursuant to the oral gift, the respondent-plaintiff collected rent from the tenants or paid house tax, water tax, etc. The essential conditions to make a valid gift under the Mohammedan law have not been established by the respondent-plaintiff to prove the oral gift in his favour. In the absence of any proof to show that the possession of the suit property was delivered to him, the oral gift relied upon by the respondent-plaintiff ought not to have been accepted by the courts below.25. Insofar as the plea that the documents are vitiated by undue influence, as rightly contended by learned senior counsel for the appellant, the plaint averments are vague. It is alleged by respondent No.1-plaintiff that Wali Mohd. had illicit relationship with appellant-Jamila Begum and that he was mentally infirm on the date of the alleged sale deed and that the sale deed was obtained by taking undue advantage of his infirmity and illicit relationship.26. Insofar as the plea of undue influence, merely because the parties are related to each other or merely because the executant was old or of weak character, no presumption of undue influence can arise. Court must scrutinise the pleadings to find out that such plea has been made out before examining whether undue influence was exercised or not.In the light of the above principles, considering the case in hand, no sufficient pleading in the plaint as to undue influence. Admittedly, Wali Mohd. had executed the mortgage deed dated 21.11.1967 in favour of Jamila Begum and Sakina. Wali Mohd. was in service in Power House till 1943 and was having full knowledge of things as to what he was doing. In this case, respondent No.1- Shami Mohd. failed to prove that Jamila Begum was in a position to dominate the Will of Wali Mohd. to obtain unfair advantage. The mortgage deed was dated 21.11.1967 and the sale deed in favour of the appellant-Jamila Begum was dated 21.12.1970. Wali Mohd. died on 17.05.1971. During his lifetime, Wali Mohd. has not challenged either the mortgage deed or the sale deed. No evidence has been adduced to prove that appellant exercised undue influence to get the documents executed. Respondent No.1-Shami Mohd. has failed to establish that the sale deed in favour of the appellant-Jamila Begum is vitiated by undue influence or fraud.decree for redemption of mortgage – whether. As pointed out earlier, the main relief sought for in the suit was for a declaration that the mortgage deed (dated 21.11.1967) registered on 12.01.1968 and sale deed (dated 21.12.1970) are void and be cancelled. Only as an alternative prayer, respondent- plaintiff sought for redemption of mortgage. But both the first appellate Court as well as the High Court proceeded on the footing as if it was a simple suit for redemption of mortgage.decree for redemption of mortgage is correct?The right of redemption can be extinguished as provided in proviso to Section 60 of the Transfer of Property Act. It can be extinguished either by the act of the parties or by decree of a court. The expression ?act of parties? refers to some transaction subsequent to the mortgage, standing barred from the mortgage transaction. As discussed earlier, in this case Jamila Begum-one of the mortgagees has purchased the property by the sale deed dated 21.12.1970 and thus, she purchased the entire equity of redemption by the execution of the sale deed, the mortgage qua the appellant has merged with the sale.32. On behalf of respondent No.1-plaintiff, an argument was advanced that, by the subsequent sale the appellant could not have purchased the entire property since there were two mortgagees viz. Jamila Begum and Sakina and therefore, the appellant could not have derived title over the entire suit property. We find no merit in the above contention, property purchased by the appellant -Jamila Begum from Wali Mohd. by sale deed dated 21.12.1970 is an act of the parties, by which the right of redemption qua the appellant became extinguished by the act of the parties. Without keeping in view the main relief sought in the suit, the High Court was not right in decreeing the suit for redemption of mortgage.There is no justification for the first appellate Court to record findings based on the arguments advanced. Even in the absence of pleadings and evidence, the first appellate Court recorded finding that there was no necessity for Wali Mohd. to execute mortgage deed and within short while thereafter, sale deed as he never performed Haj Pilgrimage and never did any business as written in the documents. Likewise, the first appellate Court recorded its own findings on inadequacy of consideration for the sale deed, even though no such plea was taken by respondent No.1-Shami Mohd.Court of first appeal has jurisdiction to reverse or affirm the findings of the trial Court. When the Court of first appeal takes a different view, the judgment of the first appellate Court must show the conscious application of mind and record its findings based on the evidence adduced by the parties and the judgment must record the reasons as to why the first appellate Court differs from the judgment of the Trial Court. In this case, judgment of the lower appellate Court has not answered all the points arising for determination and the evidence adduced thereon. Likewise, the High Court has not recorded any finding either on fact or on law. The High Court proceeded on the footing as if the suit was a simple suit for redemption of mortgage. Without appreciation of evidence adduced by the parties and sale deed dated 21.12.1970, the High Court erred in ordering the redemption of mortgage and delivery of possession. The impugned judgment of the High Court cannot be sustained and is liable to be set aside.

### Instruction: Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case. ### Input: in accordance with Order 34 Rule 7 CPC. The High Court has passed a decree for redemption of mortgage simpliciter without following the provisions of the Code of Civil Procedure. The High Court also erred in directing the delivery of possession of the suit property to respondent No.1-plaintiff and the same cannot be sustained. The High Court could not have passed the decree for redemption without following the procedure laid down in Order 34 Rule 7 and 8 of the Code of Civil Procedure which lays down a detailed procedure for passing a preliminary decree and final decree in a suit for redemption which was not followed by the High Court.34. Suit barred by limitation :- As discussed, suit was filed for declaration that the mortgage deed dated 21.11.1967 as well as sale deed dated 21.12.1970 executed by Wali Mohd. were not executed by him out of his free will and are void. In paragraph (14) of the plaint, it is averred that the cause of action of the suit arose on 21.11.1967 and 21.12.1970. Under Articles 58 and 59 of the Schedule to the Limitation Act, 1963 in a suit filed for any declaration is to be filed within three years when the right to sue accrues. Under Article 59 of the Limitation Act, suit filed to cancel or set aside the instrument or decree, the suit has to be filed within three years from the date when the facts entitling the plaintiff to set aside or cancel the instrument or decree became first known to him. Plaintiff-Shami Mohd. has admitted in his evidence that he got knowledge about the execution of the sale deed dated 21.12.1970 on the third day of death of his father - 17.05.1971. The suit must have been filed within three years of the date of knowledge or the date of the sale deed but the suit was filed on 12.07.1978. In the case in hand, suit filed challenging the validity of the mortgage deed dated 21.11.1967 and sale deed dated 21.12.1970 is beyond the period of limitation of three years as prescribed under Articles 58 and 59 of the Schedule to the Limitation Act and barred by limitation.35. There is no justification for the first appellate Court to record findings based on the arguments advanced. Even in the absence of pleadings and evidence, the first appellate Court recorded finding that there was no necessity for Wali Mohd. to execute mortgage deed and within short while thereafter, sale deed as he never performed Haj Pilgrimage and never did any business as written in the documents. Likewise, the first appellate Court recorded its own findings on inadequacy of consideration for the sale deed, even though no such plea was taken by respondent No.1-Shami Mohd.36. The first appellate Court being the final court of fact has jurisdiction to reverse or affirm the findings of the trial court. Considering the nature and scope of the first appellate Court in Vinod Kumar v. Gangadhar (2015) 1 SCC 391 , it was held as under:"15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy (2010) 13 SCC 530 , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words:?3. How the regular first appeal is to be disposed of by the appellate Court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate Court shall state:(a) the points for determination;(b) the decision thereon;(c) the reasons for the decision; and(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.4. The appellate Court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs. (2001) 3 SCC 179 , SCC p. 188, para 15 and Madhukar and Others v. Sangram and Others (2001) 4 SCC 756 SCC p. 758, para 5.)?The Court of first appeal has jurisdiction to reverse or affirm the findings of the trial Court. When the Court of first appeal takes a different view, the judgment of the first appellate Court must show the conscious application of mind and record its findings based on the evidence adduced by the parties and the judgment must record the reasons as to why the first appellate Court differs from the judgment of the Trial Court. In this case, judgment of the lower appellate Court has not answered all the points arising for determination and the evidence adduced thereon. Likewise, the High Court has not recorded any finding either on fact or on law. The High Court proceeded on the footing as if the suit was a simple suit for redemption of mortgage. Without appreciation of evidence adduced by the parties and sale deed dated 21.12.1970, the High Court erred in ordering the redemption of mortgage and delivery of possession. The impugned judgment of the High Court cannot be sustained and is liable to be set aside. ### Response: 1

Jagdish Prasad Vs. State of Uttar Pradesh

various types of offences mentioned in it. Any interpretation which would not carry out the object of the Act would be unnatural. We, therefore, think that the words "second offence" mean any offence under the Act committed by a person after his conviction earlier for any one of the offences punishable under the Act.6. It was said that it would be strange if the Act intended to impose a heavier punishment for a second offence which might be of a trivial nature while the first offence which might have been of a serious nature entailed a lighter punishment. This contention is fallacious. There is no foundation in the Act for distinguishing between trivial and serious offences, for the Act provides the same punishment for each offence under it. If the punishment is the same, it would follow that the statute considered them to be of the same seriousness. The weakness of this argument will further appear if we consider a case where the first offence was of what is called a trival nature and the second, of a serious nature though constituted by different acts. It would be equally strange if the Act in such a case contemplated the same punishment for the subsequent and serious offence as would be the case if the subsequent offence was not a "second offence". This contention lends no support to the interpretation suggested by learned counsel for the appellant.7. Learned counsel then said that the word "offence" has to be understood as defined in S. 2(38) of the General Clauses Act, 1897, and therefore means any act or omission made punishable by any law for the time being in force. If we substitute this definition for the word "offence" in the provision now under consideration, it will mean an act made punishable by the law. That law must be the present Act. This does not assist learned counsels contention at all; it really goes against him.8. The word "offence" no doubt, refers to an offence under the Act. It cannot possibly mean any offence under any other Act. This view has invariably been taken in all the cases which have been cited to us: see City Board, Saharanpur v. Abdul Wahid, AIR 1959 All 695 , and Chuttan v. State, AIR 1960 All 629 . In In re, Authers, (1889) 22 QBD 345 at p. 349, it was said, "where the legislature passes a statute and imposes a penalty of 50 1. for a first offence, it must mean, in the absence of express words to the contrary, that the conviction for the first offence must be under that Act, and the second conviction under the same Act; if it were otherwise, it would be idle to introduce the warning of a lower penalty for the first offence, and to impose a higher penalty for the second." This case, supports our interpretation of the words "second offence" based on the object of the Act.9. Learned counsel for the appellant no doubt agrees that the second offence must refer to an offence under the Act but he says that since it would amount to adding the words "under the Act", it would justify the addition of further words implying that the second offence had to be of the same type as the first. This is a wholly unfounded contention. The offence contemplated in the expression "second offence" has to be under the Act because that arises from the object of the Act and, as we shall later show, from the necessary implication of the structure of the sub-section. There is no such reason to confine the second offence to an offence of the same type.10. We have so far been dealing only with that portion of sub-s. (1) of S. 16 which concerns the penalty for the second offence. Considering the sub-section as a whole we find that it supports the interpretation of the expression "second offence" which has appealed to us. It says that if any person does any of the acts mentioned in Cls. (a) to (g) in it, he shall be punishable for the first offence with a certain penalty, for the second offence with a higher penalty and for the third a still higher penalty. It is clear that the acts or omissions mentioned in the different clauses constitute offences for which the penalties are provided. From this structure of the sub-section the implication necessarily arises that the penalties were imposed for offences under the Act only. Now Cl. (a) deals with a person importing, manufacturing for sale, storing, selling or distributing any article of food in contravention of the provisions of the Act or of any rule made thereunder. This clause contemplates the breaches of various provisions of the Act and the rules, which are numerous. It covers various types of conduct, act or omission, each of which is punishable and each of which is, therefore, an offence. Turning next to the part of the sub-section which prescribes penalties, we find it provides increasing degrees of punishment for the second offence and the third and subsequent offences. It follows that an offence contemplated in this part of the statute-and with it we are now directly concerned-would be constituted by any of the acts which would come within Cl. (a) and likewise within all the other clauses following it.We have pointed out that the acts and omissions contemplated there are of diverse kinds. The words "second offence" must, therefore, mean any act which is an offence under any of the clauses in the sub-section which has been done later in point of time after a conviction for an offence under the Act, no matter whether the acts or omissions constituting the two offences are of the same type or not. The appellant must, therefore, be held to have committed the second offence within the meaning of the sub-section on the present occasion and was liable to have the heavier punishment awarded to him. The sentence awarding such punishment is unexceptionable.

0[ds]Learned counsel for the appellant no doubt agrees that the second offence must refer to an offence under the Act but he says that since it would amount to adding the words "under the Act", it would justify the addition of further words implying that the second offence had to be of the same type as the first. This is a wholly unfounded contention.The offence contemplated in the expression "second offence" has to be under the Act because that arises from the object of the Act and, as we shall later show, from the necessary implication of the structure of theThere is no such reason to confine the second offence to an offence of the same type.10. We have so far been dealing only with that portion of(1) of S. 16 which concerns the penalty for the second offence. Considering theas a whole we find that it supports the interpretation of the expression "second offence" which has appealed to us. It says that if any person does any of the acts mentioned in Cls. (a) to (g) in it, he shall be punishable for the first offence with a certain penalty, for the second offence with a higher penalty and for the third a still higher penalty. It is clear that the acts or omissions mentioned in the different clauses constitute offences for which the penalties are provided. From this structure of thethe implication necessarily arises that the penalties were imposed for offences under the Act only. Now Cl. (a) deals with a person importing, manufacturing for sale, storing, selling or distributing any article of food in contravention of the provisions of the Act or of any rule made thereunder. This clause contemplates the breaches of various provisions of the Act and the rules, which are numerous. It covers various types of conduct, act or omission, each of which is punishable and each of which is, therefore, an offence. Turning next to the part of thewhich prescribes penalties, we find it provides increasing degrees of punishment for the second offence and the third and subsequent offences. It follows that an offence contemplated in this part of thewith it we are now directlybe constituted by any of the acts which would come within Cl. (a) and likewise within all the other clauses following it.We have pointed out that the acts and omissions contemplated there are of diverse kinds. The words "second offence" must, therefore, mean any act which is an offence under any of the clauses in thewhich has been done later in point of time after a conviction for an offence under the Act, no matter whether the acts or omissions constituting the two offences are of the same type or not. The appellant must, therefore, be held to have committed the second offence within the meaning of theon the present occasion and was liable to have the heavier punishment awarded to him. The sentence awarding such punishment is unexceptionable.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: various types of offences mentioned in it. Any interpretation which would not carry out the object of the Act would be unnatural. We, therefore, think that the words "second offence" mean any offence under the Act committed by a person after his conviction earlier for any one of the offences punishable under the Act.6. It was said that it would be strange if the Act intended to impose a heavier punishment for a second offence which might be of a trivial nature while the first offence which might have been of a serious nature entailed a lighter punishment. This contention is fallacious. There is no foundation in the Act for distinguishing between trivial and serious offences, for the Act provides the same punishment for each offence under it. If the punishment is the same, it would follow that the statute considered them to be of the same seriousness. The weakness of this argument will further appear if we consider a case where the first offence was of what is called a trival nature and the second, of a serious nature though constituted by different acts. It would be equally strange if the Act in such a case contemplated the same punishment for the subsequent and serious offence as would be the case if the subsequent offence was not a "second offence". This contention lends no support to the interpretation suggested by learned counsel for the appellant.7. Learned counsel then said that the word "offence" has to be understood as defined in S. 2(38) of the General Clauses Act, 1897, and therefore means any act or omission made punishable by any law for the time being in force. If we substitute this definition for the word "offence" in the provision now under consideration, it will mean an act made punishable by the law. That law must be the present Act. This does not assist learned counsels contention at all; it really goes against him.8. The word "offence" no doubt, refers to an offence under the Act. It cannot possibly mean any offence under any other Act. This view has invariably been taken in all the cases which have been cited to us: see City Board, Saharanpur v. Abdul Wahid, AIR 1959 All 695 , and Chuttan v. State, AIR 1960 All 629 . In In re, Authers, (1889) 22 QBD 345 at p. 349, it was said, "where the legislature passes a statute and imposes a penalty of 50 1. for a first offence, it must mean, in the absence of express words to the contrary, that the conviction for the first offence must be under that Act, and the second conviction under the same Act; if it were otherwise, it would be idle to introduce the warning of a lower penalty for the first offence, and to impose a higher penalty for the second." This case, supports our interpretation of the words "second offence" based on the object of the Act.9. Learned counsel for the appellant no doubt agrees that the second offence must refer to an offence under the Act but he says that since it would amount to adding the words "under the Act", it would justify the addition of further words implying that the second offence had to be of the same type as the first. This is a wholly unfounded contention. The offence contemplated in the expression "second offence" has to be under the Act because that arises from the object of the Act and, as we shall later show, from the necessary implication of the structure of the sub-section. There is no such reason to confine the second offence to an offence of the same type.10. We have so far been dealing only with that portion of sub-s. (1) of S. 16 which concerns the penalty for the second offence. Considering the sub-section as a whole we find that it supports the interpretation of the expression "second offence" which has appealed to us. It says that if any person does any of the acts mentioned in Cls. (a) to (g) in it, he shall be punishable for the first offence with a certain penalty, for the second offence with a higher penalty and for the third a still higher penalty. It is clear that the acts or omissions mentioned in the different clauses constitute offences for which the penalties are provided. From this structure of the sub-section the implication necessarily arises that the penalties were imposed for offences under the Act only. Now Cl. (a) deals with a person importing, manufacturing for sale, storing, selling or distributing any article of food in contravention of the provisions of the Act or of any rule made thereunder. This clause contemplates the breaches of various provisions of the Act and the rules, which are numerous. It covers various types of conduct, act or omission, each of which is punishable and each of which is, therefore, an offence. Turning next to the part of the sub-section which prescribes penalties, we find it provides increasing degrees of punishment for the second offence and the third and subsequent offences. It follows that an offence contemplated in this part of the statute-and with it we are now directly concerned-would be constituted by any of the acts which would come within Cl. (a) and likewise within all the other clauses following it.We have pointed out that the acts and omissions contemplated there are of diverse kinds. The words "second offence" must, therefore, mean any act which is an offence under any of the clauses in the sub-section which has been done later in point of time after a conviction for an offence under the Act, no matter whether the acts or omissions constituting the two offences are of the same type or not. The appellant must, therefore, be held to have committed the second offence within the meaning of the sub-section on the present occasion and was liable to have the heavier punishment awarded to him. The sentence awarding such punishment is unexceptionable. ### Response: 0

Bank of India & Another Vs. K. Mohandas & Others

and not what logically follows from it." 47. In Bhavnagar University vs. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 , this Court held that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. 48. This Court in Bharat Petroleum Corporation Ltd. vs. N.R. Vairamani, (2004) 8 SCC 579 , emphasized that the Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which the reliance is placed. It was further observed that the judgments of courts are not to be construed as statutes and the observations must be read in the context in which they appear to have been stated. The Court went on to say that circumstantial applicability, one additional or different fact may make a word of difference between conclusions in two cases. 49. It is true that the controversy in the case of Bank of Baroda arose out of the same voluntary retirement scheme with which we are concerned in this group of appeals. However, there is vital factual difference in that case and this group of appeals. Pertinently that was a case where the employee had completed only 13 years of service( not even 15 years of service much less 20 years service) although he completed 40 years of age at the time he offered for voluntary retirement. The employees application therein for voluntary retirement was accepted by the Bank of Baroda and he was paid all retiral benefits. However, his request for grant of pension in addition to the other retiral benefits was not acceded to by the bank. It was so because he had not completed even 15 years of service. The employee pursued industrial adjudicatory process for redressal of his grievance in respect of non-grant of pension by the bank. The employees claim was opposed by the Bank of Baroda contending that in terms of Regulations 14, 28 and 29 of the Pension Regulations, 1995, the employee was not entitled to pension. The observations made by this Court in Bank of Baroda which have been quoted above and relied upon by the banks in support of their contention have to be understood in the factual backdrop namely, that the employee had completed only 13 years of service and, was not eligible for the pension under the Pension Regulations,1995 and for the benefit of addition of five years to qualifying service under Regulation 29(5), an employee must have completed 20 years of service. The question therein was not identical in form with the question here to be decided. The following observations in paragraph 11 of the report in Bank of Baroda are significant: "......since both the Tribunal as well as the High Court appear not to have considered or taken note of the fact that the respondent was not eligible for pension as he had not completed 15 years of qualifying service...... ......." 50. The decision of this Court in Bank of Baroda is, thus, clearly distinguishable as the employee therein had not completed qualifying service much less 20 years of service for being eligible to the weightage under Regulation 29(5) and cannot be applied to the present controversy nor does that matter decide the question here to be decided in the present group of matters. 51. On behalf of banks it was submitted that the employees, having taken benefits under the scheme (VRS 2000), are estopped from raising any issue that their entitlement to pension would not be covered by amended Regulation 28. It was suggested that the employees having taken benefit of the scheme cannot insist for pension under Regulation 29(5). O.P. Swarnakar was relied upon in this regard wherein it has been held that an employee, having taken the ex-gratia payment, or any other benefit under the scheme cannot be allowed to resile from the scheme. 52. Insofaras the present group of appeals is concerned, the employees are not seeking to resile from the Scheme. They are actually seeking enforcement of the clause in the Scheme that provides that the optees will be eligible for pension under the Pension Regulations, 1995. According to them, they are entitled to the benefits of Regulation 29(5). In our considered view, plea of estoppel is devoid of any substance; as a matter of fact it does not arise at all in the facts and circumstances of the case.53. We hold, as it must be, that the employees who had completed 20 years of service and were pension optees and offered voluntary retirement under VRS 2000 and whose offers were accepted by the banks are entitled to addition of five years of notional service in calculating the length of service for the purposes of that Scheme as per Regulation 29(5) of the Pension Regulations, 1995. The contrary view expressed by some of the High Courts do not lay down the correct legal position. 54. The only question now remains to be seen is whether the concerned employees are entitled to interest on unpaid pension. 55. Although it has been held by us that the subject employees are entitled to the weightage in terms of Regulation 29(5) of Pension Regulations, 1995, but we are satisfied that any award of interest on unpaid pension would not be in the interest of justice. It is so because different High Courts did not have unanimous judicial opinion on the issue. Punjab and Haryana High Court and the Division Bench of the Kerala High Court upheld the contention of the employees with regard to applicability of Regulation 29(5) to the optees who had completed 20 years of service while the Division Bench of the Calcutta High Court and a single Judge of the Kerala High Court took exactly an opposite view. The stance of the banks, although found not meritorious, cannot be said to be totally frivolous. We, accordingly, hold that the subject employees are not entitled to interest on unpaid pension.

0[ds]49. It is true that the controversy in the case of Bank of Baroda arose out of the same voluntary retirement scheme with which we are concerned in this group of appeals. However, there is vital factual difference in that case and this group of appeals. Pertinently that was a case where the employee had completed only 13 years of service( not even 15 years of service much less 20 years service) although he completed 40 years of age at the time he offered for voluntary retirement. The employees application therein for voluntary retirement was accepted by the Bank of Baroda and he was paid all retiral benefits. However, his request for grant of pension in addition to the other retiral benefits was not acceded to by the bank. It was so because he had not completed even 15 years of service. The employee pursued industrial adjudicatory process for redressal of his grievance in respect ofof pension by the bank. The employees claim was opposed by the Bank of Baroda contending that in terms of Regulations 14, 28 and 29 of the Pension Regulations, 1995, the employee was not entitled to pension. The observations made by this Court in Bank of Baroda which have been quoted above and relied upon by the banks in support of their contention have to be understood in the factual backdrop namely, that the employee had completed only 13 years of service and, was not eligible for the pension under the Pension Regulations,1995 and for the benefit of addition of five years to qualifying service under Regulation 29(5), an employee must have completed 20 years of service.The decision of this Court in Bank of Baroda is, thus, clearly distinguishable as the employee therein had not completed qualifying service much less 20 years of service for being eligible to the weightage under Regulation 29(5) and cannot be applied to the present controversy nor does that matter decide the question here to be decided in the present group of matters.Insofaras the present group of appeals is concerned, the employees are not seeking to resile from the Scheme. They are actually seeking enforcement of the clause in the Scheme that provides that the optees will be eligible for pension under the Pension Regulations, 1995. According to them, they are entitled to the benefits of Regulation 29(5). In our considered view, plea of estoppel is devoid of any substance; as a matter of fact it does not arise at all in the facts and circumstances of the case.53. We hold, as it must be, that the employees who had completed 20 years of service and were pension optees and offered voluntary retirement under VRS 2000 and whose offers were accepted by the banks are entitled to addition of five years of notional service in calculating the length of service for the purposes of that Scheme as per Regulation 29(5) of the Pension Regulations, 1995. The contrary view expressed by some of the High Courts do not lay down the correct legal position.Although it has been held by us that the subject employees are entitled to the weightage in terms of Regulation 29(5) of Pension Regulations, 1995, but we are satisfied that any award of interest on unpaid pension would not be in the interest of justice. It is so because different High Courts did not have unanimous judicial opinion on the issue. Punjab and Haryana High Court and the Division Bench of the Kerala High Court upheld the contention of the employees with regard to applicability of Regulation 29(5) to the optees who had completed 20 years of service while the Division Bench of the Calcutta High Court and a single Judge of the Kerala High Court took exactly an opposite view. The stance of the banks, although found not meritorious, cannot be said to be totally frivolous. We, accordingly, hold that the subject employees are not entitled to interest on unpaid pension.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: and not what logically follows from it." 47. In Bhavnagar University vs. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 , this Court held that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. 48. This Court in Bharat Petroleum Corporation Ltd. vs. N.R. Vairamani, (2004) 8 SCC 579 , emphasized that the Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which the reliance is placed. It was further observed that the judgments of courts are not to be construed as statutes and the observations must be read in the context in which they appear to have been stated. The Court went on to say that circumstantial applicability, one additional or different fact may make a word of difference between conclusions in two cases. 49. It is true that the controversy in the case of Bank of Baroda arose out of the same voluntary retirement scheme with which we are concerned in this group of appeals. However, there is vital factual difference in that case and this group of appeals. Pertinently that was a case where the employee had completed only 13 years of service( not even 15 years of service much less 20 years service) although he completed 40 years of age at the time he offered for voluntary retirement. The employees application therein for voluntary retirement was accepted by the Bank of Baroda and he was paid all retiral benefits. However, his request for grant of pension in addition to the other retiral benefits was not acceded to by the bank. It was so because he had not completed even 15 years of service. The employee pursued industrial adjudicatory process for redressal of his grievance in respect of non-grant of pension by the bank. The employees claim was opposed by the Bank of Baroda contending that in terms of Regulations 14, 28 and 29 of the Pension Regulations, 1995, the employee was not entitled to pension. The observations made by this Court in Bank of Baroda which have been quoted above and relied upon by the banks in support of their contention have to be understood in the factual backdrop namely, that the employee had completed only 13 years of service and, was not eligible for the pension under the Pension Regulations,1995 and for the benefit of addition of five years to qualifying service under Regulation 29(5), an employee must have completed 20 years of service. The question therein was not identical in form with the question here to be decided. The following observations in paragraph 11 of the report in Bank of Baroda are significant: "......since both the Tribunal as well as the High Court appear not to have considered or taken note of the fact that the respondent was not eligible for pension as he had not completed 15 years of qualifying service...... ......." 50. The decision of this Court in Bank of Baroda is, thus, clearly distinguishable as the employee therein had not completed qualifying service much less 20 years of service for being eligible to the weightage under Regulation 29(5) and cannot be applied to the present controversy nor does that matter decide the question here to be decided in the present group of matters. 51. On behalf of banks it was submitted that the employees, having taken benefits under the scheme (VRS 2000), are estopped from raising any issue that their entitlement to pension would not be covered by amended Regulation 28. It was suggested that the employees having taken benefit of the scheme cannot insist for pension under Regulation 29(5). O.P. Swarnakar was relied upon in this regard wherein it has been held that an employee, having taken the ex-gratia payment, or any other benefit under the scheme cannot be allowed to resile from the scheme. 52. Insofaras the present group of appeals is concerned, the employees are not seeking to resile from the Scheme. They are actually seeking enforcement of the clause in the Scheme that provides that the optees will be eligible for pension under the Pension Regulations, 1995. According to them, they are entitled to the benefits of Regulation 29(5). In our considered view, plea of estoppel is devoid of any substance; as a matter of fact it does not arise at all in the facts and circumstances of the case.53. We hold, as it must be, that the employees who had completed 20 years of service and were pension optees and offered voluntary retirement under VRS 2000 and whose offers were accepted by the banks are entitled to addition of five years of notional service in calculating the length of service for the purposes of that Scheme as per Regulation 29(5) of the Pension Regulations, 1995. The contrary view expressed by some of the High Courts do not lay down the correct legal position. 54. The only question now remains to be seen is whether the concerned employees are entitled to interest on unpaid pension. 55. Although it has been held by us that the subject employees are entitled to the weightage in terms of Regulation 29(5) of Pension Regulations, 1995, but we are satisfied that any award of interest on unpaid pension would not be in the interest of justice. It is so because different High Courts did not have unanimous judicial opinion on the issue. Punjab and Haryana High Court and the Division Bench of the Kerala High Court upheld the contention of the employees with regard to applicability of Regulation 29(5) to the optees who had completed 20 years of service while the Division Bench of the Calcutta High Court and a single Judge of the Kerala High Court took exactly an opposite view. The stance of the banks, although found not meritorious, cannot be said to be totally frivolous. We, accordingly, hold that the subject employees are not entitled to interest on unpaid pension. ### Response: 0

Sitaram Jaiswal & Another Vs. Rai Amarnath Agarwala & Others

of the U.P. Urban Area Zamindari Abolition and Land Reforms Act.2. The lease was not confined to agricultural purposes only.3. The Collector had given his sanction for the construction of the building for the State Bank. On the first point the High Court held that the provisions of the aforesaid Land Reforms Act did not affect the suit. The lease was found to have been given for agricultural purposes. The letters on which the defendants relied for the purpose of showing the permission of the Collector could not be construed in such a way as to infer any sanction or permission having been granted by him to construct the building for the purpose of a bank. The building was also not constructed for the purpose for which the plots had been let.4. By an order made on September 25, 1970 we called for a report on the question whether the notification issued by the U.P. Government dated July 25, 1964 applied to the land in dispute. If the notification was applicable then it would have been necessary to determine whether the suit was liable to abate under Section 5(2) of the U.P. Consolidation of Holdings Act 1954 as amended by U.P. Act 21 of 1966. As the parties were in dispute on the question whether the notification applied we called for a finding from the High Court in the matter. This course had to be adopted as a point had been raised about the suit having abated by virtue of the aforesaid notification. The High Court submitted a report dated January 4, 1971 expressing the opinion that the notification in question did not apply to the land in dispute. That conclusion was not challenged before us.5. The only question which survives is whether the permission of the Collector had been obtained in his capacity as Receiver for constructing the building which was subsequently leased out to the State Bank of India by the contesting defendants. Our attention has been invited to a letter dated January 30, 1960 from the District Magistrate, Allahabad to the Agent, State Bank of India. This letter may be reproduce :"With reference to your letter dated 30-1-60, I confirm that in view of the fact that you propose to get a building constructed according to your specification and also to the fact that you have already taken a building of similar specification on Rs. 400 per month in Naini, the rent of Rs. 250 per month and Rs. 350 per month mentioned in your letter under reply, is reasonable. I also confirm that the sites are suitable."Another document on which reliance was placed is the memorandum dated September 11, 1961 issued by Mr. B. K. Chatterjee, Agent, State Bank of India, Allahabad. In this memorandum it was stated that from certain letters it was apparent that the Collector had given his consent to the construction of the bank building on the plots concerned. It was further mentioned that in the course of the interview which he had with the collector on January 30, 1960 the Collector had made the entire position clear and "the question of obtaining the land for agricultural purposes did not at all arise." Another letter was sent by the Agent of the State Bank of India, Allahabad, to the defendants confirming that the proposed site for the branch of the State Bank at Phulpur had been approved by the Collector. Now all these letters do not establish that the Collector had given any permission in his capacity as Receiver of the Phulpur Estate. What appears to have happened is that his approval was sought by the Agent, State Bank for having a building for the branch of that bank in the area in dispute. Neither the Collector nor the Agent of the State bank was examined to show that what was intended was the consent or permission of the Collector as Receiver of the Estate. On this point there is also a finding of fact of the first appellate court that the Collector never gave his consent or permission in his capacity as Receiver. That finding was binding on the High Court and the High Court also did not come to any different conclusion. We do not find any force or substance in the argument addressed to us on this point.6. Mr. A. K. Sen has referred to Section 65 of the Act and has pointed out that the written consent of the land holder is required only if the matter falls within clauses (d) and (e) of Section 3(8) of the Act. It is apparent that the building of a house for a bank could not fall within these clauses. No consent was, therefore, necessary in terms of Section 65. The case, however, as pleaded and sought to be proved on behalf of the defendants in the courts below throughout was based on the assumption that a written consent of the land owner would have been sufficient compliance with the provisions of the Act for non-suiting the plaintiff. We do not consider that Mr. Sen can derive any help from the provisions of Section 65 read with clauses (d) and (e) of Section 3(8). On his own contention even a written consent would have been of no avail to the defendant. Section 172 which relates to ejectment provides, inter alia, that a tenant shall be liable to ejectment on the ground of any act or omission detrimental to the land in that holding, or inconsistent with the purpose for which it was let. In the present case it is obvious and it has been so found by the appellate court and the High Court that the land has been let for an agricultural purpose and the defendants had sought to use it for a totally different purpose, namely, construction of a building to house a bank. Such a purpose was clearly inconsistent with the purpose for which it was let. Under Section 172, therefore, the suit for ejectment was clearly maintainable.

0[ds]What appears to have happened is that his approval was sought by the Agent, State Bank for having a building for the branch of that bank in the area in dispute. Neither the Collector nor the Agent of the State bank was examined to show that what was intended was the consent or permission of the Collector as Receiver of the Estate. On this point there is also a finding of fact of the first appellate court that the Collector never gave his consent or permission in his capacity as Receiver. That finding was binding on the High Court and the High Court also did not come to any different conclusion. We do not find any force or substance in the argument addressed to us on thisdo not consider that Mr. Sen can derive any help from the provisions of Section 65 read with clauses (d) and (e) of Section 3(8). On his own contention even a written consent would have been of no avail to the defendant. Section 172 which relates to ejectment provides, inter alia, that a tenant shall be liable to ejectment on the ground of any act or omission detrimental to the land in that holding, or inconsistent with the purpose for which it was let. In the present case it is obvious and it has been so found by the appellate court and the High Court that the land has been let for an agricultural purpose and the defendants had sought to use it for a totally different purpose, namely, construction of a building to house a bank. Such a purpose was clearly inconsistent with the purpose for which it was let. Under Section 172, therefore, the suit for ejectment was clearly maintainable.

### 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 U.P. Urban Area Zamindari Abolition and Land Reforms Act.2. The lease was not confined to agricultural purposes only.3. The Collector had given his sanction for the construction of the building for the State Bank. On the first point the High Court held that the provisions of the aforesaid Land Reforms Act did not affect the suit. The lease was found to have been given for agricultural purposes. The letters on which the defendants relied for the purpose of showing the permission of the Collector could not be construed in such a way as to infer any sanction or permission having been granted by him to construct the building for the purpose of a bank. The building was also not constructed for the purpose for which the plots had been let.4. By an order made on September 25, 1970 we called for a report on the question whether the notification issued by the U.P. Government dated July 25, 1964 applied to the land in dispute. If the notification was applicable then it would have been necessary to determine whether the suit was liable to abate under Section 5(2) of the U.P. Consolidation of Holdings Act 1954 as amended by U.P. Act 21 of 1966. As the parties were in dispute on the question whether the notification applied we called for a finding from the High Court in the matter. This course had to be adopted as a point had been raised about the suit having abated by virtue of the aforesaid notification. The High Court submitted a report dated January 4, 1971 expressing the opinion that the notification in question did not apply to the land in dispute. That conclusion was not challenged before us.5. The only question which survives is whether the permission of the Collector had been obtained in his capacity as Receiver for constructing the building which was subsequently leased out to the State Bank of India by the contesting defendants. Our attention has been invited to a letter dated January 30, 1960 from the District Magistrate, Allahabad to the Agent, State Bank of India. This letter may be reproduce :"With reference to your letter dated 30-1-60, I confirm that in view of the fact that you propose to get a building constructed according to your specification and also to the fact that you have already taken a building of similar specification on Rs. 400 per month in Naini, the rent of Rs. 250 per month and Rs. 350 per month mentioned in your letter under reply, is reasonable. I also confirm that the sites are suitable."Another document on which reliance was placed is the memorandum dated September 11, 1961 issued by Mr. B. K. Chatterjee, Agent, State Bank of India, Allahabad. In this memorandum it was stated that from certain letters it was apparent that the Collector had given his consent to the construction of the bank building on the plots concerned. It was further mentioned that in the course of the interview which he had with the collector on January 30, 1960 the Collector had made the entire position clear and "the question of obtaining the land for agricultural purposes did not at all arise." Another letter was sent by the Agent of the State Bank of India, Allahabad, to the defendants confirming that the proposed site for the branch of the State Bank at Phulpur had been approved by the Collector. Now all these letters do not establish that the Collector had given any permission in his capacity as Receiver of the Phulpur Estate. What appears to have happened is that his approval was sought by the Agent, State Bank for having a building for the branch of that bank in the area in dispute. Neither the Collector nor the Agent of the State bank was examined to show that what was intended was the consent or permission of the Collector as Receiver of the Estate. On this point there is also a finding of fact of the first appellate court that the Collector never gave his consent or permission in his capacity as Receiver. That finding was binding on the High Court and the High Court also did not come to any different conclusion. We do not find any force or substance in the argument addressed to us on this point.6. Mr. A. K. Sen has referred to Section 65 of the Act and has pointed out that the written consent of the land holder is required only if the matter falls within clauses (d) and (e) of Section 3(8) of the Act. It is apparent that the building of a house for a bank could not fall within these clauses. No consent was, therefore, necessary in terms of Section 65. The case, however, as pleaded and sought to be proved on behalf of the defendants in the courts below throughout was based on the assumption that a written consent of the land owner would have been sufficient compliance with the provisions of the Act for non-suiting the plaintiff. We do not consider that Mr. Sen can derive any help from the provisions of Section 65 read with clauses (d) and (e) of Section 3(8). On his own contention even a written consent would have been of no avail to the defendant. Section 172 which relates to ejectment provides, inter alia, that a tenant shall be liable to ejectment on the ground of any act or omission detrimental to the land in that holding, or inconsistent with the purpose for which it was let. In the present case it is obvious and it has been so found by the appellate court and the High Court that the land has been let for an agricultural purpose and the defendants had sought to use it for a totally different purpose, namely, construction of a building to house a bank. Such a purpose was clearly inconsistent with the purpose for which it was let. Under Section 172, therefore, the suit for ejectment was clearly maintainable. ### Response: 0

Employers In Relation To Digwadih Colliery Vs. Their Workmen

in these circumstances, be illegal. But the Employers pointed out that S. 25F required two conditions: (a) continuous service, and (b) service for not less than one year, and contended that these conditions were not fulfilled as the service was not continuous but broken. They relied on the definition of "continuous service" in S. 2 (eee) which was introduced by the same amending Act:"2(eee) continuous service means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorized leave or an accident or a strike which is not illegal, or a look-out or a cessation of work which is not due to any fault on the part of the workman". The workmen, on the other hand, relied upon the provisions of S. 25B which reads:"25B. Definition of one year of continuous service. For the purpose of Ss. 25C and 25F, a workman who during a period of 12 calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry. Explanation - In computing the number of days on which a workman has actually worked in any industry, the days on which - (a) he has been laid off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment, the largest number of days during which he has been so laid off being taken into account for the purposes of this clause. (b) he has been on leave with full wages, earned in the previous year; and (c) in the case of a female, she has been on maternity leave, so however, that the total period of such maternity leave shall not exceed twelve weeks. shall be included:" 5. The definitions in S. 2 of the Act do not apply if there is anything repugnant in the subject or context and the question is whether the definition of "continuous service" can at all apply in considering S. 25F when what is meant by the expression "one year of continuous service" in S. 25F is, by S. 25B, specially stated. If S. 25B had not been enacted the contention of the Employers would have been unanswerable for the words of S. 25F would then have plainly meant that the service should be for a period of 12 months without interruptions other than those stated in S. 2 (eee) itself. But S. 25B says that for the purpose of S. 25F a workman who, in a period of twelve calendar months has actually worked for not less than 240 days shall be deemed to have completed one year of continuous service. Service for 240 days in a period of twelve calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. Therefore, though S. 25F speaks of continuous service for not less than one year under the employer, both conditions are fulfilled if the workman has actually worked for 240 days during a period of twelve calendar months. It is not necessary to read the definition of continuous service into S. 25B because the fiction converts service of 240 days in a period of twelve calendar months into continuous service for one complete year. 6. Mr. B. Sen drew our attention to the Industrial Disputes (Amendment) Act, 1964 which was passed last December. By S. 2 (iii) of the amending Act of 1964, cl. (eee) of the second section of the principal Act was omitted and by S. 13, for S. 25B in the principal Act the following was substituted:"25B. For the purposes of this Chapter,- (1) a workman shall be said to be in continuous service for a period if he is, for that period, i uninterrupted service, including service which may be interrupted on account of sickness or authorised leave on an accident or a strike which is not legal, or a lock out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year * * * *, he shall be deemed to be in continuous service under an employer- (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other cases; * * * * * * * *" The Explanation to S. 25B is the same, mutatis mutandis as before. Mr. Sen contended that the change in the law brought out his contention. We do not agree. The amended S. 25B only consolidates the previous Ss. 25B and 2 (eee) in one place, adding some other matters which are not relevant to the present purpose, but the purport of the new provisions is not different. In fact the amendment of S. 25F of the principal Act by substituting in cl. (b) the words "for every completed year of continuous service" for the words "for every completed year of service" now removes a discordance between the unamended S. 25B and the unamended cl. (b) of S. 25F. Neither before these several changes nor after these is uninterrupted service necessary if the total service is 240 days in a period of twelve calendar months. The only change in the new Act is that this service must be during a period of twelve calendar months preceding the date with reference to which calculation is to be made. The last amendment now removes a vagueness which existed in the unamended S.25B.

1[ds]6. Mr. B. Sen drew our attention to the Industrial Disputes (Amendment) Act, 1964 which was passed last December. By S. 2 (iii) of the amending Act of 1964, cl. (eee) of the second section of the principal Act was omitted and by S. 13, for S. 25B in the principal Act the following was substituted:"25B. For the purposes of this Chapter,(1) a workman shall be said to be in continuous service for a period if he is, for that period, i uninterrupted service, including service which may be interrupted on account of sickness or authorised leave on an accident or a strike which is not legal, or a lock out or a cessation of work which is not due to any fault on the part of the workman;(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year * * * *, he shall be deemed to be in continuous service under an employer(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and(ii) two hundred and forty days, in any other cases;* * * *The Explanation to S. 25B is the same, mutatis mutandis as before. Mr. Sen contended that the change in the law brought out his contention. We do not agree. The amended S. 25B only consolidates the previous Ss. 25B and 2 (eee) in one place, adding some other matters which are not relevant to the present purpose, but the purport of the new provisions is not different. In fact the amendment of S. 25F of the principal Act by substituting in cl. (b) the words "for every completed year of continuous service" for the words "for every completed year of service" now removes a discordance between the unamended S. 25B and the unamended cl. (b) of S. 25F. Neither before these several changes nor after these is uninterrupted service necessary if the total service is 240 days in a period of twelve calendar months. The only change in the new Act is that this service must be during a period of twelve calendar months preceding the date with reference to which calculation is to be made. The last amendment now removes a vagueness which existed in the unamended S.25B.

### 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 these circumstances, be illegal. But the Employers pointed out that S. 25F required two conditions: (a) continuous service, and (b) service for not less than one year, and contended that these conditions were not fulfilled as the service was not continuous but broken. They relied on the definition of "continuous service" in S. 2 (eee) which was introduced by the same amending Act:"2(eee) continuous service means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorized leave or an accident or a strike which is not illegal, or a look-out or a cessation of work which is not due to any fault on the part of the workman". The workmen, on the other hand, relied upon the provisions of S. 25B which reads:"25B. Definition of one year of continuous service. For the purpose of Ss. 25C and 25F, a workman who during a period of 12 calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry. Explanation - In computing the number of days on which a workman has actually worked in any industry, the days on which - (a) he has been laid off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment, the largest number of days during which he has been so laid off being taken into account for the purposes of this clause. (b) he has been on leave with full wages, earned in the previous year; and (c) in the case of a female, she has been on maternity leave, so however, that the total period of such maternity leave shall not exceed twelve weeks. shall be included:" 5. The definitions in S. 2 of the Act do not apply if there is anything repugnant in the subject or context and the question is whether the definition of "continuous service" can at all apply in considering S. 25F when what is meant by the expression "one year of continuous service" in S. 25F is, by S. 25B, specially stated. If S. 25B had not been enacted the contention of the Employers would have been unanswerable for the words of S. 25F would then have plainly meant that the service should be for a period of 12 months without interruptions other than those stated in S. 2 (eee) itself. But S. 25B says that for the purpose of S. 25F a workman who, in a period of twelve calendar months has actually worked for not less than 240 days shall be deemed to have completed one year of continuous service. Service for 240 days in a period of twelve calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. Therefore, though S. 25F speaks of continuous service for not less than one year under the employer, both conditions are fulfilled if the workman has actually worked for 240 days during a period of twelve calendar months. It is not necessary to read the definition of continuous service into S. 25B because the fiction converts service of 240 days in a period of twelve calendar months into continuous service for one complete year. 6. Mr. B. Sen drew our attention to the Industrial Disputes (Amendment) Act, 1964 which was passed last December. By S. 2 (iii) of the amending Act of 1964, cl. (eee) of the second section of the principal Act was omitted and by S. 13, for S. 25B in the principal Act the following was substituted:"25B. For the purposes of this Chapter,- (1) a workman shall be said to be in continuous service for a period if he is, for that period, i uninterrupted service, including service which may be interrupted on account of sickness or authorised leave on an accident or a strike which is not legal, or a lock out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year * * * *, he shall be deemed to be in continuous service under an employer- (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other cases; * * * * * * * *" The Explanation to S. 25B is the same, mutatis mutandis as before. Mr. Sen contended that the change in the law brought out his contention. We do not agree. The amended S. 25B only consolidates the previous Ss. 25B and 2 (eee) in one place, adding some other matters which are not relevant to the present purpose, but the purport of the new provisions is not different. In fact the amendment of S. 25F of the principal Act by substituting in cl. (b) the words "for every completed year of continuous service" for the words "for every completed year of service" now removes a discordance between the unamended S. 25B and the unamended cl. (b) of S. 25F. Neither before these several changes nor after these is uninterrupted service necessary if the total service is 240 days in a period of twelve calendar months. The only change in the new Act is that this service must be during a period of twelve calendar months preceding the date with reference to which calculation is to be made. The last amendment now removes a vagueness which existed in the unamended S.25B. ### Response: 1

Jai Kaur & Others Vs. Sher Singh & Others

been established to be baseless, these decisions are valueless, to show that the custom as alleged by the plaintiff-respondents did exist as regards non-ancestral property. Further, the oral evidence produced in the present case is wholly insufficient to prove such a custom. 16. It must therefore be held that the customary law among the Grewal Jats of Ludhiana district as regards succession to non-ancestral property is the same as recorded generally for the Punjab in Paragraph 23 of the Rattigans Digest - i.e., the daughter is preferred to collaterals, and consequently, the second and the third appellants were the next reversioners to that portion of Devi Singhs property which has been found to be non-ancestral. 17. This brings us to the question whether the gift of this portion, by the first appellant to these reversioners, gives them a good title, beyond the widows life time.We have to remember in this connection that as regards the ancestral property, these daughters were not the reversioners, and the further fact that out of the ancestral property, the house was not included in the deed of gift. The position therefore is that out of the property in which the first appellant held a widows estate, she gave by the deed of gift a portion to the reversioners as regards that portion, a portion to persons who were strangers to the reversion as regards that portion and a portion was retained by her. The doctrine of Hindu law according to which, a limited owner can accelerate the reversion, by surrendering her interest, to the next reversioner, is based on a theory of self-effacement of the limited owner. That is why it has been laid down that in order that a surrender by a limited owner to a reversioner may be effective, the surrender must be of the entire interest of the limited owner in the entire property. The exception made in favour of the retention of a small portion of the property for her maintenance, does not affect the strictness of the requirement that but for this exception, a surrender to be effective, must be of the entire interest in the entire property (Vide: Rangaswami v. Nachiappa, 46 Ind App 72: (AIR 1918 PC 196) and Phool Kaur v. Pem Kaur, 1952 SCR 793 : (AIR 1952 SC 207 ). 18. In so far as there is a gift to a stranger, there is no effacement of the limited owner nor is there any effacement in respect of the property which is retained. We find it impossible to say therefore that there is such effacement of the limited owner in this case, as would accelerate the daughters rights by converting the future contingent right into a present vested right. 19. On behalf of the appellants it is argued that there is certainly a total effacement in respect of the non-ancestral property, so that the right of the next reversioners - the daughters - in that property has been accelerated. We do not think we shall be justified in recognising this novel doctrine of the possibility of effacement of the limited owner vis-a-vis the next reversioner of the non-ancestral property when there is no effacement vis-a-vis the reversioner of the ancestral property, and vice-aviersa. Effacement cannot be broken up into two or more parts in this manner; and however much the limited owner may wish to efface herself only vis-_is those next reversioners whom she wants to benefit, law does not recognise such "partial effacement". 20.The Hindu Law doctrine of surrender does not therefore make the gift of the non-ancestral property to the daughters valid beyond the widows life time. 21. It is not suggested that there is any customary law by which such surrender can be made. 22. Though therefore we have found disagreeing with the learned judges of the High Court that under the customary law governing the Grewal got of Jats to which the parties belong, the daughters - the second and the third appellants - are preferential heirs to the non-ancestral portion of the suit land, we hold that their conclusion that this deed of gift in favour of the daughter is not valid even as regards the non-ancestral property, beyond the donors life time is correct and must be maintained. 23. As a last attempt Mr. Gopal Singh, counsel for the appellants, wanted us to hold that under S. 14 of the Hindu Succession Act, which became law, in 1956 either the mother or the daughters have become full owners of this property, and so the plaintiffs suit should be dismissed. As the Hindu Succession Act was not on the Statute-book, when the written statement was filed or at any time before the suit was disposed of in the courts below, the defence under S. 14 of the Act could not be thought of and was not raised. The necessary consequence is that evidence was not adduced, with the facts material for the application of S. 14 in view, by either party. Mr. Agarwala, has on behalf of the plaintiffs-respondents contended that as the record stands the mother had ceased to be in possession and could not get the benefit of S. 14 of the Hindu Succession Act, and that the daughters in possession would not become full owners under S. 14. We do not think it would be proper to consider these questions in the present suit in this happhazard of possession, the appellants themselves do not wish to say whether the mother was in possession actually or constructively, whether the daughters possession was merely permissive, or whether the daughters were in independent possession, on their own behalf. These and other questions of fact, and the questions of law that have to be considered in dealing a claim by the first appellant or the other two appellants under S. 14 of the Hindu Succession Act, should properly be considered in any suit that they may bring in future, if so advised. We express no opinion of any of these questions.

0[ds]8. In the present appeal the oral testimony given on behalf of either party is practically valueless to show any instance in favour of the custom pleaded by them. If therefore the riwaj-i-am does show as urged by the plaintiffs a custom of daughters being excluded by collaterals in respect of non-ancestral property, it is clear that Riwaj-i-am would prevail. The real controversy in this litigation is however on the question whether the entries in the riwaj-i-am on which the plaintiffs rely refer at all to non-ancestral property or not11. In our opinion, the view taken by the Full Bench in AIR 1944 Lah 21 (supra) is consonant with reason and consistent with probability. The fact that the great majority of judges, who brought to bear on the question, an intimate knowledge of the ways and habits in the Punjab peasantry thought that when tribesmen were asked about succession to property, they would ordinarily think the they were being asked about succession to ancestral property, is entitled to great weight. It cannot, we think, be seriously disputed that at least in the early years when the riwaj-i-am was in course of preparation, most of the property in the countryside was ancestral property, and "self-acquisitions" were few and far between. This fact, it is reasonable to think, had the consequence of concentrating the attention of the tribesmen on the importance of having the tribal custom correctly recorded by the Settlement Officers and their agents, as regards succession to ancestral property, and of attracting little attention, if any, to matters regarding non-ancestral property. Unless the questions put to these simple folk, were so framed as to draw pointed attention to the fact that the enquiries were in respect of non-ancestral property also, they could not reasonable by expected to understand from the mere fact of user of general words in the questions that these referred to both ancestral and non-ancestral property. As Din Mohammad J., said in his judgment in the Full Bench, even the fact that on some occasions, the questioner had drawn some distinction between ancestral and non-ancestral property, could not have put them - (i.e., the persons questioned) - on their guard in every case, considering their lack of intelligence in general. Their minds being obsessed with the idea that such enquiries would only refer to ancestral property, they would direct their answers to matters in respect of ancestral property only, and in using forceful terms like "in no case" and "under no circumstances", these persons were really saying that "in no case" would ancestral property devolve in a particular way and have a particular incidence; and under no "circumstances" would ancestral property devolve in a particular way, and have a particular incidence12. These considerations, we think, outweigh the statement made by Mr. Gordon Walker that no distinction between self-acquired and inherited property in land appeared to be recognised, and the rules of succession, restriction on alienation, etc., applied to both alike13. We think therefore that the view taken by the Full Bench, and the many previous cases mentioned in the judgment of the Full Bench, that questions and answers in the riwaj-i-am refer ordinarily to ancestral property, unless there is clear indication to the contrary, is correct. Question No. 43 in the Ludhiana district, appears to be the same for all the tribes.There is not the slightest indication there that the questioner wanted information about non-ancestral property also. The answer given by the Grewal Jats to this question also gives no reason to think that the persons questioned were thinking in giving the answers of both ancestral and non-ancestral property14. We have therefore come to the conclusion that the entries in the riwaj-i-am on which the plaintiffs-respondents rely do not refer at all to non-ancestral property, and are, therefore, not even relevant evidence to establish the existence of a custom among Grewal Jats of Ludhiana district, entitling collaterals to succession to non-ancestral property, in preference to daughters18. In so far as there is a gift to a stranger, there is no effacement of the limited owner nor is there any effacement in respect of the property which is retained. We find it impossible to say therefore that there is such effacement of the limited owner in this case, as would accelerate the daughters rights by converting the future contingent right into a present vested right19. On behalf of the appellants it is argued that there is certainly a total effacement in respect of the non-ancestral property, so that the right of the next reversioners - the daughters - in that property has been accelerated. We do not think we shall be justified in recognising this novel doctrine of the possibility of effacement of the limited owner vis-a-vis the next reversioner of the non-ancestral property when there is no effacement vis-a-vis the reversioner of the ancestral property, and vice-aviersa. Effacement cannot be broken up into two or more parts in this manner; and however much the limited owner may wish to efface herself only vis-_is those next reversioners whom she wants to benefit, law does not recognise such "partial effacement"22. Though therefore we have found disagreeing with the learned judges of the High Court that under the customary law governing the Grewal got of Jats to which the parties belong, the daughters - the second and the third appellants - are preferential heirs to the non-ancestral portion of the suit land, we hold that their conclusion that this deed of gift in favour of the daughter is not valid even as regards the non-ancestral property, beyond the donors life time is correct and must be maintained23. As a last attempt Mr. Gopal Singh, counsel for the appellants, wanted us to hold that under S. 14 of the Hindu Succession Act, which became law, in 1956 either the mother or the daughters have become full owners of this property, and so the plaintiffs suit should be dismissed. As the Hindu Succession Act was not on the Statute-book, when the written statement was filed or at any time before the suit was disposed of in the courts below, the defence under S. 14 of the Act could not be thought of and was not raised. The necessary consequence is that evidence was not adduced, with the facts material for the application of S. 14 in view, by either party. Mr. Agarwala, has on behalf of the plaintiffs-respondents contended that as the record stands the mother had ceased to be in possession and could not get the benefit of S. 14 of the Hindu Succession Act, and that the daughters in possession would not become full owners under S. 14. We do not think it would be proper to consider these questions in the present suit in this happhazard of possession, the appellants themselves do not wish to say whether the mother was in possession actually or constructively, whether the daughters possession was merely permissive, or whether the daughters were in independent possession, on their own behalf. These and other questions of fact, and the questions of law that have to be considered in dealing a claim by the first appellant or the other two appellants under S. 14 of the Hindu Succession Act, should properly be considered in any suit that they may bring in future, if so advised. We express no opinion of any of these questions.

### 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: been established to be baseless, these decisions are valueless, to show that the custom as alleged by the plaintiff-respondents did exist as regards non-ancestral property. Further, the oral evidence produced in the present case is wholly insufficient to prove such a custom. 16. It must therefore be held that the customary law among the Grewal Jats of Ludhiana district as regards succession to non-ancestral property is the same as recorded generally for the Punjab in Paragraph 23 of the Rattigans Digest - i.e., the daughter is preferred to collaterals, and consequently, the second and the third appellants were the next reversioners to that portion of Devi Singhs property which has been found to be non-ancestral. 17. This brings us to the question whether the gift of this portion, by the first appellant to these reversioners, gives them a good title, beyond the widows life time.We have to remember in this connection that as regards the ancestral property, these daughters were not the reversioners, and the further fact that out of the ancestral property, the house was not included in the deed of gift. The position therefore is that out of the property in which the first appellant held a widows estate, she gave by the deed of gift a portion to the reversioners as regards that portion, a portion to persons who were strangers to the reversion as regards that portion and a portion was retained by her. The doctrine of Hindu law according to which, a limited owner can accelerate the reversion, by surrendering her interest, to the next reversioner, is based on a theory of self-effacement of the limited owner. That is why it has been laid down that in order that a surrender by a limited owner to a reversioner may be effective, the surrender must be of the entire interest of the limited owner in the entire property. The exception made in favour of the retention of a small portion of the property for her maintenance, does not affect the strictness of the requirement that but for this exception, a surrender to be effective, must be of the entire interest in the entire property (Vide: Rangaswami v. Nachiappa, 46 Ind App 72: (AIR 1918 PC 196) and Phool Kaur v. Pem Kaur, 1952 SCR 793 : (AIR 1952 SC 207 ). 18. In so far as there is a gift to a stranger, there is no effacement of the limited owner nor is there any effacement in respect of the property which is retained. We find it impossible to say therefore that there is such effacement of the limited owner in this case, as would accelerate the daughters rights by converting the future contingent right into a present vested right. 19. On behalf of the appellants it is argued that there is certainly a total effacement in respect of the non-ancestral property, so that the right of the next reversioners - the daughters - in that property has been accelerated. We do not think we shall be justified in recognising this novel doctrine of the possibility of effacement of the limited owner vis-a-vis the next reversioner of the non-ancestral property when there is no effacement vis-a-vis the reversioner of the ancestral property, and vice-aviersa. Effacement cannot be broken up into two or more parts in this manner; and however much the limited owner may wish to efface herself only vis-_is those next reversioners whom she wants to benefit, law does not recognise such "partial effacement". 20.The Hindu Law doctrine of surrender does not therefore make the gift of the non-ancestral property to the daughters valid beyond the widows life time. 21. It is not suggested that there is any customary law by which such surrender can be made. 22. Though therefore we have found disagreeing with the learned judges of the High Court that under the customary law governing the Grewal got of Jats to which the parties belong, the daughters - the second and the third appellants - are preferential heirs to the non-ancestral portion of the suit land, we hold that their conclusion that this deed of gift in favour of the daughter is not valid even as regards the non-ancestral property, beyond the donors life time is correct and must be maintained. 23. As a last attempt Mr. Gopal Singh, counsel for the appellants, wanted us to hold that under S. 14 of the Hindu Succession Act, which became law, in 1956 either the mother or the daughters have become full owners of this property, and so the plaintiffs suit should be dismissed. As the Hindu Succession Act was not on the Statute-book, when the written statement was filed or at any time before the suit was disposed of in the courts below, the defence under S. 14 of the Act could not be thought of and was not raised. The necessary consequence is that evidence was not adduced, with the facts material for the application of S. 14 in view, by either party. Mr. Agarwala, has on behalf of the plaintiffs-respondents contended that as the record stands the mother had ceased to be in possession and could not get the benefit of S. 14 of the Hindu Succession Act, and that the daughters in possession would not become full owners under S. 14. We do not think it would be proper to consider these questions in the present suit in this happhazard of possession, the appellants themselves do not wish to say whether the mother was in possession actually or constructively, whether the daughters possession was merely permissive, or whether the daughters were in independent possession, on their own behalf. These and other questions of fact, and the questions of law that have to be considered in dealing a claim by the first appellant or the other two appellants under S. 14 of the Hindu Succession Act, should properly be considered in any suit that they may bring in future, if so advised. We express no opinion of any of these questions. ### Response: 0

THE STATE OF MAHARASHTRA & ORS Vs. PAN INDIA PARYATAN LIMITED & ANR

payable. The controversy revolves around the levy of entertainment duty for the fourth and fifth year and subsequently from the sixth year onwards. Sub-clause (ii) of Section 3(5)(a) contemplates that duty @50% under clause (b) of sub-section (1) or, as the case may be, sub-section (2) of Section 3 would be payable. In respect of the first part of sub-clause (ii) of Section 3(5)(a) of the Act, there can possibly be no dispute as the entertainment duty is 50% of 15% leviable under Section 3(1)(b) of the Act. 13. It is sub-section 3(2) of the Act which is required to be interpreted. The said provision is in respect of charging of duty at 50% of the duty fixed in Section 3(1)(b) of the Act to the specific category of visitors to the amusement parks such as payment in:- a) lump sum as a subscription or contribution to any society or b) for a season ticket or c) for the right of admission to a series of entertainments or d) any entertainment during a certain period of time 14. We find that the writ petitioners do not fall in any of the four categories as mentioned above. Category (a) is subscription or contribution in lump sum to any society. The expression Society is not defined in the Act. Therefore, Society would mean a Society registered under the Societies Registration Act, 1860 or other similar statutes. The writ petitioners would not fall in such category as the payment is not to any society. It is not the case of writ petitioners that they have issued a seasons ticket to the visitors. A Season ticket would mean a regular visitor visiting the amusement park regularly at a specific time. 15. Category (d), that entry would be on charging 50% of the duty fixed for any entertainment during a certain period of time, depends upon the decision of the State Government and/or Municipal Corporation to grant that relaxation to enable the writ petitioners or such other amusement park owners to charge duty at a lesser rate. 16. The prime argument turns around in respect of category (c) as delineated above i.e. for admission to a series of entertainment. The argument of the learned counsel for the writ petitioners is that when a ticket is issued by them, it is a ticket for admission to series of entertainment. We do not find any merit in the said argument. The amusement park is defined under Section 2(a-1) of the Act to mean a place wherein various types of amusements including games or rides or both are provided fairly, on a permanent basis, on payment for admission. The payment for admission is defined under Section 2(b) of the Act as the payment made by a person having admitted to one part of a place of entertainment and subsequently admitted to another part. Section 2(d) of the Act deals with admission to an entertainment which includes admission to any place in which the entertainment is held. 17. The argument that when a lumpsum amount is paid as a right of admission for all rides and games, then it becomes admission to series of entertainment, is not tenable. The writ petitioners issue one ticket including one or more rides or games situated in one compound. It is not the case of the writ petitioners that for every ride or game, it is charging separately. The admission to entertainment in terms of Section 2(d) of the Act includes all rides and games which are provided by the service provider. The series of entertainment as contemplated by Section 3(2) of the Act does not mean that on a single day ticket for one entry, it can be treated to be a series of entertainments. The series of entertainments can be where the facility for a game or ride is provided on multiple days and a combined ticket is issued for events for each day. It will only then be said to be series of entertainment. 18. Once an admission ticket is granted, it is not in terms of Section 3(2) of the Act but only in terms of Section 3(1)(b) of the Act. Section 3(2) of the Act has no applicability for a visitor to an amusement park who does not fall in any of the four categories mentioned in Section 3(2) of the Act. Since, the activities undertaken by the writ petitioners are not failing part of Section 3(2) of the Act, therefore, they are not entitled to rebate of 50% provided to specified category of persons in Section 3(2) of the Act. 19. Section 3(5)(a) of the Act has an overriding effect over Section 3(1) (b) and Section 3(2) of the Act. In respect of the first three years from the date of commencement of the amusement park, there is no issue as no entertainment duty is payable. But, in respect of the subsequent two years, the rate of duty leviable is under clause (b) of sub-section (1) or, as the case may be, under sub-section (2) of Section 3. Section 3(1)(b) of the Act is applicable to all amusement parks whereas Section 3(2) of the Act has a limited applicability only in respect of the specified categories therein. All amusement parks for all entertainment are not entitled to concessional duty in terms of Section 3(2) of the Act. Therefore, the writ petitioners cannot claim benefit under Section 3(2) of the Act. The argument is preposterous as the writ petitioners are firstly claiming the benefit under Section 3(2) of the Act and then under Section 3(5)(a) of the Act. The amusement parks would be entitled to only one benefit either under Section 3(2) or under Section 3(5)(a) of the Act. Since Section 3(2) is not applicable to all amusement parks for all other activities, therefore, the entertainment duty in terms of Section 3(5)(a) of the Act alone would be leviable. The duty under Section 3(2) of the Act would be leviable only in respect of specified categories mentioned therein.

1[ds]12. We do not find any merit in the argument raised by learned counsel for the writ petitioners. In respect of first three years falling in Section 3(5)(a) of the Act, there is no dispute, as no duty is payable. The controversy revolves around the levy of entertainment duty for the fourth and fifth year and subsequently from the sixth year onwards. Sub-clause (ii) of Section 3(5)(a) contemplates that duty @50% under clause (b) of sub-section (1) or, as the case may be, sub-section (2) of Section 3 would be payable. In respect of the first part of sub-clause (ii) of Section 3(5)(a) of the Act, there can possibly be no dispute as the entertainment duty is 50% of 15% leviable under Section 3(1)(b) of the Act14. We find that the writ petitioners do not fall in any of the four categories as mentioned above. Category (a) is subscription or contribution in lump sum to any society. The expression Society is not defined in the Act. Therefore, Society would mean a Society registered under the Societies Registration Act, 1860 or other similar statutes. The writ petitioners would not fall in such category as the payment is not to any society. It is not the case of writ petitioners that they have issued a seasons ticket to the visitors. A Season ticket would mean a regular visitor visiting the amusement park regularly at a specific time15. Category (d), that entry would be on charging 50% of the duty fixed for any entertainment during a certain period of time, depends upon the decision of the State Government and/or Municipal Corporation to grant that relaxation to enable the writ petitioners or such other amusement park owners to charge duty at a lesser rateWe do not find any merit in the said argument. The amusement park is defined under Section 2(a-1) of the Act to mean a place wherein various types of amusements including games or rides or both are provided fairly, on a permanent basis, on payment for admission. The payment for admission is defined under Section 2(b) of the Act as the payment made by a person having admitted to one part of a place of entertainment and subsequently admitted to another part. Section 2(d) of the Act deals with admission to an entertainment which includes admission to any place in which the entertainment is held17. The argument that when a lumpsum amount is paid as a right of admission for all rides and games, then it becomes admission to series of entertainment, is not tenable. The writ petitioners issue one ticket including one or more rides or games situated in one compound. It is not the case of the writ petitioners that for every ride or game, it is charging separately. The admission to entertainment in terms of Section 2(d) of the Act includes all rides and games which are provided by the service provider. The series of entertainment as contemplated by Section 3(2) of the Act does not mean that on a single day ticket for one entry, it can be treated to be a series of entertainments. The series of entertainments can be where the facility for a game or ride is provided on multiple days and a combined ticket is issued for events for each day. It will only then be said to be series of entertainment18. Once an admission ticket is granted, it is not in terms of Section 3(2) of the Act but only in terms of Section 3(1)(b) of the Act. Section 3(2) of the Act has no applicability for a visitor to an amusement park who does not fall in any of the four categories mentioned in Section 3(2) of the Act. Since, the activities undertaken by the writ petitioners are not failing part of Section 3(2) of the Act, therefore, they are not entitled to rebate of 50% provided to specified category of persons in Section 3(2) of the Act19. Section 3(5)(a) of the Act has an overriding effect over Section 3(1) (b) and Section 3(2) of the Act. In respect of the first three years from the date of commencement of the amusement park, there is no issue as no entertainment duty is payable. But, in respect of the subsequent two years, the rate of duty leviable is under clause (b) of sub-section (1) or, as the case may be, under sub-section (2) of Section 3. Section 3(1)(b) of the Act is applicable to all amusement parks whereas Section 3(2) of the Act has a limited applicability only in respect of the specified categories therein. All amusement parks for all entertainment are not entitled to concessional duty in terms of Section 3(2) of the Act. Therefore, the writ petitioners cannot claim benefit under Section 3(2) of the Act. The argument is preposterous as the writ petitioners are firstly claiming the benefit under Section 3(2) of the Act and then under Section 3(5)(a) of the Act. The amusement parks would be entitled to only one benefit either under Section 3(2) or under Section 3(5)(a) of the Act. Since Section 3(2) is not applicable to all amusement parks for all other activities, therefore, the entertainment duty in terms of Section 3(5)(a) of the Act alone would be leviable. The duty under Section 3(2) of the Act would be leviable only in respect of specified categories mentioned therein.

### 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: payable. The controversy revolves around the levy of entertainment duty for the fourth and fifth year and subsequently from the sixth year onwards. Sub-clause (ii) of Section 3(5)(a) contemplates that duty @50% under clause (b) of sub-section (1) or, as the case may be, sub-section (2) of Section 3 would be payable. In respect of the first part of sub-clause (ii) of Section 3(5)(a) of the Act, there can possibly be no dispute as the entertainment duty is 50% of 15% leviable under Section 3(1)(b) of the Act. 13. It is sub-section 3(2) of the Act which is required to be interpreted. The said provision is in respect of charging of duty at 50% of the duty fixed in Section 3(1)(b) of the Act to the specific category of visitors to the amusement parks such as payment in:- a) lump sum as a subscription or contribution to any society or b) for a season ticket or c) for the right of admission to a series of entertainments or d) any entertainment during a certain period of time 14. We find that the writ petitioners do not fall in any of the four categories as mentioned above. Category (a) is subscription or contribution in lump sum to any society. The expression Society is not defined in the Act. Therefore, Society would mean a Society registered under the Societies Registration Act, 1860 or other similar statutes. The writ petitioners would not fall in such category as the payment is not to any society. It is not the case of writ petitioners that they have issued a seasons ticket to the visitors. A Season ticket would mean a regular visitor visiting the amusement park regularly at a specific time. 15. Category (d), that entry would be on charging 50% of the duty fixed for any entertainment during a certain period of time, depends upon the decision of the State Government and/or Municipal Corporation to grant that relaxation to enable the writ petitioners or such other amusement park owners to charge duty at a lesser rate. 16. The prime argument turns around in respect of category (c) as delineated above i.e. for admission to a series of entertainment. The argument of the learned counsel for the writ petitioners is that when a ticket is issued by them, it is a ticket for admission to series of entertainment. We do not find any merit in the said argument. The amusement park is defined under Section 2(a-1) of the Act to mean a place wherein various types of amusements including games or rides or both are provided fairly, on a permanent basis, on payment for admission. The payment for admission is defined under Section 2(b) of the Act as the payment made by a person having admitted to one part of a place of entertainment and subsequently admitted to another part. Section 2(d) of the Act deals with admission to an entertainment which includes admission to any place in which the entertainment is held. 17. The argument that when a lumpsum amount is paid as a right of admission for all rides and games, then it becomes admission to series of entertainment, is not tenable. The writ petitioners issue one ticket including one or more rides or games situated in one compound. It is not the case of the writ petitioners that for every ride or game, it is charging separately. The admission to entertainment in terms of Section 2(d) of the Act includes all rides and games which are provided by the service provider. The series of entertainment as contemplated by Section 3(2) of the Act does not mean that on a single day ticket for one entry, it can be treated to be a series of entertainments. The series of entertainments can be where the facility for a game or ride is provided on multiple days and a combined ticket is issued for events for each day. It will only then be said to be series of entertainment. 18. Once an admission ticket is granted, it is not in terms of Section 3(2) of the Act but only in terms of Section 3(1)(b) of the Act. Section 3(2) of the Act has no applicability for a visitor to an amusement park who does not fall in any of the four categories mentioned in Section 3(2) of the Act. Since, the activities undertaken by the writ petitioners are not failing part of Section 3(2) of the Act, therefore, they are not entitled to rebate of 50% provided to specified category of persons in Section 3(2) of the Act. 19. Section 3(5)(a) of the Act has an overriding effect over Section 3(1) (b) and Section 3(2) of the Act. In respect of the first three years from the date of commencement of the amusement park, there is no issue as no entertainment duty is payable. But, in respect of the subsequent two years, the rate of duty leviable is under clause (b) of sub-section (1) or, as the case may be, under sub-section (2) of Section 3. Section 3(1)(b) of the Act is applicable to all amusement parks whereas Section 3(2) of the Act has a limited applicability only in respect of the specified categories therein. All amusement parks for all entertainment are not entitled to concessional duty in terms of Section 3(2) of the Act. Therefore, the writ petitioners cannot claim benefit under Section 3(2) of the Act. The argument is preposterous as the writ petitioners are firstly claiming the benefit under Section 3(2) of the Act and then under Section 3(5)(a) of the Act. The amusement parks would be entitled to only one benefit either under Section 3(2) or under Section 3(5)(a) of the Act. Since Section 3(2) is not applicable to all amusement parks for all other activities, therefore, the entertainment duty in terms of Section 3(5)(a) of the Act alone would be leviable. The duty under Section 3(2) of the Act would be leviable only in respect of specified categories mentioned therein. ### Response: 1

Mgmt.,Of Thanjavur Textiles Ltd Vs. B.Purushotham

in Workmen in Buckingham and Carnatic Mills, Madras v. Buckingham and Carnatic Mills, Madras, 1970 Vol 1 LLJ 26. Our attention was also drawn by the learned counsel on both the sides to the decisions of this Court in M/s Dalmia Dadri Cement Ltd. v. Shri Murari Lal Bikaneria, 1970(3) SCC 259 and to Central Bank or India v. C. Bernard, 1991(1) SCC 319 : 1991(2) SCT 105 (SC). 8. The relevant portion of the Standing Order in sub-clause (c) of Clause 62 reads as follows :- "The Manager may himself or through other responsible officer make such enquiry and the workman shall present himself at the time and date fixed for such enquiry." 9. There was considerable debate before us in regard to the meaning of the words employed in the above sub-clause (c) of Clause 62. The words "other responsible officer" referred to in this case could only be an officer of the Company subordinate to the Manager and not an outsider, according to Shri S. Ravindra Bhat, learned counsel for the respondent and hence the Advocate could not have been appointed as enquiry officer nor could he give findings on the merits of the misconduct. 10. The learned senior counsel for the appellant, however, referred to the cases referred to above and submitted before us that even going by the language of the above clause and to the observations in the abovesaid judgments, it was permissible for the Manager to appoint an advocate as an Enquiry Officer. On the other hand, learned counsel for the respondent-workmen contended that the language of the clause in the Standing Order in this case was different from the language employed in the Standing Orders in the decided cases. In the present case the Standing Order contemplated an enquiry to be conducted only by a responsible officer of the Company, subordinate to the Manager. 11. We, however, find it not necessary to go into this controversy in view of the concession made by the learned senior counsel who appeared for the workmen before the Division Bench of the High Court to the effect that he was not raising the "extreme contention" that the enquiry, on the facts of this case, could not have been conducted by an advocate. In view of the said concession, we are not going into the submission before us as to whether the language of the particular clause in the Standing Order did or did not permit the Manager to appoint an advocate as an enquiry officer. 12. We, therefore, proceed on the assumption that it was permissible for the Manager to appoint an advocate as an enquiry officer. 13. Even so, learned counsel for the respondent contended that in cases where a person outside the Company was appointed as an enquiry officer, he would not be entitled to give findings as to the misconduct of the workmen. According to him, the advocate would only be entitled to record the evidence and send the same to the disciplinary authority. There could not be any delegation to the advocate in respect of the quasi judicial function. 14. Once it was conceded in the High Court by the learned counsel who appeared for the workmen that an advocate could be appointed as an enquiry officer, the advocate would, in our opinion, have all the normal powers of an enquiry officer including the power to give findings as to misconduct of the employees. We are unable to make a distinction between the powers of an enquiry officer who is an employee of the Company and an outsider. If the Manager was entitled to appoint an inquiry officer. In either case the appointee, in his capacity as an enquiry officer, would have the same powers. We accordingly hold that the advocate in this case could have given findings as to misconduct and the Division Bench of the High Court was wrong in thinking that the advocate, being an outsider, would not have the power to give findings as to misconduct of the employees.15. We may point out that in the case cited by the learned Senior counsel for the appellant in Khardah and Co., 1963(2) LLJ 452, it was stated as follows :- "We are not prepared to adopt such a course. If industrial adjudication attaches importance to domestic enquiries and the conclusions reached at the end of such enquiries, that necessarily postulates that the enquiry would be followed by a statement containing the conclusions of the enquiry officer. It may be that the enquiry officer need not write a very long or elaborate report; but since his findings are likely to lead to the dismissal of the employee, it is his duty to record clearly and precisely his conclusions and to indicate briefly his reasons for reaching the said conclusions."16. So far as the judgment in Workmen in Buckingham and Carnatic Mills, Madras v. Buckingham and Carnatic Mills, Madras, 1970 Vol.1 LLJ 26 is concerned, it was pointed out in that case that the relevant Standing order did not permit any delegation whatsoever. Even so if the concerned authority had merely delegated power to record evidence, there was nothing wrong in such a delegation as long as the delegate did not express any opinion on the merits of the case. The abovesaid decision is clearly distinguishable inasmuch as the relevant Standing order in that case did not envisage the appointment of any enquiry officer whatsoever. But in the present case, the Standing order does expressly contemplate appointment of an enquiry officer and if that is the position, the enquiry officer so appointed would, in our opinion, be certainly entitled to give findings in regard to the misconduct of the employees. The above decision is therefore clearly distinguishable. The Division Bench of the High Court in the judgment under appeal in our opinion, erred in not noticing the abovesaid distinction. There was no provision in the Standing Orders in the above cited case permitting appointment of another person to conduct the inquiry.

1[ds]14. Once it was conceded in the High Court by the learned counsel who appeared for the workmen that an advocate could be appointed as an enquiry officer, the advocate would, in our opinion, have all the normal powers of an enquiry officer including the power to give findings as to misconduct of the employees. We are unable to make a distinction between the powers of an enquiry officer who is an employee of the Company and an outsider. If the Manager was entitled to appoint an inquiry officer. In either case the appointee, in his capacity as an enquiry officer, would have the same powers. We accordingly hold that the advocate in this case could have given findings as to misconduct and the Division Bench of the High Court was wrong in thinking that the advocate, being an outsider, would not have the power to give findings as to misconduct of the employees.15. We may point out that in the case cited by the learned Senior counsel for the appellant in Khardah and Co., 1963(2) LLJ 452, it was stated as followsare not prepared to adopt such a course. If industrial adjudication attaches importance to domestic enquiries and the conclusions reached at the end of such enquiries, that necessarily postulates that the enquiry would be followed by a statement containing the conclusions of the enquiry officer. It may be that the enquiry officer need not write a very long or elaborate report; but since his findings are likely to lead to the dismissal of the employee, it is his duty to record clearly and precisely his conclusions and to indicate briefly his reasons for reaching the said conclusions."16. So far as the judgment in Workmen in Buckingham and Carnatic Mills, Madras v. Buckingham and Carnatic Mills, Madras, 1970 Vol.1 LLJ 26 is concerned, it was pointed out in that case that the relevant Standing order did not permit any delegation whatsoever. Even so if the concerned authority had merely delegated power to record evidence, there was nothing wrong in such a delegation as long as the delegate did not express any opinion on the merits of the case. The abovesaid decision is clearly distinguishable inasmuch as the relevant Standing order in that case did not envisage the appointment of any enquiry officer whatsoever. But in the present case, the Standing order does expressly contemplate appointment of an enquiry officer and if that is the position, the enquiry officer so appointed would, in our opinion, be certainly entitled to give findings in regard to the misconduct of the employees. The above decision is therefore clearly distinguishable. The Division Bench of the High Court in the judgment under appeal in our opinion, erred in not noticing the abovesaid distinction. There was no provision in the Standing Orders in the above cited case permitting appointment of another person to conduct the inquiry.

### 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 Workmen in Buckingham and Carnatic Mills, Madras v. Buckingham and Carnatic Mills, Madras, 1970 Vol 1 LLJ 26. Our attention was also drawn by the learned counsel on both the sides to the decisions of this Court in M/s Dalmia Dadri Cement Ltd. v. Shri Murari Lal Bikaneria, 1970(3) SCC 259 and to Central Bank or India v. C. Bernard, 1991(1) SCC 319 : 1991(2) SCT 105 (SC). 8. The relevant portion of the Standing Order in sub-clause (c) of Clause 62 reads as follows :- "The Manager may himself or through other responsible officer make such enquiry and the workman shall present himself at the time and date fixed for such enquiry." 9. There was considerable debate before us in regard to the meaning of the words employed in the above sub-clause (c) of Clause 62. The words "other responsible officer" referred to in this case could only be an officer of the Company subordinate to the Manager and not an outsider, according to Shri S. Ravindra Bhat, learned counsel for the respondent and hence the Advocate could not have been appointed as enquiry officer nor could he give findings on the merits of the misconduct. 10. The learned senior counsel for the appellant, however, referred to the cases referred to above and submitted before us that even going by the language of the above clause and to the observations in the abovesaid judgments, it was permissible for the Manager to appoint an advocate as an Enquiry Officer. On the other hand, learned counsel for the respondent-workmen contended that the language of the clause in the Standing Order in this case was different from the language employed in the Standing Orders in the decided cases. In the present case the Standing Order contemplated an enquiry to be conducted only by a responsible officer of the Company, subordinate to the Manager. 11. We, however, find it not necessary to go into this controversy in view of the concession made by the learned senior counsel who appeared for the workmen before the Division Bench of the High Court to the effect that he was not raising the "extreme contention" that the enquiry, on the facts of this case, could not have been conducted by an advocate. In view of the said concession, we are not going into the submission before us as to whether the language of the particular clause in the Standing Order did or did not permit the Manager to appoint an advocate as an enquiry officer. 12. We, therefore, proceed on the assumption that it was permissible for the Manager to appoint an advocate as an enquiry officer. 13. Even so, learned counsel for the respondent contended that in cases where a person outside the Company was appointed as an enquiry officer, he would not be entitled to give findings as to the misconduct of the workmen. According to him, the advocate would only be entitled to record the evidence and send the same to the disciplinary authority. There could not be any delegation to the advocate in respect of the quasi judicial function. 14. Once it was conceded in the High Court by the learned counsel who appeared for the workmen that an advocate could be appointed as an enquiry officer, the advocate would, in our opinion, have all the normal powers of an enquiry officer including the power to give findings as to misconduct of the employees. We are unable to make a distinction between the powers of an enquiry officer who is an employee of the Company and an outsider. If the Manager was entitled to appoint an inquiry officer. In either case the appointee, in his capacity as an enquiry officer, would have the same powers. We accordingly hold that the advocate in this case could have given findings as to misconduct and the Division Bench of the High Court was wrong in thinking that the advocate, being an outsider, would not have the power to give findings as to misconduct of the employees.15. We may point out that in the case cited by the learned Senior counsel for the appellant in Khardah and Co., 1963(2) LLJ 452, it was stated as follows :- "We are not prepared to adopt such a course. If industrial adjudication attaches importance to domestic enquiries and the conclusions reached at the end of such enquiries, that necessarily postulates that the enquiry would be followed by a statement containing the conclusions of the enquiry officer. It may be that the enquiry officer need not write a very long or elaborate report; but since his findings are likely to lead to the dismissal of the employee, it is his duty to record clearly and precisely his conclusions and to indicate briefly his reasons for reaching the said conclusions."16. So far as the judgment in Workmen in Buckingham and Carnatic Mills, Madras v. Buckingham and Carnatic Mills, Madras, 1970 Vol.1 LLJ 26 is concerned, it was pointed out in that case that the relevant Standing order did not permit any delegation whatsoever. Even so if the concerned authority had merely delegated power to record evidence, there was nothing wrong in such a delegation as long as the delegate did not express any opinion on the merits of the case. The abovesaid decision is clearly distinguishable inasmuch as the relevant Standing order in that case did not envisage the appointment of any enquiry officer whatsoever. But in the present case, the Standing order does expressly contemplate appointment of an enquiry officer and if that is the position, the enquiry officer so appointed would, in our opinion, be certainly entitled to give findings in regard to the misconduct of the employees. The above decision is therefore clearly distinguishable. The Division Bench of the High Court in the judgment under appeal in our opinion, erred in not noticing the abovesaid distinction. There was no provision in the Standing Orders in the above cited case permitting appointment of another person to conduct the inquiry. ### Response: 1

Kanachur Islamic Education Trust (R) Vs. Secretary

had submitted representations on 15.12.2016 and 16.1.2017 before the Central Government is a matter of record. That the report qua the inspection conducted on 17-18.11.2016 did not disclose any substantial deficiency warranting disapproval as observed by the Hearing Committee is also not in dispute. It is unambiguously clear that the inspection of the petitioner’s college undertaken on 17-18.11.2016 did not divulge any substantial deficiency justifying disapproval of the LOP to it. The reason for the surprise inspection on 9-10.12.2016, i.e. within three weeks of the first exercise and that too in absence of any noticeable substantial deficiency, is convincingly not forthcoming. The fact that the petitioners college/institution is a minority institution and that a major festival for the said community was scheduled on 12.12.2016 and that the day previous thereto i.e. 11.12.2016 was a Sunday, are facts which may not be wholly irrelevant. The observation of the Hearing Committee that petitioner’s college/institution has not explained the deficiency of faculty is belied by its representations and also the observations amongst others of the Oversight Committee. The conclusion that a few residents might have been on leave on account of NEET (PG) examination but not all, also seems to be inferential in the face of exhaustive explanation provided by the petitioners college/institution. In this context, the observation of the Oversight Committee in its communication dated 14.5.2017 that eight colleges including the petitioner’s college/institution had been assessed twice in quick succession for the same purpose though not authorized by it in its guidelines, deserves attention. The Hearing Committee seems to have ignored the explanation provided by the Professor and Head of Department of Surgery, explaining the treatment given to the three patients named in clause xii (a) to (c) of the Inspection Report in concluding that, the petitioners college/institution had not responded thereto. Its deduction that there might have been more instances of multiple entries in the OPD patient statistics based on five such instances is also visibly presumptive. The striking feature of the observations of the Hearing Committee, on the basis of which the impugned decision has been rendered, is the patent omission on its part to consider the relevant materials on record, as mandated by this Court by its order dated 1.8.2017. The findings of the Hearing Committee, in our comprehension, thus stands vitiated by the non-consideration of the representations/explanations of the petitioners college/institution, the documents supporting the same, the recommendations/views of the MCI, the observation of the earlier Hearing Committee, DGHS and Oversight Committee, as available on records. The Central Government as well readily concurred with the observations of the Hearing Committee in passing the impugned order, which per se, in our estimate, is unsustainable in the singular facts and circumstances of the case18. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate,objective, cautious and rational analysis of the materials on record and in our view, returned wholly casual findings against the petitioners college/institution. This order thus has to be held, not to be in accord with the spirit and purport of the order dated 01.08.2017 passed by this Court. Suffice it to state, the order does not inspire the confidence of this Court to be sustained in the attendant facts and circumstances.19. In the predominant factual setting, noted hereinabove, the approach of the respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Reasonable opportunity of hearing which is synonymous to fair hearing, it is not longer res integra is an important ingredient of audi alteram partem rule and embraces almost every facet of fair procedure. The rule of fair hearing requires that the affected party should be given an opportunity to meet the case against him effectively and the right to fair hearing takes within its fold a just decision supplemented by reasons and rationale. Reasonable opportunity of hearing or right to fair hearing casts a steadfast and sacrosanct obligation on the adjudicator to ensure fairness in procedure and action, so much so that any remiss or dereliction in connection therewith would be at the pain of invalidation of the decision eventually taken. Every executive authority empowered to take an administrative action having the potential of visiting any person with civil consequences must take care to ensure that justice is not only done but also manifestly appears to have been done.20. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the petitioners college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for LOP depending on the stages involved. This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concerned vis-a-vis the scheme for establishment of a college before disapproving the same. The manner in which the respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency, as alleged. The respondents having failed to persuasively establish the said deficiencies, as noted in the impugned order dated 10.08.2017, inspite of opportunities available including the one granted by this Court, such a determination cannot be sustained in the facts and circumstances of the case. We are of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, the petitioner’s college/institution ought not to be penalised.

1[ds]17. In the above eventful backdrop, we have cautiously considered the rival assertions, which assuredly would have to be evaluated on the measure of the operative directions contained in the order dated 1.8.2017, whereby the issue involved was referred to the Central Government for an appropriate reasoned decision on areevaluation of the recommendations/views of the MCI, Hearing Committee,DGHS and Oversight Committee and after affording an opportunity of hearing to thecollege/institution to the extent necessary. That against the inspections conducted by the MCI, the petitioners college/institution had submitted representations on 15.12.2016 and 16.1.2017 before the Central Government is a matter of record. That the report qua the inspection conducted ondid not disclose any substantial deficiency warranting disapproval as observed by the Hearing Committee is also not in dispute. It is unambiguously clear that the inspection of thecollege undertaken ondid not divulge any substantial deficiency justifying disapproval of the LOP to it. The reason for the surprise inspection oni.e. within three weeks of the first exercise and that too in absence of any noticeable substantial deficiency, is convincingly not forthcoming. The fact that the petitioners college/institution is a minority institution and that a major festival for the said community was scheduled on 12.12.2016 and that the day previous thereto i.e. 11.12.2016 was a Sunday, are facts which may not be wholly irrelevant. The observation of the Hearing Committee thatcollege/institution has not explained the deficiency of faculty is belied by its representations and also the observations amongst others of the Oversight Committee. The conclusion that a few residents might have been on leave on account of NEET (PG) examination but not all, also seems to be inferential in the face of exhaustive explanation provided by the petitioners college/institution. In this context, the observation of the Oversight Committee in its communication dated 14.5.2017 that eight colleges including thecollege/institution had been assessed twice in quick succession for the same purpose though not authorized by it in its guidelines, deserves attention. The Hearing Committee seems to have ignored the explanation provided by the Professor and Head of Department of Surgery, explaining the treatment given to the three patients named in clause xii (a) to (c) of the Inspection Report in concluding that, the petitioners college/institution had not responded thereto. Its deduction that there might have been more instances of multiple entries in the OPD patient statistics based on five such instances is also visibly presumptive. The striking feature of the observations of the Hearing Committee, on the basis of which the impugned decision has been rendered, is the patent omission on its part to consider the relevant materials on record, as mandated by this Court by its order dated 1.8.2017. The findings of the Hearing Committee, in our comprehension, thus stands vitiated by theof the representations/explanations of the petitioners college/institution, the documents supporting the same, the recommendations/views of the MCI, the observation of the earlier Hearing Committee, DGHS and Oversight Committee, as available on records. The Central Government as well readily concurred with the observations of the Hearing Committee in passing the impugned order, which per se, in our estimate, is unsustainable in the singular facts and circumstances of the case18. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate,objective, cautious and rational analysis of the materials on record and in our view, returned wholly casual findings against the petitioners college/institution. This order thus has to be held, not to be in accord with the spirit and purport of the order dated 01.08.2017 passed by this Court. Suffice it to state, the order does not inspire the confidence of this Court to be sustained in the attendant facts and circumstances.19. In the predominant factual setting, noted hereinabove, the approach of the respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Reasonable opportunity of hearing which is synonymous to fair hearing, it is not longer res integra is an important ingredient of audi alteram partem rule and embraces almost every facet of fair procedure. The rule of fair hearing requires that the affected party should be given an opportunity to meet the case against him effectively and the right to fair hearing takes within its fold a just decision supplemented by reasons and rationale. Reasonable opportunity of hearing or right to fair hearing casts a steadfast and sacrosanct obligation on the adjudicator to ensure fairness in procedure and action, so much so that any remiss or dereliction in connection therewith would be at the pain of invalidation of the decision eventually taken. Every executive authority empowered to take an administrative action having the potential of visiting any person with civil consequences must take care to ensure that justice is not only done but also manifestly appears to have been done.20. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the petitioners college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for LOP depending on the stages involved. This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concernedthe scheme for establishment of a college before disapproving the same. The manner in which the respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency, as alleged. The respondents having failed to persuasively establish the said deficiencies, as noted in the impugned order dated 10.08.2017, inspite of opportunities available including the one granted by this Court, such a determination cannot be sustained in the facts and circumstances of the case. We are of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, thecollege/institution ought not to be penalised.

### 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: had submitted representations on 15.12.2016 and 16.1.2017 before the Central Government is a matter of record. That the report qua the inspection conducted on 17-18.11.2016 did not disclose any substantial deficiency warranting disapproval as observed by the Hearing Committee is also not in dispute. It is unambiguously clear that the inspection of the petitioner’s college undertaken on 17-18.11.2016 did not divulge any substantial deficiency justifying disapproval of the LOP to it. The reason for the surprise inspection on 9-10.12.2016, i.e. within three weeks of the first exercise and that too in absence of any noticeable substantial deficiency, is convincingly not forthcoming. The fact that the petitioners college/institution is a minority institution and that a major festival for the said community was scheduled on 12.12.2016 and that the day previous thereto i.e. 11.12.2016 was a Sunday, are facts which may not be wholly irrelevant. The observation of the Hearing Committee that petitioner’s college/institution has not explained the deficiency of faculty is belied by its representations and also the observations amongst others of the Oversight Committee. The conclusion that a few residents might have been on leave on account of NEET (PG) examination but not all, also seems to be inferential in the face of exhaustive explanation provided by the petitioners college/institution. In this context, the observation of the Oversight Committee in its communication dated 14.5.2017 that eight colleges including the petitioner’s college/institution had been assessed twice in quick succession for the same purpose though not authorized by it in its guidelines, deserves attention. The Hearing Committee seems to have ignored the explanation provided by the Professor and Head of Department of Surgery, explaining the treatment given to the three patients named in clause xii (a) to (c) of the Inspection Report in concluding that, the petitioners college/institution had not responded thereto. Its deduction that there might have been more instances of multiple entries in the OPD patient statistics based on five such instances is also visibly presumptive. The striking feature of the observations of the Hearing Committee, on the basis of which the impugned decision has been rendered, is the patent omission on its part to consider the relevant materials on record, as mandated by this Court by its order dated 1.8.2017. The findings of the Hearing Committee, in our comprehension, thus stands vitiated by the non-consideration of the representations/explanations of the petitioners college/institution, the documents supporting the same, the recommendations/views of the MCI, the observation of the earlier Hearing Committee, DGHS and Oversight Committee, as available on records. The Central Government as well readily concurred with the observations of the Hearing Committee in passing the impugned order, which per se, in our estimate, is unsustainable in the singular facts and circumstances of the case18. As the impugned order dated 10.08.2017 would reveal, it is apparent that for all practical purposes, the Hearing Committee/Central Government did not undertake a dispassionate,objective, cautious and rational analysis of the materials on record and in our view, returned wholly casual findings against the petitioners college/institution. This order thus has to be held, not to be in accord with the spirit and purport of the order dated 01.08.2017 passed by this Court. Suffice it to state, the order does not inspire the confidence of this Court to be sustained in the attendant facts and circumstances.19. In the predominant factual setting, noted hereinabove, the approach of the respondents is markedly incompatible with the essence and import of the proviso to Section 10A(4) mandating against disapproval by the Central Government of any scheme for establishment of a college except after giving the person or the college concerned a reasonable opportunity of being heard. Reasonable opportunity of hearing which is synonymous to fair hearing, it is not longer res integra is an important ingredient of audi alteram partem rule and embraces almost every facet of fair procedure. The rule of fair hearing requires that the affected party should be given an opportunity to meet the case against him effectively and the right to fair hearing takes within its fold a just decision supplemented by reasons and rationale. Reasonable opportunity of hearing or right to fair hearing casts a steadfast and sacrosanct obligation on the adjudicator to ensure fairness in procedure and action, so much so that any remiss or dereliction in connection therewith would be at the pain of invalidation of the decision eventually taken. Every executive authority empowered to take an administrative action having the potential of visiting any person with civil consequences must take care to ensure that justice is not only done but also manifestly appears to have been done.20. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the petitioners college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for LOP depending on the stages involved. This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concerned vis-a-vis the scheme for establishment of a college before disapproving the same. The manner in which the respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on record do not support determinatively the allegation of deficiency, as alleged. The respondents having failed to persuasively establish the said deficiencies, as noted in the impugned order dated 10.08.2017, inspite of opportunities available including the one granted by this Court, such a determination cannot be sustained in the facts and circumstances of the case. We are of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, the petitioner’s college/institution ought not to be penalised. ### Response: 1

Gautam Kamlakar Pardeshi and ors Vs. The State of Maharashtra

6 SCC 403. 14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration. 16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused. The Principles i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. ii) It should be made voluntarily and should be truthful. iii) It should inspire confidence. iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. vi) Such statement essentially has to be proved like any other fact and in accordance with law. The learned Counsel for the appellants has placed reliance upon the same judgment to substantiate that the factum of last seen has to be corroborated and shall not suffer from any and discrepancies as well. 15. Per contra, the learned APP has submitted that P.W. 8 and P.W. 9 are eye witnesses and they had seen the deceased lastly in the company of the accused. 16. The evidence in the present case is in the nature of the circumstances of last seen theory and extra judicial confession to P.W. 9. The prosecution has only relied upon the evidence of P.W. 8 and P.W. 9 who were under the influence of alcohol throughout that period. P.W. 8 and P.W. 9 were in the company of the accused when the incident of assault had taken place. The fact that they had tried to persuade the accused not to assault the deceased is in the nature of a material omission and the said omission is proved in accordance with law. P.W. 8 and P.W. 9 were also not in a proper frame of mind even to understand the events which they have seen. They have not disclosed anything to police immediately. It is not known as to what was the material on record to show that the accused and the witnesses were in each others company at the time of incident. It is true that the accused had no animus or intention to assault the deceased much less to kill him. The identity of the deceased has not been established. The deceased was also not apprehended when he was attempting to commit theft. It is the case of the P.W. 8 and P.W. 9 that the accused had assaulted only with fists and blows. There is no recovery of weapon. However, according to P.W. 4, the assault was with a hard and blunt object. The evidence in the nature of extrajudicial confession is week, since there is no material on record to show that it was a voluntary disclosure to its fullest extent. The accused were not in their senses till late in the afternoon of 1st January, 2014 and that they had continued the party for 4 days after the incident. The dead body was found on 4th January, 2014 and the condition of dead body shows that the death must have occurred atleast four days before. P.W. 11 Hitesh Raut has disclosed that he had seen a mentally ill person standing near pan shop on 1/1/2014 at about 12 to 12.30 a.m. P.W. 11 has been declared hostile by the prosecution. P.W. 11 was also not called by the police for identifying the dead body. 17. The prosecution has failed to establish that P.W. 8 and P.W.9 had seen the deceased in the company of the accused. The only description is that he was a mentally ill person. But the identity of the person as the deceased has not been established. The statement of P.W. 8 and P.W. 9 are recorded after the arrest of the accused. Therefore, again there is no material to show that it was on the basis of their statement that the accused were arrested. 18. The extrajudicial confession does not inspire confidence as P.W. 9 was in the company of the accused on 31st December, 2013 as well as on 1st January, 2014. There was no reason for the accused to tell P.W. 9 on the eve of 2nd January, 2014 that they had killed the deceased. Moreover, P.W. 9 had neither reported it to the police nor he had verified that the body was thrown in the well. The body was recovered on 4th January, 2014. The material infirmities in the evidence of P.W. 8 and P.W. 9 do not inspire the confidence of the court. 19. Last seen theory by itself is not sufficient to prove that the accused are the authors of the fatal injuries sustained by the deceased. In fact, the prosecution has to establish the time when the deceased was lastly seen in the company of the accused and the time of death. Unless there is proximity in the time of last seen and the time of death, the evidence cannot be taken into consideration to convict the accused.

0[ds]4. According to P.W. 7 Joseph Rodrigues, he had filed a report thereby informing the police that when he had been to the well to start the motor pump, he had noticed that an unidentified dead body was floating in the well. On the basis of his report, ADR No. 3 of 2014 was registered and investigation was set in motion. In the cross-examination, he had admitted that he had not informed the police that upon seeing the dead body in the well, he had first informed his brother, who called the local councilor and then on the basis of the information of the police patil, the police had arrived at the spot. It is categorically stated in the cross-examination that the said well was a common well and the residents in the wadi used to draw water from the well turn by turn. That there was no fencing around the wadi and therefore, trespassers had an easy access to the wadi. According to him, whenever a thief is apprehended in the wadi, the thief used to be assaulted by the agriculturists. That the accused were not residents of the wadi and therefore, he had not seen the accused in the close vicinity of the wadi. That when he saw the dead body, he had not noticed any injury on the dead body and therefore, he had presumed that the said person must have had an accidental fall.8. According to P.W. 8, all the three accused were under the influence of liquor and therefore, were not in position to walk properly. The pump house is situated in the wadi and there is no facility of light near the pump house. That he had accompanied Martin to Bolinj Naka and then they both returned to the house of Martin. That Martin was in a hurry to reach home since the family members were calling him persistently. On 2nd January, 2014 he woke up at about 3 p.m. and thereafter, had not visited any of the places like Sakharababa Sankul and Pump house. In the evening of 2nd January, 2014, he found nothing objectionable. It is specifically admitted that he had not suspected Rahul, Pravin and Gautam as the assailants of the unknown person as he had not seen any one of them assaulting the said unknown person. He had not seen the dead body nor the police had called upon him to see the dead body. There are material omissions in the evidence of P.W. 8 which go to the root of the matter.9. P.W.9 Martin Moris was resident of Virar Garden. P.W.9 was a good friend of accused and used to consume liquor alongwith them in the premises of pump room which is situated behind the Sakharambaba Sankul. According to P.W. 9, on 31/12/2013 he had accompanied P.W. 8 to Gokul township and then they returned home at about 9 p.m. A party was going on. They joined the party. P.W. 8 Jeris was receiving calls from Pravin persistently and therefore, they both decided to meet Pravin at Bolinj Naka. Pravin was not present at the spot but a beggar was wandering here and there. The said beggar had a bad smell. Pravin asked them to come behind MM Bar. P.W. 8 and P.W. 9 obliged. He saw all the accused present there. The beggar had dashed Gautam and the said gesture annoyed Gautam. The beggar was apprehended by Gautam and Pravin, but he was unable to speak except uttering the words Mumbai station. They suspected him to be a thief. Pravin caught hold of the beggar whereas Gautam and Rahul gave him fists and blows. Then they went to pump house. P.W. 8 and P.W. 9 were asking the accused to release the beggar and not to assault him. Rahul and Pravin denuded the beggar of his clothes and assaulted him. P.W. 9 received phone call from his sister and therefore, left the spot. On 2nd January, 2014 accused Pravin called P.W. 9 at Bolinj Naka and informed him that the said person was not a human being but a demon and all three of them killed the said person with a stone. Pravin also informed that the dead body of the said person was thrown in a well. All the three accused suspected the said person to be a demon. While handing over lemon, they informed P.W. 9 that the said spirit could cause harm to him and his family. He has also admitted to be an alcoholic. That they used to consume drugs together. On 31st December, 2013 the party continued for the whole night and spilt over till 8 a.m. of 1st January, 2014. He was a good friend of Pravin and vouched for him as a good person with a helping nature and no criminal antecedents. He admits that he has not given description of the said unknown person to the police. There are material omissions in the evidence of P.W. 9. His evidence that his friend had threatened him of dire consequences in the eventuality of disclosing facts to the police is a material omission.11. P.W. 12 Santosh Barge, API has deposed before the court the steps taken by him in the course of investigation. According to him, accused Pravin Wagh had burnt his bloodstained clothes. Stone was recovered at this instance. The clothes of the deceased were recovered at the instance of accused Gautam from the lake. The clothes of the accused Gautam were also recovered from his house. There were blood stains on the pant below the knee area. Similarly, there is recovery of clothes of Accused Rahul. He disclosed that he had thrown the clothes with bloodstains in lake. P.W. 12 has admitted that no blood stains were seen on the scene of offence. There was no material to show that the dead body was dragged from pump house to well. P.W. 12 had admitted that he has not recorded the statement of the owner of land Joseph Rodrigues, in which the well and pump house were situated. There was no compound to the well as well as the pump house. The dead body was not identified. According to him, he did not feel it necessary to record statement of the owner of the land. There is no investigation besides the evidence of P.W. 8 and P.W. 9 that the deceased was a beggar nor it had transpired that the deceased was a thief. But in the course of investigation, it had transpired that on the day of the incident, an auto rickshaw driver had teased the deceased but the said auto rickshaw driver could not be tressed.12. The accused were not subjected to alcoholic examination. There was no evidence to show that anyone in the locality besides P.W. 8 and P.W.9 had seen the deceased in the locality. In the course of investigation, clothes of deceased were not shown to eye witnesses for verification. In the panchanama at Exh. 31, it is specifically mentioned that the clothes were wet and therefore, the signatures of the panchas will be obtained after the clothes dried. There is no evidence to show that after seizure, the clothes were sealed. Some currency notes were recovered in the course of seizure of clothes, but there is no reference from whom the notes were seized and to whom they were given. The currency notes are not deposited in the court either. The big stone which was seized was not sent for chemical analysis. During investigation, P.W. 12 had opened the seal of stone for the purpose of showing the same to the medical officer. There is a distance of 50 to 60 ft. between the pump room near lake and the pump room near the well. But there were no marks of dragging the dead body nor there was trail of blood. No liquor bottles were found near any of the pump room. During investigation, P.W. 12 had not collected the call details records of accused and witnesses. P.W. 12 had proved the omissions and contradictions in the evidence of the witnesses. It is categorically admitted by P.W. 12 that in the present case, there is no eye witness to the murder.16. The evidence in the present case is in the nature of the circumstances of last seen theory and extra judicial confession to P.W. 9. The prosecution has only relied upon the evidence of P.W. 8 and P.W. 9 who were under the influence of alcohol throughout that period. P.W. 8 and P.W. 9 were in the company of the accused when the incident of assault had taken place. The fact that they had tried to persuade the accused not to assault the deceased is in the nature of a material omission and the said omission is proved in accordance with law. P.W. 8 and P.W. 9 were also not in a proper frame of mind even to understand the events which they have seen. They have not disclosed anything to police immediately. It is not known as to what was the material on record to show that the accused and the witnesses were in each others company at the time of incident. It is true that the accused had no animus or intention to assault the deceased much less to kill him. The identity of the deceased has not been established. The deceased was also not apprehended when he was attempting to commit theft. It is the case of the P.W. 8 and P.W. 9 that the accused had assaulted only with fists and blows. There is no recovery of weapon. However, according to P.W. 4, the assault was with a hard and blunt object. The evidence in the nature of extrajudicial confession is week, since there is no material on record to show that it was a voluntary disclosure to its fullest extent. The accused were not in their senses till late in the afternoon of 1st January, 2014 and that they had continued the party for 4 days after the incident. The dead body was found on 4th January, 2014 and the condition of dead body shows that the death must have occurred atleast four days before. P.W. 11 Hitesh Raut has disclosed that he had seen a mentally ill person standing near pan shop on 1/1/2014 at about 12 to 12.30 a.m. P.W. 11 has been declared hostile by the prosecution. P.W. 11 was also not called by the police for identifying the dead body.17. The prosecution has failed to establish that P.W. 8 and P.W.9 had seen the deceased in the company of the accused. The only description is that he was a mentally ill person. But the identity of the person as the deceased has not been established. The statement of P.W. 8 and P.W. 9 are recorded after the arrest of the accused. Therefore, again there is no material to show that it was on the basis of their statement that the accused were arrested.18. The extrajudicial confession does not inspire confidence as P.W. 9 was in the company of the accused on 31st December, 2013 as well as on 1st January, 2014. There was no reason for the accused to tell P.W. 9 on the eve of 2nd January, 2014 that they had killed the deceased. Moreover, P.W. 9 had neither reported it to the police nor he had verified that the body was thrown in the well. The body was recovered on 4th January, 2014. The material infirmities in the evidence of P.W. 8 and P.W. 9 do not inspire the confidence of the court.19. Last seen theory by itself is not sufficient to prove that the accused are the authors of the fatal injuries sustained by the deceased. In fact, the prosecution has to establish the time when the deceased was lastly seen in the company of the accused and the time of death. Unless there is proximity in the time of last seen and the time of death, the evidence cannot be taken into consideration to convict the accused.

### 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: 6 SCC 403. 14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration. 16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused. The Principles i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. ii) It should be made voluntarily and should be truthful. iii) It should inspire confidence. iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. vi) Such statement essentially has to be proved like any other fact and in accordance with law. The learned Counsel for the appellants has placed reliance upon the same judgment to substantiate that the factum of last seen has to be corroborated and shall not suffer from any and discrepancies as well. 15. Per contra, the learned APP has submitted that P.W. 8 and P.W. 9 are eye witnesses and they had seen the deceased lastly in the company of the accused. 16. The evidence in the present case is in the nature of the circumstances of last seen theory and extra judicial confession to P.W. 9. The prosecution has only relied upon the evidence of P.W. 8 and P.W. 9 who were under the influence of alcohol throughout that period. P.W. 8 and P.W. 9 were in the company of the accused when the incident of assault had taken place. The fact that they had tried to persuade the accused not to assault the deceased is in the nature of a material omission and the said omission is proved in accordance with law. P.W. 8 and P.W. 9 were also not in a proper frame of mind even to understand the events which they have seen. They have not disclosed anything to police immediately. It is not known as to what was the material on record to show that the accused and the witnesses were in each others company at the time of incident. It is true that the accused had no animus or intention to assault the deceased much less to kill him. The identity of the deceased has not been established. The deceased was also not apprehended when he was attempting to commit theft. It is the case of the P.W. 8 and P.W. 9 that the accused had assaulted only with fists and blows. There is no recovery of weapon. However, according to P.W. 4, the assault was with a hard and blunt object. The evidence in the nature of extrajudicial confession is week, since there is no material on record to show that it was a voluntary disclosure to its fullest extent. The accused were not in their senses till late in the afternoon of 1st January, 2014 and that they had continued the party for 4 days after the incident. The dead body was found on 4th January, 2014 and the condition of dead body shows that the death must have occurred atleast four days before. P.W. 11 Hitesh Raut has disclosed that he had seen a mentally ill person standing near pan shop on 1/1/2014 at about 12 to 12.30 a.m. P.W. 11 has been declared hostile by the prosecution. P.W. 11 was also not called by the police for identifying the dead body. 17. The prosecution has failed to establish that P.W. 8 and P.W.9 had seen the deceased in the company of the accused. The only description is that he was a mentally ill person. But the identity of the person as the deceased has not been established. The statement of P.W. 8 and P.W. 9 are recorded after the arrest of the accused. Therefore, again there is no material to show that it was on the basis of their statement that the accused were arrested. 18. The extrajudicial confession does not inspire confidence as P.W. 9 was in the company of the accused on 31st December, 2013 as well as on 1st January, 2014. There was no reason for the accused to tell P.W. 9 on the eve of 2nd January, 2014 that they had killed the deceased. Moreover, P.W. 9 had neither reported it to the police nor he had verified that the body was thrown in the well. The body was recovered on 4th January, 2014. The material infirmities in the evidence of P.W. 8 and P.W. 9 do not inspire the confidence of the court. 19. Last seen theory by itself is not sufficient to prove that the accused are the authors of the fatal injuries sustained by the deceased. In fact, the prosecution has to establish the time when the deceased was lastly seen in the company of the accused and the time of death. Unless there is proximity in the time of last seen and the time of death, the evidence cannot be taken into consideration to convict the accused. ### Response: 0

SARJU MISHRA (D) THR. LRS. & ORS Vs. JANGI (D) THR. LRS. & ORS

held that Jangi & Triloki, the children of Bhagauti, who was the son of Ramesar will get only 1/3rd share and the children of Jagesar will get 2/3rd share. 12. Both the branches filed appeals. The appeal of the persons representing the branch of Jagesar was confined to a self acquired property, even in which the other branch was allotted 1/3rd share. 13. The Assistant Settlement Officer dismissed the appeal filed by the members of the branch of Jagesar. 14. The above order led to the filing of two revision petitions by the branch of Jagesar and another revision petition by the branch of Ramesar. 15. The Deputy Director of Consolidation allowed the revision petition filed by the branch of Ramesar and dismissed the revision petitions filed by the branch of Jagesar. This was on the ground that the preliminary decree for partition granted in the suit of the year 1929 was never given effect to. It was also held that there was no evidence to show who among the two namely, Sita Ram and Ramesar died first. The revisional Authority therefore held that both the branches of Ramesar and Jagesar are entitled to half share each. 16. Aggrieved by the order of the revisional Authority allowing the revision petition filed by the branch of Ramesar, the other branch filed a writ petition in WP No.5109 of 1974 on the file of Judicature at Allahabad. The said writ petition was dismissed by the High Court by an Order dated 11.09.2009. It is against the said order that the branch of Jagesar has come up with the above appeal. 17. The main contention of Shri S. R. Singh, learned senior counsel for the appellants is that the authorities under the Consolidation of Holdings Act cannot go beyond the decree passed by the Civil Court and that a preliminary decree for partition attains finality as regards the shares to which the parties are held entitled, even if no final decree has been passed resulting in the actual division by metes and bounds. According to the learned senior counsel for the appellants, the contention of the respondents as though the decree for partition passed in the suit of the year 1929 was collusive, already stood rejected in the suit of the year 1944 and that therefore the authorities under the Consolidation Act are obliged to give effect to the preliminary decree for partition. 18. On first principles, the learned counsel for the appellants is correct. But the aforesaid contentions of the learned senior counsel for the appellants overlook one crucial aspect. At the time when the suit for partition of the year 1929 was decreed on the basis of an arbitration award, all the three brothers namely Sita Ram, Ramesar and Jagesar were alive. They were all held entitled to 1/3rd share each. It was only subsequently that Sita Ram died issueless. None of the parties have any clue as to the exact date of death of Sita Ram or Ramesar. The question as to who pre-deceased whom, is not clear and there is a controversy relating to the same. The claim of the branch of Jagesar was that Ramesar pre-deceased Sita Ram and that, therefore, Sita Rams 1/3rd share came to Jagesar by survivorship. This is why the branch of Jagesar claimed 2/3rd share. 19. But even in the Judgment passed in Suit No. 331 of 1944, no categorical finding was recorded in this regard. The relevant portion of the Judgment dated 21.01.1946 passed in Suit No. 331 of 1944 reads as follows:- He also stated that Rameshar had died earlier to the death of Sitaram. There was no cross examination of the deft no.1 on this point. Therefore it is clear that Rameshar father of the plaintiff pre-deceased Sitaram, which Sitaram pre-deceased Jageshar. Thus Jageshar would be entitled to inherit his share to inheritance bring a nearer collateral heir them the plaintiff. If he died in joint a with him alive he would be entitled to take his share by survivorship, hence in my opinion it is not necessary to enquire this point. However, as the suit no.119 of 1929 must be decreed to have effected a complete separation between all the parties and as no union has been proved between Sitaram and Jageshar must hold that Sitaram died separate from the defts father. Issue decided accordingly. 20. The above portion cannot be taken to be a categorical finding on the specific issue as to whether Sita Ram died before or after Ramesar and whether his 1/3rd share went to the branch of Jagesar as a consequence. The revisional authority under the Consolidation Act has not actually gone beyond the Civil Courts decree for partition. At the time of partition all the three brothers were alive. The authorities under the Consolidation Act were confronted with two questions, namely, (i) whether Sita Ram or Ramesar died first; and (ii) whether Sita Rams 1/3rd share would go to Jagesar by way of survivorship, if he had died after Ramesar. The answer to this question did not depend upon the decree for partition. Therefore, the only ground of attack to the order of Deputy Director of Consolidation as confirmed by the High Court cannot be sustained. It is true that the Deputy Director of Consolidation did not articulate his discussion on this issue with clarity. But that will not make his order vulnerable. 21. To put it in simple terms, Jagesars branch would be entitled to take Sita Rams 1/3rd share only if it is established that Ramesar had pre-deceased Sita Ram. This question was not decided by the Civil Court in the partition suit and it was raised only before the consolidation authorities. Therefore it is not correct to say that the Consolidation authorities went beyond the civil courts decree. Finding that there was no evidence regarding the dates of death, the Deputy Director of Consolidation found it equitable to distribute Sita Rams 1/3rd share equally between the branches of Ramesar and Jagesar.

0[ds]18. On first principles, the learned counsel for the appellants is correct. But the aforesaid contentions of the learned senior counsel for the appellants overlook one crucial aspect. At the time when the suit for partition of the year 1929 was decreed on the basis of an arbitration award, all the three brothers namely Sita Ram, Ramesar and Jagesar were alive. They were all held entitled to 1/3rd share each. It was only subsequently that Sita Ram died issueless. None of the parties have any clue as to the exact date of death of Sita Ram or Ramesar. The question as to who pre-deceased whom, is not clear and there is a controversy relating to the same. The claim of the branch of Jagesar was that Ramesar pre-deceased Sita Ram and that, therefore, Sita Rams 1/3rd share came to Jagesar by survivorship. This is why the branch of Jagesar claimed 2/3rd share.19. But even in the Judgment passed in Suit No. 331 of 1944, no categorical finding was recorded in this regard. The relevant portion of the Judgment dated 21.01.1946 passed in Suit No. 331 of 1944 reads as follows:-He also stated that Rameshar had died earlier to the death of Sitaram. There was no cross examination of the deft no.1 on this point. Therefore it is clear that Rameshar father of the plaintiff pre-deceased Sitaram, which Sitaram pre-deceased Jageshar. Thus Jageshar would be entitled to inherit his share to inheritance bring a nearer collateral heir them the plaintiff. If he died in joint a with him alive he would be entitled to take his share by survivorship, hence in my opinion it is not necessary to enquire this point. However, as the suit no.119 of 1929 must be decreed to have effected a complete separation between all the parties and as no union has been proved between Sitaram and Jageshar must hold that Sitaram died separate from the defts father. Issue decided accordingly.20. The above portion cannot be taken to be a categorical finding on the specific issue as to whether Sita Ram died before or after Ramesar and whether his 1/3rd share went to the branch of Jagesar as a consequence. The revisional authority under the Consolidation Act has not actually gone beyond the Civil Courts decree for partition. At the time of partition all the three brothers were alive. The authorities under the Consolidation Act were confronted with two questions, namely, (i) whether Sita Ram or Ramesar died first; and (ii) whether Sita Rams 1/3rd share would go to Jagesar by way of survivorship, if he had died after Ramesar. The answer to this question did not depend upon the decree for partition. Therefore, the only ground of attack to the order of Deputy Director of Consolidation as confirmed by the High Court cannot be sustained. It is true that the Deputy Director of Consolidation did not articulate his discussion on this issue with clarity. But that will not make his order vulnerable.21. To put it in simple terms, Jagesars branch would be entitled to take Sita Rams 1/3rd share only if it is established that Ramesar had pre-deceased Sita Ram. This question was not decided by the Civil Court in the partition suit and it was raised only before the consolidation authorities. Therefore it is not correct to say that the Consolidation authorities went beyond the civil courts decree. Finding that there was no evidence regarding the dates of death, the Deputy Director of Consolidation found it equitable to distribute Sita Rams 1/3rd share equally between the branches of Ramesar and Jagesar.

### 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: held that Jangi & Triloki, the children of Bhagauti, who was the son of Ramesar will get only 1/3rd share and the children of Jagesar will get 2/3rd share. 12. Both the branches filed appeals. The appeal of the persons representing the branch of Jagesar was confined to a self acquired property, even in which the other branch was allotted 1/3rd share. 13. The Assistant Settlement Officer dismissed the appeal filed by the members of the branch of Jagesar. 14. The above order led to the filing of two revision petitions by the branch of Jagesar and another revision petition by the branch of Ramesar. 15. The Deputy Director of Consolidation allowed the revision petition filed by the branch of Ramesar and dismissed the revision petitions filed by the branch of Jagesar. This was on the ground that the preliminary decree for partition granted in the suit of the year 1929 was never given effect to. It was also held that there was no evidence to show who among the two namely, Sita Ram and Ramesar died first. The revisional Authority therefore held that both the branches of Ramesar and Jagesar are entitled to half share each. 16. Aggrieved by the order of the revisional Authority allowing the revision petition filed by the branch of Ramesar, the other branch filed a writ petition in WP No.5109 of 1974 on the file of Judicature at Allahabad. The said writ petition was dismissed by the High Court by an Order dated 11.09.2009. It is against the said order that the branch of Jagesar has come up with the above appeal. 17. The main contention of Shri S. R. Singh, learned senior counsel for the appellants is that the authorities under the Consolidation of Holdings Act cannot go beyond the decree passed by the Civil Court and that a preliminary decree for partition attains finality as regards the shares to which the parties are held entitled, even if no final decree has been passed resulting in the actual division by metes and bounds. According to the learned senior counsel for the appellants, the contention of the respondents as though the decree for partition passed in the suit of the year 1929 was collusive, already stood rejected in the suit of the year 1944 and that therefore the authorities under the Consolidation Act are obliged to give effect to the preliminary decree for partition. 18. On first principles, the learned counsel for the appellants is correct. But the aforesaid contentions of the learned senior counsel for the appellants overlook one crucial aspect. At the time when the suit for partition of the year 1929 was decreed on the basis of an arbitration award, all the three brothers namely Sita Ram, Ramesar and Jagesar were alive. They were all held entitled to 1/3rd share each. It was only subsequently that Sita Ram died issueless. None of the parties have any clue as to the exact date of death of Sita Ram or Ramesar. The question as to who pre-deceased whom, is not clear and there is a controversy relating to the same. The claim of the branch of Jagesar was that Ramesar pre-deceased Sita Ram and that, therefore, Sita Rams 1/3rd share came to Jagesar by survivorship. This is why the branch of Jagesar claimed 2/3rd share. 19. But even in the Judgment passed in Suit No. 331 of 1944, no categorical finding was recorded in this regard. The relevant portion of the Judgment dated 21.01.1946 passed in Suit No. 331 of 1944 reads as follows:- He also stated that Rameshar had died earlier to the death of Sitaram. There was no cross examination of the deft no.1 on this point. Therefore it is clear that Rameshar father of the plaintiff pre-deceased Sitaram, which Sitaram pre-deceased Jageshar. Thus Jageshar would be entitled to inherit his share to inheritance bring a nearer collateral heir them the plaintiff. If he died in joint a with him alive he would be entitled to take his share by survivorship, hence in my opinion it is not necessary to enquire this point. However, as the suit no.119 of 1929 must be decreed to have effected a complete separation between all the parties and as no union has been proved between Sitaram and Jageshar must hold that Sitaram died separate from the defts father. Issue decided accordingly. 20. The above portion cannot be taken to be a categorical finding on the specific issue as to whether Sita Ram died before or after Ramesar and whether his 1/3rd share went to the branch of Jagesar as a consequence. The revisional authority under the Consolidation Act has not actually gone beyond the Civil Courts decree for partition. At the time of partition all the three brothers were alive. The authorities under the Consolidation Act were confronted with two questions, namely, (i) whether Sita Ram or Ramesar died first; and (ii) whether Sita Rams 1/3rd share would go to Jagesar by way of survivorship, if he had died after Ramesar. The answer to this question did not depend upon the decree for partition. Therefore, the only ground of attack to the order of Deputy Director of Consolidation as confirmed by the High Court cannot be sustained. It is true that the Deputy Director of Consolidation did not articulate his discussion on this issue with clarity. But that will not make his order vulnerable. 21. To put it in simple terms, Jagesars branch would be entitled to take Sita Rams 1/3rd share only if it is established that Ramesar had pre-deceased Sita Ram. This question was not decided by the Civil Court in the partition suit and it was raised only before the consolidation authorities. Therefore it is not correct to say that the Consolidation authorities went beyond the civil courts decree. Finding that there was no evidence regarding the dates of death, the Deputy Director of Consolidation found it equitable to distribute Sita Rams 1/3rd share equally between the branches of Ramesar and Jagesar. ### Response: 0

Madan Lal Vs. Bhai Anand Singh & Others

Controller was not, strictly speaking, concerned at all with the question of ascertainment of the market value. The statutory power vested in Rent Controller by Sec. 13 of the Act is that of giving or not giving or conditionally giving a direction for the eviction of the tenant when certain statutory requirements are fulfilled. There was no objection by any party to the exercise of the jurisdiction of the Controller to order eviction in the circumstances of a case in which the tenancy of premises demised had expired by efflux of time or to the entertainment of an application under Section 34 Arbitration Act. The lessors, by applying under Sec. 13 of the Act, had themselves invoked the jurisdiction of the Controller. And, the lessees had, by relying on Sec. 34 of the Arbitration Act, asked for stay of proceedings only until the value of the building was ascertained and paid. Both sides thus proceeded on the assumption that the Rent Controller had jurisdiction, in the proceedings before him, to order eviction. The correctness of that assumption is not challenged by the appellant before us. 5. Learned Counsel for the appellant had sought to rely on Ethirajulu Naidu v. Ranganatham Chetty 72 Ind App 72 at p. 73 = (AIR 1945 PC 77) which was also cited before the High Court and the Rent Controller. In that case there was the following specific term in a lease of a limited duration."The lessee shall always and in any event be entitled to be paid the price of the superstructure built on the said plot of land before he surrenders possession of the land either on the expiry of the lease hereby granted or any other future lease or at any time. The price shall be fixed according to the market value of the buildings as at the time of ascertainment and payment". The Privy Council had held that this provision meant that possession was to be surrendered only on payment of the price of the building. The deed before us would, as we have already indicated, also have contained a similar provision if that had been the intention of the parties. We find that, in the lease deed under consideration, the condition that the lessor will have to pay 50% of the market value of the building imposes a liability upon the lessor only to pay the stipulated amount in any event.The use of the words "shall have to pay", in clause 6 of the deed before us, could not imply anything more than a future liability to pay. But, the time from which the rights of ownership, including that of actual physical possession, became exercisable was immediately upon the expiry of the tenancy itself and not in future when 50% of the market value was to be ascertained or paid.The case cited by learned Counsel for the appellant, where the terms of the lease were very obviously different, could not advance the lessees claim. 6. We may mention that the High Court had made an observation, in the course of recording its conclusions, which made it appear that what was made subject to the payment of 50% of the market value of the building was only the right of the lessor to sell the property. On a reading the judgment as a whole, it is evident that all that the High Court meant to convey was that the rights of ownership were subjected to a liability incurred by the lessor to pay the stipulated sum in any event. Any further liability to allow the lessee to retain possession until the sum payable was actually ascertained or any other event took place is not to be found here. The ascertainment of the exact amount of the liability undertaken was, in our opinion, a separable matter referable to arbitration. No sufficient ground has been made out for disturbing this interpretation of clause 6 of the deed by the High Court. 7. Another question argued by learned Counsel for the appellant was that the Respondents Lessors had themselves placed an interpretation upon the lease deed which ought, even if it does not affect our interpretation of the deed, to be taken into account by the Rent Controller before passing an order of eviction in the pending proceedings. The lessors had stated, in their application under Section 13 of the Act : "The petitioners have undertaken to abide by the terms of the lease agreed to between the parties relating to the compensation payable by them before getting actual possession of the picture house." No commas separate the term relating to liability to pay compensation from the right to get actual possession. 8. It may be that the application was rather loosely or inaccurately worded. We have not been shown any undertaking given to the Rent Controller, apart from the assertion quoted above from the application under Section 13 of the Act. And, no order of the Controller on any such supposed undertaking has been placed before us. The parties had hotly contested before the Controller as well as the High Court what the exact meaning of the clause under consideration was. It could, therefore, not be either expected or assumed that the application under Section 13 would contain an acceptance of the very interpretation put forward on behalf of the lessees and denied by the lessors. The language of the alleged undertaking was certainly not so clear and unequivocal as to lead to that inescapable inference. Moreover, no argument seems to have been advanced on the strength of this alleged undertaking before either the Controller or the High Court. We, therefore, refrain from deciding the question whether there was any such undertaking before the Controller which, quite apart from the contract embodied in the deed, should affect the discretion of the Controller in passing an eviction order. All we need say here is that the meaning of the terms of the lease, interpreted by us also, is not affected by the alleged undertaking.

0[ds]6. We may mention that the High Court had made an observation, in the course of recording its conclusions, which made it appear that what was made subject to the payment of 50% of the market value of the building was only the right of the lessor to sell the property. On a reading the judgment as a whole, it is evident that all that the High Court meant to convey was that the rights of ownership were subjected to a liability incurred by the lessor to pay the stipulated sum in any event. Any further liability to allow the lessee to retain possession until the sum payable was actually ascertained or any other event took place is not to be found here. The ascertainment of the exact amount of the liability undertaken was, in our opinion, a separable matter referable to arbitration. No sufficient ground has been made out for disturbing this interpretation of clause 6 of the deed by the High Court7. Another question argued by learned Counsel for the appellant was that the Respondents Lessors had themselves placed an interpretation upon the lease deed which ought, even if it does not affect our interpretation of the deed, to be taken into account by the Rent Controller before passing an order of eviction in the pending proceedings.The lessors had stated, in their application under Section 13 of the Act : "The petitioners have undertaken to abide by the terms of the lease agreed to between the parties relating to the compensation payable by them before getting actual possession of the picture house." No commas separate the term relating to liability to pay compensation from the right to get actual possession8. It may be that the application was rather loosely or inaccurately worded. We have not been shown any undertaking given to the Rent Controller, apart from the assertion quoted above from the application under Section 13 of the Act. And, no order of the Controller on any such supposed undertaking has been placed before us. The parties had hotly contested before the Controller as well as the High Court what the exact meaning of the clause under consideration was. It could, therefore, not be either expected or assumed that the application under Section 13 would contain an acceptance of the very interpretation put forward on behalf of the lessees and denied by the lessors. The language of the alleged undertaking was certainly not so clear and unequivocal as to lead to that inescapable inference. Moreover, no argument seems to have been advanced on the strength of this alleged undertaking before either the Controller or the High Court. We, therefore, refrain from deciding the question whether there was any such undertaking before the Controller which, quite apart from the contract embodied in the deed, should affect the discretion of the Controller in passing an eviction order. All we need say here is that the meaning of the terms of the lease, interpreted by us also, is not affected by the alleged undertaking.

### 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: Controller was not, strictly speaking, concerned at all with the question of ascertainment of the market value. The statutory power vested in Rent Controller by Sec. 13 of the Act is that of giving or not giving or conditionally giving a direction for the eviction of the tenant when certain statutory requirements are fulfilled. There was no objection by any party to the exercise of the jurisdiction of the Controller to order eviction in the circumstances of a case in which the tenancy of premises demised had expired by efflux of time or to the entertainment of an application under Section 34 Arbitration Act. The lessors, by applying under Sec. 13 of the Act, had themselves invoked the jurisdiction of the Controller. And, the lessees had, by relying on Sec. 34 of the Arbitration Act, asked for stay of proceedings only until the value of the building was ascertained and paid. Both sides thus proceeded on the assumption that the Rent Controller had jurisdiction, in the proceedings before him, to order eviction. The correctness of that assumption is not challenged by the appellant before us. 5. Learned Counsel for the appellant had sought to rely on Ethirajulu Naidu v. Ranganatham Chetty 72 Ind App 72 at p. 73 = (AIR 1945 PC 77) which was also cited before the High Court and the Rent Controller. In that case there was the following specific term in a lease of a limited duration."The lessee shall always and in any event be entitled to be paid the price of the superstructure built on the said plot of land before he surrenders possession of the land either on the expiry of the lease hereby granted or any other future lease or at any time. The price shall be fixed according to the market value of the buildings as at the time of ascertainment and payment". The Privy Council had held that this provision meant that possession was to be surrendered only on payment of the price of the building. The deed before us would, as we have already indicated, also have contained a similar provision if that had been the intention of the parties. We find that, in the lease deed under consideration, the condition that the lessor will have to pay 50% of the market value of the building imposes a liability upon the lessor only to pay the stipulated amount in any event.The use of the words "shall have to pay", in clause 6 of the deed before us, could not imply anything more than a future liability to pay. But, the time from which the rights of ownership, including that of actual physical possession, became exercisable was immediately upon the expiry of the tenancy itself and not in future when 50% of the market value was to be ascertained or paid.The case cited by learned Counsel for the appellant, where the terms of the lease were very obviously different, could not advance the lessees claim. 6. We may mention that the High Court had made an observation, in the course of recording its conclusions, which made it appear that what was made subject to the payment of 50% of the market value of the building was only the right of the lessor to sell the property. On a reading the judgment as a whole, it is evident that all that the High Court meant to convey was that the rights of ownership were subjected to a liability incurred by the lessor to pay the stipulated sum in any event. Any further liability to allow the lessee to retain possession until the sum payable was actually ascertained or any other event took place is not to be found here. The ascertainment of the exact amount of the liability undertaken was, in our opinion, a separable matter referable to arbitration. No sufficient ground has been made out for disturbing this interpretation of clause 6 of the deed by the High Court. 7. Another question argued by learned Counsel for the appellant was that the Respondents Lessors had themselves placed an interpretation upon the lease deed which ought, even if it does not affect our interpretation of the deed, to be taken into account by the Rent Controller before passing an order of eviction in the pending proceedings. The lessors had stated, in their application under Section 13 of the Act : "The petitioners have undertaken to abide by the terms of the lease agreed to between the parties relating to the compensation payable by them before getting actual possession of the picture house." No commas separate the term relating to liability to pay compensation from the right to get actual possession. 8. It may be that the application was rather loosely or inaccurately worded. We have not been shown any undertaking given to the Rent Controller, apart from the assertion quoted above from the application under Section 13 of the Act. And, no order of the Controller on any such supposed undertaking has been placed before us. The parties had hotly contested before the Controller as well as the High Court what the exact meaning of the clause under consideration was. It could, therefore, not be either expected or assumed that the application under Section 13 would contain an acceptance of the very interpretation put forward on behalf of the lessees and denied by the lessors. The language of the alleged undertaking was certainly not so clear and unequivocal as to lead to that inescapable inference. Moreover, no argument seems to have been advanced on the strength of this alleged undertaking before either the Controller or the High Court. We, therefore, refrain from deciding the question whether there was any such undertaking before the Controller which, quite apart from the contract embodied in the deed, should affect the discretion of the Controller in passing an eviction order. All we need say here is that the meaning of the terms of the lease, interpreted by us also, is not affected by the alleged undertaking. ### Response: 0

State of Kerala Vs. M. T. Devassia and Another

and no further amount was due from him. We find, however, that neither section 4 nor section 5 provides for such a relief. Section 4 lays down that an agriculturist may discharge his debt in instalments. The material part of section 5 is sub-section (2) which provides that for determining the amount due to a banking company for the purpose of payment under this Act, interest shall be calculated at the rate applicable to the debt under the law or contract or the decree or order of the court under which it arises or at 7 per cent. per annum, whichever is less. As stated earlier, the debt due to the bank from the first respondent was directed to bear interest at the rate of 6 per cent. per annum by the order dated January 8, 1963. Thus, the only relief that the first respondent could expect under the Kerala Act was an order permitting him to pay the debt in instalments under section 4. The question, therefore, is whether it was open to the first respondent to ask for an order for payment of the debt found due from him by instalments under section 4 of the Kerala Act.3. The High Court came to the conclusion that the first respondent was not entitled to any relief under the Kerala Act on the following steps of reasoning. The Kerala Act provides for the relief of indebted agriculturists in that State. This Act in pith and substance falls within entry 30 of List II in the Seventh Schedule to the Constitution. The Central Act relates to entry 43 of List I in the Seventh Schedule. A statute which is in pith and substance within the competence of a State Legislature may incidentally encroach on subjects reserved for Parliament under List I of the Seventh Schedule. Such encroachments are permissible so long as there is no conflict between the law passed by Parliament and that enacted by the State legislature but in the case of a conflict between the two statutes, the Central legislation must prevail. Once the High Court makes an order under section 45D(4) of the Central Act for the payment of any sum found by it as due from a debtor to the bank, under sub-section (5) of section 45D such order, subject to the provision for appeal, becomes final and binding for all purposes as between the banking company and the person against whom the order has been passed. There is no provision in the Central Act for scaling down the debt after it has been determined by the High Court under section 45D(4), and any provision of the Kerala Act permitting such a course would be clearly in conflict with sub-sections (4) and (5) of section 45D of the Central Act. As in this case the order under the Central Act had become final against the first respondent, the relief provided by the Kerala Act could not be extended to him.We may refer to two more sections of the Central Act here, sections 2 and 45A. Section 2 states that the provisions of the Act shall be in addition to, and not, except as expressly provided under the Act, in derogation of any other law for the time being in force. Section 45A occurring in Part III-A of the Central Act also states that the provisions of this Part shall have overriding effect but any other law for the time being in force, in so far as it is not inconsistent with the provisions of this Part, shall apply to the proceedings under this Part. The High Court has recorded a finding that the provisions of the Kerala Act are inconsistent with sub-sections (4) and (5) of section 45D of the Central Act. It is contended before us on behalf of the appellant, State of Kerala, that section 4 permitting the debtor to repay the debt in instalments does not really touch the determination by the High Court under section 45D(4) of the Central Act of the amount of debt. It was argued that section 4 of the Kerala Act which relates only to the manner of recovery of the debt contemplates a stage subsequent to and distinct from the determination of its quantum and, therefore, does not affect the finality of the determination under sub-section (5) of section 45D of the Central Act. Put that way, there will be no inconsistency between section 4 of the Kerala Act and sub-sections (4) and (5) of section 45D of the Central Act. It is not clear from the judgment of the High Court in what way section 4 or 5 affects the finality of an order under section 45D(4) ; the High Court has not examined the provisions of sections 4 and 5 of the Kerala Act and found that there is something in them that has the effect of scaling down the amount held under the Central Act as due from the debtor. We do not find anything to disagree with the proposition that the manner of payment of the debt and the determination of the amount of debt are two distinct matters and, without anything more, there is no question of conflict between them. The other provisions of the Kerala Act which the High Court found inconsistent with the Central Act are not material for the purpose of this case. As the High Court does not hold that section 4 of the Kerala Act is anything more than a provision for the payment of debt in instalments, it should have allowed the first respondent to repay the debt in the manner permitted by that section and was in error in not doing so, even if some other sections of the kerala Act were inconsistent with the Central Act. It has not been found that sections 4 and 5 are so placed in the scheme of the Act that they cannot be availed of without in some way giving effect to the offending sections of the Act.4.

1[ds]We do not find anything to disagree with the proposition that the manner of payment of the debt and the determination of the amount of debt are two distinct matters and, without anything more, there is no question of conflict between them. The other provisions of the Kerala Act which the High Court found inconsistent with the Central Act are not material for the purpose of this case. As the High Court does not hold that section 4 of the Kerala Act is anything more than a provision for the payment of debt in instalments, it should have allowed the first respondent to repay the debt in the manner permitted by that section and was in error in not doing so, even if some other sections of the kerala Act were inconsistent with the Central Act. It has not been found that sections 4 and 5 are so placed in the scheme of the Act that they cannot be availed of without in some way giving effect to the offending sections of the Act.

### 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: and no further amount was due from him. We find, however, that neither section 4 nor section 5 provides for such a relief. Section 4 lays down that an agriculturist may discharge his debt in instalments. The material part of section 5 is sub-section (2) which provides that for determining the amount due to a banking company for the purpose of payment under this Act, interest shall be calculated at the rate applicable to the debt under the law or contract or the decree or order of the court under which it arises or at 7 per cent. per annum, whichever is less. As stated earlier, the debt due to the bank from the first respondent was directed to bear interest at the rate of 6 per cent. per annum by the order dated January 8, 1963. Thus, the only relief that the first respondent could expect under the Kerala Act was an order permitting him to pay the debt in instalments under section 4. The question, therefore, is whether it was open to the first respondent to ask for an order for payment of the debt found due from him by instalments under section 4 of the Kerala Act.3. The High Court came to the conclusion that the first respondent was not entitled to any relief under the Kerala Act on the following steps of reasoning. The Kerala Act provides for the relief of indebted agriculturists in that State. This Act in pith and substance falls within entry 30 of List II in the Seventh Schedule to the Constitution. The Central Act relates to entry 43 of List I in the Seventh Schedule. A statute which is in pith and substance within the competence of a State Legislature may incidentally encroach on subjects reserved for Parliament under List I of the Seventh Schedule. Such encroachments are permissible so long as there is no conflict between the law passed by Parliament and that enacted by the State legislature but in the case of a conflict between the two statutes, the Central legislation must prevail. Once the High Court makes an order under section 45D(4) of the Central Act for the payment of any sum found by it as due from a debtor to the bank, under sub-section (5) of section 45D such order, subject to the provision for appeal, becomes final and binding for all purposes as between the banking company and the person against whom the order has been passed. There is no provision in the Central Act for scaling down the debt after it has been determined by the High Court under section 45D(4), and any provision of the Kerala Act permitting such a course would be clearly in conflict with sub-sections (4) and (5) of section 45D of the Central Act. As in this case the order under the Central Act had become final against the first respondent, the relief provided by the Kerala Act could not be extended to him.We may refer to two more sections of the Central Act here, sections 2 and 45A. Section 2 states that the provisions of the Act shall be in addition to, and not, except as expressly provided under the Act, in derogation of any other law for the time being in force. Section 45A occurring in Part III-A of the Central Act also states that the provisions of this Part shall have overriding effect but any other law for the time being in force, in so far as it is not inconsistent with the provisions of this Part, shall apply to the proceedings under this Part. The High Court has recorded a finding that the provisions of the Kerala Act are inconsistent with sub-sections (4) and (5) of section 45D of the Central Act. It is contended before us on behalf of the appellant, State of Kerala, that section 4 permitting the debtor to repay the debt in instalments does not really touch the determination by the High Court under section 45D(4) of the Central Act of the amount of debt. It was argued that section 4 of the Kerala Act which relates only to the manner of recovery of the debt contemplates a stage subsequent to and distinct from the determination of its quantum and, therefore, does not affect the finality of the determination under sub-section (5) of section 45D of the Central Act. Put that way, there will be no inconsistency between section 4 of the Kerala Act and sub-sections (4) and (5) of section 45D of the Central Act. It is not clear from the judgment of the High Court in what way section 4 or 5 affects the finality of an order under section 45D(4) ; the High Court has not examined the provisions of sections 4 and 5 of the Kerala Act and found that there is something in them that has the effect of scaling down the amount held under the Central Act as due from the debtor. We do not find anything to disagree with the proposition that the manner of payment of the debt and the determination of the amount of debt are two distinct matters and, without anything more, there is no question of conflict between them. The other provisions of the Kerala Act which the High Court found inconsistent with the Central Act are not material for the purpose of this case. As the High Court does not hold that section 4 of the Kerala Act is anything more than a provision for the payment of debt in instalments, it should have allowed the first respondent to repay the debt in the manner permitted by that section and was in error in not doing so, even if some other sections of the kerala Act were inconsistent with the Central Act. It has not been found that sections 4 and 5 are so placed in the scheme of the Act that they cannot be availed of without in some way giving effect to the offending sections of the Act.4. ### Response: 1

Nirlex Spares Pvt. Ltd Vs. Commnr. Of Central Excise

mark even though there is no person who claims ownership to that mark or name. The names being used in the manufacture of locks by these small scale units do not belong to any particular manufacturer and any unit is free to use any name. Therefore, in our view, even without the issue of Notification of 4th 11th May, 1994 units which are using trade name or brand name, which does not belong to any person, were eligible for exemption under the said notification because of explanation IX in the said notification. Admittedly, the notification, dated 4th / 11th May, 1994 is clarificatory in nature and the purpose could have been achieved by issuing a clarification to the field formations.” From a bare reading of this opinion of the Law Ministry and in view of the discussions made hereinabove and relying on the decisions of this court, as noted hereinabove, it is, clear that if a brand name was not owned by any particular person, the use thereof shall not deprive a unit of the benefit of the small scale exemption scheme. Such being the position, we are of the view that the printing of the hexagonal design on the goods of the appellant, where such hexagonal design is not owned by the Marketing Company, would not disentitle the appellant from the benefit of the exemption under the notification.16. Before parting with this judgment, we may deal with the submissions made on behalf of the learned senior counsel for the respondent Mr. K. Radhakrishnan. The learned senior counsel for the respondent Mr. K. Radhakrishnan contended that the appellant was using the mark of the Marketing Company with the purpose of indicating a connection between the goods manufactured and cleared by the appellant and the Marketing Company. The learned senior counsel for the respondent Mr. K. Radhakrishnan cited various cases in support of this contention. Having heard the learned senior counsel for the respondent Mr. K. Radhakrishnan and the learned senior counsel for the appellant Mr. Bagaria, we are of the view that the authorities cited by Mr. K. Radhakrishnan would not help the respondent as they do not apply to the facts of the present case. Let us first take up the decision of this court in the case of Commissioner of C.Ex., Calcutta Vs. Emkay Investments (P) Ltd. [2004(174) E.L.T. 298 (S.C.)] on which Mr. K. Radhakrishnan has placed strong reliance. In our view, this case is of no help to the respondent as the same is distinguishable on facts. In this case, unlike our case: - a) Merino was registered brand name of Merinoply & Chemicals;b) Merinoply & Chemicals was a large scale manufacturer of the same goods;c) Merinoply & Chemicals never disputed that the brand name ‘Merino’ does not belong to them;d) The intention to indicate, if not connection, atleast the fact that the quality was similar to a particular type of plywood was there. It is true that in so far as the first point of difference in clause a) is concerned, registration of the brand name is not a pre-requisite for the application of paragraph 7 read with Explanation 8 of the notification. Nevertheless, the purpose behind bringing the same to light is only to suggest that in that case, the other company had a proprietary right over the brand name by virtue of the registration whereas in the present case, the Marketing Company is totally denying any association with the brand name, much less any proprietary right by virtue of the registration.The learned senior counsel for the respondent Mr. Radhakrishnan has also placed reliance on the decision of this court in Commissioner of Central Excise, Trichy Vs. Grasim Industries Ltd. [2005 (183) E.L.T. 123 (S.C.)]. That case too is distinguishable on facts in as much as the intention to indicate a connection was present in that case, unlike the case in hand. Another decision relied upon by the learned senior counsel for the respondent in Commissioner of Central Excise, Chandigarh-I Vs. Mahaan Dairies [2004(166) E.L.T. 23 (S.C.)] is also, in our view, distinguishable on facts. In that decision, it was an admitted position that a name was being used, which was the registered trade mark of another company. This fact was not disputed. Thus the court held, with which we are in full agreement, that the mere use of additional words in addition to the name of another person would not by itself enable the party to claim the benefit of the Notification. We have already stated that in that decision, admittedly, a registered name of another person was used on the product of the respondent of that case. That decision, therefore, would not apply to the facts and circumstances of the present case.17. Before we close, we may also consider a short submission of the learned senior counsel for the respondent. According to the learned senior counsel for the respondent Mr. K. Radhakrishnan, the question as to whether the brand name of the Marketing Company was used by the appellant on the corrugated boxes in which the goods were kept and supplied is a question of fact and this court, therefore, is not entitled to interfere with such a finding of fact. In our view, the Tribunal as also the Commissioner, while coming to the conclusions as arrived by them, failed to consider the admissions and the material evidence on record and thereby came to a finding which, on the face of it, was not tenable on facts. Under these circumstances, it is open to this court to interfere with such a finding of fact and accordingly, this argument of the learned senior counsel for the respondent is not acceptable.18. For the reasons aforesaid, we are not in agreement with the views expressed by the CEGAT and the Commissioner of Central Excise and accordingly, we answer the question posed by us, as noted herein earlier, by holding that the benefit of exemption under the notification in question would be available to the appellant.

1[ds]14. That apart, in our view, the nexus between the hexagonal design and the Marketing Company cannot be found when the Marketing Company itself had categorically disowned the title to the said design and admitted that the said design did not belong to them. That being the position, it cannot be held that the appellant was using the brand name of the Marketing Company when the Marketing Company has itself disowned the brand name, more so, since it is unusual that the person who is owning a brand name would come forward to disown the same when such disowning would deprive the said person of a valuable asset. In Commissioner of Central Excise Vs. Bhalla Enterprises [(2005) 8 SCC 308] , this Court, while considering similar provisions of a subsequent notification NO.1/93-CE, in paragraph 6, observed as under:notification clearly indicates that the assessee will be debarred only if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with thegoods and such other person or uses the name in such a manner that it would indicate such connection. Therefore, if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. An assessee would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to suchnoted hereinabove, we have already indicated that the brand name used on the corrugated boxes would not show any intention of indicating a connection between the goods manufactured by the appellant and the Marketing Company. Again, in Commissioner of Central Excise Vs. Grasim Industries Ltd. [(2005) 4 SCC 194] , this court, while considering similar provisions of the Notification No. 5/98-CE, observed in paragraphs 15 and 16 as under:our view, the Tribunal has completely misdirected itself. The term ‘brand name or tradeis qualified by the words ‘that is toThus, 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 term ‘brand name or tradegets qualified by the words which follow. The words which follow are ‘a name or aThus even an ordinary name or an ordinary mark is sufficient. It is then elaborated that the ‘name orsuch as aor aor even a ‘signature of inventedis 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 ‘anyThese words are wide enough to include the name of a company. The reasoning given by the Tribunal based on a dictionary meaning of the wordsis 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 namede 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.16. This court has, in the case of Royal Hatcheries (P) Ltd. V. State of A.P. already held that words to the effect ‘that is toqualify the words which precede them. In this case also the words ‘that is toqualify the words ‘brand name or tradeby 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 wordy writing would be sufficient if it is used in relation to the product for purpose of indicating a connection between the product and the otherTarai Foods Ltd. Vs. Commissioner of Central Excise [2006 (198) ELT 323], this court, while considering a similar definition of the expression ‘brandin paragraphs 7 and 9, held as under:The words brand name connotes such a mark, symbol, design or name which is unique to the particular manufacturer which when used on a particular product would establish a connection between the product and the manufacturer.Furthermore the definition of the words ‘brandshows that it has to be a nameam etc. which is used in relation to a particular product and which establishes a connection between the product and the person. This name or mark etc. cannot, therefore, be the identity of a person itself. It has to be something else which is appended to the product and which establishes theCommissioner of Central Excise Vs. Superex Industries [2004 (174) ELT 4 ], in the context of the Notification No. 175/86-CE, this court in paragraph 3 held as under:CEGAT has held that the benefit of the Notification would be lost only if the manufacturer affixes the specified goods with a brand name or trade name of the another who is not eligible to the exemption under the notification. It could not be denied that the name Kirloskar is not affixed to the generating sets. CEGAT has held that merely because, in the invoices, the set is passed off as a Kirloskar generating set, the benefit of the Notification would not be lost. We see no infirmity in this reasoning. We, therefore, see no reason to interfere.It is an admitted position that the goods in question were manufactured by the appellant and the Marketing Company was its marketing agent. There is also no dispute that on the packings of the goods, the brand names of the appellantwere clearly and prominently printed. In between these two brand names, the hexagonal shape/design was also printed. Therefore, if the said hexagonal shape/design was also printed as the design of themarketing agent, it could not be taken as a ground to deny the exemption to the appellant under the notification. In this connection, reliance can be placed on a judgment of this court in the case of P&B Pharmaceuticals Pvt. Ltd. Vs. Commissioner of Central Excise [(2003) 3 SCC 599] wherein this court in paragraph 15 held asa perusal of para 7 of Notification No. 175/86-CE, it is clear that the exemption granted by the notification is not applicable to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under the said notification…... It is only when a manufacturer of the specified goods affixes them with a logo-brand name or trade name - of another person who is not eligible for the exemption that he becomes ineligible to avail the benefit under the notification. Use of the logo of the manufacturer by other person, whether an assignorrd party, has no relevance for purposes of para 7. That is not the import of Explanationthis stage, the relevant extracts of the opinion of the Law Ministry, Union of India contained in paragraph 3 of the Circular No. 52/52/94-CX, dated 1/9/1994 issued by the Ministry of Finance (Department of Revenue) may also be reproduced asof the said explanation (Explanation IX to the Notification NO.1/93-C.E.) will show that to satisfy the requirement of brand name or trade name, it is necessary that the trade name must indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication or identity of that person. Unless connection between the trade name and the person with whom that trade name is to be identified can be established, the requirement of brand name or trade name as provided for in the said notification will not be satisfied. It is an admitted case of the department that in respect of locks, the units are making locks bearing the same name or mark even though there is no person who claims ownership to that mark or name. The names being used in the manufacture of locks by these small scale units do not belong to any particular manufacturer and any unit is free to use any name. Therefore, in our view, even without the issue of Notification of 4th 11th May, 1994 units which are using trade name or brand name, which does not belong to any person, were eligible for exemption under the said notification because of explanation IX in the said notification. Admittedly, the notification, dated 4th / 11th May, 1994 is clarificatory in nature and the purpose could have been achieved by issuing a clarification to the fielda bare reading of this opinion of the Law Ministry and in view of the discussions made hereinabove and relying on the decisions of this court, as noted hereinabove, it is, clear that if a brand name was not owned by any particular person, the use thereof shall not deprive a unit of the benefit of the small scale exemption scheme. Such being the position, we are of the view that the printing of the hexagonal design on the goods of the appellant, where such hexagonal design is not owned by the Marketing Company, would not disentitle the appellant from the benefit of the exemption under the notification.16. Before parting with this judgment, we may deal with the submissions made on behalf of the learned senior counsel for the respondent Mr. K. Radhakrishnan. The learned senior counsel for the respondent Mr. K. Radhakrishnan contended that the appellant was using the mark of the Marketing Company with the purpose of indicating a connection between the goods manufactured and cleared by the appellant and the Marketing Company. The learned senior counsel for the respondent Mr. K. Radhakrishnan cited various cases in support of this contention. Having heard the learned senior counsel for the respondent Mr. K. Radhakrishnan and the learned senior counsel for the appellant Mr. Bagaria, we are of the view that the authorities cited by Mr. K. Radhakrishnan would not help the respondent as they do not apply to the facts of the present case. Let us first take up the decision of this court in the case of Commissioner of C.Ex., Calcutta Vs. Emkay Investments (P) Ltd. [2004(174) E.L.T. 298 (S.C.)] on which Mr. K. Radhakrishnan has placed strong reliance. In our view, this case is of no help to the respondent as the same is distinguishable on facts. In this case, unlike our case:Merino was registered brand name of Merinoply & Chemicals;b) Merinoply & Chemicals was a large scale manufacturer of the same goods;c) Merinoply & Chemicals never disputed that the brand namedoes not belong to them;d) The intention to indicate, if not connection, atleast the fact that the quality was similar to a particular type of plywood wasis true that in so far as the first point of difference in clause a) is concerned, registration of the brand name is not a pre-requisite for the application of paragraph 7 read with Explanation 8 of the notification. Nevertheless, the purpose behind bringing the same to light is only to suggest that in that case, the other company had a proprietary right over the brand name by virtue of the registration whereas in the present case, the Marketing Company is totally denying any association with the brand name, much less any proprietary right by virtue of the registration.The learned senior counsel for the respondent Mr. Radhakrishnan has also placed reliance on the decision of this court in Commissioner of Central Excise, Trichy Vs. Grasim Industries Ltd. [2005 (183) E.L.T. 123 (S.C.)]. That case too is distinguishable on facts in as much as the intention to indicate a connection was present in that case, unlike the case in hand. Another decision relied upon by the learned senior counsel for the respondent in Commissioner of Central Excise, Chandigarh-I Vs. Mahaan Dairies [2004(166) E.L.T. 23 (S.C.)] is also, in our view, distinguishable on facts. In that decision, it was an admitted position that a name was being used, which was the registered trade mark of another company. This fact was not disputed. Thus the court held, with which we are in full agreement, that the mere use of additional words in addition to the name of another person would not by itself enable the party to claim the benefit of the Notification. We have already stated that in that decision, admittedly, a registered name of another person was used on the product of the respondent of that case. That decision, therefore, would not apply to the facts and circumstances of the present case.17. Before we close, we may also consider a short submission of the learned senior counsel for the respondent. According to the learned senior counsel for the respondent Mr. K. Radhakrishnan, the question as to whether the brand name of the Marketing Company was used by the appellant on the corrugated boxes in which the goods were kept and supplied is a question of fact and this court, therefore, is not entitled to interfere with such a finding of fact. In our view, the Tribunal as also the Commissioner, while coming to the conclusions as arrived by them, failed to consider the admissions and the material evidence on record and thereby came to a finding which, on the face of it, was not tenable on facts. Under these circumstances, it is open to this court to interfere with such a finding of fact and accordingly, this argument of the learned senior counsel for the respondent is not acceptable.18. For the reasons aforesaid, we are not in agreement with the views expressed by the CEGAT and the Commissioner of Central Excise and accordingly, we answer the question posed by us, as noted herein earlier, by holding that the benefit of exemption under the notification in question would be available to the appellant.

### 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: mark even though there is no person who claims ownership to that mark or name. The names being used in the manufacture of locks by these small scale units do not belong to any particular manufacturer and any unit is free to use any name. Therefore, in our view, even without the issue of Notification of 4th 11th May, 1994 units which are using trade name or brand name, which does not belong to any person, were eligible for exemption under the said notification because of explanation IX in the said notification. Admittedly, the notification, dated 4th / 11th May, 1994 is clarificatory in nature and the purpose could have been achieved by issuing a clarification to the field formations.” From a bare reading of this opinion of the Law Ministry and in view of the discussions made hereinabove and relying on the decisions of this court, as noted hereinabove, it is, clear that if a brand name was not owned by any particular person, the use thereof shall not deprive a unit of the benefit of the small scale exemption scheme. Such being the position, we are of the view that the printing of the hexagonal design on the goods of the appellant, where such hexagonal design is not owned by the Marketing Company, would not disentitle the appellant from the benefit of the exemption under the notification.16. Before parting with this judgment, we may deal with the submissions made on behalf of the learned senior counsel for the respondent Mr. K. Radhakrishnan. The learned senior counsel for the respondent Mr. K. Radhakrishnan contended that the appellant was using the mark of the Marketing Company with the purpose of indicating a connection between the goods manufactured and cleared by the appellant and the Marketing Company. The learned senior counsel for the respondent Mr. K. Radhakrishnan cited various cases in support of this contention. Having heard the learned senior counsel for the respondent Mr. K. Radhakrishnan and the learned senior counsel for the appellant Mr. Bagaria, we are of the view that the authorities cited by Mr. K. Radhakrishnan would not help the respondent as they do not apply to the facts of the present case. Let us first take up the decision of this court in the case of Commissioner of C.Ex., Calcutta Vs. Emkay Investments (P) Ltd. [2004(174) E.L.T. 298 (S.C.)] on which Mr. K. Radhakrishnan has placed strong reliance. In our view, this case is of no help to the respondent as the same is distinguishable on facts. In this case, unlike our case: - a) Merino was registered brand name of Merinoply & Chemicals;b) Merinoply & Chemicals was a large scale manufacturer of the same goods;c) Merinoply & Chemicals never disputed that the brand name ‘Merino’ does not belong to them;d) The intention to indicate, if not connection, atleast the fact that the quality was similar to a particular type of plywood was there. It is true that in so far as the first point of difference in clause a) is concerned, registration of the brand name is not a pre-requisite for the application of paragraph 7 read with Explanation 8 of the notification. Nevertheless, the purpose behind bringing the same to light is only to suggest that in that case, the other company had a proprietary right over the brand name by virtue of the registration whereas in the present case, the Marketing Company is totally denying any association with the brand name, much less any proprietary right by virtue of the registration.The learned senior counsel for the respondent Mr. Radhakrishnan has also placed reliance on the decision of this court in Commissioner of Central Excise, Trichy Vs. Grasim Industries Ltd. [2005 (183) E.L.T. 123 (S.C.)]. That case too is distinguishable on facts in as much as the intention to indicate a connection was present in that case, unlike the case in hand. Another decision relied upon by the learned senior counsel for the respondent in Commissioner of Central Excise, Chandigarh-I Vs. Mahaan Dairies [2004(166) E.L.T. 23 (S.C.)] is also, in our view, distinguishable on facts. In that decision, it was an admitted position that a name was being used, which was the registered trade mark of another company. This fact was not disputed. Thus the court held, with which we are in full agreement, that the mere use of additional words in addition to the name of another person would not by itself enable the party to claim the benefit of the Notification. We have already stated that in that decision, admittedly, a registered name of another person was used on the product of the respondent of that case. That decision, therefore, would not apply to the facts and circumstances of the present case.17. Before we close, we may also consider a short submission of the learned senior counsel for the respondent. According to the learned senior counsel for the respondent Mr. K. Radhakrishnan, the question as to whether the brand name of the Marketing Company was used by the appellant on the corrugated boxes in which the goods were kept and supplied is a question of fact and this court, therefore, is not entitled to interfere with such a finding of fact. In our view, the Tribunal as also the Commissioner, while coming to the conclusions as arrived by them, failed to consider the admissions and the material evidence on record and thereby came to a finding which, on the face of it, was not tenable on facts. Under these circumstances, it is open to this court to interfere with such a finding of fact and accordingly, this argument of the learned senior counsel for the respondent is not acceptable.18. For the reasons aforesaid, we are not in agreement with the views expressed by the CEGAT and the Commissioner of Central Excise and accordingly, we answer the question posed by us, as noted herein earlier, by holding that the benefit of exemption under the notification in question would be available to the appellant. ### Response: 1

Workman of Pan American World Airways, K. Ramachandran Vs. Management of Messrs Pan American World Airways and Another

RANGANATH MISRA, J. Special leave granted 2. Appellant was in employment of the respondent having been recruited on September 1. 1964 and served the employer in various capacities from time to time and was promoted as Unit Manager, Reservation and Ticket Office, from December 1, 1980. Appellant was a member of the Pan American World Airways Employees Association which was formed in 1965 and came to hold various positions in that union from 1971. When the appellant was promoted as Unit Manager, the management objected to his continuation as a member of the union. He had been given the option by the management of revering back to his former post in case he wanted his union association to continue or to continue in the higher post and keep away from the union. Dispute started over his issue and ultimately the appellant was thrown out of employment in terms of letter dated August 30, 1982 which read thus In view of the attitude you have adopted in the last several months, it is not in interest of the company to retain you in service any more, accordingly it has been decided under Section 206 Clauses IV(B) of the Personnel Guide - India for Management/Supervisory and Confidential Staff to separate you from service on payment of one months salary in lieu of notice. A bank draft in amount of Rs. 7722 covering such salary in lieu of notice is enclosed herewith. Please note, therefore, that your services would stand separated immediately on service of this letter to you 3. At the instance of the union, the, matter was referred for adjudication as an industrial dispute. The maintainability thereof was disputed by the employer and the Labour Court found against the appellant. This appeal by special leave is directed against that order 4. The points raised in this appeal have been debated before us for quite some time. In the facts of the case, we are of the view that justice would be adequately done to the appellant if he is given the liberty to exercise the option indicated to him at an earlier stage, namely, of going back to the post he held prior to December 1, 1980. The management had agreed at that stage that after he reverted back to that post he could continue his association with the union

1[ds]4. The points raised in this appeal have been debated before us for quite some time. In the facts of the case, we are of the view that justice would be adequately done to the appellant if he is given the liberty to exercise the option indicated to him at an earlier stage, namely, of going back to the post he held prior to December 1, 1980. The management had agreed at that stage that after he reverted back to that post he could continue his association with the union

### 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: RANGANATH MISRA, J. Special leave granted 2. Appellant was in employment of the respondent having been recruited on September 1. 1964 and served the employer in various capacities from time to time and was promoted as Unit Manager, Reservation and Ticket Office, from December 1, 1980. Appellant was a member of the Pan American World Airways Employees Association which was formed in 1965 and came to hold various positions in that union from 1971. When the appellant was promoted as Unit Manager, the management objected to his continuation as a member of the union. He had been given the option by the management of revering back to his former post in case he wanted his union association to continue or to continue in the higher post and keep away from the union. Dispute started over his issue and ultimately the appellant was thrown out of employment in terms of letter dated August 30, 1982 which read thus In view of the attitude you have adopted in the last several months, it is not in interest of the company to retain you in service any more, accordingly it has been decided under Section 206 Clauses IV(B) of the Personnel Guide - India for Management/Supervisory and Confidential Staff to separate you from service on payment of one months salary in lieu of notice. A bank draft in amount of Rs. 7722 covering such salary in lieu of notice is enclosed herewith. Please note, therefore, that your services would stand separated immediately on service of this letter to you 3. At the instance of the union, the, matter was referred for adjudication as an industrial dispute. The maintainability thereof was disputed by the employer and the Labour Court found against the appellant. This appeal by special leave is directed against that order 4. The points raised in this appeal have been debated before us for quite some time. In the facts of the case, we are of the view that justice would be adequately done to the appellant if he is given the liberty to exercise the option indicated to him at an earlier stage, namely, of going back to the post he held prior to December 1, 1980. The management had agreed at that stage that after he reverted back to that post he could continue his association with the union ### Response: 1

SANDEEP KUMAR AND OTHERS Vs. STATE OF UTTARAKHAND AND ANOTHER

statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes. 59. Even if we were to follow the said principles the statement attributed to the deceased that she had told the doctors (DW2 and DW4) about her having suffered from TB is admissible for the fact of her having stated so even if it is not admissible for the truth of the statement. That apart, the action of the Medical Practitioner in acting upon it, by way of prescribing medicines and ordering blood test and x-ray would appear to be relevant and admissible. The appellants in their questioning under Section 313 CrPC, set up the case of TB. We need not probe the matter further including the aspect as to whether the matter may be relevant under Section 32 of the Evidence Act. 60. We may also draw support from the decision of this Court, relied upon by the appellant in Chhotan Sao vs. State of Bihar (supra) and reported in (2014) 4 SCC 54 . This was a case in fact where except for the cause of death all other facts necessary to prove the offence under Section 304B of the IPC stood proved. This Court, however, proceeded to hold as follows: 12 . No doubt the prosecution has adduced sufficient evidence to establish all other facts necessary to prove the offence under Section 304-B IPC except the cause of death. As seen from the trial court judgment there are no injuries on the body of the deceased. Even according to the first information report the death was caused due to poisoning which the deceased was compelled to consume. In such circumstances, the non-examination of the doctor who conducted the post-mortem coupled with the failure to produce the forensic laboratory report regarding the examination of viscera of the deceased leaves a gaping hole in the case of the prosecution regarding the nature of the death of Babita Devi. 13. The learned counsel for the State placed reliance on the decision of this Court in Bhupendra vs. State of M.P. [(2014) 2 SCC 106 : (2014) 1 SCC (Cri) 1 : (2013) 13 Scale 552 ], to which one of us, Ranjana Prakash Desai, J. , was a party. In the said case, no doubt this Court held that the production of chemical examination report is not mandatory. The Court held as follows: (SCC p. 112, para 23). 23. These decisions clearly bring out that a chemical examination of the viscera is not mandatory in every case of a dowry death; even when a viscera report is sought for, its absence is not necessarily fatal to the case of the prosecution when an unnatural death punishable under Section 304-B IPC or under Section 306 IPC takes place; in a case of an unnatural death inviting Section 304-B IPC (read with the presumption under Section 113-B of the Evidence Act, 1872) or Section 306 IPC (read with the presumption under Section 113-A of the Evidence Act, 1872) as long as there is evidence of poisoning, identification of the poison may not be absolutely necessary- On the facts of that case, this Court reached to the conclusion that there was sufficient evidence on record to come to the conclusion that the death was due to poisoning. 61. We are of the view that second respondent should not be permitted to draw support from the statement in the Affidavit of the second appellant accompanying the Bail Application of his wife to the effect that the deceased herself took poison. Quite clearly, this is not evidence in the trial, as such. 62. As already noticed, in this case, apart from the fact that prosecution has not been able to establish that the cause of death was unnatural, the case setup about the demand of Rs. 10 lakhs by accused appears to be riddled with irreconcilable contradictions. Neither the post-mortem nor the Forensic Lab Report shows any poisoning. No poison has been recovered at all from the house of the appellants. There are no marks of injury at all on the deceased. Even the material (wiper) recovered, according to prosecution, and which allegedly was used to clean vomit of the deceased, did not disclose any poison. The statement of Medical Practitioner (DW2) that the deceased was having weight of 39 kilograms and weight below normal as on 11.05.2010 cannot be ignored. Equally, the evidence of DW4 that the Doctor has prescribed medicine for Anaemia because the deceased had told about Tuberculosis earlier also, cannot be ignored. Evidence as to advice to the deceased in 2007 to undergo blood test and the x-ray, to confirm whether TB has totally cured or not and that the patient did not bring any x-ray or blood report, cannot be overlooked. Section 113B of Evidence Act may not apply in this case for the reason that in order that Section 113Bapplies, there must be evidence that soon before the death of the person, which proves that the person, who is alleged to have caused death, treated the deceased with cruelty or harassed her or in connection with a demand of dowry. We have noticed the state of the evidence in this regard. We are also of the view that there was no justification at all for the High Court, in the facts of this case, to have overturned acquittal by the Trial Court.

1[ds]34. Though, since long, the law declaring the narrowing of appellate courts jurisdiction in regard to scope of interference with a verdict of acquittal, is settled, we may only refer to one decision. In Ghurey Lal vs. State of Uttar Pradesh, (2008) 10 SCC 450 after an exhaustive review of case law, this Court laid down, as follows:69. The following principles emerge from the cases above:1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial courts conclusion with respect to both facts and law.2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial courts acquittal bolsters the presumption that he is innocent.3. Due or proper weight and consideration must be given to the trial courts decision. This is especially true when a witness credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial courts acquittal:1. The appellate court may only overrule or otherwise disturb the trial courts acquittal if it has very substantial and compelling reasons for doing so.A number of instances arise in which the appellate court would have very substantial and compelling reasons to discard the trial courts decision. Very substantial and compelling reasons exist when:(i) The trial courts conclusion with regard to the facts is palpably wrong;(ii) The trial courts decision was based on an erroneous view of law;(iii) The trial courts judgment is likely to result in grave miscarriage of justice;(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;(v) The trial courts judgment was manifestly unjust and unreasonable;(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.(vii) This list is intended to be illustrative, not exhaustive.2. The appellate court must always give proper weight and consideration to the findings of the trial court.3. If two reasonable views can be reached-one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused.35. It is well to remember that while the search of the truth and adjudicatory function of the judiciary are not strange bedfellows, these self-imposed limitations on the pursuit are based on the nature of jurisdiction. Every deviation from such limits could indeed result in grave injustice requiring correction to prevent miscarriage of justice. Excess of jurisdiction can have very serious repercussions, particularly when, what is involved is, personal liberty, which is inevitably at stake in a criminal trial.36. We have set out the findings of the Trial Court. The charge is one under Section 304B. The ingredients of the offence are well-settled. A marriage performed within seven years before the death of the wife. The death must be unnatural. Soon before the death, the deceased wife must have been at the receiving end of cruelty or harassment, on account of demand for dowry. It is described as dowry death. The relatives concerned, including husband, become liable. Section 113B of the Evidence Act comes to the rescue of the prosecutor by providing for a presumption that a person has caused dowry death if, it is shown that soon before her death, she was subjected by such person for cruelty or harassment for or in connection with demand for dowry.37. In this case, as regards the demand for Rs.10 lakhs by the first appellant, there are three striking features. PW1, the complainant and the father of the deceased, deposes that about one month before the death, the deceased and the first appellant came to him at Mawana and first appellant sought Rs.10 lakhs from him and that they will return the money. He being moved by the tears in his daughters eyes, pawned his late wifes jewellery, raised one lakh and gave to the appellant and his daughter. However, PW2, his son, deposed that it was four months before the death that the deceased and the first appellant came to their house at Mawana, asked for Rs.10 lakhs. He sets up the version that he raised one lakh by pawning his wifes ornaments. Thus, the versions of PW1 and PW2 both as regards time of demand and the manner of raising Rupees One lakh, appear to be clearly contradictory. What is more significant is the further contradiction introduced by PW3 who is the brother-in-law of PW1. He deposes that two months from the incident, he had gone to the home of PW1, who informed him that the in-laws of the deceased are demanding Rs.10 lakhs for the construction of the house for the purpose of rent. PW1 showed his inability.38. What follows next is the last nail in the coffin of the prosecution version, which completely falsifies what both PW1 and PW2 has deposed. PW3 states that PW1, after pawning ornaments of his sons wife, paid Rs. 1 lakh to the first appellant. The learned Sessions Judge entered findings noting these contradictory versions. He also finds that if the father-in-law is approached for a sum of money after the marriage, on the basis that it will be returned back, it may not amount to a dowry demand.39. It is to be noted that PW1 has admitted that there was no demand for dowry before or at the time of marriage. The marriage took place on 10.12.2009. The death was on 23.01.2011. Though PW1, PW3, PW4 and PW6 have spoken about harassment on account of dowry, the learned Sessions Judge did not find material reliable. It is to be noted that the version about the demand for Rs.10 lakhs is found wholly unacceptable. The Trial Court has the advantage of watching the demeanor of the witnesses.40. The 1.0s- PW10 and PW11, have not made any enquiry from the neighbours of the appellants. The deceased was attending the B.Ed course as seen from the evidence of DW3. No complaint, whatsoever was given by PW1 to PW3 to any authority. We do not see any material except the testimony of PW1 to PW3 and PW6, which did not, at any rate, inspire the confidence of the Trial Court. It does not also commend itself to us either.41. PW6, aunt of the deceased also has given evidence in support of the prosecution. The forensic report is dated 28.3.2014. It states that metallic poisons, Ethyl Alcohol, Methyl Alcohol, cyanide, phosphides, Alkaloids, Barbiyurates, Tranquilizers and Pesticides were not detected in the exhibits.42. The incident took place on 23.01.2011. PW1 deposed that on the said date the Police had taken in their custody the Santro car before PW1 because in the car the dead body of the deceased was kept. Next, he says that the first appellant was present.43. Next the appellant would point out the statement of PW 11, the second investigating officer. He deposed in answer to the question in cross examination as to the oral evidence of which witness was available regarding unnatural death, that at the time of death all the accused were with her. Therefore, it was not possible to record the oral evidence of the appellants.44. Further the evidence of PW9, police officer, is to the effect that on 24.1.2011 he arrested the appellants from their house at L-84, Shivalik at 6.45 pm.45. No case is thus made out for drawing any inference against the appellants.46. PW1 has deposed that the Police had already reached the spot before him. Appellants have a case that they had informed the police. No doubt, the respondent No. 2 has sought to rely upon an entry in the general diary suggesting that PW1 had called from his mobile number that his daughter informed that in-laws have killed her by giving poison and he is reaching at her home and he may also be provided help. In fact, this is a document which is produced by the second respondent before this Court in the petition to produce additional documents. It is not marked as such. But when PW9 is examined, he refers to the carbon copy of the Report No. 28. However, he says he was not present at the Police Station at the time of Report. We do not see anything turning on it at any rate to advance the prosecution version.50. In this case, there is no evidence at all that the deceased died of poisoning. Secondly, there is no evidence to show that the appellants had poison in their possession. Thus, even proceeding on the basis that being the wife and daughter-in-law who was living with them that the appellants may have had the opportunity to administer poison, the other two tests are not satisfied. The police did not recover any poison from the appellants or their house. As already noticed the FSL report categorically rules out the presence of any poison. As regards the appellants not being found with any poison, we no doubt notice the view taken by a Bench of two learned judges and reported in Bhupinder Singh vs. State of Punjab, (1988) 3 SCC 513 . The same reads as under:24. From the foregoing cases, it will be seen that in poison murder cases, the accused was not acquitted solely on the failure of the prosecution to establish one or the other requirement which this Court has laid down in Dharambir Singh case [Criminal Appeal No. 98 of 1958, decided on 4-11-1958 (SC)] . We do not also find any case where the accused was acquitted solely on the ground that the prosecution has failed to prove that the accused had the poison in his possession. The accused in all the said cases came to be acquitted by taking into consideration the totality of the circumstances including insufficient motive, weakness in the chain of circumstantial evidence and likelihood of the deceased committing suicide.25. We do not consider that there should be acquittal or the failure of the prosecution to prove the possession of poison with the accused. Murder by poison is invariably committed under the cover and cloak of secrecy. Nobody will administer poison to another in the presence of others. The person who administers poison to another in secrecy will not keep a portion of it for the investigating officer to come and collect it. The person who commits such murder would naturally take care to eliminate and destroy the evidence against him. In such cases, it would be impossible for the prosecution to prove possession of poison with the accused. The prosecution may, however, establish other circumstances consistent only with the hypothesis of the guilt of the accused. The court then would not be justified in acquitting the accused on the ground that the prosecution has failed to prove possession of the poison with the accused.26. The poison murder cases are not to be put outside the rule of circumstantial evidence. There may be obvious very many facts and circumstances out of which the court may be justified in drawing permissible inference that the accused was in possession of the poison in question. There may be very many facts and circumstances proved against the accused which may call for tacit assumption of the factum of possession of poison with the accused. The insistence on proof of possession of poison with the accused invariably in every case is neither desirable nor practicable. It would mean to introduce an extraneous ingredient to the offence of murder by poisoning. We cannot, therefore, accept the contention urged by the learned counsel for the appellant. The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murders. Murder by poisoning is run like any other murder. In cases where dependence is wholly on circumstantial evidence, and direct evidence not being available, the court can legitimately draw from the circumstances an inference on any matter one way or the other.52. This court also explained the view taken in Anant Chintaman Lagu vs. State of Bombay, AIR 1960 SC 116. Again, in Shanmughan vs. State of Kerala, AIR 2012 SC 1142 the decision in AIR Bhupinder Singh v. State of Punjab (supra) came to be noticed. It was a case where death by poisoning was not in dispute. The only dispute was whether it was homicidal or suicidal. The court took note of the injuries which were found on the deceased. The victim had died of cyanide poison which is a highly corrosive poison. The evidence of PW7 in the said case was that the injuries could be due to forcible administration of the poison. The accused was specifically questioned about the injuries for which he had no answer. It was in these circumstances that the court after referring to paragraph-25 of Bhupinder Singh v. State of Punjab (supra) found that it was a case of poisoning. As far as the facts of the present case is concerned, we have noticed that there is absolutely no evidence relating to poison in relation to the deceased. Were it a case of forcible poisoning, by using a corrosive poison, there would been some marks. There are none. If it were forcible poisoning by using any kind of poison, there would be struggle and resistance from the victim. In this regard, PW1 is to be believed on 23.01.2011 at 9:30, he received a phone call from his daughter who, asked him to reach Haridwar, otherwise these people will kill her. Also, in the charge-sheet the prosecution proposed to prove its case based apart from the oral evidence the material recovered from the spot containing the vomiting of the deceased, which was cleaned by the accused. However, as noticed by the Learned Sessions Judge, the prosecution was unable to prove the presence of poison in the cleaning material referred to as the wiper.53. We find ourselves unable to subscribe to paragraph-42 in the impugned judgment that the chain is complete from the time of the telephone call received by PW1 from his daughter till the recovery of the body in the Santro car. We are unable to appreciate the circumstances as unfolded on the morning of 23.1.2011 which allegedly started from the phone call of the daughter of PW1 as thereafter the only other circumstance, is the recovery of the body in the rear seat of the Santro car. The existence of any circumstances, as would fulfil the requirement, as laid down by this court in paragraph-5 9 in Anant Chintaman Lagu v. State of Bombay (supra) , are not present. In paragraph-34 of the impugned judgment, the High Court refers to the FIR to notice that it is a case of poisoning. It further refers to the evidence of PW5-Medical Doctor that he admitted that on opening the body, the internal organs were congested, which could be due to poisoning. In this regard it may be noticed that PW5 has stated that he was not definite about the cause of death. He has further stated that on account of food poisoning the organs may be congested. Even more importantly, the doctor has opined that the death could have taken place due to Tuberculosis as in the case of Tuberculosis, the internal organs can be congested. The High Court has not referred to this part of the evidence, namely, that the congestion of internal organ could be due to Tuberculosis. Still further, there is a case for the appellants that food poisoning is to be distinguished from administering of poison and what the doctor has referred to is food poisoning. The High Court finds that merely because poison is not found, it cannot be said that deceased was not administered poison.54. At this juncture, though if in a given case, there is clinching evidence which establishes poisoning, it may be true that absence of poison in the viscera may not be decisive. That is not the position in the facts of this case. It is true that the division bench of the High Court also refers to Modis Medical Jurisprudence and Toxicology wherein the author has stated as follows:It is possible that a person may die from the effects of a poison and yet, none may be found in the body after death if the whole of the poison has disappeared from the lungs by evaporation, or has been removed from the stomach and intestines by vomiting and purging, and after absorption has been detoxified, conjugated and eliminated from the system by the kidneys and other channels. Certain vegetable poisons may not be detected in the viscera, as they have no reliable tests, while some organic poisons, especially the alkaloids and glucosides, may be oxidation during life or by putrefaction after death, be split up into other substances which have no characteristic reactions sufficient for their identification.Modi saw cases in which there were definite signs of death from poisoning, although the Chemical Examiner failed to detect the poison in the viscera preserved for chemical analysis. It has, therefore, been wisely held by Christison that in cases where a poison has not been detected on chemical analysis, the judge, in deciding a charge of poisoning, should weigh in evidence the symptoms, postmortem appearances and the moral evidence.55. There are no symptoms, which point to poisoning. Nothing in the post mortem appearance is brought out to show poisoning. The evidence of witnesses do not establish poisoning.56. It is to be noticed that there is no evidence in this case which could have persuaded the High Court to conclude that there were compelling reasons to interfere with the acquittal by the High Court. The appreciation of the evidence of the witnesses by the trial court unless it is found to be a case of misreading of the evidence or are based on an erroneous understanding of the law, could not have been interfered with. When the High Court records that there is ample evidence on record that the accused were demanding dowry from the deceased, it is done without noticing the features in regard to the demand for Rs.10 lakhs. As far as the other evidence is concerned, the evidence has not been accepted by the trial court as inspiring confidence. At best it could be said that there were two views possible. Even if that were so, it did not furnish a ground to the High Court to overturn the judgment of the trial court containing the findings which we have referred to. We do not think that this is a case where the finding of the trial case could be characterised as perverse.57. There is a contention raised by the second respondent that no reliance can be placed on the deposition of DW2 and DW4 that the deceased told these doctors that she was suffering from Tuberculosis as it was hearsay.58. No such contention is raised before the trial court or before the High Court. Therefore, we need not really deal with it. However, we may only notice the view taken by the Privy Council in Subramanian vs. Public Prosecutor, 1956 (1) WLR 965. In the said decision the appellant was tried for being in possession of ammunition illegally. His defence was that he had been captured by terrorists and he was put in duress. Evidence of the conversation by the terrorists was shut out by the court on the basis that it constituted hearsay. The Privy Council did not approve of the said view. It laid down as follows:In ruling out peremptorily the evidence of conversation between the terrorists and the appellant the trial judge was in error. Evidence of a statement made to a witness by a person who is not himself called as a witness may or may no be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes.59. Even if we were to follow the said principles the statement attributed to the deceased that she had told the doctors (DW2 and DW4) about her having suffered from TB is admissible for the fact of her having stated so even if it is not admissible for the truth of the statement. That apart, the action of the Medical Practitioner in acting upon it, by way of prescribing medicines and ordering blood test and x-ray would appear to be relevant and admissible. The appellants in their questioning under Section 313 CrPC, set up the case of TB. We need not probe the matter further including the aspect as to whether the matter may be relevant under Section 32 of the Evidence Act.60. We may also draw support from the decision of this Court, relied upon by the appellant in Chhotan Sao vs. State of Bihar (supra) and reported in (2014) 4 SCC 54 . This was a case in fact where except for the cause of death all other facts necessary to prove the offence under Section 304B of the IPC stood proved. This Court, however, proceeded to hold as follows:12 . No doubt the prosecution has adduced sufficient evidence to establish all other facts necessary to prove the offence under Section 304-B IPC except the cause of death. As seen from the trial court judgment there are no injuries on the body of the deceased. Even according to the first information report the death was caused due to poisoning which the deceased was compelled to consume. In such circumstances, the non-examination of the doctor who conducted the post-mortem coupled with the failure to produce the forensic laboratory report regarding the examination of viscera of the deceased leaves a gaping hole in the case of the prosecution regarding the nature of the death of Babita Devi.13. The learned counsel for the State placed reliance on the decision of this Court in Bhupendra vs. State of M.P. [(2014) 2 SCC 106 : (2014) 1 SCC (Cri) 1 : (2013) 13 Scale 552 ], to which one of us, Ranjana Prakash Desai, J. , was a party. In the said case, no doubt this Court held that the production of chemical examination report is not mandatory. The Court held as follows: (SCC p. 112, para 23).23. These decisions clearly bring out that a chemical examination of the viscera is not mandatory in every case of a dowry death; even when a viscera report is sought for, its absence is not necessarily fatal to the case of the prosecution when an unnatural death punishable under Section 304-B IPC or under Section 306 IPC takes place; in a case of an unnatural death inviting Section 304-B IPC (read with the presumption under Section 113-B of the Evidence Act, 1872) or Section 306 IPC (read with the presumption under Section 113-A of the Evidence Act, 1872) as long as there is evidence of poisoning, identification of the poison may not be absolutely necessary-On the facts of that case, this Court reached to the conclusion that there was sufficient evidence on record to come to the conclusion that the death was due to poisoning.61. We are of the view that second respondent should not be permitted to draw support from the statement in the Affidavit of the second appellant accompanying the Bail Application of his wife to the effect that the deceased herself took poison. Quite clearly, this is not evidence in the trial, as such.62. As already noticed, in this case, apart from the fact that prosecution has not been able to establish that the cause of death was unnatural, the case setup about the demand of Rs. 10 lakhs by accused appears to be riddled with irreconcilable contradictions. Neither the post-mortem nor the Forensic Lab Report shows any poisoning. No poison has been recovered at all from the house of the appellants. There are no marks of injury at all on the deceased. Even the material (wiper) recovered, according to prosecution, and which allegedly was used to clean vomit of the deceased, did not disclose any poison. The statement of Medical Practitioner (DW2) that the deceased was having weight of 39 kilograms and weight below normal as on 11.05.2010 cannot be ignored. Equally, the evidence of DW4 that the Doctor has prescribed medicine for Anaemia because the deceased had told about Tuberculosis earlier also, cannot be ignored. Evidence as to advice to the deceased in 2007 to undergo blood test and the x-ray, to confirm whether TB has totally cured or not and that the patient did not bring any x-ray or blood report, cannot be overlooked. Section 113B of Evidence Act may not apply in this case for the reason that in order that Section 113Bapplies, there must be evidence that soon before the death of the person, which proves that the person, who is alleged to have caused death, treated the deceased with cruelty or harassed her or in connection with a demand of dowry. We have noticed the state of the evidence in this regard. We are also of the view that there was no justification at all for the High Court, in the facts of this case, to have overturned acquittal by the Trial 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: statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes. 59. Even if we were to follow the said principles the statement attributed to the deceased that she had told the doctors (DW2 and DW4) about her having suffered from TB is admissible for the fact of her having stated so even if it is not admissible for the truth of the statement. That apart, the action of the Medical Practitioner in acting upon it, by way of prescribing medicines and ordering blood test and x-ray would appear to be relevant and admissible. The appellants in their questioning under Section 313 CrPC, set up the case of TB. We need not probe the matter further including the aspect as to whether the matter may be relevant under Section 32 of the Evidence Act. 60. We may also draw support from the decision of this Court, relied upon by the appellant in Chhotan Sao vs. State of Bihar (supra) and reported in (2014) 4 SCC 54 . This was a case in fact where except for the cause of death all other facts necessary to prove the offence under Section 304B of the IPC stood proved. This Court, however, proceeded to hold as follows: 12 . No doubt the prosecution has adduced sufficient evidence to establish all other facts necessary to prove the offence under Section 304-B IPC except the cause of death. As seen from the trial court judgment there are no injuries on the body of the deceased. Even according to the first information report the death was caused due to poisoning which the deceased was compelled to consume. In such circumstances, the non-examination of the doctor who conducted the post-mortem coupled with the failure to produce the forensic laboratory report regarding the examination of viscera of the deceased leaves a gaping hole in the case of the prosecution regarding the nature of the death of Babita Devi. 13. The learned counsel for the State placed reliance on the decision of this Court in Bhupendra vs. State of M.P. [(2014) 2 SCC 106 : (2014) 1 SCC (Cri) 1 : (2013) 13 Scale 552 ], to which one of us, Ranjana Prakash Desai, J. , was a party. In the said case, no doubt this Court held that the production of chemical examination report is not mandatory. The Court held as follows: (SCC p. 112, para 23). 23. These decisions clearly bring out that a chemical examination of the viscera is not mandatory in every case of a dowry death; even when a viscera report is sought for, its absence is not necessarily fatal to the case of the prosecution when an unnatural death punishable under Section 304-B IPC or under Section 306 IPC takes place; in a case of an unnatural death inviting Section 304-B IPC (read with the presumption under Section 113-B of the Evidence Act, 1872) or Section 306 IPC (read with the presumption under Section 113-A of the Evidence Act, 1872) as long as there is evidence of poisoning, identification of the poison may not be absolutely necessary- On the facts of that case, this Court reached to the conclusion that there was sufficient evidence on record to come to the conclusion that the death was due to poisoning. 61. We are of the view that second respondent should not be permitted to draw support from the statement in the Affidavit of the second appellant accompanying the Bail Application of his wife to the effect that the deceased herself took poison. Quite clearly, this is not evidence in the trial, as such. 62. As already noticed, in this case, apart from the fact that prosecution has not been able to establish that the cause of death was unnatural, the case setup about the demand of Rs. 10 lakhs by accused appears to be riddled with irreconcilable contradictions. Neither the post-mortem nor the Forensic Lab Report shows any poisoning. No poison has been recovered at all from the house of the appellants. There are no marks of injury at all on the deceased. Even the material (wiper) recovered, according to prosecution, and which allegedly was used to clean vomit of the deceased, did not disclose any poison. The statement of Medical Practitioner (DW2) that the deceased was having weight of 39 kilograms and weight below normal as on 11.05.2010 cannot be ignored. Equally, the evidence of DW4 that the Doctor has prescribed medicine for Anaemia because the deceased had told about Tuberculosis earlier also, cannot be ignored. Evidence as to advice to the deceased in 2007 to undergo blood test and the x-ray, to confirm whether TB has totally cured or not and that the patient did not bring any x-ray or blood report, cannot be overlooked. Section 113B of Evidence Act may not apply in this case for the reason that in order that Section 113Bapplies, there must be evidence that soon before the death of the person, which proves that the person, who is alleged to have caused death, treated the deceased with cruelty or harassed her or in connection with a demand of dowry. We have noticed the state of the evidence in this regard. We are also of the view that there was no justification at all for the High Court, in the facts of this case, to have overturned acquittal by the Trial Court. ### Response: 1

RAVINDRA SINGH Vs. DISTRICT INSPECTOR OF SCHOOLS

is established, it may take long time to make available the required teacher in the institution and as such issued three Removal of Difficulties Orders namely Removal of Difficulties Order dated 11-9-1981, Removal of Difficulties Order dated 30-1-1982 and Removal of Difficulties Order dated 14-4-1982. In fact these Removal of Difficulties Orders were issued to remove the difficulties coming in the way of a Management in running the institution in absence of teachers. This power to appoint ad hoc teachers by direct recruitment thus, is available only when pre-conditions mentioned in Section 18 of the Act are satisfied, secondly the vacancy is substantive vacancy and thirdly, the vacancy could not be filled by promotion. . . . . . . . . . . . . . . . . . . . . . . Thus, if contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided under the First Removal of Difficulties Order has to be followed. Paragraph 5 of the First Removal of Difficulties Order provides that the management shall, as soon as may be, inform the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite application from the local employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. . . . . . . . . . . . . . . . . . . . . . . 41.In view of these provisions the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order. However, it goes without saying that if a management without following the procedure indicated above makes an ad hoc appointment the District Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teachers. . . . . . . . . . . . . . . . . . . . . . . 11. The above analysis would suggest that the Management has very limited scope to make appointment to the substantive vacancy in their Institution. Adverting to the ratio in Radha Raizada, the Division Bench observed in the present impugned order that the Management of the Institution failed to adhere to the procedure under paragraph 5 of the First Removal of Difficulties Order, in appointing the appellant, against a substantive vacancy. On this basis, the High Court declined to interfere with the salary disapproval decision of the District Inspector of Schools, Kanpur Nagar. 12. Section 18 of the Act of 1982, lays down the process for direct appointment of ad hoc teachers but before the Management takes any step to fill up vacancy, the conditions laid therein must be peremptorily satisfied. The Management is required to firstly notify the vacancy to the Commission and in turn, the Selection Commission is expected to recommend a suitable candidate within one year of such notification. Secondly, the post should have remained vacant for more than 2 months. Only if these two conditions are satisfied, the Management can take short term measures. Further stipulations to this process are provided in paragraphs 4 and 5 of the First Removal of Difficulties Order. As can be seen, only when the vacancy cannot be filled by promotion under paragraph 4, the paragraph 5 permits ad hoc appointment by direct recruitment. Besides, recourse to direct appointment is visualized only in accordance under sub-clauses 2 to 5 of paragraph 5. It is also important to bear in mind that when ad hoc appointments are made under paragraph 2 of the First Removal of Difficulties Order, the duration of such ad hoc appointment automatically expires after six months, under paragraph 3(b) of the Order. 13. Proceeding with the above understanding of the norms the question to be decided now is whether the High Court was correct in its view that the Management of the Institution, did not adhere to the procedure prescribed under the First Removal of Difficulties Order to make appointment against a substantive vacancy. The paragraph 2 of the Removal of Difficulties Order, was substituted by the 2 nd Removal of the Difficulties Order, which enabled the Management to make appointment against substantive vacancy either by promotion or by direct recruitment. In the present matter, it was not the District Inspector of Schools but the Management, which resolved to appoint the appellant. But as earlier discussed, this is contrary to the prescribed process in paragraph 5(4) of the First Removal of Difficulties Order. The learned Single Judge in the High Court specifically noted that there was no adherence to the procedure prescribed under paragraph 5 of the First Removal of Difficulties Order. There was concurrence of views of the learned Single Judge and the Division Bench to the effect that the State authorities rightly denied financial approval to the illegal appointment of the appellant. 14. When the impugned judgment is analysed in light of the applicable norms, there is no escape from the conclusion that the appellants appointment by the Management, was not in accordance with paragraph 5 of the Removal of Difficulties Order. We are also of the view that the ratio in Radha Raizada (supra) of the Allahabad High Court (approved by the Supreme Court in Prabhat Kumar Sharma (supra)) was correctly applied to the present facts. The State coffer should not according to us, be burdened with salary obligation for an appointment, not made by them. The decision repudiating the salary claim for the appellant is also found to be in order since the Management failed to adhere to the due process in filling up the substantive vacancy. Moreover, the State had imposed a ban on appointment during the relevant period. Therefore, the appellant cannot enforce a claim for salary against the State.

0[ds]11. The above analysis would suggest that the Management has very limited scope to make appointment to the substantive vacancy in their Institution. Adverting to the ratio in Radha Raizada, the Division Bench observed in the present impugned order that the Management of the Institution failed to adhere to the procedure under paragraph 5 of the First Removal of Difficulties Order, in appointing the appellant, against a substantive vacancy. On this basis, the High Court declined to interfere with the salary disapproval decision of the District Inspector of Schools, Kanpur Nagar12. Section 18 of the Act of 1982, lays down the process for direct appointment of ad hoc teachers but before the Management takes any step to fill up vacancy, the conditions laid therein must be peremptorily satisfied. The Management is required to firstly notify the vacancy to the Commission and in turn, the Selection Commission is expected to recommend a suitable candidate within one year of such notification. Secondly, the post should have remained vacant for more than 2 months. Only if these two conditions are satisfied, the Management can take short term measures. Further stipulations to this process are provided in paragraphs 4 and 5 of the First Removal of Difficulties Order. As can be seen, only when the vacancy cannot be filled by promotion under paragraph 4, the paragraph 5 permits ad hoc appointment by direct recruitment. Besides, recourse to direct appointment is visualized only in accordance under sub-clauses 2 to 5 of paragraph 5. It is also important to bear in mind that when ad hoc appointments are made under paragraph 2 of the First Removal of Difficulties Order, the duration of such ad hoc appointment automatically expires after six months, under paragraph 3(b) of the OrderThe paragraph 2 of the Removal of Difficulties Order, was substituted by the 2 nd Removal of the Difficulties Order, which enabled the Management to make appointment against substantive vacancy either by promotion or by direct recruitment. In the present matter, it was not the District Inspector of Schools but the Management, which resolved to appoint the appellant. But as earlier discussed, this is contrary to the prescribed process in paragraph 5(4) of the First Removal of Difficulties Order. The learned Single Judge in the High Court specifically noted that there was no adherence to the procedure prescribed under paragraph 5 of the First Removal of Difficulties Order. There was concurrence of views of the learned Single Judge and the Division Bench to the effect that the State authorities rightly denied financial approval to the illegal appointment of the appellant14. When the impugned judgment is analysed in light of the applicable norms, there is no escape from the conclusion that the appellants appointment by the Management, was not in accordance with paragraph 5 of the Removal of Difficulties Order. We are also of the view that the ratio in Radha Raizada (supra) of the Allahabad High Court (approved by the Supreme Court in Prabhat Kumar Sharma (supra)) was correctly applied to the present facts. The State coffer should not according to us, be burdened with salary obligation for an appointment, not made by them. The decision repudiating the salary claim for the appellant is also found to be in order since the Management failed to adhere to the due process in filling up the substantive vacancy. Moreover, the State had imposed a ban on appointment during the relevant period. Therefore, the appellant cannot enforce a claim for salary against the State.

### 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: is established, it may take long time to make available the required teacher in the institution and as such issued three Removal of Difficulties Orders namely Removal of Difficulties Order dated 11-9-1981, Removal of Difficulties Order dated 30-1-1982 and Removal of Difficulties Order dated 14-4-1982. In fact these Removal of Difficulties Orders were issued to remove the difficulties coming in the way of a Management in running the institution in absence of teachers. This power to appoint ad hoc teachers by direct recruitment thus, is available only when pre-conditions mentioned in Section 18 of the Act are satisfied, secondly the vacancy is substantive vacancy and thirdly, the vacancy could not be filled by promotion. . . . . . . . . . . . . . . . . . . . . . . Thus, if contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided under the First Removal of Difficulties Order has to be followed. Paragraph 5 of the First Removal of Difficulties Order provides that the management shall, as soon as may be, inform the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite application from the local employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. . . . . . . . . . . . . . . . . . . . . . . 41.In view of these provisions the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order. However, it goes without saying that if a management without following the procedure indicated above makes an ad hoc appointment the District Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teachers. . . . . . . . . . . . . . . . . . . . . . . 11. The above analysis would suggest that the Management has very limited scope to make appointment to the substantive vacancy in their Institution. Adverting to the ratio in Radha Raizada, the Division Bench observed in the present impugned order that the Management of the Institution failed to adhere to the procedure under paragraph 5 of the First Removal of Difficulties Order, in appointing the appellant, against a substantive vacancy. On this basis, the High Court declined to interfere with the salary disapproval decision of the District Inspector of Schools, Kanpur Nagar. 12. Section 18 of the Act of 1982, lays down the process for direct appointment of ad hoc teachers but before the Management takes any step to fill up vacancy, the conditions laid therein must be peremptorily satisfied. The Management is required to firstly notify the vacancy to the Commission and in turn, the Selection Commission is expected to recommend a suitable candidate within one year of such notification. Secondly, the post should have remained vacant for more than 2 months. Only if these two conditions are satisfied, the Management can take short term measures. Further stipulations to this process are provided in paragraphs 4 and 5 of the First Removal of Difficulties Order. As can be seen, only when the vacancy cannot be filled by promotion under paragraph 4, the paragraph 5 permits ad hoc appointment by direct recruitment. Besides, recourse to direct appointment is visualized only in accordance under sub-clauses 2 to 5 of paragraph 5. It is also important to bear in mind that when ad hoc appointments are made under paragraph 2 of the First Removal of Difficulties Order, the duration of such ad hoc appointment automatically expires after six months, under paragraph 3(b) of the Order. 13. Proceeding with the above understanding of the norms the question to be decided now is whether the High Court was correct in its view that the Management of the Institution, did not adhere to the procedure prescribed under the First Removal of Difficulties Order to make appointment against a substantive vacancy. The paragraph 2 of the Removal of Difficulties Order, was substituted by the 2 nd Removal of the Difficulties Order, which enabled the Management to make appointment against substantive vacancy either by promotion or by direct recruitment. In the present matter, it was not the District Inspector of Schools but the Management, which resolved to appoint the appellant. But as earlier discussed, this is contrary to the prescribed process in paragraph 5(4) of the First Removal of Difficulties Order. The learned Single Judge in the High Court specifically noted that there was no adherence to the procedure prescribed under paragraph 5 of the First Removal of Difficulties Order. There was concurrence of views of the learned Single Judge and the Division Bench to the effect that the State authorities rightly denied financial approval to the illegal appointment of the appellant. 14. When the impugned judgment is analysed in light of the applicable norms, there is no escape from the conclusion that the appellants appointment by the Management, was not in accordance with paragraph 5 of the Removal of Difficulties Order. We are also of the view that the ratio in Radha Raizada (supra) of the Allahabad High Court (approved by the Supreme Court in Prabhat Kumar Sharma (supra)) was correctly applied to the present facts. The State coffer should not according to us, be burdened with salary obligation for an appointment, not made by them. The decision repudiating the salary claim for the appellant is also found to be in order since the Management failed to adhere to the due process in filling up the substantive vacancy. Moreover, the State had imposed a ban on appointment during the relevant period. Therefore, the appellant cannot enforce a claim for salary against the State. ### Response: 0

Saraswati Industrial Syndicate Limited Vs. Commissioner of Income Tax, Haryana Himachal Pradesh and Delhi III

that section 41 did not apply because the assessee sought to be taxed was not the assessee as contemplated by section 41(1), as the husband of the assessee had died ; therefore, the Revenue could not take advantage of the provisions of section 41(1) of the ActThe question is whether, on the amalgamation of the Indian Sugar Company with the appellant-company, the Indian Sugar Company continued to have its identity and was alive for the purposes of section 41(1) of the Act. The amalgamation of the two companies was effected under the order of the High Court in proceedings under section 391 read with section 394 of the Companies Act. The Saraswati Industrial Syndicate, the transferee-company, was a subsidiary of the Indian Sugar Company, namely, the transferor-company. Under the scheme of amalgamation, the Indian Sugar Company stood dissolved on October 29, 1962, and it ceased to be in existence thereafter, though the scheme provided that the transferee-company, the Saraswati Industrial Syndicate Ltd., undertook to meet any liability of the Indian Sugar Company which that company incurred or it could incur, before the dissolution or not (sic) thereafter. 4. Generally, where only one company is involved in a change and the rights of the shareholders and creditors are varied, it amounts to reconstruction or reorganisation or scheme of arrangement. In an amalgamation, two or more companies are fused into one by merger or by one over the other. Reconstruction or amalgamation has no precise legal meaning. Amalgamation is a blending of two or more existing undertakings into one undertaking, the shareholders of each blending company become substantially the shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly, "amalgamation" does not cover the mere acquisition by a company of the share capital of the other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See Halsburys Laws of England, 4th Edition, Volume 7, para 1539. Two companies may join to form new company, but there may be absorption or blending of one by the other and both amount to amalgamation. When two companies are merged and are so joined as to form a third company or one is absorbed into the other or blended with another, the amalgamating company loses its entityIn General Radio and Appliances Co. Ltd. v. M. A. Khader 1986 (60) CC 1013, the effect of amalgamation of two companies was considered. General Radio and Appliances Co. Ltd. was the tenant of a premises under an agreement providing that the tenant shall not sub-let the premises or any portion thereof to any one without the consent of the landlord. General Radio and Appliances Co. Ltd. was amalgamated with National Ekco Radio and Engineering Co. Ltd. under a scheme of amalgamation and order of the High Court under sections 391 and 394 of Companies Act, 1956. Under the amalgamation scheme, the transferee-company, namely, National Ekco Radio and Engineering Company, had acquired all the interest, rights including leasehold and tenancy rights of the transferor-company, and the same vested in the transferee-company. Pursuant to the amalgamation scheme, the transferee-company continued to occupy the premises which had been let out to the transferor-company. The landlord initiated proceedings for eviction on the ground of unauthorised sub-letting of the premises by the transferor-company. The transferee-company set up a defence that, by amalgamation of the two companies under the order of the Bombay High Court, all interests, rights including leasehold and tenancy rights held by the transferor-company, blended with the transferee-company and, therefore, the transferee-company was a legal tenant and there was no question of any sub-letting. The Rent Controller and the High Court both decreed the landlords suit. This court, in appeal, held that under the order of amalgamation made on the basis of the High Courts order, the transferor-company ceased to be in existence in the eye of law and it effaced itself for all practical purposes. This decision lays down that, after the amalgamation of the two companies, the transferor-company ceased to have any identity and the amalgamated company acquired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets. In the instant case, the Tribunal rightly held that the appellant-company was a separate entity and a different assessee and, therefore, the allowance made to Indian Sugar Company which was a different assessee could not be held to be the income of the amalgamated company for purposes of section 41(1) of the Act. The High Court was in error in holding that, even after amalgamation of the two companies, the transferor-company did not become non-existent but instead it continued its entity in a blended form with the appellant-company. The High Courts view that, on amalgamation, there is no complete destruction of the corporate personality of the transferor-company but instead there is a blending of the corporate personality of one with another corporate body and it continues as such with the other is not sustainable in law. The true effect and character of the amalgamation largely depends on the terms of the scheme of merger. But there cannot be any doubt that, when two companies amalgamate and merge into one, the transferor-company loses its entity as it ceases to have its business. However, their respective rights and liabilities are determined under the scheme of amalgamation but the corporate entity of the transferor-company ceases to exist with effect from the date the amalgamation is made effectiveIn view of the above discussion, we agree with the Tribunals view that the amalgamating company ceased to exist in the eye of law and therefore, the appellant was not liable to pay tax on the amount of Rs. 58, 735.

1[ds]Generally, where only one company is involved in a change and the rights of the shareholders and creditors are varied, it amounts to reconstruction or reorganisation or scheme of arrangement. In an amalgamation, two or more companies are fused into one by merger or by one over the other. Reconstruction or amalgamation has no precise legal meaning. Amalgamation is a blending of two or more existing undertakings into one undertaking, the shareholders of each blending company become substantially the shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly, "amalgamation" does not cover the mere acquisition by a company of the share capital of the other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See Halsburys Laws of England, 4th Edition, Volume 7, para 1539. Two companies may join to form new company, but there may be absorption or blending of one by the other and both amount to amalgamation. When two companies are merged and are so joined as to form a third company or one is absorbed into the other or blended with another, the amalgamating company loses its entityIn General Radio and Appliances Co. Ltd. v. M. A. Khader 1986 (60) CC 1013, the effect of amalgamation of two companies was considered. General Radio and Appliances Co. Ltd. was the tenant of a premises under an agreement providing that the tenant shall not sub-let the premises or any portion thereof to any one without the consent of the landlord. General Radio and Appliances Co. Ltd. was amalgamated with National Ekco Radio and Engineering Co. Ltd. under a scheme of amalgamation and order of the High Court under sections 391 and 394 of Companies Act, 1956. Under the amalgamation scheme, the transferee-company, namely, National Ekco Radio and Engineering Company, had acquired all the interest, rights including leasehold and tenancy rights of the transferor-company, and the same vested in the transferee-company. Pursuant to the amalgamation scheme, the transferee-company continued to occupy the premises which had been let out to the transferor-company. The landlord initiated proceedings for eviction on the ground of unauthorised sub-letting of the premises by the transferor-company. The transferee-company set up a defence that, by amalgamation of the two companies under the order of the Bombay High Court, all interests, rights including leasehold and tenancy rights held by the transferor-company, blended with the transferee-company and, therefore, the transferee-company was a legal tenant and there was no question of any sub-letting. The Rent Controller and the High Court both decreed the landlords suit. This court, in appeal, held that under the order of amalgamation made on the basis of the High Courts order, the transferor-company ceased to be in existence in the eye of law and it effaced itself for all practical purposes. This decision lays down that, after the amalgamation of the two companies, the transferor-company ceased to have any identity and the amalgamated company acquired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets. In the instant case, the Tribunal rightly held that the appellant-company was a separate entity and a different assessee and, therefore, the allowance made to Indian Sugar Company which was a different assessee could not be held to be the income of the amalgamated company for purposes of section 41(1) of the Act. The High Court was in error in holding that, even after amalgamation of the two companies, the transferor-company did not become non-existent but instead it continued its entity in a blended form with the appellant-company. The High Courts view that, on amalgamation, there is no complete destruction of the corporate personality of the transferor-company but instead there is a blending of the corporate personality of one with another corporate body and it continues as such with the other is not sustainable in law. The true effect and character of the amalgamation largely depends on the terms of the scheme of merger. But there cannot be any doubt that, when two companies amalgamate and merge into one, the transferor-company loses its entity as it ceases to have its business. However, their respective rights and liabilities are determined under the scheme of amalgamation but the corporate entity of the transferor-company ceases to exist with effect from the date the amalgamation is made effectiveIn view of the above discussion, we agree with the Tribunals view that the amalgamating company ceased to exist in the eye of law and therefore, the appellant was not liable to pay tax on the amount of Rs. 58, 735.

### 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: that section 41 did not apply because the assessee sought to be taxed was not the assessee as contemplated by section 41(1), as the husband of the assessee had died ; therefore, the Revenue could not take advantage of the provisions of section 41(1) of the ActThe question is whether, on the amalgamation of the Indian Sugar Company with the appellant-company, the Indian Sugar Company continued to have its identity and was alive for the purposes of section 41(1) of the Act. The amalgamation of the two companies was effected under the order of the High Court in proceedings under section 391 read with section 394 of the Companies Act. The Saraswati Industrial Syndicate, the transferee-company, was a subsidiary of the Indian Sugar Company, namely, the transferor-company. Under the scheme of amalgamation, the Indian Sugar Company stood dissolved on October 29, 1962, and it ceased to be in existence thereafter, though the scheme provided that the transferee-company, the Saraswati Industrial Syndicate Ltd., undertook to meet any liability of the Indian Sugar Company which that company incurred or it could incur, before the dissolution or not (sic) thereafter. 4. Generally, where only one company is involved in a change and the rights of the shareholders and creditors are varied, it amounts to reconstruction or reorganisation or scheme of arrangement. In an amalgamation, two or more companies are fused into one by merger or by one over the other. Reconstruction or amalgamation has no precise legal meaning. Amalgamation is a blending of two or more existing undertakings into one undertaking, the shareholders of each blending company become substantially the shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly, "amalgamation" does not cover the mere acquisition by a company of the share capital of the other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See Halsburys Laws of England, 4th Edition, Volume 7, para 1539. Two companies may join to form new company, but there may be absorption or blending of one by the other and both amount to amalgamation. When two companies are merged and are so joined as to form a third company or one is absorbed into the other or blended with another, the amalgamating company loses its entityIn General Radio and Appliances Co. Ltd. v. M. A. Khader 1986 (60) CC 1013, the effect of amalgamation of two companies was considered. General Radio and Appliances Co. Ltd. was the tenant of a premises under an agreement providing that the tenant shall not sub-let the premises or any portion thereof to any one without the consent of the landlord. General Radio and Appliances Co. Ltd. was amalgamated with National Ekco Radio and Engineering Co. Ltd. under a scheme of amalgamation and order of the High Court under sections 391 and 394 of Companies Act, 1956. Under the amalgamation scheme, the transferee-company, namely, National Ekco Radio and Engineering Company, had acquired all the interest, rights including leasehold and tenancy rights of the transferor-company, and the same vested in the transferee-company. Pursuant to the amalgamation scheme, the transferee-company continued to occupy the premises which had been let out to the transferor-company. The landlord initiated proceedings for eviction on the ground of unauthorised sub-letting of the premises by the transferor-company. The transferee-company set up a defence that, by amalgamation of the two companies under the order of the Bombay High Court, all interests, rights including leasehold and tenancy rights held by the transferor-company, blended with the transferee-company and, therefore, the transferee-company was a legal tenant and there was no question of any sub-letting. The Rent Controller and the High Court both decreed the landlords suit. This court, in appeal, held that under the order of amalgamation made on the basis of the High Courts order, the transferor-company ceased to be in existence in the eye of law and it effaced itself for all practical purposes. This decision lays down that, after the amalgamation of the two companies, the transferor-company ceased to have any identity and the amalgamated company acquired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets. In the instant case, the Tribunal rightly held that the appellant-company was a separate entity and a different assessee and, therefore, the allowance made to Indian Sugar Company which was a different assessee could not be held to be the income of the amalgamated company for purposes of section 41(1) of the Act. The High Court was in error in holding that, even after amalgamation of the two companies, the transferor-company did not become non-existent but instead it continued its entity in a blended form with the appellant-company. The High Courts view that, on amalgamation, there is no complete destruction of the corporate personality of the transferor-company but instead there is a blending of the corporate personality of one with another corporate body and it continues as such with the other is not sustainable in law. The true effect and character of the amalgamation largely depends on the terms of the scheme of merger. But there cannot be any doubt that, when two companies amalgamate and merge into one, the transferor-company loses its entity as it ceases to have its business. However, their respective rights and liabilities are determined under the scheme of amalgamation but the corporate entity of the transferor-company ceases to exist with effect from the date the amalgamation is made effectiveIn view of the above discussion, we agree with the Tribunals view that the amalgamating company ceased to exist in the eye of law and therefore, the appellant was not liable to pay tax on the amount of Rs. 58, 735. ### Response: 1

D. D. Suri Vs. A. K. Barren & Ors

1966 he was appointed Commissioner Land Reforms.3. Learned counsel for the appellant has placed before us a chronology of events subsequent to December l966. Inter alia, it has been stated that in April 1967 the appellant wrote to the State Government complaining about interference in his work by Ramanathan, Member of the Board of Revenue Orissa. In the middle of 1967 the appellant was asked to make a report on the Transport Department. In his report he brought out certain matters against Ramanathan In August 1967 the Chief Secretary put up a notice to the Chief Minister to constitute a committee to review the work of the appellant. One of the members of that Committee was Ramanathan. In September 1967 the appellant made two representations against the personnel of the committee, in particular, with regard to the appointment of Ramanathan as a member of that Committee.4. In para 3 of the petition it was alleged that the appellant was subjected to a series of illegal and capricious acts committed by opposite parties particularly A. K. Barren, Chief Secretary to the Government of Orissa and S. K. Ghosh, Director of Vigilance in that State. These orders, according to the appellant. were actuated by "deepest malice and manifest mala fides". In para 4 it was alleged that on November 27, 1967 the appellants residence was surrounded by a force of about 50 police personnel and his house was searched for two days by K C. Patnaik, Deputy Superintendent of Police on the basis of the warrant of search purported to have been issued by D. P. Sharma, Additional District Magistrate for an alleged offence under Section 5 (2) of the Prevention of Corruption Act read with Section 5 (1) (d) (e) and Section 3 (a) of that Act. In para 5 It was alleged that on November 28, 1967 while the search was being conducted the appellant was served with an order of A. K Barren, Chief Secretary, suspending the appellant under Rule 7 (3) of the All India Services (Discipline and Appeal) Rules 1955 with effect from the date of the service of the order. During the period of suspension the appellant was not allowed to leave Cuttack except with the prior permission of the Chief Secretary. In Para 6 of the petition it was stated that although the order purported to have been issued under the abovementioned Rule which contemplated suspension pending disciplinary proceedings there were no proceedings which were in fact pending and therefore the order was altogether illegal. In the writ petition in other paragraphs it was alleged that on December 7, 1967 the Additional District Magistrate, Sambalpur, issued a search warrant on the application of Patnaik D. S. P. for the search of the locker which had been leased out by the appellant and his wife jointly in the Delhi Safe Deposit Janpath New Delhi. During the search of the appellants residence at Cuttack as well as the locker at Delhi the personal jewellery of the appellants wife was even seized and such articles and papers as had no connection whatsoever with the subjects matter of the allegations were taken into possession. In pare 28 quite a serious allegation was made against Ghosh, the Director of Vigilance. It was said that he had with the connivance of A K Barren posted a number of policemen in plain clothes to watch the appellants movements and he was subjected to a lot of harassment and humiliation. Even the letters sent by the appellant for posting were snatched from his servant and his in-coming mail was tampered with.5. It is unnecessary to set out the other facts alleged but we may extract the following portion from pare 30 of the petition (Annexure 2) of the appellant:"The petitioner submits that all the illegal orders relating to investigation by the Vigilance Police, searches of the petitioners residence at Cuttack and his Locker at New Delhi his suspension, the restraint on his movement, and the withdrawal of all facilities and entitlements of the petitioner were passed on or at the instance of opposite party No. 1 and with the active connivance and abetment of opposite party No. 2 both of whom have been maliciously hostile to the petitioner for a long time and have acted in collusion with the sole purpose of subjecting him to incalculable harm, harassment and mental torture for satisfaction of personal grudge."6. We are wholly unable to understand how in the presence of all the allegations which had been made in the petition including those of male fides by a senior member of the Indian Administrative Service against other senior Officers and the State Government the High Court was justified in dismissing the petition in limine by just writing the word "dismissed". The High Court did not even call for affidavits in reply to the allegations contained in the petition This Court has repeatedly laid down (see Gianchand v. State of Haryana, Civil Appeal No. 64 of 1970, D/- 21-8-1970 (SC) following Ram Saran Dass v. State of Punjab, Civil Appeal No. 36 of 1963, D/-16-9-1963 (SC))that in such circumstances the High Court ought to call upon the respondents to make a return and then consider whether allegations have been proved or not. If it is found that the appellant has made reckless allegations which are not founded on facts it would be in the fitness of things to take suitable action against him. But if on the other hand it is founded that there is no reason why the High Court should not grant him the necessary relief if a proper case is made out for doing so. It is quite possible that in a given case the proper course for a writ petitioner should be to seek relief by way of a suit if there are several disputed questions of fact but all these matters can be decided only if the petition is admitted and it is heard after the return has been filed by the respondents.

1[ds]6. We are wholly unable to understand how in the presence of all the allegations which had been made in the petition including those of male fides by a senior member of the Indian Administrative Service against other senior Officers and the State Government the High Court was justified in dismissing the petition in limine by just writing the word "dismissed". The High Court did not even call for affidavits in reply to the allegations contained in the petition This Court has repeatedly laid down (see Gianchand v. State of Haryana, Civil Appeal No. 64 of 1970, D/(SC) following Ram Saran Dass v. State of Punjab, Civil Appeal No. 36 of 1963,(SC))that in such circumstances the High Court ought to call upon the respondents to make a return and then consider whether allegations have been proved or not. If it is found that the appellant has made reckless allegations which are not founded on facts it would be in the fitness of things to take suitable action against him. But if on the other hand it is founded that there is no reason why the High Court should not grant him the necessary relief if a proper case is made out for doing so. It is quite possible that in a given case the proper course for a writ petitioner should be to seek relief by way of a suit if there are several disputed questions of fact but all these matters can be decided only if the petition is admitted and it is heard after the return has been filed by the respondents.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: 1966 he was appointed Commissioner Land Reforms.3. Learned counsel for the appellant has placed before us a chronology of events subsequent to December l966. Inter alia, it has been stated that in April 1967 the appellant wrote to the State Government complaining about interference in his work by Ramanathan, Member of the Board of Revenue Orissa. In the middle of 1967 the appellant was asked to make a report on the Transport Department. In his report he brought out certain matters against Ramanathan In August 1967 the Chief Secretary put up a notice to the Chief Minister to constitute a committee to review the work of the appellant. One of the members of that Committee was Ramanathan. In September 1967 the appellant made two representations against the personnel of the committee, in particular, with regard to the appointment of Ramanathan as a member of that Committee.4. In para 3 of the petition it was alleged that the appellant was subjected to a series of illegal and capricious acts committed by opposite parties particularly A. K. Barren, Chief Secretary to the Government of Orissa and S. K. Ghosh, Director of Vigilance in that State. These orders, according to the appellant. were actuated by "deepest malice and manifest mala fides". In para 4 it was alleged that on November 27, 1967 the appellants residence was surrounded by a force of about 50 police personnel and his house was searched for two days by K C. Patnaik, Deputy Superintendent of Police on the basis of the warrant of search purported to have been issued by D. P. Sharma, Additional District Magistrate for an alleged offence under Section 5 (2) of the Prevention of Corruption Act read with Section 5 (1) (d) (e) and Section 3 (a) of that Act. In para 5 It was alleged that on November 28, 1967 while the search was being conducted the appellant was served with an order of A. K Barren, Chief Secretary, suspending the appellant under Rule 7 (3) of the All India Services (Discipline and Appeal) Rules 1955 with effect from the date of the service of the order. During the period of suspension the appellant was not allowed to leave Cuttack except with the prior permission of the Chief Secretary. In Para 6 of the petition it was stated that although the order purported to have been issued under the abovementioned Rule which contemplated suspension pending disciplinary proceedings there were no proceedings which were in fact pending and therefore the order was altogether illegal. In the writ petition in other paragraphs it was alleged that on December 7, 1967 the Additional District Magistrate, Sambalpur, issued a search warrant on the application of Patnaik D. S. P. for the search of the locker which had been leased out by the appellant and his wife jointly in the Delhi Safe Deposit Janpath New Delhi. During the search of the appellants residence at Cuttack as well as the locker at Delhi the personal jewellery of the appellants wife was even seized and such articles and papers as had no connection whatsoever with the subjects matter of the allegations were taken into possession. In pare 28 quite a serious allegation was made against Ghosh, the Director of Vigilance. It was said that he had with the connivance of A K Barren posted a number of policemen in plain clothes to watch the appellants movements and he was subjected to a lot of harassment and humiliation. Even the letters sent by the appellant for posting were snatched from his servant and his in-coming mail was tampered with.5. It is unnecessary to set out the other facts alleged but we may extract the following portion from pare 30 of the petition (Annexure 2) of the appellant:"The petitioner submits that all the illegal orders relating to investigation by the Vigilance Police, searches of the petitioners residence at Cuttack and his Locker at New Delhi his suspension, the restraint on his movement, and the withdrawal of all facilities and entitlements of the petitioner were passed on or at the instance of opposite party No. 1 and with the active connivance and abetment of opposite party No. 2 both of whom have been maliciously hostile to the petitioner for a long time and have acted in collusion with the sole purpose of subjecting him to incalculable harm, harassment and mental torture for satisfaction of personal grudge."6. We are wholly unable to understand how in the presence of all the allegations which had been made in the petition including those of male fides by a senior member of the Indian Administrative Service against other senior Officers and the State Government the High Court was justified in dismissing the petition in limine by just writing the word "dismissed". The High Court did not even call for affidavits in reply to the allegations contained in the petition This Court has repeatedly laid down (see Gianchand v. State of Haryana, Civil Appeal No. 64 of 1970, D/- 21-8-1970 (SC) following Ram Saran Dass v. State of Punjab, Civil Appeal No. 36 of 1963, D/-16-9-1963 (SC))that in such circumstances the High Court ought to call upon the respondents to make a return and then consider whether allegations have been proved or not. If it is found that the appellant has made reckless allegations which are not founded on facts it would be in the fitness of things to take suitable action against him. But if on the other hand it is founded that there is no reason why the High Court should not grant him the necessary relief if a proper case is made out for doing so. It is quite possible that in a given case the proper course for a writ petitioner should be to seek relief by way of a suit if there are several disputed questions of fact but all these matters can be decided only if the petition is admitted and it is heard after the return has been filed by the respondents. ### Response: 1

VENIGALLA KOTESWARAMMA Vs. MALAMPATI SURYAMBA & ORS

year 1976 has no legs to stand and is required to be rejected. Then, borrowing of Rs. 19,000/- from DW-11 was suggested by way of a promissory note (Ex. B-18) written by defendant 15 himself. There being no corroborative documentary evidence, no probative value could be attached to this self-serving document of defendant 15. 54.1. The High Court has, in our view, erroneously discarded the aforesaid glaring weaknesses in the case of the defendants while observing that defendant 16 spoke about the method and manner of receiving money by her husband only by way of abundant caution and even if that part of her deposition is doubtful or improbable, the same would not make any difference. We are unable to agree. If this part of the statement of defendant 16 (DW-6) is found to be improbable, the suspicion surrounding the documents is magnified further and it is seriously questionable if at all any such document (sale agreement) was executed by Annapurnamma and if at all any payment was made by defendant 15 thereunder. 55. Yet another relevant aspect of the matter, duly taken into consideration and highlighted by the Trial Court is that if at all any such agreement was executed on 05.11.1976, there was no reason that the vendee did not get the sale document registered for a long length of time because Annapurnamma expired 1½ years later. The High Court has made a cursory observation that DW-6 gave an explanation in that regard and there was no serious challenge to what she stated. The High Court has not given the details of so-called explanation of DW-6. However, we have examined her statement placed on record. The explanation has been that they thought of getting a registered deed in the year 1977 but could not do so because they had sustained loss due to cyclone. She was indeed cross-examined on this aspect where she stated that they had not stipulated the time for registration and they thought of getting it registered when got money. Even this explanation has its problems when visualised in the context of other assertions that defendant 15 obtained Rs. 19,000/- in loan from DW-11; and that defendants 5 and 6 were inducted as lessees on the land in question. 55.1. DW-6 has suggested that her husband repaid the loan of Rs. 19,000/- taken from DW-11 and took back the pro note (Ex. B-18). The person allegedly advancing such loan (DW-11) has stated that the debt was discharged within four months by defendant 15 after selling sugar cane. The disputed agreement bears the date 05.11.1976. If loan was taken from DW-11 for the purpose of the deal in question and was repaid within four months; and if defendants 5 and 6 were inducted lessees and were making payment of lease amount, it is difficult to accept the statement of DW-6 that they thought of getting the deed registered in the year 1977 but could not do so for having suffered loss due to cyclone. It is very difficult to reconcile that though defendant 15 could arrange for repayment of the loan amount of Rs. 19,000/- within four months and had inducted lessees on the land in question, yet he could not arrange the remaining sale consideration of about Rs. 2,600/-, allegedly due to loss! Therefore, the explanation and the reasons for not getting the deed registered also turn out to be hollow and unacceptable. Equally, the story of induction of defendants 5 and 6 as lessees by defendant 15 and payment of lease amount by them becomes highly improbable. 55.2. This aspect, that there was no plausible reason for not obtaining registered sale deed, assumes importance when viewed in the light of the fact that Annapurnamma had otherwise been selling her property only by way of registered sale deeds. 56. It is moreover interesting to notice that the defendant 15 never sought specific performance of this agreement by showing his readiness and willingness to perform his part of contract. Significantly, even when the plaintiff-appellant had filed the suit for partition claiming rights in the property of Annapurnamma including the property that was subject of the alleged agreement; and even when he was joined as party to this suit, defendant 15 never took steps to seek specific performance from the heirs of Annapurnamma or from the alleged legatee of the Will. The same had been the position of his legal representatives, who too never claimed specific performance. 57. The factors noticed hereinabove jointly and severally operate against the genuineness of the agreement for sale Ex. B-10 and this document could only be rejected. 58. The High Court has observed that the Trial Court proceeded on consideration that the sale was made to a relative and the scribe and the attestor were also relatives. The High Court has also referred to another factor taken into account by the Trial Court that why at all defendant 15 would have thought of purchasing the land at a place far-off from his settled abode. In the assessment of the High Court, these factors were of no adverse effect and were rather of natural dealings. In our view, these factors cannot be seen and examined in isolation. Even if each of these factors, by itself, is not decisive of the matter, they cumulatively give rise to justified suspicions and when they are juxtaposed with the major factors highlighted hereinabove, the case of the defendants about existence of the agreement (Ex. B-10) is knocked to the ground. 59. Therefore, we are clearly of the view that the Trial Court had examined the matter in its correct perspective and had rightly come to the conclusion that this agreement for sale (Ex. B-10) was as invalid and untrustworthy as was the Will (Ex. B-9). The findings of Trial Court, based on proper analysis and sound reasoning, called for no interference. The High Court has been clearly in error in interfering with the findings of the Trial Court in relation to the agreement in question. Conclusion

1[ds]36. The submission on behalf of the contesting respondents, that mere suit for partition was not maintainable without seeking declaration against the agreement Ex. B-10, is not based on any statutory requirement or any case-law. Learned counsel for the contesting respondents has only referred to the decision in Rao Raja Kalyan Singh (supra) to submit that the legal question on maintainability of the suit could be raised for the first time before this Court, even though no specific issue was framed in that regard. We need not enter into the question as to whether such a plea could be raised for the first time in opposition of the appeal filed by the plaintiff-appellant because even otherwise, this plea remains entirely baseless and deserves to be rejected on merits.37. It remains trite that partition is really a process in and by which, a joint enjoyment is transformed into an enjoyment in severalty. (vide Controller of Estate Duty v. Kantilal Trikamlal: (1976) 4 SCC 643 ( paragraph 16). ) A partition of property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to partition.38. A reference to the relevant background makes it clear that in this suit for partition, separate possession and recovery of mesne profits, the plaintiff-appellant asserted that defendants 1 to 3 were the co-sharers and alleged that defendant 4 and other impleaded defendants were creating hinderance/obstructions in division of properties of Annapurnamma among the siblings. The principal allegations in the plaint were directed against defendant 4 with reference to his dealings with the properties of Annapurnamma; and his intermeddling with the affairs of plaintiff and her siblings by obtaining an agreement for mediation in favour of his own persons. In that sequence, it was also alleged that defendant 4 and his family persons obtained thumb impressions of Annapurnamma on papers, after her death. However, there had not been any reference to any agreement for sale nor there was any allegation of fabrication of any particular document. The plaintiff had not shown awareness about any agreement for sale executed by Annapurnamma or obtained from her by any person; and there was no reference to any agreement like Ex. B-10. As noticed, the plea regarding execution of the agreement for sale by Annapurnamma on 05.11.1976 and Will on 15.06.1978 came up only in the written statement filed by defendant 4. Examination of the record makes it clear that only after taking of such pleas by defendant 4 in his written statement that the legatee under the Will (Ex. B-9) and the vendee in the agreement (Ex. B-10) were added as defendants 14 and 15 respectively. Such pleas were refuted by the plaintiff by amendment of the plaint as also by way of further pleadings in rejoinder. The plaintiff denied the execution of Will and agreement by Annapurnamma and submitted that defendants 14 and 15 were having no right in the property and their claims were liable to be ignored. The plaintiff did not seek any relief of declaration, whether against the Will or against the agreement; and in our view, she was not required to seek any such declaration.38.1. As noticed, the pleas concerning Will and sale agreement were taken only by the defendant 4 in his written statement (and by such other defendants who adopted his written statement). Obviously, the onus of establishing such pleas was on the contesting defendants. If such pleas, or any of them, stood established, the necessary consequences would have followed and in other event, the plaintiff was to succeed. In any event, the documents of Will and sale agreement, as set up by the contesting defendants, were subject to proof by the persons setting them up. On her part and for the purpose of maintaining the suit for partition and other related reliefs, the plaintiff was entitled to ignore them and there was no necessity for the plaintiff to seek the relief of declaration against the agreement set up by the defendants.39. Apart from the above, it is also fundamental, as per Section 54 of the Transfer of Property Act, 1882, that an agreement for sale of immoveable property does not, of itself, create any interest in or charge on such property. (vide Bank of India v. Abhay D. Narottam and Ors.: (2005) 11 SCC 520.) A person having an agreement for sale in his favour does not get any right in the property, except the right of obtaining sale deed on that basis.39.1. It goes without saying that the alleged agreement for sale did not invest the vendee with title to, or any interest in, the property in question; and the alleged agreement for sale did not invest the vendee with any such right that the plaintiff could not have maintained her claim for partition in respect of the properties left by Annapurnamma without seeking declaration against the agreement. Therefore, this plea about non-maintainability of suit for want for relief of declaration against the said agreement for sale remains totally baseless and could only be rejected.Point No. 2Rule 1 of Order XXII of the Code declares that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. When read for the purpose of appeal, this provision means that the death of an appellant or respondent shall not cause the appeal to abate if the right to sue survives. Rule 2 of Order XXII of the Code ordains the procedure where one of the several plaintiffs or defendants dies and right to sue survives to the surviving plaintiff(s) alone, or against the surviving defendant(s) alone. The same procedure applies in appeal where one of the several appellants or respondents dies and right to sue survives to the surviving appellant(s) alone, or against the surviving respondent(s) alone. The procedure is that the Court is required to cause an entry to that effect to be made on record and the appeal is to proceed at the instance of the surviving appellant(s) or against the surviving respondent(s), as the case may be. However, by virtue of Rule 4 read with Rule 11 of Order XXII of the Code, in case of death of one of the several respondents, where right to sue does not survive against the surviving respondent or respondents as also in the case where the sole respondent dies and the right to sue survives, the contemplated procedure is that the legal representatives of the deceased respondent are to be substituted in his place; and if no application is made for such substitution within the time limited by law, the appeal abates as against the deceased respondent. Of course, the provisions have been made for dealing with the application for substitution filed belatedly but the same need not be elaborated in the present case because it remains an admitted fact that no application for substitution of legal representatives of defendant 2 (who was respondent 3 in AS No. 1887 of 1988) was made before the High Court.42. For determining if Rule 2 of Order XXII could apply, we have to examine if right to sue survived against the surviving respondents. It is not the case that no legal heirs were available for defendant 2. It is also not the case where the estate of the deceased defendant 2 passed on to the remaining parties by survivorship or otherwise. Therefore, applicability of Rule 2 of Order XXII CPC is clearly ruled out.42.1. Admittedly, steps were not taken for substitution of the legal representatives of defendant 2, who was respondent 3 in AS No. 1887 of 1988. Therefore, sub-rule (3) of Rule 4 of Order XXII of the Code directly came into operation and the said appeal filed by defendants 16 to 18 abated against defendant 2 (respondent 3 therein). We may profitably recapitulate at this juncture that in fact, the other appeal filed by defendants 4, 13 and 14 (AS No. 1433 of 1989) was specifically dismissed by the High Court as against the deceased defendant 2 on 25.04.2006.43. Once it is found that the appeal filed by defendants 16 to 18 abated as against defendant 2 (respondent 3), the question arises as to whether that appeal could have proceeded against the surviving respondents i.e., the plaintiff and defendants 1 and 3 (who were respondents 1, 2 and 4). For dealing with this question, we may usefully refer to the relevant principles, concerning the effect of abatement of appeal against one respondent in case of multiple respondents, as enunciated and explained by this Court.43.1. The relevant principles were stated and explained in-depth by this Court in the case of State of Punjab v. Nathu Ram: AIR 1962 SC 89 . In that case, the Punjab Government had acquired certain pieces of land belonging to two brothers jointly. Upon their refusal to accept the compensation offered, their joint claim was referred to arbitration and an award was passed in their favour that was challenged by the State Government in appeal before the High Court. During pendency of appeal, one of the brothers died but no application was filed within time to bring on record his legal representatives. The High Court dismissed the appeal while observing that it had abated against the deceased brother and consequently, abated against the surviving brother too. The order so passed by the High Court was questioned before this Court in appeal by certificate of fitness. While dismissing the appeal and affirming the views of High Court, this Court enunciated the principles concerning the effect of abatement and explained as to why, in case of joint and indivisible decree, the appeal against the surviving respondent(s) cannot be proceeded with and has to be dismissed as a result of its abatement against the deceased respondent; the basic reason being that in the absence of the legal representatives of deceased respondent, the appellate Court cannot determine between the appellant and the legal representatives anything which may affect the rights of the legal representatives. This Court pointed out that by abatement of appeal qua the deceased respondent, the decree between appellant and the deceased respondent becomes final and the appellate Court cannot, in any way modify that decree, directly or indirectly. The Court observed in that case, inter alia, as under:4. It is not disputed that in view of Order 22 Rule 4 Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram, deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co-respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say that when Order 22 Rule 4 does not provide for the abatement of the appeals against the co- respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal.5. The same conclusion is to be drawn from the provisions of Order 1 Rule 9 of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It follows, therefore, that if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.6. The question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court. The test to determine this has been described in diverse forms courts will not proceed with an appeal (a) when the success of the appeal may lead to the courts coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the courts passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.*** *** ***8. The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject-matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.43.2. In this discussion, it shall also be appropriate to take note of the Constitution Bench decision of this Court in the case of Sardar Amarjit Singh Kalra (dead) by LRs. and Ors. v. Pramod Gupta (Smt) (dead) by LRs. and Ors.: (2003) 3 SCC 272. The matter therein arose out of the proceedings under the Land Acquisition Act, 1894 where different proprietors had different claims concerning their respective land but joined together in appeals against the orders passed in reference proceedings. Some of the appellants expired and no steps were taken within time for bringing on record their respective legal representatives but at some later stage, applications were filed by the heirs of the deceased parties for bringing them on record as legal representatives. The applications for condonation of the delay in seeking to set aside the abatement were, however, rejected. The submission of remaining appellants that the appeals abated partially and qua the deceased appellants only was not accepted by the High Court. The said decision of the High Court was not approved by the Constitution Bench of this Court, essentially after finding that the award/decrees which were subject matter of challenge before the High Court were not joint or inseparable but in substance, a mere combination of several decrees depending upon the number of claimants and, therefore, joint and several or separable vis-à- vis the individuals or their claims. Although the appeals were restored for reconsideration of the High Court but, in the process, the Constitution Bench surveyed the relevant case-law including the aforesaid decision in Nathu Rams case and laid down the principles for dealing with such matters; and therein, also underscored the consideration about inconsistent decrees coming into operation in case of proceeding with the appeal even after its abatement qua one of the respondents. The enunciations of the Constitution Bench could be usefully noticed as follows:-34. In the light of the above discussion, we hold:(1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them.(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees.(3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one.(4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-à-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other.44. In the present case, it remains rather indisputable that the appeal in the High Court by defendants 16 to 18 (AS No. 1887 of 1988), abated against defendant 2 Malempati Radhakrishnamurthy (who was respondent 3 in appeal). When we apply the principles aforesaid to the present case, it is not far to seek that the said appeal by defendants 16 to 18, after having abated against defendant 2 Malempati Radhakrishnamurthy, could not have been proceeded against the surviving respondents i.e., the plaintiff and defendants 1 and 3. This is for the simple reason that the Trial Court had specifically returned the findings that the agreement Ex. B-10 was not valid and defendants 16 to 18 (appellants of AS 1887 of 1988) derived no rights thereunder. The Trial Court had also ordered that the defendants 13, 14 and 16 were liable for mesne profits in respect of the immoveable properties in their possession belonging to Annapurnamma till they deliver possession of those items to plaintiff and defendants 1 to 3. Such findings in relation to the invalidity of the agreement Ex. B-10 and consequential decree for partition, for delivery of possession and for recovery of mesne profits attained finality qua defendant 2 Malempati Radhakrishnamurthy; and his entitlement to one-fourth share in the suit properties (including the property covered by Ex. B-10) also became final when the appeal filed by defendants 16 to 18 abated qua him. If at all the appeal was proceeded with and the alleged agreement Ex. B-10 was upheld (which the High Court has indeed done), inconsistent decrees were bound to come in existence, and have in fact come in existence.44.1. As noticed, the High Court has proceeded to hold that Ex. B-10 agreement is valid and binding on plaintiff and defendants 1 to 3. This part of decree is in stark contrast, and is irreconcilable, with the decree in favour of defendant 2 which has attained finality that the said agreement Ex. B-10 is neither valid nor binding on defendant 2. The High Court has gone a step further to say that the plaintiff and defendants 1 to 3 were under obligation to execute sale deed in favour of defendants 16 to 18. Though making of such an observation in this suit, that heirs of Annapurnamma were under obligation to execute a sale deed in favour of defendant 16 to 18, remains seriously questionable in itself but, in any event, this observation could not have been made qua the deceased defendant 2.45. When the inconsistencies galore are writ large on the face of the record, the inescapable conclusion is that the appeal filed by defendants 16 to 18 could not have proceeded further after its abatement against defendant 2 (respondent 3).46. The submissions made by learned counsel for contesting respondents to save their appeal before the High Court have their own failings. Applicability of Order XXII Rule 2 CPC is clearly ruled out in this matter relating to the suit for partition where decree had already been passed in favour of the plaintiff as also defendants 1 to 3. The appeal by defendants 16 to 18 against such co-sharers of the property could not have proceeded in the absence of representation of the estate of one of the co-sharers.46.1. The other submission, that the question of maintainability of the suit, being primarily directed against the plaintiff, could save the appeal in the High Court, is bereft of any logic. We have already indicated that the question of maintainability is itself meritless. In any case, even this question could not have been raised in the absence of legal representatives of defendant 2 because such a question of maintainability of a suit for partition is directed not only against the plaintiff but also against the other co-sharers, particularly when they had filed the written submissions of admission and, for all practical purposes, were standing in the capacity of plaintiff seeking partition.46.2. Even the suggestion that the factum of death of defendant 2 was not stated before the High Court turns out to be rather incorrect because it is noticed that the other appeal filed by defendants 4, 13 and 14 (AS No. 1433 of 1989) was dismissed against the deceased-defendant 2 (who was respondent No. 3 therein) on 25.04.2006. Interestingly, defendants 16 to 18, appellant in AS No. 1887 of 1988, were on the record of AS No. 1433 of 1989 as respondents 5 to 7. Hence, it cannot be urged that defendants 16 to 18 were not aware about the demise of defendant 2 during pendency of their appeal in the High Court. In any case, such alleged want of knowledge of defendants 16 to 18 cannot save the operation of law whereby, their appeal stood abated against the deceased-respondent (defendant 2) and thereby, was rendered incompetent against the other respondents.47. So far as the present appeal is concerned, though it appears that the plaintiff-appellant, clearly under a wrong advice, made an application for substitution of the legal representatives of defendant 2 but indicated in the application that the said defendant had expired during the pendency of appeal in the High Court. The legal representatives of defendant 2 having not been brought on record in the High Court, there was no necessity for the appellant to seek such a substitution in the present appeal. Significant it is to notice that so far as the appeal of the plaintiff before us is concerned, the same could definitely proceed even in the absence of the legal representatives of defendant 2 because in case of success of this appeal, there is no likelihood of any inconsistent decree vis-à-vis defendant 2 coming into existence. The decree of the Trial Court had been in favour of the plaintiff and defendants 1 to 3 and the result of success of this appeal would only be of restoration of the decree of the Trial Court, which would be of no adverse effect on the estate of the deceased defendant 2.48. For the reasons foregoing, we are clearly of the view that this appeal deserves to be allowed only on this ground that the appeal of defendants 16 to 18 before the High Court (AS 1887 of 1998) was rendered incompetent after its abatement against defendant 2 (respondent 3) and was liable to be dismissed as such.Point No. 349. Though we could have closed the matter with determination of first two points but, in the interest of justice, we have also examined if High Court was justified in reversing the findings of Trial Court in respect of the alleged agreement Ex. B-10. Having examined the matter in its totality, in our view, the findings of the High Court in relation to the document Ex. B- 10 remain unsustainable and are required to be set aside. This is for the reasons indicated infra.50. A comprehension of the salient features of this case makes it clear, as observed hereinbefore, that the questions relating to the two documents, Ex. B-9 and Ex. B-10 were intrinsically intertwined, particularly when it was suggested by the contesting defendants that in the Will (Ex. B-9), apart from making bequest, Annapurnamma also directed her mother (legatee) to execute a registered sale deed in favour of defendant 15 after receiving the balance sale consideration from him as per the agreement executed in his favour; and that Annapurnamma also directed her mother to discharge the debts. The agreement mentioned in the Will was none other than Ex. B-10. This unmistakable inter-mixing of the two documents Ex. B-9 and Ex. B-10 had been the primary reason that the Trial Court examined the matters related with them together, while indicating that to give a colour of reality to the Will and to show that Annapurnamma was highly indebted to others which compelled her to sell the property, the suggestions were made about sale to the husband of Annapurnammas sister.51. It appears that the High Court has missed out this fundamental feature of the case that two documents, Will (Ex. B-9) and agreement for sale (Ex. B-10), as put forward by the contesting defendants cannot be analysed independent of each other, even if they were separate in terms of the alleged time of their execution by about 1½ years. As noticed, a submission was made before the High Court that when the Will (Ex. B-9) was found surrounded by suspicious circumstances, the agreement (Ex. B-10) must also be rejected as a necessary corollary. The High Court rejected this contention with reference to the fact that the agreement (Ex. B-10) was prior in time and was an independent document which could be enforced as such. The High Court also made a comment that the ground for invalidating the Will could not be pressed to invalidate the agreement.51.1. In our view, looking to the nature, purport and contents of these documents, time gap between the two is not of much relevance when examining the questions about their validity and genuineness; and in any case, the sale agreement (Ex. B-10) did not remain an independent or stand-alone document once it was found that this document was indeed mentioned in the disputed Will and the obligations thereunder were purportedly passed on to the legatee. Moreover, the Will also required the legatee to pay the debts of Annapurnamma. The defendants also suggested the indebtedness of Annapurnamma to be the reason for sale of the property in question.51.2. Putting all the things together, it is beyond cavil that indebtedness of Annapurnamma and her agreeing to sell the property to defendant 15 formed an integral part of the alleged Will. Therefore, the two documents could not have been segregated.51.3. As noticed, the Trial Court as also the High Court have recorded concurrent findings that the document of Will (Ex. B-9) was a highly suspicious document and the propounders have failed to remove the suspicious circumstances. We are not suggesting that all such considerations against the Will in question would ipso facto apply to the agreement Ex. B-10 but, while examining preponderance of probabilities about existence of such an agreement for sale, the overall relationship of the parties, the beneficiaries of the alleged agreement and their conduct cannot be kept at bay. It gets perforce reiterated, that the alleged agreement is intertwined with the rejected Will because of the specific contents of the latter. Obviously, therefore, the repercussions of findings against genuineness of the Will are bound to impact the agreement too. In this view of the matter, the consideration of the High Court appears to be suffering from the fundamental error of approach.52. The High Court has observed that the plaintiff has not taken specific pleadings regarding financial capacity of defendant 15 and about forgery of the documents. These observations carry their own shortcomings. We have noticed the pleadings of the plaintiff hereinbefore; and it cannot be doubted that after these documents were introduced by the contesting defendants, the plaintiff clearly averred that they were false and fabricated. In the given circumstances, the onus was heavy on defendants to establish the genuineness of these documents. While discharging such onus, the defendants attempted to suggest indebtedness of Annapurnamma to be the reason for her selling the land to defendant 15. The defendants also attempted to suggest the finances obtained and gathered by defendant 15 for this purchase, apart from suggesting that the land in question was given on lease by defendant 15. In the given circumstances, the relevant factors emanating from the evidence cannot be ignored with reference to the want of specific pleadings.53. As noticed, the Trial Court had returned clear findings that the suggestion about indebtedness of Annapurnamma was not supported by cogent evidence. The fact that the contesting defendants failed to establish indebtedness of Annapurnamma has its own bearing on the question relating to the agreement (Ex. B-10) because the same was allegedly executed due to the requirements and needs of Annapurnamma. The Trial Court, in that regard made a pertinent comment that if Annapurnamma was at all reeling under debts, nothing was shown as to who the creditors were and nothing was shown as to how the amount of Rs. 40,000/-, allegedly given by defendant 15 under the agreement (Ex. B-10), was utilised. If the story of indebtedness of Annapurnamma goes in doubt, the suspicions surround not only the Will (Ex. B-9) but agreement (Ex. B-10) too.54. The suggestions by the contesting defendants about the manner of raising money by defendant 15 for the purchase under the agreement (Ex. B-10) carry their own intriguing features and high level of improbabilities. It has been suggested by defendant 16 (deposing as DW-6) that her husband (defendant 15) purchased the land in question from her younger sister Annapurnamma for a consideration of Rs. 42,600/-; she was present at the time of execution of sale agreement; and a sum of Rs. 40,000/- was paid at the time of agreement and possession was delivered. According to DW-6, her husband (defendant 15) arranged for the said amount of Rs. 40,000/- by sale of his property to DW-10 and his son and by borrowing from DW-11. The sale deeds in favour of DW-10 and his son were executed as late as in the year 1984 and the Trial Court has clearly pointed out that there was no mention of any previous agreement in those sale deeds. Thus, the story of obtaining Rs. 20,000/- from DW-10 in the year 1976 has no legs to stand and is required to be rejected. Then, borrowing of Rs. 19,000/- from DW-11 was suggested by way of a promissory note (Ex. B-18) written by defendant 15 himself. There being no corroborative documentary evidence, no probative value could be attached to this self-serving document of defendant 15.54.1. The High Court has, in our view, erroneously discarded the aforesaid glaring weaknesses in the case of the defendants while observing that defendant 16 spoke about the method and manner of receiving money by her husband only by way of abundant caution and even if that part of her deposition is doubtful or improbable, the same would not make any difference. We are unable to agree. If this part of the statement of defendant 16 (DW-6) is found to be improbable, the suspicion surrounding the documents is magnified further and it is seriously questionable if at all any such document (sale agreement) was executed by Annapurnamma and if at all any payment was made by defendant 15 thereunder.55. Yet another relevant aspect of the matter, duly taken into consideration and highlighted by the Trial Court is that if at all any such agreement was executed on 05.11.1976, there was no reason that the vendee did not get the sale document registered for a long length of time because Annapurnamma expired 1½ years later. The High Court has made a cursory observation that DW-6 gave an explanation in that regard and there was no serious challenge to what she stated. The High Court has not given the details of so-called explanation of DW-6. However, we have examined her statement placed on record. The explanation has been that they thought of getting a registered deed in the year 1977 but could not do so because they had sustained loss due to cyclone. She was indeed cross-examined on this aspect where she stated that they had not stipulated the time for registration and they thought of getting it registered when got money. Even this explanation has its problems when visualised in the context of other assertions that defendant 15 obtained Rs. 19,000/- in loan from DW-11; and that defendants 5 and 6 were inducted as lessees on the land in question.55.1. DW-6 has suggested that her husband repaid the loan of Rs. 19,000/- taken from DW-11 and took back the pro note (Ex. B-18). The person allegedly advancing such loan (DW-11) has stated that the debt was discharged within four months by defendant 15 after selling sugar cane. The disputed agreement bears the date 05.11.1976. If loan was taken from DW-11 for the purpose of the deal in question and was repaid within four months; and if defendants 5 and 6 were inducted lessees and were making payment of lease amount, it is difficult to accept the statement of DW-6 that they thought of getting the deed registered in the year 1977 but could not do so for having suffered loss due to cyclone. It is very difficult to reconcile that though defendant 15 could arrange for repayment of the loan amount of Rs. 19,000/- within four months and had inducted lessees on the land in question, yet he could not arrange the remaining sale consideration of about Rs. 2,600/-, allegedly due to loss! Therefore, the explanation and the reasons for not getting the deed registered also turn out to be hollow and unacceptable. Equally, the story of induction of defendants 5 and 6 as lessees by defendant 15 and payment of lease amount by them becomes highly improbable.55.2. This aspect, that there was no plausible reason for not obtaining registered sale deed, assumes importance when viewed in the light of the fact that Annapurnamma had otherwise been selling her property only by way of registered sale deeds.56. It is moreover interesting to notice that the defendant 15 never sought specific performance of this agreement by showing his readiness and willingness to perform his part of contract. Significantly, even when the plaintiff-appellant had filed the suit for partition claiming rights in the property of Annapurnamma including the property that was subject of thed agreement; and even when he was joined as party to this suit, defendant 15 never took steps to seek specific performance from the heirs of Annapurnamma or from the alleged legatee of the Will. The same had been the position of his legal representatives, who too never claimed specific performance.57. The factors noticed hereinabove jointly and severally operate against the genuineness of the agreement for sale Ex. B-10 and this document could only be rejected.58. The High Court has observed that the Trial Court proceeded on consideration that the sale was made to a relative and the scribe and the attestor were also relatives. The High Court has also referred to another factor taken into account by the Trial Court that why at all defendant 15 would have thought of purchasing the land at a place far-off from his settled abode. In the assessment of the High Court, these factors were of no adverse effect and were rather of natural dealings. In our view, these factors cannot be seen and examined in isolation. Even if each of these factors, by itself, is not decisive of the matter, they cumulatively give rise to justified suspicions and when they are juxtaposed with the major factors highlighted hereinabove, the case of the defendants about existence of the agreement (Ex. B-10) is knocked to the ground.59. Therefore, we are clearly of the view that the Trial Court had examined the matter in its correct perspective and had rightly come to the conclusion that this agreement for sale (Ex. B-10) was as invalid and untrustworthy as was the Will (Ex. B-9). The findings of Trial Court, based on proper analysis and sound reasoning, called for no interference. The High Court has been clearly in error in interfering with the findings of the Trial Court in relation to the agreement in question.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: year 1976 has no legs to stand and is required to be rejected. Then, borrowing of Rs. 19,000/- from DW-11 was suggested by way of a promissory note (Ex. B-18) written by defendant 15 himself. There being no corroborative documentary evidence, no probative value could be attached to this self-serving document of defendant 15. 54.1. The High Court has, in our view, erroneously discarded the aforesaid glaring weaknesses in the case of the defendants while observing that defendant 16 spoke about the method and manner of receiving money by her husband only by way of abundant caution and even if that part of her deposition is doubtful or improbable, the same would not make any difference. We are unable to agree. If this part of the statement of defendant 16 (DW-6) is found to be improbable, the suspicion surrounding the documents is magnified further and it is seriously questionable if at all any such document (sale agreement) was executed by Annapurnamma and if at all any payment was made by defendant 15 thereunder. 55. Yet another relevant aspect of the matter, duly taken into consideration and highlighted by the Trial Court is that if at all any such agreement was executed on 05.11.1976, there was no reason that the vendee did not get the sale document registered for a long length of time because Annapurnamma expired 1½ years later. The High Court has made a cursory observation that DW-6 gave an explanation in that regard and there was no serious challenge to what she stated. The High Court has not given the details of so-called explanation of DW-6. However, we have examined her statement placed on record. The explanation has been that they thought of getting a registered deed in the year 1977 but could not do so because they had sustained loss due to cyclone. She was indeed cross-examined on this aspect where she stated that they had not stipulated the time for registration and they thought of getting it registered when got money. Even this explanation has its problems when visualised in the context of other assertions that defendant 15 obtained Rs. 19,000/- in loan from DW-11; and that defendants 5 and 6 were inducted as lessees on the land in question. 55.1. DW-6 has suggested that her husband repaid the loan of Rs. 19,000/- taken from DW-11 and took back the pro note (Ex. B-18). The person allegedly advancing such loan (DW-11) has stated that the debt was discharged within four months by defendant 15 after selling sugar cane. The disputed agreement bears the date 05.11.1976. If loan was taken from DW-11 for the purpose of the deal in question and was repaid within four months; and if defendants 5 and 6 were inducted lessees and were making payment of lease amount, it is difficult to accept the statement of DW-6 that they thought of getting the deed registered in the year 1977 but could not do so for having suffered loss due to cyclone. It is very difficult to reconcile that though defendant 15 could arrange for repayment of the loan amount of Rs. 19,000/- within four months and had inducted lessees on the land in question, yet he could not arrange the remaining sale consideration of about Rs. 2,600/-, allegedly due to loss! Therefore, the explanation and the reasons for not getting the deed registered also turn out to be hollow and unacceptable. Equally, the story of induction of defendants 5 and 6 as lessees by defendant 15 and payment of lease amount by them becomes highly improbable. 55.2. This aspect, that there was no plausible reason for not obtaining registered sale deed, assumes importance when viewed in the light of the fact that Annapurnamma had otherwise been selling her property only by way of registered sale deeds. 56. It is moreover interesting to notice that the defendant 15 never sought specific performance of this agreement by showing his readiness and willingness to perform his part of contract. Significantly, even when the plaintiff-appellant had filed the suit for partition claiming rights in the property of Annapurnamma including the property that was subject of the alleged agreement; and even when he was joined as party to this suit, defendant 15 never took steps to seek specific performance from the heirs of Annapurnamma or from the alleged legatee of the Will. The same had been the position of his legal representatives, who too never claimed specific performance. 57. The factors noticed hereinabove jointly and severally operate against the genuineness of the agreement for sale Ex. B-10 and this document could only be rejected. 58. The High Court has observed that the Trial Court proceeded on consideration that the sale was made to a relative and the scribe and the attestor were also relatives. The High Court has also referred to another factor taken into account by the Trial Court that why at all defendant 15 would have thought of purchasing the land at a place far-off from his settled abode. In the assessment of the High Court, these factors were of no adverse effect and were rather of natural dealings. In our view, these factors cannot be seen and examined in isolation. Even if each of these factors, by itself, is not decisive of the matter, they cumulatively give rise to justified suspicions and when they are juxtaposed with the major factors highlighted hereinabove, the case of the defendants about existence of the agreement (Ex. B-10) is knocked to the ground. 59. Therefore, we are clearly of the view that the Trial Court had examined the matter in its correct perspective and had rightly come to the conclusion that this agreement for sale (Ex. B-10) was as invalid and untrustworthy as was the Will (Ex. B-9). The findings of Trial Court, based on proper analysis and sound reasoning, called for no interference. The High Court has been clearly in error in interfering with the findings of the Trial Court in relation to the agreement in question. Conclusion ### Response: 1

MAARS SOFTWARE INTERNATIONAL LTD Vs. UNION OF INDIA

short ?FEMA?) against the appellant-Company before the Special Director of Enforcement Mumbai (Adjudicating Authority). 6. The complaint was founded on the material collected during the course of detailed investigation made in the affairs and the dealings of the appellant-Company in their business operations. It was done pursuant to the directive issued by the competent authority on 23.11.2001 to the appellant-Company under FEMA. 7. The aforesaid directive was issued to examine the genuineness of the internal affairs of the appellant-Company and also with a view to verify various international dealings and business operations which the appellant had executed during 3 3the relevant period with their overseas customers involving huge foreign exchequer. 8. The investigation also centered around the details of the Directors and Promoters; their holdings; how many groups and associates companies were formed by the appellants in India and abroad for doing business; details of the share transactions between the promoters of the appellant-Company and OCB/FIIs/Sub- accounts/NRI; the details of the appellant?s brokers appointed in the trade for execution of their business contracts; and lastly, the details of loans raised by the appellant-Company for their business purpose etc. 9. The complainant, i.e., the Enforcement Directorate prayed in the complaint that the investigation carried out has clearly made out a case of violation of Section 8 of FEMA read with 4 4Regulation 3 of the Foreign Exchange Management (Realization, Repatriation and Surrender of Foreign Exchange) Regulations, 2000 read with Regulation 9 of the Foreign Exchange Management (Export of Goods and Services) Regulations, 2000 and also violation of Section 42 (1) of FEMA by the appellant- Company. The complainant, therefore, prayed that action, as contemplated under FEMA, be taken against the appellant-Company for such violations as provided under FEMA. 10. It is this issue, which was adjudicated by the Special Director. By order dated 13.03.2008, the Special Director allowed the complaint and held that the appellant-Company has contravened the provisions of FEMA as prayed in the complaint and accordingly imposed a penalty of Rs.4 crores on the appellant No.1-Company and Rs.1 crore on 5 5appellant No.2-Managing Director-Shri Varadharajan as provided under FEMA. 11. The appellants felt aggrieved by the aforementioned order and hence filed two appeals under Section 13 of FEMA in the Tribunal. By order dated 07.01.2010, the Tribunal allowed the appeals and set aside the order dated 13.03.2008 and directed the authorities to refund the amount which was deposited by the appellants in these proceedings for filing the appeals. 12. The Union of India felt aggrieved by the order of the Tribunal and filed appeals in the High Court under Section 35 of the FEMA whereas the appellants herein filed a writ petition in the High Court against the Union of India and sought therein a writ of mandamus claiming refund of the pre- deposit amount. 6 613. By impugned order, the High Court allowed the appeals, set aside the order of the Tribunal and restored the order of the Adjudicating Authority. As a consequence thereof, the appellants? writ petition was dismissed. 14. It is against this common impugned order of the High Court, the appellant-Company and its Managing Director have filed these appeals by way of special leave in this Court. 15. So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in allowing the appeals filed by the Union of India. 16. Heard Mr. Gopal Shankarnaraynan, learned senior counsel for the appellants and Mr. B.K. Satija, learned counsel for the respondents. 17. Having heard the learned counsel for the parties and on perusal of the record of the case, we 7 7are inclined to allow these appeals and while setting aside the impugned order remand the case to the High Court for deciding the appeals afresh on merits in accordance with law. 18. The need to remand the case (appeals) to the High Court is called for because of the observations made by the High Court in Para 15, which reads as under:?………..No material has been produced before this Court as to what steps have been taken to realize the amount within the stipulated period. The company was not able to place any material to show the reason for the failure to realize the said amount within the stipulated period or any permission for extension of period has been obtained from the RBI as contemplated under Section 42 of the FEMA………..?19. It was, however, brought to our notice from Para 29 of the Tribunals order, which was impugned before the High Court in the appeals filed by the Union of India, that the appellants had filed material, which were marked as (Annexures A-15 to 8 8A-38) in the case, with a view to show as to what steps they had taken to realize and repatriate the dues in question. 20. In our considered view, keeping in view the observations made by the High Court in Para 15, it is clear that the High Court did not examine the case of the parties in the context of material placed by the appellants, though the Tribunal in Para 29 of its order has considered the said material. 21. In our view, the High Court should have taken into consideration the said material with a view to decide as to whether it was relevant or/and sufficient, and whether it could justify the appellants? case as contemplated under Section 8 of FEMA. 22. Instead, the High Court seemed to have proceeded on wrong assumption that since the appellants did not file any material, a case was 9 9made out against them. This observation of the High Court, in our view, was contrary to the record of the case and hence, interference in the impugned order is called for. 23. In view of the foregoing discussion, we are of the view that the proper course in such a case would be to remand the case to the High Court and request the High Court to decide the appeal afresh on merits in accordance with law.

1[ds]17. Having heard the learned counsel for the parties and on perusal of the record of the case, we 7 7are inclined to allow these appeals and while setting aside the impugned order remand the case to the High Court for deciding the appeals afresh on merits in accordance with law.It was, however, brought to our notice from Para 29 of the Tribunals order, which was impugned before the High Court in the appeals filed by the Union of India, that the appellants had filed material, which were marked as (Annexures A-15 to 8 8A-38) in the case, with a view to show as to what steps they had taken to realize and repatriate the dues in question.In our considered view, keeping in view the observations made by the High Court in Para 15, it is clear that the High Court did not examine the case of the parties in the context of material placed by the appellants, though the Tribunal in Para 29 of its order has considered the said material.In our view, the High Court should have taken into consideration the said material with a view to decide as to whether it was relevant or/and sufficient, and whether it could justify the appellants? case as contemplated under Section 8 of FEMA.Instead, the High Court seemed to have proceeded on wrong assumption that since the appellants did not file any material, a case was 9 9made out against them. This observation of the High Court, in our view, was contrary to the record of the case and hence, interference in the impugned order is called for.In view of the foregoing discussion, we are of the view that the proper course in such a case would be to remand the case to the High Court and request the High Court to decide the appeal afresh on merits in accordance with law.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: short ?FEMA?) against the appellant-Company before the Special Director of Enforcement Mumbai (Adjudicating Authority). 6. The complaint was founded on the material collected during the course of detailed investigation made in the affairs and the dealings of the appellant-Company in their business operations. It was done pursuant to the directive issued by the competent authority on 23.11.2001 to the appellant-Company under FEMA. 7. The aforesaid directive was issued to examine the genuineness of the internal affairs of the appellant-Company and also with a view to verify various international dealings and business operations which the appellant had executed during 3 3the relevant period with their overseas customers involving huge foreign exchequer. 8. The investigation also centered around the details of the Directors and Promoters; their holdings; how many groups and associates companies were formed by the appellants in India and abroad for doing business; details of the share transactions between the promoters of the appellant-Company and OCB/FIIs/Sub- accounts/NRI; the details of the appellant?s brokers appointed in the trade for execution of their business contracts; and lastly, the details of loans raised by the appellant-Company for their business purpose etc. 9. The complainant, i.e., the Enforcement Directorate prayed in the complaint that the investigation carried out has clearly made out a case of violation of Section 8 of FEMA read with 4 4Regulation 3 of the Foreign Exchange Management (Realization, Repatriation and Surrender of Foreign Exchange) Regulations, 2000 read with Regulation 9 of the Foreign Exchange Management (Export of Goods and Services) Regulations, 2000 and also violation of Section 42 (1) of FEMA by the appellant- Company. The complainant, therefore, prayed that action, as contemplated under FEMA, be taken against the appellant-Company for such violations as provided under FEMA. 10. It is this issue, which was adjudicated by the Special Director. By order dated 13.03.2008, the Special Director allowed the complaint and held that the appellant-Company has contravened the provisions of FEMA as prayed in the complaint and accordingly imposed a penalty of Rs.4 crores on the appellant No.1-Company and Rs.1 crore on 5 5appellant No.2-Managing Director-Shri Varadharajan as provided under FEMA. 11. The appellants felt aggrieved by the aforementioned order and hence filed two appeals under Section 13 of FEMA in the Tribunal. By order dated 07.01.2010, the Tribunal allowed the appeals and set aside the order dated 13.03.2008 and directed the authorities to refund the amount which was deposited by the appellants in these proceedings for filing the appeals. 12. The Union of India felt aggrieved by the order of the Tribunal and filed appeals in the High Court under Section 35 of the FEMA whereas the appellants herein filed a writ petition in the High Court against the Union of India and sought therein a writ of mandamus claiming refund of the pre- deposit amount. 6 613. By impugned order, the High Court allowed the appeals, set aside the order of the Tribunal and restored the order of the Adjudicating Authority. As a consequence thereof, the appellants? writ petition was dismissed. 14. It is against this common impugned order of the High Court, the appellant-Company and its Managing Director have filed these appeals by way of special leave in this Court. 15. So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in allowing the appeals filed by the Union of India. 16. Heard Mr. Gopal Shankarnaraynan, learned senior counsel for the appellants and Mr. B.K. Satija, learned counsel for the respondents. 17. Having heard the learned counsel for the parties and on perusal of the record of the case, we 7 7are inclined to allow these appeals and while setting aside the impugned order remand the case to the High Court for deciding the appeals afresh on merits in accordance with law. 18. The need to remand the case (appeals) to the High Court is called for because of the observations made by the High Court in Para 15, which reads as under:?………..No material has been produced before this Court as to what steps have been taken to realize the amount within the stipulated period. The company was not able to place any material to show the reason for the failure to realize the said amount within the stipulated period or any permission for extension of period has been obtained from the RBI as contemplated under Section 42 of the FEMA………..?19. It was, however, brought to our notice from Para 29 of the Tribunals order, which was impugned before the High Court in the appeals filed by the Union of India, that the appellants had filed material, which were marked as (Annexures A-15 to 8 8A-38) in the case, with a view to show as to what steps they had taken to realize and repatriate the dues in question. 20. In our considered view, keeping in view the observations made by the High Court in Para 15, it is clear that the High Court did not examine the case of the parties in the context of material placed by the appellants, though the Tribunal in Para 29 of its order has considered the said material. 21. In our view, the High Court should have taken into consideration the said material with a view to decide as to whether it was relevant or/and sufficient, and whether it could justify the appellants? case as contemplated under Section 8 of FEMA. 22. Instead, the High Court seemed to have proceeded on wrong assumption that since the appellants did not file any material, a case was 9 9made out against them. This observation of the High Court, in our view, was contrary to the record of the case and hence, interference in the impugned order is called for. 23. In view of the foregoing discussion, we are of the view that the proper course in such a case would be to remand the case to the High Court and request the High Court to decide the appeal afresh on merits in accordance with law. ### Response: 1

B. B. Iranee (Legal Representative of B. R. Iranee, Deceased) Vs. Commissioner of Income Tax, Bombay City Ii

business in Hong Kong was controlled from India during the accounting year for 8 months only and, therefore, proportionate profits attributable to the rest of the year were not exigible to tax; and (2) the loss suffered by the assessee in his business in Hong Kong during the period 1941 to 1945 was ascertained only after the termination of the Second World War in 1946 and, therefore, the loss must be deemed to have been incurred by the assessee only during the accounting yearTo appreciate the first point, it is necessary to read the relevant part of section 4 of the Indian Income-tax Act, 1922, hereinafter called the Act, It reads" 4. (1) Subject to the provisions of this Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which--(b) if such person is resident in the taxable territories during such year, --(ii) accrue or arise to him without the taxable territories during such year, or(c) if such person is not resident in the taxable territories during such year, accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year3. Provided further that, in the case of a person not ordinarily, resident in the taxable territories, income, profits and gains which accrue or arise to him without the taxable territories shall not be so included unless they are derived from a business controlled in or a profession or vocation set up in India or unless they are brought into or received in the taxable territories by him during such year."Under the proviso, if a person is resident but not ordinarily resident in India, the income accrued to him without the taxable territories can only be included in his taxable income if it is derived from a business controlled in India. The condition that has to be fulfilled before the proviso can be invoked is that a person not ordinarily resident in India shall have controlled the business carried on by him outside India. As the control of the business is the condition for its application, it is argued that only so much of the income as accrues or arises to him without the taxable territories attributable to the period of such control is liable to tax. There appears to be some plausibility in this argument. But, this appeal does not call for an expression of a final opinion thereon, for both the Tribunal and the High Court held as a fact that the business was controlled during the entire accounting year from India. The Tribunal in its order dated October 5, 1956, held, on a consideration of the entire material placed before it, that the business was controlled from India. Adverting to the arguments of the learned counsel for the assessee before the Tribunal that the assessees control extended only to a period of eight months out of twelve months, the Tribunal held that the business was controlled in India and that the assessee went out to Hong Kong only for a preliminary survey. The High Court also came to the same conclusion and accepted the finding of the Tribunal. It said"In our opinion, mere temporary absence of a proprietor of a business from the headquarters of the business in British India cannot by itself have the effect of removing the control of the business from British India to the place where the proprietor has gone. It may be a relevant piece of evidence but not conclusive. In addition to it there should be other evidence either direct or circumstantial to establish that fact. There does not appear to be any other piece of evidence on which reliance has been placed by the assessee. It is, therefore, difficult to accept the contention of the assessee, which had been raised before the Tribunal."It also pointed out that the Tribunal had also found as a fact that the business was controlled from India throughout the year. On the said finding no question of apportionment of the income of the accounting year for the purpose of taxation would arise4. There are no merits in the second contention either. On a direction issued by the High Court, the Tribunal referred the following question to the High Court"Whether, on the facts and in the circumstances of the case, the Tribunal erred in law or misdirected Itself in rejecting the assessees claim to set off the alleged losses of 1941 of Hong Kong business against the income of the assessment year ?"5. It will be noticed at once that the question does not relate to the losses incurred in the year 1946, but only those incurred in the year 1941. The question ex facie does not comprehend the losses incurred in 1946 or ascertained during that year. The High Court, therefore, rightly held that the question framed by it was confined to the losses of the year 1941. But on an assumption not warranted by the question, the learned judges of the High Court, in deference to the arguments advanced by the counsel appearing before them, proceeded to consider the argument now raised before us and came to the conclusion that the said losses could not be held to have been sustained in the year 1946. In our view, it was not open to the High Court to answer the question not referred to it by the Tribunal. The Tribunals order also shows that no such contention was raised before it ; nor did the Tribunal deal with it. Though, in the application under section 66(2) of the Act for directing the Tribunal to refer to the High Court questions of law, one of the questions referred to earlier losses ascertained in 1946 and though the facts to sustain the said question were narrated in the affidavit in support of the petition, the High Court did not direct the Tribunal to refer the said question, presumably because no such question arose on the order of the Tribunal.

0[ds]"Under the proviso, if a person is resident but not ordinarily resident in India, the income accrued to him without the taxable territories can only be included in his taxable income if it is derived from a business controlled in India. The condition that has to be fulfilled before the proviso can be invoked is that a person not ordinarily resident in India shall have controlled the business carried on by him outside India. As the control of the business is the condition for its application, it is argued that only so much of the income as accrues or arises to him without the taxable territories attributable to the period of such control is liable to tax. There appears to be some plausibility in this argument. But, this appeal does not call for an expression of a final opinion thereon, for both the Tribunal and the High Court held as a fact that the business was controlled during the entire accounting year fromwill be noticed at once that the question does not relate to the losses incurred in the year 1946, but only those incurred in the year 1941. The question ex facie does not comprehend the losses incurred in 1946 or ascertained during that year. The High Court, therefore, rightly held that the question framed by it was confined to the losses of the year 1941. But on an assumption not warranted by the question, the learned judges of the High Court, in deference to the arguments advanced by the counsel appearing before them, proceeded to consider the argument now raised before us and came to the conclusion that the said losses could not be held to have been sustained in the year 1946. In our view, it was not open to the High Court to answer the question not referred to it by the Tribunal. The Tribunals order also shows that no such contention was raised before it ; nor did the Tribunal deal with it. Though, in the application under section 66(2) of the Act for directing the Tribunal to refer to the High Court questions of law, one of the questions referred to earlier losses ascertained in 1946 and though the facts to sustain the said question were narrated in the affidavit in support of the petition, the High Court did not direct the Tribunal to refer the said question, presumably because no such question arose on the order of the Tribunal.

### 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: business in Hong Kong was controlled from India during the accounting year for 8 months only and, therefore, proportionate profits attributable to the rest of the year were not exigible to tax; and (2) the loss suffered by the assessee in his business in Hong Kong during the period 1941 to 1945 was ascertained only after the termination of the Second World War in 1946 and, therefore, the loss must be deemed to have been incurred by the assessee only during the accounting yearTo appreciate the first point, it is necessary to read the relevant part of section 4 of the Indian Income-tax Act, 1922, hereinafter called the Act, It reads" 4. (1) Subject to the provisions of this Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which--(b) if such person is resident in the taxable territories during such year, --(ii) accrue or arise to him without the taxable territories during such year, or(c) if such person is not resident in the taxable territories during such year, accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year3. Provided further that, in the case of a person not ordinarily, resident in the taxable territories, income, profits and gains which accrue or arise to him without the taxable territories shall not be so included unless they are derived from a business controlled in or a profession or vocation set up in India or unless they are brought into or received in the taxable territories by him during such year."Under the proviso, if a person is resident but not ordinarily resident in India, the income accrued to him without the taxable territories can only be included in his taxable income if it is derived from a business controlled in India. The condition that has to be fulfilled before the proviso can be invoked is that a person not ordinarily resident in India shall have controlled the business carried on by him outside India. As the control of the business is the condition for its application, it is argued that only so much of the income as accrues or arises to him without the taxable territories attributable to the period of such control is liable to tax. There appears to be some plausibility in this argument. But, this appeal does not call for an expression of a final opinion thereon, for both the Tribunal and the High Court held as a fact that the business was controlled during the entire accounting year from India. The Tribunal in its order dated October 5, 1956, held, on a consideration of the entire material placed before it, that the business was controlled from India. Adverting to the arguments of the learned counsel for the assessee before the Tribunal that the assessees control extended only to a period of eight months out of twelve months, the Tribunal held that the business was controlled in India and that the assessee went out to Hong Kong only for a preliminary survey. The High Court also came to the same conclusion and accepted the finding of the Tribunal. It said"In our opinion, mere temporary absence of a proprietor of a business from the headquarters of the business in British India cannot by itself have the effect of removing the control of the business from British India to the place where the proprietor has gone. It may be a relevant piece of evidence but not conclusive. In addition to it there should be other evidence either direct or circumstantial to establish that fact. There does not appear to be any other piece of evidence on which reliance has been placed by the assessee. It is, therefore, difficult to accept the contention of the assessee, which had been raised before the Tribunal."It also pointed out that the Tribunal had also found as a fact that the business was controlled from India throughout the year. On the said finding no question of apportionment of the income of the accounting year for the purpose of taxation would arise4. There are no merits in the second contention either. On a direction issued by the High Court, the Tribunal referred the following question to the High Court"Whether, on the facts and in the circumstances of the case, the Tribunal erred in law or misdirected Itself in rejecting the assessees claim to set off the alleged losses of 1941 of Hong Kong business against the income of the assessment year ?"5. It will be noticed at once that the question does not relate to the losses incurred in the year 1946, but only those incurred in the year 1941. The question ex facie does not comprehend the losses incurred in 1946 or ascertained during that year. The High Court, therefore, rightly held that the question framed by it was confined to the losses of the year 1941. But on an assumption not warranted by the question, the learned judges of the High Court, in deference to the arguments advanced by the counsel appearing before them, proceeded to consider the argument now raised before us and came to the conclusion that the said losses could not be held to have been sustained in the year 1946. In our view, it was not open to the High Court to answer the question not referred to it by the Tribunal. The Tribunals order also shows that no such contention was raised before it ; nor did the Tribunal deal with it. Though, in the application under section 66(2) of the Act for directing the Tribunal to refer to the High Court questions of law, one of the questions referred to earlier losses ascertained in 1946 and though the facts to sustain the said question were narrated in the affidavit in support of the petition, the High Court did not direct the Tribunal to refer the said question, presumably because no such question arose on the order of the Tribunal. ### Response: 0

Lavji Mona Vs. State of Gujarat

1. The sole accused is the appellant. He was tried by the Trial Court for an offence punishable under S.302, I.P.C. for causing death of his wife by inflicting injuries with axe. The case rests on circumstantial evidence, retracted extra judicial confession and recovery of blood stained shirt of the deceased. The Trial Court found it insufficient and acquitted the accused. On an appeal by the State the High Court held that all the circumstances put forward are sufficient to establish the guilt and accordingly convicted the appellant under S.302, I.P.C. and sentenced him to undergo imprisonment for life. This appeal is filed under the provisions of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act. The prosecution case is as follows:2. The accused was residing in village Amide with his wife, the deceased and children. He was cultivating a field in the said village. On 18th September, 1979 the accused and the deceased have gone to the field for carrying out certain agricultural operation. His daughter Kavita (P12) aged about 10-12 years went to the field at 12.00 noon with meals and at that time she saw her mother lying in the field with injuries and the accused missing. She found that her mother was injured and she went to call her brother Ramji Lavji (Ex.P13) who immediately came to the field and found that his mother had passed away. He found injuries on her head and shoulder and other parts. He also did not find his father in the field or in the vicinity. He immediately went and reported the matter to the police patel Thakarahi Shamji. The dead body was brought to the residence of the accused. According to the prosecution, in the meantime, the accused went to Shetrunji Dam where he had earlier served for three years and he met one Jamal Bachhu (P1) and before whom he made an extra judicial confession and told him that he killed his wife and he would surrender himself before the police. Thereupon, P1 advised the accused to go to the dam outpost and contact the police. It is alleged that the accused went to the police station with a weapon of assault namely pickaxe. There he also gave a report (Exh. A) which formed as F.I.R. in this case. The clothes of the accused were stained with blood and the weapon of assault too was stained with blood. The concerned officer carried out the investigation and ultimately the doctor who conducted the post mortem found several injuries and opined that the death was due to shock and haemorrhage due to multiple injuries. After completion of the investigation a chargesheet was laid. On examination under S.313, I.P.C. the accused denied the offence.3. Learned Sessions Judge held that Exhibit A containing the confessional statement of the accused made before the police was inadmissible as it was hit by S.25 of the Evidence Act. He also found that there is no direct evidence and the extra judicial confession cannot be relied upon. He found that the other circumstantial evidence was insufficient to establish the crime. On an appeal by the State the High Court in an elaborate judgment has discussed every item of evidence and found that the circumstances taken together form a complete chain and connect the accused with the commission of the crime.4. Since this is an appeal filed under Supreme Court Enlargement Jurisdiction Act, we have gone through the judgment and record carefully. We do not find any ground to reject the evidence of Jamal Bachhu (PW 1). He has given a cogent and convincing evidence and has given all the details as to how the accused came to him and confessed before him and that accused said that he would go to the police station. Then we have the evidence of the Head Constable who was in the police station before whom the accused surrendered himself. As a matter of fact the accused himself has gone to the police station and lodged a complaint by giving there a First Information Report. The evidence of the two children show that the accused was in the company of the deceased in the field and thereafter he was seen missing. The accused has no explanation as to where he went and why he went to the police station and he also had not come forward with any acceptable explanation for the presence of the blood on the clothes as well as on the pick axe. The serological report shows that the group of the blood found on the clothes of the accused was the same as that of the deceased. These are the circumstances which corroborated extra judicial confession.

0[ds]4. Since this is an appeal filed under Supreme Court Enlargement Jurisdiction Act, we have gone through the judgment and record carefully. We do not find any ground to reject the evidence of Jamal Bachhu (PW 1). He has given a cogent and convincing evidence and has given all the details as to how the accused came to him and confessed before him and that accused said that he would go to the police station. Then we have the evidence of the Head Constable who was in the police station before whom the accused surrendered himself. As a matter of fact the accused himself has gone to the police station and lodged a complaint by giving there a First Information Report. The evidence of the two children show that the accused was in the company of the deceased in the field and thereafter he was seen missing. The accused has no explanation as to where he went and why he went to the police station and he also had not come forward with any acceptable explanation for the presence of the blood on the clothes as well as on the pick axe. The serological report shows that the group of the blood found on the clothes of the accused was the same as that of the deceased. These are the circumstances which corroborated extra judicial confession.

### 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: 1. The sole accused is the appellant. He was tried by the Trial Court for an offence punishable under S.302, I.P.C. for causing death of his wife by inflicting injuries with axe. The case rests on circumstantial evidence, retracted extra judicial confession and recovery of blood stained shirt of the deceased. The Trial Court found it insufficient and acquitted the accused. On an appeal by the State the High Court held that all the circumstances put forward are sufficient to establish the guilt and accordingly convicted the appellant under S.302, I.P.C. and sentenced him to undergo imprisonment for life. This appeal is filed under the provisions of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act. The prosecution case is as follows:2. The accused was residing in village Amide with his wife, the deceased and children. He was cultivating a field in the said village. On 18th September, 1979 the accused and the deceased have gone to the field for carrying out certain agricultural operation. His daughter Kavita (P12) aged about 10-12 years went to the field at 12.00 noon with meals and at that time she saw her mother lying in the field with injuries and the accused missing. She found that her mother was injured and she went to call her brother Ramji Lavji (Ex.P13) who immediately came to the field and found that his mother had passed away. He found injuries on her head and shoulder and other parts. He also did not find his father in the field or in the vicinity. He immediately went and reported the matter to the police patel Thakarahi Shamji. The dead body was brought to the residence of the accused. According to the prosecution, in the meantime, the accused went to Shetrunji Dam where he had earlier served for three years and he met one Jamal Bachhu (P1) and before whom he made an extra judicial confession and told him that he killed his wife and he would surrender himself before the police. Thereupon, P1 advised the accused to go to the dam outpost and contact the police. It is alleged that the accused went to the police station with a weapon of assault namely pickaxe. There he also gave a report (Exh. A) which formed as F.I.R. in this case. The clothes of the accused were stained with blood and the weapon of assault too was stained with blood. The concerned officer carried out the investigation and ultimately the doctor who conducted the post mortem found several injuries and opined that the death was due to shock and haemorrhage due to multiple injuries. After completion of the investigation a chargesheet was laid. On examination under S.313, I.P.C. the accused denied the offence.3. Learned Sessions Judge held that Exhibit A containing the confessional statement of the accused made before the police was inadmissible as it was hit by S.25 of the Evidence Act. He also found that there is no direct evidence and the extra judicial confession cannot be relied upon. He found that the other circumstantial evidence was insufficient to establish the crime. On an appeal by the State the High Court in an elaborate judgment has discussed every item of evidence and found that the circumstances taken together form a complete chain and connect the accused with the commission of the crime.4. Since this is an appeal filed under Supreme Court Enlargement Jurisdiction Act, we have gone through the judgment and record carefully. We do not find any ground to reject the evidence of Jamal Bachhu (PW 1). He has given a cogent and convincing evidence and has given all the details as to how the accused came to him and confessed before him and that accused said that he would go to the police station. Then we have the evidence of the Head Constable who was in the police station before whom the accused surrendered himself. As a matter of fact the accused himself has gone to the police station and lodged a complaint by giving there a First Information Report. The evidence of the two children show that the accused was in the company of the deceased in the field and thereafter he was seen missing. The accused has no explanation as to where he went and why he went to the police station and he also had not come forward with any acceptable explanation for the presence of the blood on the clothes as well as on the pick axe. The serological report shows that the group of the blood found on the clothes of the accused was the same as that of the deceased. These are the circumstances which corroborated extra judicial confession. ### Response: 0

Union of India and Ors Vs. Manomoy Ganguly

However, it is adequately answered by the respondent by pointing out that that happened because Air Marshal Maini himself chose not to be posted as DGMS (Army) because of his health reasons, which the appellants could not controvert. (iv) Even, in the present case, for appointment of DGMS (Army) the first Note dated 16 th January 2018 by DGAFMS, in no uncertain terms, stated that the appointment to this post is to be made ‘strictly on the basis of their seniority?, meaning thereby the senior most Lt. General (& Equiv) is to be posted. That Note was prepared on the assumption that the respondent is not in the reckoning as his case for promotion to the post of Lt. General was not recommended. (v) It is for the first time that in the Note dated 23 rd January 2018 the question of so-called ‘suitability? is taken up. We have used the expression ‘so-called? for the reason that (as would be discussed in some detail afterwards) even this Note dated 23 rd January 2018 does not reflect that any exercise of ?inter se suitability? is carried out strictly in accordance with the criteria laid down in the Circular dated 10 th July 1992, i.e. on the touchstone of ‘inter se seniority and suitability?. 48. Apart from the aforesaid admitted facts, we also would like to state some of the findings as recorded by the AFT, with which we are in agreement. These are listed below: (i) There has been some attempt (though we are not suggesting as to whether it was deliberate or bona fide) in denying the respondent his claim for promotion to the rank of Lt. General Events in detail on this aspect have already been narrated above, which need not be reiterated. Suffice it is to mention that even after the orders of the AFT and affirmation thereafter by the judgment of this Court, the Board had stuck to its earlier notion about the respondent. Fortunately for him, the Raksha Mantri took a fair and objective view in the matter and granted him his deserved promotion, which was legitimately due to him. (ii) As on 16 th January 2018, when DGAFMS prepared his Note for appointment to the post of DGMS (Army), which had fallen vacant few months ago, he only knew that the Review Board had again refused to recommend the case of the respondent in the rank of Lt. General Therefore, he proceeded on the basis that since the respondent is not occupying the post of Lt. General he is out of reckoning and, accordingly, Lt. General Sanjiv Chopra was the senior most officer. Proceeding on the aforesaid presumption, after excluding the respondent from consideration, he recommended Lt. General Sanjiv Chopra for appointment as DGMS (Army) being the senior most in the AFMS cadre. This Note went to the extent of recording that not only promotion is strictly on the basis of their seniority, it was being done even for the posts of ‘DGAFMS?, ‘DGsMS? and the ‘CDC IDC? who are retained in the order of seniority for administrative reasons. Within three days thereafter, when the decision of the Raksha Mantri to promote the respondent to the rank of Lt. General was declassified, in the fresh Note prepared on 23 rd January 2018, there was a complete turn around. For the first time, it was mentioned in this Note that as per the criteria Lt. General (& Equiv) will be assessed for appointment of DGMS ‘in the light of their earlier experience in a particular service?. No doubt, this criteria is mentioned in the Circular dated 10 th July 1992 and, therefore, there may not be anything wrong per se. However, we find substance in the submission of the learned senior counsel appearing for the respondent that such a realisation dawned only after coming to know that the respondent was also in the reckoning for appointment to the post of DGMS (Army) and he was the senior most officer. (iii) The manner in which this Note is written leaves a reasonable impression that the exercise was done to exclude the respondent from appointment to the post of DGMS (Army). In the first instance, though the criteria of assessment ‘in the light of their earlier experience in a particular service? is mentioned in paragraph 3 of the Note, it nowhere reproduces the exact criteria, namely, ‘inter se seniority and suitability?. Thus, while considering the earlier experience in a particular service, it was to be done in the light of inter se seniority-cum-suitability is not reflected in the said Note. In fact, there is no such exercise of inter se suitability undertaken in this Note. (iv) In paragraph 7 of the Note dated 23 rd January 2018, case of the respondent is discussed. Qua him it is mentioned that since he would be newly promoted from the rank of Major General, he does not have ‘previous exposure to the working and environs of the IHQ of the MoD?. On that basis, he is proposed for appointment as DGHS (AF) instead of DGMS (Army). This, Civil Appeal No. 5800 of 201 according to us, is not a fair and objective consideration of his suitability for the post of DGMS (Army) as it is not necessary to have working experience in IHQ alone. Mr. Patwalia had vehemently argued that the respondent had adequate administrative experience while working as Major General in Southern Command, which was equally relevant, doing similar nature of duties from which he has gained sufficient experience making him aptly suitable for the post of DGMS (Army). He had also pointed out that in the past, officers who are appointed to the post of DGMS (Army) were not necessarily those officers who had earlier worked in the environs of the IHQ of the MoD. This fact also could not be refuted by the appellants. Therefore, we find that there has not been any proper and valid consideration in applying the criteria of inter se seniority and suitability. 49.

1[ds]Before adverting to the specificity in which the appellant dealt with the matter of the respondent herein, we deem it appropriate to first go into the parameters which are required for the purpose of considering the appointments to the post of DGMS (Army). The respondent belongs to Army Medical Corps (AMC) which comes under Armed Forces Medical Service (AFMS). In this service, there are ten appointments in the rank of Lt. General (& Equivalent) which are held by Officers belonging to AMC. It has three tier structure. On the top is the post of DGAFMS, who is the head of AFMS. He functions directly under the Government of India, Ministry of Defence and is responsible to the Government for overall medical policy concerning the armed forces. The Civil Appeal No. 5800 of 201 functions of the DGAFMS as laid down in Paragraph 18 of the Regulations for the Medical Services of Armed Forces 2010 (Revised Version) (RMSAF) issued under the authority of the Government of India, Ministry of Defence, include inter alia that he is the Cadre Controlling Authority in respect of all officers of the AFMS, and is responsible for terms and conditions of services of all officers including for processing cases and obtaining Government sanction where necessary. Below the DGAFMS, there are three posts of Director General Medical Services, one each for the Army, Navy and the Air Force called the DGMS (Army) DGMS (Navy) and DGMS (Air) respectively. The DGs of the three Services are Medical Advisors to the respective Chief of Staff and are responsible for the day to day administration and proper functioning of the medical services of the Army, Navy and Air Force. The remaining six posts of Lt General or their equivalent are placed in other appointments held in other establishments of the ArmedDGMS (Army) is in the second tier which is treated as higher than DGMS (Navy) or DGMS (Air). The post of DGMS (Army) is normally tenable by an Officer of the rank of Lt. General belonging to AMC and he acts as Principal Medical Advisor to the Chief of ArmyAs noted above, administrative instructions dated 10 th July, 1992 are issued by the Government of India, Ministry of Defence laying down the specific criteria for appointment to the post(s) of DGMS. We have already reproduced the aforesaid criteria. However, since para (i) is the bone of contention, we reproduce the same hereinbelow for the sake of continuity ofse seniority and suitability of officers in the rank of Lt Gen (and equivalent) holding the posts of Comdt AMC Centre and School, Comdt AFMC, Pune and the Addl DG AFMS shall be assessed in the light of their earlier experience of serving in particular services and they shall be considered for appointment of DGs MS of services provided they have a minimum remainder service of six months from the date of occurrence of theThe expression which is to be assigned its proper meaning is ‘the inter se seniority and suitability?. Whereas the respondent argues that it is nothing butwhich means senior most Lt. General subject to his suitability for the post of DGMS (Army) is to be appointed, the plea of the appellant is that the word ‘inter se? has also to be given its due meaning and it is related both to seniority as well as suitability. On that basis, it is argued that suitability is to be judged ‘inter se? between the eligible persons and one who is more suitable would be entitled to appoint as DGMSWhen we read the aforesaid para (i) as a whole, we find force in the submission of the appellant that the word ‘inter se? applies both to seniority as well as suitability. Therefore, ‘inter se suitability? is also to be assessed inasmuch as this assessment is ‘in the light of their earlier experience of serving in a particular service?. As far as consideration on the parameters of ‘inter se seniority? is concerned, it would mean that a person who is senior gets precedence. To this extent, there is no quarrel. Question is as to what meaning is to be assigned to ‘inter se suitability?. Two questions arise from the above. First, what is the meaning of ‘suitability?. Second, how the expression ‘inter se suitability? is to be construed, i.e. whether it should be understood as choosing a ‘more suitable? officer for appointment as DGsMS. As far as inter se suitability is concerned, all the eligible officers in the rank of Lt. General (& Equiv), having regard to their earlier experience of serving in particular services, they are to be considered for appointment as DGsMS of services (i.e. DGMSAdverting to the second question, the prefix ‘inter se? has also to be given some meaning as it cannot be rendered otiose. Therefore, whereas while assessing ‘suitability?, it has to be seen that a particular officer is not unfit for the post, when it comes to ‘inter se suitability?, it has reference to assessing the suitability of all eligible officers and thereafter finding who is more suitable to occupy such a post. We have to keep in mind that these are very high ranking posts and, therefore, the competent authority is supposed to choose a more suitable officer for such posts. We are of the opinion that for expressing such an intention, the Circular could have been worded more appropriately and with clarity to avoid such doubts. However, since the word ‘inter se? is used, it implies that the intention behind laying down this criteria was to give these posts to a better suited person after evaluating their inter se suitability. Of course, while doing this exercise seniority of an officer is also to be given due weightage, meaning thereby if the senior most person is competent to hold the post, he is to be given preference. Therefore, we conclude that the view of the AFT that the post of DGMS (Army) is to be filled by the officer on the strength ofwhere seniority is a decisive factor and suitability is a secondary factor, is not correct. In the entire discussion resting with the aforesaid view, the Tribunal ignored the fact that it is not only seniority and suitability simpliciter but ‘inter se? seniority and suitability. The expression ‘inter se? is totally ignored and there is no discussion thereupon at all, which has led the AFT to take wrong view insofar as interpretation of the criteria laid down in the Circular dated 10 th July, 1992 is concerned, which talks of ‘inter se seniority andSome admitted facts which are pertinent for the outcome of the present appeal need to be highlighted at this juncture. TheseThe respondent is the senior most Lt.He fulfils the eligibility criteria for appointment to the post of DGMSDGMS (Army) is treated as better post than other DGs, i.e. DGMS (Navy) and DGMSThe past practice has been to fill up the post of DGMS (Army) from a senior most officer. Before the AFT, the appellants failed to give any example where seniority was ignored. In the past, i.e. ever since issuance of Circular dated 10 th July 1992, the practice has been to appoint the senior most Lt. General from Army. Before the AFT, the appellants could not cite a single deviation to the aforesaid practice. In the appeal, example of one Air Marshal H.K. Maini is given. However, it is adequately answered by the respondent by pointing out that that happened because Air Marshal Maini himself chose not to be posted as DGMS (Army) because of his health reasons, which the appellants could notEven, in the present case, for appointment of DGMS (Army) the first Note dated 16 th January 2018 by DGAFMS, in no uncertain terms, stated that the appointment to this post is to be made ‘strictly on the basis of their seniority?, meaning thereby the senior most Lt. General (& Equiv) is to be posted. That Note was prepared on the assumption that the respondent is not in the reckoning as his case for promotion to the post of Lt. General was notIt is for the first time that in the Note dated 23 rd January 2018 the question of‘suitability? is taken up. We have used the expressionfor the reason that (as would be discussed in some detail afterwards) even this Note dated 23 rd January 2018 does not reflect that any exercise of ?inter se suitability? is carried out strictly in accordance with the criteria laid down in the Circular dated 10 th July 1992, i.e. on the touchstone of ‘inter se seniority andApart from the aforesaid admitted facts, we also would like to state some of the findings as recorded by the AFT, with which we are in agreement. These are listedThere has been some attempt (though we are not suggesting as to whether it was deliberate or bona fide) in denying the respondent his claim for promotion to the rank of Lt. General Events in detail on this aspect have already been narrated above, which need not be reiterated. Suffice it is to mention that even after the orders of the AFT and affirmation thereafter by the judgment of this Court, the Board had stuck to its earlier notion about the respondent. Fortunately for him, the Raksha Mantri took a fair and objective view in the matter and granted him his deserved promotion, which was legitimately due toAs on 16 th January 2018, when DGAFMS prepared his Note for appointment to the post of DGMS (Army), which had fallen vacant few months ago, he only knew that the Review Board had again refused to recommend the case of the respondent in the rank of Lt. General Therefore, he proceeded on the basis that since the respondent is not occupying the post of Lt. General he is out of reckoning and, accordingly, Lt. General Sanjiv Chopra was the senior most officer. Proceeding on the aforesaid presumption, after excluding the respondent from consideration, he recommended Lt. General Sanjiv Chopra for appointment as DGMS (Army) being the senior most in the AFMS cadre. This Note went to the extent of recording that not only promotion is strictly on the basis of their seniority, it was being done even for the posts of ‘DGAFMS?, ‘DGsMS? and the ‘CDC IDC? who are retained in the order of seniority for administrative reasons. Within three days thereafter, when the decision of the Raksha Mantri to promote the respondent to the rank of Lt. General was declassified, in the fresh Note prepared on 23 rd January 2018, there was a complete turn around. For the first time, it was mentioned in this Note that as per the criteria Lt. General (& Equiv) will be assessed for appointment of DGMS ‘in the light of their earlier experience in a particular service?. No doubt, this criteria is mentioned in the Circular dated 10 th July 1992 and, therefore, there may not be anything wrong per se. However, we find substance in the submission of the learned senior counsel appearing for the respondent that such a realisation dawned only after coming to know that the respondent was also in the reckoning for appointment to the post of DGMS (Army) and he was the senior mostThe manner in which this Note is written leaves a reasonable impression that the exercise was done to exclude the respondent from appointment to the post of DGMS (Army). In the first instance, though the criteria of assessment ‘in the light of their earlier experience in a particular service? is mentioned in paragraph 3 of the Note, it nowhere reproduces the exact criteria, namely, ‘inter se seniority and suitability?. Thus, while considering the earlier experience in a particular service, it was to be done in the light of inter seis not reflected in the said Note. In fact, there is no such exercise of inter se suitability undertaken in thisIn paragraph 7 of the Note dated 23 rd January 2018, case of the respondent is discussed. Qua him it is mentioned that since he would be newly promoted from the rank of Major General, he does not have ‘previous exposure to the working and environs of the IHQ of the MoD?. On that basis, he is proposed for appointment as DGHS (AF) instead of DGMS (Army). This, Civil Appeal No. 5800 of 201 according to us, is not a fair and objective consideration of his suitability for the post of DGMS (Army) as it is not necessary to have working experience in IHQ alone. Mr. Patwalia had vehemently argued that the respondent had adequate administrative experience while working as Major General in Southern Command, which was equally relevant, doing similar nature of duties from which he has gained sufficient experience making him aptly suitable for the post of DGMS (Army). He had also pointed out that in the past, officers who are appointed to the post of DGMS (Army) were not necessarily those officers who had earlier worked in the environs of the IHQ of the MoD. This fact also could not be refuted by the appellants. Therefore, we find that there has not been any proper and valid consideration in applying the criteria of inter se seniority and suitability.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: However, it is adequately answered by the respondent by pointing out that that happened because Air Marshal Maini himself chose not to be posted as DGMS (Army) because of his health reasons, which the appellants could not controvert. (iv) Even, in the present case, for appointment of DGMS (Army) the first Note dated 16 th January 2018 by DGAFMS, in no uncertain terms, stated that the appointment to this post is to be made ‘strictly on the basis of their seniority?, meaning thereby the senior most Lt. General (& Equiv) is to be posted. That Note was prepared on the assumption that the respondent is not in the reckoning as his case for promotion to the post of Lt. General was not recommended. (v) It is for the first time that in the Note dated 23 rd January 2018 the question of so-called ‘suitability? is taken up. We have used the expression ‘so-called? for the reason that (as would be discussed in some detail afterwards) even this Note dated 23 rd January 2018 does not reflect that any exercise of ?inter se suitability? is carried out strictly in accordance with the criteria laid down in the Circular dated 10 th July 1992, i.e. on the touchstone of ‘inter se seniority and suitability?. 48. Apart from the aforesaid admitted facts, we also would like to state some of the findings as recorded by the AFT, with which we are in agreement. These are listed below: (i) There has been some attempt (though we are not suggesting as to whether it was deliberate or bona fide) in denying the respondent his claim for promotion to the rank of Lt. General Events in detail on this aspect have already been narrated above, which need not be reiterated. Suffice it is to mention that even after the orders of the AFT and affirmation thereafter by the judgment of this Court, the Board had stuck to its earlier notion about the respondent. Fortunately for him, the Raksha Mantri took a fair and objective view in the matter and granted him his deserved promotion, which was legitimately due to him. (ii) As on 16 th January 2018, when DGAFMS prepared his Note for appointment to the post of DGMS (Army), which had fallen vacant few months ago, he only knew that the Review Board had again refused to recommend the case of the respondent in the rank of Lt. General Therefore, he proceeded on the basis that since the respondent is not occupying the post of Lt. General he is out of reckoning and, accordingly, Lt. General Sanjiv Chopra was the senior most officer. Proceeding on the aforesaid presumption, after excluding the respondent from consideration, he recommended Lt. General Sanjiv Chopra for appointment as DGMS (Army) being the senior most in the AFMS cadre. This Note went to the extent of recording that not only promotion is strictly on the basis of their seniority, it was being done even for the posts of ‘DGAFMS?, ‘DGsMS? and the ‘CDC IDC? who are retained in the order of seniority for administrative reasons. Within three days thereafter, when the decision of the Raksha Mantri to promote the respondent to the rank of Lt. General was declassified, in the fresh Note prepared on 23 rd January 2018, there was a complete turn around. For the first time, it was mentioned in this Note that as per the criteria Lt. General (& Equiv) will be assessed for appointment of DGMS ‘in the light of their earlier experience in a particular service?. No doubt, this criteria is mentioned in the Circular dated 10 th July 1992 and, therefore, there may not be anything wrong per se. However, we find substance in the submission of the learned senior counsel appearing for the respondent that such a realisation dawned only after coming to know that the respondent was also in the reckoning for appointment to the post of DGMS (Army) and he was the senior most officer. (iii) The manner in which this Note is written leaves a reasonable impression that the exercise was done to exclude the respondent from appointment to the post of DGMS (Army). In the first instance, though the criteria of assessment ‘in the light of their earlier experience in a particular service? is mentioned in paragraph 3 of the Note, it nowhere reproduces the exact criteria, namely, ‘inter se seniority and suitability?. Thus, while considering the earlier experience in a particular service, it was to be done in the light of inter se seniority-cum-suitability is not reflected in the said Note. In fact, there is no such exercise of inter se suitability undertaken in this Note. (iv) In paragraph 7 of the Note dated 23 rd January 2018, case of the respondent is discussed. Qua him it is mentioned that since he would be newly promoted from the rank of Major General, he does not have ‘previous exposure to the working and environs of the IHQ of the MoD?. On that basis, he is proposed for appointment as DGHS (AF) instead of DGMS (Army). This, Civil Appeal No. 5800 of 201 according to us, is not a fair and objective consideration of his suitability for the post of DGMS (Army) as it is not necessary to have working experience in IHQ alone. Mr. Patwalia had vehemently argued that the respondent had adequate administrative experience while working as Major General in Southern Command, which was equally relevant, doing similar nature of duties from which he has gained sufficient experience making him aptly suitable for the post of DGMS (Army). He had also pointed out that in the past, officers who are appointed to the post of DGMS (Army) were not necessarily those officers who had earlier worked in the environs of the IHQ of the MoD. This fact also could not be refuted by the appellants. Therefore, we find that there has not been any proper and valid consideration in applying the criteria of inter se seniority and suitability. 49. ### Response: 1

Shree Changdeo Sugar Mills, Ltd Vs. The Commissioner Of Income Tax, Bombay

in determining this point followed its decision in Raghuvanshi Mills v. Commr. of Income-tax, 1953-24 ITR 338 : (AIR 1954 Bom 85 ) and held that no holding by the Directors of a company could be regarded as one in which the public were substantially interested. We have heard Civil Appeal No. 30 of 1957 from the decision of the Bombay High Court in the Raghuvanshi Mills case, 1953-24 ITR 338 : (AIR 1954 Bom. 85 ), in which judgment has been pronounced today, and have held that that is not the correct test to apply. We have remanded the said appeal, after setting out the correct test to apply. What we have said there applies equally here. 4. There is yet another question, which arose in this appeal but not in the appeal of the Raghuvanshi Mills. As we have already stated, Mysore Mechants Ltd., held 11,880 shares of the assessee Company. If these shares could be said to be held by the public along with 4,320 shares, the public would be holding 25 per cent. of the voting power, whether or not the Directors of the Company held the rest of the shares. It was, therefore, necessary for the High Court to consider whether the shares held by Mysore Merchant Ltd., could be said to be held by the public. The High Court held against the assessee Company that they could not be counted as part of the holding by the public, and, in our judgment, the High Court has reached the correct conclusion. 5. The matter has to be judged under the third proviso to S. 23A(1), which read as follows: "Provided further that this sub-section shall not apply to any company in which the public are substantially interested or to a subsidiary company of such a company if the whole of the share capital of such subsidiary company is held by the parent company or by the nominees thereof. Explanation - For the purpose of this sub-section, - a company shall be deemed to be a company in which the public are substantially interested if shares of the company (not being shares entitled to a fixed rate of dividend, whether with or without a further right to participate in profits) carrying not less than twenty-five per cent, of the voting power have been allotted unconditionally to, or acquired unconditionally by, and are at the end of the previous year beneficially held by, the public (not including a company to which the provisions of this sub-section apply), and if any such shares have in the course of such previous year been the subject of dealings in any stock exchange in British India or are in fact freely transferable by the holders to other members of the public." 6. In applying the proviso and the Explanation, we have to give effect to the words "not including a company to which the provisions of this sub-section apply", and have to determine whether Mysore Merchants Ltd., is a company, to which the provisions of S. 23A can be said to be applicable. Learned counsel for the assessee Company contends that in deciding this, we have to be satisfied on three points, which he summarises as follows : (a) The public should not be substantially interested in that Company; (b) It must have assessable profits for the relevant assessment year; and (c) It must not have distributed 60 per cent. of its net assessable profits. He contends that unless these three conditions are fulfilled, S. 23A will not apply to Mysore Merchants Ltd., and that the shares held by it will be deemed to be held by the public. He points out that Mysore Merchants Ltd. had no assessable income in the corresponding assessment year and had suffered a loss, that conditions (b) and (c) did not, therefore, apply, and that S. 23A is not applicable to that Company. In our opinion, the paramount condition is that even in that Company the public should be beneficially interested in 25 per cent, of the voting power, and it was admitted before us that it was not a public Company at all but a private Company, and that, therefore, the public were not interested in that Company. The shares held by Mysore Merchants Ltd. cannot at all be counted as a holding in which the public are beneficially interested, in view of the exclusion contained in the Explanation. This point will not, therefore, be open for the determination of the High Court, when the question is reconsidered by the High Court in the light of our observations in Raghuvanshi Mills Ltd. v. Commr. of Income-tax, Bombay, Civil Appeal No. 30 of 1957 : (AIR 1961 SC 743 ) decided today. 7. Learned counsel for the assessee Company also contended that in view of cl. 14 of the Part B States (Taxation Concessions) Order, 1950, the provisions of S. 23A could not be applied to Mysore Merchants Ltd. That clause reads as follows : "14. Requiring distribution of dividends by private companies. - The provisions of section 23A of the Act shall not be applied in respect of the profits and gains of any previous year ending before the appointed day unless the State law contained a provision corresponding thereto." This concession would be open to Mysore Merchants Ltd. if it satisfied the terms of Cl. 14.That, however, cannot detract from the application of S. 23A to determine whether the shares held by it can be described as those in which the public are beneficially interested in another company. The Explanation requires that the shares held by a company should be considered as held by the public, only if S. 23A does not apply to it. The Concessions Order does not seek to negative this test; it only confers a benefit on a company, to which cl. 14 applies. Mysore Merchants Ltd. may be able to avail of that concession, and still fall within S. 23A for other purposes. This contention has no force.

1[ds]He contends that unless these three conditions are fulfilled, S. 23A will not apply to Mysore Merchants Ltd., and that the shares held by it will be deemed to be held by the public. He points out that Mysore Merchants Ltd. had no assessable income in the corresponding assessment year and had suffered a loss, that conditions (b) and (c) did not, therefore, apply, and that S. 23A is not applicable to that Company. In our opinion, the paramount condition is that even in that Company the public should be beneficially interested in 25 per cent, of the voting power, and it was admitted before us that it was not a public Company at all but a private Company, and that, therefore, the public were not interested in that Company. The shares held by Mysore Merchants Ltd. cannot at all be counted as a holding in which the public are beneficially interested, in view of the exclusion contained in the Explanation. This point will not, therefore, be open for the determination of the High Court, when the question is reconsidered by the High Court in the light of our observations in Raghuvanshi Mills Ltd. v. Commr. of Income-tax, Bombay, Civil Appeal No. 30 of 1957 : (AIR 1961 SC 743 ) decided todayThis concession would be open to Mysore Merchants Ltd. if it satisfied the terms of Cl. 14.That, however, cannot detract from the application of S. 23A to determine whether the shares held by it can be described as those in which the public are beneficially interested in another company. The Explanation requires that the shares held by a company should be considered as held by the public, only if S. 23A does not apply to it. The Concessions Order does not seek to negative this test; it only confers a benefit on a company, to which cl. 14 applies. Mysore Merchants Ltd. may be able to avail of that concession, and still fall within S. 23A for other purposes. This contention has no force

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: in determining this point followed its decision in Raghuvanshi Mills v. Commr. of Income-tax, 1953-24 ITR 338 : (AIR 1954 Bom 85 ) and held that no holding by the Directors of a company could be regarded as one in which the public were substantially interested. We have heard Civil Appeal No. 30 of 1957 from the decision of the Bombay High Court in the Raghuvanshi Mills case, 1953-24 ITR 338 : (AIR 1954 Bom. 85 ), in which judgment has been pronounced today, and have held that that is not the correct test to apply. We have remanded the said appeal, after setting out the correct test to apply. What we have said there applies equally here. 4. There is yet another question, which arose in this appeal but not in the appeal of the Raghuvanshi Mills. As we have already stated, Mysore Mechants Ltd., held 11,880 shares of the assessee Company. If these shares could be said to be held by the public along with 4,320 shares, the public would be holding 25 per cent. of the voting power, whether or not the Directors of the Company held the rest of the shares. It was, therefore, necessary for the High Court to consider whether the shares held by Mysore Merchant Ltd., could be said to be held by the public. The High Court held against the assessee Company that they could not be counted as part of the holding by the public, and, in our judgment, the High Court has reached the correct conclusion. 5. The matter has to be judged under the third proviso to S. 23A(1), which read as follows: "Provided further that this sub-section shall not apply to any company in which the public are substantially interested or to a subsidiary company of such a company if the whole of the share capital of such subsidiary company is held by the parent company or by the nominees thereof. Explanation - For the purpose of this sub-section, - a company shall be deemed to be a company in which the public are substantially interested if shares of the company (not being shares entitled to a fixed rate of dividend, whether with or without a further right to participate in profits) carrying not less than twenty-five per cent, of the voting power have been allotted unconditionally to, or acquired unconditionally by, and are at the end of the previous year beneficially held by, the public (not including a company to which the provisions of this sub-section apply), and if any such shares have in the course of such previous year been the subject of dealings in any stock exchange in British India or are in fact freely transferable by the holders to other members of the public." 6. In applying the proviso and the Explanation, we have to give effect to the words "not including a company to which the provisions of this sub-section apply", and have to determine whether Mysore Merchants Ltd., is a company, to which the provisions of S. 23A can be said to be applicable. Learned counsel for the assessee Company contends that in deciding this, we have to be satisfied on three points, which he summarises as follows : (a) The public should not be substantially interested in that Company; (b) It must have assessable profits for the relevant assessment year; and (c) It must not have distributed 60 per cent. of its net assessable profits. He contends that unless these three conditions are fulfilled, S. 23A will not apply to Mysore Merchants Ltd., and that the shares held by it will be deemed to be held by the public. He points out that Mysore Merchants Ltd. had no assessable income in the corresponding assessment year and had suffered a loss, that conditions (b) and (c) did not, therefore, apply, and that S. 23A is not applicable to that Company. In our opinion, the paramount condition is that even in that Company the public should be beneficially interested in 25 per cent, of the voting power, and it was admitted before us that it was not a public Company at all but a private Company, and that, therefore, the public were not interested in that Company. The shares held by Mysore Merchants Ltd. cannot at all be counted as a holding in which the public are beneficially interested, in view of the exclusion contained in the Explanation. This point will not, therefore, be open for the determination of the High Court, when the question is reconsidered by the High Court in the light of our observations in Raghuvanshi Mills Ltd. v. Commr. of Income-tax, Bombay, Civil Appeal No. 30 of 1957 : (AIR 1961 SC 743 ) decided today. 7. Learned counsel for the assessee Company also contended that in view of cl. 14 of the Part B States (Taxation Concessions) Order, 1950, the provisions of S. 23A could not be applied to Mysore Merchants Ltd. That clause reads as follows : "14. Requiring distribution of dividends by private companies. - The provisions of section 23A of the Act shall not be applied in respect of the profits and gains of any previous year ending before the appointed day unless the State law contained a provision corresponding thereto." This concession would be open to Mysore Merchants Ltd. if it satisfied the terms of Cl. 14.That, however, cannot detract from the application of S. 23A to determine whether the shares held by it can be described as those in which the public are beneficially interested in another company. The Explanation requires that the shares held by a company should be considered as held by the public, only if S. 23A does not apply to it. The Concessions Order does not seek to negative this test; it only confers a benefit on a company, to which cl. 14 applies. Mysore Merchants Ltd. may be able to avail of that concession, and still fall within S. 23A for other purposes. This contention has no force. ### Response: 1

Tehsildar, Hinganghat and Another Vs. Deorao and Others

UNTWALIA, J.1. This is an appeal by special leave from the judgment and order of the Bombay High Court dated July 28, 1967 allowing a writ application filed by the respondents. Nobody appeared to oppose this appeal on their behalf. Therefore, its hearing proceeded ex parte.2. The respondents were members of the village panchayat of village Tas which is included in the electoral division called Samudrapur-Kandhli. New elections for this division for electing to the Panchayat Samiti in accordance with Maharashtra Zila Parishads and Panchayat Samities Act, 1961 were to be held on July 31, 1967. The respondents claimed that they were members of the village panchayat and were entitled to vote at the election. Their names, therefore, ought to have been included in the list of voters entitled to vote at the election for the Panchayat Samiti. The appellant by taking an erroneous view of the law made an order on July 12, 1967 rejecting the respondents prayer for inclusion of their names in the voters list. The High Court has allowed their application, quashed the order of the appellant and directed the inclusion of their names in the list of voters.3. This appeal has remained pending in this Court for about 7 years and by this time elections must have been held to the Panchayat Samiti or fresh elections must have been held to fill up the office of the members of the village panchayat. Since the other side has not appeared, we could not be sure as to whether this appeal has become infructuous or not. In any event it has to fail as being without any merit.4. Admittedly, the respondents were members of the Tas Gram Panchayat since the year 1960. Fresh election was held in the Gram Panchayat aforesaid in the year 1966. This election was set aside by the Civil Judge, Junior Division Hinganghat and, therefore the new members could not take their office. In such a situation the appellant took the view that the term of the office of the respondents had expired under Section 27 of the Bombay Village Panchayats Act, 1958, Bombay Act III of 1959 - hereinafter referred to as the Act. The High Court has taken the view that the term of the office of the respondent stood extended under sub-section (2) of Section 28 of the Act. In our Opinion the High Court is right in its view.5. Section 27 as stood at the relevant time read as follows :27 (1) The members of a panchayat shall save as otherwise provided in this Act, hold office for a term of four years.(2) The State Government may, after consulting the Standing Committee by order in writing and for reasons recorded therein, extent the said term for a period not exceeding in the aggregate five years. Any order shall be notified in such manner as the State Government may approve.It would be useful to quote Section 28 also in full :28 (1) The term of office of the members elected at a general election including the Chairman of Chairmen of the co-operative society or societies, as the case may be, referred to in clause (a) of sub-section (1) of Section 10 or appointed under sub-section (3) of Section 10 shall deemed to commence on the date of the first meeting of the panchayat. The first meeting of the panchayat shall be held on a day fixed by the Collector within four weeks from the date on which the names of elected members are published under Section 10 :Provided that, if such day fixed for the first meeting falls prior to the date on which the term of office of the retiring members expires under Section 27 or prior to the expiry of the period for which the panchayat has been superseded under Section 145, the first meeting shall be held on a date not exceeding ten days from such expiry of the term of office of the members or the expiry of the period of supersession.(2) The term of office of the outgoing members shall be deemed to extend to, and expire with the day before such meetingIt would thus be seen that the scheme of the Act is that ordinarily and generally fresh election for filling up the office of the members of the panchayat should be held before the expiry of their term as provided in sub-section (1) of Section 27 or within the term extended under sub-section (2). The proviso to sub-section (1) of Section 28 also lends support to this view. But the term of office of members under Section 27 in express language is subject to the other provisions of the Act because the expression used in sub-section (1) is "save as otherwise provided in this Act". The office of the members of the panchayat is not to remain vacant and, therefore, sub-section (2) of Section 28 by a deeming provision extends the term of the outgoing members to the day before the meeting called and held in accordance with sub-section (1). Since the fresh election held in 1966 was set aside and no meeting was held, the term of the office of the respondents the outgoing members, stood extended and did not expire until the day before the holding of the meeting of the duly elected members.

0[ds]3. This appeal has remained pending in this Court for about 7 years and by this time elections must have been held to the Panchayat Samiti or fresh elections must have been held to fill up the office of the members of the village panchayat. Since the other side has not appeared, we could not be sure as to whether this appeal has become infructuous or not. In any event it has to fail as being without any merit.4. Admittedly, the respondents were members of the Tas Gram Panchayat since the year 1960. Fresh election was held in the Gram Panchayat aforesaid in the year 1966. This election was set aside by the Civil Judge, Junior Division Hinganghat and, therefore the new members could not take their office. In such a situation the appellant took the view that the term of the office of the respondents had expired under Section 27 of the Bombay Village Panchayats Act, 1958, Bombay Act III of 1959hereinafter referred to as the Act. The High Court has taken the view that the term of the office of the respondent stood extended under(2) of Section 28 of the Act. In our Opinion the High Court is right in itswould thus be seen that the scheme of the Act is that ordinarily and generally fresh election for filling up the office of the members of the panchayat should be held before the expiry of their term as provided in(1) of Section 27 or within the term extended under(2). The proviso to(1) of Section 28 also lends support to this view. But the term of office of members under Section 27 in express language is subject to the other provisions of the Act because the expression used in(1) is "save as otherwise provided in this Act". The office of the members of the panchayat is not to remain vacant and, therefore,(2) of Section 28 by a deeming provision extends the term of the outgoing members to the day before the meeting called and held in accordance with(1). Since the fresh election held in 1966 was set aside and no meeting was held, the term of the office of the respondents the outgoing members, stood extended and did not expire until the day before the holding of the meeting of the duly elected members.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: UNTWALIA, J.1. This is an appeal by special leave from the judgment and order of the Bombay High Court dated July 28, 1967 allowing a writ application filed by the respondents. Nobody appeared to oppose this appeal on their behalf. Therefore, its hearing proceeded ex parte.2. The respondents were members of the village panchayat of village Tas which is included in the electoral division called Samudrapur-Kandhli. New elections for this division for electing to the Panchayat Samiti in accordance with Maharashtra Zila Parishads and Panchayat Samities Act, 1961 were to be held on July 31, 1967. The respondents claimed that they were members of the village panchayat and were entitled to vote at the election. Their names, therefore, ought to have been included in the list of voters entitled to vote at the election for the Panchayat Samiti. The appellant by taking an erroneous view of the law made an order on July 12, 1967 rejecting the respondents prayer for inclusion of their names in the voters list. The High Court has allowed their application, quashed the order of the appellant and directed the inclusion of their names in the list of voters.3. This appeal has remained pending in this Court for about 7 years and by this time elections must have been held to the Panchayat Samiti or fresh elections must have been held to fill up the office of the members of the village panchayat. Since the other side has not appeared, we could not be sure as to whether this appeal has become infructuous or not. In any event it has to fail as being without any merit.4. Admittedly, the respondents were members of the Tas Gram Panchayat since the year 1960. Fresh election was held in the Gram Panchayat aforesaid in the year 1966. This election was set aside by the Civil Judge, Junior Division Hinganghat and, therefore the new members could not take their office. In such a situation the appellant took the view that the term of the office of the respondents had expired under Section 27 of the Bombay Village Panchayats Act, 1958, Bombay Act III of 1959 - hereinafter referred to as the Act. The High Court has taken the view that the term of the office of the respondent stood extended under sub-section (2) of Section 28 of the Act. In our Opinion the High Court is right in its view.5. Section 27 as stood at the relevant time read as follows :27 (1) The members of a panchayat shall save as otherwise provided in this Act, hold office for a term of four years.(2) The State Government may, after consulting the Standing Committee by order in writing and for reasons recorded therein, extent the said term for a period not exceeding in the aggregate five years. Any order shall be notified in such manner as the State Government may approve.It would be useful to quote Section 28 also in full :28 (1) The term of office of the members elected at a general election including the Chairman of Chairmen of the co-operative society or societies, as the case may be, referred to in clause (a) of sub-section (1) of Section 10 or appointed under sub-section (3) of Section 10 shall deemed to commence on the date of the first meeting of the panchayat. The first meeting of the panchayat shall be held on a day fixed by the Collector within four weeks from the date on which the names of elected members are published under Section 10 :Provided that, if such day fixed for the first meeting falls prior to the date on which the term of office of the retiring members expires under Section 27 or prior to the expiry of the period for which the panchayat has been superseded under Section 145, the first meeting shall be held on a date not exceeding ten days from such expiry of the term of office of the members or the expiry of the period of supersession.(2) The term of office of the outgoing members shall be deemed to extend to, and expire with the day before such meetingIt would thus be seen that the scheme of the Act is that ordinarily and generally fresh election for filling up the office of the members of the panchayat should be held before the expiry of their term as provided in sub-section (1) of Section 27 or within the term extended under sub-section (2). The proviso to sub-section (1) of Section 28 also lends support to this view. But the term of office of members under Section 27 in express language is subject to the other provisions of the Act because the expression used in sub-section (1) is "save as otherwise provided in this Act". The office of the members of the panchayat is not to remain vacant and, therefore, sub-section (2) of Section 28 by a deeming provision extends the term of the outgoing members to the day before the meeting called and held in accordance with sub-section (1). Since the fresh election held in 1966 was set aside and no meeting was held, the term of the office of the respondents the outgoing members, stood extended and did not expire until the day before the holding of the meeting of the duly elected members. ### Response: 0

New India Assurance Co. Ltd Vs. Sukanta Kumar Behera

Arun Mishra, J. 1. Leave granted. 2. The appeal has been preferred by the insurer against the order dated 9.5.2014, passed by the High Court of Orissa at Cuttack in M.A.C.A. No.576 of 2008 awarding compensation of Rs.55,00,000/- to the respondent, Dr. Sukanta Kumar Behera for the injuries sustained and permanent disability incurred by him in the accident dated 9.9.2001. The Claims Tribunal had awarded compensation of Rs.4,01,414/-. 3. The appellant was working as Senior Medical Officer in Bhilai Steel Plant. He met with an accident and ultimately due to permanent disability incurred by him, his services were terminated on 29.8.2007. He incurred 60% permanent disability owing to various injuries sustained in the accident. The question to be considered is whether the High Court is justified in awarding compensation of Rs.55,00,000/- without any discussion and computation. The approach of the High Court cannot be said to be justified in such cases of injury. It is necessary to make computation of compensation to be awarded on account of pecuniary and non-pecuniary heads.4. The claimant suffered fracture in the right forearm, right femur neck, fracture of right radius midshaft and fracture of right ulnar midshaft in the right hand and grievous fracture of tebia in the left leg. His cervical spinal cord was also injured. He also suffered grievous abdomen injury for which he had to be operated. Besides, he also suffered injury in the chest.5. He was admitted in various hospitals as indoor patient. Firstly from 9.9.2001 to 24.9.2001, he was treated in SCB Medical College and Hospital, Cuttack where his left leg was operated, operation of abdomen, traction of right leg was done and a slab was put in right hand. Secondly, he was treated in Shanti Hospital, Cuttack, from 24.9.2001 to 30.9.2001 where he was operated upon for implanting two steel plates in right leg. Thirdly, he was admitted in Kalinga Hospital, Bhubaneswar, for treatment from 1.10.2001 to 15.10.2001 for abdominal surgery in which considerable part of his stomach and large intestine was removed to save his life. Thereafter, he was admitted in C.M.C. Hospital, Vellore as indoor patient from 16.10.2001 to 25.5.2002 for 7-1/2 months and again in the month of February 2004 he was admitted there for a period of 8 days. At Vellore in CMC Hospital, several surgeries were performed, besides bone grafting in left leg and removal of implanted right femur due to infection and discharging sinus. The amount spent by him at Vellore CMC Hospital towards treatment and medical expenditure was reimbursed to the extent of Rs.10,72,013/-. 6. As per Dr. R.K. Pandey, the claimant Dr. Sukanta Kumar Behera sustained injuries resulting into 60% permanent disability. In future, treatment of left ankle, foot drop and right hip replacement surgery may also be required. It is also apparent that due to removal of large part of intestine the claimant will have to remain on special diet and his digestion capacity has been declined to a great extent due to abdominal surgery for rest of his life. It is also apparent that he had also suffered grievous injuries resulting into 60% permanent disability besides one inch shortening of right limb. 7. The insurer company has contended that claimant was getting Rs.23,000/- per month at the time of accident. It appears that he was getting non-practitioner allowance also in addition to the salary. It would be appropriate to take his salary at Rs.25,000/- per month. Considering the fact that 60% permanent disability has been incurred and considering over all injuries caused, there is a loss of working capacity to the said extent. Monthly loss of earning capacity comes to Rs.15,000/-. Multiplier of 16 is applicable at the age of 36 years. Expenditure must have been incurred in 8 days when claimant was treated in Shanti Hospital when surgery of right leg was performed and two plates were inserted which we quantify at Rs.20,000/-. There was loss of earning during course of treatment which has been determined by the Claims Tribunal and medical expenditure in SCB Medical College and Hospital, Cuttack comes to Rs.66,566/-. Compensation for pain and suffering, expenditure on attendant and on special diet has also to be awarded. The compensation after deducting medical reimbursement already received, is awarded in the following manner :DescriptionAmount (Rs.)For loss of earning capacity due to permanent disability (Rs.15,000 x 12 x 16)28,80,000/-Loss of salary during treatment in the year 2001-20022,14,848/-Expenditure incurred in SCB Medical College & Hospital, Cuttack66,566/-Expenditure incurred in Shanti Hospital20,000/-Physical pain and sufferings2,00,000/-Expenditure incurred on attendant for 9 months during treatment90,000/-Special diet28,500/-Grand Total:34,99,914/- 8.

1[ds]Considering the fact that 60% permanent disability has been incurred and considering over all injuries caused, there is a loss of working capacity to the said extent. Monthly loss of earning capacity comes to Rs.15,000/-. Multiplier of 16 is applicable at the age of 36 years. Expenditure must have been incurred in 8 days when claimant was treated in Shanti Hospital when surgery of right leg was performed and two plates were inserted which we quantify at Rs.20,000/-. There was loss of earning during course of treatment which has been determined by the Claims Tribunal and medical expenditure in SCB Medical College and Hospital, Cuttack comes to Rs.66,566/-. Compensation for pain and suffering, expenditure on attendant and on special diet has also to be awarded. The compensation after deducting medical reimbursement already received, is awarded in the following manner :DescriptionAmount (Rs.)For loss of earning capacity due to permanent disability (Rs.15,000 x 12 x 16)28,80,000/-Loss of salary during treatment in the year 2001-20022,14,848/-Expenditure incurred in SCB Medical College & Hospital, Cuttack66,566/-Expenditure incurred in Shanti Hospital20,000/-Physical pain and sufferings2,00,000/-Expenditure incurred on attendant for 9 months during treatment90,000/-Special diet28,500/-Grand Total:34,99,914/-

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: Arun Mishra, J. 1. Leave granted. 2. The appeal has been preferred by the insurer against the order dated 9.5.2014, passed by the High Court of Orissa at Cuttack in M.A.C.A. No.576 of 2008 awarding compensation of Rs.55,00,000/- to the respondent, Dr. Sukanta Kumar Behera for the injuries sustained and permanent disability incurred by him in the accident dated 9.9.2001. The Claims Tribunal had awarded compensation of Rs.4,01,414/-. 3. The appellant was working as Senior Medical Officer in Bhilai Steel Plant. He met with an accident and ultimately due to permanent disability incurred by him, his services were terminated on 29.8.2007. He incurred 60% permanent disability owing to various injuries sustained in the accident. The question to be considered is whether the High Court is justified in awarding compensation of Rs.55,00,000/- without any discussion and computation. The approach of the High Court cannot be said to be justified in such cases of injury. It is necessary to make computation of compensation to be awarded on account of pecuniary and non-pecuniary heads.4. The claimant suffered fracture in the right forearm, right femur neck, fracture of right radius midshaft and fracture of right ulnar midshaft in the right hand and grievous fracture of tebia in the left leg. His cervical spinal cord was also injured. He also suffered grievous abdomen injury for which he had to be operated. Besides, he also suffered injury in the chest.5. He was admitted in various hospitals as indoor patient. Firstly from 9.9.2001 to 24.9.2001, he was treated in SCB Medical College and Hospital, Cuttack where his left leg was operated, operation of abdomen, traction of right leg was done and a slab was put in right hand. Secondly, he was treated in Shanti Hospital, Cuttack, from 24.9.2001 to 30.9.2001 where he was operated upon for implanting two steel plates in right leg. Thirdly, he was admitted in Kalinga Hospital, Bhubaneswar, for treatment from 1.10.2001 to 15.10.2001 for abdominal surgery in which considerable part of his stomach and large intestine was removed to save his life. Thereafter, he was admitted in C.M.C. Hospital, Vellore as indoor patient from 16.10.2001 to 25.5.2002 for 7-1/2 months and again in the month of February 2004 he was admitted there for a period of 8 days. At Vellore in CMC Hospital, several surgeries were performed, besides bone grafting in left leg and removal of implanted right femur due to infection and discharging sinus. The amount spent by him at Vellore CMC Hospital towards treatment and medical expenditure was reimbursed to the extent of Rs.10,72,013/-. 6. As per Dr. R.K. Pandey, the claimant Dr. Sukanta Kumar Behera sustained injuries resulting into 60% permanent disability. In future, treatment of left ankle, foot drop and right hip replacement surgery may also be required. It is also apparent that due to removal of large part of intestine the claimant will have to remain on special diet and his digestion capacity has been declined to a great extent due to abdominal surgery for rest of his life. It is also apparent that he had also suffered grievous injuries resulting into 60% permanent disability besides one inch shortening of right limb. 7. The insurer company has contended that claimant was getting Rs.23,000/- per month at the time of accident. It appears that he was getting non-practitioner allowance also in addition to the salary. It would be appropriate to take his salary at Rs.25,000/- per month. Considering the fact that 60% permanent disability has been incurred and considering over all injuries caused, there is a loss of working capacity to the said extent. Monthly loss of earning capacity comes to Rs.15,000/-. Multiplier of 16 is applicable at the age of 36 years. Expenditure must have been incurred in 8 days when claimant was treated in Shanti Hospital when surgery of right leg was performed and two plates were inserted which we quantify at Rs.20,000/-. There was loss of earning during course of treatment which has been determined by the Claims Tribunal and medical expenditure in SCB Medical College and Hospital, Cuttack comes to Rs.66,566/-. Compensation for pain and suffering, expenditure on attendant and on special diet has also to be awarded. The compensation after deducting medical reimbursement already received, is awarded in the following manner :DescriptionAmount (Rs.)For loss of earning capacity due to permanent disability (Rs.15,000 x 12 x 16)28,80,000/-Loss of salary during treatment in the year 2001-20022,14,848/-Expenditure incurred in SCB Medical College & Hospital, Cuttack66,566/-Expenditure incurred in Shanti Hospital20,000/-Physical pain and sufferings2,00,000/-Expenditure incurred on attendant for 9 months during treatment90,000/-Special diet28,500/-Grand Total:34,99,914/- 8. ### Response: 1

SHIV KUMAR JATIA Vs. STATE OF NCT OF DELHI

negligence basing on a status report, referred to, in the order passed by the Joint Commissioner of Police dated 21.08.2015. 33. The appellants (accused) are also sought to be prosecuted for the alleged offence under Section 4 of COTPA 2003. To prosecute the appellants-accused for the offence under Section 4 of COTPA 2003 it is alleged that the terrace on the 6 th Floor was open to the guests, despite knowing that terrace area was not a proper smoking area and was not properly lit and safe. Section 4 and proviso to the said Section of COTPA 2003 read as under:- 4. Prohibition of smoking in a public place.-No person shall smoke in any public place: Provided that in a hotel having 30 rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made. From a reading of the above Section 4 of the Act it is apparent that it prohibits smoking in any public place. However, as per the proviso, a hotel having 30 rooms or a restaurant having seating capacity of 30 persons or more and in the airports, a separate provision for smoking area or space may be made. It is clear that it obligates a hotel having 30 rooms or a restaurant with a seating capacity of 30 persons or more shall have a provision for separate smoking area. In the case on hand it is merely alleged that though the terrace was not notified as a smoking area, the injured and other resident guests of the hotel were allowed to smoke in the terrace area in the 6 th Floor. It is the specific case of the appellants-accused that there is a separate smoking area at the lobby level of the hotel. In absence of making any allegations that hotel has not provided at all any smoking area in the entire hotel there is absolutely no reason or justification to prosecute the appellants-accused for the alleged offence under Section 4 of COTPA 2003. Even if the allegations are taken on the face value as mentioned in the chargesheet no offence is made out against both the appellants qua the alleged offence committed by them to prosecute under Section 4 of the COTPA 2003. For the aforesaid reasons, so far as the prosecution under Section 4 of COTPA 2003 is concerned it is a fit case to be quashed against both the accused no.2 – Shiv Kumar Jatia and also accused no.4 – Aseem Kapoor. 34. From a reading of the impugned order passed by the High Court we are of the view that the High Court mainly relied on the judgment in the case of Sushil Ansal vs. State Through CBI (2014) 6 SCC 173 . In the aforesaid case which relates to Uphaar Cinema which caught fire and resulted in death of number of persons was a case where a repair to the transformer that had been made on the day before the incident, was not properly done. The faulty repair to the transformer resulted in a loose connection that led to the catching of fire to the transformer and all the cars in the parking lot were burnt in the fire which resulted in suffocation for viewers of the cinema in the hall. Further it was held that in that case there was an addition of an 8-seater box that closed off the exit on the right side of the balcony. It was also found that the owners of the cinema have added 52 additional seats to the theatre which blocked the gangway on the right side of the movie hall. In the aforesaid case both A-1 and A-2 were found guilty not by virtue of their position in the company, but rather by virtue of specific allegations made against them. In the aforesaid case accused themselves were found to be occupiers, there were gross statutory violations, which had a direct nexus with the death of the victims. Further looking at the facts and circumstances of the present case, the said case cannot be applied against the appellants- accused. 35. Having regard to the case law referred above by applying the facts of the case on hand we are of the view that the case of the appellant-accused no.2 Shiv Kumar Jatia in Crl.Appeal @ SLP (Crl.) No.8008 of 2018 falls within one of the categories enumerated in the case of State of Haryana v. Bhajan Lal 1992 Supp.(1) SCC 335 to invoke the inherent powers under Section 482 of Cr.P.C. either to prevent the abuse of the process of court or otherwise to secure the ends of justice. 36. In the criminal appeals @ SLP (Crl.)Nos.10054- 10056 of 2018, the sister of the victim, has also questioned the directions issued by the High Court allowing them to appear before the Trial Court through an advocate and by permitting them to appear as and when there is a specific direction by the Trial Court to appear before such court. It is the case of the appellant-complainant in the above said criminal appeals that while dismissing the criminal misc. cases filed under Section 482 of Cr.P.C., the High Court has committed error in issuing directions as referred above. It is the case of the said appellant that to dispense with personal appearance and allowing the accused through an advocate can be considered only by the Magistrate under Section 205 and/or 317 of Cr.P.C. But without recording any reason the High Court has issued such directions which are impugned in the appeals. Having perused the directions issued permitting the accused to appear through an advocate, such direction is within the power of the High Court in exercise of inherent powers conferred under Section 482 Cr.P.C. Having regard to nature of directions issued by the High Court, as referred above, we are of the view that it is not a fit case to interfere with the same, in these appeals.

1[ds]21. We have considered the detailed submissions, arguments advanced by the learned counsel on both the sides and also perused order and other materials placed on recordHaving regard to the order which we propose to pass, we feel it is not desirable to record findings in detail, except to the extent required for the disposal of these appeals. As much as these appeals are filed against the order passed on application for quashing the proceedings, under Section 482 of Cr.P.C., any findings on various contentious issues will prejudice the case of parties during the trial28. Though there are allegations of negligence on the part of hotel and its officers who are incharge of day to day affairs of the hotel, so far as appellant– accused no.2 Shiv Kumar Jatia is concerned, no allegation is made directly attributing negligence with the criminal intent attracting provisions under Sections 336, 338 read with Section 32 of IPC. Taking contents of the final report as it is we are of the view that, there is no reason and justification to proceed against him only on ground that he was the Managing Director of M/s Asian Hotels (North) Limited, which runs Hotel Hyatt Regency. The mere fact that he was chairing the meetings of the company and taking decisions, by itself cannot directly link the allegation of negligence with the criminal intent, so far as appellant–accused no.2. Applying the judgment in the case of Sunil Bharti Mittal (2015) 4 SCC 609 we are of the view that the said view expressed by this Court, supports the case of appellant/accused no.229. By applying the ratio laid down by this Court in the case of Sunil Bharti Mittal 2 it is clear that an individual either as a Director or a Managing Director or Chairman of the company can be made an accused, along with the company, only if there is sufficient material to prove his active role coupled with the criminal intent. Further the criminal intent alleged must have direct nexus with the accusedIn the case on hand principally the allegations are made against the first accused-company which runs Hotel Hyatt Regency. At the same time, the Managing Director of such company who is accused no.2 is a party by making vague allegations that he was attending all the meetings of the company and various decisions were being taken under his signatures. Applying the ratio laid down in the aforesaid cases, it is clear that principally the allegations are made only against the company and other staff members who are incharge of day to day affairs of the company. In absence of specific allegations against the Managing Director of the company and having regard to nature of allegations made which are vague in nature, we are of the view that it is a fit case for quashing the proceedings, so far as the Managing Director is concerned32. With reference to negligence and alleged violation of licence conditions by the General Manager and other staff members of the hotel, who are incharge of day to day affairs of the hotel, is a matter which is to be examined during trial. Although it is the case of the accused no.4/General Manager, that he was also out of country on the date of incident, at the same time it is to be noticed that he is General Manager of the very hotel and whether any incharge arrangements are made of his responsibilities etc. is a matter which is to be examined only during trial. He stands on a different footing to that of, Managing Director of M/s. Asian Hotels (North) Limited, who is accused no.2. When the allegation is made that there is a violation of licence conditions and negligence against the General Manager and other staff members, appropriate findings can be recorded after full-fledged trial. It is not possible to record any finding of negligence basing on a status report, referred to, in the order passed by the Joint Commissioner of Police dated 21.08.2015From a reading of the above Section 4 of the Act it is apparent that it prohibits smoking in any public place. However, as per the proviso, a hotel having 30 rooms or a restaurant having seating capacity of 30 persons or more and in the airports, a separate provision for smoking area or space may be made. It is clear that it obligates a hotel having 30 rooms or a restaurant with a seating capacity of 30 persons or more shall have a provision for separate smoking area. In the case on hand it is merely alleged that though the terrace was not notified as a smoking area, the injured and other resident guests of the hotel were allowed to smoke in the terrace area in the 6 th Floor. It is the specific case of the appellants-accused that there is a separate smoking area at the lobby level of the hotel. In absence of making any allegations that hotel has not provided at all any smoking area in the entire hotel there is absolutely no reason or justification to prosecute the appellants-accused for the alleged offence under Section 4 of COTPA 2003. Even if the allegations are taken on the face value as mentioned in the chargesheet no offence is made out against both the appellants qua the alleged offence committed by them to prosecute under Section 4 of the COTPA 2003. For the aforesaid reasons, so far as the prosecution under Section 4 of COTPA 2003 is concerned it is a fit case to be quashed against both the accused no.2 – Shiv Kumar Jatia and also accused no.4 – Aseem KapoorIn the aforesaid case accused themselves were found to be occupiers, there were gross statutory violations, which had a direct nexus with the death of the victims. Further looking at the facts and circumstances of the present case, the said case cannot be applied against the appellants- accused35. Having regard to the case law referred above by applying the facts of the case on hand we are of the view that the case of the appellant-accused no.2 Shiv Kumar Jatia in Crl.Appeal @ SLP (Crl.) No.8008 of 2018 falls within one of the categories enumerated in the case of State of Haryana v. Bhajan Lal 1992 Supp.(1) SCC 335 to invoke the inherent powers under Section 482 of Cr.P.C. either to prevent the abuse of the process of court or otherwise to secure the ends of justice36. In the criminal appeals @ SLP (Crl.)Nos.10054- 10056 of 2018, the sister of the victim, has also questioned the directions issued by the High Court allowing them to appear before the Trial Court through an advocate and by permitting them to appear as and when there is a specific direction by the Trial Court to appear before such court. It is the case of the appellant-complainant in the above said criminal appeals that while dismissing the criminal misc. cases filed under Section 482 of Cr.P.C., the High Court has committed error in issuing directions as referred above. It is the case of the said appellant that to dispense with personal appearance and allowing the accused through an advocate can be considered only by the Magistrate under Section 205 and/or 317 of Cr.P.C. But without recording any reason the High Court has issued such directions which are impugned in the appeals. Having perused the directions issued permitting the accused to appear through an advocate, such direction is within the power of the High Court in exercise of inherent powers conferred under Section 482 Cr.P.C. Having regard to nature of directions issued by the High Court, as referred above, we are of the view that it is not a fit case to interfere with the same, in these appeals.

### 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: negligence basing on a status report, referred to, in the order passed by the Joint Commissioner of Police dated 21.08.2015. 33. The appellants (accused) are also sought to be prosecuted for the alleged offence under Section 4 of COTPA 2003. To prosecute the appellants-accused for the offence under Section 4 of COTPA 2003 it is alleged that the terrace on the 6 th Floor was open to the guests, despite knowing that terrace area was not a proper smoking area and was not properly lit and safe. Section 4 and proviso to the said Section of COTPA 2003 read as under:- 4. Prohibition of smoking in a public place.-No person shall smoke in any public place: Provided that in a hotel having 30 rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made. From a reading of the above Section 4 of the Act it is apparent that it prohibits smoking in any public place. However, as per the proviso, a hotel having 30 rooms or a restaurant having seating capacity of 30 persons or more and in the airports, a separate provision for smoking area or space may be made. It is clear that it obligates a hotel having 30 rooms or a restaurant with a seating capacity of 30 persons or more shall have a provision for separate smoking area. In the case on hand it is merely alleged that though the terrace was not notified as a smoking area, the injured and other resident guests of the hotel were allowed to smoke in the terrace area in the 6 th Floor. It is the specific case of the appellants-accused that there is a separate smoking area at the lobby level of the hotel. In absence of making any allegations that hotel has not provided at all any smoking area in the entire hotel there is absolutely no reason or justification to prosecute the appellants-accused for the alleged offence under Section 4 of COTPA 2003. Even if the allegations are taken on the face value as mentioned in the chargesheet no offence is made out against both the appellants qua the alleged offence committed by them to prosecute under Section 4 of the COTPA 2003. For the aforesaid reasons, so far as the prosecution under Section 4 of COTPA 2003 is concerned it is a fit case to be quashed against both the accused no.2 – Shiv Kumar Jatia and also accused no.4 – Aseem Kapoor. 34. From a reading of the impugned order passed by the High Court we are of the view that the High Court mainly relied on the judgment in the case of Sushil Ansal vs. State Through CBI (2014) 6 SCC 173 . In the aforesaid case which relates to Uphaar Cinema which caught fire and resulted in death of number of persons was a case where a repair to the transformer that had been made on the day before the incident, was not properly done. The faulty repair to the transformer resulted in a loose connection that led to the catching of fire to the transformer and all the cars in the parking lot were burnt in the fire which resulted in suffocation for viewers of the cinema in the hall. Further it was held that in that case there was an addition of an 8-seater box that closed off the exit on the right side of the balcony. It was also found that the owners of the cinema have added 52 additional seats to the theatre which blocked the gangway on the right side of the movie hall. In the aforesaid case both A-1 and A-2 were found guilty not by virtue of their position in the company, but rather by virtue of specific allegations made against them. In the aforesaid case accused themselves were found to be occupiers, there were gross statutory violations, which had a direct nexus with the death of the victims. Further looking at the facts and circumstances of the present case, the said case cannot be applied against the appellants- accused. 35. Having regard to the case law referred above by applying the facts of the case on hand we are of the view that the case of the appellant-accused no.2 Shiv Kumar Jatia in Crl.Appeal @ SLP (Crl.) No.8008 of 2018 falls within one of the categories enumerated in the case of State of Haryana v. Bhajan Lal 1992 Supp.(1) SCC 335 to invoke the inherent powers under Section 482 of Cr.P.C. either to prevent the abuse of the process of court or otherwise to secure the ends of justice. 36. In the criminal appeals @ SLP (Crl.)Nos.10054- 10056 of 2018, the sister of the victim, has also questioned the directions issued by the High Court allowing them to appear before the Trial Court through an advocate and by permitting them to appear as and when there is a specific direction by the Trial Court to appear before such court. It is the case of the appellant-complainant in the above said criminal appeals that while dismissing the criminal misc. cases filed under Section 482 of Cr.P.C., the High Court has committed error in issuing directions as referred above. It is the case of the said appellant that to dispense with personal appearance and allowing the accused through an advocate can be considered only by the Magistrate under Section 205 and/or 317 of Cr.P.C. But without recording any reason the High Court has issued such directions which are impugned in the appeals. Having perused the directions issued permitting the accused to appear through an advocate, such direction is within the power of the High Court in exercise of inherent powers conferred under Section 482 Cr.P.C. Having regard to nature of directions issued by the High Court, as referred above, we are of the view that it is not a fit case to interfere with the same, in these appeals. ### Response: 1