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Masood Ahmad Vs. Rent Control & Eviction Officer & Others

give preference to the landlord if he was satisfied that the landlord bonafide needed the accommodation for his personal occupation. It was submitted that demolition of the building followed by reconstruction therefore was not within the bona fide need of the landlord covered by Rule 6. Our attention was drawn to a judgment of the Allahabad High Court in H. M. Bux v. Rent Control and Eviction Officer ((1958) All LJ 45) where the High Court rejected the contention based on the dictum in an earlier decision in Gada Dhar Prasad Sharma v. District Magistrate, Lucknow ((1956) All LJ 694) that the landlord was "entitled to preference" under Rule 6 and "unless the Rent Control and Eviction Officer thinks that his need is not genuine in the sense that he dose not want to live in the house but wants to take it for somebody else it is incumbent on the Rent Control and Eviction officer to allot the landlord." In the view of the High Court in Buxs case there was no justification for holding that "except in the case in which the landlord wants the accommodation for the purpose of letting it out to another person, the Rent Control and Eviction Officer is bound to conclude that the need of the landlord is genuine." According to the High Court; Letting out to another person could not be employed as the sole test for deciding whether the landlord is to be allowed the benefit of the rule. In our view the decision in Buxs case does not help the appellant before us as the High Court - in our view, rightly - pointed out that "each case must necessarily depend on its own facts". In this case, the facts are that two shops adjoining the accommodation in question are in the occupation of the landlord and the roof thereof has fallen. There is nothing to contradict the landlords case that the whole building is old and dilapidated and requires to be demolished and that he needed the premises for erecting a cinema house with office accommodation etc. Apparently the State Government was satisfied with this reason. We find ourselves unable to subscribe to the view that even if the building is in a dilapidated condition a portion whereof is without a roof and the landlord wants to put up a cinema theatre to carry on business he does not require the accommodation bona fide for his personal need. 9. Points (2) and (7) can be disposed of together. Our attention was drawn to the fact that the landlord had made an application for release of the accommodation in his favour as early as August 24, 1967. The letter was sent under certificate of posting bearing the postal mark of that date. We were also referred to annexure F to the counter affidavit of the landlord before the High Court purporting to show that the copy of the address written on the envelope of the letter to the officer bore the postal stamp of August 24. The State Government had sent for the entire record as well as the report of the officer on the application of the landlord and it was on a scrutiny of the entire facts and circumstances that the State Government took the view that the officer had failed to consider the application of the landlord. Nothing has been shown to us as to why we should reject the view of the State Government formed on the material before it. It is evident that the appellant had gone into possession even before the allotment order was made and was trying his best to hold on to it. The allotment order of October 21, was subject to the revisionary jurisdiction of the State Government under Section 7-F. Very wide powers are give to the State Government under this section and as the State Government directed the cancellation of the allotment in favour of the appellant on a perusal of the cancellation of the allotment in favour of the appellant on a perusal of the record including the report of the officer and the appellants memorandum putting forward all the grounds urged in his favour, the High Court rightly took the view that the order could not be questioned. 10. On the third point, counsel submitted that as the landlord must have been aware of the fact that the tenant was dead and the accommodation had fallen vacant and as he kept quiet even after the notification of vacancy by the Allotment Committee he cannot complain of the allotment in favour of the appellant. Moreover, it was urged, it was only after the allotment in favour of the appellant that the landlord sought to have an order of release in his favour; in consequence his application should have been thrown out by the State Government. No question of estoppel arises in this case. The State Government did not take the view that the landlords application was not made on August 24 and expressly found that the Officer had failed to consider it. 11. From the above, it is clear that the order under Section 7-F cannot be questioned on the ground that the State Government had failed to give reasons for rejecting the officers order. The State Government gave its reasons quite clearly when it noted that the landlords application had not been considered. The State Government also hold that the landlord needed the premises for reconstruction. This disposes of point (4). 12. In the above view of the matter points (5) and (6) do not call for consideration. The landlord had made an application which was not considered and if his application had been considered, his preferential right could not be ignored. We are not concerned to go into the question as to whether proceedings under Section 7-A can be properly instituted as this did not form the subject matter of the writ petition of the appellant nor was any relief asked for on any such ground.

0[ds]3. The order of the State Government shows that it was made on a perusal of the record. The view taken by the revising authority was that the landlords release application dated August 24, 1967 "was not considered by the opposite party (the appellant) was made to regularise the illegal occupation of the premises in dispute." According to the order "the opposite party was successful in securing an allotment order when he should in fact have been proceeded against under the provisions of the Actor illegal occupation with the assistance of the widow of the former tenant." In the result the State Government set aside the order of allotment and directed release of the accommodation in dispute to the landlord for reconstruction8. We are unable to find any merit in any of the submissions made on behalf of the appellant. On the first point, counsel submitted that it being the duty of the landlord and the tenant to notify the District Magistrate about the vacancy or the imminence thereof, the District Magistrate could only give preference to the landlord if he was satisfied that the landlord bonafide needed the accommodation for his personal occupation. It was submitted that demolition of the building followed by reconstruction therefore was not within the bona fide need of the landlord covered by Rule 6. Our attention was drawn to a judgment of the Allahabad High Court in H. M. Bux v. Rent Control and Eviction Officer ((1958) All LJ 45) where the High Court rejected the contention based on the dictum in an earlier decision in Gada Dhar Prasad Sharma v. District Magistrate, Lucknow ((1956) All LJ 694) that the landlord was "entitled to preference" under Rule 6 and "unless the Rent Control and Eviction Officer thinks that his need is not genuine in the sense that he dose not want to live in the house but wants to take it for somebody else it is incumbent on the Rent Control and Eviction officer to allot the landlord." In the view of the High Court in Buxs case there was no justification for holding that "except in the case in which the landlord wants the accommodation for the purpose of letting it out to another person, the Rent Control and Eviction Officer is bound to conclude that the need of the landlord is genuine." According to the High Court;Letting out to another person could not be employed as the sole test for deciding whether the landlord is to be allowed the benefit of the ruleIn our view the decision in Buxs case does not help the appellant before us as the High Courtin our view, rightlypointed out that "each case must necessarily depend on its own facts". In this case, the facts are that two shops adjoining the accommodation in question are in the occupation of the landlord and the roof thereof has fallen. There is nothing to contradict the landlords case that the whole building is old and dilapidated and requires to be demolished and that he needed the premises for erecting a cinema house with office accommodation etc. Apparently the State Government was satisfied with this reason. We find ourselves unable to subscribe to the view that even if the building is in a dilapidated condition a portion whereof is without a roof and the landlord wants to put up a cinema theatre to carry on business he does not require the accommodation bona fide for his personal needIt is evident that the appellant had gone into possession even before the allotment order was made and was trying his best to hold on to it. The allotment order of October 21, was subject to the revisionary jurisdiction of the State Government under Section. Very wide powers are give to the State Government under this section and as the State Government directed the cancellation of the allotment in favour of the appellant on a perusal of the cancellation of the allotment in favour of the appellant on a perusal of the record including the report of the officer and the appellants memorandum putting forward all the grounds urged in his favour, the High Court rightly took the view that the order could not be questionedNo question of estoppel arises in this case. The State Government did not take the view that the landlords application was not made on August 24 and expressly found that the Officer had failed to consider it11. From the above, it is clear that the order under SectionF cannot be questioned on the ground that the State Government had failed to give reasons for rejecting the officers order. The State Government gave its reasons quite clearly when it noted that the landlords application had not been considered. The State Government also hold that the landlord needed the premises for reconstruction. This disposes of point (4)12. In the above view of the matter points (5) and (6) do not call for consideration. The landlord had made an application which was not considered and if his application had been considered, his preferential right could not be ignored. We are not concerned to go into the question as to whether proceedings under SectionA can be properly instituted as this did not form the subject matter of the writ petition of the appellant nor was any relief asked for on any such ground.

### 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: give preference to the landlord if he was satisfied that the landlord bonafide needed the accommodation for his personal occupation. It was submitted that demolition of the building followed by reconstruction therefore was not within the bona fide need of the landlord covered by Rule 6. Our attention was drawn to a judgment of the Allahabad High Court in H. M. Bux v. Rent Control and Eviction Officer ((1958) All LJ 45) where the High Court rejected the contention based on the dictum in an earlier decision in Gada Dhar Prasad Sharma v. District Magistrate, Lucknow ((1956) All LJ 694) that the landlord was "entitled to preference" under Rule 6 and "unless the Rent Control and Eviction Officer thinks that his need is not genuine in the sense that he dose not want to live in the house but wants to take it for somebody else it is incumbent on the Rent Control and Eviction officer to allot the landlord." In the view of the High Court in Buxs case there was no justification for holding that "except in the case in which the landlord wants the accommodation for the purpose of letting it out to another person, the Rent Control and Eviction Officer is bound to conclude that the need of the landlord is genuine." According to the High Court; Letting out to another person could not be employed as the sole test for deciding whether the landlord is to be allowed the benefit of the rule. In our view the decision in Buxs case does not help the appellant before us as the High Court - in our view, rightly - pointed out that "each case must necessarily depend on its own facts". In this case, the facts are that two shops adjoining the accommodation in question are in the occupation of the landlord and the roof thereof has fallen. There is nothing to contradict the landlords case that the whole building is old and dilapidated and requires to be demolished and that he needed the premises for erecting a cinema house with office accommodation etc. Apparently the State Government was satisfied with this reason. We find ourselves unable to subscribe to the view that even if the building is in a dilapidated condition a portion whereof is without a roof and the landlord wants to put up a cinema theatre to carry on business he does not require the accommodation bona fide for his personal need. 9. Points (2) and (7) can be disposed of together. Our attention was drawn to the fact that the landlord had made an application for release of the accommodation in his favour as early as August 24, 1967. The letter was sent under certificate of posting bearing the postal mark of that date. We were also referred to annexure F to the counter affidavit of the landlord before the High Court purporting to show that the copy of the address written on the envelope of the letter to the officer bore the postal stamp of August 24. The State Government had sent for the entire record as well as the report of the officer on the application of the landlord and it was on a scrutiny of the entire facts and circumstances that the State Government took the view that the officer had failed to consider the application of the landlord. Nothing has been shown to us as to why we should reject the view of the State Government formed on the material before it. It is evident that the appellant had gone into possession even before the allotment order was made and was trying his best to hold on to it. The allotment order of October 21, was subject to the revisionary jurisdiction of the State Government under Section 7-F. Very wide powers are give to the State Government under this section and as the State Government directed the cancellation of the allotment in favour of the appellant on a perusal of the cancellation of the allotment in favour of the appellant on a perusal of the record including the report of the officer and the appellants memorandum putting forward all the grounds urged in his favour, the High Court rightly took the view that the order could not be questioned. 10. On the third point, counsel submitted that as the landlord must have been aware of the fact that the tenant was dead and the accommodation had fallen vacant and as he kept quiet even after the notification of vacancy by the Allotment Committee he cannot complain of the allotment in favour of the appellant. Moreover, it was urged, it was only after the allotment in favour of the appellant that the landlord sought to have an order of release in his favour; in consequence his application should have been thrown out by the State Government. No question of estoppel arises in this case. The State Government did not take the view that the landlords application was not made on August 24 and expressly found that the Officer had failed to consider it. 11. From the above, it is clear that the order under Section 7-F cannot be questioned on the ground that the State Government had failed to give reasons for rejecting the officers order. The State Government gave its reasons quite clearly when it noted that the landlords application had not been considered. The State Government also hold that the landlord needed the premises for reconstruction. This disposes of point (4). 12. In the above view of the matter points (5) and (6) do not call for consideration. The landlord had made an application which was not considered and if his application had been considered, his preferential right could not be ignored. We are not concerned to go into the question as to whether proceedings under Section 7-A can be properly instituted as this did not form the subject matter of the writ petition of the appellant nor was any relief asked for on any such ground. ### Response: 0

Sewa Singh & Ors Vs. Jangir Singh & Ors

the non - ancestral property of the adoptive father on the ground that his adoption was tantamount to a gift or bequest". The Full Bench answered both these questions in the affirmative. In other words it held that the expression "kinsman" referred in the Customary Law had reference to and meant agnatic relation and that a distant relation like that of the adopters mothers fathers brother could not be included within it. It further held that even if the adoption was invalid, the adopted son could succeed to self-acquired property of the adopter on the basis that the adoption in these parts in tantamount to a gift or a bequest. In the result the appeal was allowed and the plaintiffs suit was decreed as laid. The case was however certified to be a fit one for appeal to this court under Art. 133 (a) of the Constitution of India. This appeal is now before us in view of that certificate. 4. In our judgment the appeal can be disposed of on the short ground that there was no. justification whatsoever for setting aside the concurrent finding of the first two courts on the question of the character of the land in dispute, and there is thus no. necessity to resolve the legal question raised, as in that view of the case the plaintiffs suit is admittedly bound to fail. It appears from the entries in the pedigree table prepared at the settlement of 1907-09 that Gainda, the common ancestor of Bishan Singh and of the defendants, had seven sons and Bishan Singh and the defendants represent the line of these sons, Bishan Singh having descended from Samonda, while the defendants being the descendants of the other brothers of Samonda. Bishan Singh at the time of the regular settlement held 122 bighas 16 biswas of land which was described as being 1/7the share of the total family holding. The shares of the descendants of the other sons of Gainda Singh were also described in similar terms. Some of them held one-half of 1/7th, others held one third of 1/7th and so on. This subdivison was in accordance with the number of the descendants of each one of the seven sons. An explanatory note is appended to this pedigree and it is in these terms : "This Patti Gainda is known after the name of the ancestor of the proprietors and they are in its possession and pay land revenue. However, for division of Shamlat deh Rs. 8/2/6 in all according to the ancestral shares is entered in column.........." From these entries which carry a presumption of truth it is clear that the whole of the land which was once owned by the common ancestor was at the time of the regular settlement in possession of his descendants according to ancestral share and the shamlat deh which is also in suit was also divisible according to ancestral shares. It has not been suggested that any to the descendants of Gainda Singh acquired any land in this Patti by purchase of introduced strangers in it by selling any portion of their ancestral holding. That being so, the learned District Judge was justified in drawing the inference from the circumstance of equality of holdings and the reference to these in terms of ancestral shares, that the land in suit had develved on Bishan Singh by descent from Gainda, and there were no. valid grounds for referring that decision. The circumstances established in the case are compatible only with the theory that this land came to his sons from Gainda and these circumstances cannot be explained on any other reasonable hypothesis. 5. The High Court for its conclusion placed reliance on the "Kafiat Dehi" (village history) as given in the settlement record, this is what is stated therein : "Originally Tooni Rajputs, and our ancestors, that is, the ancestors of the proprietors Jat Dhande were in possession of the estate of this village in equal shares. In the times of Muslim Rulers the land revenue fell in arrear against Tooni Rajputs who absconded out of fear of harassment and violence at the hands of the then ruler. The common ancestor of Jats Dhande on payment of the arrears of land revenue acquired possession of the whole village and called the following families also and distributed them land as owners ................... Since the village had passed into the ownership of a sole owner, the families who migrated afterwards got land according to their means. In 1831-32 A. D. some area of this village was set apart and a separate village named Sangatpura came into being, whereby the remaining scale of holding (Raha Saha Paimana Haqiyat) was also disturbed. It has been decided that the enhancement or reduction will depend upon the possession. That is to say, at present the revenue of Rs. 7-15-9 is paid on the land of ten dirams. As a matter of fact previously the sale was Rs. 8/2/6; ......... for the division of the Shamlat deh the original scale of Rs. 8/2/6 was entered in the pedigree table. The following six Pattis are named after the names of the ancestors; Sangu, Piru, Jalla, Malla, Hari Chand and Gainda." There is nothing in this document from which an inference could be drawn that there was any disturbance in the scale of holding in Patti Gainda. On the other hand the "Paimana Haqiyat" (measure of right) as given in the records clearly indicates that the Patti is being held by the descendants of Gainda according to ancestral shares. In these circumstances there was no. reason for doubting the ancestral character of the land in dispute in this case. We are further of the opinion that this was not a fit case in which a concurrent finding of the first two courts should have been set aside on further appeal even if the finding was not binding under the law then prevailing in PEPSU and the High Court could re-examine the finding in second appeal.

1[ds]4. In our judgment the appeal can be disposed of on the short ground that there was no. justification whatsoever for setting aside the concurrent finding of the first two courts on the question of the character of the land in dispute, and there is thus no. necessity to resolve the legal question raised, as in that view of the case the plaintiffs suit is admittedly bound to fail. It appears from the entries in the pedigree table prepared at the settlement of9 that Gainda, the common ancestor of Bishan Singh and of the defendants, had seven sons and Bishan Singh and the defendants represent the line of these sons, Bishan Singh having descended from Samonda, while the defendants being the descendants of the other brothers of SamondaBishan Singh at the time of the regular settlement held 122 bighas 16 biswas of land which was described as being 1/7the share of the total family holding. The shares of the descendants of the other sons of Gainda Singh were also described in similar terms. Some of them heldf of 1/7th, others held one third of 1/7th and so on. This subdivison was in accordance with the number of the descendants of each one of the seven sons. An explanatory note is appended to this pedigree and it is in these terms :"This Patti Gainda is known after the name of the ancestor of the proprietors and they are in its possession and pay land revenue. However, for division of Shamlat deh Rs. 8/2/6 in all according to the ancestral shares is entered in column.........."From these entries which carry a presumption of truth it is clear that the whole of the land which was once owned by the common ancestor was at the time of the regular settlement in possession of his descendants according to ancestral share and the shamlat deh which is also in suit was also divisible according to ancestral sharesIt has not been suggested that any to the descendants of Gainda Singh acquired any land in this Patti by purchase of introduced strangers in it by selling any portion of their ancestral holding. That being so, the learned District Judge was justified in drawing the inference from the circumstance of equality of holdings and the reference to these in terms of ancestral shares, that the land in suit had develved on Bishan Singh by descent from Gainda, and there were no. valid grounds for referring that decisionThe circumstances established in the case are compatible only with the theory that this land came to his sons from Gainda and these circumstances cannot be explained on any other reasonable hypothesisThere is nothing in this document from which an inference could be drawn that there was any disturbance in the scale of holding in Patti Gainda. On the other hand the "Paimana Haqiyat" (measure of right) as given in the records clearly indicates that the Patti is being held by the descendants of Gainda according to ancestral shares. In these circumstances there was no. reason for doubting the ancestral character of the land in dispute in this caseWe are further of the opinion that this was not a fit case in which a concurrent finding of the first two courts should have been set aside on further appeal even if the finding was not binding under the law then prevailing in PEPSU and the High Court coulde the finding in second appeal.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: the non - ancestral property of the adoptive father on the ground that his adoption was tantamount to a gift or bequest". The Full Bench answered both these questions in the affirmative. In other words it held that the expression "kinsman" referred in the Customary Law had reference to and meant agnatic relation and that a distant relation like that of the adopters mothers fathers brother could not be included within it. It further held that even if the adoption was invalid, the adopted son could succeed to self-acquired property of the adopter on the basis that the adoption in these parts in tantamount to a gift or a bequest. In the result the appeal was allowed and the plaintiffs suit was decreed as laid. The case was however certified to be a fit one for appeal to this court under Art. 133 (a) of the Constitution of India. This appeal is now before us in view of that certificate. 4. In our judgment the appeal can be disposed of on the short ground that there was no. justification whatsoever for setting aside the concurrent finding of the first two courts on the question of the character of the land in dispute, and there is thus no. necessity to resolve the legal question raised, as in that view of the case the plaintiffs suit is admittedly bound to fail. It appears from the entries in the pedigree table prepared at the settlement of 1907-09 that Gainda, the common ancestor of Bishan Singh and of the defendants, had seven sons and Bishan Singh and the defendants represent the line of these sons, Bishan Singh having descended from Samonda, while the defendants being the descendants of the other brothers of Samonda. Bishan Singh at the time of the regular settlement held 122 bighas 16 biswas of land which was described as being 1/7the share of the total family holding. The shares of the descendants of the other sons of Gainda Singh were also described in similar terms. Some of them held one-half of 1/7th, others held one third of 1/7th and so on. This subdivison was in accordance with the number of the descendants of each one of the seven sons. An explanatory note is appended to this pedigree and it is in these terms : "This Patti Gainda is known after the name of the ancestor of the proprietors and they are in its possession and pay land revenue. However, for division of Shamlat deh Rs. 8/2/6 in all according to the ancestral shares is entered in column.........." From these entries which carry a presumption of truth it is clear that the whole of the land which was once owned by the common ancestor was at the time of the regular settlement in possession of his descendants according to ancestral share and the shamlat deh which is also in suit was also divisible according to ancestral shares. It has not been suggested that any to the descendants of Gainda Singh acquired any land in this Patti by purchase of introduced strangers in it by selling any portion of their ancestral holding. That being so, the learned District Judge was justified in drawing the inference from the circumstance of equality of holdings and the reference to these in terms of ancestral shares, that the land in suit had develved on Bishan Singh by descent from Gainda, and there were no. valid grounds for referring that decision. The circumstances established in the case are compatible only with the theory that this land came to his sons from Gainda and these circumstances cannot be explained on any other reasonable hypothesis. 5. The High Court for its conclusion placed reliance on the "Kafiat Dehi" (village history) as given in the settlement record, this is what is stated therein : "Originally Tooni Rajputs, and our ancestors, that is, the ancestors of the proprietors Jat Dhande were in possession of the estate of this village in equal shares. In the times of Muslim Rulers the land revenue fell in arrear against Tooni Rajputs who absconded out of fear of harassment and violence at the hands of the then ruler. The common ancestor of Jats Dhande on payment of the arrears of land revenue acquired possession of the whole village and called the following families also and distributed them land as owners ................... Since the village had passed into the ownership of a sole owner, the families who migrated afterwards got land according to their means. In 1831-32 A. D. some area of this village was set apart and a separate village named Sangatpura came into being, whereby the remaining scale of holding (Raha Saha Paimana Haqiyat) was also disturbed. It has been decided that the enhancement or reduction will depend upon the possession. That is to say, at present the revenue of Rs. 7-15-9 is paid on the land of ten dirams. As a matter of fact previously the sale was Rs. 8/2/6; ......... for the division of the Shamlat deh the original scale of Rs. 8/2/6 was entered in the pedigree table. The following six Pattis are named after the names of the ancestors; Sangu, Piru, Jalla, Malla, Hari Chand and Gainda." There is nothing in this document from which an inference could be drawn that there was any disturbance in the scale of holding in Patti Gainda. On the other hand the "Paimana Haqiyat" (measure of right) as given in the records clearly indicates that the Patti is being held by the descendants of Gainda according to ancestral shares. In these circumstances there was no. reason for doubting the ancestral character of the land in dispute in this case. We are further of the opinion that this was not a fit case in which a concurrent finding of the first two courts should have been set aside on further appeal even if the finding was not binding under the law then prevailing in PEPSU and the High Court could re-examine the finding in second appeal. ### Response: 1

The State Of Punjab Vs. Gurdial Singh Etc.Withcivil Miscellaneous Petition No. 6336

such exists and I concur. But what have respondents 1 to 21 made out ? When power runs haywire under statutory cover, more needs to be said to make good the exposure. This takes me to a projection, in detail, on the screen of time, of the alleged politicking behind the taking of property challenged in this case.We assume the facts, stated in the counter-affidavits, to the extent not expressly denied, especially because the 22nd respondent, Shri Bajwa, has not cared to contradict the turpitude imputed to him, which is unfortunate. We draw tentative conclusions based on the averments without the advantage of the affected partys response.Long ago in 1962, a site was chosen for a new grain market and the then Chief Minister, Shri Kairon, laid the foundation stone, and some surviving poles bear testimony to this ancient ritual. This spot belo nged to a cousin of Shri Bajwa and was eventually abandoned in favour of the lands of respondents 1 to 21. This venture of 1971 was shot down by judicial fire triggered by the admitted ground of mala fides. Years rolled by, but malice dies hard, if egged on by political scramble. So much so, the same lands were again acquired in 1977, dispensing with so much as a statutory enquiry, undeterred by the earlier decision of the High Court. The respondents again assailed the acquisition as fuelled wholly by vendetta. The High Court struck down the declaration over again, and here we are with an application for leave to appeal against the adverse order.We cannot appreciate the unusual step of quashing the acquisition twice over by the High Court on the rare score of fraud on power unless we are instructed in the bitter longevity of election hostility and the gentle genuflexion of administrative echelons when political bosses express their wishes.The version of the contesting respondents is that two political factions go into action in all elections in Quadian, led by Respondent 22, Satnam Singh Bajwa on the one hand, and his rival Gurbachan Singh Bajwa, supported by the other respondents, on the other. Party labels, where poll politics are personal, are less than borrowed apparel. Satnam ran Congress and won a seat in the Punjab Assembly in 1962 in the teeth of hot contest by Gurbachan and the respondents. This election had it s impact on the mandi acquisition. The site where the foundation stone had been laid belonged to Satnams cousin and this was the best of the four alternatives selected by the Site Selection Board, the least suitable, in their opinion, being of the respondents 1 to 21. But should an M.L.A. oblige his cousin and crush his rival, according to poll dharma? We cannot answer but here Satnams influence postponed acquisition proceedings, notwithstanding the ceremonial stone. In 1967, again, elections came and Satnam won on the Congress ticket. But when the Akali Party formed the Government Satnam decided to serve the people as Minister and for that purpose transferred his politics from Congress to Akali. This ensured the safety of the cousins land from the mandi peril. The Akali Government fell in 1969 but he fought as Akali, won the seat and became Forest Minister. The respondents, all the time, resisted him in vain. When Pres idents Rule came, statutory notifications were issued for acquisition of the first site. The mandi project remained frozen till then and showed signs of life during the short-lived Presidents Rule, only to be given up in 1970 when Satnam became State Minister of Panchayat and Development. He struck when the iron was hot by constituting a Selection Board and appointing himself President thereof. The choice was made of the site which was allegedly the least suitable. Thus the axe fell on the respondents 1 to 21 and lest the take-over be delayed, even the S. 5A enquiry was scuttled by invoking the emergency powers under Sec. 17. At times, natural justice is the natural enemy of intolerant authority. Therefore, the judicial process, under Art. 226, invalidated the acquisition on the ground of mala fides. Back as an M.L.A. in 1972 Satnam nurtured the faction politics, and there is reference in the writ petition to a murder and other official interference which do not d irectly concern the case. He was detained and paroled, and the contestants swear that by political influence and use of relationship he revived the same acquisition once quashed by the High Court. We skip many allegations of vice, of pres sure, of defection as drawing red-herring across the trail. But the crux of the matter is that uncontradicted aspersions on Satnam having pressured the political Government to seize the contestants land goes a long way to affirm the High Courts view, in the background of the long chronicle we have set out. The indefensible resort to Sec. 17 is evidence of the length to which the executive would go to come to terms with men wielding political power. No reason exists for us to grant leave in the case where factually the High Court has found improper attempt to take a citizens land. We need not record any positive finding. It is sufficient to state that no ground to grant leave has been made out.The fourth point about the use of emergency power is well taken. Without referring to supportive case-law it is fundamental that compulsory taking of a mans property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed t o give a hearing land acquisition authorities should not, having regard to Arts. 14 (and 19), burke an enquiry under Sec. 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power.

0[ds]We cannot answer but here Satnams influence postponed acquisition proceedings, notwithstanding the ceremonial stone. In 1967, again, elections came and Satnam won on the Congress ticket. But when the Akali Party formed the Government Satnam decided to serve the people as Minister and for that purpose transferred his politics from Congress to Akali. This ensured the safety of the cousins land from the mandi peril. The Akali Government fell in 1969 but he fought as Akali, won the seat and became Forest Minister. The respondents, all the time, resisted him in vain. When Pres idents Rule came, statutory notifications were issued for acquisition of the first site. The mandi project remained frozen till then and showed signs of life during thePresidents Rule, only to be given up in 1970 when Satnam became State Minister of Panchayat and Development. He struck when the iron was hot by constituting a Selection Board and appointing himself President thereof. The choice was made of the site which was allegedly the least suitable. Thus the axe fell on the respondents 1 to 21 and lest thebe delayed, even the S. 5A enquiry was scuttled by invoking the emergency powers under Sec. 17. At times, natural justice is the natural enemy of intolerant authority. Therefore, the judicial process, under Art. 226, invalidated the acquisition on the ground of mala fides. Back as an M.L.A. in 1972 Satnam nurtured the faction politics, and there is reference in the writ petition to a murder and other official interference which do not d irectly concern the case. He was detained and paroled, and the contestants swear that by political influence and use of relationship he revived the same acquisition once quashed by the High Court. We skip many allegations of vice, of pres sure, of defection as drawingacross the trail. But the crux of the matter is that uncontradicted aspersions on Satnam having pressured the political Government to seize the contestants land goes a long way to affirm the High Courts view, in the background of the long chronicle we have set out. The indefensible resort to Sec. 17 is evidence of the length to which the executive would go to come to terms with men wielding political power. No reason exists for us to grant leave in the case where factually the High Court has found improper attempt to take a citizens land. We need not record any positive finding. It is sufficient to state that no ground to grant leave has been made out.The fourth point about the use of emergency power is well taken. Without referring to supportiveit is fundamental that compulsory taking of a mans property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed t o give a hearing land acquisition authorities should not, having regard to Arts. 14 (and 19), burke an enquiry under Sec. 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power.

### 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: such exists and I concur. But what have respondents 1 to 21 made out ? When power runs haywire under statutory cover, more needs to be said to make good the exposure. This takes me to a projection, in detail, on the screen of time, of the alleged politicking behind the taking of property challenged in this case.We assume the facts, stated in the counter-affidavits, to the extent not expressly denied, especially because the 22nd respondent, Shri Bajwa, has not cared to contradict the turpitude imputed to him, which is unfortunate. We draw tentative conclusions based on the averments without the advantage of the affected partys response.Long ago in 1962, a site was chosen for a new grain market and the then Chief Minister, Shri Kairon, laid the foundation stone, and some surviving poles bear testimony to this ancient ritual. This spot belo nged to a cousin of Shri Bajwa and was eventually abandoned in favour of the lands of respondents 1 to 21. This venture of 1971 was shot down by judicial fire triggered by the admitted ground of mala fides. Years rolled by, but malice dies hard, if egged on by political scramble. So much so, the same lands were again acquired in 1977, dispensing with so much as a statutory enquiry, undeterred by the earlier decision of the High Court. The respondents again assailed the acquisition as fuelled wholly by vendetta. The High Court struck down the declaration over again, and here we are with an application for leave to appeal against the adverse order.We cannot appreciate the unusual step of quashing the acquisition twice over by the High Court on the rare score of fraud on power unless we are instructed in the bitter longevity of election hostility and the gentle genuflexion of administrative echelons when political bosses express their wishes.The version of the contesting respondents is that two political factions go into action in all elections in Quadian, led by Respondent 22, Satnam Singh Bajwa on the one hand, and his rival Gurbachan Singh Bajwa, supported by the other respondents, on the other. Party labels, where poll politics are personal, are less than borrowed apparel. Satnam ran Congress and won a seat in the Punjab Assembly in 1962 in the teeth of hot contest by Gurbachan and the respondents. This election had it s impact on the mandi acquisition. The site where the foundation stone had been laid belonged to Satnams cousin and this was the best of the four alternatives selected by the Site Selection Board, the least suitable, in their opinion, being of the respondents 1 to 21. But should an M.L.A. oblige his cousin and crush his rival, according to poll dharma? We cannot answer but here Satnams influence postponed acquisition proceedings, notwithstanding the ceremonial stone. In 1967, again, elections came and Satnam won on the Congress ticket. But when the Akali Party formed the Government Satnam decided to serve the people as Minister and for that purpose transferred his politics from Congress to Akali. This ensured the safety of the cousins land from the mandi peril. The Akali Government fell in 1969 but he fought as Akali, won the seat and became Forest Minister. The respondents, all the time, resisted him in vain. When Pres idents Rule came, statutory notifications were issued for acquisition of the first site. The mandi project remained frozen till then and showed signs of life during the short-lived Presidents Rule, only to be given up in 1970 when Satnam became State Minister of Panchayat and Development. He struck when the iron was hot by constituting a Selection Board and appointing himself President thereof. The choice was made of the site which was allegedly the least suitable. Thus the axe fell on the respondents 1 to 21 and lest the take-over be delayed, even the S. 5A enquiry was scuttled by invoking the emergency powers under Sec. 17. At times, natural justice is the natural enemy of intolerant authority. Therefore, the judicial process, under Art. 226, invalidated the acquisition on the ground of mala fides. Back as an M.L.A. in 1972 Satnam nurtured the faction politics, and there is reference in the writ petition to a murder and other official interference which do not d irectly concern the case. He was detained and paroled, and the contestants swear that by political influence and use of relationship he revived the same acquisition once quashed by the High Court. We skip many allegations of vice, of pres sure, of defection as drawing red-herring across the trail. But the crux of the matter is that uncontradicted aspersions on Satnam having pressured the political Government to seize the contestants land goes a long way to affirm the High Courts view, in the background of the long chronicle we have set out. The indefensible resort to Sec. 17 is evidence of the length to which the executive would go to come to terms with men wielding political power. No reason exists for us to grant leave in the case where factually the High Court has found improper attempt to take a citizens land. We need not record any positive finding. It is sufficient to state that no ground to grant leave has been made out.The fourth point about the use of emergency power is well taken. Without referring to supportive case-law it is fundamental that compulsory taking of a mans property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed t o give a hearing land acquisition authorities should not, having regard to Arts. 14 (and 19), burke an enquiry under Sec. 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power. ### Response: 0

Ahmedabad Rana Caste Association Vs. Commissioner of Income-tax, Gujarat

of Income-tax v. Grain Merchants Association of Bombay, 6 ITR 427 = (AIR 1939 Bom 45 ) on the point. It was, however, observed that the section of the community sought to be benefited must be sufficiently defined and identifiable by some common quality of a public or impersonal nature. Where there was no common quality uniting the potential beneficiaries into a class the trust might not be regarded as valid. In the various orders the clause relating to the beneficiaries has not been clearly and accurately set out. In the petition of appeal dated October 7, 1968 the provisions of the constitution of the assessee are set out and with reference to the community it is stated, "Rana community means natives of Ahmedabad only and the other community brothers accepted by the community as per old rules of the community staying in Ahmedabad". It is common ground that the word "old rules" do not represent the correct translation of the original word in Gujarati which is Riwaj meaning custom. The learned Judges of the High Court also, who are conversant with that language, have proceeded on the basis that the correct rendering of the aforesaid word is custom or usage. That is why according to the High Court the definition comprises two classes of members of Rana caste residing in Ahmedabad, one class consisting of those who are natives of Ahmedabad while the other class consists of such persons who are admitted by the Rana caste according to the old custom or usage of the community. The reason which prevailed with the High Court for treating the second class as not being united with the first class by a common characteristic or attribute was that its members have to be accepted by the community according to the old custom or usage and that the entry of the members of this class into the Rana caste residing in Ahmedabad was dependent on the decision of the caste to admit them. We are altogether unable to concur in the approach or the conclusion of the High Court on the above point.6. We may usefully refer to the judgment of Lord Greene M. R. in re Compton, Powell v. Compton, 1945 Ch. 123. The Master of Rolls declared that no definition of what was meant by "a section of the public" had, so far as he was aware, been laid down. But he indicated that the trust of a public character is one in which the beneficiaries do not enjoy the benefit when they receive it by virtue of their character as individuals but by virtue of their membership of a specified class the common quality uniting potential beneficiaries into the class being essentially an impersonal one. This common quality he said was "definable by reference to what each has in common with the others and that is something into which their status as individuals does not enter." Andrew, L. C. J. accepted this statement of law without hesitation in Trustees of the Londonderry Presbyterian Church House v. Commrs. of Inland Revenue, (1946) 27 Tax Cas 431. What has to be seen in the present case is whether the members of the Rana caste who are not natives of Ahmedabad but who come to reside there and are accepted as members of that caste according to its usage and custom can be said to have a relationship which is an impersonal one dependent on their condition as members of the Rana community. We are unable to comprehend how such members of the Rana caste can be regarded as having been introduced into that caste by consideration of their personal status as individuals. As a matter of fact the predominant content and requirement of the class defining "beneficiaries" in the constitution of the assessee is the factum of their belonging to the Rana community of Ahmedabad. The common quality, therefore, uniting the potential beneficiaries into the class consists of being members of the Rana caste or community of Ahmedabad whether as natives or as being admitted to that caste or community under custom or usage. The mere fact that a person of the Rana community who is not an original native of Ahmedabad has to prove his credentials according to the custom and usage of that community to get admitted into that community cannot introduce a personal element. In Oppenheim v. Tobacco Securities Trust Co. Ltd., 1951 AC 297 the trustees were directed to apply certain income in providing for the education of children of employees or "former employees" of a British limited company or any of its subsidiary or allied companies. It was held by the House of Lords by a majority that though the group of persons indicated was numerous, the nexus between them was employment by particular employers and accordingly the trust did not satisfy the test of public benefit requisite to establish it as charitable. This is what Lord Simonds observed:-"A group of persons may be numerous but, if the nexus between them is their personal relationship to a single propositus or to several propositi, they are neither the community nor a section of the community for charitable purposes".The personal element or personal relationship which takes a group out of section of the community for charitable purposes is of the nature which is to be found in cases of the aforesaid type. We cannot possibly discover a similar element of personal nature in the members of the Rana Community who settle in Ahmedabad and have been accepted by the Rana community of that place as members of that community. As regards the acceptance of such persons as members of the community or caste, according to custom and usage,it is well known that whenever a question arises whether a person belongs to a particular community or caste the custom or usage prevailing in that community must play a decisive and vital part. That cannot be regarded as an element which would detract from the impersonal nature of the common quality.

1[ds]5. It is well settled by now and the High Court also has rightly taken that view that an object beneficial to a section of the public is an object of general public utility. To serve a charitable purpose it is not necessary that the object should be to benefit the whole of mankind or all persons in a particular country or State. It is sufficient if the intention to benefit a section of the public as distinguished from a specified individual iswas, however, observed that the section of the community sought to be benefited must be sufficiently defined and identifiable by some common quality of a public or impersonal nature. Where there was no common quality uniting the potential beneficiaries into a class the trust might not be regarded as valid. In the various orders the clause relating to the beneficiaries has not been clearly and accurately set out. In the petition of appeal dated October 7, 1968 the provisions of the constitution of the assessee are set out and with reference to the community it is stated, "Rana community means natives of Ahmedabad only and the other community brothers accepted by the community as per old rules of the community staying in Ahmedabad". It is common ground that the word "old rules" do not represent the correct translation of the original word in Gujarati which is Riwaj meaning custom. The learned Judges of the High Court also, who are conversant with that language, have proceeded on the basis that the correct rendering of the aforesaid word is custom or usage. That is why according to the High Court the definition comprises two classes of members of Rana caste residing in Ahmedabad, one class consisting of those who are natives of Ahmedabad while the other class consists of such persons who are admitted by the Rana caste according to the old custom or usage of the community. The reason which prevailed with the High Court for treating the second class as not being united with the first class by a common characteristic or attribute was that its members have to be accepted by the community according to the old custom or usage and that the entry of the members of this class into the Rana caste residing in Ahmedabad was dependent on the decision of the caste to admit them. We are altogether unable to concur in the approach or the conclusion of the High Court on the aboveare unable to comprehend how such members of the Rana caste can be regarded as having been introduced into that caste by consideration of their personal status as individuals. As a matter of fact the predominant content and requirement of the class defining "beneficiaries" in the constitution of the assessee is the factum of their belonging to the Rana community of Ahmedabad. The common quality, therefore, uniting the potential beneficiaries into the class consists of being members of the Rana caste or community of Ahmedabad whether as natives or as being admitted to that caste or community under custom or usage. The mere fact that a person of the Rana community who is not an original native of Ahmedabad has to prove his credentials according to the custom and usage of that community to get admitted into that community cannot introduce a personal element. In Oppenheim v. Tobacco Securities Trust Co. Ltd., 1951 AC 297 the trustees were directed to apply certain income in providing for the education of children of employees or "former employees" of a British limited company or any of its subsidiary or allied companies. It was held by the House of Lords by a majority that though the group of persons indicated was numerous, the nexus between them was employment by particular employers and accordingly the trust did not satisfy the test of public benefit requisite to establish it aspersonal element or personal relationship which takes a group out of section of the community for charitable purposes is of the nature which is to be found in cases of the aforesaid type. We cannot possibly discover a similar element of personal nature in the members of the Rana Community who settle in Ahmedabad and have been accepted by the Rana community of that place as members of that community. As regards the acceptance of such persons as members of the community or caste, according to custom and usage,it is well known that whenever a question arises whether a person belongs to a particular community or caste the custom or usage prevailing in that community must play a decisive and vital part. That cannot be regarded as an element which would detract from the impersonal nature of the commonthe present case the trust was created prior to First April 1962 and therefore no question arises of its not being entitled to the exemption if other conditions were satisfied even though it was created for the benefit of the Rana caste of Ahmedabad.

### 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: of Income-tax v. Grain Merchants Association of Bombay, 6 ITR 427 = (AIR 1939 Bom 45 ) on the point. It was, however, observed that the section of the community sought to be benefited must be sufficiently defined and identifiable by some common quality of a public or impersonal nature. Where there was no common quality uniting the potential beneficiaries into a class the trust might not be regarded as valid. In the various orders the clause relating to the beneficiaries has not been clearly and accurately set out. In the petition of appeal dated October 7, 1968 the provisions of the constitution of the assessee are set out and with reference to the community it is stated, "Rana community means natives of Ahmedabad only and the other community brothers accepted by the community as per old rules of the community staying in Ahmedabad". It is common ground that the word "old rules" do not represent the correct translation of the original word in Gujarati which is Riwaj meaning custom. The learned Judges of the High Court also, who are conversant with that language, have proceeded on the basis that the correct rendering of the aforesaid word is custom or usage. That is why according to the High Court the definition comprises two classes of members of Rana caste residing in Ahmedabad, one class consisting of those who are natives of Ahmedabad while the other class consists of such persons who are admitted by the Rana caste according to the old custom or usage of the community. The reason which prevailed with the High Court for treating the second class as not being united with the first class by a common characteristic or attribute was that its members have to be accepted by the community according to the old custom or usage and that the entry of the members of this class into the Rana caste residing in Ahmedabad was dependent on the decision of the caste to admit them. We are altogether unable to concur in the approach or the conclusion of the High Court on the above point.6. We may usefully refer to the judgment of Lord Greene M. R. in re Compton, Powell v. Compton, 1945 Ch. 123. The Master of Rolls declared that no definition of what was meant by "a section of the public" had, so far as he was aware, been laid down. But he indicated that the trust of a public character is one in which the beneficiaries do not enjoy the benefit when they receive it by virtue of their character as individuals but by virtue of their membership of a specified class the common quality uniting potential beneficiaries into the class being essentially an impersonal one. This common quality he said was "definable by reference to what each has in common with the others and that is something into which their status as individuals does not enter." Andrew, L. C. J. accepted this statement of law without hesitation in Trustees of the Londonderry Presbyterian Church House v. Commrs. of Inland Revenue, (1946) 27 Tax Cas 431. What has to be seen in the present case is whether the members of the Rana caste who are not natives of Ahmedabad but who come to reside there and are accepted as members of that caste according to its usage and custom can be said to have a relationship which is an impersonal one dependent on their condition as members of the Rana community. We are unable to comprehend how such members of the Rana caste can be regarded as having been introduced into that caste by consideration of their personal status as individuals. As a matter of fact the predominant content and requirement of the class defining "beneficiaries" in the constitution of the assessee is the factum of their belonging to the Rana community of Ahmedabad. The common quality, therefore, uniting the potential beneficiaries into the class consists of being members of the Rana caste or community of Ahmedabad whether as natives or as being admitted to that caste or community under custom or usage. The mere fact that a person of the Rana community who is not an original native of Ahmedabad has to prove his credentials according to the custom and usage of that community to get admitted into that community cannot introduce a personal element. In Oppenheim v. Tobacco Securities Trust Co. Ltd., 1951 AC 297 the trustees were directed to apply certain income in providing for the education of children of employees or "former employees" of a British limited company or any of its subsidiary or allied companies. It was held by the House of Lords by a majority that though the group of persons indicated was numerous, the nexus between them was employment by particular employers and accordingly the trust did not satisfy the test of public benefit requisite to establish it as charitable. This is what Lord Simonds observed:-"A group of persons may be numerous but, if the nexus between them is their personal relationship to a single propositus or to several propositi, they are neither the community nor a section of the community for charitable purposes".The personal element or personal relationship which takes a group out of section of the community for charitable purposes is of the nature which is to be found in cases of the aforesaid type. We cannot possibly discover a similar element of personal nature in the members of the Rana Community who settle in Ahmedabad and have been accepted by the Rana community of that place as members of that community. As regards the acceptance of such persons as members of the community or caste, according to custom and usage,it is well known that whenever a question arises whether a person belongs to a particular community or caste the custom or usage prevailing in that community must play a decisive and vital part. That cannot be regarded as an element which would detract from the impersonal nature of the common quality. ### Response: 1

J. Narayana Rao Vs. V.G. Basayarayappa & Others

the old building stood had a value. In these circumstances the least amount of compunction payable to the appellant should be Rs. 21000 in round figures.7. On behalf of the plaintiff it was argued that the Munsiffs decision was correct and the High Court was justified in restoring it. The Subordinate Judge had arrived at the value of Rs. 25000 for the new building on worthless evidences of incompetent witnesses who were merely expressing loosely their estimate of the value of the said building. The date of election, in law, would be the date of eviction. The date of actual dispossession could not be the true date as such eviction must take place after the decree had been drawn up and enforced.8.In our opinion S. 51, Transfer of Property Act merely lays down an equitable principle and enables a Court to determine the equities between the parties. A decree in the form in which it has been passed in this case, which was a suit for redemption and possession could have been passed. We regard the decision of the Privy Council in 57 Ind. App 305: (A. I. R. 1930 PC 297) (A) as an authority which supports our opinion.We think, however, having regard to the provisions of S. 51, Transfer of Property Act, that if the evidence enable a Court to do so. It should assess the valuation of the improvement as at a date as near as possible to the date of actual eviction rather than the date of election as has been done in this case.9. Coming now to the evidence in the case, the appellant has created difficulties for himself in not producing his books of account,which would have enabled a Court to know exactly how much he had spent on improvement and thus assist it in arriving at the relevant conclusion in the case, namely, what was the saleable value of the improved property.SeeKidar Nath v. Mathu Mal,40 Cal 555 (B). Oral evidence, such as it is on the side of the appellant, is not very convincing. The only reliable evidence in the case is that of the Commissioner, P. W. 6, appointed by the court. He is a qualified person and has had to do valuation of buildings regularly in the course of his employment as an Executive Engineer of City Improvement Trust Board, Bangalore. A fair reading of his evidence does not disclose any substantial ground for disbelieving him. We proceed, therefore, to rest our decision on his evidence only and such other evidence as may support him. The Commissioner was examined in Court on 25-7-47. He had checked his measurements several times in January and February 1947. He has given the various rates prevailing in the various years and he has computed his valuation on that basis for the old building and the new construction.A comparative table as stated below may be convenient in order to understand his evidence.OLD BUILDINGNEW BUILDINGAs built in 1941-42 Rs. 4,522As build in 1942-43 Rs. 10,200" " " 1942-43 " 5,818" " " 1943-44 " 10,990" " " 1943-44 " 6,332" " on 5-6-44 " 10,990" " on 5-6-44 " 6,332" " " 30-6-45 " 18,840" " " 30-6-45 " 10,854" " in 1945-46 " 16,489" " in 1945-46 " 9,044" " on 1945-46 " 16,489" " in 1945-46 " 9,044" " on 16-7-46 " 20,776" " on 16-7-46 " 11,395If built in January and February 1947]..... 13,566If built in February 1947].... 24,733From this table the respective values of the old and the new building at the date of the preliminary decree, at the date of election by the plaintiff and at a time nearest to the dispossession of the appellant become apparent on the supposition that the buildings were build at those stages. There is no evidence as to the actual cost of constructing the old building or the new. Whatever the actual value of the old building may have been at the time of its demolition by the appellant, the appellants witness B. Sagappa, D. W. 10 has stated in the clearest terms that in1945 that building was worth Rs. 9,000/- to Rs. 10,000/-. This, in our opinion, supports the valuation of that building on 30-6-45 arrived at by the Commissioner. We would, therefore, rely on the calculation arrived at by the Commissioner and would conclude that at the time of the appellants purchase in August 1942 and at about the time of its demolition the old building was worth about Rs. 5,818/-. As a vendible subject the building as newly constructed would be worth about Rs, 24,733/- in February 1947. The improvement effected by the appellant therefore would amount to Rs. 18,915/- having regard to values in February 1947. It is impossible to ascertain with any degree of precision the exact value of the improvement in the absence of definite evidence. All that can be done is to arrive at a fair assessment on the materials available. We think the evidence of the commissioner gives sufficient data on which to proceed and there is no need to take additional evidence. In cases of this kind it is not the actual cost of improvement which concludes the matter. The principle on which one must proceed is what is the worth of the improvement in the property as a vendible subject. The value arrived at by the Courts below is not acceptable to us.10. We hold, on the evidence, that the value of the improvement effected by the appellant amounts to Rs. 19,000/- in round figures. That sum will be entered in the decree of the Court as the amount of compensation payable by the plaintiff to the appellant upon which the former would be entitled to possession. As the appellant has already been dispossessed, he would be entitled to restitution if the plaintiff fails to pay the balance due after deducting the amount of compensation already deposited in Court. We give the plaintiff time to pay the balance of the compensation on or before 30-11-1956.

1[ds]In any event the High Court erred in restoring the decision of the Munsiff. On the evidence, which was open to this Court to examine as the High Courts, Judgment was one of reversal, it would be clear that the newly constructed building, after demolishing the old one, was worth at the least Rs. 25000. The old building at the time of the appellants purchase was not worth more than Rs. 4,522. It had to be remembered that the appellant had purchased the property, including the land and the old building, for Rs. 8750. The land on which the old building stood had a value. In these circumstances the least amount of compunction payable to the appellant should be Rs. 21000 in roundour opinion S. 51, Transfer of Property Act merely lays down an equitable principle and enables a Court to determine the equities between the parties. A decree in the form in which it has been passed in this case, which was a suit for redemption and possession could have been passed. We regard the decision of the Privy Council in 57 Ind. App 305: (A. I. R. 1930 PC 297) (A) as an authority which supports our opinion.We think, however, having regard to the provisions of S. 51, Transfer of Property Act, that if the evidence enable a Court to do so. It should assess the valuation of the improvement as at a date as near as possible to the date of actual eviction rather than the date of election as has been done in this case.Coming now to the evidence in the case, the appellant has created difficulties for himself in not producing his books of account,which would have enabled a Court to know exactly how much he had spent on improvement and thus assist it in arriving at the relevant conclusion in the case, namely, what was the saleable value of the improved property.SeeKidar Nath v. Mathu Mal,40 Cal 555 (B). Oral evidence, such as it is on the side of the appellant, is not very convincing. The only reliable evidence in the case is that of the Commissioner, P. W. 6, appointed by the court. He is a qualified person and has had to do valuation of buildings regularly in the course of his employment as an Executive Engineer of City Improvement Trust Board, Bangalore. A fair reading of his evidence does not disclose any substantial ground for disbelieving him. We proceed, therefore, to rest our decision on his evidence only and such other evidence as may support him. The Commissioner was examined in Court onHe had checked his measurements several times in January and February 1947. He has given the various rates prevailing in the various years and he has computed his valuation on that basis for the old building and the new construction.We hold, on the evidence, that the value of the improvement effected by the appellant amounts to Rs. 19,000/in round figures. That sum will be entered in the decree of the Court as the amount of compensation payable by the plaintiff to the appellant upon which the former would be entitled to possession. As the appellant has already been dispossessed, he would be entitled to restitution if the plaintiff fails to pay the balance due after deducting the amount of compensation already deposited in Court. We give the plaintiff time to pay the balance of the compensation on or before

### 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 old building stood had a value. In these circumstances the least amount of compunction payable to the appellant should be Rs. 21000 in round figures.7. On behalf of the plaintiff it was argued that the Munsiffs decision was correct and the High Court was justified in restoring it. The Subordinate Judge had arrived at the value of Rs. 25000 for the new building on worthless evidences of incompetent witnesses who were merely expressing loosely their estimate of the value of the said building. The date of election, in law, would be the date of eviction. The date of actual dispossession could not be the true date as such eviction must take place after the decree had been drawn up and enforced.8.In our opinion S. 51, Transfer of Property Act merely lays down an equitable principle and enables a Court to determine the equities between the parties. A decree in the form in which it has been passed in this case, which was a suit for redemption and possession could have been passed. We regard the decision of the Privy Council in 57 Ind. App 305: (A. I. R. 1930 PC 297) (A) as an authority which supports our opinion.We think, however, having regard to the provisions of S. 51, Transfer of Property Act, that if the evidence enable a Court to do so. It should assess the valuation of the improvement as at a date as near as possible to the date of actual eviction rather than the date of election as has been done in this case.9. Coming now to the evidence in the case, the appellant has created difficulties for himself in not producing his books of account,which would have enabled a Court to know exactly how much he had spent on improvement and thus assist it in arriving at the relevant conclusion in the case, namely, what was the saleable value of the improved property.SeeKidar Nath v. Mathu Mal,40 Cal 555 (B). Oral evidence, such as it is on the side of the appellant, is not very convincing. The only reliable evidence in the case is that of the Commissioner, P. W. 6, appointed by the court. He is a qualified person and has had to do valuation of buildings regularly in the course of his employment as an Executive Engineer of City Improvement Trust Board, Bangalore. A fair reading of his evidence does not disclose any substantial ground for disbelieving him. We proceed, therefore, to rest our decision on his evidence only and such other evidence as may support him. The Commissioner was examined in Court on 25-7-47. He had checked his measurements several times in January and February 1947. He has given the various rates prevailing in the various years and he has computed his valuation on that basis for the old building and the new construction.A comparative table as stated below may be convenient in order to understand his evidence.OLD BUILDINGNEW BUILDINGAs built in 1941-42 Rs. 4,522As build in 1942-43 Rs. 10,200" " " 1942-43 " 5,818" " " 1943-44 " 10,990" " " 1943-44 " 6,332" " on 5-6-44 " 10,990" " on 5-6-44 " 6,332" " " 30-6-45 " 18,840" " " 30-6-45 " 10,854" " in 1945-46 " 16,489" " in 1945-46 " 9,044" " on 1945-46 " 16,489" " in 1945-46 " 9,044" " on 16-7-46 " 20,776" " on 16-7-46 " 11,395If built in January and February 1947]..... 13,566If built in February 1947].... 24,733From this table the respective values of the old and the new building at the date of the preliminary decree, at the date of election by the plaintiff and at a time nearest to the dispossession of the appellant become apparent on the supposition that the buildings were build at those stages. There is no evidence as to the actual cost of constructing the old building or the new. Whatever the actual value of the old building may have been at the time of its demolition by the appellant, the appellants witness B. Sagappa, D. W. 10 has stated in the clearest terms that in1945 that building was worth Rs. 9,000/- to Rs. 10,000/-. This, in our opinion, supports the valuation of that building on 30-6-45 arrived at by the Commissioner. We would, therefore, rely on the calculation arrived at by the Commissioner and would conclude that at the time of the appellants purchase in August 1942 and at about the time of its demolition the old building was worth about Rs. 5,818/-. As a vendible subject the building as newly constructed would be worth about Rs, 24,733/- in February 1947. The improvement effected by the appellant therefore would amount to Rs. 18,915/- having regard to values in February 1947. It is impossible to ascertain with any degree of precision the exact value of the improvement in the absence of definite evidence. All that can be done is to arrive at a fair assessment on the materials available. We think the evidence of the commissioner gives sufficient data on which to proceed and there is no need to take additional evidence. In cases of this kind it is not the actual cost of improvement which concludes the matter. The principle on which one must proceed is what is the worth of the improvement in the property as a vendible subject. The value arrived at by the Courts below is not acceptable to us.10. We hold, on the evidence, that the value of the improvement effected by the appellant amounts to Rs. 19,000/- in round figures. That sum will be entered in the decree of the Court as the amount of compensation payable by the plaintiff to the appellant upon which the former would be entitled to possession. As the appellant has already been dispossessed, he would be entitled to restitution if the plaintiff fails to pay the balance due after deducting the amount of compensation already deposited in Court. We give the plaintiff time to pay the balance of the compensation on or before 30-11-1956. ### Response: 1

RAKESH BAKSHI Vs. THE STATE OF JAMMU AND KASHMIR

appellants appointment was, though, dismissed by a Single Judge, in appeal the Division Bench set aside the appointment of the appellants which in turn was set aside by Hon?ble Court. It is thereafter that the Writ Petition filed by the present writ petitioner which was filed in 2001 came to be taken up and dismissed by the Learned Single Judge and allowed by the Division Bench. In between, almost two decades, rolled by with the appellant?s continuing to work and the writ petitioner remaining unselected.10. There is no argument pressed by the learned counsel that in law, the decision of Division Bench is wrong in that the appellants were not holding the requisite qualification as on the cut-off date and the selection and appointment is bad in law. But the only point raised is having regard to the efflux of time and having regard to the equities, in the matter including the result of the earlier litigation, the three selections held after 1997, appellants not applying thereunder having been selected under the impugned selection and appellant having become age barred and still further, the claim of the writ petitioner for appointment being meritless having regard to the Low Marks scored by him, the services of the appellants should not be dispensed with.11. Having regard to the case law cited by the appellant i.e. Ashok Kumar Sharma and Others Vs. Chander Shekhar and Another; 1997 (4) SCC 18 , the facts may be noticed. On 01.07.1997, an advertisement was published for the post of Junior Engineers (Elect) Grade II in the State of Jammu and Kashmir. 33 persons had not passed BE Civil Examination before the last date and their results were declared after the cut-off date. They came to be interviewed, pursuant to instructions and they were selected. This came to be challenged. The Writ Petition was dismissed. No appeal was filed against the order. However, another Writ Petition came to be filed questioning the selection of 33 respondents on the very same grounds. The Writ Petition was dismissed. However, the Division Bench took the view that the 33 respondents could not have been allowed to compete for the post as they did not possess the requisite qualification. The appointment of the 33 persons was not set aside and they were ordered to be treated as junior to those selected candidates who were fully qualified on the prescribed date. In other words, the candidates who were not qualified on the prescribed date were to be treated as junior en block to the fully qualified selected candidates. The 33 respondents appealed before this Court. The majority held that permitting the 33 candidates to appear for the interview was not impermissible. The other learned Judge, however, took the view that the 33 candidates should not have been allowed to appear. Even then, however, the learned Single Judge agreed with the majority that the seniority of the 33 candidates need not be disturbed in the particular facts and circumstances. The result was that three learned Judges allowed the appeal preferred by the 33 respondents and set aside the judgment of the Division Bench. The original writ petitioners filed for Review. The judgment rendered in the review is the reported judgment. The Court found that the majority judgment was unsustainable in law. It is reiterated that the person who clears the prescribed qualification after the cut-off date cannot be considered qualified and their applications ought to have been rejected.12. Thereafter, in paragraph 8, the Court addresses the question relating to the relief to be granted in the review applications. The learned Counsel for the 33 respondents in the review petition who were the appellants before this Court inter alia pointed out the dismissal of the earlier writ petition and that the said order had become final. Even the later writ petitioners (filed by four candidates), it was pointed out, had not sued in a representative capacity. Other aspects including that the 33 persons had completed 13 years, was pointed out. The Court held as follows: -?Having given our anxious and earnest consideration to the question and keeping in view the fact that we are sitting in review jurisdiction and that this particular aspect is a matter lying within the discretion of the Court, we do not think it appropriate to interfere with the unanimous opinion of the three learned Judges of this Court on this aspect. It is true that the Division Bench of the High Court had granted the relief not only to the four review petitioners/writ petitioners but to all the candidates falling in that category yet we cannot ignore the fact that even Sahai, J. who agreed with the review petitioners on the first issue, thought it just and proper not to disturb the inter-se seniority between these two groups of selected candidates. The said seniority was determined by the selecting Authority. Though certain allegations are made with respect to the fairness of the process of selection, that issue is not open in these review applications nor was it gone into by this court in the civil appeals.?13. Having heard learned Counsel for the parties, we are inclined to grant relief to the appellants against their being ousted after serving for nearly two decades. We are not for a moment doubting the correctness of the reasoning of the Division Bench in this case, that eligibility of the candidates must be decided with reference to the qualification possessed as on the cut-off date and the qualification acquired later in point of time cannot make a candidate eligible. However, having regard to the facts obtaining in this case, which we have set out and also the manner in which this Court has decided the matter culminating in 1997 (4) SCC 18 the interests of justice would require the interference with the judgment of the Division bench. We particularly note that as far as the writ petitioner is concerned more than the efflux of time, the fact is that he cannot possibly secure selection.

1[ds]10. There is no argument pressed by the learned counsel that in law, the decision of Division Bench is wrong in that the appellants were not holding the requisite qualification as on the cut-off date and the selection and appointment is bad in law. But the only point raised is having regard to the efflux of time and having regard to the equities, in the matter including the result of the earlier litigation, the three selections held after 1997, appellants not applying thereunder having been selected under the impugned selection and appellant having become age barred and still further, the claim of the writ petitioner for appointment being meritless having regard to the Low Marks scored by him, the services of the appellants should not be dispensed with.Having heard learned Counsel for the parties, we are inclined to grant relief to the appellants against their being ousted after serving for nearly two decades. We are not for a moment doubting the correctness of the reasoning of the Division Bench in this case, that eligibility of the candidates must be decided with reference to the qualification possessed as on the cut-off date and the qualification acquired later in point of time cannot make a candidate eligible. However, having regard to the facts obtaining in this case, which we have set out and also the manner in which this Court has decided the matter culminating in 1997 (4) SCC 18 the interests of justice would require the interference with the judgment of the Division bench. We particularly note that as far as the writ petitioner is concerned more than the efflux of time, the fact is that he cannot possibly secure selection.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: appellants appointment was, though, dismissed by a Single Judge, in appeal the Division Bench set aside the appointment of the appellants which in turn was set aside by Hon?ble Court. It is thereafter that the Writ Petition filed by the present writ petitioner which was filed in 2001 came to be taken up and dismissed by the Learned Single Judge and allowed by the Division Bench. In between, almost two decades, rolled by with the appellant?s continuing to work and the writ petitioner remaining unselected.10. There is no argument pressed by the learned counsel that in law, the decision of Division Bench is wrong in that the appellants were not holding the requisite qualification as on the cut-off date and the selection and appointment is bad in law. But the only point raised is having regard to the efflux of time and having regard to the equities, in the matter including the result of the earlier litigation, the three selections held after 1997, appellants not applying thereunder having been selected under the impugned selection and appellant having become age barred and still further, the claim of the writ petitioner for appointment being meritless having regard to the Low Marks scored by him, the services of the appellants should not be dispensed with.11. Having regard to the case law cited by the appellant i.e. Ashok Kumar Sharma and Others Vs. Chander Shekhar and Another; 1997 (4) SCC 18 , the facts may be noticed. On 01.07.1997, an advertisement was published for the post of Junior Engineers (Elect) Grade II in the State of Jammu and Kashmir. 33 persons had not passed BE Civil Examination before the last date and their results were declared after the cut-off date. They came to be interviewed, pursuant to instructions and they were selected. This came to be challenged. The Writ Petition was dismissed. No appeal was filed against the order. However, another Writ Petition came to be filed questioning the selection of 33 respondents on the very same grounds. The Writ Petition was dismissed. However, the Division Bench took the view that the 33 respondents could not have been allowed to compete for the post as they did not possess the requisite qualification. The appointment of the 33 persons was not set aside and they were ordered to be treated as junior to those selected candidates who were fully qualified on the prescribed date. In other words, the candidates who were not qualified on the prescribed date were to be treated as junior en block to the fully qualified selected candidates. The 33 respondents appealed before this Court. The majority held that permitting the 33 candidates to appear for the interview was not impermissible. The other learned Judge, however, took the view that the 33 candidates should not have been allowed to appear. Even then, however, the learned Single Judge agreed with the majority that the seniority of the 33 candidates need not be disturbed in the particular facts and circumstances. The result was that three learned Judges allowed the appeal preferred by the 33 respondents and set aside the judgment of the Division Bench. The original writ petitioners filed for Review. The judgment rendered in the review is the reported judgment. The Court found that the majority judgment was unsustainable in law. It is reiterated that the person who clears the prescribed qualification after the cut-off date cannot be considered qualified and their applications ought to have been rejected.12. Thereafter, in paragraph 8, the Court addresses the question relating to the relief to be granted in the review applications. The learned Counsel for the 33 respondents in the review petition who were the appellants before this Court inter alia pointed out the dismissal of the earlier writ petition and that the said order had become final. Even the later writ petitioners (filed by four candidates), it was pointed out, had not sued in a representative capacity. Other aspects including that the 33 persons had completed 13 years, was pointed out. The Court held as follows: -?Having given our anxious and earnest consideration to the question and keeping in view the fact that we are sitting in review jurisdiction and that this particular aspect is a matter lying within the discretion of the Court, we do not think it appropriate to interfere with the unanimous opinion of the three learned Judges of this Court on this aspect. It is true that the Division Bench of the High Court had granted the relief not only to the four review petitioners/writ petitioners but to all the candidates falling in that category yet we cannot ignore the fact that even Sahai, J. who agreed with the review petitioners on the first issue, thought it just and proper not to disturb the inter-se seniority between these two groups of selected candidates. The said seniority was determined by the selecting Authority. Though certain allegations are made with respect to the fairness of the process of selection, that issue is not open in these review applications nor was it gone into by this court in the civil appeals.?13. Having heard learned Counsel for the parties, we are inclined to grant relief to the appellants against their being ousted after serving for nearly two decades. We are not for a moment doubting the correctness of the reasoning of the Division Bench in this case, that eligibility of the candidates must be decided with reference to the qualification possessed as on the cut-off date and the qualification acquired later in point of time cannot make a candidate eligible. However, having regard to the facts obtaining in this case, which we have set out and also the manner in which this Court has decided the matter culminating in 1997 (4) SCC 18 the interests of justice would require the interference with the judgment of the Division bench. We particularly note that as far as the writ petitioner is concerned more than the efflux of time, the fact is that he cannot possibly secure selection. ### Response: 1

Bhairon Sahai (D) Through Lrs Vs. Bishamber Dayal (D) Through Lrs. & Others

or any part of the premises without obtaining the consent in writing of the landlord.Clause (b) of the proviso to Sub-section (1) provides for the eviction of a tenant who has sub-let, assigned or otherwise parted with the possession of the premises without obtaining the consent in writing of the landlord.Section 14(4) reads as follows:(14)(4). For the purposes of Clause (b) of the proviso to Sub-section (1), any premises which have been let for being used for the purposes of business or profession shall be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person to occupy the whole or any part of the premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to that person.This Sub-section provides that if a person is allowed to occupy the premises ostensibly as a partner of the tenant but really for the purpose of sub-letting it, such an arrangement would be deemed to be sub-letting.Therefore, if the tenant has allowed any person to occupy the whole or any part of the premises, actually for the purpose of sub-letting but speciously by entering into a partnership with him, such an arrangement shall be deemed to be subletting. In other words, subletting is not permitted by camouflaging it as a partnership.The combined reading of Clause (b) of the proviso to Section 14(1) read with Section 14(4) makes it clear that before a tenant can sub-let, assign or part with the possession of any part of the premises or the whole, it must be preceded by the consent in writing from the landlord. In other words, the requirement of obtaining the consent in writing of the landlord is retained as a pre-requisite even for the purposes of Sub-section (4). What is of importance is, in either case whether a person has been inducted genuinely as a partner and therefore allowed to occupy the premises or whether the partnership is a ruse, the requirement of consent in writing as in Sub-section (1) is retained. In the present case, there is no evidence that the tenant obtained the consent in writing from the landlord before allowing the son-in-law to occupy the premises in pursuance of the Partnership deed."7. On the other hand, Respondent No. 1 submits that entering into a partnership per se does not amount to sub-letting. It is also the case of the tenant that he did not part with possession of the premises as he was running the fair price shop right from 1964 though the licence was in the name of Respondent No.2. According to the tenant, there was no need to seek consent as there was no parting with possession of even a part of the premises. Mr.S.B. Upadhyay, learned Senior Counsel appearing for the Respondents relied upon the judgment of this Court in Parvinder Singh v. Renu Gautam and Others 2004(1) R.C.R.(Rent) 596 : (2004) 4 SCC 794 wherein it was held that a tenant cannot necessarily be said to have sub-let the premises or parted with the possession thereof in favour of his partners merely because he had entered into a partnership. It was further held that a tenant may not be said to have parted with possession if he is actively associated with the partnership business and retains the user and control over the tenancy premises.8. In the present case, it is clear from the evidence on record and the judgments of the courts below that there has been parting of possession by Respondent No.1 of a portion of the premises in favour of Respondent No.2 without taking the consent of the Appellant. The Rent Controller found that from 1964 onwards, there were two shops being run in the premises. One portion of the premises was being used for a fair price shop, the licence of which was in the name of Respondent No.2. The other portion was being used as a provision store which was being run by Respondent No.1. The averments in the Eviction Petition would disclose that the Appellant alleged parting of possession by Respondent No.1 in favour of Respondent No.2 between the years 1964 and 1976. The other allegation is that Respondent No.1 entered into a partnership with Respondent No.2 in 1977. No consent was taken from the Appellant for either parting with possession of a portion of the premises or for entering into a partnership.9. Eviction can be sought by a landlord if the tenant sublets, assigns or otherwise parts with possession without his consent. We are of the opinion that the Rent Controller was right in finding that Respondent No.2 was carrying on the business as Authorised Ration Distributor in a portion of the premises from 1964 as he was the licensee. Parting with the possession of the premises without consent of the landlord was sufficient for eviction of the tenant without getting into the question of sub-letting or assignment.10. No consent was sought before the Respondents entered into partnership. This partnership was formed in 1977 after the business of a fair price shop was being carried on from 1964. The Rent Controller held that it is not necessary to decide about the genuineness of the partnership in the Eviction Petition. Even the Appellate Tribunal did not adjudicate on the partnership between the Respondents. The High Court refers to the partnership deed dated 01.01.1977 only for the purpose of holding that Respondent No.2 was permitted to use a portion of the premises but was not given exclusive possession.11. The question whether by entering into a partnership deed dated 01.01.1997, the first Respondent sublet the premises to the second Respondent does not arise for consideration in this case. Hence, the judgment in Parvinder Singhs case and other judgments cited by the learned Senior Counsel for the Respondents are not relevant.

1[ds]8. In the present case, it is clear from the evidence on record and the judgments of the courts below that there has been parting of possession by Respondent No.1 of a portion of the premises in favour of Respondent No.2 without taking the consent of the Appellant. The Rent Controller found that from 1964 onwards, there were two shops being run in the premises. One portion of the premises was being used for a fair price shop, the licence of which was in the name of Respondent No.2. The other portion was being used as a provision store which was being run by Respondent No.1. The averments in the Eviction Petition would disclose that the Appellant alleged parting of possession by Respondent No.1 in favour of Respondent No.2 between the years 1964 and 1976. The other allegation is that Respondent No.1 entered into a partnership with Respondent No.2 in 1977. No consent was taken from the Appellant for either parting with possession of a portion of the premises or for entering into a partnership.9. Eviction can be sought by a landlord if the tenant sublets, assigns or otherwise parts with possession without his consent. We are of the opinion that the Rent Controller was right in finding that Respondent No.2 was carrying on the business as Authorised Ration Distributor in a portion of the premises from 1964 as he was the licensee. Parting with the possession of the premises without consent of the landlord was sufficient for eviction of the tenant without getting into the question ofor assignment.10. No consent was sought before the Respondents entered into partnership. This partnership was formed in 1977 after the business of a fair price shop was being carried on from 1964. The Rent Controller held that it is not necessary to decide about the genuineness of the partnership in the Eviction Petition. Even the Appellate Tribunal did not adjudicate on the partnership between the Respondents. The High Court refers to the partnership deed dated 01.01.1977 only for the purpose of holding that Respondent No.2 was permitted to use a portion of the premises but was not given exclusive possession.11. The question whether by entering into a partnership deed dated 01.01.1997, the first Respondentsublet the premisesto the second Respondent does not arise for consideration in this case. Hence, the judgment in Parvinder Singhs case and other judgments cited by the learned Senior Counsel for the Respondents are not relevant.

### 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: or any part of the premises without obtaining the consent in writing of the landlord.Clause (b) of the proviso to Sub-section (1) provides for the eviction of a tenant who has sub-let, assigned or otherwise parted with the possession of the premises without obtaining the consent in writing of the landlord.Section 14(4) reads as follows:(14)(4). For the purposes of Clause (b) of the proviso to Sub-section (1), any premises which have been let for being used for the purposes of business or profession shall be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person to occupy the whole or any part of the premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to that person.This Sub-section provides that if a person is allowed to occupy the premises ostensibly as a partner of the tenant but really for the purpose of sub-letting it, such an arrangement would be deemed to be sub-letting.Therefore, if the tenant has allowed any person to occupy the whole or any part of the premises, actually for the purpose of sub-letting but speciously by entering into a partnership with him, such an arrangement shall be deemed to be subletting. In other words, subletting is not permitted by camouflaging it as a partnership.The combined reading of Clause (b) of the proviso to Section 14(1) read with Section 14(4) makes it clear that before a tenant can sub-let, assign or part with the possession of any part of the premises or the whole, it must be preceded by the consent in writing from the landlord. In other words, the requirement of obtaining the consent in writing of the landlord is retained as a pre-requisite even for the purposes of Sub-section (4). What is of importance is, in either case whether a person has been inducted genuinely as a partner and therefore allowed to occupy the premises or whether the partnership is a ruse, the requirement of consent in writing as in Sub-section (1) is retained. In the present case, there is no evidence that the tenant obtained the consent in writing from the landlord before allowing the son-in-law to occupy the premises in pursuance of the Partnership deed."7. On the other hand, Respondent No. 1 submits that entering into a partnership per se does not amount to sub-letting. It is also the case of the tenant that he did not part with possession of the premises as he was running the fair price shop right from 1964 though the licence was in the name of Respondent No.2. According to the tenant, there was no need to seek consent as there was no parting with possession of even a part of the premises. Mr.S.B. Upadhyay, learned Senior Counsel appearing for the Respondents relied upon the judgment of this Court in Parvinder Singh v. Renu Gautam and Others 2004(1) R.C.R.(Rent) 596 : (2004) 4 SCC 794 wherein it was held that a tenant cannot necessarily be said to have sub-let the premises or parted with the possession thereof in favour of his partners merely because he had entered into a partnership. It was further held that a tenant may not be said to have parted with possession if he is actively associated with the partnership business and retains the user and control over the tenancy premises.8. In the present case, it is clear from the evidence on record and the judgments of the courts below that there has been parting of possession by Respondent No.1 of a portion of the premises in favour of Respondent No.2 without taking the consent of the Appellant. The Rent Controller found that from 1964 onwards, there were two shops being run in the premises. One portion of the premises was being used for a fair price shop, the licence of which was in the name of Respondent No.2. The other portion was being used as a provision store which was being run by Respondent No.1. The averments in the Eviction Petition would disclose that the Appellant alleged parting of possession by Respondent No.1 in favour of Respondent No.2 between the years 1964 and 1976. The other allegation is that Respondent No.1 entered into a partnership with Respondent No.2 in 1977. No consent was taken from the Appellant for either parting with possession of a portion of the premises or for entering into a partnership.9. Eviction can be sought by a landlord if the tenant sublets, assigns or otherwise parts with possession without his consent. We are of the opinion that the Rent Controller was right in finding that Respondent No.2 was carrying on the business as Authorised Ration Distributor in a portion of the premises from 1964 as he was the licensee. Parting with the possession of the premises without consent of the landlord was sufficient for eviction of the tenant without getting into the question of sub-letting or assignment.10. No consent was sought before the Respondents entered into partnership. This partnership was formed in 1977 after the business of a fair price shop was being carried on from 1964. The Rent Controller held that it is not necessary to decide about the genuineness of the partnership in the Eviction Petition. Even the Appellate Tribunal did not adjudicate on the partnership between the Respondents. The High Court refers to the partnership deed dated 01.01.1977 only for the purpose of holding that Respondent No.2 was permitted to use a portion of the premises but was not given exclusive possession.11. The question whether by entering into a partnership deed dated 01.01.1997, the first Respondent sublet the premises to the second Respondent does not arise for consideration in this case. Hence, the judgment in Parvinder Singhs case and other judgments cited by the learned Senior Counsel for the Respondents are not relevant. ### Response: 1

Narain Dutt Chimwal Vs. Commissioner of Income Tax. U.P. Lucknow

immovable properties and the interest was payable according to the terms of the mortgage. In September 1933 the assessee purchased a portion of the mortgaged property for Rs. 35,000/-. Out of this amount a sum of Rs. 3,000/- was adjusted against the mortgagors share of the loss in a firm which was payable to the assessee. The balance of Rs. 32,000/- was adjusted against the mortgage debt leaving a sum of Rupees 8,000/- outstanding on the mortgage. Between the date of mortgage in September 1930 and the date of sale three years later, the mortgagors had effected further encumbrances on the properties which were the subject matter of mortgage. The assessee had to pay Rs. 17,800/- to the mesne encumbrancers. In October 1946 the assessee obtained a decree for Rs. 25,000/- against the mortgagors to be realised by the sale of that portion of the mortgaged properties which had not been sold to the assessee in 1933. Even after the sale the entire amount was not realized and the shortfall including the cost came to Rs. 4,758/15/-. The assessee claimed this amount as a bad debt which was allowed in a previous assessment. In 1948 the assessee sold half the area of the land purchased by him in 1933 for Rs. 93,313/-. This sale was effected by means of a public auction after dividing the area sold into certain number of plots.3. The Income-tax Officer held that the property purchased by the assessee in 1933 was stock-in-trade of his money-lending business and the excess amount realized by the assessee over the cost was business income. A net gain of Rs. 36,303/- was assessed by him with regard to the aforesaid sale. On appeal the Appellate Assistant Commissioner differed with the method of calculation adopted by the Income-tax Officer and made the necessary modification. On further appeal the Appellate Tribunal worked out the profits at Rs. 52313/-. As regards the main question whether the assessee had not converted the properties purchased into a capital asset and that the same had ceased to be a trading asset the conclusion of the Tribunal was that the assessee considered the aforesaid asset as a part of his money lending business. The decision having gone against the assessee the following question was sought to be referred and was duly referred by the Tribunal to the High Court:"Whether the sum of Rs 52,313/- realized in excess by the assessee on the sale of the property in the circumstances narrated above constitute the profits and gains of the business of money lending carried on by the assessee."4. The High Court took into consideration the circumstances which had been adverted to by the Tribunal. One of the prominent circumstances was that the assessee had paid the sum of Rs. 17,800/- to the puisne mortgagees in order to safeguard the title to the properties acquired by the assessee in 1933. That amount had been debited by the assessee to the money lending account. It was pointed out that no satisfactory explanation had been furnished by the assessee why this sum of Rs. 17,800/- had been debited to the money-lending account when it was claimed that the properties purchased formed part of the capital asset of the assessee.5. It has been urged before us on behalf of the assessee that the Tribunal had overlooked the fact that the property purchased by the assessee was not treated as the assessees stocking-trade, the cost having been debited to the capital account. Moreover no part of the income arising from the property which had been purchased or the expenditure incurred on its maintenance, improvement or repairs had ever been credited or debited to the revenue account of the assessees money-lending business and that the income derived from such property had been assessed to income-tax under S. 9 of the Income-tax Act, 1922. The debit of the sum of Rs. 17,800/- to the account of the mortgagor was in order according to the principles of accountancy for the sum had to be debited to the account of the mortgagor in relation to the original mortgage debt. It does not appear from the order of the Tribunal that all these matters were pressed before it. What seems to have been urged is that the assessee had incurred expenses on the grove which was included in the property purchased by him and that he had derived income which, being agricultural, was not chargeable to incometax and that these facts showed that the investment was of a capital nature. The Tribunal based its decision mainly on two facts the first was that the assessee had claimed and obtained an allowance as a bad debt of the sum of Rs. 4,763/- mentioned before and the payment of a sum of Rs. 17,000/- and odd to the mesne encumbrancers had been shown as a debit in the money lending account. This is what the Tribunal proceeded to observe:"It is impossible now to allocate the sum of Rs. 4,763/- written off as a bad debt between the various items which went up to make the total of Rs. 29,000/- and odd due to the assessee and in respect of which he was able to secure a decree only for Rupees 25,000/-. There can be no doubt, however, that at least some part of this bad debt related to monies laid out in connection with the property purchased by the assessee in 1933. That is enough to stamp that acquisition which was, as already said in the course of the assessees money lending business, as continuing to retain its character as a business asset and stock in trade of money lending business, almost right upto the date when half the area of the property so purchased was sold by the assessee at a profit in 1948."6. We are unable to find any infirmity in the reasoning or the conclusion of the Tribunal on the facts that were presented to it which would have justified the High Court taking a different view.

0[ds]5. It has been urged before us on behalf of the assessee that the Tribunal had overlooked the fact that the property purchased by the assessee was not treated as the assesseesthe cost having been debited to the capital account. Moreover no part of the income arising from the property which had been purchased or the expenditure incurred on its maintenance, improvement or repairs had ever been credited or debited to the revenue account of the assesseesbusiness and that the income derived from such property had been assessed tounder S. 9 of theAct, 1922. The debit of the sum of Rs. 17,800/to the account of the mortgagor was in order according to the principles of accountancy for the sum had to be debited to the account of the mortgagor in relation to the original mortgage debt. It does not appear from the order of the Tribunal that all these matters were pressed before it. What seems to have been urged is that the assessee had incurred expenses on the grove which was included in the property purchased by him and that he had derived income which, being agricultural, was not chargeable to incometax and that these facts showed that the investment was of a capital nature. The Tribunal based its decision mainly on two facts the first was that the assessee had claimed and obtained an allowance as a bad debt of the sum of Rs. 4,763/mentioned before and the payment of a sum of Rs. 17,000/and odd to the mesne encumbrancers had been shown as a debit in the money lendingare unable to find any infirmity in the reasoning or the conclusion of the Tribunal on the facts that were presented to it which would have justified the High Court taking a different view

### 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: immovable properties and the interest was payable according to the terms of the mortgage. In September 1933 the assessee purchased a portion of the mortgaged property for Rs. 35,000/-. Out of this amount a sum of Rs. 3,000/- was adjusted against the mortgagors share of the loss in a firm which was payable to the assessee. The balance of Rs. 32,000/- was adjusted against the mortgage debt leaving a sum of Rupees 8,000/- outstanding on the mortgage. Between the date of mortgage in September 1930 and the date of sale three years later, the mortgagors had effected further encumbrances on the properties which were the subject matter of mortgage. The assessee had to pay Rs. 17,800/- to the mesne encumbrancers. In October 1946 the assessee obtained a decree for Rs. 25,000/- against the mortgagors to be realised by the sale of that portion of the mortgaged properties which had not been sold to the assessee in 1933. Even after the sale the entire amount was not realized and the shortfall including the cost came to Rs. 4,758/15/-. The assessee claimed this amount as a bad debt which was allowed in a previous assessment. In 1948 the assessee sold half the area of the land purchased by him in 1933 for Rs. 93,313/-. This sale was effected by means of a public auction after dividing the area sold into certain number of plots.3. The Income-tax Officer held that the property purchased by the assessee in 1933 was stock-in-trade of his money-lending business and the excess amount realized by the assessee over the cost was business income. A net gain of Rs. 36,303/- was assessed by him with regard to the aforesaid sale. On appeal the Appellate Assistant Commissioner differed with the method of calculation adopted by the Income-tax Officer and made the necessary modification. On further appeal the Appellate Tribunal worked out the profits at Rs. 52313/-. As regards the main question whether the assessee had not converted the properties purchased into a capital asset and that the same had ceased to be a trading asset the conclusion of the Tribunal was that the assessee considered the aforesaid asset as a part of his money lending business. The decision having gone against the assessee the following question was sought to be referred and was duly referred by the Tribunal to the High Court:"Whether the sum of Rs 52,313/- realized in excess by the assessee on the sale of the property in the circumstances narrated above constitute the profits and gains of the business of money lending carried on by the assessee."4. The High Court took into consideration the circumstances which had been adverted to by the Tribunal. One of the prominent circumstances was that the assessee had paid the sum of Rs. 17,800/- to the puisne mortgagees in order to safeguard the title to the properties acquired by the assessee in 1933. That amount had been debited by the assessee to the money lending account. It was pointed out that no satisfactory explanation had been furnished by the assessee why this sum of Rs. 17,800/- had been debited to the money-lending account when it was claimed that the properties purchased formed part of the capital asset of the assessee.5. It has been urged before us on behalf of the assessee that the Tribunal had overlooked the fact that the property purchased by the assessee was not treated as the assessees stocking-trade, the cost having been debited to the capital account. Moreover no part of the income arising from the property which had been purchased or the expenditure incurred on its maintenance, improvement or repairs had ever been credited or debited to the revenue account of the assessees money-lending business and that the income derived from such property had been assessed to income-tax under S. 9 of the Income-tax Act, 1922. The debit of the sum of Rs. 17,800/- to the account of the mortgagor was in order according to the principles of accountancy for the sum had to be debited to the account of the mortgagor in relation to the original mortgage debt. It does not appear from the order of the Tribunal that all these matters were pressed before it. What seems to have been urged is that the assessee had incurred expenses on the grove which was included in the property purchased by him and that he had derived income which, being agricultural, was not chargeable to incometax and that these facts showed that the investment was of a capital nature. The Tribunal based its decision mainly on two facts the first was that the assessee had claimed and obtained an allowance as a bad debt of the sum of Rs. 4,763/- mentioned before and the payment of a sum of Rs. 17,000/- and odd to the mesne encumbrancers had been shown as a debit in the money lending account. This is what the Tribunal proceeded to observe:"It is impossible now to allocate the sum of Rs. 4,763/- written off as a bad debt between the various items which went up to make the total of Rs. 29,000/- and odd due to the assessee and in respect of which he was able to secure a decree only for Rupees 25,000/-. There can be no doubt, however, that at least some part of this bad debt related to monies laid out in connection with the property purchased by the assessee in 1933. That is enough to stamp that acquisition which was, as already said in the course of the assessees money lending business, as continuing to retain its character as a business asset and stock in trade of money lending business, almost right upto the date when half the area of the property so purchased was sold by the assessee at a profit in 1948."6. We are unable to find any infirmity in the reasoning or the conclusion of the Tribunal on the facts that were presented to it which would have justified the High Court taking a different view. ### Response: 0

Nimmagadda Prasad Vs. Central Bureau of Investigation

stand taken by the prosecution as well as the right of the accused and taking note of the various aspects, the trial Judge was of the view that if the appellant is enlarged on bail, he will influence the witnesses, since some of them are on his pay rolls, and thereby investigation will suffer a set back. Even if it is accepted that the statements have been recorded from those employees, as rightly pointed out by the counsel for the CBI, the matter is not going to end with their statements.24) Mr. Salve, after taking us through various documents/correspondences from the Government of Ras Al Khaima submitted that in view of the contents of the same and the specific stand of the Government of Andhra Pradesh, there is no basis for the claim made by the CBI. Though we were taken through all those details, it is not proper for this Court to make a comment about the acceptability or otherwise at this juncture and those materials ought to be considered only at the trial.25) As pointed out by Mr. Ashok Bhan, learned senior counsel for the CBI, after filing of the charge sheet on 13.08.2012, in view of further materials, the CBI started investigation which is permissible under Section 173(8) of the Code to look into the aspects of the involvement of the appellant in M/s Indus Projects Ltd. and its group companies, viz., M/s Lepakshi Knowledge Hub Private Ltd. as well as M/s Indus Techzone Private Limtied. In view of the same, undoubtedly, the investigating agency may require further time to collect all the materials, particularly, the nexus of the appellant with those concerns and the appellant being the beneficiary of the quantum of the amount secured. In the course of the arguments, it is also brought to our notice by learned senior counsel for the CBI that a sitting Minister in-charge of the Ports had nexus with those transactions. Considering all these developments, taking note of various details furnished in the Status Report dated 30.04.2013, we are of the view that though the appellant is in custody for nearly 11 months, at the same time, the claim of the premier investigating agency cannot be underestimated. As pointed out by the CBI, if ultimately it is established, it is a grave economic offence of alienating prime lands to selected private companies/individuals under the garb of development using deceptive means resulting in wrongful ownership and control of material resources detrimental to the common good. Further, in order to establish all those events, it is the claim of the CBI that documents have to be obtained from different banks, other private companies/individuals, who facilitated the said diversion of funds. In addition to the same, public servants involved in processing of government files have to be examined apart from private persons/companies. A higher officer of the investigating agency, namely, DIG of Police, CBI assured this Court that further investigation is being carried out at a faster pace and is expected to be completed within six months. 26) Unfortunately, in the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the fiber of the country’s economic structure. Incontrovertibly, economic offences have serious repercussions on the development of the country as a whole. In State of Gujarat vs. Mohanlal Jitamalji Porwal and Anr. (1987) 2 SCC 364 this Court, while considering a request of the prosecution for adducing additional evidence, inter alia, observed as under:- “5.....The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest….” 27) While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.28) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.29) Taking note of all these aspects, without expressing any opinion on the merits of the case and also with regard to the claim of the CBI and the defence, we are of the opinion that the appellant cannot be released at this stage, however, we direct the CBI to complete the investigation and file charge sheet(s) as early as possible preferably within a period of four months from today.

0[ds]In the status report, it is also claimed that the CBI has to examine various persons from different Government Departments, Banks/NBFCs, private companies/individuals involved in diversion/misappropriation of funds, employees of M/s Indus Projects Ltd., M/s Lepakshi Knowledge Hub Pvt. Ltd., and their group companies to ascertain the facts related to the case.21) In addition to the same, it is also highlighted that M/s Indus Projects Ltd., who did not fulfil the technical and financial criteria, submitted an application stating that they would develop the project through a consortium consisting of IDFC (Financial Member) and M/s Embassy Group (Technical Member) and would form a Special Purpose Vehicle (SPV). In this regard, it is pointed out that M/s Indus Techzone Pvt. Ltd., projected as SPV, is fully owned by M/s Indus Projects Ltd. While allotting 250 acres of prime land at Shamshabad, near new International Airport of Hyderabad, several exemptions such as stamp-duty and registration expenses, subsidized power, all external infrastructures up to the boundary of SEZ, tax exemptions/holiday were provided under ICT Policy and SEZ Act, 2005 justifying that the project would create 45,000 new jobs. In addition, land worth about Rs. 1 crore per acre was given at a price of Rs. 20 lakh per acre. It is further pointed out that the said project has to be completed within five years of allotment of land which ended in the year 2011-2012, however, except developing a skeleton structure of about 7.50 lakh SFT against 45 lakh SFT, M/s Indus Techzone Pvt. Ltd. has failed to develop the project and has not created any new employment so far.22) It is also pointed out that M/s Indus Techzone Pvt. Ltd., availed Rs. 175 crores of loans by mortgaging about 75 acres of land which is shown to have been spent for the development of project. The investigating agency is of the opinion that a major chunk of the funds was diverted/misappropriated by way of fake work orders/RA bills.23) No doubt, Mr. Salve, learned senior counsel for the appellant pointed out the different stand of the CBI from court to court, he also commented upon the reasoning and the ultimate conclusion of the trial Judge, namely, the Principal Special Judge for CBI Cases, Hyderabad for rejecting the bail application of the appellant. It is true that after highlighting the stand taken by the prosecution as well as the right of the accused and taking note of the various aspects, the trial Judge was of the view that if the appellant is enlarged on bail, he will influence the witnesses, since some of them are on his pay rolls, and thereby investigation will suffer a set back. Even if it is accepted that the statements have been recorded from those employees, as rightly pointed out by the counsel for the CBI, the matter is not going to end with their statements.24) Mr. Salve, after taking us through various documents/correspondences from the Government of Ras Al Khaima submitted that in view of the contents of the same and the specific stand of the Government of Andhra Pradesh, there is no basis for the claim made by the CBI. Though we were taken through all those details, it is not proper for this Court to make a comment about the acceptability or otherwise at this juncture and those materials ought to be considered only at the trial.25) As pointed out by Mr. Ashok Bhan, learned senior counsel for the CBI, after filing of the charge sheet on 13.08.2012, in view of further materials, the CBI started investigation which is permissible under Section 173(8) of the Code to look into the aspects of the involvement of the appellant in M/s Indus Projects Ltd. and its group companies, viz., M/s Lepakshi Knowledge Hub Private Ltd. as well as M/s Indus Techzone Private Limtied. In view of the same, undoubtedly, the investigating agency may require further time to collect all the materials, particularly, the nexus of the appellant with those concerns and the appellant being the beneficiary of the quantum of the amount secured. In the course of the arguments, it is also brought to our notice by learned senior counsel for the CBI that a sitting Minister in-charge of the Ports had nexus with those transactions. Considering all these developments, taking note of various details furnished in the Status Report dated 30.04.2013, we are of the view that though the appellant is in custody for nearly 11 months, at the same time, the claim of the premier investigating agency cannot be underestimated. As pointed out by the CBI, if ultimately it is established, it is a grave economic offence of alienating prime lands to selected private companies/individuals under the garb of development using deceptive means resulting in wrongful ownership and control of material resources detrimental to the common good. Further, in order to establish all those events, it is the claim of the CBI that documents have to be obtained from different banks, other private companies/individuals, who facilitated the said diversion of funds. In addition to the same, public servants involved in processing of government files have to be examined apart from private persons/companies. A higher officer of the investigating agency, namely, DIG of Police, CBI assured this Court that further investigation is being carried out at a faster pace and is expected to be completed within sixgranting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.28) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.29) Taking note of all these aspects, without expressing any opinion on the merits of the case and also with regard to the claim of the CBI and the defence, we are of the opinion that the appellant cannot be released at this stage, however, we direct the CBI to complete the investigation and file charge sheet(s) as early as possible preferably within a period of four months from today.

### 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: stand taken by the prosecution as well as the right of the accused and taking note of the various aspects, the trial Judge was of the view that if the appellant is enlarged on bail, he will influence the witnesses, since some of them are on his pay rolls, and thereby investigation will suffer a set back. Even if it is accepted that the statements have been recorded from those employees, as rightly pointed out by the counsel for the CBI, the matter is not going to end with their statements.24) Mr. Salve, after taking us through various documents/correspondences from the Government of Ras Al Khaima submitted that in view of the contents of the same and the specific stand of the Government of Andhra Pradesh, there is no basis for the claim made by the CBI. Though we were taken through all those details, it is not proper for this Court to make a comment about the acceptability or otherwise at this juncture and those materials ought to be considered only at the trial.25) As pointed out by Mr. Ashok Bhan, learned senior counsel for the CBI, after filing of the charge sheet on 13.08.2012, in view of further materials, the CBI started investigation which is permissible under Section 173(8) of the Code to look into the aspects of the involvement of the appellant in M/s Indus Projects Ltd. and its group companies, viz., M/s Lepakshi Knowledge Hub Private Ltd. as well as M/s Indus Techzone Private Limtied. In view of the same, undoubtedly, the investigating agency may require further time to collect all the materials, particularly, the nexus of the appellant with those concerns and the appellant being the beneficiary of the quantum of the amount secured. In the course of the arguments, it is also brought to our notice by learned senior counsel for the CBI that a sitting Minister in-charge of the Ports had nexus with those transactions. Considering all these developments, taking note of various details furnished in the Status Report dated 30.04.2013, we are of the view that though the appellant is in custody for nearly 11 months, at the same time, the claim of the premier investigating agency cannot be underestimated. As pointed out by the CBI, if ultimately it is established, it is a grave economic offence of alienating prime lands to selected private companies/individuals under the garb of development using deceptive means resulting in wrongful ownership and control of material resources detrimental to the common good. Further, in order to establish all those events, it is the claim of the CBI that documents have to be obtained from different banks, other private companies/individuals, who facilitated the said diversion of funds. In addition to the same, public servants involved in processing of government files have to be examined apart from private persons/companies. A higher officer of the investigating agency, namely, DIG of Police, CBI assured this Court that further investigation is being carried out at a faster pace and is expected to be completed within six months. 26) Unfortunately, in the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the fiber of the country’s economic structure. Incontrovertibly, economic offences have serious repercussions on the development of the country as a whole. In State of Gujarat vs. Mohanlal Jitamalji Porwal and Anr. (1987) 2 SCC 364 this Court, while considering a request of the prosecution for adducing additional evidence, inter alia, observed as under:- “5.....The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest….” 27) While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.28) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.29) Taking note of all these aspects, without expressing any opinion on the merits of the case and also with regard to the claim of the CBI and the defence, we are of the opinion that the appellant cannot be released at this stage, however, we direct the CBI to complete the investigation and file charge sheet(s) as early as possible preferably within a period of four months from today. ### Response: 0

Jaswant Sugar Mills Ltd., Meerut Vs. Badri Prasad & Others

these 7 that on appearing and applying within 15 days of the order to be put on work they shall be treated as permanent with effect from the date of their having completed one years service and shall be paid full wages with effect from the date when they appear and apply to be put on work.2. Both parties appealed to the labour Appellate Tribunal. That Tribunal putting a different construction on the definition of permanent workman held that- all the 11 had acquired the status of permanent workmen. Regarding the wages for the period of unemployment the Appellate Tribunal held that the ends of justice would be met by allowing these workmen 50 per cent of their wages for the period of their forced unemployment till their reinstatement. Accordingly, the Labour Appellate Tribunal dismissed the employers appeal and allowed the workmens appeal.3. The main question for our consideration in the present appeal by the employer by special leave is the proper construction of the definition of a permanent workman. In deciding on the proper meaning to be attached to the words and phrases used in the definition it will be proper to consider the question in the background of the definition in the Standing Order of two other kinds of workmen, viz., Seasonal Workmen and Temporary Workmen. A Seasonal Workman is defined as one who is engaged for the crushing season only and/or may also be employed for the period necessary for cleaning and overhauling either before or after the season and is discharged after the work is finished. A Temporary Workman is defined as one who is engaged in the work of a temporary and casual nature or to fill in a temporary need of extra hands on permanent or temporary jobs.4. Reading the three definitions together it is abundantly dear that while a seasonal workman is engaged in a job which lasts during the crushing season only, a temporary workman may be engaged either for work of a temporary or casual nature or work of a permanent nature; but a permanent workman is one who is engaged on a permanent nature of work only. The distinction between a permanent workman engaged on work of a permanent nature and a temporary workman engaged on work of a permanent nature is in the fact that a temporary workman is engaged to fill in a temporary need of extra hands of permanent jobs. In this background it becomes clear that the words engaged on a permanent nature of work throughout the year" were intended to mean "engaged on a permanent nature of work lasting throughout the year" and not "engaged throughout the year on a permanent nature of work." When a workman is engaged on a work of permanent nature which lasts throughout the year it is legitimate to expect that he would continue there permanently unless he has been engaged to fill in a temporary need. It will be unreasonable to think that the Standing Orders left a loop-hole for the employer to prevent a person engaged on a work of permanent nature which lasts throughout the year, from becoming permanent by the device of discharging him from time to time. By such a device it would be possible for the employer to prevent any workman from becoming permanent, even though the work on which he is engaged lasts throughout the year and is in its nature permanent. That could not have been the intention when the Standing Orders were framed. It stands much more to reason that in speaking of a workman being engaged on a permanent nature of work throughout the year, those who framed the Standing Orders proceeded on the assumption that if the work of a permanent nature lasts throughout the year a workman who has completed his probationary period, if any, will continue to be engaged in that work. We are, therefore, of opinion that the Appellate Tribunal was right in thinking that to be a permanent workman within the definition it is not necessary that the workman should be engaged throughout the year. What is necessary is that the work on which he is engaged is of a permanent nature and lasts throughout the year.5. What, however, of a workman who is engaged on work of a permanent nature which lasts throughout the year but his own engagement is only to fill in a temporary need of extra hands ? It is clear that such a workman falls clearly within the definition of a temporary workman which has been set out above, though at the same time he may fall within the definition of a permanent workman. As, however, such a man falls within the narrower and special category of temporary workman it will not be reasonable to hold that he was sought to be included within the definition of a permanent workman in the Standing Orders. The proper construction of the definition of a permanent workman therefore is: A workman engaged on a work of permanent nature which lasts throughout the year and who has completed his probationary period, if any, not being one engaged to fill in a temporary need of extra hands on permanent jobs, e.g., in leave vacancies. It is not disputed before us that on the facts found all the 11 workmen satisfy this test. The conclusion of the Labour Appellate Tribunal that these 11 are all permanent workmen is therefore correct.6. As regards the claim for back wages the position was that there was no evidence on either side that for the period during which they were not employed by the company they found employment elsewhere. The Appellate Tribunal rightly pointed out, however, that usually workmen in sugar factories are employed in agricultural operations for portions of off-season. Having regard to this it ordered the payment of 50 per cent of their wages for the period of their enforced unemployment by the company till their reinstatement. We do not see any justification to interfere with this order.

0[ds]4. Reading the three definitions together it is abundantly dear that while a seasonal workman is engaged in a job which lasts during the crushing season only, a temporary workman may be engaged either for work of a temporary or casual nature or work of a permanent nature; but a permanent workman is one who is engaged on a permanent nature of work only. The distinction between a permanent workman engaged on work of a permanent nature and a temporary workman engaged on work of a permanent nature is in the fact that a temporary workman is engaged to fill in a temporary need of extra hands of permanent jobs. In this background it becomes clear that the words engaged on a permanent nature of work throughout the year" were intended to mean "engaged on a permanent nature of work lasting throughout the year" and not "engaged throughout the year on a permanent nature of work." When a workman is engaged on a work of permanent nature which lasts throughout the year it is legitimate to expect that he would continue there permanently unless he has been engaged to fill in a temporary need. It will be unreasonable to think that the Standing Orders left afor the employer to prevent a person engaged on a work of permanent nature which lasts throughout the year, from becoming permanent by the device of discharging him from time to time. By such a device it would be possible for the employer to prevent any workman from becoming permanent, even though the work on which he is engaged lasts throughout the year and is in its nature permanent. That could not have been the intention when the Standing Orders were framed. It stands much more to reason that in speaking of a workman being engaged on a permanent nature of work throughout the year, those who framed the Standing Orders proceeded on the assumption that if the work of a permanent nature lasts throughout the year a workman who has completed his probationary period, if any, will continue to be engaged in that work. We are, therefore, of opinion that the Appellate Tribunal was right in thinking that to be a permanent workman within the definition it is not necessary that the workman should be engaged throughout the year. What is necessary is that the work on which he is engaged is of a permanent nature and lasts throughout the year.5. What, however, of a workman who is engaged on work of a permanent nature which lasts throughout the year but his own engagement is only to fill in a temporary need of extra hands ? It is clear that such a workman falls clearly within the definition of a temporary workman which has been set out above, though at the same time he may fall within the definition of a permanent workman. As, however, such a man falls within the narrower and special category of temporary workman it will not be reasonable to hold that he was sought to be included within the definition of a permanent workman in the Standing Orders. The proper construction of the definition of a permanent workman therefore is: A workman engaged on a work of permanent nature which lasts throughout the year and who has completed his probationary period, if any, not being one engaged to fill in a temporary need of extra hands on permanent jobs, e.g., in leave vacancies. It is not disputed before us that on the facts found all the 11 workmen satisfy this test. The conclusion of the Labour Appellate Tribunal that these 11 are all permanent workmen is therefore correct.6. As regards the claim for back wages the position was that there was no evidence on either side that for the period during which they were not employed by the company they found employment elsewhere. The Appellate Tribunal rightly pointed out, however, that usually workmen in sugar factories are employed in agricultural operations for portions ofHaving regard to this it ordered the payment of 50 per cent of their wages for the period of their enforced unemployment by the company till their reinstatement. We do not see any justification to interfere with this order.

### 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: these 7 that on appearing and applying within 15 days of the order to be put on work they shall be treated as permanent with effect from the date of their having completed one years service and shall be paid full wages with effect from the date when they appear and apply to be put on work.2. Both parties appealed to the labour Appellate Tribunal. That Tribunal putting a different construction on the definition of permanent workman held that- all the 11 had acquired the status of permanent workmen. Regarding the wages for the period of unemployment the Appellate Tribunal held that the ends of justice would be met by allowing these workmen 50 per cent of their wages for the period of their forced unemployment till their reinstatement. Accordingly, the Labour Appellate Tribunal dismissed the employers appeal and allowed the workmens appeal.3. The main question for our consideration in the present appeal by the employer by special leave is the proper construction of the definition of a permanent workman. In deciding on the proper meaning to be attached to the words and phrases used in the definition it will be proper to consider the question in the background of the definition in the Standing Order of two other kinds of workmen, viz., Seasonal Workmen and Temporary Workmen. A Seasonal Workman is defined as one who is engaged for the crushing season only and/or may also be employed for the period necessary for cleaning and overhauling either before or after the season and is discharged after the work is finished. A Temporary Workman is defined as one who is engaged in the work of a temporary and casual nature or to fill in a temporary need of extra hands on permanent or temporary jobs.4. Reading the three definitions together it is abundantly dear that while a seasonal workman is engaged in a job which lasts during the crushing season only, a temporary workman may be engaged either for work of a temporary or casual nature or work of a permanent nature; but a permanent workman is one who is engaged on a permanent nature of work only. The distinction between a permanent workman engaged on work of a permanent nature and a temporary workman engaged on work of a permanent nature is in the fact that a temporary workman is engaged to fill in a temporary need of extra hands of permanent jobs. In this background it becomes clear that the words engaged on a permanent nature of work throughout the year" were intended to mean "engaged on a permanent nature of work lasting throughout the year" and not "engaged throughout the year on a permanent nature of work." When a workman is engaged on a work of permanent nature which lasts throughout the year it is legitimate to expect that he would continue there permanently unless he has been engaged to fill in a temporary need. It will be unreasonable to think that the Standing Orders left a loop-hole for the employer to prevent a person engaged on a work of permanent nature which lasts throughout the year, from becoming permanent by the device of discharging him from time to time. By such a device it would be possible for the employer to prevent any workman from becoming permanent, even though the work on which he is engaged lasts throughout the year and is in its nature permanent. That could not have been the intention when the Standing Orders were framed. It stands much more to reason that in speaking of a workman being engaged on a permanent nature of work throughout the year, those who framed the Standing Orders proceeded on the assumption that if the work of a permanent nature lasts throughout the year a workman who has completed his probationary period, if any, will continue to be engaged in that work. We are, therefore, of opinion that the Appellate Tribunal was right in thinking that to be a permanent workman within the definition it is not necessary that the workman should be engaged throughout the year. What is necessary is that the work on which he is engaged is of a permanent nature and lasts throughout the year.5. What, however, of a workman who is engaged on work of a permanent nature which lasts throughout the year but his own engagement is only to fill in a temporary need of extra hands ? It is clear that such a workman falls clearly within the definition of a temporary workman which has been set out above, though at the same time he may fall within the definition of a permanent workman. As, however, such a man falls within the narrower and special category of temporary workman it will not be reasonable to hold that he was sought to be included within the definition of a permanent workman in the Standing Orders. The proper construction of the definition of a permanent workman therefore is: A workman engaged on a work of permanent nature which lasts throughout the year and who has completed his probationary period, if any, not being one engaged to fill in a temporary need of extra hands on permanent jobs, e.g., in leave vacancies. It is not disputed before us that on the facts found all the 11 workmen satisfy this test. The conclusion of the Labour Appellate Tribunal that these 11 are all permanent workmen is therefore correct.6. As regards the claim for back wages the position was that there was no evidence on either side that for the period during which they were not employed by the company they found employment elsewhere. The Appellate Tribunal rightly pointed out, however, that usually workmen in sugar factories are employed in agricultural operations for portions of off-season. Having regard to this it ordered the payment of 50 per cent of their wages for the period of their enforced unemployment by the company till their reinstatement. We do not see any justification to interfere with this order. ### Response: 0

Sawarn Singh and Another Vs. State of Punjab and Others

in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be.13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence, at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.14. Now in the case before us, as will be apparent from the passage extracted earlier from the order of the Special Collector, the finding in question was a finding of fact arrived at by him after an appraisal of the oral and documentary evidence on record. His finding that for the year 1952-53, Rattan Singh s/o Dalip Singh entered in the khasra girdawari as a tenant of the land was a misdescription of Rattan Singh son of Isher Singh could not be said to be patently wrong. According to the Collector, the tenancy of Rattan Singh son of Isher Singh continued without a break from 1948 to 1961, although after his death, from 1953-54 onwards the tenancy was in the name of his sons, Jagga and Meet. The Collector found that for the year 1952-53, due to a clerical error, in the khasra girdawari, the name of Rattan Singhs father was shown as Dalip Singh, instead of Isher Singh. This mistake, according to the Special Collector, occurred because Dalip Singh was, according to the pedigree table on record, the real brother of Isher Singh, the father of Rattna Singh.15. Before the Collector, it was contended on behalf of the appellants that for the year 1952-53, the land in dispute was, in fact, cultivated by Rattan Singh s/o Gulzar Singh. This Gulzar Singh, though alive, was not examined. In any case, it was common ground that the parentage of Rattan Singh as entered in the khasra girdawari for the year 1952-53, was erroneous. This being the case, even on facts, the finding of the Special Collector that on April 15, 1953, Rattan Singh son of Isher Singh, the father of Jagga and Meet respondents, was in occupation of this land as a tenant, could not be said to be patently wrong, much less could it be a finding based on no evidence or on inadmissible evidence.16. According to the scheme of the Act, the Collector has to fix separately the permissible areas of the landowner as well as the tenants as on April 15, 1953. Accordingly, the Collector put the land in dispute in the permissible area of the tenant, Rattan Singh s/o Isher Singh, and excluded it from the surplus area of the landowner. Thus, the order of the Collector did not suffer from any error of law or of jurisdiction.17. The contention that some evidence was allowed to be tendered at the back of the appellant, does not appear to be tenable. According to Mr. Garg, the evidence which was let in this manner, was a copy of the khatauni, and the examination of the patwari after the case had been heard and reserved for orders. There is no reference to this khatauni in the order of the Special Collector which is not based on it. The patwari was obviously examined in the presence of the parties or their Counsel. Indeed, he is said to have been cross-examined by the parties including the appellants. This belated examination of the patwari did not prejudice the appellants or any other party.18. It is true that the Commissioner at the outset misconceived the real point in issue and wrongly assumed that the appellants were claiming as protected tenants. But from a reading of his order as a whole, it appears that he did examine the evidence on record and towards the end of his order in the penultimate paragraph, did advert though briefly to the real point for determination and concurred with the Collector, that Jagga was an old tenant and as such the areas under his tenancy had to be excluded from the surplus area of the landowner. In any case, the Financial Commissioner in revision discussed the matter in controversy with sufficient reference to the documentary and oral evidence on record, and came to a well-considered conclusion that the finding of the Collector as to the father of Jagga and Meet being an old tenant in occupation of the land in the crucial year 1952-53, was correct. He found no reason to disturb that concurrent finding of fact.19. In view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merits either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non-existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision [see State of Maharashtra v. B. K. Takkamore (supra); State of Orissa v. Bidyabhushan Mohapatra (1963 Supp 1 SCR 648 : AIR 1963 SC 779 : (1963) 1 LLJ 239 )].20. For the foregoing reasons, we are of opinion that the High Court was right in holding that there was no justification for interference with the impugned orders in the exercise of certiorari jurisdiction.

0[ds]14. Now in the case before us, as will be apparent from the passage extracted earlier from the order of the Special Collector, the finding in question was a finding of fact arrived at by him after an appraisal of the oral and documentary evidence on record. His finding that for the yearRattan Singh s/o Dalip Singh entered in the khasra girdawari as a tenant of the land was a misdescription of Rattan Singh son of Isher Singh could not be said to be patently wrong. According to the Collector, the tenancy of Rattan Singh son of Isher Singh continued without a break from 1948 to 1961, although after his death, fromonwards the tenancy was in the name of his sons, Jagga and Meet. The Collector found that for the yeardue to a clerical error, in the khasra girdawari, the name of Rattan Singhs father was shown as Dalip Singh, instead of Isher Singh. This mistake, according to the Special Collector, occurred because Dalip Singh was, according to the pedigree table on record, the real brother of Isher Singh, the father of Rattna Singh.15. Before the Collector, it was contended on behalf of the appellants that for the yearthe land in dispute was, in fact, cultivated by Rattan Singh s/o Gulzar Singh. This Gulzar Singh, though alive, was not examined. In any case, it was common ground that the parentage of Rattan Singh as entered in the khasra girdawari for the yearwas erroneous. This being the case, even on facts, the finding of the Special Collector that on April 15, 1953, Rattan Singh son of Isher Singh, the father of Jagga and Meet respondents, was in occupation of this land as a tenant, could not be said to be patently wrong, much less could it be a finding based on no evidence or on inadmissible evidence.16. According to the scheme of the Act, the Collector has to fix separately the permissible areas of the landowner as well as the tenants as on April 15, 1953. Accordingly, the Collector put the land in dispute in the permissible area of the tenant, Rattan Singh s/o Isher Singh, and excluded it from the surplus area of the landowner. Thus, the order of the Collector did not suffer from any error of law or of jurisdiction.17. The contention that some evidence was allowed to be tendered at the back of the appellant, does not appear to be tenable. Accordingto Mr. Garg, the evidence which was let in this manner, was a copy of the khatauni, and the examination of the patwari after the case had been heard and reserved for orders.There is no reference to this khatauni in the order of the Special Collector which is not based on it. The patwari was obviously examined in the presence of the parties or their Counsel. Indeed, he is said to have beenby the parties including the appellants. This belated examination of the patwari did not prejudice the appellants or any other party.18. It is true that the Commissioner at the outset misconceived the real point in issue and wrongly assumed that the appellants were claiming as protected tenants. But from a reading of his order as a whole, it appears that he did examine the evidence on record and towards the end of his order in the penultimate paragraph, did advert though briefly to the real point for determination and concurred with the Collector, that Jagga was an old tenant and as such the areas under his tenancy had to be excluded from the surplus area of the landowner. In any case, the Financial Commissioner in revision discussed the matter in controversy with sufficient reference to the documentary and oral evidence on record, and came to aconclusion that the finding of the Collector as to the father of Jagga and Meet being an old tenant in occupation of the land in the crucial yearwas correct. He found no reason to disturb that concurrent finding of fact.19. In view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merits either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant andthe order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant orgrounds could not have affected the ultimate decision [see State of Maharashtra v. B. K. Takkamore (supra); State of Orissa v. Bidyabhushan Mohapatra (1963 Supp 1 SCR 648 : AIR 1963 SC 779 : (1963) 1 LLJ 239 )].20. For the foregoing reasons, we are of opinion that the High Court was right in holding that there was no justification for interference with the impugned orders in the exercise of certiorari jurisdiction.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be.13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence, at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.14. Now in the case before us, as will be apparent from the passage extracted earlier from the order of the Special Collector, the finding in question was a finding of fact arrived at by him after an appraisal of the oral and documentary evidence on record. His finding that for the year 1952-53, Rattan Singh s/o Dalip Singh entered in the khasra girdawari as a tenant of the land was a misdescription of Rattan Singh son of Isher Singh could not be said to be patently wrong. According to the Collector, the tenancy of Rattan Singh son of Isher Singh continued without a break from 1948 to 1961, although after his death, from 1953-54 onwards the tenancy was in the name of his sons, Jagga and Meet. The Collector found that for the year 1952-53, due to a clerical error, in the khasra girdawari, the name of Rattan Singhs father was shown as Dalip Singh, instead of Isher Singh. This mistake, according to the Special Collector, occurred because Dalip Singh was, according to the pedigree table on record, the real brother of Isher Singh, the father of Rattna Singh.15. Before the Collector, it was contended on behalf of the appellants that for the year 1952-53, the land in dispute was, in fact, cultivated by Rattan Singh s/o Gulzar Singh. This Gulzar Singh, though alive, was not examined. In any case, it was common ground that the parentage of Rattan Singh as entered in the khasra girdawari for the year 1952-53, was erroneous. This being the case, even on facts, the finding of the Special Collector that on April 15, 1953, Rattan Singh son of Isher Singh, the father of Jagga and Meet respondents, was in occupation of this land as a tenant, could not be said to be patently wrong, much less could it be a finding based on no evidence or on inadmissible evidence.16. According to the scheme of the Act, the Collector has to fix separately the permissible areas of the landowner as well as the tenants as on April 15, 1953. Accordingly, the Collector put the land in dispute in the permissible area of the tenant, Rattan Singh s/o Isher Singh, and excluded it from the surplus area of the landowner. Thus, the order of the Collector did not suffer from any error of law or of jurisdiction.17. The contention that some evidence was allowed to be tendered at the back of the appellant, does not appear to be tenable. According to Mr. Garg, the evidence which was let in this manner, was a copy of the khatauni, and the examination of the patwari after the case had been heard and reserved for orders. There is no reference to this khatauni in the order of the Special Collector which is not based on it. The patwari was obviously examined in the presence of the parties or their Counsel. Indeed, he is said to have been cross-examined by the parties including the appellants. This belated examination of the patwari did not prejudice the appellants or any other party.18. It is true that the Commissioner at the outset misconceived the real point in issue and wrongly assumed that the appellants were claiming as protected tenants. But from a reading of his order as a whole, it appears that he did examine the evidence on record and towards the end of his order in the penultimate paragraph, did advert though briefly to the real point for determination and concurred with the Collector, that Jagga was an old tenant and as such the areas under his tenancy had to be excluded from the surplus area of the landowner. In any case, the Financial Commissioner in revision discussed the matter in controversy with sufficient reference to the documentary and oral evidence on record, and came to a well-considered conclusion that the finding of the Collector as to the father of Jagga and Meet being an old tenant in occupation of the land in the crucial year 1952-53, was correct. He found no reason to disturb that concurrent finding of fact.19. In view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merits either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non-existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision [see State of Maharashtra v. B. K. Takkamore (supra); State of Orissa v. Bidyabhushan Mohapatra (1963 Supp 1 SCR 648 : AIR 1963 SC 779 : (1963) 1 LLJ 239 )].20. For the foregoing reasons, we are of opinion that the High Court was right in holding that there was no justification for interference with the impugned orders in the exercise of certiorari jurisdiction. ### Response: 0

General Manager East Coast Railway Rail Sadan & Anr Vs. Hindustan Construction Co. Ltd

the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) has appointed an Arbitrator to adjudicate the dispute between the parties, the original informant – General Manager, East Coast Railway Rail Sadan and Anr., have preferred the present appeal. 2. As such the dispute in the present appeal is in a very narrow compass. 3. The dispute arose between the appellant and the respondent with respect to the contract/agreement dated 29.11.2018. That the respondent herein - original claimant initiated the proceedings under Section 9 of the Arbitration Act before the learned Additional District Judge, Visakhapatnam seeking interim injunction against the encashment of Performance Bank Guarantee and forfeiture of security deposit. The said application came to be allowed by the learned Additional District Judge vide order dated 06.11.2019 restraining the appellants herein from forfeiting security deposit for period of six months except on the special circumstances. 4. That thereafter the respondent vide letter dated 01.12.2019 requested the appellant to constitute the Arbitral Tribunal raising five claims. It appears that in terms of the Arbitration Agreement, arbitration proceedings were initiated by the appellants by appointing an arbitrator to adjudicate the dispute between the parties. That the Arbitrator issued notices calling upon the parties to submit their respective claims. The respondent herein sought time vide letter dated 02.04.2020 for filing the claim in view of Covid-19 Pandemic. The Arbitrator adjourned the proceedings to 03.04.2020. Instead of submitting the claim, vide letter dated 01.09.2020 the respondent questioned the validity of arbitral tribunal. Thereafter the respondent filed the Arbitration Petition No.10 of 2021 before the High Court of Orissa at Cuttack under Section 11(6) of the Act seeking appointment of an Arbitrator. The said application was opposed by the appellants relying upon Section 42 of the Arbitration Act and it was the case on behalf of the appellants that in view of Section 42 of the Arbitration Act, the application under Section 11(6) of the Act shall lie before the High Court of Andhra Pradesh at Amaravati as the respondent itself earlier filed Section 9 application before the Court at Vishakhapatnam. It was also submitted on behalf of the appellants that procedure dated 16.11.2016 upon which reliance has been placed by the respondent was superseded by GCC issued by Railway Board in November, 2018. Despite the above jurisdictional issue raised and without addressing on the jurisdiction of the Orissa High Court, by the impugned judgment and order the High Court of Orissa at Cuttack has appointed the Arbitrator solely by observing that since the appellant, East Coast Railways in principle, is not opposing the appointment of an Arbitrator there is little purpose served in relegating the respondent (original petitioner) to the appropriate High Court as that will only delay the adjudication of the disputes. 5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Orissa at Cuttack, the original respondent – General Manager – East Coast Railway has preferred the present appeal. 6. We have heard Shri K.M. Natraj, learned ASG appearing on behalf of the appellants and Shri Amit Dubey, learned Counsel appearing on behalf of the respondent. We have gone through the impugned judgment and order passed by the High Court. A specific objection was raised by the appellant herein before the High Court on the entertainability and/or maintainability of the application under Section 11(6) of the Arbitration Act before the Orissa High Court. Reliance was placed on Section 42 of the Arbitration Act and it was submitted on behalf of the appellants that as the respondent - claimant had initiated proceedings under Section 9 of the Arbitration Act in the Court at Vishakhapatnam, only the High Court of Andhra Pradesh at Amaravati would have jurisdiction to entertain the application under Section 11(6) of the Act. Without deciding the said issue which goes to the root of the jurisdiction of the High Court of Orissa at Cuttack, the said High Court by the impugned order has entertained the application under Section 11(6) of the Act and has appointed the sole arbitrator by observing that since the appellants – East Coast Railway, in principle, has not opposed the appointment of an arbitrator, there is little purpose served in relegating the original petitioner to the concerned High Court as that will only delay the adjudication of the disputes. The appellants might not have opposed the appointment of an arbitrator (though the fresh appointment of an Arbitrator was also opposed by the appellants herein) by that itself it will not confer the jurisdiction upon the High Court if otherwise, the High Court had no jurisdiction. 7. Heavy reliance is/was placed on Section 42 of the Arbitration and Conciliation Act, 1996 which reads as under: 42. Jurisdiction. - Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that, agreement and the arbitral proceeding shall be made in that Court and in no other Court. 7.1 It is not in dispute that before filing an application under Section 11(6) of the Act before the High Court of Orissa at Cuttack, the respondent – claimant moved an application before the Court at Visakhapatnam under Section 9 of the Arbitration Act. In that view of the matter considering Section 42 of the Arbitration Act, the High Court of Andhra Pradesh at Hyderabad alone would have jurisdiction to decide the subsequent applications arising out of the Contract Agreement and the further arbitral proceedings shall have to be made in the High court of Andhra Pradesh at Amaravati alone and in no other court. In that view of the matter the High Court of Orissa at Cuttack has committed a serious error in entertaining the application under Section 11(6) of the Act before it and appointing the sole arbitrator.

1[ds]7.1 It is not in dispute that before filing an application under Section 11(6) of the Act before the High Court of Orissa at Cuttack, the respondent – claimant moved an application before the Court at Visakhapatnam under Section 9 of the Arbitration Act. In that view of the matter considering Section 42 of the Arbitration Act, the High Court of Andhra Pradesh at Hyderabad alone would have jurisdiction to decide the subsequent applications arising out of the Contract Agreement and the further arbitral proceedings shall have to be made in the High court of Andhra Pradesh at Amaravati alone and in no other court. In that view of the matter the High Court of Orissa at Cuttack has committed a serious error in entertaining the application under Section 11(6) of the Act before it and appointing the sole arbitrator.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) has appointed an Arbitrator to adjudicate the dispute between the parties, the original informant – General Manager, East Coast Railway Rail Sadan and Anr., have preferred the present appeal. 2. As such the dispute in the present appeal is in a very narrow compass. 3. The dispute arose between the appellant and the respondent with respect to the contract/agreement dated 29.11.2018. That the respondent herein - original claimant initiated the proceedings under Section 9 of the Arbitration Act before the learned Additional District Judge, Visakhapatnam seeking interim injunction against the encashment of Performance Bank Guarantee and forfeiture of security deposit. The said application came to be allowed by the learned Additional District Judge vide order dated 06.11.2019 restraining the appellants herein from forfeiting security deposit for period of six months except on the special circumstances. 4. That thereafter the respondent vide letter dated 01.12.2019 requested the appellant to constitute the Arbitral Tribunal raising five claims. It appears that in terms of the Arbitration Agreement, arbitration proceedings were initiated by the appellants by appointing an arbitrator to adjudicate the dispute between the parties. That the Arbitrator issued notices calling upon the parties to submit their respective claims. The respondent herein sought time vide letter dated 02.04.2020 for filing the claim in view of Covid-19 Pandemic. The Arbitrator adjourned the proceedings to 03.04.2020. Instead of submitting the claim, vide letter dated 01.09.2020 the respondent questioned the validity of arbitral tribunal. Thereafter the respondent filed the Arbitration Petition No.10 of 2021 before the High Court of Orissa at Cuttack under Section 11(6) of the Act seeking appointment of an Arbitrator. The said application was opposed by the appellants relying upon Section 42 of the Arbitration Act and it was the case on behalf of the appellants that in view of Section 42 of the Arbitration Act, the application under Section 11(6) of the Act shall lie before the High Court of Andhra Pradesh at Amaravati as the respondent itself earlier filed Section 9 application before the Court at Vishakhapatnam. It was also submitted on behalf of the appellants that procedure dated 16.11.2016 upon which reliance has been placed by the respondent was superseded by GCC issued by Railway Board in November, 2018. Despite the above jurisdictional issue raised and without addressing on the jurisdiction of the Orissa High Court, by the impugned judgment and order the High Court of Orissa at Cuttack has appointed the Arbitrator solely by observing that since the appellant, East Coast Railways in principle, is not opposing the appointment of an Arbitrator there is little purpose served in relegating the respondent (original petitioner) to the appropriate High Court as that will only delay the adjudication of the disputes. 5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Orissa at Cuttack, the original respondent – General Manager – East Coast Railway has preferred the present appeal. 6. We have heard Shri K.M. Natraj, learned ASG appearing on behalf of the appellants and Shri Amit Dubey, learned Counsel appearing on behalf of the respondent. We have gone through the impugned judgment and order passed by the High Court. A specific objection was raised by the appellant herein before the High Court on the entertainability and/or maintainability of the application under Section 11(6) of the Arbitration Act before the Orissa High Court. Reliance was placed on Section 42 of the Arbitration Act and it was submitted on behalf of the appellants that as the respondent - claimant had initiated proceedings under Section 9 of the Arbitration Act in the Court at Vishakhapatnam, only the High Court of Andhra Pradesh at Amaravati would have jurisdiction to entertain the application under Section 11(6) of the Act. Without deciding the said issue which goes to the root of the jurisdiction of the High Court of Orissa at Cuttack, the said High Court by the impugned order has entertained the application under Section 11(6) of the Act and has appointed the sole arbitrator by observing that since the appellants – East Coast Railway, in principle, has not opposed the appointment of an arbitrator, there is little purpose served in relegating the original petitioner to the concerned High Court as that will only delay the adjudication of the disputes. The appellants might not have opposed the appointment of an arbitrator (though the fresh appointment of an Arbitrator was also opposed by the appellants herein) by that itself it will not confer the jurisdiction upon the High Court if otherwise, the High Court had no jurisdiction. 7. Heavy reliance is/was placed on Section 42 of the Arbitration and Conciliation Act, 1996 which reads as under: 42. Jurisdiction. - Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that, agreement and the arbitral proceeding shall be made in that Court and in no other Court. 7.1 It is not in dispute that before filing an application under Section 11(6) of the Act before the High Court of Orissa at Cuttack, the respondent – claimant moved an application before the Court at Visakhapatnam under Section 9 of the Arbitration Act. In that view of the matter considering Section 42 of the Arbitration Act, the High Court of Andhra Pradesh at Hyderabad alone would have jurisdiction to decide the subsequent applications arising out of the Contract Agreement and the further arbitral proceedings shall have to be made in the High court of Andhra Pradesh at Amaravati alone and in no other court. In that view of the matter the High Court of Orissa at Cuttack has committed a serious error in entertaining the application under Section 11(6) of the Act before it and appointing the sole arbitrator. ### Response: 1

Dinabandhu Sahu Vs. The State of Orissa & Another

having a tendency to scandalise the Orissa High Court and its Honourable Judges, undermining its dignity in the estimation of the public, and impeaching its impartiality in dispensation of justice. As the Stamp Reporter had pointed out among other defects, that no opposite party has been mentioned and that the relief sought for is vague, it was observed that it was not a question of removal of defects but of the petitioners liability in filing such a petition containing derogatory statements and accordingly a notice was directed to be issued against Shri Santosh Kumar Sahu and also against Shri Dinabandhu Sahu as Advocate for the petitioner for supporting the petition and against Shri B. H. Das and Shri S. F. Ahmad, Advocates who along with Dinabandhu Sahu had signed the Vakalatnama in the aforesaid case, to show cause why they should not be committed for contempt. These notices were made returnable on 15-2-68. It is not necessary in view of the statement made by Mr. Chari on behalf of his clients before us to set out the details of what happened on 9-2-68 or 15-2-68 except to say that after the returns were filed and the matter came up on 15-2-68 the learned Chief Justice thought it necessary to give an account of how the "events happened on 26th January 1968 at the function and specifically stated that if he had not listed the case before him, he would not have been in a position to explain the circumstances and remove certain misapprehensions in the mind of the public".2. After this explanation was given the Appellants say that they had stated before the learned Chief Justice and A. Misra, J. who were hearing the petition that they would not have filed the representation petition had they known all the circumstances which were explained by the learned Chief Justice and prayed through Mr. Chari appearing on behalf of the opposite party that they may be forgiven. This fact emerges also from the judgment of the learned Chief Justice who in paragraph 57 said that Mr. Chari appearing on behalf of all the opposite parties asked for forgiveness of the Court as he put it publicly in open Court. The other learned Judge A. Misra, J, also stated that this was so and that it was given particularly in view of the strained relations which existed between the rival political parties and which led to some misunderstanding of the whole situation, but he pointed out that except for this the Respondents at no stage have chosen to express any regret or tender apology. The learned Chief Justice also stated that there was nothing in writing either by way of an apology nor has regret been tendered in the Court. Mr. Chari before us pointed out, with some justification that if all that the Court wanted was a written apology by the Appellants there would have been no hesitation in their giving it as the very cause for their apprehension had been removed, by the explanation given by the learned Chief Justice to remove any misunderstanding in the public mind, which misunderstanding no longer existed after that explanation. Though the case was fully argued, even before as the learned Advocate on behalf of his clients made the following statement expressing their apology:-"My client had already expressed that the misunderstandings which caused them to file the petition - the subject matter of the contempt proceedings had been removed by the explanation given by the learned Chief Justice and stated that if they had known this, they would never have written it. In view of this they had also asked for the forgiveness of the Court out of its generosity. I have, therefore, no hesitation at all in offering unconditional apology on their behalf for having written the petition. On behalf my clients, I again repeat that and tender an unqualified apology for presenting the petition".3. The learned Advocate for the State of Orissa Mr. Chatterjee frankly conceded that having regard to this apology which has again been reiterated the proceedings may be dropped. We think that this is a correct and proper attitude to adopt in respect of these proceedings. Whatever may have been the justification for the High Court to initiate the proceedings in respect of a matter, which in the state of the atmosphere then prevailing was likely to create a suspicion, whether justifiable or imaginary, in the public mind and particularly in the mind of the litigants, by the circumstance that a person who is a Respondents in a case where a judgment was reserved was given prominence and referred to in terms of praise or eulogy, that situation had changed after the learned Chief Justice had given an explanation for the reasons why Dr. Mahtab was given a seat among the few selected persons at the Buffet lunch and other matters incidental thereto. The apology tendered was not merely an apology but was something more than an apology because what was asked of the Court out of its generosity was forgiveness; that this was sincerely meant is amply demonstrated by its being repeated again before us. We think that the contempt if any has been certainly purged in the manner in which the apology was given and the matter should have been set at rest there. It is no part of the judicial function to be vindictive or allow any personal or other considerations to enter in the discharge of its functions and since both the learned Chief Justice and Misra, J. would have been prepared to accept that apology if it was given by the Appellants themselves and in writing and since Mr. Chari said that the Appellants would have been prepared to give such an apology in writing, if that was the only things that was required and even now are ready and willing to do so we feel that the apology tendered on their behalf by their Senior Advocate can well be accepted and the proceedings closed.

1[ds]We think that this is a correct and proper attitude to adopt in respect of these proceedings. Whatever may have been the justification for the High Court to initiate the proceedings in respect of a matter, which in the state of the atmosphere then prevailing was likely to create a suspicion, whether justifiable or imaginary, in the public mind and particularly in the mind of the litigants, by the circumstance that a person who is a Respondents in a case where a judgment was reserved was given prominence and referred to in terms of praise or eulogy, that situation had changed after the learned Chief Justice had given an explanation for the reasons why Dr. Mahtab was given a seat among the few selected persons at the Buffet lunch and other matters incidental thereto. The apology tendered was not merely an apology but was something more than an apology because what was asked of the Court out of its generosity was forgiveness; that this was sincerely meant is amply demonstrated by its being repeated again before us. We think that the contempt if any has been certainly purged in the manner in which the apology was given and the matter should have been set at rest there. It is no part of the judicial function to be vindictive or allow any personal or other considerations to enter in the discharge of its functions and since both the learned Chief Justice and Misra, J. would have been prepared to accept that apology if it was given by the Appellants themselves and in writing and since Mr. Chari said that the Appellants would have been prepared to give such an apology in writing, if that was the only things that was required and even now are ready and willing to do so we feel that the apology tendered on their behalf by their Senior Advocate can well be accepted and the proceedings closed.

### 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: having a tendency to scandalise the Orissa High Court and its Honourable Judges, undermining its dignity in the estimation of the public, and impeaching its impartiality in dispensation of justice. As the Stamp Reporter had pointed out among other defects, that no opposite party has been mentioned and that the relief sought for is vague, it was observed that it was not a question of removal of defects but of the petitioners liability in filing such a petition containing derogatory statements and accordingly a notice was directed to be issued against Shri Santosh Kumar Sahu and also against Shri Dinabandhu Sahu as Advocate for the petitioner for supporting the petition and against Shri B. H. Das and Shri S. F. Ahmad, Advocates who along with Dinabandhu Sahu had signed the Vakalatnama in the aforesaid case, to show cause why they should not be committed for contempt. These notices were made returnable on 15-2-68. It is not necessary in view of the statement made by Mr. Chari on behalf of his clients before us to set out the details of what happened on 9-2-68 or 15-2-68 except to say that after the returns were filed and the matter came up on 15-2-68 the learned Chief Justice thought it necessary to give an account of how the "events happened on 26th January 1968 at the function and specifically stated that if he had not listed the case before him, he would not have been in a position to explain the circumstances and remove certain misapprehensions in the mind of the public".2. After this explanation was given the Appellants say that they had stated before the learned Chief Justice and A. Misra, J. who were hearing the petition that they would not have filed the representation petition had they known all the circumstances which were explained by the learned Chief Justice and prayed through Mr. Chari appearing on behalf of the opposite party that they may be forgiven. This fact emerges also from the judgment of the learned Chief Justice who in paragraph 57 said that Mr. Chari appearing on behalf of all the opposite parties asked for forgiveness of the Court as he put it publicly in open Court. The other learned Judge A. Misra, J, also stated that this was so and that it was given particularly in view of the strained relations which existed between the rival political parties and which led to some misunderstanding of the whole situation, but he pointed out that except for this the Respondents at no stage have chosen to express any regret or tender apology. The learned Chief Justice also stated that there was nothing in writing either by way of an apology nor has regret been tendered in the Court. Mr. Chari before us pointed out, with some justification that if all that the Court wanted was a written apology by the Appellants there would have been no hesitation in their giving it as the very cause for their apprehension had been removed, by the explanation given by the learned Chief Justice to remove any misunderstanding in the public mind, which misunderstanding no longer existed after that explanation. Though the case was fully argued, even before as the learned Advocate on behalf of his clients made the following statement expressing their apology:-"My client had already expressed that the misunderstandings which caused them to file the petition - the subject matter of the contempt proceedings had been removed by the explanation given by the learned Chief Justice and stated that if they had known this, they would never have written it. In view of this they had also asked for the forgiveness of the Court out of its generosity. I have, therefore, no hesitation at all in offering unconditional apology on their behalf for having written the petition. On behalf my clients, I again repeat that and tender an unqualified apology for presenting the petition".3. The learned Advocate for the State of Orissa Mr. Chatterjee frankly conceded that having regard to this apology which has again been reiterated the proceedings may be dropped. We think that this is a correct and proper attitude to adopt in respect of these proceedings. Whatever may have been the justification for the High Court to initiate the proceedings in respect of a matter, which in the state of the atmosphere then prevailing was likely to create a suspicion, whether justifiable or imaginary, in the public mind and particularly in the mind of the litigants, by the circumstance that a person who is a Respondents in a case where a judgment was reserved was given prominence and referred to in terms of praise or eulogy, that situation had changed after the learned Chief Justice had given an explanation for the reasons why Dr. Mahtab was given a seat among the few selected persons at the Buffet lunch and other matters incidental thereto. The apology tendered was not merely an apology but was something more than an apology because what was asked of the Court out of its generosity was forgiveness; that this was sincerely meant is amply demonstrated by its being repeated again before us. We think that the contempt if any has been certainly purged in the manner in which the apology was given and the matter should have been set at rest there. It is no part of the judicial function to be vindictive or allow any personal or other considerations to enter in the discharge of its functions and since both the learned Chief Justice and Misra, J. would have been prepared to accept that apology if it was given by the Appellants themselves and in writing and since Mr. Chari said that the Appellants would have been prepared to give such an apology in writing, if that was the only things that was required and even now are ready and willing to do so we feel that the apology tendered on their behalf by their Senior Advocate can well be accepted and the proceedings closed. ### Response: 1

Mothey Anja Ratna Raja Kumar Vs. Koney Narayana Rao & Others

Fazl Ali, J.1. These two appeals arise out of a suit filed by Koney Narayan Rao and 3 others (who are the respondents in Appeal No. 26 and the appellants in Appeal No. 27 and will hereinafter be referred to as "the plaintiffs) against one Ganga Raju (since deceased) and his adopted son, Mothey Anja Ratna Raja Kumar (who is the appellant in Appeal No. 26 and the respondent in Appeal No. 27)2. The plaintiffs are the illegitimate sons of Ganga Raju, and their suit was for maintenance at the rate of Rs. 400 per mensem for each of them with a charge on the joint family property of Ganga Raju. Both the District Judge of West Godavari who tried the suit and the Madras High Court have held that the plaintiffs are the illegitimate sons of Ganga Raju and that they are entitled to maintenance. The trial court decreed maintenance at the rate of Rs. 100 per mensem for each of the plaintiffs, but the High Court has enhanced the amount of maintenance to Rs. 200 per mensem. Both the parties have now filed appeals in this Court against the decree of the High Court.3. The main dispute in these appeals is as to the quantum of maintenance. It was contended in the course of the arguments that among the regenerate classes, an illegitimate son cannot claim maintenance as a matter of right and all that he can get is a compassionate allowance. This contention was based on certain observations made by the Madras High Court in the case of -Gopalasami Chetti v. Arunachellam Chetti, 27 Mad 32 (A), but it may be pointed out that the expression "compassionate allowance" was never used by the learned Judges in that case and all that they have said is that an illegitimate son can be allowed only a "compassionate rate of maintenance." In our opinion, even that expression is hardly appropriate, and the true legal position has been laid down in -- Ananthaya v. Vishnu, 17 Mad 160 (B), where it has been held that under the Mitakshara law, an illegitimate son is entitled to maintenance as long as he lives, in recognition of his status as a member of his fathers family and by reason of his exclusion from inheritance among the regenerate classes.4. Turning now to the question of the rate of maintenance, it is common ground that Ganga Raju had amassed a large amount of property consisting of agricultural lands houses , estate villages, etc. and also had invested money on a large scale. It further appears from the evidence that during his lifetime he had spent considerable sums of money on the plaintiffs in trying to set them up in life, but the investments he had made on their account in different kinds of business did not bear fruit. This however is a matter of past history, and both the courts below were right in proceeding to determine the exact amount of the income from the properties of Ganga Raju, since that is the principal factor to be considered in fixing the rate of maintenance to be paid to the plaintiffs. The trial Court estimated the annual income from the properties to be Rs. 40.000. but the High Court has estimated it to be about Rs. 45, 000. Further, according to the High Court, the outstandings, i.e., moneys due from debtors and other sources, amount to over 5 lakhs of rupees. We have verified these figures with reference to the evidence on record, and they appear to be substantially correct.5. One of the points which seems to have weighed with the High Court in increasing the amount of maintenance fixed by the trial Court was that since the judgment of the trial Court was delivered Ganga Raju had died, with the result that the entire income of the properties was now to be enjoyed by the adopted son instead of its being enjoyed by him and Ganga Raju. In our opinion, that is hardly a relevant consideration. There are two other matters which the High Court appears to have overlooked, these being firstly, that Ganga Raju had suffered some losses in his business transactions, and secondly that the plaintiffs are able-bodied adults having their own earning capacity.

1[ds]ut it may be pointed out that the expression "compassionate allowance" was never used by the learned Judges in that case and all that they have said is that an illegitimate son can be allowed only a "compassionate rate of maintenance." In our opinion, even that expression is hardly appropriate, and the true legal position has been laid downv. Vishnu, 17 Mad 160 (B), where it has been held that under the Mitakshara law, an illegitimate son is entitled to maintenance as long as he lives, in recognition of his status as a member of his fathers family and by reason of his exclusion from inheritance among the regenerate classes.4. Turning now to the question of the rate of maintenance, it is common ground that Ganga Raju had amassed a large amount of property consisting of agricultural lands houses , estate villages, etc. and also had invested money on a large scale. It further appears from the evidence that during his lifetime he had spent considerable sums of money on the plaintiffs in trying to set them up in life, but the investments he had made on their account in different kinds of business did not bear fruit. This however is a matter of past history, and both the courts below were right in proceeding to determine the exact amount of the income from the properties of Ganga Raju, since that is the principal factor to be considered in fixing the rate of maintenance to be paid to the plaintiffs. The trial Court estimated the annual income from the properties to be Rs. 40.000. but the High Court has estimated it to be about Rs. 45, 000. Further, according to the High Court, the outstandings, i.e., moneys due from debtors and other sources, amount to over 5 lakhs of rupees. We have verified these figures with reference to the evidence on record, and they appear to be substantially correct.5. One of the points which seems to have weighed with the High Court in increasing the amount of maintenance fixed by the trial Court was that since the judgment of the trial Court was delivered Ganga Raju had died, with the result that the entire income of the properties was now to be enjoyed by the adopted son instead of its being enjoyed by him and Ganga Raju. In our opinion, that is hardly a relevant consideration. There are two other matters which the High Court appears to have overlooked, these being firstly, that Ganga Raju had suffered some losses in his business transactions, and secondly that the plaintiffs areadults having their own earning capacity.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: Fazl Ali, J.1. These two appeals arise out of a suit filed by Koney Narayan Rao and 3 others (who are the respondents in Appeal No. 26 and the appellants in Appeal No. 27 and will hereinafter be referred to as "the plaintiffs) against one Ganga Raju (since deceased) and his adopted son, Mothey Anja Ratna Raja Kumar (who is the appellant in Appeal No. 26 and the respondent in Appeal No. 27)2. The plaintiffs are the illegitimate sons of Ganga Raju, and their suit was for maintenance at the rate of Rs. 400 per mensem for each of them with a charge on the joint family property of Ganga Raju. Both the District Judge of West Godavari who tried the suit and the Madras High Court have held that the plaintiffs are the illegitimate sons of Ganga Raju and that they are entitled to maintenance. The trial court decreed maintenance at the rate of Rs. 100 per mensem for each of the plaintiffs, but the High Court has enhanced the amount of maintenance to Rs. 200 per mensem. Both the parties have now filed appeals in this Court against the decree of the High Court.3. The main dispute in these appeals is as to the quantum of maintenance. It was contended in the course of the arguments that among the regenerate classes, an illegitimate son cannot claim maintenance as a matter of right and all that he can get is a compassionate allowance. This contention was based on certain observations made by the Madras High Court in the case of -Gopalasami Chetti v. Arunachellam Chetti, 27 Mad 32 (A), but it may be pointed out that the expression "compassionate allowance" was never used by the learned Judges in that case and all that they have said is that an illegitimate son can be allowed only a "compassionate rate of maintenance." In our opinion, even that expression is hardly appropriate, and the true legal position has been laid down in -- Ananthaya v. Vishnu, 17 Mad 160 (B), where it has been held that under the Mitakshara law, an illegitimate son is entitled to maintenance as long as he lives, in recognition of his status as a member of his fathers family and by reason of his exclusion from inheritance among the regenerate classes.4. Turning now to the question of the rate of maintenance, it is common ground that Ganga Raju had amassed a large amount of property consisting of agricultural lands houses , estate villages, etc. and also had invested money on a large scale. It further appears from the evidence that during his lifetime he had spent considerable sums of money on the plaintiffs in trying to set them up in life, but the investments he had made on their account in different kinds of business did not bear fruit. This however is a matter of past history, and both the courts below were right in proceeding to determine the exact amount of the income from the properties of Ganga Raju, since that is the principal factor to be considered in fixing the rate of maintenance to be paid to the plaintiffs. The trial Court estimated the annual income from the properties to be Rs. 40.000. but the High Court has estimated it to be about Rs. 45, 000. Further, according to the High Court, the outstandings, i.e., moneys due from debtors and other sources, amount to over 5 lakhs of rupees. We have verified these figures with reference to the evidence on record, and they appear to be substantially correct.5. One of the points which seems to have weighed with the High Court in increasing the amount of maintenance fixed by the trial Court was that since the judgment of the trial Court was delivered Ganga Raju had died, with the result that the entire income of the properties was now to be enjoyed by the adopted son instead of its being enjoyed by him and Ganga Raju. In our opinion, that is hardly a relevant consideration. There are two other matters which the High Court appears to have overlooked, these being firstly, that Ganga Raju had suffered some losses in his business transactions, and secondly that the plaintiffs are able-bodied adults having their own earning capacity. ### Response: 1

Secretary, Madras Gymkhana Club Employees'Union Vs. Management Of The Gymkhana Club

must give them their due. Industry is the nexus between employers and employees and it is this nexus which brings two distinct bodies together to produce a result. We do not think that the test that the workmen must not share in the product of their labours adopted in one case can be regarded as universal. There may be occasions when the workmen may receive a share of the produce either as part of their wages or as bonus or as a benefit.30. This ends discussion of what is an industry. We are not in a position to consider whether the Madras Gymkhana Club fulfils the tests laid down by this Court and accepted here by us. In support of the claim on behalf of the Employees Union, our attention was drawn to two decisions of the Calcutta High Court relating to the Bengal Club Ltd. v. Santi Ranjan Somaddar, AIR 1956 Cal 545 and Royal Calcutta Golf Club Mazdoor Union v. State of West Bengal, AIR 1956 Cal 550 . Both decisions are by a learned single Judge. They were cases of incorporated companies running clubs for profit and as business. There are, however, observations which are clearly obiter, that even a non-proprietary members club is an industry. Founding itself on those observations the Union contends that the club in the present case must also be treated as an industry. In fine the claim is based on the following considerations: (a) that the club is organised as an industry is organised on a vast scale with multifarious activities, (b) that facilities of accommodation, catering, sale of alcoholic and non-alcoholic beverages, games etc. are provided, (c) that the club runs parties at which guests are freely entertained and - (d) that the club has established reciprocal arrangements with other clubs for its members. In our opinion none of these considerations is sufficient to establish that the club is an industry within the Industrial Disputes Act.31. We cannot go by the size of the club or the largeness of its membership or the number or extent of these activities. We have to consider the essential character of the Club activity in relation to the definition of industry. As we said before the definition is in two parts. The first part which we called the denotation or the meaning of the word shows what an industry really is and the second part contains the extended connotation to indicate who will be considered an integral part of the industry on the side of employees. Beginning with the second part, it may at once be conceded that the activity of the club is conducted with the aid of employees who follow callings or avocations. Therefore if the activity of the employers is within the realm of industry, the answer must be in favour of the Union. But taking the first part of the definition it may also be said that the club does not follow a trade or business. Its activity cannot be described as manufacture and the running of clubs is not the calling of the members or its managing committee. The only question is, is it an undertaking?32. Here the appearances are somewhat against the club. It is not of any consequence that there is no profit motive because that is considered immaterial. It is also true that the affairs of the club are organised in the way business is organised, and that there is production of material and other services and in a limited way production of material goods mainly in the catering department. But these circumstances are not truly representative in the case of the club because the services are to the members themselves for their own pleasure and amusement and the material goods are for their consumption. In other words, the club exists for its members. No doubt occasionally strangers also take benefit from its services but they can only do so on invitation of members. No one outside the list of members has the advantage of these services as of right. Nor can these privileges be bought. In fact they are available only to members or through members.33. If today the club were to stop entry of outsiders, no essential change in its character vis-a-vis the members would take place. In other words, the circumstance that guests are admitted is irrelevant to determine if the club is an industry. Even with the admission of guests being open the club remains the same, that is to say, a members self-serving institution No doubt the material needs or wants of a section of the community is catered for but that is not enough. This must be done as part of trade or business or as an undertaking analogous to trade or business. This element is completely missing in a members club.34. It is contended that, although there is no incorporation as such, the club has attained an existence distinct from its members. It may be said that members come and members go but the club goes on forever. That is true in a sense. We are not concerned with members who go out. The club belongs to members for the time being on its list of members and that is what matters. Those members can deal with the club as they like. Therefore, the club is identified with its members at a given point of time. Thus it cannot be said that the club has an existence apart from the members.35.It is said that the case of the club is indistinguishable from the Hospital case. That case is one which may be said to be on the verge. There are reasons to think that it took the extreme view of an industry. We need not pause to consider the Hospital case because the case of a members club is beyond even the confines established by that case. In our judgment the Madras Gymkhana Club being a members Club is not an industry and the Tribunal was right in so declaring.

0[ds]5. These definitions have been before this Court on many occasions and we have reached a point when one can say that at least some attributes of "industry" and industrial disputes" may be taken as well established. These ceases concerned such diverse institutions and establishments as municipalities, hospitals, solicitors firm and university. Any enquiry to determine the application of the definitions to new establishments cannot overlook the settled view. We find it convenient to say a few words about the earlier decisions of this Court, before embarking upon an analysis of the definitions in relation to a membertwo cases lay down that for an activity to be an industry it is not necessary that it must be carried on by private enterprise or must be commercial or result in profit. It is sufficient if the activity is analogous to the carrying on of a trade or business and involves cooperation between employers and employees. This result Is reached by extending the meaning of undertaking to cover adventures not strictly trade or business but objects very similar.9. The definition of employer in out Act clearly shows that a local authority may become an employer if it carries on an industry. This means that a municipality if it indulges in an activity which may be properly described as industry may be involved in an industrial dispute. Local bodies are primarily subordinate branches of governmental activity. They function for public purposes but some of their activities may come within the calling of employers although the municipalities may not be trading corporations. Local authorities take away a part of the affairs of Government in loacl areas and they exercise the powers of regulation and subordinate taxation. They are politicaland agencies for the exercise of governmental functions. But if they indulge in municipal trading or business of have to assume the calling of employers they are employers whether they carry on or not business commercially for purposes of gain or profit.The later cases of this Court view the matter a little differently and formulate further tests. Of the tests, the first is that the activity must be organised as business or trade is ordinarily organised. This is to be taken with the earlier test that undertaking must be analogous to business, trade or calling. It will be seen that these do not widen the meaning of undertaking but tend to narrow it. The second is that the activity need not necessarily be preceded by procurement of capital in the business sense nor must profit be a motive. So long as relationship of employer and workmen is established with a view to production of material goods or material services, the activity must be regarded as an undertaking analogous to trade or business. We shall now review the cases in which these tests areproves that what must be established is the existence of an industry viewed from the angle of what the employer is doing and if the definition from the angle of the employers occupation is satisfied, all who render service and fall within the definition of workman come within the fold of industry irrespective of what they do. Here is then no need to establish a partnership as such in the production of material goods or material services. Each person doing his appointed task in an organisation will be a part of the industry whether he attends to a loom or merely polishes door handles. The fact of employment as envisaged in the second part is enough provided there is an industry and the employee is a workman. The learned professions are not industry not because there is absence of such partnership but because viewed from the angle of the employers occupation, they do not satisfy the test. A solicitor earns his livelihood by his own efforts. If his work requires him to take help from menials and other employees who carry out certain assigned duties, the character of the solicitors work is not altered. What matters is not the nexus between the employee and the product of the employers efforts but the nautre of the employers occupation. If his work cannot be described as an industry his workmen are not industrial workmen and the disputes arising between them are not industrial disputes. The cardinal test is thus to find out whether there is an industry according to the denotation of the word in the first part. The second part will then show what will be included from the angle of employees. We shall now apply this approach to the definition in the light of the earlier decisions of this Court in so far as they are consistent and then determine whether the club in this case can come within the meaning of industry as determined bybroadly the definition of industrial dispute contains two limitations. Firstly, the adjective industrial relates the dispute to an industry as defined in the Act and, secondly, the definition expressly states that not disputes and differences of all sorts but only those which bear upon the relationship of employers and workmen and the terms of employment and conditions of labour are contemplated. As such dispute may arise between different parties, the Act equally contemplates disputes between employers and employers or between employers and workmen or between workmen and workmen. The definition of the expression industrial dispute further shows that certain disputes can never be considered under the Act. For example, dispute between Government and an industrial establishment or between workmen andare not the kind of disputes of which the Act takethis way the general nature of the dispute, the parties to the dispute and the contents of the dispute are, therefore, reasonably clear. A dispute must however be an industrial dispute or, as the several definitions already noticed say, must arise in relation, to an industry. This is where the difficulty begins because the statutory definition of industry has led to some divergence of views in theLabour Tribunals, the High Courts and even in thisthe inclusive part of the definition the labour force employed in an industry is made an integral part of the industry for purposes of industrial disputes although industry is ordinarily something which employers create orhave all the terms except employer defined by the statute. Our task is to give meanings to the words which are intended to lay down the full connotation.Taking each operation by itself and determining on the basis of facts whether it is an industry without attempting towhether it is a business, or a trade, or an undertaking, or manufacture, or calling of employers, is to ignore somewhat the guidance afforded by the statute through its own dictionary. Therefore, while we accept the views expressed uniformly we think any view which seems contradicted by later decisions because it was unrelated to the words of the definitions should not be allowed to harden. We also take the opportunity of relying a little more on the guidance from thedistinction of an essential or direct connection does not appear to be so strong as the distinction that in the one case the result is the production of material goods or services and in the other not.25. It is, therefore, clear that before the work engaged in can be described as an industry, it must bear the definite character of trade or business or manufacture or calling or must be capable of being described as an undertaking in material goods or material services. Now in the application of the Act, the undertaking may be an, enterprise of a private individual or individuals. On the other hand it may not. It is not necessary that the employer must always be a private individual who carries, on the operation with his own capital and with a view to his own profit. The Act in terms contemplates cases of industrial disputes where the Government or a local authority or a public utility service may be thewhere the activity is to be considered as an industry, it must not be casual but must be distinctly systematic. The work for which labour of workmen is required, must be productive and the workmen must be following an employment, calling or industrial avocation. The salient fact in this context is that the workmen are not their own masters but render service at the behest of masters. This follows from the second part of the definition of industry. They again when private individuals are the employers, the industry is run with capital and with a view to profits. These two circumstances may not exist when Government or a local authority enter upon business, trade, manufacture or an undertaking analogous to trade.28. The labour force includes not only manual or technical workmen but also those whose services are necessary or considered ancillary to the productive labour of others but does not include any one who, in an industrial sense, will be regarded, by reason of his employment or duties as ranged on the side of the employers. Such are per sons working in a managerial capacity or highly paid supervisors.29. Further the words are industrial dispute and not trade dispute. Trade is only one aspect of industrial activity; business and manufacture are two others. The word also is not industry in the abstract which means diligence or assiduity in any task or effort but a branch of productive labour. This requiresin some form between employers and workmen and the result is directly the product of this association but not necessarily commercial.The expressions terms of employment and conditions of labour indicate the kind of conflict between those engaged in industry on oppositesides. These words take in dispute as to the share in which the receipts in a commercial venture shall be divided and generally cover hours of work and rest, recognition of representative bodies of workmen, payment for piece work,and overtime, benefits, holidays, etc. The definition takes in disputes between employees and employees such as demarcation disputes and disputes between employers and employers such as wage warfare in an area where labour is scarce and disputes of a like character. The whole paraphernalia of settlement; conciliation, arbitration (voluntary as well as compulsory) agreements, awards etc. shows that human labour has value beyond what the wages represent and therefore is entitled to corresponding rights in. an industry and employers must give them their due. Industry is the nexus between employers and employees and it is this nexus which brings two distinct bodies together to produce a result. We do not think that the test that the workmen must not share in the product of their labours adopted in one case can be regarded as universal. There may be occasions when the workmen may receive a share of the produce either as part of their wages or as bonus or as a benefit.30. This ends discussion of what is an industry. We are not in a position to consider whether the Madras Gymkhana Club fulfils the tests laid down by this Court and accepted here byare, however, observations which are clearly obiter, that even amembers club is an industry. Founding itself on those observations the Union contends that the club in the present case must also be treated as an industry. In fine the claim is based on the following considerations: (a) that the club is organised as an industry is organised on a vast scale with multifarious activities, (b) that facilities of accommodation, catering, sale of alcoholic andbeverages, games etc. are provided, (c) that the club runs parties at which guests are freely entertained and(d) that the club has established reciprocal arrangements with other clubs for its members. In our opinion none of these considerations is sufficient to establish that the club is an industry within the Industrial Disputes Act.31. We cannot go by the size of the club or the largeness of its membership or the number or extent of these activities. We have to consider the essential character of the Club activity in relation to the definition of industry. As we said before the definition is in two parts. The first part which we called the denotation or the meaning of the word shows what an industry really is and the second part contains the extended connotation to indicate who will be considered an integral part of the industry on the side of employees. Beginning with the second part, it may at once be conceded that the activity of the club is conducted with the aid of employees who follow callings or avocations. Therefore if the activity of the employers is within the realm of industry, the answer must be in favour of the Union. But taking the first part of the definition it may also be said that the club does not follow a trade or business. Its activity cannot be described as manufacture and the running of clubs is not the calling of the members or its managing committee.Here the appearances are somewhat against the club. It is not of any consequence that there is no profit motive because that is considered immaterial. It is also true that the affairs of the club are organised in the way business is organised, and that there is production of material and other services and in a limited way production of material goods mainly in the catering department. But these circumstances are not truly representative in the case of the club because the services are to the members themselves for their own pleasure and amusement and the material goods are for their consumption. In other words, the club exists for its members. No doubt occasionally strangers also take benefit from its services but they can only do so on invitation of members. No one outside the list of members has the advantage of these services as of right. Nor can these privileges be bought. In fact they are available only to members or through members.It may be said that members come and members go but the club goes on forever. That is true in a sense. We are not concerned with members who go out. The club belongs to members for the time being on its list of members and that is what matters. Those members can deal with the club as they like. Therefore, the club is identified with its members at a given point of time. Thus it cannot be said that the club has an existence apart from theThat case is one which may be said to be on the verge. There are reasons to think that it took the extreme view of an industry. We need not pause to consider the Hospital case because the case of a members club is beyond even the confines established by that case. In our judgment the Madras Gymkhana Club being a members Club is not an industry and the Tribunal was right in so declaring.

### 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: must give them their due. Industry is the nexus between employers and employees and it is this nexus which brings two distinct bodies together to produce a result. We do not think that the test that the workmen must not share in the product of their labours adopted in one case can be regarded as universal. There may be occasions when the workmen may receive a share of the produce either as part of their wages or as bonus or as a benefit.30. This ends discussion of what is an industry. We are not in a position to consider whether the Madras Gymkhana Club fulfils the tests laid down by this Court and accepted here by us. In support of the claim on behalf of the Employees Union, our attention was drawn to two decisions of the Calcutta High Court relating to the Bengal Club Ltd. v. Santi Ranjan Somaddar, AIR 1956 Cal 545 and Royal Calcutta Golf Club Mazdoor Union v. State of West Bengal, AIR 1956 Cal 550 . Both decisions are by a learned single Judge. They were cases of incorporated companies running clubs for profit and as business. There are, however, observations which are clearly obiter, that even a non-proprietary members club is an industry. Founding itself on those observations the Union contends that the club in the present case must also be treated as an industry. In fine the claim is based on the following considerations: (a) that the club is organised as an industry is organised on a vast scale with multifarious activities, (b) that facilities of accommodation, catering, sale of alcoholic and non-alcoholic beverages, games etc. are provided, (c) that the club runs parties at which guests are freely entertained and - (d) that the club has established reciprocal arrangements with other clubs for its members. In our opinion none of these considerations is sufficient to establish that the club is an industry within the Industrial Disputes Act.31. We cannot go by the size of the club or the largeness of its membership or the number or extent of these activities. We have to consider the essential character of the Club activity in relation to the definition of industry. As we said before the definition is in two parts. The first part which we called the denotation or the meaning of the word shows what an industry really is and the second part contains the extended connotation to indicate who will be considered an integral part of the industry on the side of employees. Beginning with the second part, it may at once be conceded that the activity of the club is conducted with the aid of employees who follow callings or avocations. Therefore if the activity of the employers is within the realm of industry, the answer must be in favour of the Union. But taking the first part of the definition it may also be said that the club does not follow a trade or business. Its activity cannot be described as manufacture and the running of clubs is not the calling of the members or its managing committee. The only question is, is it an undertaking?32. Here the appearances are somewhat against the club. It is not of any consequence that there is no profit motive because that is considered immaterial. It is also true that the affairs of the club are organised in the way business is organised, and that there is production of material and other services and in a limited way production of material goods mainly in the catering department. But these circumstances are not truly representative in the case of the club because the services are to the members themselves for their own pleasure and amusement and the material goods are for their consumption. In other words, the club exists for its members. No doubt occasionally strangers also take benefit from its services but they can only do so on invitation of members. No one outside the list of members has the advantage of these services as of right. Nor can these privileges be bought. In fact they are available only to members or through members.33. If today the club were to stop entry of outsiders, no essential change in its character vis-a-vis the members would take place. In other words, the circumstance that guests are admitted is irrelevant to determine if the club is an industry. Even with the admission of guests being open the club remains the same, that is to say, a members self-serving institution No doubt the material needs or wants of a section of the community is catered for but that is not enough. This must be done as part of trade or business or as an undertaking analogous to trade or business. This element is completely missing in a members club.34. It is contended that, although there is no incorporation as such, the club has attained an existence distinct from its members. It may be said that members come and members go but the club goes on forever. That is true in a sense. We are not concerned with members who go out. The club belongs to members for the time being on its list of members and that is what matters. Those members can deal with the club as they like. Therefore, the club is identified with its members at a given point of time. Thus it cannot be said that the club has an existence apart from the members.35.It is said that the case of the club is indistinguishable from the Hospital case. That case is one which may be said to be on the verge. There are reasons to think that it took the extreme view of an industry. We need not pause to consider the Hospital case because the case of a members club is beyond even the confines established by that case. In our judgment the Madras Gymkhana Club being a members Club is not an industry and the Tribunal was right in so declaring. ### Response: 0

M. V. Ramasubbier And Others Vs. Manicka Narasimhachari And Others

capacity as the trustee of the Annandanam Trust for Rs. 21, 500/- on April 19, 1959, at a family sale. It appears from the statement of defendant No. 2 that the property was capable of, or could fetch a rent of about Rs. 190/- per mensem, amounting to Rs. 2, 280/- per annum. It has also been admitted that the sum of Rs. 25, 000/- was not utilised by the trustee (defendant No. 1) for purchasing any other better property, but was invested in fixed deposit with a bank at 3 1/2 per cent interest per annum. That could yield an income of only Rs. 875/- per annum. The trust therefore lost heavily in the bargain. What is worse, defendant No. 1 has not been able to explain how the sale could be said to be beneficial to the trust and how he could possibly contend that he acted as a man of ordinary prudence in slashing down the income of the trust by making the sale.The further fact that stands out from the evidence on the record is that when Chithambaram Chettiar (P.W. 2), who was a tenant in the suit property from 1949 onwards, learnt about the intended sale, he sent a notice to defendants Nos. 1 and 3 offering to purchase it for Rs. 35, 000/-. That notice was issued on July 21, 1960. The receipt of the notice has been admitted by defendant No. 1 in his statement in the trial court, and he has further admitted that Chithambaram Chettiar offered to purchase the property for Rs. 35, 000/- and that he sold it to his son for Rs. 25, 000/- without even informing him that he had received the offer of Rs. 35, 00 0/-. Defendant No. 1 in fact proceeded to register the sale deed of the property in favour of his son, the second defendant, on July 22, 1960. It is therefore quite clear that he did not care to act in accordance with the law in the discharge of his fiduciary relationship with the trust and executed the sale deed in his sons favour in disregard of his statutory duty, for no man of ordinary prudence would possibly have sold his property for Rs. 25, 000/- when he had an offer of Rs. 35, 000/-. That offer could not be said to be from a man of no substance because Chithambaram Chettiar (P.W. 2) who made it, was known to the defendants and he has stated that he was a man of means and was worth rupees four lakhs. It may be that the so n-in-law of plaintiff No. 2 was employed in his shop, but that could not detract from the basic fact that a much higher offer had been made by a man of substance. 5. Instead of examining the appeal with due regard to the above mentioned evidence, the High Court was obsessed by a consideration of the evidence which had been led for the purpose of showing that while defendant No. 1 had purchased the property for himself on April 19, 1959, for Rs. 21, 500/- , he gave up that advantage in favour of the trust. The evidence on the point is not unequivocal, for it may well be that defendant No. 1 did not want to obtain a sale deed in his own name for other reasons, but even if it were assumed that he made a gesture of goodwill in favour of the trust on April 19, 1959, he could not possibly absolve himself from what he did in selling it off, after it had become the property of the trust, to his own son a few months thereafter for Rs. 25, 000/- when he had a genuine offer of Rs. 35, 000/-.Another consideration which prevailed with the High Court in setting aside the finding of fact of the trial court was that, according to it, the evidence on the record showed that some difficulties had cropped up after the property had been purchased as his son, defendant No. 2, began to give trouble and that he resolved that trouble on the advice of his family lawyer Shri V. Rajagopala Iyengar (D. W. 3) by selling the property to his son. This view was obviously incorrect, for even it were assumed that there was some difficulty in respect of some common rights of easement, that could well have been a lever in the hands of the trustee to make a bargain for Rs. 35, 000/- or more with his son who was equally interested in those easementary rights. A man of prudence would not have sold his property for a considerably lesser amount than that offered to him by another person and agreed to sell it just because a co- sharer in the easementary right was causing trouble and was offering a far lesser price. 6. We have gone through the statement of V. Rajagopala Iyengar (D.W. 3) on whose advice defendant No. 1 claims to have sold the property for Rs. 25, 000/-. He has admitted in his statement that he had not even seen the suit property, and he knew nothing about the so called trouble in regard to the easementary rights between defendant No. 1 and his son. On the other hand, we find that he was indebted to the family of defendants Nos. 1 and 2 and he did not even care to ascertain what rent the suit property was fetching when he advised its sale for Rs. 25, 000/- to the son of defendant No. 1. The High Court therefore did not even read the evidence correctly while placing reliance on his testimony. 7. For the reasons mentioned above, we have no doubt that the High Court did not examine the controversy in its proper legal perspective and with due regard to the salient facts which had been established by the evidence on the record and it was not therefore justified in setting aside the finding of the trial court.

1[ds]Instead of examining the appeal with due regard to the above mentioned evidence, the High Court was obsessed by a consideration of the evidence which had been led for the purpose of showing that while defendant No. 1 had purchased the property for himself on April 19, 1959, for Rs. 21, 500/- , he gave up that advantage in favour of the trust. The evidence on the point is not unequivocal, for it may well be that defendant No. 1 did not want to obtain a sale deed in his own name for other reasons, but even if it were assumed that he made a gesture of goodwill in favour of the trust on April 19, 1959, he could not possibly absolve himself from what he did in selling it off, after it had become the property of the trust, to his own son a few months thereafter for Rs. 25, 000/- when he had a genuine offer of Rs. 35, 000/-.Another consideration which prevailed with the High Court in setting aside the finding of fact of the trial court was that, according to it, the evidence on the record showed that some difficulties had cropped up after the property had been purchased as his son, defendant No. 2, began to give trouble and that he resolved that trouble on the advice of his family lawyer Shri V. Rajagopala Iyengar (D. W. 3) by selling the property to his son. This view was obviously incorrect, for even it were assumed that there was some difficulty in respect of some common rights of easement, that could well have been a lever in the hands of the trustee to make a bargain for Rs. 35, 000/- or more with his son who was equally interested in those easementary rights. A man of prudence would not have sold his property for a considerably lesser amount than that offered to him by another person and agreed to sell it just because a co- sharer in the easementary right was causing trouble and was offering a far lesser priceWe have gone through the statement of V. Rajagopala Iyengar (D.W. 3) on whose advice defendant No. 1 claims to have sold the property for Rs. 25, 000/-. He has admitted in his statement that he had not even seen the suit property, and he knew nothing about the so called trouble in regard to the easementary rights between defendant No. 1 and his son. On the other hand, we find that he was indebted to the family of defendants Nos. 1 and 2 and he did not even care to ascertain what rent the suit property was fetching when he advised its sale for Rs. 25, 000/- to the son of defendant No. 1. The High Court therefore did not even read the evidence correctly while placing reliance on his testimonyFor the reasons mentioned above, we have no doubt that the High Court did not examine the controversy in its proper legal perspective and with due regard to the salient facts which had been established by the evidence on the record and it was not therefore justified in setting aside the finding of the trial court.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: capacity as the trustee of the Annandanam Trust for Rs. 21, 500/- on April 19, 1959, at a family sale. It appears from the statement of defendant No. 2 that the property was capable of, or could fetch a rent of about Rs. 190/- per mensem, amounting to Rs. 2, 280/- per annum. It has also been admitted that the sum of Rs. 25, 000/- was not utilised by the trustee (defendant No. 1) for purchasing any other better property, but was invested in fixed deposit with a bank at 3 1/2 per cent interest per annum. That could yield an income of only Rs. 875/- per annum. The trust therefore lost heavily in the bargain. What is worse, defendant No. 1 has not been able to explain how the sale could be said to be beneficial to the trust and how he could possibly contend that he acted as a man of ordinary prudence in slashing down the income of the trust by making the sale.The further fact that stands out from the evidence on the record is that when Chithambaram Chettiar (P.W. 2), who was a tenant in the suit property from 1949 onwards, learnt about the intended sale, he sent a notice to defendants Nos. 1 and 3 offering to purchase it for Rs. 35, 000/-. That notice was issued on July 21, 1960. The receipt of the notice has been admitted by defendant No. 1 in his statement in the trial court, and he has further admitted that Chithambaram Chettiar offered to purchase the property for Rs. 35, 000/- and that he sold it to his son for Rs. 25, 000/- without even informing him that he had received the offer of Rs. 35, 00 0/-. Defendant No. 1 in fact proceeded to register the sale deed of the property in favour of his son, the second defendant, on July 22, 1960. It is therefore quite clear that he did not care to act in accordance with the law in the discharge of his fiduciary relationship with the trust and executed the sale deed in his sons favour in disregard of his statutory duty, for no man of ordinary prudence would possibly have sold his property for Rs. 25, 000/- when he had an offer of Rs. 35, 000/-. That offer could not be said to be from a man of no substance because Chithambaram Chettiar (P.W. 2) who made it, was known to the defendants and he has stated that he was a man of means and was worth rupees four lakhs. It may be that the so n-in-law of plaintiff No. 2 was employed in his shop, but that could not detract from the basic fact that a much higher offer had been made by a man of substance. 5. Instead of examining the appeal with due regard to the above mentioned evidence, the High Court was obsessed by a consideration of the evidence which had been led for the purpose of showing that while defendant No. 1 had purchased the property for himself on April 19, 1959, for Rs. 21, 500/- , he gave up that advantage in favour of the trust. The evidence on the point is not unequivocal, for it may well be that defendant No. 1 did not want to obtain a sale deed in his own name for other reasons, but even if it were assumed that he made a gesture of goodwill in favour of the trust on April 19, 1959, he could not possibly absolve himself from what he did in selling it off, after it had become the property of the trust, to his own son a few months thereafter for Rs. 25, 000/- when he had a genuine offer of Rs. 35, 000/-.Another consideration which prevailed with the High Court in setting aside the finding of fact of the trial court was that, according to it, the evidence on the record showed that some difficulties had cropped up after the property had been purchased as his son, defendant No. 2, began to give trouble and that he resolved that trouble on the advice of his family lawyer Shri V. Rajagopala Iyengar (D. W. 3) by selling the property to his son. This view was obviously incorrect, for even it were assumed that there was some difficulty in respect of some common rights of easement, that could well have been a lever in the hands of the trustee to make a bargain for Rs. 35, 000/- or more with his son who was equally interested in those easementary rights. A man of prudence would not have sold his property for a considerably lesser amount than that offered to him by another person and agreed to sell it just because a co- sharer in the easementary right was causing trouble and was offering a far lesser price. 6. We have gone through the statement of V. Rajagopala Iyengar (D.W. 3) on whose advice defendant No. 1 claims to have sold the property for Rs. 25, 000/-. He has admitted in his statement that he had not even seen the suit property, and he knew nothing about the so called trouble in regard to the easementary rights between defendant No. 1 and his son. On the other hand, we find that he was indebted to the family of defendants Nos. 1 and 2 and he did not even care to ascertain what rent the suit property was fetching when he advised its sale for Rs. 25, 000/- to the son of defendant No. 1. The High Court therefore did not even read the evidence correctly while placing reliance on his testimony. 7. For the reasons mentioned above, we have no doubt that the High Court did not examine the controversy in its proper legal perspective and with due regard to the salient facts which had been established by the evidence on the record and it was not therefore justified in setting aside the finding of the trial court. ### Response: 1

Ramchandra Murarilal Bhattad Vs. State Of Maharashtra

point of time, as was disclosed in the Counter Affidavit, had thought of setting up a Convention Centre of their own and without any private participation, but only because there has been a deviation from the said stand would not, in our considered opinion, render the entire policy decision vitiated in law. It had set up its Evaluation Committee. The decision presumably has been reached by experts.38. The reasons as regards purported unsatisfactory performance of Appellants, take a back seat once having a re-look to the entire situation was thought of. It is not a case where the Court is called upon to exercise its equity jurisdiction. It is also not a case where ex facie the policy decision can be held to be contrary to any statute or against a public policy. A policy decision may be subjected to change from time to time. Only because a change is effected, the same by itself does not render a policy decision to be illegal or otherwise vitiated in law. 39. In Harminder Singh Arora vs. Union of India & Ors. [(1986) 3 SCC 247] , whereupon Dr. Singhvi relied upon, the tender was arbitrarily rejected. Therein the writ petition was dismissed in limine only on the premise that the question involved therein related to contractual obligations and the policy decision could not be termed as unfair or arbitrary. It was opined that therein no question of policy decision arose and as such contract was to be given to the lowest bidder in terms of the tender notice and the contract should have been awarded to the appellant therein, especially when he had been doing the job for many years. As to how the said decision is applicable to the facts of the present case, we fail to understand. For the self-same reasons we are unable to appreciate the contention that only because a change has been effected in computation of total price under the new tender, the same was invalid in law. 40. In New Horizons Ltd. & Anr. vs. Union of India & Ors. [(1995) 1 SCC 478] , this Court opined that in the matter of grant of tender the State cannot act as a private person having regard to Article 14 of the Constitution of India. It was categorically opined that departing from the narrow legalistic view the Courts have taken note of the realities of the situation which, by no stretch of imagination, would mean that the Court would substitute itself in the place of a statutory authority. The Court in a case of this nature must exercise judicial restraint. It may be one thing to say that having regard to the public interest, the Court may itself invite bids so as to verify the justification of accepting a palpably lower bid as was done in Ram and Shyam Company vs. State of Haryana and Ors. [(1985) 3 SCC 267] , but it is another thing to say the Court would under all circumstances not allow a play in joint in favour of the employer. 41. However, if the Court in a given situation is not in a position to allow a bid to take place before, it may not still venture to strike down an Act in the name of public interest, although, no such public interest exists. Appellant stated before us that he is ready and willing to take a part of the contract, viz., construction of the C&EC and pay the same amount as has been done by Reliance Industries Ltd. and in addition it would pay 2.5% of its annual turnover from the Convention Centre from the 21st year, as was initially offered.42. Appellant did not participate in the second bid. The tender process is complete. Before us only a higher bid has been given. We do not intend to enter into the intricacies of the question. Appellants could have submitted its bids pursuant to the new tender and new conditions, even without prejudice to its rights and contentions in this appeal. The stipulations made in 2002 tender could have been repeated by it so as to demonstrate before the experts comprising members of the Executive Committee that its bid was the highest. If, in view of the change in the policy decision, the Authority does not intend to become a partner in the profit making and opt for having the entire bid amount at one go instead of waiting for 20 years, we do not find any fault therewith. 43. Before us comparative bids of the bidders have been placed on the second tender, which are as follows: SR. No.Name of the BidderBid Amount Rs.Rate per sq. m. (approx.) Rs. 1.Reliance Industries Ltd.11,04,00,00,11196000 2.DLF1050 crores91304 3.Reliance Communications &1011.12 crores87913 Infrastructure Ltd. 4.Gammon India1011 crores87913 5.EMAR911.07 crores79217 The comparative statistics reads as under : 1.Rate offered by the petitioners Rs.Rs.12,121 per sq. mtrs. 91.514 crores (divided by) 75,500 sq.mtrs. 2.Rate expected by MMRDARs. 25,000 per sq. mtr. 3.Amount for 75,500 sq. mtrs @ Rs. 25,000/- perRs. 188.75 crores sq. mtr. (This should have been the minimum bid in 2003) 4.Amount for 1,15,000 sq.mtrs @ Rs. 25,000/- perRs. 287.50 crores sq. mtr. (This would have been the reserve price at old rate in 2005) 5.Reserve Bid of MMRDA in 2005 (Minimum priceRs. 480 crores revised as below) 6.Rate per sq. mtr. in the Reserve bidRs. 41,739/- per sq. mtr. Rs. 480 crores (divided by) 1,15,000 sq.mtrs. 7.Bid by Reliance Industries Ltd.Rs. 11,04,00,00,111/- 8.Rate per sq. mtr. of RIL BidRs.96,000/- per sq. mtr. Rs. 11,04,00,00,111/- (divided by) 1,15,000 sq. mtrs. 44. Appellant complains that whereas the bid of Sister concern of Reliance Industries Ltd. was very low, now it has offered a bid of Rs.1104,00,00,111/-. From the chart placed before us it would appear that there had been a stiff computation. The Reliance Industries Ltd. has become the highest bidder. Its competitors had taken part in the earlier contracts. No mala fide in accepting the tender has been alleged nor do we find any.

0[ds]21. The principal question which arises for consideration is as to whether the Authority had any jurisdiction to cancel the bid.The Executive Committee is a statutory functionary. The powers and functions of the authority and the respective committees concededly are governed by the provisions of the statute, but, then the jurisdiction of the Executive Committee is limited. It was confined to rejection or acceptance of the tender. The Authority exercises a larger power. For the said purpose we would assume that the Authority had no incidental or ancillary power, but there cannot be any doubt or dispute that the Executive Committee could not cancel the entire tender. It could not have caused any change in the entire scheme or policy. It could not make alterations in the methodology of tender. It could not have gone into the working of the project. It also could not have gone into the question as to whether the project would be financially viable if the method of calculation is changed.23. Strong reliance has been placed by Mr. Nariman on Marathwada University v. Seshrao Balwant Rao Chavan [(1989) 3 SCC 132 : AIR 1989 SC 1582 ] to contend that as therein the power of the Vice Chancellor and the Executive Council was different, the formers power could not have been exercised by the latter. We do not dispute the proposition of law laid down therein.24. We would assume that the power of the Executive Committee and the Authority under the Act are different and the latter for all intent and purport could not usurp the functions of the former. But in this case, it has not been so done. Jurisdiction of the Authority being larger, and the power to cancel the tender being not vested in the Executive Committee, the action on the part of the former was neither illegal nor without jurisdiction.As noticed hereinbefore, we have proceeded on the basis that the powers of the Executive Committee and the Authority are separate and distinct and we have pointed out that the powers vested in the Executive Committee being limited, the decision taken by the Authority cannot be said to be illegal.Noticing some of the areas where judicial review would be permissible, this Court opined that ordinarily, this Court would not enforce specific performance of contract where damages would be adequate remedy. It was also held that conduct of the parties would also play an important role. The expansive role of Courts in exercising its power of judicial review is not in dispute. But as indicated hereinbefore, each case must be decided on its own facts.e next question which arises for consideration is as to whether any reason was required to be assigned.A power to deal with a contractual matter and a power of a statutory authority to exercise its statutory power in determining the rights and liabilities of the parties are distinct and different. Whereas reasons are required to be assigned in a case where civil or evil consequences may ensue, the same may not be necessary where it is contractual in nature, save and except in some cases, e.g., Star Enterprises (supra).We have noticed hereinbefore that power has not been exercised by the Executive Committee in rejecting the tender. The power has been exercised by the Authority in canceling the tenders so as to enable it to have a re-look of the entire project. Some reasons may be required to be assigned for rejecting the bid, but in the instant case, in our opinion, no reason was required to be assigned as there has been a change in the policy decision. The news item appearing in the Economic Times is not of much significance. No affidavit has been affirmed as regards the correctness or otherwise of the said news item. It may be true that the Authorities at one point of time, as was disclosed in the Counter Affidavit, had thought of setting up a Convention Centre of their own and without any private participation, but only because there has been a deviation from the said stand would not, in our considered opinion, render the entire policy decision vitiated in law. It had set up its Evaluation Committee. The decision presumably has been reached by experts.38. The reasons as regards purported unsatisfactory performance of Appellants, take a back seat once having a re-look to the entire situation was thought of. It is not a case where the Court is called upon to exercise its equity jurisdiction. It is also not a case where ex facie the policy decision can be held to be contrary to any statute or against a public policy. A policy decision may be subjected to change from time to time. Only because a change is effected, the same by itself does not render a policy decision to be illegal or otherwise vitiated in law.However, if the Court in a given situation is not in a position to allow a bid to take place before, it may not still venture to strike down an Act in the name of public interest, although, no such public interest exists. Appellant stated before us that he is ready and willing to take a part of the contract, viz., construction of the C&EC and pay the same amount as has been done by Reliance Industries Ltd. and in addition it would pay 2.5% of its annual turnover from the Convention Centre from the 21st year, as was initially offered.42. Appellant did not participate in the second bid. The tender process is complete. Before us only a higher bid has been given. We do not intend to enter into the intricacies of the question. Appellants could have submitted its bids pursuant to the new tender and new conditions, even without prejudice to its rights and contentions in this appeal. The stipulations made in 2002 tender could have been repeated by it so as to demonstrate before the experts comprising members of the Executive Committee that its bid was the highest. If, in view of the change in the policy decision, the Authority does not intend to become a partner in the profit making and opt for having the entire bid amount at one go instead of waiting for 20 years, we do not find any fault therewith.Appellant complains that whereas the bid of Sister concern of Reliance Industries Ltd. was very low, now it has offered a bid of Rs.1104,00,00,111/-. From the chart placed before us it would appear that there had been a stiff computation. The Reliance Industries Ltd. has become the highest bidder. Its competitors had taken part in the earlier contracts. No mala fide in accepting the tender has been alleged nor do we find any.

### 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: point of time, as was disclosed in the Counter Affidavit, had thought of setting up a Convention Centre of their own and without any private participation, but only because there has been a deviation from the said stand would not, in our considered opinion, render the entire policy decision vitiated in law. It had set up its Evaluation Committee. The decision presumably has been reached by experts.38. The reasons as regards purported unsatisfactory performance of Appellants, take a back seat once having a re-look to the entire situation was thought of. It is not a case where the Court is called upon to exercise its equity jurisdiction. It is also not a case where ex facie the policy decision can be held to be contrary to any statute or against a public policy. A policy decision may be subjected to change from time to time. Only because a change is effected, the same by itself does not render a policy decision to be illegal or otherwise vitiated in law. 39. In Harminder Singh Arora vs. Union of India & Ors. [(1986) 3 SCC 247] , whereupon Dr. Singhvi relied upon, the tender was arbitrarily rejected. Therein the writ petition was dismissed in limine only on the premise that the question involved therein related to contractual obligations and the policy decision could not be termed as unfair or arbitrary. It was opined that therein no question of policy decision arose and as such contract was to be given to the lowest bidder in terms of the tender notice and the contract should have been awarded to the appellant therein, especially when he had been doing the job for many years. As to how the said decision is applicable to the facts of the present case, we fail to understand. For the self-same reasons we are unable to appreciate the contention that only because a change has been effected in computation of total price under the new tender, the same was invalid in law. 40. In New Horizons Ltd. & Anr. vs. Union of India & Ors. [(1995) 1 SCC 478] , this Court opined that in the matter of grant of tender the State cannot act as a private person having regard to Article 14 of the Constitution of India. It was categorically opined that departing from the narrow legalistic view the Courts have taken note of the realities of the situation which, by no stretch of imagination, would mean that the Court would substitute itself in the place of a statutory authority. The Court in a case of this nature must exercise judicial restraint. It may be one thing to say that having regard to the public interest, the Court may itself invite bids so as to verify the justification of accepting a palpably lower bid as was done in Ram and Shyam Company vs. State of Haryana and Ors. [(1985) 3 SCC 267] , but it is another thing to say the Court would under all circumstances not allow a play in joint in favour of the employer. 41. However, if the Court in a given situation is not in a position to allow a bid to take place before, it may not still venture to strike down an Act in the name of public interest, although, no such public interest exists. Appellant stated before us that he is ready and willing to take a part of the contract, viz., construction of the C&EC and pay the same amount as has been done by Reliance Industries Ltd. and in addition it would pay 2.5% of its annual turnover from the Convention Centre from the 21st year, as was initially offered.42. Appellant did not participate in the second bid. The tender process is complete. Before us only a higher bid has been given. We do not intend to enter into the intricacies of the question. Appellants could have submitted its bids pursuant to the new tender and new conditions, even without prejudice to its rights and contentions in this appeal. The stipulations made in 2002 tender could have been repeated by it so as to demonstrate before the experts comprising members of the Executive Committee that its bid was the highest. If, in view of the change in the policy decision, the Authority does not intend to become a partner in the profit making and opt for having the entire bid amount at one go instead of waiting for 20 years, we do not find any fault therewith. 43. Before us comparative bids of the bidders have been placed on the second tender, which are as follows: SR. No.Name of the BidderBid Amount Rs.Rate per sq. m. (approx.) Rs. 1.Reliance Industries Ltd.11,04,00,00,11196000 2.DLF1050 crores91304 3.Reliance Communications &1011.12 crores87913 Infrastructure Ltd. 4.Gammon India1011 crores87913 5.EMAR911.07 crores79217 The comparative statistics reads as under : 1.Rate offered by the petitioners Rs.Rs.12,121 per sq. mtrs. 91.514 crores (divided by) 75,500 sq.mtrs. 2.Rate expected by MMRDARs. 25,000 per sq. mtr. 3.Amount for 75,500 sq. mtrs @ Rs. 25,000/- perRs. 188.75 crores sq. mtr. (This should have been the minimum bid in 2003) 4.Amount for 1,15,000 sq.mtrs @ Rs. 25,000/- perRs. 287.50 crores sq. mtr. (This would have been the reserve price at old rate in 2005) 5.Reserve Bid of MMRDA in 2005 (Minimum priceRs. 480 crores revised as below) 6.Rate per sq. mtr. in the Reserve bidRs. 41,739/- per sq. mtr. Rs. 480 crores (divided by) 1,15,000 sq.mtrs. 7.Bid by Reliance Industries Ltd.Rs. 11,04,00,00,111/- 8.Rate per sq. mtr. of RIL BidRs.96,000/- per sq. mtr. Rs. 11,04,00,00,111/- (divided by) 1,15,000 sq. mtrs. 44. Appellant complains that whereas the bid of Sister concern of Reliance Industries Ltd. was very low, now it has offered a bid of Rs.1104,00,00,111/-. From the chart placed before us it would appear that there had been a stiff computation. The Reliance Industries Ltd. has become the highest bidder. Its competitors had taken part in the earlier contracts. No mala fide in accepting the tender has been alleged nor do we find any. ### Response: 0

State Of Up Vs. M/S P.N.C.Construction Co. Ltd.

states that the tax on sale or purchase of goods would include a tax on transfer of property in goods involved in the execution of works contract. The emphasis is on the expression "transfer of property in goods (whether goods as such or in some other form)". Therefore, after the Forty-sixth Amendment to the Constitution, the works contract which was an indivisible contract is, by a legal fiction, divided into two parts - one for sale of goods and the other for supply of labour and services. Therefore, after the Forty-sixth Amendment, it became possible for the States to levy sales tax on the value of the goods involved in a works contract in the same way in which the sales tax was leviable on the price of the goods supplied in a building contract. This is where the concept of "Value Addition" comes in. It is on account of the Forty-sixth Amendment to the Constitution that the State Government is empowered to levy sales tax on the contract value which earlier was not possible. In the present case, the assessee has paid the tax under the scheme of composition at a stipulated percentage of the contract value. The assessee has paid the tax as defined under Section 2(n) of the Act. As stated above, "works contract" has been defined under Section 2(m) of the Act to include any agreement for carrying out building construction, manufacture, processing or commissioning of any moveable or immoveable property. These two definitions have been inserted in the said Act in conformity with the Forty-sixth Amendment to the Constitution [See: Builders Association of India and others v. Union of India and others - (1989) 2 SCC 645 ]. To the same effect is the ratio of the judgment of this Court in the case of M/s. Gannon Dunkerley and Co. and others v. State of Rajasthan and others - (1993) 1 SCC 364 , in which it has been held, vide para 36, that, if the legal fiction introduced by Article 366(29A)(b) of the Constitution is carried to its logical conclusion it follows that even in a single and indivisible contract there could be a "deemed sale" of the goods in the execution of a works contract. Such a deemed sale has all the incidents of a "sale" in cases where the contract is divisible into two parts - one for sale of goods and the other for supply of labour and services. Similarly, in the case of State of Kerala and another v. Builders Association of India and others - (1997) 2 SCC 183 , it has been held that after the Forty-sixth Amendment goods transferred in the course of execution of the works contract is chargeable to tax under the Kerala General Sales Tax Act, 1963. 15. In the present case, as stated above, the notifications issued by the State Government from time to time show that different rates were prescribed for declared goods and other raw-materials. Cement fell in the category of declared goods whereas sand, bitumen, furnace oil, HSD, Lubricant etc. fell in the category of other raw-materials. The said notifications also indicate notified goods. Hot Mix fell in the category of notified goods. Under Section 4-B(2) of the Act the recognition certificate enabled the assessee to buy the above raw-materials at concessional rate of duty provided they were used in the manufacture of notified goods and such notified goods were intended to be sold by the assessees in the State or in the course of inter-State trade or commerce or in the course of export out of India. Raw-materials came in the category of "goods" for the purposes of Section 4-B(2) of the Act. In the present case, the assessee has used cement, sand, bitumen, furnace oil, HSD, Lubricant etc. as raw-materials in the manufacture of Hot Mix. The show cause notice dated 9.5.01 impugned in the writ petition (before the High Court) proceeded on the basis that roads are not capable of being sold; that roads were not goods; and that roads were not moveables and, therefore, according to the Department the assessee was not entitled to the concessional rate of duty on purchase of raw-materials. In our view, the impugned show cause notice dated 9.5.01 was based on complete misreading of the provisions of the said Act. Under Section 2(h) of the Act the word "Sale" is defined to mean any transfer of property in goods for cash or deferred payment or for value consideration. The definition of the word "Sale" includes transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract. These words flow from the definition of the word "Sale" in the Act to Article 366(29A)(b) of the Constitution. The said words have been interpreted by this Court, as stated above, in the second Gannon Dunkerleys case (Supra) in following words vide para 36: "36. If the legal fiction introduced by Article 366(29-A) is carried to its logical end it follows that even in a single and indivisible works contract there is a deemed sale of the goods which are involved in the execution of a works contract. Such a deemed sale has all the incidents of a sale of goods involved in the execution of a works contract where the contract is divisible into one for sale of goods and the other for supply of labour and services." 16. For the aforestated reasons, we are of the view that the High Court was right in setting aside the above show cause notice dated 9.5.01 issued by the A.O. (issuing authority). The withdrawal of recognition certificate was erroneous as it was contrary to the definition of the word "sale" in Section 2(h) of the Act which had to be read with Section 4B(2) of the Act. Therefore, the aforestated two circulars dated 17.1.01 and 23.2.01 issued by the Commissioner, Trade Tax, U.P., cannot constitute the basis for issuing the impugned show cause notice dated 9.5.01.

0[ds]12. We find no merit in the civil appeals filed by the State (Department). At the outset, we may state that there are no disputed facts which warrant adjudication. Assessee has entered into a contract to construct roads. In execution of the contract assessee is required to buy aforestated raw-materials which are used in the manufacture of Hot Mix. The said Hot Mix is used for construction of roads. The show cause notice dated 9.5.01 relies upon the aforestated two circulars dated 17.1.01 and 23.2.01 issued by the Commissioner. According to the Commissioner, if any contractor manufactures doors, windows, grills etc. from cement (one of the raw-materials herein) then such manufacturer would be entitled to avail of the facility of concessional rate of duty under Section 4-B of the Act. According to the Commissioner, doors, windows, grills and frames are self-manufactured goods which were taxable as sale and, therefore, Section 4-B(2) of the Act covers such type of goods and not roads. According to the Commissioner, if the contractor utilizes the said raw-materials for construction of the roads then the contractor-assessee would not be entitled to the benefit of Section 4-B of the Act. Further, according to the Commissioner, the contracted road is an immoveable property whereas under Section 4-B of the Act the facility of buying raw-materials was permissible only to the manufacturing who sold the manufactured commodity and since roads were not saleable the manufacture-assessee was not entitled to the benefit of Section 4-B13. In the present case, raw-materials are bought by the assessee which are used in the manufacture of Hot Mix which is utilized for road construction. These facts are not in dispute. The question before us is: whether on the said facts the Department was right in denying the benefit of Section 4-B of the Act to the assessee? Therefore, there was no need for adjudication14. "Value Addition" is an important concept which has arisen after the Forty-sixth Amendment to the Constitution. Prior to the said Amendment this Court had taken the view in State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. - AIR 1958 SC 560 , that "works contract" was an indivisible contract and the turnover of the goods used in the execution of the works contract could not, therefore, become exigible to sales tax. To overcome the effect of the said decision, the concept of "deemed sale" was introduced by the Parliament by introducing sub-clause (b) of Clause 29A in Article 366 of the Constitution which states that the tax on sale or purchase of goods would include a tax on transfer of property in goods involved in the execution of works contract. The emphasis is on the expression "transfer of property in goods (whether goods as such or in some other form)". Therefore, after the Forty-sixth Amendment to the Constitution, the works contract which was an indivisible contract is, by a legal fiction, divided into two parts - one for sale of goods and the other for supply of labour and services. Therefore, after the Forty-sixth Amendment, it became possible for the States to levy sales tax on the value of the goods involved in a works contract in the same way in which the sales tax was leviable on the price of the goods supplied in a building contract. This is where the concept of "Value Addition" comes in. It is on account of the Forty-sixth Amendment to the Constitution that the State Government is empowered to levy sales tax on the contract value which earlier was not possible. In the present case, the assessee has paid the tax under the scheme of composition at a stipulated percentage of the contract value. The assessee has paid the tax as defined under Section 2(n) of the Act. As stated above, "works contract" has been defined under Section 2(m) of the Act to include any agreement for carrying out building construction, manufacture, processing or commissioning of any moveable or immoveable property. These two definitions have been inserted in the said Act in conformity with the Forty-sixth Amendment to the Constitution [See: Builders Association of India and others v. Union of India and others - (1989) 2 SCC 645 ]. To the same effect is the ratio of the judgment of this Court in the case of M/s. Gannon Dunkerley and Co. and others v. State of Rajasthan and others - (1993) 1 SCC 364 , in which it has been held, vide para 36, that, if the legal fiction introduced by Article 366(29A)(b) of the Constitution is carried to its logical conclusion it follows that even in a single and indivisible contract there could be a "deemed sale" of the goods in the execution of a works contract. Such a deemed sale has all the incidents of a "sale" in cases where the contract is divisible into two parts - one for sale of goods and the other for supply of labour and services. Similarly, in the case of State of Kerala and another v. Builders Association of India and others - (1997) 2 SCC 183 , it has been held that after the Forty-sixth Amendment goods transferred in the course of execution of the works contract is chargeable to tax under the Kerala General Sales Tax Act, 196315. In the present case, as stated above, the notifications issued by the State Government from time to time show that different rates were prescribed for declared goods and other raw-materials. Cement fell in the category of declared goods whereas sand, bitumen, furnace oil, HSD, Lubricant etc. fell in the category of other raw-materials. The said notifications also indicate notified goods. Hot Mix fell in the category of notified goods. Under Section 4-B(2) of the Act the recognition certificate enabled the assessee to buy the above raw-materials at concessional rate of duty provided they were used in the manufacture of notified goods and such notified goods were intended to be sold by the assessees in the State or in the course of inter-State trade or commerce or in the course of export out of India. Raw-materials came in the category of "goods" for the purposes of Section 4-B(2) of the Act. In the present case, the assessee has used cement, sand, bitumen, furnace oil, HSD, Lubricant etc. as raw-materials in the manufacture of Hot Mix. The show cause notice dated 9.5.01 impugned in the writ petition (before the High Court) proceeded on the basis that roads are not capable of being sold; that roads were not goods; and that roads were not moveables and, therefore, according to the Department the assessee was not entitled to the concessional rate of duty on purchase of raw-materials. In our view, the impugned show cause notice dated 9.5.01 was based on complete misreading of the provisions of the said Act. Under Section 2(h) of the Act the word "Sale" is defined to mean any transfer of property in goods for cash or deferred payment or for value consideration. The definition of the word "Sale" includes transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract. These words flow from the definition of the word "Sale" in the Act to Article 366(29A)(b) of the Constitution. The said words have been interpreted by this Court, as stated above, in the second Gannon Dunkerleys case (Supra) in following words vide para 36:"36. If the legal fiction introduced by Article 366(29-A) is carried to its logical end it follows that even in a single and indivisible works contract there is a deemed sale of the goods which are involved in the execution of a works contract. Such a deemed sale has all the incidents of a sale of goods involved in the execution of a works contract where the contract is divisible into one for sale of goods and the other for supply of labour and services."16. For the aforestated reasons, we are of the view that the High Court was right in setting aside the above show cause notice dated 9.5.01 issued by the A.O. (issuing authority). The withdrawal of recognition certificate was erroneous as it was contrary to the definition of the word "sale" in Section 2(h) of the Act which had to be read with Section 4B(2) of the Act. Therefore, the aforestated two circulars dated 17.1.01 and 23.2.01 issued by the Commissioner, Trade Tax, U.P., cannot constitute the basis for issuing the impugned show cause notice dated 9.5.01

### 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: states that the tax on sale or purchase of goods would include a tax on transfer of property in goods involved in the execution of works contract. The emphasis is on the expression "transfer of property in goods (whether goods as such or in some other form)". Therefore, after the Forty-sixth Amendment to the Constitution, the works contract which was an indivisible contract is, by a legal fiction, divided into two parts - one for sale of goods and the other for supply of labour and services. Therefore, after the Forty-sixth Amendment, it became possible for the States to levy sales tax on the value of the goods involved in a works contract in the same way in which the sales tax was leviable on the price of the goods supplied in a building contract. This is where the concept of "Value Addition" comes in. It is on account of the Forty-sixth Amendment to the Constitution that the State Government is empowered to levy sales tax on the contract value which earlier was not possible. In the present case, the assessee has paid the tax under the scheme of composition at a stipulated percentage of the contract value. The assessee has paid the tax as defined under Section 2(n) of the Act. As stated above, "works contract" has been defined under Section 2(m) of the Act to include any agreement for carrying out building construction, manufacture, processing or commissioning of any moveable or immoveable property. These two definitions have been inserted in the said Act in conformity with the Forty-sixth Amendment to the Constitution [See: Builders Association of India and others v. Union of India and others - (1989) 2 SCC 645 ]. To the same effect is the ratio of the judgment of this Court in the case of M/s. Gannon Dunkerley and Co. and others v. State of Rajasthan and others - (1993) 1 SCC 364 , in which it has been held, vide para 36, that, if the legal fiction introduced by Article 366(29A)(b) of the Constitution is carried to its logical conclusion it follows that even in a single and indivisible contract there could be a "deemed sale" of the goods in the execution of a works contract. Such a deemed sale has all the incidents of a "sale" in cases where the contract is divisible into two parts - one for sale of goods and the other for supply of labour and services. Similarly, in the case of State of Kerala and another v. Builders Association of India and others - (1997) 2 SCC 183 , it has been held that after the Forty-sixth Amendment goods transferred in the course of execution of the works contract is chargeable to tax under the Kerala General Sales Tax Act, 1963. 15. In the present case, as stated above, the notifications issued by the State Government from time to time show that different rates were prescribed for declared goods and other raw-materials. Cement fell in the category of declared goods whereas sand, bitumen, furnace oil, HSD, Lubricant etc. fell in the category of other raw-materials. The said notifications also indicate notified goods. Hot Mix fell in the category of notified goods. Under Section 4-B(2) of the Act the recognition certificate enabled the assessee to buy the above raw-materials at concessional rate of duty provided they were used in the manufacture of notified goods and such notified goods were intended to be sold by the assessees in the State or in the course of inter-State trade or commerce or in the course of export out of India. Raw-materials came in the category of "goods" for the purposes of Section 4-B(2) of the Act. In the present case, the assessee has used cement, sand, bitumen, furnace oil, HSD, Lubricant etc. as raw-materials in the manufacture of Hot Mix. The show cause notice dated 9.5.01 impugned in the writ petition (before the High Court) proceeded on the basis that roads are not capable of being sold; that roads were not goods; and that roads were not moveables and, therefore, according to the Department the assessee was not entitled to the concessional rate of duty on purchase of raw-materials. In our view, the impugned show cause notice dated 9.5.01 was based on complete misreading of the provisions of the said Act. Under Section 2(h) of the Act the word "Sale" is defined to mean any transfer of property in goods for cash or deferred payment or for value consideration. The definition of the word "Sale" includes transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract. These words flow from the definition of the word "Sale" in the Act to Article 366(29A)(b) of the Constitution. The said words have been interpreted by this Court, as stated above, in the second Gannon Dunkerleys case (Supra) in following words vide para 36: "36. If the legal fiction introduced by Article 366(29-A) is carried to its logical end it follows that even in a single and indivisible works contract there is a deemed sale of the goods which are involved in the execution of a works contract. Such a deemed sale has all the incidents of a sale of goods involved in the execution of a works contract where the contract is divisible into one for sale of goods and the other for supply of labour and services." 16. For the aforestated reasons, we are of the view that the High Court was right in setting aside the above show cause notice dated 9.5.01 issued by the A.O. (issuing authority). The withdrawal of recognition certificate was erroneous as it was contrary to the definition of the word "sale" in Section 2(h) of the Act which had to be read with Section 4B(2) of the Act. Therefore, the aforestated two circulars dated 17.1.01 and 23.2.01 issued by the Commissioner, Trade Tax, U.P., cannot constitute the basis for issuing the impugned show cause notice dated 9.5.01. ### Response: 0

KAILASH & ANR Vs. SANTOSH & ANR

1. Leave granted. 2. The Judicial Magistrate, First Class, Sanwer District, Indore, Madhya Pradesh, by an order dated 24.12.2008, convicted the appellants for marrying off their under-aged son and daughter. The appellants pleaded guilty, as a result of which the Appellant No. 1 was sentenced to sit in Court till rising of the Court, along with a fine of Rs. 1,000/-; and Appellant No. 2 was sentenced to fine of Rs. 1,000/-. 3. The Revision Petition, which was filed at the behest of the brother of Appellant No. 1, succeeded before the High Court, wherein the High Court has held that since on the date of the commission of offence, the Child Marriage Restraint Act, 1929 had been repealed by the Prohibition of Child Marriage Act, 2006, the order passed by the Judicial Magistrate would have to be set aside and a de novo trial has to be conducted under the Prohibition of Child Marriage Act, 2006 4. Having heard learned counsel for the parties, we are of the view that the offence under Section 6 of the Child Marriage Restraint Act, 1929 and the offence under Section 11 of the Prohibition of Child Marriage Act, 2006 are the same insofar as the appellants are concerned. It is true that the maximum sentence under the Act of 1929 was three months whereas under the Act of 2006, it is two years. That, however, would make no difference on the facts of this case. 5. We, therefore, treat the order passed by the Judicial Magistrate dated 24.12.2008, as an order under the Prohibition of Child Marriage Act, 2006.

1[ds]4. Having heard learned counsel for the parties, we are of the view that the offence under Section 6 of the Child Marriage Restraint Act, 1929 and the offence under Section 11 of the Prohibition of Child Marriage Act, 2006 are the same insofar as the appellants are concerned. It is true that the maximum sentence under the Act of 1929 was three months whereas under the Act of 2006, it is two years. That, however, would make no difference on the facts of this case5. We, therefore, treat the order passed by the Judicial Magistrate dated 24.12.2008, as an order under the Prohibition of Child Marriage Act, 2006.

### 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: 1. Leave granted. 2. The Judicial Magistrate, First Class, Sanwer District, Indore, Madhya Pradesh, by an order dated 24.12.2008, convicted the appellants for marrying off their under-aged son and daughter. The appellants pleaded guilty, as a result of which the Appellant No. 1 was sentenced to sit in Court till rising of the Court, along with a fine of Rs. 1,000/-; and Appellant No. 2 was sentenced to fine of Rs. 1,000/-. 3. The Revision Petition, which was filed at the behest of the brother of Appellant No. 1, succeeded before the High Court, wherein the High Court has held that since on the date of the commission of offence, the Child Marriage Restraint Act, 1929 had been repealed by the Prohibition of Child Marriage Act, 2006, the order passed by the Judicial Magistrate would have to be set aside and a de novo trial has to be conducted under the Prohibition of Child Marriage Act, 2006 4. Having heard learned counsel for the parties, we are of the view that the offence under Section 6 of the Child Marriage Restraint Act, 1929 and the offence under Section 11 of the Prohibition of Child Marriage Act, 2006 are the same insofar as the appellants are concerned. It is true that the maximum sentence under the Act of 1929 was three months whereas under the Act of 2006, it is two years. That, however, would make no difference on the facts of this case. 5. We, therefore, treat the order passed by the Judicial Magistrate dated 24.12.2008, as an order under the Prohibition of Child Marriage Act, 2006. ### Response: 1

State of Orissa Vs. Klockner and Company and Ors.

have found in favour of the first respondent 25. Now coming to Special Leave Petition (C) No. 19846 of 1995, this petition is filed against the judgment and order of the High Court of Orissa at Cuttack in First Appeal No. 14 of 1995 dated 12-5-1995. By the order under appeal, the High Court has reversed the order of the learned Subordinate Judge, Bhubaneswar dated 26-3-1994, by which the learned Subordinate Judge, accepting an application filed under Order 7 Rule 11 CPC, rejected the plaint in Title Suit No. 231 of 1992 filed by the first respondent in special leave petition. The learned Single Judge of the High Court while reversing the order of the learned Subordinate Judge observed as follows In the present case on a fair reading of the petition filed by Defendant 1 under Order 7 Rule 11 of CPC it is clear that the case of the applicant is that the plaintiff has no cause of action to file the suit. It is not specifically pleaded by the applicant that the plaint does not disclose any cause of action. The learned trial Judge has also not recorded any specific finding to this effect. From the discussions in the order it appears that the learned trial Judge has not maintained the distinction between the plea that there was no cause of action for the suit and the plea that the plaint does not disclose a cause of action. No specific reason or ground is stated in the order in support of the finding that the plaint is to be rejected under Order 7 Rule 11(a). From the averments in the plaint, it is clear that the plaintiff has pleaded a cause of action for filing the suit seeking the reliefs stated in it. That is not to say that the plaintiff has cause of action to file the suit for the reliefs sought that question is to be determined on the basis of materials (other than the plaint) which may be produced by the parties at appropriate stage in the suit. For the limited purpose of determining the question whether the suit is to be wiped out under Order 7 Rule 11(1) or not the averments in the plaint are only to be looked into. The position noted above is also clear from the petition filed by Defendant 1 under Order 7, Rule 11 in which the thrust of the case pleaded is that on the stipulations in the agreement of 20-4-1982 the plaintiff is not entitled to file a suit seeking any of the reliefs stated in the plaint 10. Coming to the question whether the plaint is to be rejected under clause (d) of Rule 11 of Order 7, the Supreme Court in the case of Orient Transport Co. (Orient Transport Co. v. Jaya Bharat Credit and Investment Co. Ltd., has clearly laid down that there is a distinction between a case in which the validity, effect and existence of the arbitration agreement is challenged and suit in which the validity of the contract which contains an arbitration clause is challenged. The bar to suit under Section 32 of the Arbitration Act extends to a case where the existence, effect or validity of an arbitration agreement is challenged and not to the latter type of the suit. On this question too the learned trial Judge has filed to maintain the distinction between the two types of cases. He has failed to notice that the case pleaded by the plaintiff is that the entire agreement including the arbitration clause is null and void and unenforceable and not that the arbitration agreement is null and void 11. From the lower court record in the case and also the records in a similar suit filed by the State of Orissa, Title Suit No. 152 of 1993 in which OMC Ltd. is a defendant, it appears that in both the cases Defendant 1 Klockner and Company filed applications under Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961. Such application presupposes that the applicant accepts the position that the said Act applies to the case and the Arbitration Act, 1940 has no application to the case. Under the Foreign Awards Act, there is no specific provision for bar of suit. Further, from the averments in the application filed under Order 7 Rule 11 of CPC, it is clear that the main case pleaded by the applicant was that the parties had agreed that the Swiss law will be applicable to the contract as well as the Arbitration Agreement and the venue of arbitration will be at London and, therefore, the Indian law in general and the Arbitration Act in particular, have no application to the case. Alternatively the applicant has pleaded that even assuming that the Indian law of Arbitration applies to the case then the suit is barred under Section 32 of the Act. The learned trial Judge does not appear to have considered the main case pleaded by the applicant but disposed of the petition on consideration of the alternative case pleaded by it. Therefore this finding against bar of the suit under Order 7 Rule 11(d) is also vitiated 12. On the analysis and discussions in the foregoing paragraphs, it is my considered view that the order passed by the learned trial Judge rejecting the plaint under Order 7 Rule 11(a) of CPC is unsustainable and has to be set aside. Accordingly the appeal is allowed and the order dated 26-3-1994 of the Civil Judge (Senior Division) Bhubaneswar in Miscellaneous Case No. 75 of 1993 is set aside. There will be no order for costs of this Court. 26. After hearing the learned counsel on both sides and after carefully perusing the relevant pleadings, we do not think that the High Court has committed any error in rejecting the application of the appellant under Order 7 Rule 11. We accept the view taken by the High Court and consequently find no case for interference

0[ds]17. A conjoint reading of the clauses extracted from ther Ordinance and the agreement between the State of Orissa and Tata Iron Steel Company will clearly show that the State of Orissa is thet of OMC Charge Chrome Division, taken over by the Government under Ordinance 8 of 1991. In view of this clear position, it is not possible to accept the contention of the learned Senior Counsel for the appellant that the State of Orissa has noting to do with the contract entered into between Klockner and Company and OMC in respect of which the former has initiated arbitration proceedings invoking Section 3 of the Foreign Awards Act11. From the lower court record in the case and also the records in a similar suit filed by the State of Orissa, Title Suit No. 152 of 1993 in which OMC Ltd. is a defendant, it appears that in both the cases Defendant 1 Klockner and Company filed applications under Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961. Such application presupposes that the applicant accepts the position that the said Act applies to the case and the Arbitration Act, 1940 has no application to the case. Under the Foreign Awards Act, there is no specific provision for bar of suit. Further, from the averments in the application filed under Order 7 Rule 11 of CPC, it is clear that the main case pleaded by the applicant was that the parties had agreed that the Swiss law will be applicable to the contract as well as the Arbitration Agreement and the venue of arbitration will be at London and, therefore, the Indian law in general and the Arbitration Act in particular, have no application to the case. Alternatively the applicant has pleaded that even assuming that the Indian law of Arbitration applies to the case then the suit is barred under Section 32 of the Act. The learned trial Judge does not appear to have considered the main case pleaded by the applicant but disposed of the petition on consideration of the alternative case pleaded by it. Therefore this finding against bar of the suit under Order 7 Rule 11(d) is also vitiated12. On the analysis and discussions in the foregoing paragraphs, it is my considered view that the order passed by the learned trial Judge rejecting the plaint under Order 7 Rule 11(a) of CPC is unsustainable and has to be set aside. Accordingly the appeal is allowed and the order dated4 of the Civil Judge (Senior Division) Bhubaneswar in Miscellaneous Case No. 75 of 1993 is set aside. There will be no order for costs of this Court26. After hearing the learned counsel on both sides and after carefully perusing the relevant pleadings, we do not think that the High Court has committed any error in rejecting the application of the appellant under Order 7 Rule 11. We accept the view taken by the High Court and consequently find no case for interference

### 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: have found in favour of the first respondent 25. Now coming to Special Leave Petition (C) No. 19846 of 1995, this petition is filed against the judgment and order of the High Court of Orissa at Cuttack in First Appeal No. 14 of 1995 dated 12-5-1995. By the order under appeal, the High Court has reversed the order of the learned Subordinate Judge, Bhubaneswar dated 26-3-1994, by which the learned Subordinate Judge, accepting an application filed under Order 7 Rule 11 CPC, rejected the plaint in Title Suit No. 231 of 1992 filed by the first respondent in special leave petition. The learned Single Judge of the High Court while reversing the order of the learned Subordinate Judge observed as follows In the present case on a fair reading of the petition filed by Defendant 1 under Order 7 Rule 11 of CPC it is clear that the case of the applicant is that the plaintiff has no cause of action to file the suit. It is not specifically pleaded by the applicant that the plaint does not disclose any cause of action. The learned trial Judge has also not recorded any specific finding to this effect. From the discussions in the order it appears that the learned trial Judge has not maintained the distinction between the plea that there was no cause of action for the suit and the plea that the plaint does not disclose a cause of action. No specific reason or ground is stated in the order in support of the finding that the plaint is to be rejected under Order 7 Rule 11(a). From the averments in the plaint, it is clear that the plaintiff has pleaded a cause of action for filing the suit seeking the reliefs stated in it. That is not to say that the plaintiff has cause of action to file the suit for the reliefs sought that question is to be determined on the basis of materials (other than the plaint) which may be produced by the parties at appropriate stage in the suit. For the limited purpose of determining the question whether the suit is to be wiped out under Order 7 Rule 11(1) or not the averments in the plaint are only to be looked into. The position noted above is also clear from the petition filed by Defendant 1 under Order 7, Rule 11 in which the thrust of the case pleaded is that on the stipulations in the agreement of 20-4-1982 the plaintiff is not entitled to file a suit seeking any of the reliefs stated in the plaint 10. Coming to the question whether the plaint is to be rejected under clause (d) of Rule 11 of Order 7, the Supreme Court in the case of Orient Transport Co. (Orient Transport Co. v. Jaya Bharat Credit and Investment Co. Ltd., has clearly laid down that there is a distinction between a case in which the validity, effect and existence of the arbitration agreement is challenged and suit in which the validity of the contract which contains an arbitration clause is challenged. The bar to suit under Section 32 of the Arbitration Act extends to a case where the existence, effect or validity of an arbitration agreement is challenged and not to the latter type of the suit. On this question too the learned trial Judge has filed to maintain the distinction between the two types of cases. He has failed to notice that the case pleaded by the plaintiff is that the entire agreement including the arbitration clause is null and void and unenforceable and not that the arbitration agreement is null and void 11. From the lower court record in the case and also the records in a similar suit filed by the State of Orissa, Title Suit No. 152 of 1993 in which OMC Ltd. is a defendant, it appears that in both the cases Defendant 1 Klockner and Company filed applications under Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961. Such application presupposes that the applicant accepts the position that the said Act applies to the case and the Arbitration Act, 1940 has no application to the case. Under the Foreign Awards Act, there is no specific provision for bar of suit. Further, from the averments in the application filed under Order 7 Rule 11 of CPC, it is clear that the main case pleaded by the applicant was that the parties had agreed that the Swiss law will be applicable to the contract as well as the Arbitration Agreement and the venue of arbitration will be at London and, therefore, the Indian law in general and the Arbitration Act in particular, have no application to the case. Alternatively the applicant has pleaded that even assuming that the Indian law of Arbitration applies to the case then the suit is barred under Section 32 of the Act. The learned trial Judge does not appear to have considered the main case pleaded by the applicant but disposed of the petition on consideration of the alternative case pleaded by it. Therefore this finding against bar of the suit under Order 7 Rule 11(d) is also vitiated 12. On the analysis and discussions in the foregoing paragraphs, it is my considered view that the order passed by the learned trial Judge rejecting the plaint under Order 7 Rule 11(a) of CPC is unsustainable and has to be set aside. Accordingly the appeal is allowed and the order dated 26-3-1994 of the Civil Judge (Senior Division) Bhubaneswar in Miscellaneous Case No. 75 of 1993 is set aside. There will be no order for costs of this Court. 26. After hearing the learned counsel on both sides and after carefully perusing the relevant pleadings, we do not think that the High Court has committed any error in rejecting the application of the appellant under Order 7 Rule 11. We accept the view taken by the High Court and consequently find no case for interference ### Response: 0

Kehar Singh & Ors Vs. Chanan Singh & Ors

who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weaker still, and very little evidence would suffice to rebut it. In Har Narain v. Mst. Deoki, (1893) 24 Pun Re p. 124 Roe, J. stated as follows :"There is no doubt a general tendency of the stronger to over-ride the weak and many instances may occur of the males of a family depriving females of rights to which the latter are legally entitled. Such instances may be followed so generally as to establish a custom, even though the origin of the custom were usurpation; but the Courts are bound carefully to watch over the rights of the weaker party, and to refuse to hold that they had ceased to exist unless a custom against them is most clearly established." In a later case. Sayad Rahim Shah v. Sayad Hussain Shah, (1901) 102 Pun Re p. 353 a similar caution was uttered by Robertson, J. who observed as follows :"The male relations, in many cases at least have been clearly more concerned for their own advantage than for the security of the rights of widows and other female relatives with rights or alleged rights over family property and the statements of the male relatives in such matters have to be taken cum grano salis where they tend to minimise the rights of others and to extend their own." The same view was expressed by the Lahore High Court in a still later case-Bholi v. Man Singh, (1908) 86 Pun Re p. 402 where the Riwaj-i-am bad laid down that daughters were excluded by collaterals, even up to the tenth degree and it was stated as follows :"As the land is rising in value under British rule, the land-holders are becoming more and more anxious to exclude female succession. They are ready to state the rule against daughters as strongly as possible, but if the custom is so well established, it is strange that they are unable to state a single instance in point on an occasion like the compilation of the Riwaj-i-am, when detailed inquiries are being made and when the leading men are supposed to give their answers with deliberation and care" The principle was reiterated by the Court in Salig Ram v. Mst. Maya Devi 1955 (1) SCR 1191 = (AIR 1953 SC 266). It was pointed out in that case that it was well settled that the general custom of the Punjab State was that the daughter excluded collaterals from succession to self-acquired property of her father and so the initial onus must therefore be on the collaterals to show that the general custom in favour of the daughters succession to the self-acquired property of her father has been varied by a special custom excluding the daughter. It was, also well-settled that the entries in the Riwaj-i-am are entitled to an initial presumption in favour of their correctness but the presumption will be considerably weakened if it adversely affects the rights of the females who have no opportunity of appearing before the Revenue authorities.In the present case, apart from the general custom of the Punjab to which due weight must be attached three instances have been referred by the High Court in the course of its Judgment to show that the presumption attaching to Riwaj-i-am has been rebutted in this case. The first instance is the subject-matter of the decision in AIR 1916 Lab 343. It was a case of Gill Jats from Zira Tahsil of Ferozepore district. It was held in that case that the plaintiffs on whom the onus rested had failed to prove that by custom among Gil Jats of mauza Lohara,Tahsil Zira, district Ferozepore, they as near collaterals of a deceased sonless proprietor, succeeded to his self-acquired estate in preference to a daughter. As we have already pointed out earlier. Questions 48 and 49 correspond to Questions 1 and 2 of the Riwaj-i-am of 1878 which were dealt within this case. The second instance is reported as Ratta v. Mst.Jai Kaur, 35 Pun LR 69:(AIR 1933 Lah 867).It is a case of a Daliwal Jat of Tahsil Moga, District Ferozepore. It was admitted that daughter of the last male holder was entitled to succeed to his self-acquired property. It is true that the case was decided upon the admission of Counsel for the collaterals but it is improbable that if there was material evidence support of the collaterals the Counsel would have made such an admission. The third instance referred to by the High Court is R. F. A. No. 220 of 1954, decided on April 11. 1961, in which it was held that sister of the last male holder excludes his collaterals from inheritance in regard to his non-ancestral or acquired property. That is a case of Jats from Fazilka tahsil of Ferozepore district. The property, however, was situated in two villages, one in Fazilka tahsil and the other in Muktsar tahsil. It was held in that case that in Muktar and in Fazilka in regard to non-ancestral or acquired property of the last male holder his sister was a preferential successor as against collaterals. In this connection it should he noticed that in the Riwaj-i-am of 1914 Question 58 concerns the rights of succession of sisters and sisters sons and the answer is that they never inherit. Considering therefore that in the neighbouring tahsils of the same district in regard to non-ancestral property a daughter has excluded collaterals and in Muktsar tahsil a sister has excluded collaterals, there is in our opinion sufficient material to displace the presumption of correctness of the Riwaj-i-am entries in this case. In view of the considerations already mentioned in the judgment the presumption attaching to the Riwaj-i-am entries is a weak presumption and in our opinions it has been sufficiently discharged by the evidence adduced by the respondents in this case. It is necessary to add that the appellants have not relied upon any instances in support of their case.

1[ds]In the present case, there is no proof of any instance for or against the right of inheritance of a daughter of a deceased last male holder of the Sidhu tribe of Jats, either in the Muktsar Tahsil or in the whole district of Ferozepore. At least, none was brought to the notice of the lower courts by the plaintiff or the defendantsIt should be noticed that Questions 16 and 17 of the Wilsons Manual are couched in similar language to Questions 48 and 49 of the Riwaj-i-am with which we are concerned in the present appeal.In view of these authorities we have therefore come to the conclusion that the entries in the Riwaj-i-am with regard to Questions 48 and 49 on which the appellants rely do not refer at all to non-ancestral property and are therefore not relevant evidence to establish a special custom among the Sidhu Jats of Muktsar Tahsil of Ferozepore district entitling collaterals for succession to non-ancestral property in preference to daughters.It follows therefore that the appellants have not discharged the onus which lay upon them of proving that the general custom has been varied by a special custom enabling the collaterals to exclude the daughters.It is manifest therefore that the customary law among the Sidhu Jats of Muktsar Tahsil of Ferozepore district as regards non-ancestral property is the same as recorded generally for the State of Punjab in paragraph 23 of Rattigans Digest i, e., a daughter is preferred to collaterals5. We shall, nowever, assume to favour of the appellants that Questions 48 and 49 of the Riwaj-i-am relate also to succession of non-ancestral property of the last male holder. Even upon that assumption we are of opinion that the case of the appellants cannot succeed. The reasons is that though the entries in the Riwaj-i-am are entitled to an initial presumption in favour of their correctness the quantum of evidence necessary to rebut this presumption would vary with the facts and circumstances of each particular case. Where, for instance, the Riwaj -i-am laid down a custom in consonance with the general agricultural custom of the State, very strong proof would be required to displace this presumption, but where, on the other hand, this was not the case, and the custom as recorded in the Riwaj-i-am was opposed to the rules generally prevalent, the presumption would be considerably weakened. Likewise, where the Riwaj-i-am affected adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weaker still, and very little evidence would suffice to rebut itAs we have already pointed out earlier. Questions 48 and 49 correspond to Questions 1 and 2 of the Riwaj-i-am of 1878 which were dealt within this caseConsidering therefore that in the neighbouring tahsils of the same district in regard to non-ancestral property a daughter has excluded collaterals and in Muktsar tahsil a sister has excluded collaterals, there is in our opinion sufficient material to displace the presumption of correctness of the Riwaj-i-am entries in this case. In view of the considerations already mentioned in the judgment the presumption attaching to the Riwaj-i-am entries is a weak presumption and in our opinions it has been sufficiently discharged by the evidence adduced by the respondents in this case. It is necessary to add that the appellants have not relied upon any instances in support of their case.

### 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: who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weaker still, and very little evidence would suffice to rebut it. In Har Narain v. Mst. Deoki, (1893) 24 Pun Re p. 124 Roe, J. stated as follows :"There is no doubt a general tendency of the stronger to over-ride the weak and many instances may occur of the males of a family depriving females of rights to which the latter are legally entitled. Such instances may be followed so generally as to establish a custom, even though the origin of the custom were usurpation; but the Courts are bound carefully to watch over the rights of the weaker party, and to refuse to hold that they had ceased to exist unless a custom against them is most clearly established." In a later case. Sayad Rahim Shah v. Sayad Hussain Shah, (1901) 102 Pun Re p. 353 a similar caution was uttered by Robertson, J. who observed as follows :"The male relations, in many cases at least have been clearly more concerned for their own advantage than for the security of the rights of widows and other female relatives with rights or alleged rights over family property and the statements of the male relatives in such matters have to be taken cum grano salis where they tend to minimise the rights of others and to extend their own." The same view was expressed by the Lahore High Court in a still later case-Bholi v. Man Singh, (1908) 86 Pun Re p. 402 where the Riwaj-i-am bad laid down that daughters were excluded by collaterals, even up to the tenth degree and it was stated as follows :"As the land is rising in value under British rule, the land-holders are becoming more and more anxious to exclude female succession. They are ready to state the rule against daughters as strongly as possible, but if the custom is so well established, it is strange that they are unable to state a single instance in point on an occasion like the compilation of the Riwaj-i-am, when detailed inquiries are being made and when the leading men are supposed to give their answers with deliberation and care" The principle was reiterated by the Court in Salig Ram v. Mst. Maya Devi 1955 (1) SCR 1191 = (AIR 1953 SC 266). It was pointed out in that case that it was well settled that the general custom of the Punjab State was that the daughter excluded collaterals from succession to self-acquired property of her father and so the initial onus must therefore be on the collaterals to show that the general custom in favour of the daughters succession to the self-acquired property of her father has been varied by a special custom excluding the daughter. It was, also well-settled that the entries in the Riwaj-i-am are entitled to an initial presumption in favour of their correctness but the presumption will be considerably weakened if it adversely affects the rights of the females who have no opportunity of appearing before the Revenue authorities.In the present case, apart from the general custom of the Punjab to which due weight must be attached three instances have been referred by the High Court in the course of its Judgment to show that the presumption attaching to Riwaj-i-am has been rebutted in this case. The first instance is the subject-matter of the decision in AIR 1916 Lab 343. It was a case of Gill Jats from Zira Tahsil of Ferozepore district. It was held in that case that the plaintiffs on whom the onus rested had failed to prove that by custom among Gil Jats of mauza Lohara,Tahsil Zira, district Ferozepore, they as near collaterals of a deceased sonless proprietor, succeeded to his self-acquired estate in preference to a daughter. As we have already pointed out earlier. Questions 48 and 49 correspond to Questions 1 and 2 of the Riwaj-i-am of 1878 which were dealt within this case. The second instance is reported as Ratta v. Mst.Jai Kaur, 35 Pun LR 69:(AIR 1933 Lah 867).It is a case of a Daliwal Jat of Tahsil Moga, District Ferozepore. It was admitted that daughter of the last male holder was entitled to succeed to his self-acquired property. It is true that the case was decided upon the admission of Counsel for the collaterals but it is improbable that if there was material evidence support of the collaterals the Counsel would have made such an admission. The third instance referred to by the High Court is R. F. A. No. 220 of 1954, decided on April 11. 1961, in which it was held that sister of the last male holder excludes his collaterals from inheritance in regard to his non-ancestral or acquired property. That is a case of Jats from Fazilka tahsil of Ferozepore district. The property, however, was situated in two villages, one in Fazilka tahsil and the other in Muktsar tahsil. It was held in that case that in Muktar and in Fazilka in regard to non-ancestral or acquired property of the last male holder his sister was a preferential successor as against collaterals. In this connection it should he noticed that in the Riwaj-i-am of 1914 Question 58 concerns the rights of succession of sisters and sisters sons and the answer is that they never inherit. Considering therefore that in the neighbouring tahsils of the same district in regard to non-ancestral property a daughter has excluded collaterals and in Muktsar tahsil a sister has excluded collaterals, there is in our opinion sufficient material to displace the presumption of correctness of the Riwaj-i-am entries in this case. In view of the considerations already mentioned in the judgment the presumption attaching to the Riwaj-i-am entries is a weak presumption and in our opinions it has been sufficiently discharged by the evidence adduced by the respondents in this case. It is necessary to add that the appellants have not relied upon any instances in support of their case. ### Response: 1

Kishan Chand Vs. State Of U.P

Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. Jahiruddin v. Queen Empress, ILR 22 Cal 306 . 24. In Shivalingappa Kallayanappa and Others v. State of Karnataka [1994 Supp (3) SCC 235], this Court opined: 9. From the above discussion it is established by the prosecution that A-1 to A-5 formed into an unlawful assembly variously armed and participated in the occurrence during which two deceased persons died and P.Ws. 2 to 4 received injuries. The next question is whether the common object of the unlawful assembly was to commit the murders. Whether there was such a common object or not, depends upon various factors. A-1 and A-2, though armed with axes, did not use the sharp side but only gave one or two blows on the heads with the butt ends. A-4 and A-5 who were armed with sticks dealt blows only on the legs and or on the hands which were not serious. A-3 did not participate in the attack on any of the two deceased persons. These circumstances show that the common object of the unlawful assembly cannot be said to be to cause murders and at any rate it cannot be said that all the accused shared the same and that they had knowledge that the two deceased persons would be killed and with that knowledge continued to be the members of the unlawful assembly. However, taking all the circumstances of the case into consideration, the common object can be held to be only to cause grievous hurt. A-1 and A-2, however, dealt blows with the butt ends of the axes on the two deceased persons and the injuries on the heads caused by them proved to be fatal. Having given our earnest consideration to this aspect of the case, we are of the view that A-1 and A-2 must be held liable for their individual acts and they would be liable to be punished under Section 302 I.P.C. and A-3 to A-5 under Sections 326/149 I.P.C. so far as the attack on the two deceased persons is concerned. 25. In Bunnilal Chaudhary v. State of Bihar [(2006) 10 SCC 639] , this Court held: 13 We may say here that it is now the settled law that under Section 149 IPC, the liability of other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other persons knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behaviour on or before the scene of occurrence. 26. In Sunil Balkrishna Bhoir v. The State of Maharashtra [2007 (7) SCALE 184 ], this Court held: 17. Section 149 per se constitutes a substantive offence. The object of this section is to make clear that an accused person whose case falls within its terms cannot put forward the defence that he did not, with his own hand, commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Unlawful assembly was formed originally to assault and something might have happened all of a sudden. 27. In a case of this nature, the injuries on the part of the defence witnesses need not detain us as sufferance of such injuries at the hands of the prosecution witnesses had not been believed by both the courts below. We do not see any reason to differ with the said findings. 28. If Phool Chand was armed by the purported order passed by the Superintendent of Police that he should have assistance from the police officers. We fail to see any reason as to why he could not go to the police station and lodge a First Information Report. Why the injured persons did not go to a Government Hospital for getting themselves examined on that date itself. It betrays common sense as to why they had to go to a private doctor and that too on the next date. The accused persons even did not mind setting up a false plea to the effect that modesty of Smt. Shakuntala Devi had been outraged. The testimony of Smt. Shakuntala Devi has been discarded by the courts below. No attempt even had been made before us to assail the correctness of that part of the judgment. 29. For the reasons aforementioned, we do not

0[ds]In a case of this nature, the injuries on the part of the defence witnesses need not detain us as sufferance of such injuries at the hands of the prosecution witnesses had not been believed by both the courts below. We do not see any reason to differ with the said findingsIf Phool Chand was armed by the purported order passed by the Superintendent of Police that he should have assistance from the police officers. We fail to see any reason as to why he could not go to the police station and lodge a First Information Report. Why the injured persons did not go to a Government Hospital for getting themselves examined on that date itself. It betrays common sense as to why they had to go to a private doctor and that too on the next date. The accused persons even did not mind setting up a false plea to the effect that modesty of Smt. Shakuntala Devi had been outraged. The testimony of Smt. Shakuntala Devi has been discarded by the courts below. No attempt even had been made before us to assail the correctness of that part of the judgment

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. Jahiruddin v. Queen Empress, ILR 22 Cal 306 . 24. In Shivalingappa Kallayanappa and Others v. State of Karnataka [1994 Supp (3) SCC 235], this Court opined: 9. From the above discussion it is established by the prosecution that A-1 to A-5 formed into an unlawful assembly variously armed and participated in the occurrence during which two deceased persons died and P.Ws. 2 to 4 received injuries. The next question is whether the common object of the unlawful assembly was to commit the murders. Whether there was such a common object or not, depends upon various factors. A-1 and A-2, though armed with axes, did not use the sharp side but only gave one or two blows on the heads with the butt ends. A-4 and A-5 who were armed with sticks dealt blows only on the legs and or on the hands which were not serious. A-3 did not participate in the attack on any of the two deceased persons. These circumstances show that the common object of the unlawful assembly cannot be said to be to cause murders and at any rate it cannot be said that all the accused shared the same and that they had knowledge that the two deceased persons would be killed and with that knowledge continued to be the members of the unlawful assembly. However, taking all the circumstances of the case into consideration, the common object can be held to be only to cause grievous hurt. A-1 and A-2, however, dealt blows with the butt ends of the axes on the two deceased persons and the injuries on the heads caused by them proved to be fatal. Having given our earnest consideration to this aspect of the case, we are of the view that A-1 and A-2 must be held liable for their individual acts and they would be liable to be punished under Section 302 I.P.C. and A-3 to A-5 under Sections 326/149 I.P.C. so far as the attack on the two deceased persons is concerned. 25. In Bunnilal Chaudhary v. State of Bihar [(2006) 10 SCC 639] , this Court held: 13 We may say here that it is now the settled law that under Section 149 IPC, the liability of other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other persons knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behaviour on or before the scene of occurrence. 26. In Sunil Balkrishna Bhoir v. The State of Maharashtra [2007 (7) SCALE 184 ], this Court held: 17. Section 149 per se constitutes a substantive offence. The object of this section is to make clear that an accused person whose case falls within its terms cannot put forward the defence that he did not, with his own hand, commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Unlawful assembly was formed originally to assault and something might have happened all of a sudden. 27. In a case of this nature, the injuries on the part of the defence witnesses need not detain us as sufferance of such injuries at the hands of the prosecution witnesses had not been believed by both the courts below. We do not see any reason to differ with the said findings. 28. If Phool Chand was armed by the purported order passed by the Superintendent of Police that he should have assistance from the police officers. We fail to see any reason as to why he could not go to the police station and lodge a First Information Report. Why the injured persons did not go to a Government Hospital for getting themselves examined on that date itself. It betrays common sense as to why they had to go to a private doctor and that too on the next date. The accused persons even did not mind setting up a false plea to the effect that modesty of Smt. Shakuntala Devi had been outraged. The testimony of Smt. Shakuntala Devi has been discarded by the courts below. No attempt even had been made before us to assail the correctness of that part of the judgment. 29. For the reasons aforementioned, we do not ### Response: 0

Sukhram Vs. State Of Maharashtra

years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years imprisonment.-and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.” 15. The first paragraph of the Section contains the postulates for constituting the offence while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. To bring home an offence under Section 201 of IPC, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused disappearance of evidence and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown.16. In Palvinder Kaur Vs. The State of Punjab (Rup Singh-Caveator) this Court had said that in order to establish the charge under Section 201 IPC, it is essential to prove that an offence has been committed; that the accused knew or had reason to believe that such offence had been committed; with requisite knowledge and with the intent to screen the offender from legal punishment, caused the evidence thereof to disappear or gave false information respecting such offence knowing or having reason to believe the same to be false. It was observed that the Court should safeguard itself against the danger of basing its conclusion on suspicions, however, strong they may be. (Also See: Suleman Rehiman Mulani & Anr. Vs. State of Maharashtra, Nathu & Anr. Vs. State of Uttar Pradesh, V.L. Tresa Vs. State of Kerala).17. In the present case, indubitably there is no eye witness and the prosecution had sought to establish the case against the appellants from circumstantial evidence. It is trite to say that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused. Moreover, all the established circumstances should be complete and there should be no gap in the chain of evidence. Therefore, the evidence has to be carefully scrutinized and each circumstance should be dealt with carefully to find out whether the chain of the established circumstances is complete or not. (See: Dhananjoy Chatterjee Alias Dhana Vs. State of W.B.) . It also needs to be emphasized at this stage itself that in a case based on circumstantial evidence motive assumes great significance inasmuch as its existence is an enlightening factor in a process of presumptive reasoning.18. In the present case, the motive was alleged to be the greed for dowry and desire of appellant A-2 to have illicit relationship with the deceased, which theory, as noted above, has been rejected by the High Court while acquitting the appellant for offences under Sections 304-B and 498-A IPC. Therefore, there is no gainsaying that the prosecution failed to establish the existence of a motive. It is in this background that it has to be examined whether the evidence and the circumstances relied upon by the High Court while recording the conviction of appellant A-2 are consistent with the hypothesis of the guilt of the said appellant.19. The sole reason given by the High Court for holding appellant A-2 guilty of offence under Section 201 of IPC is the circumstance flowing from the evidence of PW-12, wherein she had stated that: “Accused No.1 and the deceased Meerabai were sleeping in one room and we were sleeping in the other room”. Undoubtedly, the mainstay of the prosecution case was the testimony of PW-12. There is absolutely no other evidence or circumstance attributing to A-2, the knowledge of the commission of offence in respect of his daughter-in-law, Meerabai. Merely because he happened to be father of appellant A-1, it cannot be presumed as a matter of legal proof that he must be deemed to have the knowledge of the offence committed by his son. Even if the evidence of PW-12 is taken at its face value, though the witness was declared hostile and had been cross examined by the prosecution counsel, mere presence of the appellant, A-2 in the house, in our opinion, is not sufficient to draw a presumption that he had the knowledge of commission of offence by his son, appellant, A-1. There is no other established circumstance to complete the chain to bring home the offence under Section 201 IPC. We are of the view that the prosecution has failed to establish that the conduct of appellant A-2, both at the time of the occurrence and immediately thereafter, is consistent with the hypothesis of his guilt. We have therefore, no hesitation in holding that the learned Judges of the High Court were in error in convicting appellant A-2 for having committed offences punishable under Sections 302 and 201 IPC.

1[ds]11. We have perused the Trialrecord. We find that though charge for offence punishable under Section 302 of IPC had been framed against appellant A-1, no such charge was framed against appellant A-2, even with the aid of Section 34 IPC. The only charge framed against A-2 was for an offence punishable under Section 201 read with Section 34 of IPC. True that Section 222 Cr.P.C. clothes the Court with the power to convict a person of an offence which is minor in comparison to the one for which he is charged and tried, but by no stretch of imagination, offences under Sections 304-B and 498-A IPC, under which appellant A-2 was convicted by the Trial Court, could be said to be minor offences in relation to that under Section 201 IPC, for which he was charged. In fact, the three offences are distinct and belong to different categories. The ingredients of the offences under the said Sections are vastly different. Therefore, Section 222 Cr.P.C. had no application on facts in hand.12. At this junction, we may also note that conviction of appellant A-2 by the High Court under Section 302 IPC cannot also be held to be valid when tested on the touchstone of the provision contained in Section 464(2)(a) Cr.P.C. If it was convinced that a failure of justice had, in fact, been occasioned, the High Court was required to follow the procedure laid down in the Section, which was not done. That apart, even on the proven facts on record, a case for conviction under Section 302 IPC was not made out against the said appellant.13. Bearing in mind this factual and legal backdrop, we are of the opinion that the High Court was not justified in convicting appellant A-2 for having committed a major offence punishable under Section 302 IPC. Nonetheless, it is well settled that notwithstanding acquittal of the said appellant of the offence under Section 302 IPC, his conviction under Section 201 IPC is still permissible. (See: Constitution Bench decision in Smt. Kalawati & Anr. Vs. The State of Himachal Pradesh). Therefore, the question that remains to be examined is regarding the correctness of the conviction of appellant, A-2 for offence under Section 201 IPC.14. Section 201 IPC reads asCausing disappearance of evidence of offence, or giving false information to screenknowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, if a capital offence.-shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.-and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years imprisonment.-and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.The first paragraph of the Section contains the postulates for constituting the offence while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. To bring home an offence under Section 201 of IPC, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused disappearance of evidence and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown.16. In Palvinder Kaur Vs. The State of Punjab (Rup Singh-Caveator) this Court had said that in order to establish the charge under Section 201 IPC, it is essential to prove that an offence has been committed; that the accused knew or had reason to believe that such offence had been committed; with requisite knowledge and with the intent to screen the offender from legal punishment, caused the evidence thereof to disappear or gave false information respecting such offence knowing or having reason to believe the same to be false. It was observed that the Court should safeguard itself against the danger of basing its conclusion on suspicions, however, strong they may be. (Also See: Suleman Rehiman Mulani & Anr. Vs. State of Maharashtra, Nathu & Anr. Vs. State of Uttar Pradesh, V.L. Tresa Vs. State of Kerala).17. In the present case, indubitably there is no eye witness and the prosecution had sought to establish the case against the appellants from circumstantial evidence. It is trite to say that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused. Moreover, all the established circumstances should be complete and there should be no gap in the chain of evidence. Therefore, the evidence has to be carefully scrutinized and each circumstance should be dealt with carefully to find out whether the chain of the established circumstances is complete or not. (See: Dhananjoy Chatterjee Alias Dhana Vs. State of W.B.) . It also needs to be emphasized at this stage itself that in a case based on circumstantial evidence motive assumes great significance inasmuch as its existence is an enlightening factor in a process of presumptive reasoning.18. In the present case, the motive was alleged to be the greed for dowry and desire of appellant A-2 to have illicit relationship with the deceased, which theory, as noted above, has been rejected by the High Court while acquitting the appellant for offences under Sections 304-B and 498-A IPC. Therefore, there is no gainsaying that the prosecution failed to establish the existence of a motive. It is in this background that it has to be examined whether the evidence and the circumstances relied upon by the High Court while recording the conviction of appellant A-2 are consistent with the hypothesis of the guilt of the said appellant.19. The sole reason given by the High Court for holding appellant A-2 guilty of offence under Section 201 of IPC is the circumstance flowing from the evidence of PW-12, wherein she had stated that:No.1 and the deceased Meerabai were sleeping in one room and we were sleeping in the otherUndoubtedly, the mainstay of the prosecution case was the testimony of PW-12. There is absolutely no other evidence or circumstance attributing to A-2, the knowledge of the commission of offence in respect of his daughter-in-law, Meerabai. Merely because he happened to be father of appellant A-1, it cannot be presumed as a matter of legal proof that he must be deemed to have the knowledge of the offence committed by his son. Even if the evidence of PW-12 is taken at its face value, though the witness was declared hostile and had been cross examined by the prosecution counsel, mere presence of the appellant, A-2 in the house, in our opinion, is not sufficient to draw a presumption that he had the knowledge of commission of offence by his son, appellant, A-1. There is no other established circumstance to complete the chain to bring home the offence under Section 201 IPC. We are of the view that the prosecution has failed to establish that the conduct of appellant A-2, both at the time of the occurrence and immediately thereafter, is consistent with the hypothesis of his guilt. We have therefore, no hesitation in holding that the learned Judges of the High Court were in error in convicting appellant A-2 for having committed offences punishable under Sections 302 and 201 IPC.

### 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: years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years imprisonment.-and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.” 15. The first paragraph of the Section contains the postulates for constituting the offence while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. To bring home an offence under Section 201 of IPC, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused disappearance of evidence and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown.16. In Palvinder Kaur Vs. The State of Punjab (Rup Singh-Caveator) this Court had said that in order to establish the charge under Section 201 IPC, it is essential to prove that an offence has been committed; that the accused knew or had reason to believe that such offence had been committed; with requisite knowledge and with the intent to screen the offender from legal punishment, caused the evidence thereof to disappear or gave false information respecting such offence knowing or having reason to believe the same to be false. It was observed that the Court should safeguard itself against the danger of basing its conclusion on suspicions, however, strong they may be. (Also See: Suleman Rehiman Mulani & Anr. Vs. State of Maharashtra, Nathu & Anr. Vs. State of Uttar Pradesh, V.L. Tresa Vs. State of Kerala).17. In the present case, indubitably there is no eye witness and the prosecution had sought to establish the case against the appellants from circumstantial evidence. It is trite to say that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused. Moreover, all the established circumstances should be complete and there should be no gap in the chain of evidence. Therefore, the evidence has to be carefully scrutinized and each circumstance should be dealt with carefully to find out whether the chain of the established circumstances is complete or not. (See: Dhananjoy Chatterjee Alias Dhana Vs. State of W.B.) . It also needs to be emphasized at this stage itself that in a case based on circumstantial evidence motive assumes great significance inasmuch as its existence is an enlightening factor in a process of presumptive reasoning.18. In the present case, the motive was alleged to be the greed for dowry and desire of appellant A-2 to have illicit relationship with the deceased, which theory, as noted above, has been rejected by the High Court while acquitting the appellant for offences under Sections 304-B and 498-A IPC. Therefore, there is no gainsaying that the prosecution failed to establish the existence of a motive. It is in this background that it has to be examined whether the evidence and the circumstances relied upon by the High Court while recording the conviction of appellant A-2 are consistent with the hypothesis of the guilt of the said appellant.19. The sole reason given by the High Court for holding appellant A-2 guilty of offence under Section 201 of IPC is the circumstance flowing from the evidence of PW-12, wherein she had stated that: “Accused No.1 and the deceased Meerabai were sleeping in one room and we were sleeping in the other room”. Undoubtedly, the mainstay of the prosecution case was the testimony of PW-12. There is absolutely no other evidence or circumstance attributing to A-2, the knowledge of the commission of offence in respect of his daughter-in-law, Meerabai. Merely because he happened to be father of appellant A-1, it cannot be presumed as a matter of legal proof that he must be deemed to have the knowledge of the offence committed by his son. Even if the evidence of PW-12 is taken at its face value, though the witness was declared hostile and had been cross examined by the prosecution counsel, mere presence of the appellant, A-2 in the house, in our opinion, is not sufficient to draw a presumption that he had the knowledge of commission of offence by his son, appellant, A-1. There is no other established circumstance to complete the chain to bring home the offence under Section 201 IPC. We are of the view that the prosecution has failed to establish that the conduct of appellant A-2, both at the time of the occurrence and immediately thereafter, is consistent with the hypothesis of his guilt. We have therefore, no hesitation in holding that the learned Judges of the High Court were in error in convicting appellant A-2 for having committed offences punishable under Sections 302 and 201 IPC. ### Response: 1

Nirupama Ghosh Vs. Purnima Ghosh & Another

in the house from time to time. Having constituted himself the sole shebait in his life-time and his sons the shebaits after his demise, his declaration that his wife and youngest daughter also will be shebaits during their life-time and his eldest daughter was entitled to come and live in the house is rather difficult to appreciate. It appears that the settlor was keen to see that his wife and daughters are not denied residence in the house by his sons when they became shebaits and in order to accommodate them they have been given a right of residence which they under the Hindu law would normally enjoy in the settlers property. Their description as shebaits is really unmeaning. Then he proceeds to allot rooms to the various members of the family and it is rather interesting to see that no particular room has been allotted for the installation of the deities, not even the titulary deity Sree Radha Krishna Deb which was still to be installed. Some parts of the house like the upper storey corridor and the northern verandah are kept apart for joint enjoyment by all the members of the family whenever they are not required for occasional celebrations or religious worship. In fact the whole of the house is directed to be utilised by the member of the family for residence and beneficial enjoyment and only a portion of the house which he had let out and was going to let out after effecting the necessary repairs and alternation was to be set apart for getting some income. Finally he directs that if the income was found to be insufficient for the purpose of meeting the expense the shebaits were required at their own cost to repair and reconstruct the rooms in their respective possession according to their own will. 12. The High Court has pointed out that the house itself comprised 7 to 8 rooms but none of these rooms was specifically allotted either to the deity Sree Laxmi which was already installed in the house or to the idol Sree Radha Krishna which was still to be installed. Specific portions of the house were allotted to the settlors sons and also his grand-sons. It was stated that whatever was allotted now by him must be enjoyed by them from generation to generation. As to the portions which are not specifically allotted, the shebaits were to possess the same jointly or separately according to their convenience. By insisting that the shebaits will be his descendants and the shebaits should continue to live in the house from generation to generation the settlor had unmistakably shown a desire that his descendants must have the beneficial enjoyment of the house. Indeed he is careful to say that this enjoyment will be as shebaits only but the veil is thin as already pointed out in the case of his wife and daughters who, though not strictly shebaits, under the Deed are given a right to live in the house during their life-time and for that purpose are described as shebaits. Moreover if the property was completely or absolutely dedicated to the deities and their worship, one would expect that a major portion of the house would be allocated for the purpose of worship and other observances and only a minor portion for the residence of the shebaits for the time being. There is no doubt that under the law shebaits have a right and, perhaps, the duty also of living in the premises dedicated to the deity. But it would be strange if the shebaits themselves should be in a position to enjoy the whole of the dedicated property to the detriment of the deity. In a genuine absolute dedication the settlor would take care that a fund is created for the repair and upkeep of the deitys abode from year to year and for that purpose direct that as much of the house as possible should be let out so that, in a place like Calcutta and round about, the deity may get a decent income not only for the routine Pujas and observance but also for the maintenance and repairs of the house in which the deity is installed. The settlor was well aware that by letting out a small portion of the house to the tenants, neither he nor the future shebaits would be able to meet even the small expense of the religious observances directed by him. If fact he exhorted his heirs that they should, out of their own pocket, spend for the repairs and maintenance of the house. Shebaits are merely managers of the deity and are not expected to spend out of their pocket for the upkeep of the deity. They might spend out of devotion to the deity, but there is no legal obligation on them. In these circumstances, a settlor intending an absolute dedication in favour of a deity or charity would not be more concerned that his heirs live in the house from generation to generation along with their families, but would be more concerned for the welfare of the deity and the permanent maintenance of the building in which the deity is housed. In our opinion, the Settlement Deed has actually settled the bulk of the property on his heirs and we are in agreement with the High Court that the real intention of the donor was not only to provide for the worship of his family deity and the religious and charitable purpose mentioned in the Deed but also to provide the heirs from generation to generation a permanent habitation in the property. The provision is inconsistent with an absolute dedication in favour of the deity and the charitable purposes. The High Court, therefore, is right in holding that this was a partial dedication. That is also the way the settlors sons and other members of the family interpreted and gave effect to the Settlement by the arrangement they arrived at on October 5, 1937 (Ext. 1-A).

0[ds]7. The only point argued before us by Mr. Sen on behalf of appellant Nirupama was that both the courts were in error in holding that the property in suit was not an absolute dedication but a partial dedication. It was contended that on a proper construction of Ext. 1, the Settlement Deed, dated November 1, 1918, made by Jiban Krishna Ghose there can be no doubt that the dedication was absolute in favour of the deities and the charities and the shebaits for the time being had no more than a duty or right to live in the premises.If the dedication was absolute the character of the dedication could not be changed by the internal arrangement of 1937, between the brothers Prafulla Krishna and Gyanendra Krishna. On a careful consideration of the contentions of Mr. Sen, we are not satisfied that the construction of the document Ext. 1, by the two courts is erroneous9. On a perusal of the Settlement Deed it would initially appear that the property which was described in detail was dedicated to the deityhe settlor proceeds to say that so long as he lived, he will live in the house but as a shebait and trustee. As far as the expenses of the religious observances are concerned, he said he will meet them from the income to be derived by letting out and settling on rent some portion of this property as far as possible. He has also undertaken to set apart a portion of the house to be let out permanently to tenants so that he will get sufficient income to defray the expenses of the worship and other religious ceremonies. For the purpose he envisaged that certain portions of the house would have to be repaired and altered. In short, while he himself and his family live in the house, he had intended to set apart a portion of it to meet the expenses of the worship. He then proceeds to say that after his death his two sons would become the shebaits and trustees and in that capacity reside in the house with their families and carry on the worship as already mentioned. After the demise of the sons, the sons sons and other representatives in succession would become shebaits and trustees and they also are expected to live in the house and let out a portion from the income of which the religious ceremonies were to be met. It is clear from this disposition in the Settlement Deed that his sons, sons and their descendants were expected to live in the house from generation to generation. This he has reiterated a number of times in the rest of the documentIt appears that the settlor was keen to see that his wife and daughters are not denied residence in the house by his sons when they became shebaits and in order to accommodate them they have been given a right of residence which they under the Hindu law would normally enjoy in the settlers property. Their description as shebaits is really unmeaning. Then he proceeds to allot rooms to the various members of the family and it is rather interesting to see that no particular room has been allotted for the installation of the deities, not even the titulary deity Sree Radha Krishna Deb which was still to be installed. Some parts of the house like the upper storey corridor and the northern verandah are kept apart for joint enjoyment by all the members of the family whenever they are not required for occasional celebrations or religious worship. In fact the whole of the house is directed to be utilised by the member of the family for residence and beneficial enjoyment and only a portion of the house which he had let out and was going to let out after effecting the necessary repairs and alternation was to be set apart for getting some income. Finally he directs that if the income was found to be insufficient for the purpose of meeting the expense the shebaits were required at their own cost to repair and reconstruct the rooms in their respective possession according to their own willBy insisting that the shebaits will be his descendants and the shebaits should continue to live in the house from generation to generation the settlor had unmistakably shown a desire that his descendants must have the beneficial enjoyment of the house. Indeed he is careful to say that this enjoyment will be as shebaits only but the veil is thin as already pointed out in the case of his wife and daughters who, though not strictly shebaits, under the Deed are given a right to live in the house during theire and for that purpose are described as shebaits. Moreover if the property was completely or absolutely dedicated to the deities and their worship, one would expect that a major portion of the house would be allocated for the purpose of worship and other observances and only a minor portion for the residence of the shebaits for the time being. There is no doubt that under the law shebaits have a right and, perhaps, the duty also of living in the premises dedicated to the deity. But it would be strange if the shebaits themselves should be in a position to enjoy the whole of the dedicated property to the detriment of the deity. In a genuine absolute dedication the settlor would take care that a fund is created for the repair and upkeep of the deitys abode from year to year and for that purpose direct that as much of the house as possible should be let out so that, in a place like Calcutta and round about, the deity may get a decent income not only for the routine Pujas and observance but also for the maintenance and repairs of the house in which the deity is installed. The settlor was well aware that by letting out a small portion of the house to the tenants, neither he nor the future shebaits would be able to meet even the small expense of the religious observances directed by him. If fact he exhorted his heirs that they should, out of their own pocket, spend for the repairs and maintenance of the house. Shebaits are merely managers of the deity and are not expected to spend out of their pocket for the upkeep of the deity. They might spend out of devotion to the deity, but there is no legal obligation on them. In these circumstances, a settlor intending an absolute dedication in favour of a deity or charity would not be more concerned that his heirs live in the house from generation to generation along with their families, but would be more concerned for the welfare of the deity and the permanent maintenance of the building in which the deity is housed. In our opinion, the Settlement Deed has actually settled the bulk of the property on his heirs and we are in agreement with the High Court that the real intention of the donor was not only to provide for the worship of his family deity and the religious and charitable purpose mentioned in the Deed but also to provide the heirs from generation to generation a permanent habitation in the property. The provision is inconsistent with an absolute dedication in favour of the deity and the charitable purposes. The High Court, therefore, is right in holding that this was a partial dedication. That is also the way the settlors sons and other members of the family interpreted and gave effect to the Settlement by the arrangement they arrived at on October 5, 1937 (Ext.

### 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: in the house from time to time. Having constituted himself the sole shebait in his life-time and his sons the shebaits after his demise, his declaration that his wife and youngest daughter also will be shebaits during their life-time and his eldest daughter was entitled to come and live in the house is rather difficult to appreciate. It appears that the settlor was keen to see that his wife and daughters are not denied residence in the house by his sons when they became shebaits and in order to accommodate them they have been given a right of residence which they under the Hindu law would normally enjoy in the settlers property. Their description as shebaits is really unmeaning. Then he proceeds to allot rooms to the various members of the family and it is rather interesting to see that no particular room has been allotted for the installation of the deities, not even the titulary deity Sree Radha Krishna Deb which was still to be installed. Some parts of the house like the upper storey corridor and the northern verandah are kept apart for joint enjoyment by all the members of the family whenever they are not required for occasional celebrations or religious worship. In fact the whole of the house is directed to be utilised by the member of the family for residence and beneficial enjoyment and only a portion of the house which he had let out and was going to let out after effecting the necessary repairs and alternation was to be set apart for getting some income. Finally he directs that if the income was found to be insufficient for the purpose of meeting the expense the shebaits were required at their own cost to repair and reconstruct the rooms in their respective possession according to their own will. 12. The High Court has pointed out that the house itself comprised 7 to 8 rooms but none of these rooms was specifically allotted either to the deity Sree Laxmi which was already installed in the house or to the idol Sree Radha Krishna which was still to be installed. Specific portions of the house were allotted to the settlors sons and also his grand-sons. It was stated that whatever was allotted now by him must be enjoyed by them from generation to generation. As to the portions which are not specifically allotted, the shebaits were to possess the same jointly or separately according to their convenience. By insisting that the shebaits will be his descendants and the shebaits should continue to live in the house from generation to generation the settlor had unmistakably shown a desire that his descendants must have the beneficial enjoyment of the house. Indeed he is careful to say that this enjoyment will be as shebaits only but the veil is thin as already pointed out in the case of his wife and daughters who, though not strictly shebaits, under the Deed are given a right to live in the house during their life-time and for that purpose are described as shebaits. Moreover if the property was completely or absolutely dedicated to the deities and their worship, one would expect that a major portion of the house would be allocated for the purpose of worship and other observances and only a minor portion for the residence of the shebaits for the time being. There is no doubt that under the law shebaits have a right and, perhaps, the duty also of living in the premises dedicated to the deity. But it would be strange if the shebaits themselves should be in a position to enjoy the whole of the dedicated property to the detriment of the deity. In a genuine absolute dedication the settlor would take care that a fund is created for the repair and upkeep of the deitys abode from year to year and for that purpose direct that as much of the house as possible should be let out so that, in a place like Calcutta and round about, the deity may get a decent income not only for the routine Pujas and observance but also for the maintenance and repairs of the house in which the deity is installed. The settlor was well aware that by letting out a small portion of the house to the tenants, neither he nor the future shebaits would be able to meet even the small expense of the religious observances directed by him. If fact he exhorted his heirs that they should, out of their own pocket, spend for the repairs and maintenance of the house. Shebaits are merely managers of the deity and are not expected to spend out of their pocket for the upkeep of the deity. They might spend out of devotion to the deity, but there is no legal obligation on them. In these circumstances, a settlor intending an absolute dedication in favour of a deity or charity would not be more concerned that his heirs live in the house from generation to generation along with their families, but would be more concerned for the welfare of the deity and the permanent maintenance of the building in which the deity is housed. In our opinion, the Settlement Deed has actually settled the bulk of the property on his heirs and we are in agreement with the High Court that the real intention of the donor was not only to provide for the worship of his family deity and the religious and charitable purpose mentioned in the Deed but also to provide the heirs from generation to generation a permanent habitation in the property. The provision is inconsistent with an absolute dedication in favour of the deity and the charitable purposes. The High Court, therefore, is right in holding that this was a partial dedication. That is also the way the settlors sons and other members of the family interpreted and gave effect to the Settlement by the arrangement they arrived at on October 5, 1937 (Ext. 1-A). ### Response: 0

CANARA BANK Vs. N.G. SUBBARAYA SETTY

Setty on the bank, the plaintiff bank cannot escape from the legal consequences of assignment deed obtained by them dated 8.10.2003 and it cannot be held that the assignment deed obtained, by the bank from N.G. Subbaraya Setty is unenforceable. Therefore, I answer both the issues 1 and 2 raised in O.S. 7018/2004 in the negative. (Issue No.2 in O.S. No.7018 of 2004 read as follows: Whether plaintiff proves that the deed of assignment of trademark, entered into between plaintiff and 1 st defendant is not enforceable in law?) 36. Equally, insofar as the trial Court judgment in the second suit of 2008 is concerned, the said plea was expressly raised and turned down in the following manner: …The defendant No.1 himself has produced the original Assignment Deed and in this case defendant No.1 himself has taken up the contention that said Assignment Deed is not registered as per Trade Mark Act and as such, the said document cannot be considered. There are certain procedures that within 5 days the Assignor file an affidavit to the Trade Mark Authority in respect of change of user of the Trade Mark and defendant No.1 himself has moved application by paying Rs.5,000/- D.D. for registering the document. Inspite of that, the Trade Mark Authorities have not registered the Trade Mark and as such, the learned counsel for defendant No.1 vehemently argued that the said Trade Mark Eenadu is not registered in accordance with law and as such, same cannot be considered for any of the purposes. Further, it is contended that the Assignment Deed is not registered in accordance with laws. But when the Assignment Deed has been relied upon in the earlier judgments and parties have accepted the execution of the document, then defendant No.1 cannot again contend that said Assignment Deed is not registered and cannot be considered for any of the purposes, does not hold good. It is nothing but res judicata as contended by the plaintiff in the decisions cited above. 37. The impugned judgment dated 31.7.2017 also records the aforesaid submission and turns it down stating: …Indisputably, the grounds regarding insufficiently stamped assignment deed and non-registration of the trade mark were argued by the Bank which were considered and addressed by the trial Court in O.S. No.2832/2004 and O.S. No.7018/2004. In such circumstances, raising the very same grounds in the second round of proceedings, the issue in which the matter directly and substantially has been heard and finally decided in a former suit between the same parties, litigating under the same title amounts to res judicata. Defendant No.1-Bank is precluded from raising the same objection in the present proceedings which is finally decided holding the assignment deed as legal and binding on the defendant No.1-Bank… 38. We are of the opinion that both the trial Court and the first appellate Court were entirely wrong in treating the statutory prohibition contained in Section 45(2) of the Trade Marks Act as res judicata. It is obvious that neither Court has bothered to advert to Section 45 and/or interpret the same. The second proceeding contained in O.S. No.495 of 2008 prayed for payment of a sum of Rs.17,89,915/- along with interest thereon for the period 1.4.2004 to 30.4.2007. Paragraph 8 of the plaint in the said suit reads as under: 8.The plaintiff has already filed a suit in O.S. No.2832/2004 against the 1 st defendant for the recovery of the amount payable by it under the said Assignment Deed till the end of 31.3.2004. The cause of action for the present suit claim had not arisen by then as the amount had not become payable by then i.e. for the period 1.4.2004 to 30.4.2007. 39. Clearly, therefore, the subsequent suit of 2008 raises an issue which is different from that contained in the earlier suit filed by the same party in 2004. Also, the earlier decision in the judgment dated 27.4.2013 has declared valid a transaction which is prohibited by law. A cursory reading of Section 45(2) of the Trade Marks Act makes it clear that the assignment deed, if unregistered, cannot be admitted in evidence by any Court in proof of title to the trademark by the assignment, unless the Court itself directs otherwise. It is clear, therefore, that any reliance upon the assignment deed dated 8.10.2003 by the earlier judgment cannot be sanctified by the plea of res judicata, when reliance upon the assignment deed is prohibited by law. 40. Equally, a reference to Sections 6, 8 and 46(4) of the Banking Regulation Act would also make it clear that a bank cannot use the trademark Eenadu to sell agarbathies. This would be directly interdicted by Section 8, which clearly provides that notwithstanding anything contained in Section 6 or in any contract, no banking company shall directly or indirectly deal in the selling of goods, except in connection with the realisation of security given to or held by it. Also, granting permission to third parties to use the trademark Eenadu and earn royalty upon the same would clearly be outside Section 6(1) and would be interdicted by Section 6(2) which states that no bank shall engage in any form of business other than those referred to in sub-section (1). 41. Shri Shanthakumar Mahale, however, exhorted us to read Sections 6(1)(f) and (g) as permitting the sale of goods under the trademark and/or earning royalty from a sub-assignment thereto. We are of the view that the trademark cannot be said to be property which has come into the possession of the bank in satisfaction or part satisfaction of any of the claims of the bank. We are further of the view that the trademarks are not part of any security for loans or advances that have been made to the first respondent, or connected with the same. It is thus clear that the assignment deed dated 8.10.2003 is clearly hit by Section 6(2) and Section 8 read with the penalty provision contained in Section 46(4) of the Banking Regulation Act.

1[ds]14. We may first deal with the preliminary point urged by Shri Mehta. He pressed into service the judgment in V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551 for the proposition that a plea of res judicata not properly raised in the pleadings or put in issue at the stage of trial could not be permitted to be taken.A closer look at the said judgment shows that the judgment dealt with such a plea not being permitted to be raised for the first time at the stage of appeal. In the present case, though an issue as to res judicata was not struck between the parties, both parties argued the matter based upon the pleadings and the judgment contained in the two suits of2004. It is only after full arguments on both sides that the trial Court in the judgment dated 30.10.2015 accepted the respondents plea of res judicata. Even before the appellate Court, the point of res judicata was argued by both parties without adverting to the aforesaid objection. It is obvious, therefore, that this ground raised for the first time before this Court, cannot22. The conspectus of the above authorities shows that until the limitation period for filing of an appeal is over, the res remains sub judice. After the limitation period is over, the res decided by the first Court would then become judicata.23. If the period of limitation for filing an appeal has not yet expired or has just expired, the Court hearing the second proceeding can very well ask the party who has lost the first round whether he intends to appeal the aforesaid judgment. If the answer is yes, then it would be prudent to first adjourn the second proceeding and then stay the aforesaid proceedings, after the appeal has been filed, to await the outcome of the appeal in the first proceeding. If, however, a sufficiently long period has elapsed after limitation has expired, and no appeal has yet been filed in the first proceeding, the Court hearing the second proceeding would be justified in treating the first proceeding as res judicata. No hard and fast rule can be applied. The entire fact circumstance in each case must be looked at before deciding whether to proceed with the second proceeding on the basis of res judicata or to adjourn and/or stay the second proceeding to await the outcome in the first proceeding. Many factors have to be considered before exercising this discretion – for example, the fact that the appeal against the first judgment is grossly belated; or that the said appeal would, in the ordinary course, be heard after many years in the first proceeding; or, the fact that third party rights have intervened, thereby making it unlikely that delay would be condoned in the appeal in the first proceeding. As has been stated, the judicious use of the weapon of stay would, in many cases, obviate a Court of first instance in the second proceeding treating a matter as res judicata only to find that by the time the appeal has reached the hearing stage against the said judgment in the second proceeding, the res becomes sub judice again because of condonation of delay and the consequent hearing of the appeal in the first proceeding. This would result in setting aside the trial Court judgment in the second proceeding, and a de novo hearing on merits in the second proceeding commencing on remand, thereby wasting the Courts time and dragging the parties into a second round of litigation on the merits of the case.24. In the present case, a belated review petition was filed after arguments were heard and judgment reserved by the appellate Court. Would this Court have to await the outcome of the said review petition before deciding whether the judgment dated 27.4.2013 is res judicata? Obviously not. It is clear that a review petition filed long after the judgment dated 27.4.2013, with a condonation application for a delay of over four years, could not possibly be held to be anything but an abuse of the process of the Court.38. We are of the opinion that both the trial Court and the first appellate Court were entirely wrong in treating the statutory prohibition contained in Section 45(2) of the Trade Marks Act as res judicata. It is obvious that neither Court has bothered to advert to Section 45 and/or interpret the same. The second proceeding contained in O.S. No.495 of 2008 prayed for payment of a sum of Rs.17,89,915/- along with interest thereon for the period 1.4.2004 to 30.4.2007. Paragraph 8 of the plaint in the said suit reads as under:8.The plaintiff has already filed a suit in O.S. No.2832/2004 against thefor the recovery of the amount payable by it under the said Assignment Deed till the end of 31.3.2004. The cause of action for the present suit claim had not arisen by then as the amount had not become payable by then i.e. for the period39. Clearly, therefore, the subsequent suit of 2008 raises an issue which is different from that contained in the earlier suit filed by the same party in 2004. Also, the earlier decision in the judgment dated 27.4.2013 has declared valid a transaction which is prohibited by law. A cursory reading of Section 45(2) of the Trade Marks Act makes it clear that the assignment deed, if unregistered, cannot be admitted in evidence by any Court in proof of title to the trademark by the assignment, unless the Court itself directs otherwise. It is clear, therefore, that any reliance upon the assignment deed dated 8.10.2003 by the earlier judgment cannot be sanctified by the plea of res judicata, when reliance upon the assignment deed is prohibited by law40. Equally, a reference to Sections 6, 8 and 46(4) of the Banking Regulation Act would also make it clear that a bank cannot use the trademarkto sell agarbathies. This would be directly interdicted by Section 8, which clearly provides that notwithstanding anything contained in Section 6 or in any contract, no banking company shall directly or indirectly deal in the selling of goods, except in connection with the realisation of security given to or held by it. Also, granting permission to third parties to use the trademarkearn royalty upon the same would clearly be outside Section 6(1) and would be interdicted by Section 6(2) which states that no bank shall engage in any form of business other than those referred to in sub-section (1).41. Shri Shanthakumar Mahale, however, exhorted us to read Sections 6(1)(f) and (g) as permitting the sale of goods under the trademark and/or earning royalty from a sub-assignment thereto. We are of the view that the trademark cannot be said to be property which has come into the possession of the bank in satisfaction or part satisfaction of any of the claims of the bank. We are further of the view that the trademarks are not part of any security for loans or advances that have been made to the first respondent, or connected with the same. It is thus clear that the assignment deed dated 8.10.2003 is clearly hit by Section 6(2) and Section 8 read with the penalty provision contained in Section 46(4) of the Banking Regulation Act.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: Setty on the bank, the plaintiff bank cannot escape from the legal consequences of assignment deed obtained by them dated 8.10.2003 and it cannot be held that the assignment deed obtained, by the bank from N.G. Subbaraya Setty is unenforceable. Therefore, I answer both the issues 1 and 2 raised in O.S. 7018/2004 in the negative. (Issue No.2 in O.S. No.7018 of 2004 read as follows: Whether plaintiff proves that the deed of assignment of trademark, entered into between plaintiff and 1 st defendant is not enforceable in law?) 36. Equally, insofar as the trial Court judgment in the second suit of 2008 is concerned, the said plea was expressly raised and turned down in the following manner: …The defendant No.1 himself has produced the original Assignment Deed and in this case defendant No.1 himself has taken up the contention that said Assignment Deed is not registered as per Trade Mark Act and as such, the said document cannot be considered. There are certain procedures that within 5 days the Assignor file an affidavit to the Trade Mark Authority in respect of change of user of the Trade Mark and defendant No.1 himself has moved application by paying Rs.5,000/- D.D. for registering the document. Inspite of that, the Trade Mark Authorities have not registered the Trade Mark and as such, the learned counsel for defendant No.1 vehemently argued that the said Trade Mark Eenadu is not registered in accordance with law and as such, same cannot be considered for any of the purposes. Further, it is contended that the Assignment Deed is not registered in accordance with laws. But when the Assignment Deed has been relied upon in the earlier judgments and parties have accepted the execution of the document, then defendant No.1 cannot again contend that said Assignment Deed is not registered and cannot be considered for any of the purposes, does not hold good. It is nothing but res judicata as contended by the plaintiff in the decisions cited above. 37. The impugned judgment dated 31.7.2017 also records the aforesaid submission and turns it down stating: …Indisputably, the grounds regarding insufficiently stamped assignment deed and non-registration of the trade mark were argued by the Bank which were considered and addressed by the trial Court in O.S. No.2832/2004 and O.S. No.7018/2004. In such circumstances, raising the very same grounds in the second round of proceedings, the issue in which the matter directly and substantially has been heard and finally decided in a former suit between the same parties, litigating under the same title amounts to res judicata. Defendant No.1-Bank is precluded from raising the same objection in the present proceedings which is finally decided holding the assignment deed as legal and binding on the defendant No.1-Bank… 38. We are of the opinion that both the trial Court and the first appellate Court were entirely wrong in treating the statutory prohibition contained in Section 45(2) of the Trade Marks Act as res judicata. It is obvious that neither Court has bothered to advert to Section 45 and/or interpret the same. The second proceeding contained in O.S. No.495 of 2008 prayed for payment of a sum of Rs.17,89,915/- along with interest thereon for the period 1.4.2004 to 30.4.2007. Paragraph 8 of the plaint in the said suit reads as under: 8.The plaintiff has already filed a suit in O.S. No.2832/2004 against the 1 st defendant for the recovery of the amount payable by it under the said Assignment Deed till the end of 31.3.2004. The cause of action for the present suit claim had not arisen by then as the amount had not become payable by then i.e. for the period 1.4.2004 to 30.4.2007. 39. Clearly, therefore, the subsequent suit of 2008 raises an issue which is different from that contained in the earlier suit filed by the same party in 2004. Also, the earlier decision in the judgment dated 27.4.2013 has declared valid a transaction which is prohibited by law. A cursory reading of Section 45(2) of the Trade Marks Act makes it clear that the assignment deed, if unregistered, cannot be admitted in evidence by any Court in proof of title to the trademark by the assignment, unless the Court itself directs otherwise. It is clear, therefore, that any reliance upon the assignment deed dated 8.10.2003 by the earlier judgment cannot be sanctified by the plea of res judicata, when reliance upon the assignment deed is prohibited by law. 40. Equally, a reference to Sections 6, 8 and 46(4) of the Banking Regulation Act would also make it clear that a bank cannot use the trademark Eenadu to sell agarbathies. This would be directly interdicted by Section 8, which clearly provides that notwithstanding anything contained in Section 6 or in any contract, no banking company shall directly or indirectly deal in the selling of goods, except in connection with the realisation of security given to or held by it. Also, granting permission to third parties to use the trademark Eenadu and earn royalty upon the same would clearly be outside Section 6(1) and would be interdicted by Section 6(2) which states that no bank shall engage in any form of business other than those referred to in sub-section (1). 41. Shri Shanthakumar Mahale, however, exhorted us to read Sections 6(1)(f) and (g) as permitting the sale of goods under the trademark and/or earning royalty from a sub-assignment thereto. We are of the view that the trademark cannot be said to be property which has come into the possession of the bank in satisfaction or part satisfaction of any of the claims of the bank. We are further of the view that the trademarks are not part of any security for loans or advances that have been made to the first respondent, or connected with the same. It is thus clear that the assignment deed dated 8.10.2003 is clearly hit by Section 6(2) and Section 8 read with the penalty provision contained in Section 46(4) of the Banking Regulation Act. ### Response: 1

Jasmeet Kaur Vs. Navtej Singh

1. Leave granted. We have heard learned Counsel for the parties and perused the record.2. The Appellant filed a Guardianship Petition which was rejected by the Family Court Under Order VII Rule 11 of the Code of Civil Procedure on the ground that the parties are nationals of the United States of America and the U.S. courts have intimate contact with the matter. It was observed the marriage between the parties took place in U.S.A. Out of the wedlock, one child was born in 2012 in U.S.A. and the second child was born in India. The Appellant came to India, just before the delivery of the said child. The High Court has affirmed the said order.3. We have gone through the judgments of this Court in Surya Vadanan v. State of Tamil Nadu, (2015) 5 SCC 450 , Dr. V. Ravi Chandaran v. Union of India and Ors. (2010) 1 SCC 174 , Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 , Surinder Kaur v. Harbax Singh Sandhu, (1984) 3 SCC 698 , Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479. These judgments were considered by this Court in a recent Three-Judge Bench judgment in Nithya Anand Raghavan v. State of NCT, (2017) 8 SCC 454 and it was observed:39. We must remind ourselves of the settled legal position that the concept of forum convenience has no place in wardship jurisdiction. Further, the efficacy of the principle of comity of courts as applicable to India in respect of child custody matters has been succinctly delineated in several decisions of this Court. ...66. The invocation of first strike principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of the duty of the Court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the Court is convinced in that regard, the fact that there is already an order passed by a foreign Court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests and welfare of the child are of paramount consideration. The principle of comity of courts as observed in Dhanwanti Joshi case [1998(1) SCC 112], in relation to non-convention countries is that theCourt in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. While considering that aspect, the Court may reckon the fact that the child was abducted from his or her country of habitual residence but the Courts overriding consideration must be the childs welfare.4. In view of above, principle of comity of courts or principle of forum convenience alone cannot determine the threshold bar of jurisdiction. Paramount consideration is the best interest of child. The same cannot be subject-matter of final determination in proceedings Under Order VII Rule 11 of the Code of Civil Procedure.

0[ds]3. We have gone through the judgments of this Court in Surya Vadanan v. State of Tamil Nadu, (2015) 5 SCC 450 , Dr. V. Ravi Chandaran v. Union of India and Ors. (2010) 1 SCC 174 , Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 , Surinder Kaur v. Harbax Singh Sandhu, (1984) 3 SCC 698 , Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479. These judgments were considered by this Court in a recent Three-Judge Bench judgment in Nithya Anand Raghavan v. State of NCT, (2017) 8 SCC 454 and it was observed:39. We must remind ourselves of the settled legal position that the concept of forum convenience has no place in wardship jurisdiction. Further, the efficacy of the principle of comity of courts as applicable to India in respect of child custody matters has been succinctly delineated in several decisions of this Court.66. The invocation of first strike principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of the duty of the Court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the Court is convinced in that regard, the fact that there is already an order passed by a foreign Court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests and welfare of the child are of paramount consideration. The principle of comity of courts as observed in Dhanwanti Joshi case [1998(1) SCC 112], in relation to non-convention countries is that theCourt in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. While considering that aspect, the Court may reckon the fact that the child was abducted from his or her country of habitual residence but the Courts overriding consideration must be the childs welfare.. In view of above, principle of comity of courts or principle of forum convenience alone cannot determine the threshold bar of jurisdiction. Paramount consideration is the best interest of child. The same cannot be subject-matter of final determination in proceedings Under Order VII Rule 11 of the Code of Civil Procedure.

### 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: 1. Leave granted. We have heard learned Counsel for the parties and perused the record.2. The Appellant filed a Guardianship Petition which was rejected by the Family Court Under Order VII Rule 11 of the Code of Civil Procedure on the ground that the parties are nationals of the United States of America and the U.S. courts have intimate contact with the matter. It was observed the marriage between the parties took place in U.S.A. Out of the wedlock, one child was born in 2012 in U.S.A. and the second child was born in India. The Appellant came to India, just before the delivery of the said child. The High Court has affirmed the said order.3. We have gone through the judgments of this Court in Surya Vadanan v. State of Tamil Nadu, (2015) 5 SCC 450 , Dr. V. Ravi Chandaran v. Union of India and Ors. (2010) 1 SCC 174 , Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 , Surinder Kaur v. Harbax Singh Sandhu, (1984) 3 SCC 698 , Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479. These judgments were considered by this Court in a recent Three-Judge Bench judgment in Nithya Anand Raghavan v. State of NCT, (2017) 8 SCC 454 and it was observed:39. We must remind ourselves of the settled legal position that the concept of forum convenience has no place in wardship jurisdiction. Further, the efficacy of the principle of comity of courts as applicable to India in respect of child custody matters has been succinctly delineated in several decisions of this Court. ...66. The invocation of first strike principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of the duty of the Court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the Court is convinced in that regard, the fact that there is already an order passed by a foreign Court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests and welfare of the child are of paramount consideration. The principle of comity of courts as observed in Dhanwanti Joshi case [1998(1) SCC 112], in relation to non-convention countries is that theCourt in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. While considering that aspect, the Court may reckon the fact that the child was abducted from his or her country of habitual residence but the Courts overriding consideration must be the childs welfare.4. In view of above, principle of comity of courts or principle of forum convenience alone cannot determine the threshold bar of jurisdiction. Paramount consideration is the best interest of child. The same cannot be subject-matter of final determination in proceedings Under Order VII Rule 11 of the Code of Civil Procedure. ### Response: 0

Commissioner Of Income Tax, West Bengal, Vs. Balkrishan Malhotra

and issued a notice under S. 28 (3) in Form 30 only on March 31, 1954. The assessee contended that the assessment is barred under S. 34 (3). That contention was rejected by the authorities under the Act including the appellate tribunal but on a reference made by the tribunal to the High Court, the High Court following the decision of the Madras High Court in RM. P. R. Viswanathan Chettiar v. Commr. of Income Tax, Madras, 25 ITR 79 - (AlR 1954 Mad 928) accepted the contention of the assessee while giving its advisory opinion on the questions of law referred to it by the appellate tribunal. This appeal is directed against that decision.5. The provisions of law which are material for deciding the point in issue are Ss. 23 and 34 (3) of the Act. Those provisions at the material time read as follows:"23 (1). If the Income-tax Officer is satisfied without requiring the presence of the assessee or the production by him of any evidence that a return made under section 22 is correct and complete, he shall assess the total income of the assessee, and shall determine the sum payable by him on the basis of such return.(2) If the Income-tax Officer is not satisfied without requiring the presence of the person who made the return or the production of evidence that return made under section 22 is correct and complete, he shall serve on such person a notice requiring him, on a date to be therein specified, either to attend at the Income-tax Officers office or to produce, or to cause to be there produced, any evidence on which such person may rely in support of the return.(3) On the day specified m the notice issued under sub-section (2) or as soon afterwards as may be, the Income-tax Officer, after hearing such evidence as such person may produce and such other evidence as the Income-tax officer may require, on specified points, shall by an order in writing, assessee the total income of the assessee, and determine the sum payable by him on the basis of such assessment .(4) If any person fails to make the return required by any notice given under sub-section (2) of section 22 and has not made a return or a revised return under sub-section (3) of the same section or fails to comply with all the terms of a notice issued under sub-section (4) of the same section or, having made a return, fails to comply with all the terms of a notice issued under sub-section (2) of the section, the Income-tax Officer shall make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment.Section 34 (3). No order of assessment under S. 23 to which clause (o) of sub-section (1) of section 28 applies or of assessment or re-assessment in cases falling within clause (a) of subsection (1) of this section shall be made after the expiry of 8 years and no order of assessment or re-assessment in any other case shall be made after the expiry of 4 years from the end of the year in which the income, profits or claims were first assessable.Provided that where a notice under sub-section (1) has been issued within the time therein limited, the assessment or re-assessment to be made in pursuance of such notice may be made before the expiry of one year from the date of the service of the notice even if such period exceeds the period of 8 years or 4 years as the case may be"6. It has been stated over and over again by this Court as well as by the Judicial Committee that the words "assessment" and the "assessee" are used in different places in the Act with different meaning. Therefore in finding out the true meaning of those words in any provision, we have to see to the context in which the word is used and the purpose intended to be achieved. It is true that sub-ss. (1), (3) and (4) of S. 23 require the Income-tax Officer to "assess the total income of the assessee and determine the sum payable by him." In other words in those provisions the word "assess" has been used with reference to computation of the income of the assessee and not the determination of his tax liability. But in S. 34 (3) the word used is not "assess" but "assessment". The question for decision is what is the meaning of that word? As long back as September 24, 1953, the High Court of Madras in Viswanathan Chettiars case, 25 ITR 79 = (AIR 1954 Mad 928 ) (supra) came to the conclusion that the word "assessment" in proviso to S. 34 (3) means not merely the computation of the income of the assessee but also the determination of the tax payable by him. No other High Court has taken a contrary view. The Revenue must have in all these years acted on the basis of that decision of the Madras High Court.Interpretation of a provision in a taxing statute rendered years back and accepted and acted upon by the department should not be easily departed from. It may be that another view of the law is possible but law is not a mere mental exercise. The courts while reconsidering the decisions rendered long time back particularly under taxing statutes cannot ignore the harm that is likely to happen by unsettling law that had been once settled. We may also note that the Act has been repealed by the that the Act, 1961.The corresponding provisions of the 1961 Act are materially different from the provisions referred to earlier. Under these circumstances we do not think that we would be justified in departing from the interpretation placed by the Madras High Court in Viswanathan Chettiars case, 25 ITR 79 = (AIR 1954 Mad 928 ) (supra) though a different view of the law may be reasonably possible.

0[ds]6. It has been stated over and over again by this Court as well as by the Judicial Committee that the words "assessment" and the "assessee" are used in different places in the Act with different meaning. Therefore in finding out the true meaning of those words in any provision, we have to see to the context in which the word is used and the purpose intended to be achieved. It is true that sub-ss. (1), (3) and (4) of S. 23 require the Income-tax Officer to "assess the total income of the assessee and determine the sum payable by him." In other words in those provisions the word "assess" has been used with reference to computation of the income of the assessee and not the determination of his tax liability. But in S. 34 (3) the word used is not "assess" but "assessment". The question for decision is what is the meaning of that word? As long back as September 24, 1953, the High Court of Madras in Viswanathan Chettiars case, 25 ITR 79 = (AIR 1954 Mad 928 ) (supra) came to the conclusion that the word "assessment" in proviso to S. 34 (3) means not merely the computation of the income of the assessee but also the determination of the tax payable by him. No other High Court has taken a contrary view. The Revenue must have in all these years acted on the basis of that decision of the Madras High Court.Interpretation of a provision in a taxing statute rendered years back and accepted and acted upon by the department should not be easily departed from. It may be that another view of the law is possible but law is not a mere mental exercise. The courts while reconsidering the decisions rendered long time back particularly under taxing statutes cannot ignore the harm that is likely to happen by unsettling law that had been once settled. We may also note that the Act has been repealed by the that the Act, 1961.The corresponding provisions of the 1961 Act are materially different from the provisions referred to earlier. Under these circumstances we do not think that we would be justified in departing from the interpretation placed by the Madras High Court in Viswanathan Chettiars case, 25 ITR 79 = (AIR 1954 Mad 928 ) (supra) though a different view of the law may be reasonably possible.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: and issued a notice under S. 28 (3) in Form 30 only on March 31, 1954. The assessee contended that the assessment is barred under S. 34 (3). That contention was rejected by the authorities under the Act including the appellate tribunal but on a reference made by the tribunal to the High Court, the High Court following the decision of the Madras High Court in RM. P. R. Viswanathan Chettiar v. Commr. of Income Tax, Madras, 25 ITR 79 - (AlR 1954 Mad 928) accepted the contention of the assessee while giving its advisory opinion on the questions of law referred to it by the appellate tribunal. This appeal is directed against that decision.5. The provisions of law which are material for deciding the point in issue are Ss. 23 and 34 (3) of the Act. Those provisions at the material time read as follows:"23 (1). If the Income-tax Officer is satisfied without requiring the presence of the assessee or the production by him of any evidence that a return made under section 22 is correct and complete, he shall assess the total income of the assessee, and shall determine the sum payable by him on the basis of such return.(2) If the Income-tax Officer is not satisfied without requiring the presence of the person who made the return or the production of evidence that return made under section 22 is correct and complete, he shall serve on such person a notice requiring him, on a date to be therein specified, either to attend at the Income-tax Officers office or to produce, or to cause to be there produced, any evidence on which such person may rely in support of the return.(3) On the day specified m the notice issued under sub-section (2) or as soon afterwards as may be, the Income-tax Officer, after hearing such evidence as such person may produce and such other evidence as the Income-tax officer may require, on specified points, shall by an order in writing, assessee the total income of the assessee, and determine the sum payable by him on the basis of such assessment .(4) If any person fails to make the return required by any notice given under sub-section (2) of section 22 and has not made a return or a revised return under sub-section (3) of the same section or fails to comply with all the terms of a notice issued under sub-section (4) of the same section or, having made a return, fails to comply with all the terms of a notice issued under sub-section (2) of the section, the Income-tax Officer shall make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment.Section 34 (3). No order of assessment under S. 23 to which clause (o) of sub-section (1) of section 28 applies or of assessment or re-assessment in cases falling within clause (a) of subsection (1) of this section shall be made after the expiry of 8 years and no order of assessment or re-assessment in any other case shall be made after the expiry of 4 years from the end of the year in which the income, profits or claims were first assessable.Provided that where a notice under sub-section (1) has been issued within the time therein limited, the assessment or re-assessment to be made in pursuance of such notice may be made before the expiry of one year from the date of the service of the notice even if such period exceeds the period of 8 years or 4 years as the case may be"6. It has been stated over and over again by this Court as well as by the Judicial Committee that the words "assessment" and the "assessee" are used in different places in the Act with different meaning. Therefore in finding out the true meaning of those words in any provision, we have to see to the context in which the word is used and the purpose intended to be achieved. It is true that sub-ss. (1), (3) and (4) of S. 23 require the Income-tax Officer to "assess the total income of the assessee and determine the sum payable by him." In other words in those provisions the word "assess" has been used with reference to computation of the income of the assessee and not the determination of his tax liability. But in S. 34 (3) the word used is not "assess" but "assessment". The question for decision is what is the meaning of that word? As long back as September 24, 1953, the High Court of Madras in Viswanathan Chettiars case, 25 ITR 79 = (AIR 1954 Mad 928 ) (supra) came to the conclusion that the word "assessment" in proviso to S. 34 (3) means not merely the computation of the income of the assessee but also the determination of the tax payable by him. No other High Court has taken a contrary view. The Revenue must have in all these years acted on the basis of that decision of the Madras High Court.Interpretation of a provision in a taxing statute rendered years back and accepted and acted upon by the department should not be easily departed from. It may be that another view of the law is possible but law is not a mere mental exercise. The courts while reconsidering the decisions rendered long time back particularly under taxing statutes cannot ignore the harm that is likely to happen by unsettling law that had been once settled. We may also note that the Act has been repealed by the that the Act, 1961.The corresponding provisions of the 1961 Act are materially different from the provisions referred to earlier. Under these circumstances we do not think that we would be justified in departing from the interpretation placed by the Madras High Court in Viswanathan Chettiars case, 25 ITR 79 = (AIR 1954 Mad 928 ) (supra) though a different view of the law may be reasonably possible. ### Response: 0

National Insurance Co.Ltd Vs. Saroj

adopted by this Court taking note of the prevalent banking rate of interest.12. In fact in Trilok Chands case (supra), after reference to Second Schedule to the Act, it was noticed that the same suffers from many defects. It was pointed out that the same is to serve as a guide, but cannot be said to be invariable ready reckoner. However, the appropriate highest multiplier was held to be 18. The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian Citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirement age.13. Keeping in view the parameters indicated above it would be appropriate to fix the multiplier at 13 and the rate of interest at 6% p.a. The MACT shall work out the entitlements on the aforesaid basis." 13. Reliance has been placed by Dr. Agarwal on a decision of this Court in United India Insurance Co. Ltd. Etc. v. Patricia Jean Mahajan & Ors. [(2002) 6 SCC 281] , wherein multiplier of 10 has been used where the deceased used to get salary in US $. Yet again in The Managing Director, TNSTC Ltd. v. K.I. Bindu & Ors. [(2005) 8 SCC 473] , this Court held : "14. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last." Reliance has also been placed on Tamil Nadu State Transport Corporation Ltd. v. S. Rajapriya and two Ors. [(2005) 6 SCC 236] , wherein it was held : "12. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last." 14. The amount of compensation which is required to be determined by the Tribunal must be just. In certain situations as for example in the case of the death of only son to a mother, no monetary compensation would be sufficient. Whereas the court, while determining the amount of compensation, should consider the amount of monetary loss which had been and would be suffered by the heirs and legal representatives of the deceased, the same should not be a windfall. It is for the aforementioned purpose, not only the take home salary is to be taken into consideration but also other allowance and perks which would have benefited the entire family. [See National Insurance Co. Ltd. v. Indira Srivastava & Ors. [(2008) 2 SCC 763] . 15. The prospective loss of future earnings should also be borne in mind. The quantum of compensation must be determined on certain legal principles. The deceased might have a bright future prospect. He would have been, in normal situation, considered for promotion immediately. Although rigid tests are difficult to be laid down, any kind of hypothesis, as far as possible should be avoided. In Abati Bezbaruah v. Dy. Director General Geological Survey of India & Anr. [(2003) 3 SCC 148] , this Court observed : "11. It is now a well settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation of the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case." In this case, the deceased was a technician employed in a Multinational company. The Tribunal as also the High Court while determining the amount of compensation did not bestow its consideration to future prospects. It is trite that the Court should look into the circumstances of each and every case for arriving at a just compensation. His future prospect has not been taken into consideration. In case of this nature, therefore, we do not think that application of multiplier of 16 was on a higher side. 16. Submission of Mr. Agarwal that the Court should have awarded only the sum claimed by the claimant, in our opinion, is not correct.17. Contention raised on behalf of the appellant that the claimant had not disclosed as to what amount they had received from the insurance company with whom the scooter driven by the deceased was insured cannot be considered by us for the first time as no such contention has been raised before the courts below. The legal representatives of the deceased examined themselves as witnesses. They should have cross-examined on the said question. The insurance company could have found out from other insurance company also as to whether, in fact, a claim had been advanced and whether insurance company paid any amount to them. 1

0[ds]9. It has not been denied or disputed that the multiplier method can be applied for the purpose of determination of the amount of compensation in a motor accident in terms of the provisions of the Motor Vehicles Act, 1988. We have, however, do not mean to suggest that the multiplier specified in the Second Schedule should be appliedthat be so, a question arises as to why the injured claimant and/or heirs and legal representatives of the victim in a case of death on proof of negligence on the part of the driver of a motor vehicle would get a lesser amount than the one specified in the Second Schedule although both are similarly situated. Such a dichotomy, in our opinion, could be resolved by finding the applicability of multiplier in the cases where the victims have suffered injuries resulting in permanent total disablement or permanent partialit is in that view of the matter, there is some sort of a cleavage of opinion in the matter of application of multiplier. Whereas in one set of decisions multiplier specified in the Second Schedule has been applied, in another set of decisions, a lesser multiplier was applied. In either set of the decisions sometimes, no principle of law has been laid down. It is, however, accepted at the Bar that the multiplier specified in the Second Schedule should be taken to be the guidelines.17. Contention raised on behalf of the appellant that the claimant had not disclosed as to what amount they had received from the insurance company with whom the scooter driven by the deceased was insured cannot be considered by us for the first time as no such contention has been raised before the courts below. The legal representatives of the deceased examined themselves as witnesses. They should have cross-examined on the said question. The insurance company could have found out from other insurance company also as to whether, in fact, a claim had been advanced and whether insurance company paid any amount tot be so, a question arises as to why the injured claimant and/or heirs and legal representatives of the victim in a case of death on proof of negligence on the part of the driver of a motor vehicle would get a lesser amount than the one specified in the Second Schedule although both are similarly situated. Such a dichotomy, in our opinion, could be resolved by finding the applicability of multiplier in the cases where the victims have suffered injuries resulting in permanent total disablement or permanent partialit is in that view of the matter, there is some sort of a cleavage of opinion in the matter of application of multiplier. Whereas in one set of decisions multiplier specified in the Second Schedule has been applied, in another set of decisions, a lesser multiplier was applied. In either set of the decisions sometimes, no principle of law has been laid down. It is, however, accepted at the Bar that the multiplier specified in the Second Schedule should be taken to be the guidelines.

### 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: adopted by this Court taking note of the prevalent banking rate of interest.12. In fact in Trilok Chands case (supra), after reference to Second Schedule to the Act, it was noticed that the same suffers from many defects. It was pointed out that the same is to serve as a guide, but cannot be said to be invariable ready reckoner. However, the appropriate highest multiplier was held to be 18. The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian Citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirement age.13. Keeping in view the parameters indicated above it would be appropriate to fix the multiplier at 13 and the rate of interest at 6% p.a. The MACT shall work out the entitlements on the aforesaid basis." 13. Reliance has been placed by Dr. Agarwal on a decision of this Court in United India Insurance Co. Ltd. Etc. v. Patricia Jean Mahajan & Ors. [(2002) 6 SCC 281] , wherein multiplier of 10 has been used where the deceased used to get salary in US $. Yet again in The Managing Director, TNSTC Ltd. v. K.I. Bindu & Ors. [(2005) 8 SCC 473] , this Court held : "14. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last." Reliance has also been placed on Tamil Nadu State Transport Corporation Ltd. v. S. Rajapriya and two Ors. [(2005) 6 SCC 236] , wherein it was held : "12. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last." 14. The amount of compensation which is required to be determined by the Tribunal must be just. In certain situations as for example in the case of the death of only son to a mother, no monetary compensation would be sufficient. Whereas the court, while determining the amount of compensation, should consider the amount of monetary loss which had been and would be suffered by the heirs and legal representatives of the deceased, the same should not be a windfall. It is for the aforementioned purpose, not only the take home salary is to be taken into consideration but also other allowance and perks which would have benefited the entire family. [See National Insurance Co. Ltd. v. Indira Srivastava & Ors. [(2008) 2 SCC 763] . 15. The prospective loss of future earnings should also be borne in mind. The quantum of compensation must be determined on certain legal principles. The deceased might have a bright future prospect. He would have been, in normal situation, considered for promotion immediately. Although rigid tests are difficult to be laid down, any kind of hypothesis, as far as possible should be avoided. In Abati Bezbaruah v. Dy. Director General Geological Survey of India & Anr. [(2003) 3 SCC 148] , this Court observed : "11. It is now a well settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation of the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case." In this case, the deceased was a technician employed in a Multinational company. The Tribunal as also the High Court while determining the amount of compensation did not bestow its consideration to future prospects. It is trite that the Court should look into the circumstances of each and every case for arriving at a just compensation. His future prospect has not been taken into consideration. In case of this nature, therefore, we do not think that application of multiplier of 16 was on a higher side. 16. Submission of Mr. Agarwal that the Court should have awarded only the sum claimed by the claimant, in our opinion, is not correct.17. Contention raised on behalf of the appellant that the claimant had not disclosed as to what amount they had received from the insurance company with whom the scooter driven by the deceased was insured cannot be considered by us for the first time as no such contention has been raised before the courts below. The legal representatives of the deceased examined themselves as witnesses. They should have cross-examined on the said question. The insurance company could have found out from other insurance company also as to whether, in fact, a claim had been advanced and whether insurance company paid any amount to them. 1 ### Response: 0

K. V. Rajalakshmiah Setty & Anr Vs. State Of Mysore And Anr

on which they had taken charge would result in some junior officers being ranked above some senior persons and it was for this reason that Government had ordered the promotion of these 63 persons to take effect from the date of notification irrespective of the dates from which they were put in charge of the sub-divisions. It was also said that the promotion of this batch was subject to the condition that they should be ranked in the order of seniority as per gradation list that obtained just before promotion. This state of affairs continued right up to the date of Reorganisation of the State in November 1956. The affidavit goes on to state that:".... in view of the Re-organisation of the State . .. and the statutory recognition of the position of several officers as on 31-10-1956 it was no longer open to the new Mysore Government to re-open the issue settled in 1949." With regard to the batch of 107 persons it was said that Government had ordered their promotion only from November 1, 1956 and it was not competent to order the same from an earlier date. In regard to the two batches of 32 surveyors and 124 surveyors promoted in 1963 it was said that they were all in charge of sub-divisions from the dates subsequent to November 1, 1956 and there was no difficulty in promoting them from the dates on which they had assumed charge of sub-divisions. According to the State as:".... . these incidents occurred after the Reorganisation and the formation of a new State, the new State of Mysore was perfectly justified in giving effect to their promotions accordingly." 8. With regard to the 63 persons the point of view of the State of Mysore is that the new State which emerged after the Reorganisation of States in 1956 was not competent to interfere with the state of affairs prior to 1-11-1956 and Government had no power to re-open their cases. 9. According to Mr. Iyengar who appeared for the State, assuming that law included executive directions for the purpose of Art. 14 of the Constitution, we have to see: (a) whether there is a rude which has been unevenly applied as among equals; (b) if a principle has been evolved whether it has been unevenly applied and (c) whether there has been an equal treatment in applying executive orders. 10. Mr. Iyengar argued that there was no rule which had been violated in this case nor any principle had been evolved which could be said to have been unevenly applied nor was there any executive order which has been given effect to in different ways in different cases. Mr. Iyengars second submission was that if the 63 persons were to be fixed in the cadre with respect to the dates on which they were first put in charge of sub-divisions the seniority list with regard to the whole cadre of engineers would have to be altered thus affecting persons who are not before us and who would be condemned unheard. His third submission was that giving effect to the contention of the appellants would be projecting Art. 14 to a date before the Constitution came into force and this could not be allowed. He also argued that the appellants had been guilty of laches in making their applications in 1964 when they were really complaining of an order which had been passed as far back as May 17 1950. It was contended that the appellants had been able to give no explanation as to why they did not apply in between the date of the impugned order and the 1st of November 1956 when the Reorganisation of States became effective. 11. Mr. Iyengar further contended that in reality a concession had been shown to some persons and the petitioner-appellants had no legal right to claim such concession. He also argued that giving effect to the contention of the petitioners would be going against S. 115 sub-s. (7) of the States Reorganisation Act 1956. 12. There is some force in some of the contentions put forward on behalf of the State of Mysore. It is not necessary to test them as we find ourselves unable to uphold the contention of the appellants. No doubt some concession had been shown to the first batch of 41 persons and the batches of persons who had come in after the batch of 63 persons also received some concession but after all these were concessions and not something which they could claim as of right. The State of Mysore might have shown some indulgence to this batch of 63 persons but we cannot issue a writ of mandamus commanding it to do so. There was no service rule which the State had transgressed nor has the State evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from surveyors. The indulgence shown to the different batches of persons were really ad hoc and we are not in a position to say what, if any, adhoc indulgence should be meted out to the appellants before us. 13. There is also a good dead of force behind the contention that the appellants are guilty of laches. After the passing of the order of May 17, 1950, they should have made an application within a reasonable time thereafter. Merely because the Chief Engineer had espoused their cause and was writing letters from time to time to the State Government to do something for them did not mean that they could rest upon their oars if they were really being discriminated against. As we cannot hold that the appellants were entitled to any particular indulgence or concession, the only way of meting out equality to all surveyors who had been promoted to the cadre of Assistant Engineers would be to say that promotions should in all cases be effective from the date of the notification. This is obviously beyond our powers.

0[ds]12. There is some force in some of the contentions put forward on behalf of the State of Mysore. It is not necessary to test them as we find ourselves unable to uphold the contention of the appellants. No doubt some concession had been shown to the first batch of 41 persons and the batches of persons who had come in after the batch of 63 persons also received some concession but after all these were concessions and not something which they could claim as of right. The State of Mysore might have shown some indulgence to this batch of 63 persons but we cannot issue a writ of mandamus commanding it to do so. There was no service rule which the State had transgressed nor has the State evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from surveyors. The indulgence shown to the different batches of persons were really ad hoc and we are not in a position to say what, if any, adhoc indulgence should be meted out to the appellants before us13. There is also a good dead of force behind the contention that the appellants are guilty of laches. After the passing of the order of May 17, 1950, they should have made an application within a reasonable time thereafter. Merely because the Chief Engineer had espoused their cause and was writing letters from time to time to the State Government to do something for them did not mean that they could rest upon their oars if they were really being discriminated against. As we cannot hold that the appellants were entitled to any particular indulgence or concession, the only way of meting out equality to all surveyors who had been promoted to the cadre of Assistant Engineers would be to say that promotions should in all cases be effective from the date of the notification. This is obviously beyond our powers8. With regard to the 63 persons the point of view of the State of Mysore is that the new State which emerged after the Reorganisation of States in 1956 was not competent to interfere with the state of affairs prior to6 and Government had no power ton their cases13. There is also a good dead of force behind the contention that the appellants are guilty of laches. After the passing of the order of May 17, 1950, they should have made an application within a reasonable time thereafter. Merely because the Chief Engineer had espoused their cause and was writing letters from time to time to the State Government to do something for them did not mean that they could rest upon their oars if they were really being discriminated against. As we cannot hold that the appellants were entitled to any particular indulgence or concession, the only way of meting out equality to all surveyors who had been promoted to the cadre of Assistant Engineers would be to say that promotions should in all cases be effective from the date of the notification. This is obviously beyond our

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: on which they had taken charge would result in some junior officers being ranked above some senior persons and it was for this reason that Government had ordered the promotion of these 63 persons to take effect from the date of notification irrespective of the dates from which they were put in charge of the sub-divisions. It was also said that the promotion of this batch was subject to the condition that they should be ranked in the order of seniority as per gradation list that obtained just before promotion. This state of affairs continued right up to the date of Reorganisation of the State in November 1956. The affidavit goes on to state that:".... in view of the Re-organisation of the State . .. and the statutory recognition of the position of several officers as on 31-10-1956 it was no longer open to the new Mysore Government to re-open the issue settled in 1949." With regard to the batch of 107 persons it was said that Government had ordered their promotion only from November 1, 1956 and it was not competent to order the same from an earlier date. In regard to the two batches of 32 surveyors and 124 surveyors promoted in 1963 it was said that they were all in charge of sub-divisions from the dates subsequent to November 1, 1956 and there was no difficulty in promoting them from the dates on which they had assumed charge of sub-divisions. According to the State as:".... . these incidents occurred after the Reorganisation and the formation of a new State, the new State of Mysore was perfectly justified in giving effect to their promotions accordingly." 8. With regard to the 63 persons the point of view of the State of Mysore is that the new State which emerged after the Reorganisation of States in 1956 was not competent to interfere with the state of affairs prior to 1-11-1956 and Government had no power to re-open their cases. 9. According to Mr. Iyengar who appeared for the State, assuming that law included executive directions for the purpose of Art. 14 of the Constitution, we have to see: (a) whether there is a rude which has been unevenly applied as among equals; (b) if a principle has been evolved whether it has been unevenly applied and (c) whether there has been an equal treatment in applying executive orders. 10. Mr. Iyengar argued that there was no rule which had been violated in this case nor any principle had been evolved which could be said to have been unevenly applied nor was there any executive order which has been given effect to in different ways in different cases. Mr. Iyengars second submission was that if the 63 persons were to be fixed in the cadre with respect to the dates on which they were first put in charge of sub-divisions the seniority list with regard to the whole cadre of engineers would have to be altered thus affecting persons who are not before us and who would be condemned unheard. His third submission was that giving effect to the contention of the appellants would be projecting Art. 14 to a date before the Constitution came into force and this could not be allowed. He also argued that the appellants had been guilty of laches in making their applications in 1964 when they were really complaining of an order which had been passed as far back as May 17 1950. It was contended that the appellants had been able to give no explanation as to why they did not apply in between the date of the impugned order and the 1st of November 1956 when the Reorganisation of States became effective. 11. Mr. Iyengar further contended that in reality a concession had been shown to some persons and the petitioner-appellants had no legal right to claim such concession. He also argued that giving effect to the contention of the petitioners would be going against S. 115 sub-s. (7) of the States Reorganisation Act 1956. 12. There is some force in some of the contentions put forward on behalf of the State of Mysore. It is not necessary to test them as we find ourselves unable to uphold the contention of the appellants. No doubt some concession had been shown to the first batch of 41 persons and the batches of persons who had come in after the batch of 63 persons also received some concession but after all these were concessions and not something which they could claim as of right. The State of Mysore might have shown some indulgence to this batch of 63 persons but we cannot issue a writ of mandamus commanding it to do so. There was no service rule which the State had transgressed nor has the State evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from surveyors. The indulgence shown to the different batches of persons were really ad hoc and we are not in a position to say what, if any, adhoc indulgence should be meted out to the appellants before us. 13. There is also a good dead of force behind the contention that the appellants are guilty of laches. After the passing of the order of May 17, 1950, they should have made an application within a reasonable time thereafter. Merely because the Chief Engineer had espoused their cause and was writing letters from time to time to the State Government to do something for them did not mean that they could rest upon their oars if they were really being discriminated against. As we cannot hold that the appellants were entitled to any particular indulgence or concession, the only way of meting out equality to all surveyors who had been promoted to the cadre of Assistant Engineers would be to say that promotions should in all cases be effective from the date of the notification. This is obviously beyond our powers. ### Response: 0

Associated Timber Inds. Vs. Central Bank Of India

(1) of Section 6 of the Act. Thus it is abundantly clear that the essence of banking is the relationship which is brought into existence at the time of the deposit into existence at the time of the deposit; that is the core of banking. It is true that the business of banking covers every possible phase or combination of deposit, custody, investment, loan, exchange, issue and transmission of money, creation and transfer of credit and other kindred activities but if the essential characteristic of banking namely the power to receive deposits from the public which are repayable in the manner indicated in Section 5(1)(b) of the Banking Companies Act is absent and merely the power of granting loans is retained and exercised that, in my view does not make the company a banking company. Lending of money may be one phase of a banking business but it is not the main phase or the distinguishing phase." 35. In the case of Reserve Bank of India v. Peerless General Finance and investment Co. Ltd. and others, 1987(1) SCC 424 a Bench of learned two Judges of this Court considered the validity of the provisions of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 made the following observations regarding interpretation of inclusive definition in statute. "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know whey it was enacted. With this knowledge, the statute must be read, first as a whole and then Section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses we must look at the Act as a whole and discover what each Section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression `Prize Chit in Srinivasa 1981(1) SCR 801 and we find no reason to depart from the Courts construction." 2 36. Here we may also take note of the definition of the expression `money-lenders in some other State Money-Lenders Acts. 37. In Bombay Money-Lenders Act, 1946 Section 2 clause (10) provides that money-lender means (I) an individual, or (ii) an undivided Hindu family; or (iiia) a company or (iv) an unincorporated body of individuals, who or which (a) carries on the business of money-lending in the State or (b) has his or its principle place of such business in the State and includes a pawn-broker but does not include - (I) Government (ii) a local authority (iii) a bank(iv) the Agricultural Refinance Corporation constituted under the Agricultural Refinance Corporation Act, 1963; or (v) any other banking financial or any institution which the State Government may, by notification in the Official Gazette, specify in this behalf. 38. The expression `business of money-lending is defined in Section (2) to mean the business of advancing loans whether in cash or kind and whether or not in connection with or in addition to any other business. 39. In Tamil Nadu Money-Lenders Act, 1957 the expression `money lender is defined in Section 2(8) to mean a person whose main or subsidiary occupation is the business of advancing and realizing loans, but excludes a bank or a co-operative society. The explanation to the said Section lays down that where a person who carries on in the (State of Tamil Nadu) the business of advancing and realizing loans is resident outside the State of Tamil Nadu, the agent of such person resident in the State of Tamil Nadu shall be deemed to be the money-lender in respect of that business for the purpose of the Act. 40. In the Bengal Money-Lenders Act, 1940 it is provided that loan means an advance whether of money or in kind, made on condition of repayment with interest and includes any transaction which is in substance a loan but does not include ......(d) a loan advanced before or after the commencement of this Act (I) by a bank; or (ii) by a co-operative life insurance society, co-operative society, insurance company, life assurance company (Life Insurance Corporation of India) mutual insurance company, provident insurance society or provident society or from a provident fund. The term `money-lender is defined in Section 2(13) of that Act to mean a person who carries on the business of money-lending in West Bengal or who has a place of such business in West Bengal and includes a pawnee as defined in Section 172 of the Indian Contract Act, 1872. 41. From the provisions in the other State enactments also it is clear that the legislatures have taken caution to exclude banks from the operations of the statutes presumably with a view to avoid any conflict with the Parliamentary enactment. Unfortunately, the Assam Money-Lenders Act, 1934 does not incorporate any such provision in it. It may be noted here that `banking is covered under item No. 45 in List-I of the Union List of the VII Schedule of the Constitution, while `Money-lending and `Money-Lenders; Relief of Agricultural indebtedness comes under Item 30 of List II - State List of the VIIth Schedule.

0[ds]36. Here we may also take note of the definition of the expressionin some other State. In BombayAct, 1946 Section 2 clause (10) provides thatmeans (I) an individual, or (ii) an undivided Hindu family; or (iiia) a company or (iv) an unincorporated body of individuals, who or which (a) carries on the business ofin the State or (b) has his or its principle place of such business in the State and includes abut does not include(I) Government (ii) a local authority (iii) a bank(iv) the Agricultural Refinance Corporation constituted under the Agricultural Refinance Corporation Act, 1963; or (v) any other banking financial or any institution which the State Government may, by notification in the Official Gazette, specify in this behalf.The expression `business ofis defined in Section (2) to mean the business of advancing loans whether in cash or kind and whether or not in connection with or in addition to any other business.In Tamil NaduAct, 1957 the expression `money lender is defined in Section 2(8) to mean a person whose main or subsidiary occupation is the business of advancing and realizing loans, but excludes a bank or asociety. The explanation to the said Section lays down that where a person who carries on in the (State of Tamil Nadu) the business of advancing and realizing loans is resident outside the State of Tamil Nadu, the agent of such person resident in the State of Tamil Nadu shall be deemed to be thein respect of that business for the purpose of the Act.In the BengalAct, 1940 it is provided that loan means an advance whether of money or in kind, made on condition of repayment with interest and includes any transaction which is in substance a loanbut does not include......(d) a loan advanced before or after the commencement of this Act (I) by a bank; or (ii) by alife insurance society,society, insurance company, life assurance company (Life Insurance Corporation of India) mutual insurance company, provident insurance society or provident society or from a provident fund. The termis defined in Section 2(13) of that Act to mean a person who carries on the business ofin West Bengal or who has a place of such business in West Bengal and includes a pawnee as defined in Section 172 of the Indian Contract Act, 1872.From the provisions in the other State enactments also it is clear that the legislatures have taken caution to exclude banks from the operations of the statutes presumably with a view to avoid any conflict with the Parliamentary enactment. Unfortunately, the AssamAct, 1934 does not incorporate any such provision in it. It may be noted here that `banking is covered under item No. 45 inof the Union List of the VII Schedule of the Constitution, while; Relief of Agricultural indebtedness comes under Item 30 of List IIState List of the VIIth Schedule.

### Instruction: Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case. ### Input: (1) of Section 6 of the Act. Thus it is abundantly clear that the essence of banking is the relationship which is brought into existence at the time of the deposit into existence at the time of the deposit; that is the core of banking. It is true that the business of banking covers every possible phase or combination of deposit, custody, investment, loan, exchange, issue and transmission of money, creation and transfer of credit and other kindred activities but if the essential characteristic of banking namely the power to receive deposits from the public which are repayable in the manner indicated in Section 5(1)(b) of the Banking Companies Act is absent and merely the power of granting loans is retained and exercised that, in my view does not make the company a banking company. Lending of money may be one phase of a banking business but it is not the main phase or the distinguishing phase." 35. In the case of Reserve Bank of India v. Peerless General Finance and investment Co. Ltd. and others, 1987(1) SCC 424 a Bench of learned two Judges of this Court considered the validity of the provisions of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 made the following observations regarding interpretation of inclusive definition in statute. "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know whey it was enacted. With this knowledge, the statute must be read, first as a whole and then Section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses we must look at the Act as a whole and discover what each Section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression `Prize Chit in Srinivasa 1981(1) SCR 801 and we find no reason to depart from the Courts construction." 2 36. Here we may also take note of the definition of the expression `money-lenders in some other State Money-Lenders Acts. 37. In Bombay Money-Lenders Act, 1946 Section 2 clause (10) provides that money-lender means (I) an individual, or (ii) an undivided Hindu family; or (iiia) a company or (iv) an unincorporated body of individuals, who or which (a) carries on the business of money-lending in the State or (b) has his or its principle place of such business in the State and includes a pawn-broker but does not include - (I) Government (ii) a local authority (iii) a bank(iv) the Agricultural Refinance Corporation constituted under the Agricultural Refinance Corporation Act, 1963; or (v) any other banking financial or any institution which the State Government may, by notification in the Official Gazette, specify in this behalf. 38. The expression `business of money-lending is defined in Section (2) to mean the business of advancing loans whether in cash or kind and whether or not in connection with or in addition to any other business. 39. In Tamil Nadu Money-Lenders Act, 1957 the expression `money lender is defined in Section 2(8) to mean a person whose main or subsidiary occupation is the business of advancing and realizing loans, but excludes a bank or a co-operative society. The explanation to the said Section lays down that where a person who carries on in the (State of Tamil Nadu) the business of advancing and realizing loans is resident outside the State of Tamil Nadu, the agent of such person resident in the State of Tamil Nadu shall be deemed to be the money-lender in respect of that business for the purpose of the Act. 40. In the Bengal Money-Lenders Act, 1940 it is provided that loan means an advance whether of money or in kind, made on condition of repayment with interest and includes any transaction which is in substance a loan but does not include ......(d) a loan advanced before or after the commencement of this Act (I) by a bank; or (ii) by a co-operative life insurance society, co-operative society, insurance company, life assurance company (Life Insurance Corporation of India) mutual insurance company, provident insurance society or provident society or from a provident fund. The term `money-lender is defined in Section 2(13) of that Act to mean a person who carries on the business of money-lending in West Bengal or who has a place of such business in West Bengal and includes a pawnee as defined in Section 172 of the Indian Contract Act, 1872. 41. From the provisions in the other State enactments also it is clear that the legislatures have taken caution to exclude banks from the operations of the statutes presumably with a view to avoid any conflict with the Parliamentary enactment. Unfortunately, the Assam Money-Lenders Act, 1934 does not incorporate any such provision in it. It may be noted here that `banking is covered under item No. 45 in List-I of the Union List of the VII Schedule of the Constitution, while `Money-lending and `Money-Lenders; Relief of Agricultural indebtedness comes under Item 30 of List II - State List of the VIIth Schedule. ### Response: 0

Dolphin Offshore Enterprises (India) Ltd Vs. United India Insurance Co. Ltd

The petitioner took Marine Insurance Policy from the respondent in respect of a Jack up Rig Friendly Dolphin-1. The insurance policy covered "loss of or damage to subject matter insured caused by perils of the sea and negligence of Master, Officers, Crew or Pilots". During the currency of the policy, the rig was towed by a tug named m.t. Gurpur" on a voyage from the Port of Nagapattinam to the Port of Chennai. When the rig reached the Port of Chennai, it was found that one of its legs had broken and fell into the sea. The petitioner informed the respondent about this incident on 12.10.1998. The Surveyor appointed by the respondent submitted report dated 25.3.2002 wherein the loss was quantified at Rs.19,85,468/-. However, the Surveyor also found that the petitioner was guilty of violating the terms of the policy. In view of the Surveyors report, the respondent vide its letter dated 30.10.2002, repudiated the claim lodged by the petitioner. For next two years, the petitioner entered into long correspondence with the respondent, but the latter declined to entertain the petitioners claim for compensation.On 25.5.2006, the petitioner filed Complaint No.288/2006, which was allowed by District Consumer Disputes Redressal Forum, South Mumbai (for short, the District Forum).The order of the District Forum was reversed by the State Commission, which opined that the complaint was barred by time and no application had been filed under proviso to Section 24A of the Consumer Protection Act, 1986.The National Commission expressed its agreement with the State Commission and held that the complaint filed by the petitioner was barred by time. We have heard learned counsel for the petitioner and perused the record. In our opinion, the reasons assigned by the State Commission and the National Commission for holding that the complaint was barred by time are correct. It is not in dispute that the claim made by the petitioner was repudiated by the respondent vide communication dated 30.10.2002 and the complaint was filed on 25.05.2006, i.e., after three years and five months of repudiation of the claim. Therefore, there is no escape from the conclusion that the complaint was barred by time. This view finds support from the judgments of this Court in HUDA vs. B.K.Sood (2006) 1 SCC 164 , S.B.I. vs. B.S.Agricultural Industries (I) (2009) 5 SCC 121 , Kandimalla Raghavaiah vs. National Insurance Company (2009) 7 SCC 768 and V.N.Shrikhande (Dr.) vs. Anita Sena Fernandes (2011) 1 SCC 53.

0[ds]In our opinion, the reasons assigned by the State Commission and the National Commission for holding that the complaint was barred by time are correct. It is not in dispute that the claim made by the petitioner was repudiated by the respondent vide communication dated 30.10.2002 and the complaint was filed on 25.05.2006, i.e., after three years and five months of repudiation of the claim. Therefore, there is no escape from the conclusion that the complaint was barred by time. This view finds support from the judgments of this Court in HUDA vs. B.K.Sood (2006) 1 SCC 164 , S.B.I. vs. B.S.Agricultural Industries (I) (2009) 5 SCC 121 , Kandimalla Raghavaiah vs. National Insurance Company (2009) 7 SCC 768 and V.N.Shrikhande (Dr.) vs. Anita Sena Fernandes (2011) 1 SCC 53.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: The petitioner took Marine Insurance Policy from the respondent in respect of a Jack up Rig Friendly Dolphin-1. The insurance policy covered "loss of or damage to subject matter insured caused by perils of the sea and negligence of Master, Officers, Crew or Pilots". During the currency of the policy, the rig was towed by a tug named m.t. Gurpur" on a voyage from the Port of Nagapattinam to the Port of Chennai. When the rig reached the Port of Chennai, it was found that one of its legs had broken and fell into the sea. The petitioner informed the respondent about this incident on 12.10.1998. The Surveyor appointed by the respondent submitted report dated 25.3.2002 wherein the loss was quantified at Rs.19,85,468/-. However, the Surveyor also found that the petitioner was guilty of violating the terms of the policy. In view of the Surveyors report, the respondent vide its letter dated 30.10.2002, repudiated the claim lodged by the petitioner. For next two years, the petitioner entered into long correspondence with the respondent, but the latter declined to entertain the petitioners claim for compensation.On 25.5.2006, the petitioner filed Complaint No.288/2006, which was allowed by District Consumer Disputes Redressal Forum, South Mumbai (for short, the District Forum).The order of the District Forum was reversed by the State Commission, which opined that the complaint was barred by time and no application had been filed under proviso to Section 24A of the Consumer Protection Act, 1986.The National Commission expressed its agreement with the State Commission and held that the complaint filed by the petitioner was barred by time. We have heard learned counsel for the petitioner and perused the record. In our opinion, the reasons assigned by the State Commission and the National Commission for holding that the complaint was barred by time are correct. It is not in dispute that the claim made by the petitioner was repudiated by the respondent vide communication dated 30.10.2002 and the complaint was filed on 25.05.2006, i.e., after three years and five months of repudiation of the claim. Therefore, there is no escape from the conclusion that the complaint was barred by time. This view finds support from the judgments of this Court in HUDA vs. B.K.Sood (2006) 1 SCC 164 , S.B.I. vs. B.S.Agricultural Industries (I) (2009) 5 SCC 121 , Kandimalla Raghavaiah vs. National Insurance Company (2009) 7 SCC 768 and V.N.Shrikhande (Dr.) vs. Anita Sena Fernandes (2011) 1 SCC 53. ### Response: 0

State of U.P. & Another Vs. Johri Mal

of the lawyers to the party in power. Those who do not have such political affinity although competent are not appointed. Legal Remembrancers Manual clearly forbids appointment of such a lawyer and/or if appointed, removal from his office. The District Judge and the District Magistrate, therefore, are duty bound to see that before any recommendation is not made, or any political affinity. They must also bear in mind that the Manual postulates that any lawyer who is guilty of approaching the authorities would not be entitled to be considered for such appointment. 80. The State, therefore, is not expected to rescind the appointments with the change in the Government. The existing panel of the District Government Counsel may not be distributed and a fresh panel come into being, only because a new party has taken over change of the Government. SUBMISSIONS OF BIO-DATA: 81. During hearing of a matter, a question arose as to whether submission of bio data pursuant to issuance of a notice therefor by the District Magistrate or the District Judge would amount to soliciting briefs within the meaning of Rule 36 of the Bar Council of India Rules or not. 82. The question came up for consideration before a Full Bench of the Andhra Pradesh High Court in R. Rajeswar Reddy and others vs. K. Narasimhachari and others [2001 (6) ALT 104 ]. The Court noticed: "15. It may not always be possible for the District and Sessions Judge to have enough time to know all the advocates who are fit to be appointed as Public Prosecutors. He, therefore, may be entitled to consult his colleagues particularly when Additional Public Prosecutors are required to be appointed in their Courts also.16. Before such recommendations are made the District and Sessions Judge and his colleagues, appear to have called for applications for making the things more transparent. It is true the post of the Public Prosecutor occupies a high position in the scheme of criminal justice delivery system. His honesty, impartiality, firmness and other qualities will have to be taken into consideration." 83. Referring to the judgment of this Court in Harpal Singh Chauhan (supra), the High Court held that filing of such applications on the part of the advocate would not attract the vice of Rule 36 as the advocates would not file any application on their own. PROVISO TO PARA 7.03(3): 84. We may also notice that according to Mr. Ranjit Kumar, learned senior counsel, the proviso appended to clause (3) of Para 7.03 is being misused. 85. The proviso evidently was inserted with a noble purpose. Such a provision was evidently made having regard to the fact that an advocate having a deep sense of self-respect may not file any application for his appointment as a District Government Counsel despite calling for applications by the District Magistrate in this behalf. The District Magistrate in a given situation may have to persuade very competent persons to take the offer in public interest as also in the interest of the State. But recourse to the said provision cannot be resorted to for general appointments. The said proviso must be taken recourse to only in very very exceptional cases. Even in relation thereto, consultation with the District Judge should be held to be imperative. CONSULTATION: 86. Keeping in mind the aforementioned legal principles the question which arises for consideration in these appeals is, the nature and extent of consultation a Collector is required to make with the District Judge. 87. The age-old tradition on the part of the State in appointing the District Government Counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the Distinct Judge is supposed to know the merit, competence and capability of the concerned lawyers for discharging their duties the District Magistrate is supposed to know their conduct outside the court vis-Ã -vis the victims of offences, public officers, witnesses etc. The district Magistrate is also supposed to know about the conduct of the Government counsel as also their integrity.88. We are also pained to see that the State of Uttar Pradesh alone had amended sub-section (1) of Section 24 and deleted sub-sections (3), (4) and (5) of Section 24 of the Code of Criminal Procedure. Evidently, the said legislative step had been taken to overcome the decision of this Court in Kumari Shrilekha Vidyarthi (supra). We do not see any rationale in the said action. The learned counsel appearing for the State, when questioned, submitted that such a step had been taken having regard to the fact that exhaustive provisions are laid down in Legal Remembrancer Manual which is a complete code in itself. We see no force in the said submission as a law cannot be substituted by executive instructions which may be subjected to administrative vagaries. The executive instructions can be amended, altered or withdrawn at the whims and caprice of the executive for the party in power. Executive instructions, it is beyond and cavil, do not carry the same status as of a statute.89. The State should bear to mind the dicta of this Court in Mundrika Prasad Singh (supra) as regard the necessity in consult the District Judge. While making appointments of District government Counsel, therefore, the State should give primacy to the opinion of the District Judge. Such a course of action would demonstrate fairness and reasonableness of action and, furthermore, to a large extent the action of the State would not be dubbed as politically motivated or otherwise arbitrary. As noticed hereinbefore, there also does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of the Public prosecutors in the High Court. The said provision being a salutary one, it is expected that the State of U.P. either would suitably amend the same or despite deletion shall consult the High Court with a view to ensure fairness in action. CONCLUSION: 90.

1[ds]It appears that Shri K.S. Rakhra, District Judge, Meerut by his letter dated 11th September, 1998 addressed to the District Magistrate, Meerut although observed that the work and conduct of the respondent was satisfactory and he had not received any complaint in regard to his integrity, but it washowever, agree with your view that the work of the D.G.C. (Crl.) also requires effective control over his team and proper analysis of the result of the trial and follow up action including remedial steps to improve the efficiency of the prosecution as ahave no objection if Shri Johri Mal is replaced by some better and experienced person having good experience of conducting Sessions Trials and also having sufficient administrativevery premise whereupon the High Court has based its decisions, therefore, was incorrect. The impugned judgment, thus, cannot be sustained as it suffers from misdirection in law.52. A Public Prosecutor is not only required to show his professional competence but is also required to discharge certain administrative functions. The District Officer was of the opinion that in a district like Meerut the term of the appointment should not be extended as he has no effective control over the other ADGs for taking steps. The approach of the District Officer cannot be said to be wholly irrational. As noticed hereinbefore, the District Judge, Meerut has also agreed thereto. The action on the part of the State, therefore, cannot be said to be wholly without jurisdiction requiring interference by the High Court in exercise of its power of judicial review.Appointment of the District Government Counsel cannot be equated with the appointments of the High Court and the Supreme Court Judges. A distinction must be made between professional engagement and a holder of high public office. Various doctrines and the provisions of the Constitution which impelled this Court to give meaning of consultation as concurrence and wherein the Chief Justice of India will have a primacy, cannot be held to be applicable in the matter of consultation between the District Magistrate and the District Judge for the purpose of preparation of a panel of the District Government Counsel.57. We would, however, like to lay stress on the fact, that the consultation with the District Judge must be an effective one. The District Judge in turn would be well advised to take his colleagues into confidence so that only meritorious and competent persons who can maintain the standard of public office can be found out.58. The High Court failed to consider that the power under Article 226 of the Constitution of India is not at par with the constitutional jurisdiction conferred upon this Court under Article 142 of the Constitution of India. The High Court has no jurisdiction to direct formulation of a new legal principle or a new procedure which would be contrary to and inconsistent with a statutory provision lie Code of Criminal Procedure. (See State of Himachal Pradesh vs. A Present of a Student of Medical College, Simla and Others [(1985 3 SCC 169] and Asif Hameed and Others vs. State of Jammu & Kashmir and others [1989 Supp (2) SCC 364]).The age-old tradition on the part of the State in appointing the District Government Counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the Distinct Judge is supposed to know the merit, competence and capability of the concerned lawyers for discharging their duties the District Magistrate is supposed to know their conduct outside the court vis-Ã -vis the victims of offences, public officers, witnesses etc. The district Magistrate is also supposed to know about the conduct of the Government counsel as also their integrity.88. We are also pained to see that the State of Uttar Pradesh alone had amended sub-section (1) of Section 24 and deleted sub-sections (3), (4) and (5) of Section 24 of the Code of Criminal Procedure. Evidently, the said legislative step had been taken to overcome the decision of this Court in Kumari Shrilekha Vidyarthi (supra). We do not see any rationale in the said action. The learned counsel appearing for the State, when questioned, submitted that such a step had been taken having regard to the fact that exhaustive provisions are laid down in Legal Remembrancer Manual which is a complete code in itself. We see no force in the said submission as a law cannot be substituted by executive instructions which may be subjected to administrative vagaries. The executive instructions can be amended, altered or withdrawn at the whims and caprice of the executive for the party in power. Executive instructions, it is beyond and cavil, do not carry the same status as of a statute.89. The State should bear to mind the dicta of this Court in Mundrika Prasad Singh (supra) as regard the necessity in consult the District Judge. While making appointments of District government Counsel, therefore, the State should give primacy to the opinion of the District Judge. Such a course of action would demonstrate fairness and reasonableness of action and, furthermore, to a large extent the action of the State would not be dubbed as politically motivated or otherwise arbitrary. As noticed hereinbefore, there also does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of the Public prosecutors in the High Court. The said provision being a salutary one, it is expected that the State of U.P. either would suitably amend the same or despite deletion shall consult the High Court with a view to ensure fairness in action.Acting pursuant to or in furtherance of the aforementioned recommendations of the District Judges, the District Magistrate in terms of his letter dated 12.9.1998 addressed to the Principal Secretary, Justice and Legal Remembrancer, Government of Uttar Pradesh, Lucknow stated,is submitted in aforesaid matter that Sri Johri Mal, Advocate, was engaged on the post of District Government Counsel (criminal), Meerut for the term upto 14.9.98 as per the order No. D 1880 [1] Seven-Judicial 3[42]/90 dated 17.9.97. After the term of Shri Johri Mal comes to an end, the post of District Government Counsel [Criminal] shall fall vacant w.e.f. 15.9.98. On analysis of work of Shri Johri Mal in a year, I felt that it shall not be proper to extend the period of Sri Johri Mal as District Government Council [Criminal] in a district like Meerut. He has no effective control over other ADGC for doing pairvi [taking steps]. Even necessary particulars are not collected for doing parvi. In order to make prosecutive more effective it was decided that three important cases be determined regular dated be fixed and same be got decided at the earliest, but such action could not be done effectively due to lack of co-ordination with the judicial officers. In toto his term as the District Government Counsel cannot be held as proper and satisfactory. District Judge has also consented to engage other appropriate D.G.C. at the place of Johri Mal and letter of opinion of the District Judge is enclosed.We may notice that one Shri Narendra Deo Chaubey, Under Secretary, Law Department, Government of Uttar Pradesh, Lucknow affirmed an affidavit in support of its application for recalling of the Order dated 11th December,

### 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: of the lawyers to the party in power. Those who do not have such political affinity although competent are not appointed. Legal Remembrancers Manual clearly forbids appointment of such a lawyer and/or if appointed, removal from his office. The District Judge and the District Magistrate, therefore, are duty bound to see that before any recommendation is not made, or any political affinity. They must also bear in mind that the Manual postulates that any lawyer who is guilty of approaching the authorities would not be entitled to be considered for such appointment. 80. The State, therefore, is not expected to rescind the appointments with the change in the Government. The existing panel of the District Government Counsel may not be distributed and a fresh panel come into being, only because a new party has taken over change of the Government. SUBMISSIONS OF BIO-DATA: 81. During hearing of a matter, a question arose as to whether submission of bio data pursuant to issuance of a notice therefor by the District Magistrate or the District Judge would amount to soliciting briefs within the meaning of Rule 36 of the Bar Council of India Rules or not. 82. The question came up for consideration before a Full Bench of the Andhra Pradesh High Court in R. Rajeswar Reddy and others vs. K. Narasimhachari and others [2001 (6) ALT 104 ]. The Court noticed: "15. It may not always be possible for the District and Sessions Judge to have enough time to know all the advocates who are fit to be appointed as Public Prosecutors. He, therefore, may be entitled to consult his colleagues particularly when Additional Public Prosecutors are required to be appointed in their Courts also.16. Before such recommendations are made the District and Sessions Judge and his colleagues, appear to have called for applications for making the things more transparent. It is true the post of the Public Prosecutor occupies a high position in the scheme of criminal justice delivery system. His honesty, impartiality, firmness and other qualities will have to be taken into consideration." 83. Referring to the judgment of this Court in Harpal Singh Chauhan (supra), the High Court held that filing of such applications on the part of the advocate would not attract the vice of Rule 36 as the advocates would not file any application on their own. PROVISO TO PARA 7.03(3): 84. We may also notice that according to Mr. Ranjit Kumar, learned senior counsel, the proviso appended to clause (3) of Para 7.03 is being misused. 85. The proviso evidently was inserted with a noble purpose. Such a provision was evidently made having regard to the fact that an advocate having a deep sense of self-respect may not file any application for his appointment as a District Government Counsel despite calling for applications by the District Magistrate in this behalf. The District Magistrate in a given situation may have to persuade very competent persons to take the offer in public interest as also in the interest of the State. But recourse to the said provision cannot be resorted to for general appointments. The said proviso must be taken recourse to only in very very exceptional cases. Even in relation thereto, consultation with the District Judge should be held to be imperative. CONSULTATION: 86. Keeping in mind the aforementioned legal principles the question which arises for consideration in these appeals is, the nature and extent of consultation a Collector is required to make with the District Judge. 87. The age-old tradition on the part of the State in appointing the District Government Counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the Distinct Judge is supposed to know the merit, competence and capability of the concerned lawyers for discharging their duties the District Magistrate is supposed to know their conduct outside the court vis-Ã -vis the victims of offences, public officers, witnesses etc. The district Magistrate is also supposed to know about the conduct of the Government counsel as also their integrity.88. We are also pained to see that the State of Uttar Pradesh alone had amended sub-section (1) of Section 24 and deleted sub-sections (3), (4) and (5) of Section 24 of the Code of Criminal Procedure. Evidently, the said legislative step had been taken to overcome the decision of this Court in Kumari Shrilekha Vidyarthi (supra). We do not see any rationale in the said action. The learned counsel appearing for the State, when questioned, submitted that such a step had been taken having regard to the fact that exhaustive provisions are laid down in Legal Remembrancer Manual which is a complete code in itself. We see no force in the said submission as a law cannot be substituted by executive instructions which may be subjected to administrative vagaries. The executive instructions can be amended, altered or withdrawn at the whims and caprice of the executive for the party in power. Executive instructions, it is beyond and cavil, do not carry the same status as of a statute.89. The State should bear to mind the dicta of this Court in Mundrika Prasad Singh (supra) as regard the necessity in consult the District Judge. While making appointments of District government Counsel, therefore, the State should give primacy to the opinion of the District Judge. Such a course of action would demonstrate fairness and reasonableness of action and, furthermore, to a large extent the action of the State would not be dubbed as politically motivated or otherwise arbitrary. As noticed hereinbefore, there also does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of the Public prosecutors in the High Court. The said provision being a salutary one, it is expected that the State of U.P. either would suitably amend the same or despite deletion shall consult the High Court with a view to ensure fairness in action. CONCLUSION: 90. ### Response: 1

Madhya Pradesh Ration Vikreta Sanghsociety & Ors. Etc. Etc Vs. State Of Madhya Pradesh & Anr

now well settled .. that Art. 14 strikes at arbitrariness in State action and ensure fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non- discriminatory; it must not b e guided by any extraneous or irrelevant considerations, because that would be denial of equality.. The State cannot, therefore. act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non-discriminatory.The observations made by Bhagwati, J. in the Airport Authority case (supra) have been quoted with approval in Kasturi Lal v. State of J &K(2).9. It is true that according to the rule laid down in the Airport Authority case (supra) if governmental action disclosed arbitrariness, it would be liable to be invalidated as offending against Art. 14. There can be no quarrel wit h the principles laid down in that case, but the difficulty is about the application of those principles to the facts and circumstances of the present case. We have given a brief outline of the impugned scheme and it cannot be said that it suffer s from arbitrariness or is irrational to the object sought to be achieved.10. The State Government after due deliberation, took a responsible decision to run the fair price shops directly, being satisfied that it was necessary so to do with the object of distributing foodstuffs at fair prices to the consumers, after taking into consideration the fact that the earlier experiment of running these shops through retail dealers was an utter failure. The scheme has been designed by the State Government by executive action under Art 162 of the Constitution with a view to ensuring equitable distribution of foodstuffs at fair prices. As already stated, the Court has found in the Sarkari Sasta Anaj Vikreta Sangh c ase (supra), the entire system of distribution of foodstuffs had collapsed and had become wholly unworkable due to flagrant violations of the provisions of the Control order by the retail dealers. The action of the State Gove rnment hl entrusting the distribution of foodstuffs to consumers cooperative societies, though drastic, was an inevitable step taken in the interests of the general public. The State Government was not bound to give the fair price s hops to the retail dealers under a Government scheme. The governmental action in giving preference to consumers cooperative societies cannot be construed to be arbitrary, irrational or irrelevant. The impugned scheme does not confer arbitr ary or uncanalised power on the Collector in the matter of grant or refusal of applications for appointment as agents for the purpose of running fair price shops. The scheme lays down detailed guidelines regulating the manner of grant or refus al of such applications.11. The wider concept of equality before the law and the equal protection of laws is that there shall be equality among equals. Even among equals there can be unequal treatment based on an intelligible differenti a having a rational relation to the objects sought to be achieved. Consumers cooperative societies form a distinct class by themselves. Benefits and concessions granted to them ultimately benefit persons of small means and promote social justice in accordance with the directive principles. There is an intelligible differentia between the retail dealers who are nothing but traders and consumers cooperative societies. The position would have been different if there was a mono poly created in favour of the later. The scheme only envisages a rule of preference. The formulation of the scheme does not exclude the retail traders from making an application for appointment as agents. It is, however, urged that the impugned sche me is not being implemented as to carry out its avowed object. It was said that there was arbitrariness in selection of cooperative societies of all descriptions, not necessarily consumers cooperative societies. There is no merit in the contention that there was preferential treatment given to cooperative societies in the matter of allotment of fair price shops. Our attention was drawn to the fact that a fair price shop has been allotted to Adhivakta (Advocates) Sangh, Jabalp ur. Advocates are also consumers and where is nothing to prevent them from forming a consumers cooperative society for lawyers as a class if they fulfil the conditions laid down in the law. We have no reason to think that the State Governme nt was not actuated with the best of intentions in bringing about a change in the system of distribution of foodstuffs through fair price shops12. The question whether fair price shops in the State of Madhya Pradesh under a Government scheme sho uld be directly run by the Government through the instrumentality of consumers cooperative societies as its agents or by retail dealers to be appointed by the Collector under cl. 3 of the Control order, is essentially a matter of policy with wh ich the Court is not concerned. The learned counsel for the State reiterated the assurance given in the Sarkari Sasta Anaj Vikreta Sangh case (supra), as was done by the learned Advocate General before the High Court, that by the expressi on "cooperative societies" hl the scheme, the Government intended and meant "consumers cooperative societies", and that if by mistake there was a wrong allotment made to a cooperative society which was not a "consumers cooperative society, the Government would take steps to cancel the allotment.13. The constitutionality of the impugned scheme is also challenged as abridging Art. 19(1)(g) of the Constitution. The short answer to the challenge is that the scheme in no way infringes the petitioners right to carry on their- trade in foodgrains. They are free to carry on business as wholesale or retail dealers in foodgrains by taking out licences under the Madhya Pradesh Foodgrains (Licensing) order, 1964. There is no fundamental right in any one to be appointed as an agent of a fair price shop under Government Scheme.14.

0[ds]The validity of the impugned scheme has been unheld by this Court in Sarkari Sasta Anaj Vikreta Sangh, Tehsil Bamatra and Ors. v. State of Madhya Pradesh and Ors. decided on August 26, 1981. The main challenge was that the scheme created a monopoly in trade in favour of cooperative societies and was thus violative o f Arts. 14 and 19 (1) (g) of the Constitution. This Court, agreeing with the High Court, rejected the contention in view of Mannalal Jain v. State of Assam and Ors.(1) In that case, the question was whether cl. 5 (e) Of the Assam Foodgrains ( Licensing and Control) order, 1961, which provided for giving preference to cooperative societies created a monopoly in trade in favour of cooperative societies. On a construction of cl. 5 (e) which merely embodied a rule of preference in favour of cooperative societies, this Court in Mannalal Jains case(supra) held that cl. 5 (e) did not have the effect of creating a monopoly in favour of cooperative societies. In upholding the validity of cl. S (e), the Court obe are of the view that by reason of the position which cooperative societies may occupy in the village economy of a particular area, it cannot be laid down as a general proposition that(e) of cl. 5 of the Control order, 1961, is unrelated to the objects mentioned in s. 3 ofthe Essential Commodities Act, 1955 There may be places or areas where cooperative societies are in a better position for maintaining or increasing supplies of rice and paddy and even for securing their equitable distribution and availability at fair prices.The Court, therefore, repelled the contention that cl. 5 (e) had no relation whatever to the objects mentioned in s. 3 of t he Act and went on to(e) of cl. 5, we have already stated, enables the licensing authority to give preference to a cooperative society in certain circumstances; but it does not create a monopoly in favour of cooperative societies. The preference given has a reasonable relation to the objects of the legislation set out in s. 3 of thethe Sarkari Sasta, Anaj Vikreta Sangh case the impugned scheme was also challenged on various other grounds but the court negatived all the contentions raised and we need not refer to them as they are not really relevant for our purposes. Suffice it to say, the Court pointed out that the scheme had been framed by the State Government in exercise of its executive function under Art. 162 of the Constitution; that under the scheme the fair price shops were to be run by consumers cooperative societies; that the scheme was framed by the State Government in public interest With a view to securing equitable distribution of foodgrains at fair prices to the consumers, that the rule of preference to cooperative societies does not create a monopoly in trade and is, therefore, not violative of the petitioners fundamental rights under Arts. 14 and 19(1)(g) of the Constitution; and that no one had a fundamental right to be appointed a Government agent for running a fair price shop which was a matter of grant of privilege. The validity of the impugned scheme has, therefore, been upheld in all its aspects.It is now well settled .. that Art. 14 strikes at arbitrariness in State action and ensure fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is nondiscriminatory; it must not b e guided by any extraneous or irrelevant considerations, because that would be denial of equality.. The State cannot, therefore. act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational andobservations made by Bhagwati, J. in the Airport Authority case (supra) have been quoted with approval in Kasturi Lal v. State of J &K(2).It is true that according to the rule laid down in the Airport Authority case (supra) if governmental action disclosed arbitrariness, it would be liable to be invalidated as offending against Art. 14. There can be no quarrel wit h the principles laid down in that case, but the difficulty is about the application of those principles to the facts and circumstances of the present case. We have given a brief outline of the impugned scheme and it cannot be said that it suffer s from arbitrariness or is irrational to the object sought to be achieved.The State Government after due deliberation, took a responsible decision to run the fair price shops directly, being satisfied that it was necessary so to do with the object of distributing foodstuffs at fair prices to the consumers, after taking into consideration the fact that the earlier experiment of running these shops through retail dealers was an utter failure. The scheme has been designed by the State Government by executive action under Art 162 of the Constitution with a view to ensuring equitable distribution of foodstuffs at fair prices. As already stated, the Court has found in the Sarkari Sasta Anaj Vikreta Sangh c ase (supra), the entire system of distribution of foodstuffs had collapsed and had become wholly unworkable due to flagrant violations of the provisions of the Control order by the retail dealers. The action of the State Gove rnment hl entrusting the distribution of foodstuffs to consumers cooperative societies, though drastic, was an inevitable step taken in the interests of the general public. The State Government was not bound to give the fair price s hops to the retail dealers under a Government scheme. The governmental action in giving preference to consumers cooperative societies cannot be construed to be arbitrary, irrational or irrelevant. The impugned scheme does not confer arbitr ary or uncanalised power on the Collector in the matter of grant or refusal of applications for appointment as agents for the purpose of running fair price shops. The scheme lays down detailed guidelines regulating the manner of grant or refus al of suchwider concept of equality before the law and the equal protection of laws is that there shall be equality among equals. Even among equals there can be unequal treatment based on an intelligible differenti a having a rational relation to the objects sought to be achieved. Consumers cooperative societies form a distinct class by themselves. Benefits and concessions granted to them ultimately benefit persons of small means and promote social justice in accordance with the directive principles. There is an intelligible differentia between the retail dealers who are nothing but traders and consumers cooperative societies. The position would have been different if there was a mono poly created in favour of the later. The scheme only envisages a rule of preference. The formulation of the scheme does not exclude the retail traders from making an application for appointment as agents. It is, however, urged that the impugned sche me is not being implemented as to carry out its avowed object. It was said that there was arbitrariness in selection of cooperative societies of all descriptions, not necessarily consumers cooperative societies. There is no merit in the contention that there was preferential treatment given to cooperative societies in the matter of allotment of fair price shops. Our attention was drawn to the fact that a fair price shop has been allotted to Adhivakta (Advocates) Sangh, Jabalp ur. Advocates are also consumers and where is nothing to prevent them from forming a consumers cooperative society for lawyers as a class if they fulfil the conditions laid down in the law. We have no reason to think that the State Governme nt was not actuated with the best of intentions in bringing about a change in the system of distribution of foodstuffs through fair pricequestion whether fair price shops in the State of Madhya Pradesh under a Government scheme sho uld be directly run by the Government through the instrumentality of consumers cooperative societies as its agents or by retail dealers to be appointed by the Collector under cl. 3 of the Control order, is essentially a matter of policy with wh ich the Court is not concerned. The learned counsel for the State reiterated the assurance given in the Sarkari Sasta Anaj Vikreta Sangh case (supra), as was done by the learned Advocate General before the High Court, that by the expressi on "cooperative societies" hl the scheme, the Government intended and meant "consumers cooperative societies", and that if by mistake there was a wrong allotment made to a cooperative society which was not a "consumers cooperative society, the Government would take steps to cancel theshort answer to the challenge is that the scheme in no way infringes the petitioners right to carry on theirtrade in foodgrains. They are free to carry on business as wholesale or retail dealers in foodgrains by taking out licences under the Madhya Pradesh Foodgrains (Licensing) order, 1964. There is no fundamental right in any one to be appointed as an agent of a fair price shop under Government Scheme.

### 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: now well settled .. that Art. 14 strikes at arbitrariness in State action and ensure fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non- discriminatory; it must not b e guided by any extraneous or irrelevant considerations, because that would be denial of equality.. The State cannot, therefore. act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non-discriminatory.The observations made by Bhagwati, J. in the Airport Authority case (supra) have been quoted with approval in Kasturi Lal v. State of J &K(2).9. It is true that according to the rule laid down in the Airport Authority case (supra) if governmental action disclosed arbitrariness, it would be liable to be invalidated as offending against Art. 14. There can be no quarrel wit h the principles laid down in that case, but the difficulty is about the application of those principles to the facts and circumstances of the present case. We have given a brief outline of the impugned scheme and it cannot be said that it suffer s from arbitrariness or is irrational to the object sought to be achieved.10. The State Government after due deliberation, took a responsible decision to run the fair price shops directly, being satisfied that it was necessary so to do with the object of distributing foodstuffs at fair prices to the consumers, after taking into consideration the fact that the earlier experiment of running these shops through retail dealers was an utter failure. The scheme has been designed by the State Government by executive action under Art 162 of the Constitution with a view to ensuring equitable distribution of foodstuffs at fair prices. As already stated, the Court has found in the Sarkari Sasta Anaj Vikreta Sangh c ase (supra), the entire system of distribution of foodstuffs had collapsed and had become wholly unworkable due to flagrant violations of the provisions of the Control order by the retail dealers. The action of the State Gove rnment hl entrusting the distribution of foodstuffs to consumers cooperative societies, though drastic, was an inevitable step taken in the interests of the general public. The State Government was not bound to give the fair price s hops to the retail dealers under a Government scheme. The governmental action in giving preference to consumers cooperative societies cannot be construed to be arbitrary, irrational or irrelevant. The impugned scheme does not confer arbitr ary or uncanalised power on the Collector in the matter of grant or refusal of applications for appointment as agents for the purpose of running fair price shops. The scheme lays down detailed guidelines regulating the manner of grant or refus al of such applications.11. The wider concept of equality before the law and the equal protection of laws is that there shall be equality among equals. Even among equals there can be unequal treatment based on an intelligible differenti a having a rational relation to the objects sought to be achieved. Consumers cooperative societies form a distinct class by themselves. Benefits and concessions granted to them ultimately benefit persons of small means and promote social justice in accordance with the directive principles. There is an intelligible differentia between the retail dealers who are nothing but traders and consumers cooperative societies. The position would have been different if there was a mono poly created in favour of the later. The scheme only envisages a rule of preference. The formulation of the scheme does not exclude the retail traders from making an application for appointment as agents. It is, however, urged that the impugned sche me is not being implemented as to carry out its avowed object. It was said that there was arbitrariness in selection of cooperative societies of all descriptions, not necessarily consumers cooperative societies. There is no merit in the contention that there was preferential treatment given to cooperative societies in the matter of allotment of fair price shops. Our attention was drawn to the fact that a fair price shop has been allotted to Adhivakta (Advocates) Sangh, Jabalp ur. Advocates are also consumers and where is nothing to prevent them from forming a consumers cooperative society for lawyers as a class if they fulfil the conditions laid down in the law. We have no reason to think that the State Governme nt was not actuated with the best of intentions in bringing about a change in the system of distribution of foodstuffs through fair price shops12. The question whether fair price shops in the State of Madhya Pradesh under a Government scheme sho uld be directly run by the Government through the instrumentality of consumers cooperative societies as its agents or by retail dealers to be appointed by the Collector under cl. 3 of the Control order, is essentially a matter of policy with wh ich the Court is not concerned. The learned counsel for the State reiterated the assurance given in the Sarkari Sasta Anaj Vikreta Sangh case (supra), as was done by the learned Advocate General before the High Court, that by the expressi on "cooperative societies" hl the scheme, the Government intended and meant "consumers cooperative societies", and that if by mistake there was a wrong allotment made to a cooperative society which was not a "consumers cooperative society, the Government would take steps to cancel the allotment.13. The constitutionality of the impugned scheme is also challenged as abridging Art. 19(1)(g) of the Constitution. The short answer to the challenge is that the scheme in no way infringes the petitioners right to carry on their- trade in foodgrains. They are free to carry on business as wholesale or retail dealers in foodgrains by taking out licences under the Madhya Pradesh Foodgrains (Licensing) order, 1964. There is no fundamental right in any one to be appointed as an agent of a fair price shop under Government Scheme.14. ### Response: 0

M/S Mysodet (P) Ltd Vs. Commr.Of Income Tax,Bangalore

stated that Section 80HHC falls under Chapter VI-A which refers to deductions to be made in computing total income. Under Section 80A it is inter alia provided that in computing total income of an assessee, there shall be allowed from his gross total income deductions specified in Section 80C to 80U. It is further provided that the aggregate amount of deductions under Chapter VI-A shall not exceed the gross total income of the assessee. In our opinion, Section 80A governs Section 80HHC which deals with deductions in respect of profits retained for export business. At this stage we may also note that the head note to Section 80HHC refers to deduction in respect of profits retained for export business. It is not profits retained from export business. Moreover, prior to 1.4.86 Section 80HHC referred to deduction in respect of export turnover. That phraseology has been changed later on. We are concerned with the Assessment Year 1990-91. Keeping in view the above analysis we have to interpret Section 80HHC(3). At this stage it may be noted that eligibility for deduction is contemplated by Section 80HHC(1) whereas quantum of deduction is determined under Section 80HHC(3). In the matter of determining the quantum of deduction, the "principle of proportionality" applies. There are two situations which are covered by Section 80HHC(3), namely, turnover only from export sales and, secondly, turnover from composite sales (domestic and export business). In both cases the formula applies as under: - S. 80HHC concession = export profits = profits of business x Export T.O. Total T.O. In the first situation where the business of the assessee is only in terms of exports exclusively, the profits of business has to be multiplied by 1/1. However, when it comes to composite business the profits of business in the above formula has to multiplied by two different figures in the denominator and nominator. This calculation has been correctly done by the I.T.O. as indicated hereinabove. The I.T.O. took into account the business income at Rs.55,31,941/- to which he correctly applies the ratio of Rs.90,91,063/Rs.3,81,01,941. In the case of composite business, as stated above, the figure of export turnover is quite different from total turnover. The entire object for applying the principle of proportionality is to derive export profits from total business profits. As stated above, this formula applies both under Section 80HHC(3)(a) as well as 80HHC(3)(b). 6. In the present case, it appears that the High Court has decided the matter against the assessee overruling the decision of the Tribunal by placing reliance on the judgment of this Court in IPCA Laboratory Ltd. (supra). In our view the High Court could not have relied upon the judgment of this Court in IPCA Laboratory Ltd. (supra) for two reasons. Firstly, Section 80HHC(3) has undergone amendments 11 times. We are concerned with the initial period when the above formula was simplistically stated. Later on that formula has undergone a change by several amendments. IPCA Laboratory Ltd. was concerned with the Assessment Year 1996-97. By that time the formula had undergone a change. By that time the concept of adjusted export turnover, adjusted profits of business and adjusted total turnover had come into play. Therefore, the High Court had erred in relying upon the judgment of this Court in IPCA Laboratory Ltd. (supra). Secondly, in the present case we are concerned with the Assessment Year 1990-91. At that time the above formula existed. On 5.7.1990 CBDT had issued a circular No.564. We quote herein below paras 4, 6 and 9. "4. Sub-section (3) of section 80HHC statutorily fixes the quantum of deduction on the basis of a proportion of the profits of business under the head "Profits and gains of business or profession" irrespective of what could strictly be described as "profits derived from the export of goods or merchandise out of India". The deduction is computed in the following manner: - Profit of the business x Export turnover ------------------------------------- Total turnover 6. The term "export turnover" under the existing provisions, means the sale proceeds (excluding freight and insurance) receivable by the assessee in convertible foreign exchange. In other words, the FOB value of exports. The Finance Act, 1990 has restricted the definition of the term "export turnover" to mean FOB sale proceeds actually received by the assessee in convertible foreign exchange within six months of the end of the previous year or within such further period as the Chief Commissioner/Commissioner may allow in this regard. 9. Thus, in the case of an assessee who is doing export business exclusively, "export turnover and total turnover" would be identical, if the entire sale proceeds are brought into India in convertible foreign exchange within the prescribed time limit. In that case, the entire profit under the head "Profits and gains of business or profession" (which will include the three export (incentives) will be deductible under Section 80HHC. However, in order to arrive at the amount deductible under Section 80HHC in the case of an assessee doing export business as well as some other domestic business, the fraction of "export turnover" to "total turnover", will be applied to his profits computed under the head "Profits and gains of business or profession", (which again will include the three export incentives). The operation of section 80HHC read with section 28, as amended by the Finance Act, 1990, can be illustrated by way of the following examples: TABLE The above Circular indicates vide Para 4 of the Circular that Section 80HHC(3) statutorily fixes the quantum of deduction on the basis of a proportion of business profits under the head "profits and gains of business or profession" irrespective of what could strictly be described as profits derived from export of goods out of India. Even in clause 9 the illustration given indicates that the ratio mentioned in sub-Section (3) has to be applied to business profits computed under the provisions of Sections 28 to 43D of the Income Tax Act. This Circular supports the reasoning given by us in our judgment hereinabove.

1[ds]The above Circular indicates vide Para 4 of the Circular that Section 80HHC(3) statutorily fixes the quantum of deduction on the basis of a proportion of business profits under the head "profits and gains of business or profession" irrespective of what could strictly be described as profits derived from export of goods out of India. Even in clause 9 the illustration given indicates that the ratio mentioned in(3) has to be applied to business profits computed under the provisions of Sections 28 to 43D of the Income Tax Act. This Circular supports the reasoning given by us in our judgment hereinabove.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: stated that Section 80HHC falls under Chapter VI-A which refers to deductions to be made in computing total income. Under Section 80A it is inter alia provided that in computing total income of an assessee, there shall be allowed from his gross total income deductions specified in Section 80C to 80U. It is further provided that the aggregate amount of deductions under Chapter VI-A shall not exceed the gross total income of the assessee. In our opinion, Section 80A governs Section 80HHC which deals with deductions in respect of profits retained for export business. At this stage we may also note that the head note to Section 80HHC refers to deduction in respect of profits retained for export business. It is not profits retained from export business. Moreover, prior to 1.4.86 Section 80HHC referred to deduction in respect of export turnover. That phraseology has been changed later on. We are concerned with the Assessment Year 1990-91. Keeping in view the above analysis we have to interpret Section 80HHC(3). At this stage it may be noted that eligibility for deduction is contemplated by Section 80HHC(1) whereas quantum of deduction is determined under Section 80HHC(3). In the matter of determining the quantum of deduction, the "principle of proportionality" applies. There are two situations which are covered by Section 80HHC(3), namely, turnover only from export sales and, secondly, turnover from composite sales (domestic and export business). In both cases the formula applies as under: - S. 80HHC concession = export profits = profits of business x Export T.O. Total T.O. In the first situation where the business of the assessee is only in terms of exports exclusively, the profits of business has to be multiplied by 1/1. However, when it comes to composite business the profits of business in the above formula has to multiplied by two different figures in the denominator and nominator. This calculation has been correctly done by the I.T.O. as indicated hereinabove. The I.T.O. took into account the business income at Rs.55,31,941/- to which he correctly applies the ratio of Rs.90,91,063/Rs.3,81,01,941. In the case of composite business, as stated above, the figure of export turnover is quite different from total turnover. The entire object for applying the principle of proportionality is to derive export profits from total business profits. As stated above, this formula applies both under Section 80HHC(3)(a) as well as 80HHC(3)(b). 6. In the present case, it appears that the High Court has decided the matter against the assessee overruling the decision of the Tribunal by placing reliance on the judgment of this Court in IPCA Laboratory Ltd. (supra). In our view the High Court could not have relied upon the judgment of this Court in IPCA Laboratory Ltd. (supra) for two reasons. Firstly, Section 80HHC(3) has undergone amendments 11 times. We are concerned with the initial period when the above formula was simplistically stated. Later on that formula has undergone a change by several amendments. IPCA Laboratory Ltd. was concerned with the Assessment Year 1996-97. By that time the formula had undergone a change. By that time the concept of adjusted export turnover, adjusted profits of business and adjusted total turnover had come into play. Therefore, the High Court had erred in relying upon the judgment of this Court in IPCA Laboratory Ltd. (supra). Secondly, in the present case we are concerned with the Assessment Year 1990-91. At that time the above formula existed. On 5.7.1990 CBDT had issued a circular No.564. We quote herein below paras 4, 6 and 9. "4. Sub-section (3) of section 80HHC statutorily fixes the quantum of deduction on the basis of a proportion of the profits of business under the head "Profits and gains of business or profession" irrespective of what could strictly be described as "profits derived from the export of goods or merchandise out of India". The deduction is computed in the following manner: - Profit of the business x Export turnover ------------------------------------- Total turnover 6. The term "export turnover" under the existing provisions, means the sale proceeds (excluding freight and insurance) receivable by the assessee in convertible foreign exchange. In other words, the FOB value of exports. The Finance Act, 1990 has restricted the definition of the term "export turnover" to mean FOB sale proceeds actually received by the assessee in convertible foreign exchange within six months of the end of the previous year or within such further period as the Chief Commissioner/Commissioner may allow in this regard. 9. Thus, in the case of an assessee who is doing export business exclusively, "export turnover and total turnover" would be identical, if the entire sale proceeds are brought into India in convertible foreign exchange within the prescribed time limit. In that case, the entire profit under the head "Profits and gains of business or profession" (which will include the three export (incentives) will be deductible under Section 80HHC. However, in order to arrive at the amount deductible under Section 80HHC in the case of an assessee doing export business as well as some other domestic business, the fraction of "export turnover" to "total turnover", will be applied to his profits computed under the head "Profits and gains of business or profession", (which again will include the three export incentives). The operation of section 80HHC read with section 28, as amended by the Finance Act, 1990, can be illustrated by way of the following examples: TABLE The above Circular indicates vide Para 4 of the Circular that Section 80HHC(3) statutorily fixes the quantum of deduction on the basis of a proportion of business profits under the head "profits and gains of business or profession" irrespective of what could strictly be described as profits derived from export of goods out of India. Even in clause 9 the illustration given indicates that the ratio mentioned in sub-Section (3) has to be applied to business profits computed under the provisions of Sections 28 to 43D of the Income Tax Act. This Circular supports the reasoning given by us in our judgment hereinabove. ### Response: 1

PATEL AHMED MOHAMMAD Vs. BALWANT SINGH RAJPUT

raised in the application, the High Court noted that the appellant did not file the original copy of the election petition served on him, but produced only a photocopy of the allegedly served copy of the election petition along with the application filed for that purpose, bearing Election Application No.3 of 2018. The High Court noted that the only grievance of the appellant was that the copy of the election petition served on him did not contain the words: ?True Copy?. That contention was rejected by placing reliance on the exposition of the Constitution Bench of this Court in Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore (1964) 3 SCR 573 , Ch. Subbarao Vs. Member, Election Tribunal (1964) 6 SCR 213 and in T.M. Jacob Vs. C. Poulose and Ors. (1999) 4 SCC 274 , wherein it has been held that the real test of whether the copy served is a ?true one? is to find out whether any variation from the original is calculated to mislead an ordinary person and if there is substantial compliance with the requirements of Section 81(3) of the Act, the election petition cannot be dismissed at the threshold.15. We must agree with the High Court that to test the arguments of the appellant as to whether the copy served on him was a true copy of the original election petition or otherwise, it was imperative for him to produce the copy of the petition actually served on him and not the photocopy thereof. The grievance of the appellant that some blanks had been kept in the verification clause or there were material discrepancies, could be examined only if the copy of the petition actually served on the appellant was produced before the Court. The High Court could have non-suited the appellant on this sole ground instead of examining the matter any further.16. However, the grievance made before us by the appellant is that the factual position recorded by the High Court in paragraph 35 of the impugned judgment that the appellant had not produced the copy actually served on him in the Court is incorrect. In that, the appellant had submitted the photocopy of the actually served copy along with Election Application No.3 of 2018 and had also undertaken to produce the original of the actually served copy at the time of hearing and that the same was so produced at the time of hearing and handed over to the High Court. This specific plea has been taken in ground (u) of the special leave petition. In other words, the High Court committed manifest error in that regard. If that is so, it would be appropriate to relegate the parties before the High Court for consideration of grievance that the copy actually served on the appellant is not the true copy within the meaning of Section 81(3) of the Act. We are inclined to say so also because the plea taken by the appellant before us is that the appellant had pointed out 20 discrepancies in the copy of the election petition served on him and a chart whereof has been appended at Pages 855-867 of Volume IV of the Special Leave Petition, which according to the appellant, were material discrepancies warranting a finding that the copy of the petition served on him was not a ?True Copy? within the meaning of Section 81(3) of the Act. We find that the High Court has not dealt with this contention in the impugned judgment at all. Even for this reason, the decision of the High Court on the application under consideration, being Election Application No.3 of 2017, will have to be set aside and the parties will have to be relegated before the High Court for its consideration afresh on its own merits in accordance with law. In this view of the matter, we have consciously avoided to advert to the rival pleadings and submissions on the merits of this issue so that no prejudice is caused to either party and the remanded Election Application No.3 of 2017 can be decided de novo in accordance with law. All contentions available to the respective parties in that regard are kept open.17. We may hasten to add that the question to be decided in Election Application No.3 of 2017 for dismissal of the election petition, will be limited to non-compliance of Section 81(3) and the consequences flowing therefrom including under Section 86(1) of the Act. For, the dismissal of the election petition under the latter provision is envisaged only on that count and not in reference to some non-compliance of requirement under Section 83 of the Act. This is the settled legal position.18. As we are inclined to relegate the parties before the High Court for consideration of Election Application No.3 of 2017 afresh in accordance with law, and in the event the appellant is in a position to persuade the High Court to allow the said application, the election petition will have to be dismissed at the threshold under Section 86(1) read with Section 81(3) of the Act. However, if that application fails, the appellant can be permitted to reopen or revive the challenge to the issues raised in Election Application No.6 of 2017 for dismissal of the election petition under Order VII Rule 11(a) & (d) of the CPC, on the ground that the election petition does not disclose a cause of action or that it is barred by law. In that eventuality, the appellant may challenge the judgment rendered in the remanded Election Application No.3 of 2017 and also have the liberty to file fresh special leave petition against the impugned judgment and order passed by the High Court in Election Application No.6 of 2017. Further, both such special leave petitions can be heard together. All questions in that regard are kept open, to be decided appropriately if and when occasion arises. For the time being, we do not wish to burden this judgment with the said issues and leave it open.

1[ds]15. We must agree with the High Court that to test the arguments of the appellant as to whether the copy served on(1964) 3 SCR 573 (1964) 6 SCR 213 (1999) 4 SCC 274 him was a true copy of the original election petition or otherwise, it was imperative for him to produce the copy of the petition actually served on him and not the photocopy thereof. The grievance of the appellant that some blanks had been kept in the verification clause or there were material discrepancies, could be examined only if the copy of the petition actually served on the appellant was produced before the Court. The High Court could havethe appellant on this sole ground instead of examining the matter any further.16. However, the grievance made before us by the appellant is that the factual position recorded by the High Court in paragraph 35 of the impugned judgment that the appellant had not produced the copy actually served on him in the Court is incorrect. In that, the appellant had submitted the photocopy of the actually served copy along with Election Application No.3 of 2018 and had also undertaken to produce the original of the actually served copy at the time of hearing and that the same was so produced at the time of hearing and handed over to the High Court. This specific plea has been taken in ground (u) of the special leave petition. In other words, the High Court committed manifest error in that regard. If that is so, it would be appropriate to relegate the parties before the High Court for consideration of grievance that the copy actually served on the appellant is not the true copy within the meaning of Section 81(3) of the Act. We are inclined to say so also because the plea taken by the appellant before us is that the appellant had pointed out 20 discrepancies in the copy of the election petition served on him and a chart whereof has been appended at Pagesof Volume IV of the Special Leave Petition, which according to the appellant, were material discrepancies warranting a finding that the copy of the petition served on him was not a ?True Copy? within the meaning of Section 81(3) of the Act. We find that the High Court has not dealt with this contention in the impugned judgment at all. Even for this reason, the decision of the High Court on the application under consideration, being Election Application No.3 of 2017, will have to be set aside and the parties will have to be relegated before the High Court for its consideration afresh on its own merits in accordance with law. In this view of the matter, we have consciously avoided to advert to the rival pleadings and submissions on the merits of this issue so that no prejudice is caused to either party and the remanded Election Application No.3 of 2017 can be decided de novo in accordance with law. All contentions available to the respective parties in that regard are kept open.17. We may hasten to add that the question to be decided in Election Application No.3 of 2017 for dismissal of the election petition, will be limited toof Section 81(3) and the consequences flowing therefrom including under Section 86(1) of the Act. For, the dismissal of the election petition under the latter provision is envisaged only on that count and not in reference to someof requirement under Section 83 of the Act. This is the settled legal position.18. As we are inclined to relegate the parties before the High Court for consideration of Election Application No.3 of 2017 afresh in accordance with law, and in the event the appellant is in a position to persuade the High Court to allow the said application, the election petition will have to be dismissed at the threshold under Section 86(1) read with Section 81(3) of the Act. However, if that application fails, the appellant can be permitted to reopen or revive the challenge to the issues raised in Election Application No.6 of 2017 for dismissal of the election petition under Order VII Rule 11(a) & (d) of the CPC, on the ground that the election petition does not disclose a cause of action or that it is barred by law. In that eventuality, the appellant may challenge the judgment rendered in the remanded Election Application No.3 of 2017 and also have the liberty to file fresh special leave petition against the impugned judgment and order passed by the High Court in Election Application No.6 of 2017. Further, both such special leave petitions can be heard together. All questions in that regard are kept open, to be decided appropriately if and when occasion arises. For the time being, we do not wish to burden this judgment with the said issues and leave it open.On a bare perusal of the said Rules, it is evident that the election petition is required to be placed for orders before the Court by the office only after removal of office objections as per Rule 285. If the office objections are pending and not cured within the prescribed period, the office is obliged to list the matter before the Court for appropriate orders under Rule284. For that reason, the High Court opined that in the absence of any positive statement in the application filed by the election petitioner and as the record would show that the matter was placed by the office before the Court under Rule 285, it must follow that the grievance made in the application under consideration was based on mere conjectures and surmises and cannot be the basis to dismiss the election petition at the threshold, as prayed. We respectfully agree with the said view taken by the High Court and as a result, the order rejecting the application under consideration, being Election Application No.2 of 2017, deserves to be upheld.13. Reverting to the second application filed by the appellant, being Election Application No.3 of 2017, the thrust of the grievance was that the copy of the election petition served on the appellant was not a true copy. It was not a copy attested by the election petitioner under his own signature, much less to be a ?true copy? of the petition. Further, there were blanks in the verification clause of the petition and the affidavit in Form No.25 was not in conformity with the requirement of law. Additionally, it was also urged that the election petitioner had not filed as many copies of the election petition as there are respondents mentioned in the election petition. The last point raised by the counsel for the appellant came to be rejected by the High Court on the finding that the same was not taken up in the application filed by the appellant. In other words, it was canvassed across the Bar for the first time. That being the position, the High Court justly disallowed the said contention.

### 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: raised in the application, the High Court noted that the appellant did not file the original copy of the election petition served on him, but produced only a photocopy of the allegedly served copy of the election petition along with the application filed for that purpose, bearing Election Application No.3 of 2018. The High Court noted that the only grievance of the appellant was that the copy of the election petition served on him did not contain the words: ?True Copy?. That contention was rejected by placing reliance on the exposition of the Constitution Bench of this Court in Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore (1964) 3 SCR 573 , Ch. Subbarao Vs. Member, Election Tribunal (1964) 6 SCR 213 and in T.M. Jacob Vs. C. Poulose and Ors. (1999) 4 SCC 274 , wherein it has been held that the real test of whether the copy served is a ?true one? is to find out whether any variation from the original is calculated to mislead an ordinary person and if there is substantial compliance with the requirements of Section 81(3) of the Act, the election petition cannot be dismissed at the threshold.15. We must agree with the High Court that to test the arguments of the appellant as to whether the copy served on him was a true copy of the original election petition or otherwise, it was imperative for him to produce the copy of the petition actually served on him and not the photocopy thereof. The grievance of the appellant that some blanks had been kept in the verification clause or there were material discrepancies, could be examined only if the copy of the petition actually served on the appellant was produced before the Court. The High Court could have non-suited the appellant on this sole ground instead of examining the matter any further.16. However, the grievance made before us by the appellant is that the factual position recorded by the High Court in paragraph 35 of the impugned judgment that the appellant had not produced the copy actually served on him in the Court is incorrect. In that, the appellant had submitted the photocopy of the actually served copy along with Election Application No.3 of 2018 and had also undertaken to produce the original of the actually served copy at the time of hearing and that the same was so produced at the time of hearing and handed over to the High Court. This specific plea has been taken in ground (u) of the special leave petition. In other words, the High Court committed manifest error in that regard. If that is so, it would be appropriate to relegate the parties before the High Court for consideration of grievance that the copy actually served on the appellant is not the true copy within the meaning of Section 81(3) of the Act. We are inclined to say so also because the plea taken by the appellant before us is that the appellant had pointed out 20 discrepancies in the copy of the election petition served on him and a chart whereof has been appended at Pages 855-867 of Volume IV of the Special Leave Petition, which according to the appellant, were material discrepancies warranting a finding that the copy of the petition served on him was not a ?True Copy? within the meaning of Section 81(3) of the Act. We find that the High Court has not dealt with this contention in the impugned judgment at all. Even for this reason, the decision of the High Court on the application under consideration, being Election Application No.3 of 2017, will have to be set aside and the parties will have to be relegated before the High Court for its consideration afresh on its own merits in accordance with law. In this view of the matter, we have consciously avoided to advert to the rival pleadings and submissions on the merits of this issue so that no prejudice is caused to either party and the remanded Election Application No.3 of 2017 can be decided de novo in accordance with law. All contentions available to the respective parties in that regard are kept open.17. We may hasten to add that the question to be decided in Election Application No.3 of 2017 for dismissal of the election petition, will be limited to non-compliance of Section 81(3) and the consequences flowing therefrom including under Section 86(1) of the Act. For, the dismissal of the election petition under the latter provision is envisaged only on that count and not in reference to some non-compliance of requirement under Section 83 of the Act. This is the settled legal position.18. As we are inclined to relegate the parties before the High Court for consideration of Election Application No.3 of 2017 afresh in accordance with law, and in the event the appellant is in a position to persuade the High Court to allow the said application, the election petition will have to be dismissed at the threshold under Section 86(1) read with Section 81(3) of the Act. However, if that application fails, the appellant can be permitted to reopen or revive the challenge to the issues raised in Election Application No.6 of 2017 for dismissal of the election petition under Order VII Rule 11(a) & (d) of the CPC, on the ground that the election petition does not disclose a cause of action or that it is barred by law. In that eventuality, the appellant may challenge the judgment rendered in the remanded Election Application No.3 of 2017 and also have the liberty to file fresh special leave petition against the impugned judgment and order passed by the High Court in Election Application No.6 of 2017. Further, both such special leave petitions can be heard together. All questions in that regard are kept open, to be decided appropriately if and when occasion arises. For the time being, we do not wish to burden this judgment with the said issues and leave it open. ### Response: 1

Workmen Represented By Secretary Vs. Management Of Reptakos Brett.And Co. Ltd. And Anr

company to pay according to this scheme. From the materials available we do not find that this plea can be accepted. The records produced show that despite this system of dearness allowance the Company has been making profits and has been improving its position year by year ............................. We do not think it necessary to deal at length about the evolution of the concept of dearness allowance. Suffice it to say that this Court has, often times, emphasised the need for a living wage to workmen instead of a subsisting wage. It is indeed a matter of concern and fortification that even today the aspirations of a living wage for workmen remain a mirage and a distant dream. Nothing short of a living wage can be a fair wage. It should be the combined effort of all concerned including the Courts to extend to workmen a helping hand so that they get a living wage which would keep them to some extant at least free from want. It is against this background that a claim by employers to change the conditions of service of workmen to their detriment has to be considered and it is against this background that we have considered the award review. We are not satisfied that a case has been made out on the facts available for a change...... The question is often asked as to whether it would be advisable for Tribunals and Courts to revise the wage structure of workmen to their prejudice when a dispute arises. Normally the answer would be in the negative. Tribunals and Courts can take judicial notice of one fact; and that is that the wages of workmen, except in exceptionally rare cases, fall within the category of mere ``subsisting wages. That being so, it would be unadvisable to tinker with the wage structure of workmen except under compelling circumstances. 30. We agree with Mr. Ramamurthy that the DA scheme - which had stood the test of time for almost thirty years and had been approved by various settlements between the parties - has been unjustifiably abolished by the Courts below and as such the award of the Tribunal and the High Court Judgments are unsustainable. 31. Mr. Nariman has also relied on the judgment of this Court in Killick Nixon Ltd. v. Killick and Allied Companies Employees Union, (1975) Suppl. S.C.R. 453 to support the findings of the Tribunal and the High Court. The said case does not lay down that in all cases the slab system of DA should be abolished to the prejudice of the workers. In the said case this Court on the facts of the case came to the conclusion that the employer had made out a case for putting a ceiling on the dearness allowance. The ratio of that case cannot be extended to interfere with the existing DA schemes in every case where such schemes are beneficial to the workmen. 32. Mr. Nariman has invited our attention to para 20 of the Award wherein the tribunal has held as under: ``These figures as detailed in Ex.M-13 would establish that the company is not in a financial position to bear the additional burden on account of increased wages. 33. From the above finding it was sought to be shown that the Company has proved to the satisfaction of the Tribunal that financially it was not in a position to bear the burden of the existing DA scheme. We do not agree with the learned counsel. The Tribunal gave the above finding in the reference made on behalf of the workmen asking for bonus increase and various other monetary benefits. While rejecting the demands of the workmen the Tribunal gave the above finding which related to the additional burden accruing in the event of acceptance of the workers demands. The Tribunal nowhere considered the financial position of the company vis-a-vis the existing DA scheme. The Company neither pleaded nor argued before the Tribunal that its financial position had so much deteriorated that it was not possible for it to bear the burden of the slab system of DA. The Tribunal has not dealt with this aspect of the matter while considering the demand of the Company for restructuring the DA scheme. 34. It has been pleaded by the Company that its workmen are in a high wage island and as such the revision of DA scheme was justified. The Company also produced evidence before the Tribunal to show that comparable concerns in the region were paying lesser DA to its workmen. On the basis of the material produced before the Tribunal all that the Company has been able to show is that the DA paid by the Company is somewhat higher than what is being paid by the other similar industries in the region. There is, however, no material on the record to show that what is being paid by the company is higher than what would be required by the concept of need-based minimum wage. In any case there is a very long way between the need-based wage and the living wage. 35. Mr. Nariman reminded us of the limits on our jurisdiction under Article 136 of the Constitution of India and relying upon Shaw Wallace and Co. Ltd. v. Workmen, (1978)2 SCC 45 and The Statesman Ltd. v. Workmen, (1976)3 SCR 228 contended that so long as there is ``some basis, some material to validate the award the ``jurisdiction under Article 136 stands repelled. The Tribunal and the High Court, in this case, has acted in total oblivion of the legal position as propounded by this Court in various judgments referred to by us. Manifest injustice has been caused to the workmen by the award under appeal. We see no force in the contention of the learned counsel.36. In view of the above discussion we are of the view that the Tribunal was not justified in abolishing the slab system of DA which was operating in the Company for almost thirty years.

1[ds]24. We are of the view that it would not be safe to accept the findings of the Appellate Tribunal in Buckingham case as the basis for fixing the wage structure to the prejudice of the workmen. This Court in Standard Vacuum case (supra) has further held that in Bombay the minimum wage in the year 1940 was Rs. 50 to Rs. 55/-. On that finding it is not possible to accept that the minimum wage in the year 1936 in Madras region was Rs. 26/28. So far as the Good Pastor Press case is concerned the question of determining the minimum wage in pre-war 1936 was not before the Appellate Tribunal. It only mentioned the fact that Rs. 26/- was held to be so by some of the subordinate tribunals. There was no discussion at all on this point. The tribunals reliance on this case was wholly misplaced.25. In any case we are of the opinion that purchasing power of todays wage cannot be judged by making calculations which are solely based on 30/40 years old wage structure. The only reasonable way to determine the category of wage structure is to evaluate each component of the category concerned in the light of the prevailing prices. There has been sky-rocking rise in the prices and the inflation chart is going up so fast that the only way to do justice to the labour is to determine the money value of various components of the minimum wage in the context of today.We agree with Mr. Ramamurthy that the DA scheme - which had stood the test of time for almost thirty years and had been approved by various settlements between the parties - has been unjustifiably abolished by the Courts below and as such the award of the Tribunal and the High Court Judgments are unsustainable.From the above finding it was sought to be shown that the Company has proved to the satisfaction of the Tribunal that financially it was not in a position to bear the burden of the existing DA scheme. We do not agree with the learned counsel. The Tribunal gave the above finding in the reference made on behalf of the workmen asking for bonus increase and various other monetary benefits. While rejecting the demands of the workmen the Tribunal gave the above finding which related to the additional burden accruing in the event of acceptance of the workers demands. The Tribunal nowhere considered the financial position of the company vis-a-vis the existing DA scheme. The Company neither pleaded nor argued before the Tribunal that its financial position had so much deteriorated that it was not possible for it to bear the burden of the slab system of DA. The Tribunal has not dealt with this aspect of the matter while considering the demand of the Company for restructuring the DA scheme.Mr. Nariman reminded us of the limits on our jurisdiction under Article 136 of the Constitution of India and relying upon Shaw Wallace and Co. Ltd. v. Workmen, (1978)2 SCC 45 and The Statesman Ltd. v. Workmen, (1976)3 SCR 228 contended that so long as there is ``some basis, some material to validate the award the ``jurisdiction under Article 136 stands repelled. The Tribunal and the High Court, in this case, has acted in total oblivion of the legal position as propounded by this Court in various judgments referred to by us. Manifest injustice has been caused to the workmen by the award under appeal. We see no force in the contention of the learned counsel.36. In view of the above discussion we are of the view that the Tribunal was not justified in abolishing the slab system of DA which was operating in the Company for almost thirty years.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: company to pay according to this scheme. From the materials available we do not find that this plea can be accepted. The records produced show that despite this system of dearness allowance the Company has been making profits and has been improving its position year by year ............................. We do not think it necessary to deal at length about the evolution of the concept of dearness allowance. Suffice it to say that this Court has, often times, emphasised the need for a living wage to workmen instead of a subsisting wage. It is indeed a matter of concern and fortification that even today the aspirations of a living wage for workmen remain a mirage and a distant dream. Nothing short of a living wage can be a fair wage. It should be the combined effort of all concerned including the Courts to extend to workmen a helping hand so that they get a living wage which would keep them to some extant at least free from want. It is against this background that a claim by employers to change the conditions of service of workmen to their detriment has to be considered and it is against this background that we have considered the award review. We are not satisfied that a case has been made out on the facts available for a change...... The question is often asked as to whether it would be advisable for Tribunals and Courts to revise the wage structure of workmen to their prejudice when a dispute arises. Normally the answer would be in the negative. Tribunals and Courts can take judicial notice of one fact; and that is that the wages of workmen, except in exceptionally rare cases, fall within the category of mere ``subsisting wages. That being so, it would be unadvisable to tinker with the wage structure of workmen except under compelling circumstances. 30. We agree with Mr. Ramamurthy that the DA scheme - which had stood the test of time for almost thirty years and had been approved by various settlements between the parties - has been unjustifiably abolished by the Courts below and as such the award of the Tribunal and the High Court Judgments are unsustainable. 31. Mr. Nariman has also relied on the judgment of this Court in Killick Nixon Ltd. v. Killick and Allied Companies Employees Union, (1975) Suppl. S.C.R. 453 to support the findings of the Tribunal and the High Court. The said case does not lay down that in all cases the slab system of DA should be abolished to the prejudice of the workers. In the said case this Court on the facts of the case came to the conclusion that the employer had made out a case for putting a ceiling on the dearness allowance. The ratio of that case cannot be extended to interfere with the existing DA schemes in every case where such schemes are beneficial to the workmen. 32. Mr. Nariman has invited our attention to para 20 of the Award wherein the tribunal has held as under: ``These figures as detailed in Ex.M-13 would establish that the company is not in a financial position to bear the additional burden on account of increased wages. 33. From the above finding it was sought to be shown that the Company has proved to the satisfaction of the Tribunal that financially it was not in a position to bear the burden of the existing DA scheme. We do not agree with the learned counsel. The Tribunal gave the above finding in the reference made on behalf of the workmen asking for bonus increase and various other monetary benefits. While rejecting the demands of the workmen the Tribunal gave the above finding which related to the additional burden accruing in the event of acceptance of the workers demands. The Tribunal nowhere considered the financial position of the company vis-a-vis the existing DA scheme. The Company neither pleaded nor argued before the Tribunal that its financial position had so much deteriorated that it was not possible for it to bear the burden of the slab system of DA. The Tribunal has not dealt with this aspect of the matter while considering the demand of the Company for restructuring the DA scheme. 34. It has been pleaded by the Company that its workmen are in a high wage island and as such the revision of DA scheme was justified. The Company also produced evidence before the Tribunal to show that comparable concerns in the region were paying lesser DA to its workmen. On the basis of the material produced before the Tribunal all that the Company has been able to show is that the DA paid by the Company is somewhat higher than what is being paid by the other similar industries in the region. There is, however, no material on the record to show that what is being paid by the company is higher than what would be required by the concept of need-based minimum wage. In any case there is a very long way between the need-based wage and the living wage. 35. Mr. Nariman reminded us of the limits on our jurisdiction under Article 136 of the Constitution of India and relying upon Shaw Wallace and Co. Ltd. v. Workmen, (1978)2 SCC 45 and The Statesman Ltd. v. Workmen, (1976)3 SCR 228 contended that so long as there is ``some basis, some material to validate the award the ``jurisdiction under Article 136 stands repelled. The Tribunal and the High Court, in this case, has acted in total oblivion of the legal position as propounded by this Court in various judgments referred to by us. Manifest injustice has been caused to the workmen by the award under appeal. We see no force in the contention of the learned counsel.36. In view of the above discussion we are of the view that the Tribunal was not justified in abolishing the slab system of DA which was operating in the Company for almost thirty years. ### Response: 1

Teg Singh And Others Vs. Charan Singh And Another

and the High Court.(4) On June 3, 1976 appellants filed a special leave petition in this Court challenging the High Court judgment. They raised, inter alia, a new contention (ground No. B) that in decreeing the suit, the court s below had overlooked the relevant provisions of the Punjab Customs (Power to Contest). Amendment Act of 1973, by virtue of which the legality of the gift made by Mula in favour of Bhagwati Devi could not be contested. On June 11, 1976 this Court granted special leave to the appellants limited to the aforesaid Ground (B) of the special leave petition.(5) We have heard an interesting argument from Mr. Juneja, who appears on behalf of the appellants, as regards the true construction and effect of the Punjab Customs (Power to Contest) Act, 1920, as amended in 1973, but we are of the opinion that the argument lacks basis and cannot, therefore, be accepted. The contention, sought to be raised for the first time by the learned counsel, is founded on the assumption that by reason of the Amendment Act of 1973, the gift-deed executed by Mula cannot b e challenged by the respondent. The assumption on which the argument is founded is fallacious, because the respondent does not seek by his plaint, as indeed he need not have sought, to challenge the gift-deed executed by Mula in favour of Bhagwati Devi. That gift was challenged by appellants 1 to 12 in Suit No. 143 of 1965, and they succeeded in obtaining a declaration in that suit that the gift was not binding on the reversioners. That decree became final, with the result that as on August 28, 1971, when Mula-died, the property which he had sought to gift away to Bhagwati Devi, was free from the encumbrance of the purported gift. By the present suit, the respondent merely asks for possession of the property in respect of which Mula had executed the deed of gift. The basis on which he has asked for that relief is that upon the death of Mula in 197 1, the gift ceased to be operative by reason of the decree passed in Suit No. 143 of 1965. It seems to us plain that he has not and he need not have contested the validity of the gift-deed since that question was decided finally in the aforesaid suit.(6) Section 7 of the Punjab Custom (Power to Contest) Act, 1920 provided initially that no person shall contest any alienation of non-ancestral immovable property on the ground that such alienation is contrary to custom. This section was amended by s. 3 of the Punjab Custom (Power to Contest) Amendment Act, 12 of 1973, as a result of which no challenge could be made to the alienation of any immovable property, whether ancestral or non-ancestral, on the ground that it is contrary to custom. It is, therefore, true that if it became necessary after the Amending Act of 1973 to contest the gift executed by Mula in favour of Bhagwati Devi, s. 7 of the Act of 1920 would operate as a bar to such a contest. However, as we have stated earlier, it was not necessary for the respondent, in view of the decree passed in suit No. 143 of 1965, to contest the validity of the gift.(7) The decision of this Court in Giani Ram v. Ramji Lal([1969] (3) S.C.R. 944.) may, with advantage be referred to on this point. Under the customary law of the Punjab, the wife and daughters of a holder of ancestral property could not sue to obtain a declaration that the allegation of ancestral property will not bind the reversioners after the death of the alienor. But the reversioner who was entitled to challenge that alienation could obtain a declaratory decree that the alienation will not bind the reversioners after the alienors death. It was held by this Court that such a declaratory decree had the effect of restoring the property alienated to the estate of the alienor and therefore all persons, including the wife and the daughters of the deceased, were entitled to the benefit of that restoration. Since the property alienated had reverted to the estate of the alienor at the point of his death, the widow and daughters, who also became heirs along with the sons under the Hindu Succession Act, 19 56 were held entitled to obtain possession of the ancestral property. Mr. Juneja attempted to get over the effect of this decision by invoking the provisions of s. 8 of the Punjab Limitation (Custom) Act, 1 of 192 0, which provides that when a person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him, according to. custom, the decree shall enure for the benefit of all persons entitle d to impeach the alienation. Counsel argues that since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot ensure for his benefit. The short answer to this contention is that the decree would ensure for the benefit of all persons who are entitled to a share in the property of the deceased as it existed at the moment of his death. Since Mulas property stood freed from the encumbrance of the gift at the moment of his death, respondent as the adopted son would be entitled to the possession of the gifted property.(8) Another facet of the same question can be seen in Chand Singh v. Ind Kaur.((1974) 1 P.L.R. 226.) A learned Single Judge of the Punjab and Haryana High Court held therein that though a suit to contest, under the customary law, an alienation of immovable property may not lie after the coming into force of the Amending Act of 1973, a declaratory decree already obtained by a reversioner would continue to be operative as the Amending Act does not render such a decree a nullity.

0[ds]It is, therefore, true that if it became necessary after the Amending Act of 1973 to contest the gift executed by Mula in favour of Bhagwati Devi, s. 7 of the Act of 1920 would operate as a bar to such a contest. However, as we have stated earlier, it was not necessary for the respondent, in view of the decree passed in suit No. 143 of 1965, to contest the validity of thethe customary law of the Punjab, the wife and daughters of a holder of ancestral property could not sue to obtain a declaration that the allegation of ancestral property will not bind the reversioners after the death of the alienor. But the reversioner who was entitled to challenge that alienation could obtain a declaratory decree that the alienation will not bind the reversioners after the alienors death. It was held by this Court that such a declaratory decree had the effect of restoring the property alienated to the estate of the alienor and therefore all persons, including the wife and the daughters of the deceased, were entitled to the benefit of that restoration. Since the property alienated had reverted to the estate of the alienor at the point of his death, the widow and daughters, who also became heirs along with the sons under the Hindu Succession Act, 19 56 were held entitled to obtain possession of the ancestral property. Mr.Juneja attempted to get over the effect of this decision by invoking the provisions of s. 8 of the Punjab Limitation (Custom) Act, 1 of 192 0, which provides that when a person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him, according to. custom, the decree shall enure for the benefit of all persons entitle d to impeach theMulas property stood freed from the encumbrance of the gift at the moment of his death, respondent as the adopted son would be entitled to the possession of the giftedAnother facet of the same question can be seen in Chand Singh v. Ind Kaur.((1974) 1 P.L.R. 226.) A learned Single Judge of the Punjab and Haryana High Court held therein that though a suit to contest, under the customary law, an alienation of immovable property may not lie after the coming into force of the Amending Act of 1973, a declaratory decree already obtained by a reversioner would continue to be operative as the Amending Act does not render such a decree aWe have heard an interesting argument from Mr. Juneja, who appears on behalf of the appellants, as regards the true construction and effect of the Punjab Customs (Power to Contest) Act, 1920, as amended in 1973, but we are of the opinion that the argument lacks basis and cannot, therefore, beassumption on which the argument is founded is fallacious, because the respondent does not seek by his plaint, as indeed he need not have sought, to challenge theexecuted by Mula in favour of Bhagwati Devi. That gift was challenged by appellants 1 to 12 in Suit No. 143 of 1965, and they succeeded in obtaining a declaration in that suit that the gift was not binding on the reversioners. That decree became final, with the result that as on August 28, 1971, whenthe property which he had sought to gift away to Bhagwati Devi, was free from the encumbrance of the purported gift. By the present suit, the respondent merely asks for possession of the property in respect of which Mula had executed the deed of gift. The basis on which he has asked for that relief is that upon the death of Mula in 197 1, the gift ceased to be operative by reason of the decree passed in Suit No. 143 of 1965. It seems to us plain that he has not and he need not have contested the validity of thesince that question was decided finally in the aforesaidshort answer to this contention is that the decree would ensure for the benefit of all persons who are entitled to a share in the property of the deceased as it existed at the moment of his death. SinceMulas property stood freed from the encumbrance of the gift at the moment of his death, respondent as the adopted son would be entitled to the possession of the giftedr facet of the same question can be seen in Chand Singh v. Ind Kaur.((1974) 1 P.L.R. 226.) A learned Single Judge of the Punjab and Haryana High Court held therein that though a suit to contest, under the customary law, an alienation of immovable property may not lie after the coming into force of the Amending Act of 1973, a declaratory decree already obtained by a reversioner would continue to be operative as the Amending Act does not render such a decree a

### 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: and the High Court.(4) On June 3, 1976 appellants filed a special leave petition in this Court challenging the High Court judgment. They raised, inter alia, a new contention (ground No. B) that in decreeing the suit, the court s below had overlooked the relevant provisions of the Punjab Customs (Power to Contest). Amendment Act of 1973, by virtue of which the legality of the gift made by Mula in favour of Bhagwati Devi could not be contested. On June 11, 1976 this Court granted special leave to the appellants limited to the aforesaid Ground (B) of the special leave petition.(5) We have heard an interesting argument from Mr. Juneja, who appears on behalf of the appellants, as regards the true construction and effect of the Punjab Customs (Power to Contest) Act, 1920, as amended in 1973, but we are of the opinion that the argument lacks basis and cannot, therefore, be accepted. The contention, sought to be raised for the first time by the learned counsel, is founded on the assumption that by reason of the Amendment Act of 1973, the gift-deed executed by Mula cannot b e challenged by the respondent. The assumption on which the argument is founded is fallacious, because the respondent does not seek by his plaint, as indeed he need not have sought, to challenge the gift-deed executed by Mula in favour of Bhagwati Devi. That gift was challenged by appellants 1 to 12 in Suit No. 143 of 1965, and they succeeded in obtaining a declaration in that suit that the gift was not binding on the reversioners. That decree became final, with the result that as on August 28, 1971, when Mula-died, the property which he had sought to gift away to Bhagwati Devi, was free from the encumbrance of the purported gift. By the present suit, the respondent merely asks for possession of the property in respect of which Mula had executed the deed of gift. The basis on which he has asked for that relief is that upon the death of Mula in 197 1, the gift ceased to be operative by reason of the decree passed in Suit No. 143 of 1965. It seems to us plain that he has not and he need not have contested the validity of the gift-deed since that question was decided finally in the aforesaid suit.(6) Section 7 of the Punjab Custom (Power to Contest) Act, 1920 provided initially that no person shall contest any alienation of non-ancestral immovable property on the ground that such alienation is contrary to custom. This section was amended by s. 3 of the Punjab Custom (Power to Contest) Amendment Act, 12 of 1973, as a result of which no challenge could be made to the alienation of any immovable property, whether ancestral or non-ancestral, on the ground that it is contrary to custom. It is, therefore, true that if it became necessary after the Amending Act of 1973 to contest the gift executed by Mula in favour of Bhagwati Devi, s. 7 of the Act of 1920 would operate as a bar to such a contest. However, as we have stated earlier, it was not necessary for the respondent, in view of the decree passed in suit No. 143 of 1965, to contest the validity of the gift.(7) The decision of this Court in Giani Ram v. Ramji Lal([1969] (3) S.C.R. 944.) may, with advantage be referred to on this point. Under the customary law of the Punjab, the wife and daughters of a holder of ancestral property could not sue to obtain a declaration that the allegation of ancestral property will not bind the reversioners after the death of the alienor. But the reversioner who was entitled to challenge that alienation could obtain a declaratory decree that the alienation will not bind the reversioners after the alienors death. It was held by this Court that such a declaratory decree had the effect of restoring the property alienated to the estate of the alienor and therefore all persons, including the wife and the daughters of the deceased, were entitled to the benefit of that restoration. Since the property alienated had reverted to the estate of the alienor at the point of his death, the widow and daughters, who also became heirs along with the sons under the Hindu Succession Act, 19 56 were held entitled to obtain possession of the ancestral property. Mr. Juneja attempted to get over the effect of this decision by invoking the provisions of s. 8 of the Punjab Limitation (Custom) Act, 1 of 192 0, which provides that when a person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him, according to. custom, the decree shall enure for the benefit of all persons entitle d to impeach the alienation. Counsel argues that since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot ensure for his benefit. The short answer to this contention is that the decree would ensure for the benefit of all persons who are entitled to a share in the property of the deceased as it existed at the moment of his death. Since Mulas property stood freed from the encumbrance of the gift at the moment of his death, respondent as the adopted son would be entitled to the possession of the gifted property.(8) Another facet of the same question can be seen in Chand Singh v. Ind Kaur.((1974) 1 P.L.R. 226.) A learned Single Judge of the Punjab and Haryana High Court held therein that though a suit to contest, under the customary law, an alienation of immovable property may not lie after the coming into force of the Amending Act of 1973, a declaratory decree already obtained by a reversioner would continue to be operative as the Amending Act does not render such a decree a nullity. ### Response: 0

Collector of Customs, Cochin Vs. Toshiba Anand Batteries Ltd

S.C. Agrawal and S.C. Sen, JJ. 1. We have heard Shri K.N. Bhat, the learned Additional Solicitor General of India on the appeals. Nobody appeared for the respondent even though duly served. These appeals are directed against the impugned order dated March 25, 1987 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as the Tribunal). The respondent-company is a manufacturer of dry batteries and in connection with the said batteries a question arose as to whether the electrolytic manganese dioxide is to be classified under [Heading] 25.01/32(3) or 28.01/58(1). The Assistant Collector of Customs held that the said item was classifiable under Item 28.01/58(1). But on appeal, the Collector of Appeals took a contrary view and held that it was classifiable under Heading 25.01/32(3). The appeal filed by the Revenue against the said order of the Collector of Appeals has been dismissed by the Tribunal by the impugned order on the ground that it was barred by limitation by 20 days. The other appeals filed by the Revenue raising the same question in respect of the respondent had been earlier allowed by the Tribunal by order dated January 29, 1987 reported in (Tribunal). The learned Additional Solicitor General has pointed out that the said view of the Tribunal allowing the other appeals against the order of the Collector of Appeals and holding that the electrolytic Manganese dioxide is classifiable under [Heading] 28.01/58(1) has been upheld by this Court. 2. Having regard to the fact that the Tribunal had earlier allowed the appeals against the same order of the Collector of Appeals and the view of the Tribunal has been upheld by this Court, we are of the view that these are fit cases in which the Tribunal should have condoned the delay in the filing of the appeal and should have considered the matter on merits.

1[ds]2. Having regard to the fact that the Tribunal had earlier allowed the appeals against the same order of the Collector of Appeals and the view of the Tribunal has been upheld by this Court, we are of the view that these are fit cases in which the Tribunal should have condoned the delay in the filing of the appeal and should have considered the matter on merits.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: S.C. Agrawal and S.C. Sen, JJ. 1. We have heard Shri K.N. Bhat, the learned Additional Solicitor General of India on the appeals. Nobody appeared for the respondent even though duly served. These appeals are directed against the impugned order dated March 25, 1987 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as the Tribunal). The respondent-company is a manufacturer of dry batteries and in connection with the said batteries a question arose as to whether the electrolytic manganese dioxide is to be classified under [Heading] 25.01/32(3) or 28.01/58(1). The Assistant Collector of Customs held that the said item was classifiable under Item 28.01/58(1). But on appeal, the Collector of Appeals took a contrary view and held that it was classifiable under Heading 25.01/32(3). The appeal filed by the Revenue against the said order of the Collector of Appeals has been dismissed by the Tribunal by the impugned order on the ground that it was barred by limitation by 20 days. The other appeals filed by the Revenue raising the same question in respect of the respondent had been earlier allowed by the Tribunal by order dated January 29, 1987 reported in (Tribunal). The learned Additional Solicitor General has pointed out that the said view of the Tribunal allowing the other appeals against the order of the Collector of Appeals and holding that the electrolytic Manganese dioxide is classifiable under [Heading] 28.01/58(1) has been upheld by this Court. 2. Having regard to the fact that the Tribunal had earlier allowed the appeals against the same order of the Collector of Appeals and the view of the Tribunal has been upheld by this Court, we are of the view that these are fit cases in which the Tribunal should have condoned the delay in the filing of the appeal and should have considered the matter on merits. ### Response: 1

Salim Akbarali Nanji Vs. Union Of India

therefore, entitled to invoke the writ jurisdiction of the High Court for issuance of Writ of Mandamus to the Reserve Bank of India to act in accordance with its statutory obligations. In this connection, reference has been made to Sections 21, 22(4), 27, 30, 35, 35A, 36, 36AA, and 45 of the Banking Regulation Act, 1949. 18. Section 21 of the Banking Regulation Act empowers the Reserve Bank to determine the policy in relation to advances to be followed by banking companies generally, or by any banking company in particular. The policy, if so, determined by the Reserve Bank of India in public interest or in the interest of depositors or banking policy, must be followed by all banking companies. In the instant case there is no material whatsoever to demonstrate that the Reserve Bank of India has failed to exercise its powers under Section 21 of the aforesaid Act, nor is there anything to prove that the Respondent No.6 Bank herein has not followed any policy so determined by the Reserve Bank of India. 19. Section 22 (4) of the aforesaid Act empowers the Reserve Bank of India to cancel a licence granted to a banking company in the circumstances mentioned therein. We fail to understand how the said provision is at all relevant since it is not the case of the appellant that the licence granted to the Respondent No.6 Bank should be cancelled. 20. Section 27 casts an obligation on every banking company to submit to the Reserve Bank a return in the prescribed form and manner showing its assets and liabilities in accordance with the aforesaid provision. The Reserve Bank is also authorized at any time to direct a banking company to furnish it such statements and information relating to the business or affairs of the banking company as it may consider necessary or expedient to obtain for the purposes of the Act. We fail to understand how Section 27 is at all relevant in the instant case because it is not the case of the appellant, nor has any material being placed on record to show, that there has been breach of Section 27 of the aforesaid Act. 21. Similarly, Section 30 which deals with audit of the balance sheet and profit and loss account of a banking company by a qualified auditor is not at all relevant. Sub-Section (1B) of Section 30 empowers the Reserve Bank to order a special audit. In the instant case we are not concerned at all with the appointment of auditors. 22. Section 35 relates to inspection of banking companies. It empowers the Reserve Bank to cause an inspection to be made by one or more of its officers of any banking company and its books and accounts. 23. Section 36 enumerates the other powers and functions of the Reserve Bank. Similarly Section 36AA empowers the Reserve Bank to remove from office any Chairman, Director, Chief Executive Officer or other officer or employee of the banking company, subject to the conditions laid down in that provision. 24. Section 45 confers power on the Reserve Bank to apply to the Central Government for suspension of business by a banking company and to prepare scheme of reconstitution or amalgamation. We fail to appreciate how any of these provisions is relevant to the issue that arises in the instant appeal. No doubt, the Reserve Bank has been vested with wide powers to control and regulate the functioning of banks. If need be, those powers may be exercised by the Reserve Bank. In the instant case, we are only concerned with the writing off of non-performing assets. Nothing has been produced on record to satisfy us that the Reserve Bank has acted in breach of its legal obligations in the matter of granting permission to the Respondent No.6 Bank to write off the debts that have become non-performing assets. 25. The appellant made a general submission that there was no justification for writing off the bad debts amounting to Rs.120 crores. Respondent No.6 Bank should have taken all necessary steps to recover the debts and to enforce its rights under Sections 13 and 14 of the Securitisation Act, 2002 and Sections 19 and 31A of the Recovery of Debts Due to Bank Act, 1993. The Bank can proceed against the original security and the secured assets of the borrowers and recover its dues. Writing off bad debts was detrimental to the interest of a banking company. 26. It is no doubt true that amounts advance by banks must be recovered. Such debts should not be permitted to become non-performing assets. However, one cannot lose sight of the realities of the situation. Having regard to the nature of banking business, it is possible that the Bank may commit an error of judgment in advancing funds to a particular party or industry. It may be that on account of other factors beyond its control, or even beyond the control of the borrowers, it may become difficult, or even impossible to recover the loan advanced in accordance with the schedule of re-payment, or to recover the loan at all. These are risks inherent in the banking business, though a wise banker with foresight and anticipation may reduce such risks to the minimum level. One cannot however, jump to the conclusion that only because some of the debts have become bad, there is lack of proper management of the Bank, or that the conduct of the Bank is dishonest or mala-fide. In a given case, there may be evidence of such mis-management or dishonest conduct, but in the absence of any such accusation one cannot draw an adverse inference against the Bank. In the instant case, though some of the debts have to be written off, with little chance of substantial recovery, we cannot lose sight of the fact that the Bank has generated considerable operating profits and has built up a substantial general reserve over the years, against which the debts written off have been adjusted.

0[ds]14. In the instant case also since the Respondent No.6 Bank proposes to appropriate the sums from their reserves, it sought by way of abundant caution the approval of the Reserve Bank of India. There is, therefore, no justification for the grievance that in granting approval to the bank to write off its non-performing assests to the tune of Rs.120 crores, the Reserve Bank of India committed breach of any statutory provision or acted illegally or arbitrarily in the matter. There is not even an allegation that the Reserve Bank of India acted on extraneous consideration, or that its action was mala-fideIn the instant case there is no material whatsoever to demonstrate that the Reserve Bank of India has failed to exercise its powers under Section 21 of the aforesaid Act, nor is there anything to prove that the Respondent No.6 Bank herein has not followed any policy so determined by the Reserve Bank of India19. Section 22 (4) of the aforesaid Act empowers the Reserve Bank of India to cancel a licence granted to a banking company in the circumstances mentioned therein. We fail to understand how the said provision is at all relevant since it is not the case of the appellant that the licence granted to the Respondent No.6 Bank should be cancelled20. Section 27 casts an obligation on every banking company to submit to the Reserve Bank a return in the prescribed form and manner showing its assets and liabilities in accordance with the aforesaid provision. The Reserve Bank is also authorized at any time to direct a banking company to furnish it such statements and information relating to the business or affairs of the banking company as it may consider necessary or expedient to obtain for the purposes of the Act. We fail to understand how Section 27 is at all relevant in the instant case because it is not the case of the appellant, nor has any material being placed on record to show, that there has been breach of Section 27 of the aforesaid Act21. Similarly, Section 30 which deals with audit of the balance sheet and profit and loss account of a banking company by a qualified auditor is not at all relevant. Sub-Section (1B) of Section 30 empowers the Reserve Bank to order a special audit. In the instant case we are not concerned at all with the appointment of auditors24. Section 45 confers power on the Reserve Bank to apply to the Central Government for suspension of business by a banking company and to prepare scheme of reconstitution or amalgamation. We fail to appreciate how any of these provisions is relevant to the issue that arises in the instant appeal.In the instant case, though some of the debts have to be written off, with little chance of substantial recovery, we cannot lose sight of the fact that the Bank has generated considerable operating profits and has built up a substantial general reserve over the years, against which the debts written off have been adjusted

### 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: therefore, entitled to invoke the writ jurisdiction of the High Court for issuance of Writ of Mandamus to the Reserve Bank of India to act in accordance with its statutory obligations. In this connection, reference has been made to Sections 21, 22(4), 27, 30, 35, 35A, 36, 36AA, and 45 of the Banking Regulation Act, 1949. 18. Section 21 of the Banking Regulation Act empowers the Reserve Bank to determine the policy in relation to advances to be followed by banking companies generally, or by any banking company in particular. The policy, if so, determined by the Reserve Bank of India in public interest or in the interest of depositors or banking policy, must be followed by all banking companies. In the instant case there is no material whatsoever to demonstrate that the Reserve Bank of India has failed to exercise its powers under Section 21 of the aforesaid Act, nor is there anything to prove that the Respondent No.6 Bank herein has not followed any policy so determined by the Reserve Bank of India. 19. Section 22 (4) of the aforesaid Act empowers the Reserve Bank of India to cancel a licence granted to a banking company in the circumstances mentioned therein. We fail to understand how the said provision is at all relevant since it is not the case of the appellant that the licence granted to the Respondent No.6 Bank should be cancelled. 20. Section 27 casts an obligation on every banking company to submit to the Reserve Bank a return in the prescribed form and manner showing its assets and liabilities in accordance with the aforesaid provision. The Reserve Bank is also authorized at any time to direct a banking company to furnish it such statements and information relating to the business or affairs of the banking company as it may consider necessary or expedient to obtain for the purposes of the Act. We fail to understand how Section 27 is at all relevant in the instant case because it is not the case of the appellant, nor has any material being placed on record to show, that there has been breach of Section 27 of the aforesaid Act. 21. Similarly, Section 30 which deals with audit of the balance sheet and profit and loss account of a banking company by a qualified auditor is not at all relevant. Sub-Section (1B) of Section 30 empowers the Reserve Bank to order a special audit. In the instant case we are not concerned at all with the appointment of auditors. 22. Section 35 relates to inspection of banking companies. It empowers the Reserve Bank to cause an inspection to be made by one or more of its officers of any banking company and its books and accounts. 23. Section 36 enumerates the other powers and functions of the Reserve Bank. Similarly Section 36AA empowers the Reserve Bank to remove from office any Chairman, Director, Chief Executive Officer or other officer or employee of the banking company, subject to the conditions laid down in that provision. 24. Section 45 confers power on the Reserve Bank to apply to the Central Government for suspension of business by a banking company and to prepare scheme of reconstitution or amalgamation. We fail to appreciate how any of these provisions is relevant to the issue that arises in the instant appeal. No doubt, the Reserve Bank has been vested with wide powers to control and regulate the functioning of banks. If need be, those powers may be exercised by the Reserve Bank. In the instant case, we are only concerned with the writing off of non-performing assets. Nothing has been produced on record to satisfy us that the Reserve Bank has acted in breach of its legal obligations in the matter of granting permission to the Respondent No.6 Bank to write off the debts that have become non-performing assets. 25. The appellant made a general submission that there was no justification for writing off the bad debts amounting to Rs.120 crores. Respondent No.6 Bank should have taken all necessary steps to recover the debts and to enforce its rights under Sections 13 and 14 of the Securitisation Act, 2002 and Sections 19 and 31A of the Recovery of Debts Due to Bank Act, 1993. The Bank can proceed against the original security and the secured assets of the borrowers and recover its dues. Writing off bad debts was detrimental to the interest of a banking company. 26. It is no doubt true that amounts advance by banks must be recovered. Such debts should not be permitted to become non-performing assets. However, one cannot lose sight of the realities of the situation. Having regard to the nature of banking business, it is possible that the Bank may commit an error of judgment in advancing funds to a particular party or industry. It may be that on account of other factors beyond its control, or even beyond the control of the borrowers, it may become difficult, or even impossible to recover the loan advanced in accordance with the schedule of re-payment, or to recover the loan at all. These are risks inherent in the banking business, though a wise banker with foresight and anticipation may reduce such risks to the minimum level. One cannot however, jump to the conclusion that only because some of the debts have become bad, there is lack of proper management of the Bank, or that the conduct of the Bank is dishonest or mala-fide. In a given case, there may be evidence of such mis-management or dishonest conduct, but in the absence of any such accusation one cannot draw an adverse inference against the Bank. In the instant case, though some of the debts have to be written off, with little chance of substantial recovery, we cannot lose sight of the fact that the Bank has generated considerable operating profits and has built up a substantial general reserve over the years, against which the debts written off have been adjusted. ### Response: 0

Subbarao Vs. Member, Election Tribunal, Hyderabad & Others

served on the appellant did not exactly correspond to that in the original in that in the latter one of the paragraphs was stated to be true to the personal knowledge of the petitioner while in the former that paragraph was omitted from this group.23. The other type of effect which was claimed to constitute non-compliance with S. 81 (3) was that the words true copy with the signature of the petitioner underneath were not put down in one of the annexures to the petition, copies of which were annexed to the copies of the petition filed. The order of the Returning Officer rejecting the nomination paper of the petitioner was filed with the original petition as an annexure to it, and certified copies of that order were annexed to the copies of the petition. But this certified copy did not contain an endorsement stating that it was a true copy with the signature of the petitioner.24. The High Court had held that so far as the defect in not reproducing the signature in the petition was concerned, it was cured by the fact that every page of the copy of the petition was attested to be a true copy and therefore it would not matter if the last page did not contain the signature. As regards the second, the High Court held that the failure to include the paragraph in the verification was only a clerical defect which had crept in through oversight as regards the other that it was no defect at all. This decision was upheld by this Court holding that the word copy in S. 81 (3) meant a copy which was substantially so and which did not contain any material or substantial variation. By copy in S. 81(3) was meant not an exact copy but only one so true that nobody by any possibility misunderstands it not being the same as the original. Applying this test, this Court came to the conclusion that there was no failure to comply with the last part of S. 81 (3), with the result that S. 90(3) of the Act was not attracted.25. This Court besides left open the question as to whether any part of S. 81(3) was directory or whether any portion of it was mandatory. In the present case also, we do not propose to deal with the larger question as to whether S. 81 (3) or any portion of it is merely directory. In view of the decision of this Court it would be clear that if there is a substantial compliance with the requirement of S. 81 (3), the election petition cannot be dismissed by the Tribunal under S. 90 (3). The question then is whether on the facts above-stated, there is or is not a sufficient and substantial compliance with S. 81 (3). We have already pointed out that the appellant has complied with the following requirements :(1) The petition has been accompanied by the requisite number of copies.(2) The copies that accompanied the petition were true copies.(3) Each of those copies bore the signatures of the petitioner.26. If the signature of the petitioner whose name is set out in the body of the petition is appended at the end, surely it authenticates the contents of the document. Now in regard to this the learned Judges of the High Court themselves observed after referring to the terms of S. 81 (3) :"No doubt, what is necessary is a substantial compliance with the requirement of attestation. For instance, if it is proved that the election petitioner has signed animo attestendi, and omitted the words true copy by mistake or inadvertently, there is a substantial requirement of the compliance of S. 81 (3). The same way be said if the relative positions of the words true copy and of the signature one below the other are not correct."They however held that as there was no evidence of the signature having been appended animo attestendi, there was non-compliance with S. 81 (3). The learned Solicitor-General while not disputing the correctness of the observations of the learned Judges just extracted pressed upon us that the signature at the end of the copy was meant only as a copy of that in the original petition and could not satisfy the requirement as to attestation of the copy. He also submitted that the position would have been different if there were two signatures instead of one at the end of the copy even if the words true copy were omitted to be put down. In that case, he said, one signature could be treated as representing the copy of the signature on the original and the other might be taken to have been made animo attestendi. We do not however consider that there is really need for so much refinement when one to look at whether there is a substantial compliance with the requirement of this provision. If the signatures now found on the copies were intended to authenticate the document to which it is appended viz., the copy, it would only mean that the copy did not reproduce the signature in the original.There is no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a non-compliance with S. 81(3), seeing that a signature in original was not needed on the copy and a writing copying out the name of the signatory would suffice. The decision of this Court in Murarkas case, C. A. Nos. 30 and 31 of 1963 D/- 7-5-1963 (SC) is authority for the position that the absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy. In the circumstances, we consider that there has been substantial compliance with the requirement of S. 81 (3) in the petition that was filed by the appellant and the learned Judges were in error in directing the dismissal of the petition.

1[ds]14. We are not impressed by this argument. When S. 81(3) requires an election petition to be accompanied by the requisite number of copies, it becomes a requirement for the presentation of the election petition to the Commission, and therefore a condition precedent for the proper presentation of an election petition. If that is a requirement of S. 81, no distinction can be drawn between the requirements of sub-sections (1) and (2) and of sub-sec. (3). We might add that if there is a total and complete non-compliance with the provisions of S. 81(3), the election petition might not be "an election petition presented in accordance with the provisions of this Part" within S. 80 of the Act. We are therefore inclined to consider that if there had been such a non-compliance with the requirement of sub-sec. (3) not merely the Election Commission under S. 85 but the Election Tribunal under S. 90(3) would prima facie not merely be justified but would be required to dismiss the electiondo not however consider that there is really need for so much refinement when one to look at whether there is a substantial compliance with the requirement of this provision. If the signatures now found on the copies were intended to authenticate the document to which it is appended viz., the copy, it would only mean that the copy did not reproduce the signature in the original.There is no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a non-compliance with S. 81(3), seeing that a signature in original was not needed on the copy and a writing copying out the name of the signatory would suffice. The decision of this Court in Murarkas case, C. A. Nos. 30 and 31 of 1963 D/- 7-5-1963 (SC) is authority for the position that the absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy. In the circumstances, we consider that there has been substantial compliance with the requirement of S. 81 (3) in the petition that was filed by the appellant and the learned Judges were in error in directing the dismissal of the petition.

### 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: served on the appellant did not exactly correspond to that in the original in that in the latter one of the paragraphs was stated to be true to the personal knowledge of the petitioner while in the former that paragraph was omitted from this group.23. The other type of effect which was claimed to constitute non-compliance with S. 81 (3) was that the words true copy with the signature of the petitioner underneath were not put down in one of the annexures to the petition, copies of which were annexed to the copies of the petition filed. The order of the Returning Officer rejecting the nomination paper of the petitioner was filed with the original petition as an annexure to it, and certified copies of that order were annexed to the copies of the petition. But this certified copy did not contain an endorsement stating that it was a true copy with the signature of the petitioner.24. The High Court had held that so far as the defect in not reproducing the signature in the petition was concerned, it was cured by the fact that every page of the copy of the petition was attested to be a true copy and therefore it would not matter if the last page did not contain the signature. As regards the second, the High Court held that the failure to include the paragraph in the verification was only a clerical defect which had crept in through oversight as regards the other that it was no defect at all. This decision was upheld by this Court holding that the word copy in S. 81 (3) meant a copy which was substantially so and which did not contain any material or substantial variation. By copy in S. 81(3) was meant not an exact copy but only one so true that nobody by any possibility misunderstands it not being the same as the original. Applying this test, this Court came to the conclusion that there was no failure to comply with the last part of S. 81 (3), with the result that S. 90(3) of the Act was not attracted.25. This Court besides left open the question as to whether any part of S. 81(3) was directory or whether any portion of it was mandatory. In the present case also, we do not propose to deal with the larger question as to whether S. 81 (3) or any portion of it is merely directory. In view of the decision of this Court it would be clear that if there is a substantial compliance with the requirement of S. 81 (3), the election petition cannot be dismissed by the Tribunal under S. 90 (3). The question then is whether on the facts above-stated, there is or is not a sufficient and substantial compliance with S. 81 (3). We have already pointed out that the appellant has complied with the following requirements :(1) The petition has been accompanied by the requisite number of copies.(2) The copies that accompanied the petition were true copies.(3) Each of those copies bore the signatures of the petitioner.26. If the signature of the petitioner whose name is set out in the body of the petition is appended at the end, surely it authenticates the contents of the document. Now in regard to this the learned Judges of the High Court themselves observed after referring to the terms of S. 81 (3) :"No doubt, what is necessary is a substantial compliance with the requirement of attestation. For instance, if it is proved that the election petitioner has signed animo attestendi, and omitted the words true copy by mistake or inadvertently, there is a substantial requirement of the compliance of S. 81 (3). The same way be said if the relative positions of the words true copy and of the signature one below the other are not correct."They however held that as there was no evidence of the signature having been appended animo attestendi, there was non-compliance with S. 81 (3). The learned Solicitor-General while not disputing the correctness of the observations of the learned Judges just extracted pressed upon us that the signature at the end of the copy was meant only as a copy of that in the original petition and could not satisfy the requirement as to attestation of the copy. He also submitted that the position would have been different if there were two signatures instead of one at the end of the copy even if the words true copy were omitted to be put down. In that case, he said, one signature could be treated as representing the copy of the signature on the original and the other might be taken to have been made animo attestendi. We do not however consider that there is really need for so much refinement when one to look at whether there is a substantial compliance with the requirement of this provision. If the signatures now found on the copies were intended to authenticate the document to which it is appended viz., the copy, it would only mean that the copy did not reproduce the signature in the original.There is no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a non-compliance with S. 81(3), seeing that a signature in original was not needed on the copy and a writing copying out the name of the signatory would suffice. The decision of this Court in Murarkas case, C. A. Nos. 30 and 31 of 1963 D/- 7-5-1963 (SC) is authority for the position that the absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy. In the circumstances, we consider that there has been substantial compliance with the requirement of S. 81 (3) in the petition that was filed by the appellant and the learned Judges were in error in directing the dismissal of the petition. ### Response: 1

Tarlochan Development Sharma Vs. State of Punjab

defects, there was nothing wrong in his asking the Executive Officer not to make the payment unless he was satisfied that the machine was fit for the purpose for which it was being purchased, all the more, when the funds for purchasing the machine were made available to the Municipality by the District Planning Board. Even accepting the allegations made against the appellant, as contained in the show cause notice, to be correct, his decision to withhold the payment may be said to be an erroneous or unjust decision. For this reason alone the appellant cannot be said to be guilty of an abuse of his powers. If any one suffered by delay in payment it was the supplier and not the Municipality. There is nothing in the show cause notice or the ultimate order to hold how the act of appellant had `obstructed the working of Municipal Council or was `against the interest of Council. We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one is the show cause notice, of which appellant was not even made aware of let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of President. The High Court was not right in forming an opinion that the appellant was persuading the High Court to judicially review like an Appellate Court the finding arrived at by the competent authority. The present one is a case where the impugned order is vitiated by perversity. A conclusion of abuse of powers has been drawn from such facts wherefrom such conclusion does not even prima facie flow. The impugned order is based on non-existent grounds. It is vitiated by colourable exercise of power and hence liable to be struck down within the well settled parameters of judicial review of administrative action 13. Although the appellant tried to suggest a case of mala fides and colourable exercise of power by stating a few facts and inviting a finding that impugned order was passed with an ulterior motive in as much as the appellants election to the office of the President did not suit the power that be and the political bosses of Shri N.K. Arora, the then Principal Secretary, Department of Local Government, State of Punjab, however, we are not entering into that question as it is unnecessary and also be cause adequate material has not been brought on record nd placed before the court so as to undoubtedly arrive at such a finding. However, something has to be said about Shri N.K. Arora, Principal Secretary, who initiated the action, heard the appellant and passed the impugned order of removal dated 1.10.1999 14. It is interesting to view the present day bureaucrat-politician relationship scenario." * A bureaucratic apparatus is a means of attaining the goals prescribed by the political leaders at the top. Like Alladins lamp, it services the interest of whosoever wields it. Those at the helm of affairs exercise apical dominance by dint of their political legitimacy., ....... The ministers make strategic decisions. The officers provide trucks, petrol and drivers. They give march orders. The minister tells them were to go. The officers have to act upon instructions from above without creating a fuss about it. (Effectiveness of Bureaucracy, the Indian Journal of Public Administration, April-June 2000 at p. 165) 15. In the system of India Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there now discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government SErvices command the civil servants onmaintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. IN Anirudhsinhji Jadeja, 1995 SC 1354, this court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this court in The Purtabpur Company Ltd., 1968 SC 353, are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor is weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the let what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. WE have at that and say no more on this issue

1[ds]That a returned candidate must hold and enjoy the office and discharge other duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cost on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. Therefore, a case of availability of a ground squarely falling within Section 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of Section 22, on the ground of "abuse of his powers"(of President), inter alia. This is the phrase with which we are concerned in the present case10. The expression `abuse of powers in the context and setting in which it has been used cannot mean use of power which may paper to be simply unreasonable of inappropriate. It implies a willful abuse or an intentional wrong. An honest though erroneous exercise of power or an indecision is not an abuse of power. A decision, action or instruction may be inconvenient or unpalatable to the person affected but it would not be an abuse of power. It must be such an abuse of power which would render a Councilor unworthy of holding the office of President. In as such as an abuse of power would entail adverse civil consequences, the expression has to be narrowly constructed. Yet again, the expression employed in Section 2 is `abuse of his powers or habitual failure to perform his duties. The use of pluralpowers, and the setting of the expression in the framing of Section 22 is not without significance. It is suggestive of legislative intent. The phrase `abuse of powers must take colour from the next following expression`or habitual failure to perform duties. A singular or casual aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving, dishonesty of intention is `abuse of powers within the meaning of Section 22 of the Act. The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exist for a single innocuous action or error of decisionIt is clear that the facts constituting gravamen of the charge have to be communicated. It follows as a necessary corollary therefrom that what has not been communicated or not relled on in the show cause notice as a ground providing reason for the proposal removal cannot be relied upon as furnishing basis for the order of removal. The person proceeded against under Section 22 of the Act has to be made aware of the precise charge which he is required to meet and therefore he must be apprised of the exact content of the abuse of power attributed to him. The authority taking decision must apply its mind also to be explanation furnished by the person proceeded against and this must appear from the order passed under Section 22For this reason alone the appellant cannot be said to be guilty of an abuse of his powers. If any one suffered by delay in payment it was the supplier and not the Municipality. There is nothing in the show cause notice or the ultimate order to hold how the act of appellant had `obstructed the working of Municipal Council or was `against the interest of Council. We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one is the show cause notice, of which appellant was not even made aware of let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of President. The High Court was not right in forming an opinion that the appellant was persuading the High Court to judicially review like an Appellate Court the finding arrived at by the competent authority. The present one is a case where the impugned order is vitiated by perversity. A conclusion of abuse of powers has been drawn from such facts wherefrom such conclusion does not even prima facie flow. The impugned order is based ont grounds. It is vitiated by colourable exercise of power and hence liable to be struck down within the well settled parameters of judicial review of administrative action13. Although the appellant tried to suggest a case of mala fides and colourable exercise of power by stating a few facts and inviting a finding that impugned order was passed with an ulterior motive in as much as the appellants election to the office of the President did not suit the power that be and the political bosses of Shri N.K. Arora, the then Principal Secretary, Department of Local Government, State of Punjab, however, we are not entering into that question as it is unnecessary and also be cause adequate material has not been brought on record nd placed before the court so as to undoubtedly arrive at such a finding. However, something has to be said about Shri N.K. Arora, Principal Secretary, who initiated the action, heard the appellant and passed the impugned order of removal dated 1.10.1999Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor is weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. yet we have no hesitation in holding that the impugned order betrays uttern of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the let what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. WE have at that and say no more on this issue

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: defects, there was nothing wrong in his asking the Executive Officer not to make the payment unless he was satisfied that the machine was fit for the purpose for which it was being purchased, all the more, when the funds for purchasing the machine were made available to the Municipality by the District Planning Board. Even accepting the allegations made against the appellant, as contained in the show cause notice, to be correct, his decision to withhold the payment may be said to be an erroneous or unjust decision. For this reason alone the appellant cannot be said to be guilty of an abuse of his powers. If any one suffered by delay in payment it was the supplier and not the Municipality. There is nothing in the show cause notice or the ultimate order to hold how the act of appellant had `obstructed the working of Municipal Council or was `against the interest of Council. We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one is the show cause notice, of which appellant was not even made aware of let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of President. The High Court was not right in forming an opinion that the appellant was persuading the High Court to judicially review like an Appellate Court the finding arrived at by the competent authority. The present one is a case where the impugned order is vitiated by perversity. A conclusion of abuse of powers has been drawn from such facts wherefrom such conclusion does not even prima facie flow. The impugned order is based on non-existent grounds. It is vitiated by colourable exercise of power and hence liable to be struck down within the well settled parameters of judicial review of administrative action 13. Although the appellant tried to suggest a case of mala fides and colourable exercise of power by stating a few facts and inviting a finding that impugned order was passed with an ulterior motive in as much as the appellants election to the office of the President did not suit the power that be and the political bosses of Shri N.K. Arora, the then Principal Secretary, Department of Local Government, State of Punjab, however, we are not entering into that question as it is unnecessary and also be cause adequate material has not been brought on record nd placed before the court so as to undoubtedly arrive at such a finding. However, something has to be said about Shri N.K. Arora, Principal Secretary, who initiated the action, heard the appellant and passed the impugned order of removal dated 1.10.1999 14. It is interesting to view the present day bureaucrat-politician relationship scenario." * A bureaucratic apparatus is a means of attaining the goals prescribed by the political leaders at the top. Like Alladins lamp, it services the interest of whosoever wields it. Those at the helm of affairs exercise apical dominance by dint of their political legitimacy., ....... The ministers make strategic decisions. The officers provide trucks, petrol and drivers. They give march orders. The minister tells them were to go. The officers have to act upon instructions from above without creating a fuss about it. (Effectiveness of Bureaucracy, the Indian Journal of Public Administration, April-June 2000 at p. 165) 15. In the system of India Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there now discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government SErvices command the civil servants onmaintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. IN Anirudhsinhji Jadeja, 1995 SC 1354, this court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this court in The Purtabpur Company Ltd., 1968 SC 353, are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor is weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the let what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. WE have at that and say no more on this issue ### Response: 1

NIRMALA KOTHARI Vs. UNITED INDIA INSURANCE CO.LTD

forth the facts of the present case, the question of law that arises for consideration is what is the extent of care/diligence expected of the employer/insured while employing a driver? To answer this question, we shall advert to the legal position regarding the liability of the Insurance Company when the driver of the offending vehicle possessed an invalid/fake driving licence. In the case of United India Insurance Co. Ltd. vs. Lehru & Ors. (2003) 3 SCC 338 : 2003 SCC (Cri) 641 a two Judge Bench of this court has taken the view that the Insurance Company cannot be permitted to avoid its liability on the ground that the person driving the vehicle at the time of the accident was not duly licenced. It was further held that the willful breach of the conditions of the policy should be established. The law with this respect has been discussed in detail in the case of Pepsu RTC vs. National Insurance Co. (2013) 10 SCC 217 We may extract the relevant paragraph from the Judgment: (Pepsu case, SCC pp. 223-24, para10) In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singhs case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation. 9. While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid/fake however the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of willful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer. 10. The view taken by the National Commission that the law as settled in the Pepsu case (Supra) is not applicable in the present matter as it related to third-party claim is erroneous. It has been categorically held in the case of National Insurance Co. Ltd. vs. Swaran Singh & Ors. (2004) 3 SCC 297 : 2004 SCC (Cri) 733 (SCC pp.341, para 110) that, 110. (iii)…Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licenced driver or one who was not disqualified to drive at the relevant time. 11. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable. 12. On facts, in the instant case, the Appellant/Complainant had employed the Driver, Dharmendra Singh as driver after checking his driving licence. The driving licence was purported to have been issued by the licencing authority, Sheikh Sarai, Delhi, however, the same could not be verified as the concerned officer of the licencing authority deposed that the record of the licence was not available with them. It is not the contention of the Respondent/ Insurance Company that the Appellant/complainant is guilty of willful negligence while employing the driver. The driver had been driving competently and there was no reason for the Appellant/Complainant to doubt the veracity of the drivers licence.

1[ds]7. Breach of conditions under Section 149(2)(a) of the Motor Vehicles Act, 1988 absolves the insurer of its liability to the insured. Section 149(2)(a)(ii) deals with the conditions regarding driving licence. In case the vehicle at the time of accident is driven by a person who is not duly licenced or by a person who has been disqualified from holding or obtaining a driving licence during the period of disqualification, the insurer is not liable for compensation. In the instant case it is a matter of fact that no record of the licence bearing no. P03041288753070 was found with the licensing authority10. The view taken by the National Commission that the law as settled in the Pepsu case (Supra) is not applicable in the present matter as it related to third-party claim is erroneous11. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable12. On facts, in the instant case, the Appellant/Complainant had employed the Driver, Dharmendra Singh as driver after checking his driving licence. The driving licence was purported to have been issued by the licencing authority, Sheikh Sarai, Delhi, however, the same could not be verified as the concerned officer of the licencing authority deposed that the record of the licence was not available with them. It is not the contention of the Respondent/ Insurance Company that the Appellant/complainant is guilty of willful negligence while employing the driver. The driver had been driving competently and there was no reason for the Appellant/Complainant to doubt the veracity of the drivers licence.

### 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: forth the facts of the present case, the question of law that arises for consideration is what is the extent of care/diligence expected of the employer/insured while employing a driver? To answer this question, we shall advert to the legal position regarding the liability of the Insurance Company when the driver of the offending vehicle possessed an invalid/fake driving licence. In the case of United India Insurance Co. Ltd. vs. Lehru & Ors. (2003) 3 SCC 338 : 2003 SCC (Cri) 641 a two Judge Bench of this court has taken the view that the Insurance Company cannot be permitted to avoid its liability on the ground that the person driving the vehicle at the time of the accident was not duly licenced. It was further held that the willful breach of the conditions of the policy should be established. The law with this respect has been discussed in detail in the case of Pepsu RTC vs. National Insurance Co. (2013) 10 SCC 217 We may extract the relevant paragraph from the Judgment: (Pepsu case, SCC pp. 223-24, para10) In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singhs case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation. 9. While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid/fake however the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of willful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer. 10. The view taken by the National Commission that the law as settled in the Pepsu case (Supra) is not applicable in the present matter as it related to third-party claim is erroneous. It has been categorically held in the case of National Insurance Co. Ltd. vs. Swaran Singh & Ors. (2004) 3 SCC 297 : 2004 SCC (Cri) 733 (SCC pp.341, para 110) that, 110. (iii)…Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licenced driver or one who was not disqualified to drive at the relevant time. 11. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable. 12. On facts, in the instant case, the Appellant/Complainant had employed the Driver, Dharmendra Singh as driver after checking his driving licence. The driving licence was purported to have been issued by the licencing authority, Sheikh Sarai, Delhi, however, the same could not be verified as the concerned officer of the licencing authority deposed that the record of the licence was not available with them. It is not the contention of the Respondent/ Insurance Company that the Appellant/complainant is guilty of willful negligence while employing the driver. The driver had been driving competently and there was no reason for the Appellant/Complainant to doubt the veracity of the drivers licence. ### Response: 1

M/S. Prestige Lights Ltd Vs. State Bank Of India

the said property is free from all encumbrances, claims or demands of any kind or nature whatsoever. I/We shall not sell, charge, encumbrance, lease, dispose off or deal with any of my/our property in any manner whatsoever until such time all the liabilities under the various facilities granted to M/s. Prestige Lights Ltd. has been paid in full by the said M/s. Prestige Lights Ltd. and the deponent has got the discharge confirmed in writing. In spite of the above declaration, undertaking and affidavit, encumbrance has been created by the deponent and the Company over the property in respect of which such undertaking has been furnished. 29. It was also alleged by the respondent-Bank that the appellant-Company had shifted machinery to other place and stock statements were not supplied to the respondent-Bank. On August 4, 2004, the Central Excise and Custom Officials attached the Plant and Machinery of the Company for recovery of its dues. On August 25, 2004, Uttar Pradesh Financial Corporation issued a notice under Section 29 of the State Financial Corporation Act, 1951 for taking over physical possession of the assets of the appellant-Company. On May 16, 2005 a collusive suit was got filed by one Yashpal in Haridwar Court wherein the plaintiff had asserted that he was the tenant of Sudha Goel in respect of mortgaged property in question and he should not be dispossessed. A summons of the said suit was issued to the respondent-Bank. On May 24, 2005, the respondent-Bank received another summons from a Court that one Vijendra Singh Tyagi claimed himself to be the tenant of the aforesaid mortgaged premises. 30. It is thus clear that though the appellant-Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter. 31. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136], in the following words: (I)t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should made a full and fair disclosure of all the material facts facts, not law. He must not misstate the law if he can help it-the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the imperfect statement. (emphasis supplied) 32. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. 33. In the case on hand, several facts had been suppressed by the appellant-Company. Collusive action has been taken with a view to deprive the respondent-Bank from realizing legal and legitimate dues to which it was otherwise entitled. The Company had never disclosed that it had created third partys interests in the property mortgaged with the Bank. It had also shifted machinery and materials without informing the respondent-Bank prejudicially affecting the interest of the Bank. It has created tenancy or third partys right over the property mortgaged with the Bank. All these allegations are relevant when such petitioner comes before the Court and prays for discretionary and equitable relief. In our judgment, the submission of the respondent-Bank is well-founded that appellant is not entitled to ask for an extraordinary remedy under Article 226 of the Constitution from the High Court as also equitable remedy from this Court under Article 136 of the Constitution. A party, whose hands are soiled, cannot hold the writ of the Court. We, therefore, hold that the High Court was not in error in refusing relief to the appellant-Company. 34. For the foregoing reasons, we hold that by dismissing the petition in limine, the High Court has neither committed an error of law nor of jurisdiction. The appellant-Company is not entitled to any relief. Though the respondent-Bank is right in submitting that the appellant has suppressed material facts from this Court as also that it has not complied with interim order passed by the Court and it has, therefore, no right to claim hearing on merits, we have considered the merits of the matter also and we are of the considered view that no case has been made out for interference with the action taken by the respondent-Bank or the order passed by the High Court. 35.

0[ds]hold that by dismissing the petition in limine, the High Court has neither committed an error of law nor of jurisdiction. The appellant-Company is not entitled to any relief. Though the respondent-Bank is right in submitting that the appellant has suppressed material facts from this Court as also that it has not complied with interim order passed by the Court and it has, therefore, no right to claim hearing on merits, we have considered the merits of the matter also and we are of the considered view that no case has been made out for interference with the action taken by the respondent-Bank or the order passed 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: the said property is free from all encumbrances, claims or demands of any kind or nature whatsoever. I/We shall not sell, charge, encumbrance, lease, dispose off or deal with any of my/our property in any manner whatsoever until such time all the liabilities under the various facilities granted to M/s. Prestige Lights Ltd. has been paid in full by the said M/s. Prestige Lights Ltd. and the deponent has got the discharge confirmed in writing. In spite of the above declaration, undertaking and affidavit, encumbrance has been created by the deponent and the Company over the property in respect of which such undertaking has been furnished. 29. It was also alleged by the respondent-Bank that the appellant-Company had shifted machinery to other place and stock statements were not supplied to the respondent-Bank. On August 4, 2004, the Central Excise and Custom Officials attached the Plant and Machinery of the Company for recovery of its dues. On August 25, 2004, Uttar Pradesh Financial Corporation issued a notice under Section 29 of the State Financial Corporation Act, 1951 for taking over physical possession of the assets of the appellant-Company. On May 16, 2005 a collusive suit was got filed by one Yashpal in Haridwar Court wherein the plaintiff had asserted that he was the tenant of Sudha Goel in respect of mortgaged property in question and he should not be dispossessed. A summons of the said suit was issued to the respondent-Bank. On May 24, 2005, the respondent-Bank received another summons from a Court that one Vijendra Singh Tyagi claimed himself to be the tenant of the aforesaid mortgaged premises. 30. It is thus clear that though the appellant-Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter. 31. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136], in the following words: (I)t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should made a full and fair disclosure of all the material facts facts, not law. He must not misstate the law if he can help it-the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the imperfect statement. (emphasis supplied) 32. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. 33. In the case on hand, several facts had been suppressed by the appellant-Company. Collusive action has been taken with a view to deprive the respondent-Bank from realizing legal and legitimate dues to which it was otherwise entitled. The Company had never disclosed that it had created third partys interests in the property mortgaged with the Bank. It had also shifted machinery and materials without informing the respondent-Bank prejudicially affecting the interest of the Bank. It has created tenancy or third partys right over the property mortgaged with the Bank. All these allegations are relevant when such petitioner comes before the Court and prays for discretionary and equitable relief. In our judgment, the submission of the respondent-Bank is well-founded that appellant is not entitled to ask for an extraordinary remedy under Article 226 of the Constitution from the High Court as also equitable remedy from this Court under Article 136 of the Constitution. A party, whose hands are soiled, cannot hold the writ of the Court. We, therefore, hold that the High Court was not in error in refusing relief to the appellant-Company. 34. For the foregoing reasons, we hold that by dismissing the petition in limine, the High Court has neither committed an error of law nor of jurisdiction. The appellant-Company is not entitled to any relief. Though the respondent-Bank is right in submitting that the appellant has suppressed material facts from this Court as also that it has not complied with interim order passed by the Court and it has, therefore, no right to claim hearing on merits, we have considered the merits of the matter also and we are of the considered view that no case has been made out for interference with the action taken by the respondent-Bank or the order passed by the High Court. 35. ### Response: 0

UNION OF INDIA AND ORS Vs. P. BALASUBRAHMANAYAM

specifically paras 704 and 705, were examined qua the instructions contained therein and the consequence of non-compliance thereof by the investigating officer dealing with the departmental trap. The instructions were held to be procedural in character and not of a substantive nature and they were meant not for the delinquent officer but for guidance of the investigating officer. Thus, a violation thereof ipso facto was held not to vitiate the departmental proceedings. 13. On the other hand, the respondent, who appeared in-person, contended that the Circular was statutory in nature as it was issued under the authority of the Central Vigilance Commission, being a statutory body. Thus, the procedure prescribed by the Circular and Rule 12(v) of the Postal Manual Vol. III was mandatory, which was not complied with. The respondent relied on a few judgments in this behalf. It may be observed that the same were generic in character on the point of non compliance with executive instructions. Thus, if procedural safeguards are provided, these judgments note, the same should be observed as they prevent any arbitrary exercise of power. In fact, in one of the cases, the expression used is a departmental instruction cannot totally be ignored (Moni Shankar case (supra)) [emphasis supplied]. The principle propounded was that any wanton or deliberate deviation in implementation of the rules could breed indiscipline among the services and amount to undue favour to some while denial of equality among many(A.N. Sehgal case (supra)). Suffice to say, that in order that such executive instructions have force of statutory rules, it must be shown that they have been issued under the authority conferred on the Central Government or the State Government by some statutes or under some provisions of the Constitution providing therefor(Chief Commercial Manager case (supra)). 14. We may add that the respondent also sought to contend that the action of the appellants was retributive in character as he had earlier endeavoured to highlight the manipulations in the result of Postal Service Group-B cadre examinations and the legal proceedings that followed therefrom. 15. We have given thought to the aforesaid limited controversy and examined the records. We are of the view that the reliance on the Circular really does not help the case of the respondent inter alia for the reason that once it is found that the case does not have a vigilance angle, albeit after conclusion of inquiry, no prejudice can be said to have caused to the respondent. If we may say so, the fairness of the departmental proceedings is obvious on the fact that all charges relating to bribery had been held in favour of the respondent and those charges have been rejected. The only charges found proved are of procedural irregularities, over which there are concurrent findings of the relevant authorities based on certain admissions made by the respondent himself. The proceedings have also got prolonged because at every stage the respondent sought to challenge them in judicial forums, and that too not very successfully. 16. We find it difficult to disturb the findings of the disciplinary authority insofar as the procedural lapses are concerned. It really shows that there was negligence on the part of the respondent in performing his duties. That being so, we do not feel it was appropriate for the High Court to have set aside the result of the proceedings against the respondent by giving him a clean chit on the issue as a consequence of the Circular not being followed. It would be right to say that suppose these charges of bribery had not been levelled and only procedural lapses were examined, this plea would not have been open to the respondent. 17. In the facts of the case, the result has arisen after the inquiry but then, at the cost of repetition we may say, there are no adverse consequences to the respondent with respect to the bribery charges, but in fact favourable consequences. 18. We are, thus, of the view that the course adopted by the Tribunal was the appropriate course of action, i.e., the procedural lapses having been found and the bribery allegation having been rejected the appropriate course would have been to examine only the issue of disproportionality of punishment. 19. It is correct to say that judicial forums do not sit as an appellate authority to substitute their mind with the mind of the disciplinary authority insofar as the finding is concerned. However, disproportionality of punishment is a concept certainly not unknown to service jurisprudence and has received consideration inter alia of this Court( S.R. Tewari v. Union of India and Anr. (2013) 6 SCC 602 ). This is what the Tribunal proposed to do. We may examine the finding of the Tribunal on the issue of disproportionality of punishment and are in complete agreement with the view that the punishment of compulsory retirement was completely disproportionate and harsh, keeping in mind the finding arrived at by the disciplinary authority. It, thus, seems to appear that the charges originally levelled may have persuaded the concerned authority to impose punishment; losing site of the fact that the allegations qua bribery had not been found against the respondent. 20. The question is whether the Tribunal proceeded correctly in passing the final direction to impose appropriate minor penalty. The Tribunal itself did not impose the punishment but left it to the authority concerned (for appropriate course of action). It was of the view that considering the findings of procedural lapses against the respondent, the appropriate punishment could only be a minor penalty and not a major penalty. With this again, we are in agreement with the course of action adopted. The nature of charges found against the respondent can hardly be one to call for a major penalty, keeping in mind that there was no bribery charge. Anyone can make mistakes. The consequences of mistakes should not be unduly harsh. We are, thus, of the view that the direction of the Tribunal is what is liable to be sustained.

1[ds]15. We have given thought to the aforesaid limited controversy and examined the records. We are of the view that the reliance on the Circular really does not help the case of the respondent inter alia for the reason that once it is found that the case does not have a vigilance angle, albeit after conclusion of inquiry, no prejudice can be said to have caused to the respondent. If we may say so, the fairness of the departmental proceedings is obvious on the fact that all charges relating to bribery had been held in favour of the respondent and those charges have been rejected. The only charges found proved are of procedural irregularities, over which there are concurrent findings of the relevant authorities based on certain admissions made by the respondent himself. The proceedings have also got prolonged because at every stage the respondent sought to challenge them in judicial forums, and that too not very successfully.16. We find it difficult to disturb the findings of the disciplinary authority insofar as the procedural lapses are concerned. It really shows that there was negligence on the part of the respondent in performing his duties. That being so, we do not feel it was appropriate for the High Court to have set aside the result of the proceedings against the respondent by giving him a clean chit on the issue as a consequence of the Circular not being followed. It would be right to say that suppose these charges of bribery had not been levelled and only procedural lapses were examined, this plea would not have been open to the respondent.17. In the facts of the case, the result has arisen after the inquiry but then, at the cost of repetition we may say, there are no adverse consequences to the respondent with respect to the bribery charges, but in fact favourable consequences.18. We are, thus, of the view that the course adopted by the Tribunal was the appropriate course of action, i.e., the procedural lapses having been found and the bribery allegation having been rejected the appropriate course would have been to examine only the issue of disproportionality of punishment.19. It is correct to say that judicial forums do not sit as an appellate authority to substitute their mind with the mind of the disciplinary authority insofar as the finding is concerned. However, disproportionality of punishment is a concept certainly not unknown to service jurisprudence and has received consideration inter alia of this Court( S.R. Tewari v. Union of India and Anr. (2013) 6 SCC 602 ). This is what the Tribunal proposed to do. We may examine the finding of the Tribunal on the issue of disproportionality of punishment and are in complete agreement with the view that the punishment of compulsory retirement was completely disproportionate and harsh, keeping in mind the finding arrived at by the disciplinary authority. It, thus, seems to appear that the charges originally levelled may have persuaded the concerned authority to impose punishment; losing site of the fact that the allegations qua bribery had not been found against the respondent.The Tribunal itself did not impose the punishment but left it to the authority concerned (for appropriate course of action). It was of the view that considering the findings of procedural lapses against the respondent, the appropriate punishment could only be a minor penalty and not a major penalty. With this again, we are in agreement with the course of action adopted. The nature of charges found against the respondent can hardly be one to call for a major penalty, keeping in mind that there was no bribery charge. Anyone can make mistakes. The consequences of mistakes should not be unduly harsh. We are, thus, of the view that the direction of the Tribunal is what is liable to be sustained.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: specifically paras 704 and 705, were examined qua the instructions contained therein and the consequence of non-compliance thereof by the investigating officer dealing with the departmental trap. The instructions were held to be procedural in character and not of a substantive nature and they were meant not for the delinquent officer but for guidance of the investigating officer. Thus, a violation thereof ipso facto was held not to vitiate the departmental proceedings. 13. On the other hand, the respondent, who appeared in-person, contended that the Circular was statutory in nature as it was issued under the authority of the Central Vigilance Commission, being a statutory body. Thus, the procedure prescribed by the Circular and Rule 12(v) of the Postal Manual Vol. III was mandatory, which was not complied with. The respondent relied on a few judgments in this behalf. It may be observed that the same were generic in character on the point of non compliance with executive instructions. Thus, if procedural safeguards are provided, these judgments note, the same should be observed as they prevent any arbitrary exercise of power. In fact, in one of the cases, the expression used is a departmental instruction cannot totally be ignored (Moni Shankar case (supra)) [emphasis supplied]. The principle propounded was that any wanton or deliberate deviation in implementation of the rules could breed indiscipline among the services and amount to undue favour to some while denial of equality among many(A.N. Sehgal case (supra)). Suffice to say, that in order that such executive instructions have force of statutory rules, it must be shown that they have been issued under the authority conferred on the Central Government or the State Government by some statutes or under some provisions of the Constitution providing therefor(Chief Commercial Manager case (supra)). 14. We may add that the respondent also sought to contend that the action of the appellants was retributive in character as he had earlier endeavoured to highlight the manipulations in the result of Postal Service Group-B cadre examinations and the legal proceedings that followed therefrom. 15. We have given thought to the aforesaid limited controversy and examined the records. We are of the view that the reliance on the Circular really does not help the case of the respondent inter alia for the reason that once it is found that the case does not have a vigilance angle, albeit after conclusion of inquiry, no prejudice can be said to have caused to the respondent. If we may say so, the fairness of the departmental proceedings is obvious on the fact that all charges relating to bribery had been held in favour of the respondent and those charges have been rejected. The only charges found proved are of procedural irregularities, over which there are concurrent findings of the relevant authorities based on certain admissions made by the respondent himself. The proceedings have also got prolonged because at every stage the respondent sought to challenge them in judicial forums, and that too not very successfully. 16. We find it difficult to disturb the findings of the disciplinary authority insofar as the procedural lapses are concerned. It really shows that there was negligence on the part of the respondent in performing his duties. That being so, we do not feel it was appropriate for the High Court to have set aside the result of the proceedings against the respondent by giving him a clean chit on the issue as a consequence of the Circular not being followed. It would be right to say that suppose these charges of bribery had not been levelled and only procedural lapses were examined, this plea would not have been open to the respondent. 17. In the facts of the case, the result has arisen after the inquiry but then, at the cost of repetition we may say, there are no adverse consequences to the respondent with respect to the bribery charges, but in fact favourable consequences. 18. We are, thus, of the view that the course adopted by the Tribunal was the appropriate course of action, i.e., the procedural lapses having been found and the bribery allegation having been rejected the appropriate course would have been to examine only the issue of disproportionality of punishment. 19. It is correct to say that judicial forums do not sit as an appellate authority to substitute their mind with the mind of the disciplinary authority insofar as the finding is concerned. However, disproportionality of punishment is a concept certainly not unknown to service jurisprudence and has received consideration inter alia of this Court( S.R. Tewari v. Union of India and Anr. (2013) 6 SCC 602 ). This is what the Tribunal proposed to do. We may examine the finding of the Tribunal on the issue of disproportionality of punishment and are in complete agreement with the view that the punishment of compulsory retirement was completely disproportionate and harsh, keeping in mind the finding arrived at by the disciplinary authority. It, thus, seems to appear that the charges originally levelled may have persuaded the concerned authority to impose punishment; losing site of the fact that the allegations qua bribery had not been found against the respondent. 20. The question is whether the Tribunal proceeded correctly in passing the final direction to impose appropriate minor penalty. The Tribunal itself did not impose the punishment but left it to the authority concerned (for appropriate course of action). It was of the view that considering the findings of procedural lapses against the respondent, the appropriate punishment could only be a minor penalty and not a major penalty. With this again, we are in agreement with the course of action adopted. The nature of charges found against the respondent can hardly be one to call for a major penalty, keeping in mind that there was no bribery charge. Anyone can make mistakes. The consequences of mistakes should not be unduly harsh. We are, thus, of the view that the direction of the Tribunal is what is liable to be sustained. ### Response: 1

S. Pratap Singh Vs. The State Of Punjab

reply made by the State is also not very helpful or satisfactory. It is precisely where a challenge to the validity of a statute is made by a party under Article 14 and he fails to adduce satisfactory evidence in support of his challenge that the task of the Court to decide the issue becomes very difficult. In considering the validity of a statute under Art. 14, we cannot ignore the well-established principle that the legislature can make class legislation, provided the classification on which it purports to be based is rational and has a reasonable nexus with the object intended to be achieved by it and so, on the failure of the party to show that the said classification is irrational, or has no nexus with the object intended to be achieved by the impugned Act, the initial presumption of constitutionality would help the State to urge that the failure of the party challenging the validity to rebut the initial presumption goes against his claim that the Act is invalid. In all cases where the material adduced before the Court in matters relating to Art. 14 is unsatisfactory, the Court may have to allow the State to lean on the doctrine of initial presumption of constitutionality, and that is precisely what has happened in these cases. On the whole, therefore, we must hold that the petitioners have failed to show that the impugned Act contravenes Art. 14 of the Constitution.13. It is then argued that the Act is invalid because the definition of the expression "Ruler" is inconsistent with the definition of the said word prescribed by Art. 366(22) of the Constitution. Art. 366(22) defines a "Ruler" in relation to an Indian State as meaning the Prince, Chief or other person by whom any such covenant or agreement as is referred to in clause (1) of At. 291 was entered into and who for the time being is recognised by the President as the Ruler of the State and includes any person who for the time being is recognised by the President as the successor of such Ruler. There is no doubt that the definition of the word "Ruler" prescribed by S. 2(h) of the Act is wider than that prescribed by Art. 366(22). The dependants of the Ruler and his relatives are not included in the latter definition, though they are expressly included in the former. But it must be remembered that the definitions prescribed by Art. 366 are intended for the purpose of interpreting the articles in the Constitution itself, unless the context otherwise requires, and so the argument that the definition of the word "Ruler" prescribed by the Act is inconsistent with the definition prescribed by Art. 366 (22), has really no substance or meaning. Besides, it is fallacious to assume that the Act has made any provisions in respect of Rulers as such; what the Act has purported to do is to authorise the levy of assessment and rent in respect of lands situated in Orissa; these lands are the private lands of the Rulers as defined by S. 2 (h), and so, there is no doubt that the whole object of defining the word "Ruler" is to specify and describe the lands in respect of which the operative provisions of the Act would come into play. The subject-matter of the levy consists of the private lands and the compendious way adopted by the Legislature in describing the said lands is that they are the private lands of the Rulers. It is in that connection that the word "Ruler" has been broadly defined in an inclusive manner. If the legislature had said that the private lands of the dependants and relatives of Rulers were liable to the levy permitted under S. 3 the petitioners would not have been able to raise any objection because, then, it would have been unnecessary to define the word "Ruler" in a comprehensive way. Once it is conceded as it must be, that the Orissa Legislature was competent to pass the Act under Entry 18 of List II of the Seventh Schedule, it is idle to suggest that the method adopted by the Act in describing the lands which are made liable to pay assessment, introduces any infirmity in the Act itself. Therefore, we are satisfied that the contention that the definition of the word "Ruler" is inconsistent with Art. 366(22) and that makes the whole Act void, is without any substance.14. The third argument which was faintly urged before us is that the Act contravenes the provisions of Art. 31 of the Constitution. This argument is wholly misconceived. Article 31(1) deals with the deprivation of property save by authority of law, and cannot obviously be invoked against any of the provisions of Act; and Art. 31 (2) deals with compulsory acquisition or requisition which also is entirely inapplicable to the present Act. What the Act has purported to do is to authorise the levy of assessment in respect of lands which till then had been exempted from the said levy, and as Art. 31(5) (b) (i) provides nothing contained in clause (2) shall affect the provisions of any law which the State may make for the purpose of imposing or levying any tax or penalty. If the Orissa Legislature has imposed a tax in the form of the assessment of the private lands of Rulers, clearly it has not purported either to deprive the Rules of their property, or to acquire or requisition the said property; it is a simple measure authorising the levy of a tax in respect of agricultural lands and as such, it is entirely outside the purview of Art. 31. It appears that in Pratap Kesari Deo v. State of Orissa, AIR 1961 Orissa 131 the validity of the Act was challenged before the Orissa High Court, and the said High Court has repelled challenge and upheld the validity of the Act. In our opinion, the view taken by the Orissa High Court is right.

0[ds]only in regard to the private lands of Rulers. That is one relevant and historical fact which cannot be ignored.9. Proceeding to deal with the private lands of Rulers on this basis the legislature has to prescribed the method of determining the rent payable by the said lands; and the relevant factors specified by S. 6 appear to be just and substantially similar to the considerations which are generally taken into account at the time of survey settlement for determining the proper revenue assessment on Ryotwari lands. There has been some argument at the Bar before us as to whether the market value of the land which has been prescribed as a relevant consideration by S. 6 was also treated as relevant on the occasion of the earlier settlement. No material has, however, been placed before us in that behalf, and so it is not possible to decide whether this consideration was taken into account on the earlier occasion or not, and if it was not, what the effect of the said circumstances would be on the validity of the impugned statute. Having regard to the relevant factors prescribed by S. 6, it would, however, not be unreasonable to take the view that fair and equitable tests have been laid down for determining the rent which should be assessed in respect of the private lands of the rulers, and in the absence of any proof that there has been a material departure in that behalf, we find it difficult to uphold the plea that S. 6 can be attacked on the ground that it has contravened Art. 14 of the Constitution.The allegations made by the petitioners in challenging the validity of the Act are somewhat vague and the materials placed by them in support of their challenge are insufficient, inadequate and unsatisfactory. The reply made by the State is also not very helpful or satisfactory. It is precisely where a challenge to the validity of a statute is made by a party under Article 14 and he fails to adduce satisfactory evidence in support of his challenge that the task of the Court to decide the issue becomes very difficult. In considering the validity of a statute under Art. 14, we cannot ignore the well-established principle that the legislature can make class legislation, provided the classification on which it purports to be based is rational and has a reasonable nexus with the object intended to be achieved by it and so, on the failure of the party to show that the said classification is irrational, or has no nexus with the object intended to be achieved by the impugned Act, the initial presumption of constitutionality would help the State to urge that the failure of the party challenging the validity to rebut the initial presumption goes against his claim that the Act is invalid. In all cases where the material adduced before the Court in matters relating to Art. 14 is unsatisfactory, the Court may have to allow the State to lean on the doctrine of initial presumption of constitutionality, and that is precisely what has happened in these cases. On the whole, therefore, we must hold that the petitioners have failed to show that the impugned Act contravenes Art. 14 of theis no doubt that the definition of the word "Ruler" prescribed by S. 2(h) of the Act is wider than that prescribed by Art. 366(22). The dependants of the Ruler and his relatives are not included in the latter definition, though they are expressly included in the former. But it must be remembered that the definitions prescribed by Art. 366 are intended for the purpose of interpreting the articles in the Constitution itself, unless the context otherwise requires, and so the argument that the definition of the word "Ruler" prescribed by the Act is inconsistent with the definition prescribed by Art. 366 (22), has really no substance or meaning. Besides, it is fallacious to assume that the Act has made any provisions in respect of Rulers as such; what the Act has purported to do is to authorise the levy of assessment and rent in respect of lands situated in Orissa; these lands are the private lands of the Rulers as defined by S. 2 (h), and so, there is no doubt that the whole object of defining the word "Ruler" is to specify and describe the lands in respect of which the operative provisions of the Act would come into play. The subject-matter of the levy consists of the private lands and the compendious way adopted by the Legislature in describing the said lands is that they are the private lands of the Rulers. It is in that connection that the word "Ruler" has been broadly defined in an inclusive manner. If the legislature had said that the private lands of the dependants and relatives of Rulers were liable to the levy permitted under S. 3 the petitioners would not have been able to raise any objection because, then, it would have been unnecessary to define the word "Ruler" in a comprehensive way. Once it is conceded as it must be, that the Orissa Legislature was competent to pass the Act under Entry 18 of List II of the Seventh Schedule, it is idle to suggest that the method adopted by the Act in describing the lands which are made liable to pay assessment, introduces any infirmity in the Act itself. Therefore, we are satisfied that the contention that the definition of the word "Ruler" is inconsistent with Art. 366(22) and that makes the whole Act void, is without anyargument is wholly misconceived. Article 31(1) deals with the deprivation of property save by authority of law, and cannot obviously be invoked against any of the provisions of Act; and Art. 31 (2) deals with compulsory acquisition or requisition which also is entirely inapplicable to the present Act. What the Act has purported to do is to authorise the levy of assessment in respect of lands which till then had been exempted from the said levy, and as Art. 31(5) (b) (i) provides nothing contained in clause (2) shall affect the provisions of any law which the State may make for the purpose of imposing or levying any tax or penalty. If the Orissa Legislature has imposed a tax in the form of the assessment of the private lands of Rulers, clearly it has not purported either to deprive the Rules of their property, or to acquire or requisition the said property; it is a simple measure authorising the levy of a tax in respect of agricultural lands and as such, it is entirely outside the purview of Art. 31. It appears that in Pratap Kesari Deo v. State of Orissa, AIR 1961 Orissa 131 the validity of the Act was challenged before the Orissa High Court, and the said High Court has repelled challenge and upheld the validity of the Act. In our opinion, the view taken by the Orissa High Court is right.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: reply made by the State is also not very helpful or satisfactory. It is precisely where a challenge to the validity of a statute is made by a party under Article 14 and he fails to adduce satisfactory evidence in support of his challenge that the task of the Court to decide the issue becomes very difficult. In considering the validity of a statute under Art. 14, we cannot ignore the well-established principle that the legislature can make class legislation, provided the classification on which it purports to be based is rational and has a reasonable nexus with the object intended to be achieved by it and so, on the failure of the party to show that the said classification is irrational, or has no nexus with the object intended to be achieved by the impugned Act, the initial presumption of constitutionality would help the State to urge that the failure of the party challenging the validity to rebut the initial presumption goes against his claim that the Act is invalid. In all cases where the material adduced before the Court in matters relating to Art. 14 is unsatisfactory, the Court may have to allow the State to lean on the doctrine of initial presumption of constitutionality, and that is precisely what has happened in these cases. On the whole, therefore, we must hold that the petitioners have failed to show that the impugned Act contravenes Art. 14 of the Constitution.13. It is then argued that the Act is invalid because the definition of the expression "Ruler" is inconsistent with the definition of the said word prescribed by Art. 366(22) of the Constitution. Art. 366(22) defines a "Ruler" in relation to an Indian State as meaning the Prince, Chief or other person by whom any such covenant or agreement as is referred to in clause (1) of At. 291 was entered into and who for the time being is recognised by the President as the Ruler of the State and includes any person who for the time being is recognised by the President as the successor of such Ruler. There is no doubt that the definition of the word "Ruler" prescribed by S. 2(h) of the Act is wider than that prescribed by Art. 366(22). The dependants of the Ruler and his relatives are not included in the latter definition, though they are expressly included in the former. But it must be remembered that the definitions prescribed by Art. 366 are intended for the purpose of interpreting the articles in the Constitution itself, unless the context otherwise requires, and so the argument that the definition of the word "Ruler" prescribed by the Act is inconsistent with the definition prescribed by Art. 366 (22), has really no substance or meaning. Besides, it is fallacious to assume that the Act has made any provisions in respect of Rulers as such; what the Act has purported to do is to authorise the levy of assessment and rent in respect of lands situated in Orissa; these lands are the private lands of the Rulers as defined by S. 2 (h), and so, there is no doubt that the whole object of defining the word "Ruler" is to specify and describe the lands in respect of which the operative provisions of the Act would come into play. The subject-matter of the levy consists of the private lands and the compendious way adopted by the Legislature in describing the said lands is that they are the private lands of the Rulers. It is in that connection that the word "Ruler" has been broadly defined in an inclusive manner. If the legislature had said that the private lands of the dependants and relatives of Rulers were liable to the levy permitted under S. 3 the petitioners would not have been able to raise any objection because, then, it would have been unnecessary to define the word "Ruler" in a comprehensive way. Once it is conceded as it must be, that the Orissa Legislature was competent to pass the Act under Entry 18 of List II of the Seventh Schedule, it is idle to suggest that the method adopted by the Act in describing the lands which are made liable to pay assessment, introduces any infirmity in the Act itself. Therefore, we are satisfied that the contention that the definition of the word "Ruler" is inconsistent with Art. 366(22) and that makes the whole Act void, is without any substance.14. The third argument which was faintly urged before us is that the Act contravenes the provisions of Art. 31 of the Constitution. This argument is wholly misconceived. Article 31(1) deals with the deprivation of property save by authority of law, and cannot obviously be invoked against any of the provisions of Act; and Art. 31 (2) deals with compulsory acquisition or requisition which also is entirely inapplicable to the present Act. What the Act has purported to do is to authorise the levy of assessment in respect of lands which till then had been exempted from the said levy, and as Art. 31(5) (b) (i) provides nothing contained in clause (2) shall affect the provisions of any law which the State may make for the purpose of imposing or levying any tax or penalty. If the Orissa Legislature has imposed a tax in the form of the assessment of the private lands of Rulers, clearly it has not purported either to deprive the Rules of their property, or to acquire or requisition the said property; it is a simple measure authorising the levy of a tax in respect of agricultural lands and as such, it is entirely outside the purview of Art. 31. It appears that in Pratap Kesari Deo v. State of Orissa, AIR 1961 Orissa 131 the validity of the Act was challenged before the Orissa High Court, and the said High Court has repelled challenge and upheld the validity of the Act. In our opinion, the view taken by the Orissa High Court is right. ### Response: 0

Commissioner of Income-Tax, Panaji, Goa Vs. Hede Consultancy Private Limited & Another

acquire any capital asset. The only advantage which the assessee derived by spending the money was that it got the lease of a new building at a low rent. From the business point of view, therefore, the assessee got the benefit of reduced rent. The expenditure was, therefore, treated as revenue expenditure. 12.The Apex Court while dealing with the said question also laid down the general principles applicable in determining whether expenditure is capital or revenue expenditure. They are as under:"The general principles applicable in determining whether a particular expenditure is capital or revenue expenditure are as follows: (1) Outlay is deemed to be capital when it is made for the initiation of a business, for extension of a business, or for a substantial replacement of equipment; (2) Expenditure may be treated as properly attributable to capital when it is made not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade. If what is got rid of by a lump sum payment is an annual business expense chargeable against revenue, the lump sum payment should equally be regarded as a business expense, but if the lump sum payment brings in a capital asset, then that puts the business on another footing altogether; (3) Whether for the purpose of the expenditure, any capital was withdrawn, or, in other words, whether the object of incurring the expenditure was to employ what was taken in as capital of the business. Again, it is to be seen whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital." 13.The Apex Court while dealing with this question relied on the following cases:(i) Lakshmiji Sugar Mills co. P. Ltd. vs. CIT, (1971) 82 ITR 376 (SC); wherein the assessee company was carrying on business of manufacture and sale of sugar. It paid to the Cane Development Council certain amounts by way of contribution for the construction and development of roads between the various sugarcane-producing centers and the sugar factories of the assessee. The road remained the property of the Government. The Apex Court held that the expenditure was not of capital nature and had to be allowed as an admissible deduction in computing the profits of the assessees business. The expenditure was incurred for the purpose of facilitating the running of the assessees motor vehicles and other means employed for transportation of sugarcane to its factories. (ii) In the case of L.H. Sugar Factory and Oils Mills (P) Ltd. vs. CIT, (1980) 125 ITR 293 (SC), the assessee was carrying on the business of manufacture and sale of sugar. It had its factory in U.P. The assessee paid a contribution towards meeting the cost of construction of roads in the area around it factory under a sugarcane development scheme. The question was whether this amount was deductible in computing the assessees profits. The Apex Court held that it was, because although the advantage secured was of long duration, it was not an advantage in the capital field because no tangible or intangible asset was acquired by the assessee; nor was there any profit to or expansion of the profit-making apparatus of the assessee. The amount was contributed for the purpose of facilitating the business of the assessee and making it more efficient and profitable. It was, therefore, held to be expenditure of revenue nature. (iii) In another case CIT vs. Associated Cement Co. Ltd., (1988) 172 ITR 257 (SC), the respondent-company entered into an agreement to supply water to the municipality and provide water pipelines as also to supply electricity for street lighting and put up a transmission line for that purpose. The assessee also agreed to concrete the main road from the factory to the railway station. The amounts expended for these purposes were held to be revenue expenditure since the installations and accessories were the assets of the Municipality and not of the assessee. The expenditure, therefore was held to be not of capital nature. The advantage secured by the respondent was immunity from liability to pay municipal rates and taxes for a period of 15 years. The Apex Court said that had these liabilities been paid the payment would have been on revenue account. Therefore, the advantage secured was in the field of revenue and not capital. (iv) In the case.of CIT vs. Bombay Dyeing and Manufacturing Co. Ltd., (1996) 219 ITR 521 (SC), the company contributed to the State Housing Board certain amounts for construction of tenements for its workers. The tenements remained the property of the Housing Board. It was held that the expenditure was incurred wholly and exclusively on the welfare of the employees and, therefore, constituted legitimate business expenditure. As the assessee-company acquired no ownership rights in the tenements, the Apex Court said that the expenditure was incurred merely with a view to carry on the business of the company more efficiently by having a contented labour force. All these cases have looked upon expenditure which did bring about some kind of an enduring benefit to the company as a revenue expenditure when the expenditure did not bring into existence any capital asset for the company. The asset which was created belonged to somebody else and the company derived an enduring business advantage by expending the amount. In all these cases, the expenses have been looked upon as having been made for the purpose of conducting the business of the assessee more profitably or more successfully. As in the present case also since the assets created by spending the said amount did not belong to the assessee but the assessee got the business advantage of using modern business premises at a low rent, thus saving considerable revenue expenditure for a considerably long period, the Tribunal was perfectly justified in coming to the conclusion that the expenditure should be looked upon as revenue expenditure. No fault can be found with the findings recorded by the tribunal.

0[ds]13.The Apex Court while dealing with this question relied on the following cases:(i) Lakshmiji Sugar Mills co. P. Ltd. vs. CIT, (1971) 82 ITR 376 (SC); wherein the assessee company was carrying on business of manufacture and sale of sugar. It paid to the Cane Development Council certain amounts by way of contribution for the construction and development of roads between the variouscenters and the sugar factories of the assessee. The road remained the property of the Government. The Apex Court held that the expenditure was not of capital nature and had to be allowed as an admissible deduction in computing the profits of the assessees business. The expenditure was incurred for the purpose of facilitating the running of the assessees motor vehicles and other means employed for transportation of sugarcane to itsIn the case of L.H. Sugar Factory and Oils Mills (P) Ltd. vs. CIT, (1980) 125 ITR 293 (SC), the assessee was carrying on the business of manufacture and sale of sugar. It had its factory in U.P. The assessee paid a contribution towards meeting the cost of construction of roads in the area around it factory under a sugarcane development scheme. The question was whether this amount was deductible in computing the assessees profits. The Apex Court held that it was, because although the advantage secured was of long duration, it was not an advantage in the capital field because no tangible or intangible asset was acquired by the assessee; nor was there any profit to or expansion of theapparatus of the assessee. The amount was contributed for the purpose of facilitating the business of the assessee and making it more efficient and profitable. It was, therefore, held to be expenditure of revenueIn another case CIT vs. Associated Cement Co. Ltd., (1988) 172 ITR 257 (SC), theentered into an agreement to supply water to the municipality and provide water pipelines as also to supply electricity for street lighting and put up a transmission line for that purpose. The assessee also agreed to concrete the main road from the factory to the railway station. The amounts expended for these purposes were held to be revenue expenditure since the installations and accessories were the assets of the Municipality and not of the assessee. The expenditure, therefore was held to be not of capital nature. The advantage secured by the respondent was immunity from liability to pay municipal rates and taxes for a period of 15 years. The Apex Court said that had these liabilities been paid the payment would have been on revenue account. Therefore, the advantage secured was in the field of revenue and notIn the case.of CIT vs. Bombay Dyeing and Manufacturing Co. Ltd., (1996) 219 ITR 521 (SC), the company contributed to the State Housing Board certain amounts for construction of tenements for its workers. The tenements remained the property of the Housing Board. It was held that the expenditure was incurred wholly and exclusively on the welfare of the employees and, therefore, constituted legitimate business expenditure. As theacquired no ownership rights in the tenements, the Apex Court said that the expenditure was incurred merely with a view to carry on the business of the company more efficiently by having a contented labourthese cases have looked upon expenditure which did bring about some kind of an enduring benefit to the company as a revenue expenditure when the expenditure did not bring into existence any capital asset for the company. The asset which was created belonged to somebody else and the company derived an enduring business advantage by expending the amount. In all these cases, the expenses have been looked upon as having been made for the purpose of conducting the business of the assessee more profitably or more successfully. As in the present case also since the assets created by spending the said amount did not belong to the assessee but the assessee got the business advantage of using modern business premises at a low rent, thus saving considerable revenue expenditure for a considerably long period, the Tribunal was perfectly justified in coming to the conclusion that the expenditure should be looked upon as revenue expenditure. No fault can be found with the findings recorded by the tribunal.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: acquire any capital asset. The only advantage which the assessee derived by spending the money was that it got the lease of a new building at a low rent. From the business point of view, therefore, the assessee got the benefit of reduced rent. The expenditure was, therefore, treated as revenue expenditure. 12.The Apex Court while dealing with the said question also laid down the general principles applicable in determining whether expenditure is capital or revenue expenditure. They are as under:"The general principles applicable in determining whether a particular expenditure is capital or revenue expenditure are as follows: (1) Outlay is deemed to be capital when it is made for the initiation of a business, for extension of a business, or for a substantial replacement of equipment; (2) Expenditure may be treated as properly attributable to capital when it is made not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade. If what is got rid of by a lump sum payment is an annual business expense chargeable against revenue, the lump sum payment should equally be regarded as a business expense, but if the lump sum payment brings in a capital asset, then that puts the business on another footing altogether; (3) Whether for the purpose of the expenditure, any capital was withdrawn, or, in other words, whether the object of incurring the expenditure was to employ what was taken in as capital of the business. Again, it is to be seen whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital." 13.The Apex Court while dealing with this question relied on the following cases:(i) Lakshmiji Sugar Mills co. P. Ltd. vs. CIT, (1971) 82 ITR 376 (SC); wherein the assessee company was carrying on business of manufacture and sale of sugar. It paid to the Cane Development Council certain amounts by way of contribution for the construction and development of roads between the various sugarcane-producing centers and the sugar factories of the assessee. The road remained the property of the Government. The Apex Court held that the expenditure was not of capital nature and had to be allowed as an admissible deduction in computing the profits of the assessees business. The expenditure was incurred for the purpose of facilitating the running of the assessees motor vehicles and other means employed for transportation of sugarcane to its factories. (ii) In the case of L.H. Sugar Factory and Oils Mills (P) Ltd. vs. CIT, (1980) 125 ITR 293 (SC), the assessee was carrying on the business of manufacture and sale of sugar. It had its factory in U.P. The assessee paid a contribution towards meeting the cost of construction of roads in the area around it factory under a sugarcane development scheme. The question was whether this amount was deductible in computing the assessees profits. The Apex Court held that it was, because although the advantage secured was of long duration, it was not an advantage in the capital field because no tangible or intangible asset was acquired by the assessee; nor was there any profit to or expansion of the profit-making apparatus of the assessee. The amount was contributed for the purpose of facilitating the business of the assessee and making it more efficient and profitable. It was, therefore, held to be expenditure of revenue nature. (iii) In another case CIT vs. Associated Cement Co. Ltd., (1988) 172 ITR 257 (SC), the respondent-company entered into an agreement to supply water to the municipality and provide water pipelines as also to supply electricity for street lighting and put up a transmission line for that purpose. The assessee also agreed to concrete the main road from the factory to the railway station. The amounts expended for these purposes were held to be revenue expenditure since the installations and accessories were the assets of the Municipality and not of the assessee. The expenditure, therefore was held to be not of capital nature. The advantage secured by the respondent was immunity from liability to pay municipal rates and taxes for a period of 15 years. The Apex Court said that had these liabilities been paid the payment would have been on revenue account. Therefore, the advantage secured was in the field of revenue and not capital. (iv) In the case.of CIT vs. Bombay Dyeing and Manufacturing Co. Ltd., (1996) 219 ITR 521 (SC), the company contributed to the State Housing Board certain amounts for construction of tenements for its workers. The tenements remained the property of the Housing Board. It was held that the expenditure was incurred wholly and exclusively on the welfare of the employees and, therefore, constituted legitimate business expenditure. As the assessee-company acquired no ownership rights in the tenements, the Apex Court said that the expenditure was incurred merely with a view to carry on the business of the company more efficiently by having a contented labour force. All these cases have looked upon expenditure which did bring about some kind of an enduring benefit to the company as a revenue expenditure when the expenditure did not bring into existence any capital asset for the company. The asset which was created belonged to somebody else and the company derived an enduring business advantage by expending the amount. In all these cases, the expenses have been looked upon as having been made for the purpose of conducting the business of the assessee more profitably or more successfully. As in the present case also since the assets created by spending the said amount did not belong to the assessee but the assessee got the business advantage of using modern business premises at a low rent, thus saving considerable revenue expenditure for a considerably long period, the Tribunal was perfectly justified in coming to the conclusion that the expenditure should be looked upon as revenue expenditure. No fault can be found with the findings recorded by the tribunal. ### Response: 0

K.L. Subbayya Vs. State of Karnataka

FAZAL ALI, J. 1. In this appeal by Special Leave the appellant has been convicted under section 34 of the Mysore Excise Act and sentenced to three months rigorous imprisonment and a fine of Rs. 100/- for being in possession of 48 bottles of liquor which were recovered from a car which was being driven by the appellant. Mr. Javali appearing for the appellant has raised a short point before us. He has submitted that the Inspector of Excise who searched the car along with the panchas had no jurisdiction to do so because he did so without complying with the provisions of section 54 of the Excise Act. In our opinion, the contention is well-founded and must prevail, Section 53 runs thus: If a Magistrate, upon information and after such inquiry (if any) as he thinks necessary, has reasons to believe that an offence under section 32, section 33, section 34, section 36 or section 37 has been, is being or is likely to be committed, he may issue a warrant- (a) for the search of any place in which he has reason to believe, that any intoxicant still, utensil, implement, apparatus or materials which are used for the commission of such offence or in respect of which such has been, is being, or is likely to be, committed, are kept or concealed, and (b) for the arrest of any person whom he has reason to believe to have been, to be, or to be likely to be engaged in the commission of any such offence. Thus this section relates to a contingency where the Statute enjoins that any inspector before searching a place must obtain a warrant from the magistrate. Section 54 is a special provision which arises in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate. 2. Section 54 runs thus: Whenever the Excise Commissioner or a Deputy Commissioner or any police officer not below the rank of an officer uncharge of a police station or any Excise Officer not below such rank as may be prescribed has reason to believe that an offence under section 32, section 33, section 34, section 36, or section 37 has been, is being, or is likely to be committed, and that a se arch warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief- (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act, and (b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid. 3. In the instant case, it is admitted that the inspector who searched the car of the appellant ha d not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of section 54 were not at all complied with. 4. This, therefore, renders the entire search without jurisdiction and as a logical corollary, vitiates the conviction. We feel that both sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyses the effect of the provisions of section 53 and 54. The High Court observed that these two sections were wholly irrelavant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far reaching consequences. It was, however, suggested that the word place would not include the car, but the definition of the word place under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of section 54 which renders the search completely without jurisdiction.

1[ds]In our opinion, the contention is well-founded and must prevail, Section 53 runs thus:If a Magistrate, upon information and after such inquiry (if any) as he thinks necessary, has reasons to believe that an offence under section 32, section 33, section 34, section 36 or section 37 has been, is being or is likely to be committed, he may issue a warrant-(a) for the search of any place in which he has reason to believe, that any intoxicant still, utensil, implement, apparatus or materials which are used for the commission of such offence or in respect of which such has been, is being, or is likely to be, committed, are kept or concealed, and(b) for the arrest of any person whom he has reason to believe to have been, to be, or to be likely to be engaged in the commission of any such offenceThus this section relates to a contingency where the Statute enjoins that any inspector before searching a place must obtain a warrant from the magistrateIn the instant case, it is admitted that the inspector who searched the car of the appellant ha d not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of section 54 were not at all complied withThis, therefore, renders the entire search without jurisdiction and as a logical corollary, vitiates the conviction. We feel that both sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyses the effect of the provisions of section 53 and 54. The High Court observed that these two sections were wholly irrelavant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far reaching consequences. It was, however, suggested that the word place would not include the car, but the definition of the word place under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of section 54 which renders the search completely without jurisdiction.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: FAZAL ALI, J. 1. In this appeal by Special Leave the appellant has been convicted under section 34 of the Mysore Excise Act and sentenced to three months rigorous imprisonment and a fine of Rs. 100/- for being in possession of 48 bottles of liquor which were recovered from a car which was being driven by the appellant. Mr. Javali appearing for the appellant has raised a short point before us. He has submitted that the Inspector of Excise who searched the car along with the panchas had no jurisdiction to do so because he did so without complying with the provisions of section 54 of the Excise Act. In our opinion, the contention is well-founded and must prevail, Section 53 runs thus: If a Magistrate, upon information and after such inquiry (if any) as he thinks necessary, has reasons to believe that an offence under section 32, section 33, section 34, section 36 or section 37 has been, is being or is likely to be committed, he may issue a warrant- (a) for the search of any place in which he has reason to believe, that any intoxicant still, utensil, implement, apparatus or materials which are used for the commission of such offence or in respect of which such has been, is being, or is likely to be, committed, are kept or concealed, and (b) for the arrest of any person whom he has reason to believe to have been, to be, or to be likely to be engaged in the commission of any such offence. Thus this section relates to a contingency where the Statute enjoins that any inspector before searching a place must obtain a warrant from the magistrate. Section 54 is a special provision which arises in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate. 2. Section 54 runs thus: Whenever the Excise Commissioner or a Deputy Commissioner or any police officer not below the rank of an officer uncharge of a police station or any Excise Officer not below such rank as may be prescribed has reason to believe that an offence under section 32, section 33, section 34, section 36, or section 37 has been, is being, or is likely to be committed, and that a se arch warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief- (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act, and (b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid. 3. In the instant case, it is admitted that the inspector who searched the car of the appellant ha d not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of section 54 were not at all complied with. 4. This, therefore, renders the entire search without jurisdiction and as a logical corollary, vitiates the conviction. We feel that both sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyses the effect of the provisions of section 53 and 54. The High Court observed that these two sections were wholly irrelavant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far reaching consequences. It was, however, suggested that the word place would not include the car, but the definition of the word place under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of section 54 which renders the search completely without jurisdiction. ### Response: 1

Kasturi & Sons Private Limited Vs. N. Salivateswaran & Another

relevant for our purpose. Under S. 33-C, sub-s. (2), where any workman is entitled to receive from his employer any benefit which is capable of being computed in terms of money, the amount at which such benefit may be computed may, subject to any rules made under this Act, be determined by such Labour Court as may be specified in this behalf by the appropriate Government, and the amount so determined should be recovered as provided for in sub-s. (1). Then follows sub-s. (3) which provides for an enquiry by the Labour Court into the question of computing the money value of the benefit in question. The Labour Court is empowered under this sub-section to appoint a commissioner who shall, after taking such evidence as may be necessary, the Labour Court shall determine the amount after considering the report of the commissioner and other circumstances of the case. These provisions indicate that, where an employee makes a claim for some money by virtue of the benefit to which he is entitled, an enquiry into the claim is contemplated by the Labour Court, and it is only after the Labour Court has decided the matter that the decision becomes enforceable under S. 33C (1) by a summary procedure. 12. It is true that, in the present case, the Government of Bombay has specified the authorities under the Payment of Wages Act and the Industrial Disputes Act as specified authorities under S. 17 to deal with applications of newspaper employees whose wages are less than Rs. 200 per month or more respectively; but there can be no doubt that when the second respondent entertained the first respondents application, he was acting as the specific authority under S. 17 and not as an industrial tribunal. It is clear that, under S. 17, the State Government would be entitled to specify any person it likes for the purpose of holding an enquiry under the said section.The powers of the authority specified under S. 17 must be found in the provisions of he Act itself and they cannot be inferred from the accidental circumstance that the specified authority otherwise is a member of the industrial tribunal; since there is no provision in the Act which confers on the specified authority the relevant and adequate powers to hold a formal enquiry, it would be difficult to accept the position that various questions which may arise between the working journalists and their employers were intended to be dealt with a summary and an informal manner without conferring adequate powers on the specified authority in that behalf.The second respondent authority himself was impressed by this argument but he was inclined to hold that the necessary power could be assumed by him by implication because he thought that, in the absence of such implied power, his jurisdiction under S. 17 could not be effectively exercised. In our opinion, this approach really begs the question. If the legislature did not confer adequate powers on the specified authority under S. 17, a more reasonable inference would be that the nature and scope of the powers under S. 17 is very limited and the legislature knew that, for holding such a limited and narrow enquiry, it was unnecessary to confer powers invariably associated with formal and complicated enquiries of a judicial or quasi-judicial character. We must accordingly hold that the second respondent had no jurisdiction to entertain the first respondents application at this stage. 13. It appears from the order made by the second respondent that he took the view that, though he had jurisdiction to deal with the application, it would have been open to him to refuse to exercise that jurisdiction and to direct the first respondent to establish his claim in the ordinary civil Court. He however, thought that he need not exercise that power in the present case. We are satisfied that the second respondent was in error in both these conclusions.If he had jurisdiction to deal with this matter under S. 17, it is difficult to appreciate how, in the absence of any provision in that behalf, he could have directed the first respondent to establish his claim in the ordinary civil Court. Such an order would clearly have amounted to the second respondents failure to exercise jurisdiction vested in him.Besides, if S. 17 had really given him discretion in this matter as assumed by the second respondent, on the merits of this case it would obviously have been a case which should have been referred to the ordinary civil Court. This, however, is now a matter of purely academic interest. 14. The question which still remains to be considered is : What would be the proper order to make on the present petition in view of our conclusion that the second respondent had no jurisdiction to entertain the first respondents application.The present petition purports to invoke our jurisdiction under Art. 32 of the Constitution and it was a valid and competent petition in so far as it challenged the vires of S. 17 itself; but, once S. 17 is held to be valid and in order, the competence of the petition under Art. 32 is naturally open to serious jeopardy. No question about the fundamental rights of the petitioner is involved and his grievance against the order passed by the second respondent cannot be ventilated by a petition under Art. 32. This position is fairly conceded by the learned counsel for the petitioner. He, however, argued that, if we construe S. 17 in his favour, and hold that the second respondent had no jurisdiction to entertain the first respondents application, his purpose would be effectively served even though technically his petition may ultimately be dismissed on the ground that it is not competent under Art. 32 of the Constitution.In our opinion, there is considerable force in this contention. We would accordingly hold that the second respondent has no jurisdiction to entertain the first respondents application; but, since the petition itself is not competent under Art. 32,

0[ds]In our opinion, this approach really begs the question. If the legislature did not confer adequate powers on the specified authority under S. 17, a more reasonable inference would be that the nature and scope of the powers under S. 17 is very limited and the legislature knew that, for holding such a limited and narrow enquiry, it was unnecessary to confer powers invariably associated with formal and complicated enquiries of a judicial or quasi-judicial character. We must accordingly hold that the second respondent had no jurisdiction to entertain the first respondents application at this stage13. It appears from the order made by the second respondent that he took the view that, though he had jurisdiction to deal with the application, it would have been open to him to refuse to exercise that jurisdiction and to direct the first respondent to establish his claim in the ordinary civil Court. He however, thought that he need not exercise that power in the present case. We are satisfied that the second respondent was in error in both these conclusions.If he had jurisdiction to deal with this matter under S. 17, it is difficult to appreciate how, in the absence of any provision in that behalf, he could have directed the first respondent to establish his claim in the ordinary civil Court. Such an order would clearly have amounted to the second respondents failure to exercise jurisdiction vested in him.Besides, if S. 17 had really given him discretion in this matter as assumed by the second respondent, on the merits of this case it would obviously have been a case which should have been referred to the ordinary civil Court. This, however, is now a matter of purely academic interestIn our opinion, there is considerable force in this contention. We would accordingly hold that the second respondent has no jurisdiction to entertain the first respondents application;; but,since the petition itself is not competent under Art. 32The present petition purports to invoke our jurisdiction under Art. 32 of the Constitution and it was a valid and competent petition in so far as it challenged the vires of S. 17; but,once S. 17 is held to be valid and in order, the competence of the petition under Art. 32 is naturally open to serious jeopardy. No question about the fundamental rights of the petitioner is involved and his grievance against the order passed by the second respondent cannot be ventilated by a petition under Art. 32. This position is fairly conceded by the learned counsel for the petitioner. He, however, argued that, if we construe S. 17 in his favour, and hold that the second respondent had no jurisdiction to entertain the first respondents application, his purpose would be effectively served even though technically his petition may ultimately be dismissed on the ground that it is not competent under Art. 32 of the Constitution.

### 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: relevant for our purpose. Under S. 33-C, sub-s. (2), where any workman is entitled to receive from his employer any benefit which is capable of being computed in terms of money, the amount at which such benefit may be computed may, subject to any rules made under this Act, be determined by such Labour Court as may be specified in this behalf by the appropriate Government, and the amount so determined should be recovered as provided for in sub-s. (1). Then follows sub-s. (3) which provides for an enquiry by the Labour Court into the question of computing the money value of the benefit in question. The Labour Court is empowered under this sub-section to appoint a commissioner who shall, after taking such evidence as may be necessary, the Labour Court shall determine the amount after considering the report of the commissioner and other circumstances of the case. These provisions indicate that, where an employee makes a claim for some money by virtue of the benefit to which he is entitled, an enquiry into the claim is contemplated by the Labour Court, and it is only after the Labour Court has decided the matter that the decision becomes enforceable under S. 33C (1) by a summary procedure. 12. It is true that, in the present case, the Government of Bombay has specified the authorities under the Payment of Wages Act and the Industrial Disputes Act as specified authorities under S. 17 to deal with applications of newspaper employees whose wages are less than Rs. 200 per month or more respectively; but there can be no doubt that when the second respondent entertained the first respondents application, he was acting as the specific authority under S. 17 and not as an industrial tribunal. It is clear that, under S. 17, the State Government would be entitled to specify any person it likes for the purpose of holding an enquiry under the said section.The powers of the authority specified under S. 17 must be found in the provisions of he Act itself and they cannot be inferred from the accidental circumstance that the specified authority otherwise is a member of the industrial tribunal; since there is no provision in the Act which confers on the specified authority the relevant and adequate powers to hold a formal enquiry, it would be difficult to accept the position that various questions which may arise between the working journalists and their employers were intended to be dealt with a summary and an informal manner without conferring adequate powers on the specified authority in that behalf.The second respondent authority himself was impressed by this argument but he was inclined to hold that the necessary power could be assumed by him by implication because he thought that, in the absence of such implied power, his jurisdiction under S. 17 could not be effectively exercised. In our opinion, this approach really begs the question. If the legislature did not confer adequate powers on the specified authority under S. 17, a more reasonable inference would be that the nature and scope of the powers under S. 17 is very limited and the legislature knew that, for holding such a limited and narrow enquiry, it was unnecessary to confer powers invariably associated with formal and complicated enquiries of a judicial or quasi-judicial character. We must accordingly hold that the second respondent had no jurisdiction to entertain the first respondents application at this stage. 13. It appears from the order made by the second respondent that he took the view that, though he had jurisdiction to deal with the application, it would have been open to him to refuse to exercise that jurisdiction and to direct the first respondent to establish his claim in the ordinary civil Court. He however, thought that he need not exercise that power in the present case. We are satisfied that the second respondent was in error in both these conclusions.If he had jurisdiction to deal with this matter under S. 17, it is difficult to appreciate how, in the absence of any provision in that behalf, he could have directed the first respondent to establish his claim in the ordinary civil Court. Such an order would clearly have amounted to the second respondents failure to exercise jurisdiction vested in him.Besides, if S. 17 had really given him discretion in this matter as assumed by the second respondent, on the merits of this case it would obviously have been a case which should have been referred to the ordinary civil Court. This, however, is now a matter of purely academic interest. 14. The question which still remains to be considered is : What would be the proper order to make on the present petition in view of our conclusion that the second respondent had no jurisdiction to entertain the first respondents application.The present petition purports to invoke our jurisdiction under Art. 32 of the Constitution and it was a valid and competent petition in so far as it challenged the vires of S. 17 itself; but, once S. 17 is held to be valid and in order, the competence of the petition under Art. 32 is naturally open to serious jeopardy. No question about the fundamental rights of the petitioner is involved and his grievance against the order passed by the second respondent cannot be ventilated by a petition under Art. 32. This position is fairly conceded by the learned counsel for the petitioner. He, however, argued that, if we construe S. 17 in his favour, and hold that the second respondent had no jurisdiction to entertain the first respondents application, his purpose would be effectively served even though technically his petition may ultimately be dismissed on the ground that it is not competent under Art. 32 of the Constitution.In our opinion, there is considerable force in this contention. We would accordingly hold that the second respondent has no jurisdiction to entertain the first respondents application; but, since the petition itself is not competent under Art. 32, ### Response: 0

RAMAKRISHNA MISSION Vs. KAGO KUNYA

a wider sense, there is no public law element involved in the enforcement of a private contract of service. 30. Having analysed the circumstances which were relied upon by the State of Arunachal Pradesh, we are of the view that in running the hospital, Ramakrishna Mission does not discharge a public function. Undoubtedly, the hospital is in receipt of some element of grant. The grants which are received by the hospital cover only a part of the expenditure. The terms of the grant do not indicate any form of governmental control in the management or day to day functioning of the hospital. The nature of the work which is rendered by Ramakrishna Mission, in general, including in relation to its activities concerning the hospital in question is purely voluntary. 31. Before an organisation can be held to discharge a public function, the function must be of a character that is closely related to functions which are performed by the State in its sovereign capacity. There is nothing on record to indicate that the hospital performs functions which are akin to those solely performed by State authorities. Medical services are provided by private as well as State entities. The character of the organisation as a public authority is dependent on the circumstances of the case. In setting up the hospital, the Mission cannot be construed as having assumed a public function. The hospital has no monopoly status conferred or mandated by law. That it was the first in the State to provide service of a particular dispensation does not make it an authority within the meaning of Article 226. State governments provide concessional terms to a variety of organisations in order to attract them to set up establishments within the territorial jurisdiction of the State. The State may encourage them as an adjunct of its social policy or the imperatives of economic development. The mere fact that land had been provided on a concessional basis to the hospital would not by itself result in the conclusion that the hospital performs a public function. In the present case, the absence of state control in the management of the hospital has a significant bearing on our coming to the conclusion that the hospital does not come within the ambit of a public authority. 32. It has been submitted before us that the hospital is subject to regulation by the Clinical Establishments (Registration and Regulation) Act 2010. Does the regulation of hospitals and nursing homes by law render the hospital a statutory body? Private individuals and organizations are subject to diverse obligations under the law. The law is a ubiquitous phenomenon. From the registration of birth to the reporting of death, law imposes obligations on diverse aspects of individual lives. From incorporation to dissolution, business has to act in compliance with law. But that does not make every entity or activity an authority under Article 226. Regulation by a statute does not constitute the hospital as a body which is constituted under the statute. Individuals and organisations are subject to statutory requirements in a whole host of activities today. That by itself cannot be conclusive of whether such an individual or organisation discharges a public function. In Federal Bank (supra), while deciding whether a private bank that is regulated by the Banking Regulation Act, 1949 discharges any public function, the court held thus: 33. …in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or a company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We dont find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor put any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. The respondents service with the Bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank… (emphasis supplied) 33. Thus, contracts of a purely private nature would not be subject to writ jurisdiction merely by reason of the fact that they are structured by statutory provisions. The only exception to this principle arises in a situation where the contract of service is governed or regulated by a statutory provision. Hence, for instance, in K K Saksena (supra) this Court held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed. 34. It is of relevance to note that the Act was enacted to provide for the regulation and registration of clinical establishments with a view to prescribe minimum standards of facilities and services. The Act, inter alia, stipulates conditions to be satisfied by clinical establishments for registration. However, the Act does not govern contracts of service entered into by the Hospital with respect to its employees. These fall within the ambit of purely private contracts, against which writ jurisdiction cannot lie. The sanctity of this distinction must be preserved. 35. For the above reasons, we are of the view that the Division Bench of the High Court was not justified in coming to the conclusion that the appellants are amenable to the writ jurisdiction under Article 226 of the Constitution as an authority within the meaning of the Article.

1[ds]16. Ramakrishna Mission runs a 263 bedded hospital at Itanagar. The grant in aid which is provided by the State government covers the cost of running 60 beds out of 263 bedded hospital. Relevant factual data in regard to the nature and extent of the grants has been placed on record. About 32.26 per cent of the total income of the hos- pital for 2014-2015, 23.33 for 2015-16 and 22.53 per cent for 2016-17 was from the grants provided by the State government. The revenue expenditure, the audited bal- ance sheets and accounts of the hospital indicate that 35.23 per cent of the expenditure for 2014-2015, 23.83 per cent for 2015-2016 and 20.57 per cent for 2016-2017 was borne from the finances provided by the State government17. In assessing whether the appellants are amenable to the writ jurisdiction under Article 226, we proceed on the basis of the following circumstances which have been pressed in aid both on behalf of the original petitioner before the High Court and, in re- sponse to the present appeal, by the State(i) A portion of the income of the hospital is generated out of the grants which are received from the State; and(ii) Land has been made available for the construction of the hospital by the State government on a concessional rateThe grant by the State government covers only a portion, namely, 60 beds out of the 263-beds of the hospital at Itanagar. Significantly, the State government does not con- trol the day to day functioning of the hospital. The management of the hospital is exclu- sively with the Ramakrishna Mission. Since the State government finances through its grants a portion of the income of the hospital, it requires the audited accounts to be submitted to the State government for scrutiny19. The hospital is a branch of the Ramakrishna Mission and is subject to its control. The Mission was established by Swami Vivekanand, the foremost disciple of Sri Ra- makrishna Paramhansa. Service to humanity is for the organisation co-equal with ser- vice to God as is reflected in the motto Atmano Mokshartham Jagad Hitaya Cha. The main object of the Ramakrishna Mission is to impart knowledge in and promote the study of Vedanta and its principles propounded by Sri Ramakrishna Paramahansa and practically illustrated by his own life and of comparative theology in its widest form. Its objects include, inter alia to establish, maintain, carry on and assist schools, colleges, universities, research institutions, libraries, hospitals and take up development and gen- eral welfare activities for the benefit of the underprivileged/ backward/ tribal people of society without any discrimination. These activities are voluntary, charitable and non- profit making in nature. The activities undertaken by the Mission, a non-profit entity are not closely related to those performed by the state in its sovereign capacity nor do they partake of the nature of a public duty20. The Governing Body of the Mission is constituted by members of the Board of Trustees of Ramakrishna Math and is vested with the power and authority to manage the organization. The properties and funds of the Mission and its management vest in the Governing Body. Any person can become a member of the Mission if elected by the Governing Body. Members on roll form the quorum of the annual general meetings. The Managing Committee comprises of members appointed by the Governing Body for managing the affairs of the Mission. Under the Memorandum of Association and Rules and Regulations of the Mission, there is no governmental control in the functioning, ad- ministration and day to day management of the Mission. The conditions of service of the employees of the hospital are governed by service rules which are framed by the Mission without the intervention of any governmental body21. In coming to the conclusion that the appellants fell within the description of an au- thority under Article 226, the High Court placed a considerable degree of reliance on the judgment of a two judge Bench of this Court in Andi Mukta (supra). Andi Mukta (supra) was a case where a public trust was running a college which was affiliated to Gujarat University, a body governed by State legislation. The teachers of the University and all its affiliated colleges were governed, insofar as their pay scales were concerned, by the recommendations of the University Grants Commission. A dispute over pay scales raised by the association representing the teachers of the University had been the subject matter of an award of the Chancellor, which was accepted by the govern- ment as well as by the University. The management of the college, in question, decided to close it down without prior approval. A writ petition was instituted before the High Court for the enforcement of the right of the teachers to receive their salaries and termi- nal benefits in accordance with the governing provisions. In that context, this Court dealt with the issue as to whether the management of the college was amenable to the writ jurisdiction. A number of circumstances weighed in the ultimate decision of this Court, including the(i) The trust was managing an affiliated college;(ii) The college was in receipt of government aid;(iii) The aid of the government played a major role in the control, management and work of the educational institution;(iv) Aided institutions, in a similar manner as government institutions, discharge a public function of imparting education to students;(v) All aided institutions are governed by the rules and regulations of the affiliating University;(vi) Their activities are closely supervised by the University; and(vii) Employment in such institutions is hence, not devoid of a public character and is governed by the decisions taken by the University which are binding on the man- agement22. It was in the above circumstances that this Court came to the conclusion that the service conditions of the academic staff do not partake of a private character, but are governed by a right-duty relationship between the staff and the management. A breach of the duty, it was held, would be amenable to the remedy of a writ of mandamus. While the Court recognized that the fast expanding maze of bodies affecting rights of people cannot be put into watertight compartments , it laid down two exceptions where the remedy of mandamus would not be available:15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus…23. Following the decision in Andi Mukta (supra), this Court has had the occasion to re-visit the underlying principles in successive decisions. This has led to the evolution of principles to determine what constitutes a public duty and public function and whether the writ of mandamus would be available to an individual who seeks to enforce her right29. More recently in K K Saksena v International Commission on Irrigation and Drainage (2015) 4 SCC 670 , another two judge Bench of this Court held that a writ would not lie to enforce purely private law rights. Consequently, even if a body is performing a public duty and is amenable to the exercise of writ jurisdiction, all its decisions would not be subject to judicial review. The Court held thus:43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is State within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is State under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law.Thus, even if the body discharges a public function in a wider sense, there is no public law element involved in the enforcement of a private contract of service30. Having analysed the circumstances which were relied upon by the State of Arunachal Pradesh, we are of the view that in running the hospital, Ramakrishna Mission does not discharge a public function. Undoubtedly, the hospital is in receipt of some element of grant. The grants which are received by the hospital cover only a part of the expenditure. The terms of the grant do not indicate any form of governmental control in the management or day to day functioning of the hospital. The nature of the work which is rendered by Ramakrishna Mission, in general, including in relation to its activities concerning the hospital in question is purely voluntary31. Before an organisation can be held to discharge a public function, the function must be of a character that is closely related to functions which are performed by the State in its sovereign capacity. There is nothing on record to indicate that the hospital performs functions which are akin to those solely performed by State authorities. Medical services are provided by private as well as State entities. The character of the organisation as a public authority is dependent on the circumstances of the case. In setting up the hospital, the Mission cannot be construed as having assumed a public function. The hospital has no monopoly status conferred or mandated by law. That it was the first in the State to provide service of a particular dispensation does not make it an authority within the meaning of Article 226. State governments provide concessional terms to a variety of organisations in order to attract them to set up establishments within the territorial jurisdiction of the State. The State may encourage them as an adjunct of its social policy or the imperatives of economic development. The mere fact that land had been provided on a concessional basis to the hospital would not by itself result in the conclusion that the hospital performs a public function. In the present case, the absence of state control in the management of the hospital has a significant bearing on our coming to the conclusion that the hospital does not come within the ambit of a public authority32. It has been submitted before us that the hospital is subject to regulation by the Clinical Establishments (Registration and Regulation) Act 2010. Does the regulation of hospitals and nursing homes by law render the hospital a statutory body? Private individuals and organizations are subject to diverse obligations under the law. The law is a ubiquitous phenomenon. From the registration of birth to the reporting of death, law imposes obligations on diverse aspects of individual lives. From incorporation to dissolution, business has to act in compliance with law. But that does not make every entity or activity an authority under Article 226. Regulation by a statute does not constitute the hospital as a body which is constituted under the statute. Individuals and organisations are subject to statutory requirements in a whole host of activities today. That by itself cannot be conclusive of whether such an individual or organisation discharges a public function.33. Thus, contracts of a purely private nature would not be subject to writ jurisdiction merely by reason of the fact that they are structured by statutory provisions. The only exception to this principle arises in a situation where the contract of service is governed or regulated by a statutory provision. Hence, for instance, in K K Saksena (supra) this Court held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed34. It is of relevance to note that the Act was enacted to provide for the regulation and registration of clinical establishments with a view to prescribe minimum standards of facilities and services. The Act, inter alia, stipulates conditions to be satisfied by clinical establishments for registration. However, the Act does not govern contracts of service entered into by the Hospital with respect to its employees. These fall within the ambit of purely private contracts, against which writ jurisdiction cannot lie. The sanctity of this distinction must be preserved35. For the above reasons, we are of the view that the Division Bench of the High Court was not justified in coming to the conclusion that the appellants are amenable to the writ jurisdiction under Article 226 of the Constitution as an authority within the meaning of the Article.

### 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: a wider sense, there is no public law element involved in the enforcement of a private contract of service. 30. Having analysed the circumstances which were relied upon by the State of Arunachal Pradesh, we are of the view that in running the hospital, Ramakrishna Mission does not discharge a public function. Undoubtedly, the hospital is in receipt of some element of grant. The grants which are received by the hospital cover only a part of the expenditure. The terms of the grant do not indicate any form of governmental control in the management or day to day functioning of the hospital. The nature of the work which is rendered by Ramakrishna Mission, in general, including in relation to its activities concerning the hospital in question is purely voluntary. 31. Before an organisation can be held to discharge a public function, the function must be of a character that is closely related to functions which are performed by the State in its sovereign capacity. There is nothing on record to indicate that the hospital performs functions which are akin to those solely performed by State authorities. Medical services are provided by private as well as State entities. The character of the organisation as a public authority is dependent on the circumstances of the case. In setting up the hospital, the Mission cannot be construed as having assumed a public function. The hospital has no monopoly status conferred or mandated by law. That it was the first in the State to provide service of a particular dispensation does not make it an authority within the meaning of Article 226. State governments provide concessional terms to a variety of organisations in order to attract them to set up establishments within the territorial jurisdiction of the State. The State may encourage them as an adjunct of its social policy or the imperatives of economic development. The mere fact that land had been provided on a concessional basis to the hospital would not by itself result in the conclusion that the hospital performs a public function. In the present case, the absence of state control in the management of the hospital has a significant bearing on our coming to the conclusion that the hospital does not come within the ambit of a public authority. 32. It has been submitted before us that the hospital is subject to regulation by the Clinical Establishments (Registration and Regulation) Act 2010. Does the regulation of hospitals and nursing homes by law render the hospital a statutory body? Private individuals and organizations are subject to diverse obligations under the law. The law is a ubiquitous phenomenon. From the registration of birth to the reporting of death, law imposes obligations on diverse aspects of individual lives. From incorporation to dissolution, business has to act in compliance with law. But that does not make every entity or activity an authority under Article 226. Regulation by a statute does not constitute the hospital as a body which is constituted under the statute. Individuals and organisations are subject to statutory requirements in a whole host of activities today. That by itself cannot be conclusive of whether such an individual or organisation discharges a public function. In Federal Bank (supra), while deciding whether a private bank that is regulated by the Banking Regulation Act, 1949 discharges any public function, the court held thus: 33. …in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or a company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We dont find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor put any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. The respondents service with the Bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank… (emphasis supplied) 33. Thus, contracts of a purely private nature would not be subject to writ jurisdiction merely by reason of the fact that they are structured by statutory provisions. The only exception to this principle arises in a situation where the contract of service is governed or regulated by a statutory provision. Hence, for instance, in K K Saksena (supra) this Court held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed. 34. It is of relevance to note that the Act was enacted to provide for the regulation and registration of clinical establishments with a view to prescribe minimum standards of facilities and services. The Act, inter alia, stipulates conditions to be satisfied by clinical establishments for registration. However, the Act does not govern contracts of service entered into by the Hospital with respect to its employees. These fall within the ambit of purely private contracts, against which writ jurisdiction cannot lie. The sanctity of this distinction must be preserved. 35. For the above reasons, we are of the view that the Division Bench of the High Court was not justified in coming to the conclusion that the appellants are amenable to the writ jurisdiction under Article 226 of the Constitution as an authority within the meaning of the Article. ### Response: 1

Union of India Vs. ABN Amro Bank & Others

have to file application in prescribed form for approval of foreign equity upto 51% equity. 57. Newly set-up trading company primarily engaged in export has therefore also to satisfy the conditions laid down in clause (b) of paragraph 1 of the Notification dated 13.01.1998 and the contention that a trading company is primarily engaged in export be determined only when it remits dividend cannot be accepted. The expression "further" used in the second proviso makes it more explicit. "Further" as means "additional" meaning thereby a newly set up trading company is not a third category as such but it goes along with second category i.e. "a trading company primarily engaged in export". To get the benefit of the general permission in the automatic route a trading company should be primarily engaged in export, even if it is a newly set up company. A newly set up company also could demonstrate the same by specifying the same in Form FC[RBI] that it is a trading company, whether new or old, and is at least intended to be engaged primarily in export. A reference to the Form FC (RBI) duly submitted by the 2nd respondent is useful. 58. FC[RBI] form specifically directs the applicants to "carefully tick" the "appropriate" box. In the box dealing with the application for approval for foreign investment not to exceed 51% for "service sector in Annexure III", the company has put a tick mark which would indicate that it sought to avail of the automatic route for service sector only as indicated in Annexure III. Noticeably no tick mark was put in the next box referring to "not exceeding 51% of the trading companies engaged in exports. Para VII deals with the "existing activities" which the 2nd respondent indicated as "not applicable" and no supplementary sheet was also attached explaining as to whether it was a newly set up trading company proposing to engage in export activities. Para VIII referring to Item Code ITC (HS) the company has indicated "893", which as per the Code deals with "Business and Management Consultancy Activities". The company stated in the application as "Business Management Consultancy for Trading, Marketing and Selling of Goods and Services". Even there also, there is no indication whatsoever that the company was set up for trading, but only indicated "consultancy for trading". Further Para IX (iii) called for the description of the products for export trading wherein the company has stated as "not applicable". Resultantly, it is clear that the purpose for which the company had sought for foreign collaboration was not for trading in gold coins either for export or domestic purpose, but for the activities mentioned in the NIC Code 893. 59. We are of the view that the company cannot go back from the information already furnished by it in the application, form which are declared as true and correct. Based on that application RBI vide its communication dated 29.6.1998 granted registration No.FC98NDR1005. Registration, in our view, pertains only to NIC code 893. No permission was obtained by the second respondent company from the RBI for 51% foreign equity induction, for trading, by way of export. RBI, on the other hand, granted general permission only for dealing with the activities mentioned in NIC Code 893 and not for any trading activities leading to import or export.60. The High Court, in our view, has committed an error in holding that no questions of law arose for its consideration under Section 54 of FERA and has completely misread and misinterpreted the Industrial Policy, Press Notes and Section 19(1)(a) and (b), Section 29(1)(a) and (b) etc. and issues raised in appeals, which are clearly questions of law which fell within the ambit of Section 56 of FERA and the High Court committed a serious error in rejecting the same holding no questions of law arose for its consideration.ABN Amro Bank NV (Royal Bank of Scotland NV)61. We will now examine whether the above Bank has contravened Section 6(5) of FERA and misused the permission granted to it by RBI for importing gold coins. Proceedings were initiated against the company and others as per directions given by RBI dated 8.6.1999 and it was noticed that the bank had also sold gold coins to the company without being reasonably satisfied about the nature of the business of the company. The adjudicating authority took the view that the Bank as an authorized dealer, should have ascertained whether the company had got necessary permission from the RBI in dealing with the gold coins. The Bank, it is seen, had imported the gold on its own behalf and sold the same to the company and if the Bank was acting as an agent of the company, it would not have sold the gold to the company, but would have charged the commission for acting as an agent. No materials have been placed before us to show that the Bank was acting as an agent of the company. On facts, the Tribunal as well as the High Court took the view that the Bank had not misused the permission granted by the RBI for importing gold coins. We do not find any reason to interfere with those finding of facts.62. In such circumstances, we find no error in the view taken by the Tribunal as well as the High Court that the proceedings initiated against the Bank that it had violated Sections 6(4) and (5) of FERA was illegal. The appeal filed by the Union of India, so far as the Bank is concerned, stands dismissed.63. We notice trading in gold is not an activity covered under Notification dated 13.01.1998 and 20.01.1998; perhaps for that reason, fourth respondent also took some steps to establish its 100% subsidiary in India and an application to that effect was filed on 24.08.1998 to FIPB by the company but it was not pursued further, but sought to achieve the same as if RBI had granted automatic permission which cannot be sustained in the eye of law.

1[ds]59. We are of the view that the company cannot go back from the information already furnished by it in the application, form which are declared as true and correct. Based on that application RBI vide its communication dated 29.6.1998 granted registration No.FC98NDR1005. Registration, in our view, pertains only to NIC code 893. No permission was obtained by the second respondent company from the RBI for 51% foreign equity induction, for trading, by way of export. RBI, on the other hand, granted general permission only for dealing with the activities mentioned in NIC Code 893 and not for any trading activities leading to import or export.60. The High Court, in our view, has committed an error in holding that no questions of law arose for its consideration under Section 54 of FERA and has completely misread and misinterpreted the Industrial Policy, Press Notes and Section 19(1)(a) and (b), Section 29(1)(a) and (b) etc. and issues raised in appeals, which are clearly questions of law which fell within the ambit of Section 56 of FERA and the High Court committed a serious error in rejecting the same holding no questions of law arose for its consideration.ABN Amro Bank NV (Royal Bank of Scotland NV)61. We will now examine whether the above Bank has contravened Section 6(5) of FERA and misused the permission granted to it by RBI for importing gold coins. Proceedings were initiated against the company and others as per directions given by RBI dated 8.6.1999 and it was noticed that the bank had also sold gold coins to the company without being reasonably satisfied about the nature of the business of the company. The adjudicating authority took the view that the Bank as an authorized dealer, should have ascertained whether the company had got necessary permission from the RBI in dealing with the gold coins. The Bank, it is seen, had imported the gold on its own behalf and sold the same to the company and if the Bank was acting as an agent of the company, it would not have sold the gold to the company, but would have charged the commission for acting as an agent. No materials have been placed before us to show that the Bank was acting as an agent of the company. On facts, the Tribunal as well as the High Court took the view that the Bank had not misused the permission granted by the RBI for importing gold coins. We do not find any reason to interfere with those finding of facts.62. In such circumstances, we find no error in the view taken by the Tribunal as well as the High Court that the proceedings initiated against the Bank that it had violated Sections 6(4) and (5) of FERA was illegal. The appeal filed by theso far as the Bank is concerned, stands dismissed.63. We notice trading in gold is not an activity covered under Notification dated 13.01.1998 and 20.01.1998; perhaps for that reason, fourth respondent also took some steps to establish its 100% subsidiary in India and an application to that effect was filed on 24.08.1998 to FIPB by the company but it was not pursued further, but sought to achieve the same as if RBI had granted automatic permission which cannot be sustained in the eye of law.

### 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: have to file application in prescribed form for approval of foreign equity upto 51% equity. 57. Newly set-up trading company primarily engaged in export has therefore also to satisfy the conditions laid down in clause (b) of paragraph 1 of the Notification dated 13.01.1998 and the contention that a trading company is primarily engaged in export be determined only when it remits dividend cannot be accepted. The expression "further" used in the second proviso makes it more explicit. "Further" as means "additional" meaning thereby a newly set up trading company is not a third category as such but it goes along with second category i.e. "a trading company primarily engaged in export". To get the benefit of the general permission in the automatic route a trading company should be primarily engaged in export, even if it is a newly set up company. A newly set up company also could demonstrate the same by specifying the same in Form FC[RBI] that it is a trading company, whether new or old, and is at least intended to be engaged primarily in export. A reference to the Form FC (RBI) duly submitted by the 2nd respondent is useful. 58. FC[RBI] form specifically directs the applicants to "carefully tick" the "appropriate" box. In the box dealing with the application for approval for foreign investment not to exceed 51% for "service sector in Annexure III", the company has put a tick mark which would indicate that it sought to avail of the automatic route for service sector only as indicated in Annexure III. Noticeably no tick mark was put in the next box referring to "not exceeding 51% of the trading companies engaged in exports. Para VII deals with the "existing activities" which the 2nd respondent indicated as "not applicable" and no supplementary sheet was also attached explaining as to whether it was a newly set up trading company proposing to engage in export activities. Para VIII referring to Item Code ITC (HS) the company has indicated "893", which as per the Code deals with "Business and Management Consultancy Activities". The company stated in the application as "Business Management Consultancy for Trading, Marketing and Selling of Goods and Services". Even there also, there is no indication whatsoever that the company was set up for trading, but only indicated "consultancy for trading". Further Para IX (iii) called for the description of the products for export trading wherein the company has stated as "not applicable". Resultantly, it is clear that the purpose for which the company had sought for foreign collaboration was not for trading in gold coins either for export or domestic purpose, but for the activities mentioned in the NIC Code 893. 59. We are of the view that the company cannot go back from the information already furnished by it in the application, form which are declared as true and correct. Based on that application RBI vide its communication dated 29.6.1998 granted registration No.FC98NDR1005. Registration, in our view, pertains only to NIC code 893. No permission was obtained by the second respondent company from the RBI for 51% foreign equity induction, for trading, by way of export. RBI, on the other hand, granted general permission only for dealing with the activities mentioned in NIC Code 893 and not for any trading activities leading to import or export.60. The High Court, in our view, has committed an error in holding that no questions of law arose for its consideration under Section 54 of FERA and has completely misread and misinterpreted the Industrial Policy, Press Notes and Section 19(1)(a) and (b), Section 29(1)(a) and (b) etc. and issues raised in appeals, which are clearly questions of law which fell within the ambit of Section 56 of FERA and the High Court committed a serious error in rejecting the same holding no questions of law arose for its consideration.ABN Amro Bank NV (Royal Bank of Scotland NV)61. We will now examine whether the above Bank has contravened Section 6(5) of FERA and misused the permission granted to it by RBI for importing gold coins. Proceedings were initiated against the company and others as per directions given by RBI dated 8.6.1999 and it was noticed that the bank had also sold gold coins to the company without being reasonably satisfied about the nature of the business of the company. The adjudicating authority took the view that the Bank as an authorized dealer, should have ascertained whether the company had got necessary permission from the RBI in dealing with the gold coins. The Bank, it is seen, had imported the gold on its own behalf and sold the same to the company and if the Bank was acting as an agent of the company, it would not have sold the gold to the company, but would have charged the commission for acting as an agent. No materials have been placed before us to show that the Bank was acting as an agent of the company. On facts, the Tribunal as well as the High Court took the view that the Bank had not misused the permission granted by the RBI for importing gold coins. We do not find any reason to interfere with those finding of facts.62. In such circumstances, we find no error in the view taken by the Tribunal as well as the High Court that the proceedings initiated against the Bank that it had violated Sections 6(4) and (5) of FERA was illegal. The appeal filed by the Union of India, so far as the Bank is concerned, stands dismissed.63. We notice trading in gold is not an activity covered under Notification dated 13.01.1998 and 20.01.1998; perhaps for that reason, fourth respondent also took some steps to establish its 100% subsidiary in India and an application to that effect was filed on 24.08.1998 to FIPB by the company but it was not pursued further, but sought to achieve the same as if RBI had granted automatic permission which cannot be sustained in the eye of law. ### Response: 1

M/S. Asahi India Glass Limited Vs. The State of Maharashtra & Others

it may be, and unscientific. But even such critism should not be hastily expressed. What is best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void.... Next reliance was placed in the judgment in Union of India and another Versus Deoki Nandan Aggarwal, AIR 1992 Supreme Court 96. The Supreme Court observed as under: ............ The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to get at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. 11. We may consider the true scope of Rule 7 and 8. Rule 7 deals with the application for registration of dealers. Rule (a-1) sets out that the application for registration under section 22 shall be made within sixty days from the date of succession to the business as provided under sub section 6 of section 19. What would be the date of succession in business for the applicant to make the application. Section 19(6) sets out that an application shall be made within sixty days from the date of such succession. An ordinary reading therefore, after the scheme of amalgamation, if the order is made with an anterior date then on the literal construction, the application for registration must be made within sixty days from such anterior date. We can take judicial notice of the fact that a scheme for amalgamation in the company court is not normally disposed of within sixty days of it being filed in the company court on account of mandatory procedural provisions which have to be complied with and as such the order is normally beyond the period of sixty days set out in section 19(6) of the C.S.T. Act. In such circumstances, no company applying for scheme of amalgamation to the company court would be in a position to comply with the requirement of Rule 7(1)(a-1) if the date fixed by the company court is an anterior date from the date of the order. As such between the period of the anterior date and the date of the order and the date of the application, the company will have to be treated as URD. The date of succession to the business will be ordinarily the date of the order sanctioning the scheme of amalgamation. If however, the date is an anterior date, then it will normally not be possible to comply with rule 7(1)(a1). A company following the provisions of the Companies Act, cannot be disadvantaged because of procedural ambiguity or lacunae. Rule 8 speaks of grant of certificate of registration. Rule 8(2) is inapplicable, similarly Rule 3(a) refers to an application under Clause (a) of Sub Rule (1) of Rule 7. Similarly Rule 3(a-2) refers to an application under clause (b) of sub rule (1) of rule (7). In so far as Rule 8(a)(1) and (2) are concerned, it only takes note of applications made under rule (7)(1)(a) and rule l7(1)(b). No rule for grant of certificate of registration is made in so far as rule 7(1)(a-1) is concerned. Rule 7(1) (a-1) was introduced by an amendment and it appears that the delegate has made no provisions to cover that eventuality under rule 8(3). Rule 8(3)(a)(3) and (4) will also not be applicable. Thus though section 19(6) and Rule 7(1)(a-1) provides for the date of succession, it does not cover the eventualities of transfer of business under a scheme of amalgamation. 12. It is in these circumstances that this court must consider the date for the purpose of moving an application and the starting point of limitation under rule 7(1) (a-1). As earlier noted in so far as amalgamating company Floatglass India Limited, is concerned, considering the provisions, its certificate of registration was cancelled from 1.4.2002. In other words, M/s. Floatglass India Limited ceases to be company from that date and that must be date to give effect to section 19(6) and rule 7(1) (a-1). There is therefore, an omission on account of the failure by the delegates to provide a corresponding rule to rule 7(1)(a-1). In the absence of legislature providing and taking note of the fact that in such cases, the amalgamating company is not at fault. It will have to be construed that the time for making an application for registration will be 60 days from the date of the court passing the order. On such application being made, certificate of registration will have to be made effective from the anterior date given by the company court. This is only a procedural requirement. This would avoid hardship and give true effect to the mandate of the legislature both under BST and CST Act. No order of a court should visit a party with liabilities and or undesirable consequences in the matter of tax. The rule must be so read to give effect to the legislative mandate. The date for applying for registration under Section 19(6) for a company, can only be the date of the company courts under. If within 60 days of such order an application is made, then the expression succession to business in rule 7(1)(1-a) will also be so read. Under Rule 8(8)(a)(iii) then it will be the date the company court has ordered or the date provided in the scheme which will be the date of succession to business. This would obviate any difficulty to a party till such time the delegate makes a specific provision in Rule 8.

1[ds]In our opinion, reliance placed in the said section for the purpose of considering the issue in question is wholly irrelevant. Under section 33C when two or more companies are to be amalgamated by the Order of a Court or of the Central Government and the Order is to take effect from a date anterior to the date of the said Order and any two or more of such companies have sold or purchased any goods to or from each other during the period commencing on the date from which the Order is to take effect and ending on the date of the Order, then notwithstanding anything contained in the said amalgamation Order, such transactions of sale and purchase shall be included in the turnover of sales or, as the case may be, purchase of the respective companies and shall be assessed to tax accordingly, and for the purposes of this Act, the said two or more companies shall be treated as distinct companies and shall be treated as such for the entire period upto the date of the said Order, and the registration certificates of the said companies shall be canceled, or amended, where necessary, with effect from the date of the said amalgamation order. In other words it would be clear that section 33C was introduced with a view to avoid escapement of sales tax of transactions between the two or more companies seeking to amalgamate. Irrespective of the date of order of the company court, the two companies should be treated as distinct in respect of the transaction which they had done amongst themselves. In other words they cannot escape payment of tax on the ground that there is no sale tax imposable.Having so said, let us now consider the position in law as to the date of amalgamation. Law has been succinctly set out in the case of Marshall Sons and Co. (India) Ltd. (supra). The Supreme Court after considering the provisions pertaining to amalgamation was pleased to hold that every scheme of amalgamation of companies has necessarily to provide a date with effect from which the amalgamation/transfer shall take place. While sanctioning the scheme, it is open to the company court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate on the facts and circumstances of the case. If the court specifies the date, such date will be the date of application/date of transfer. But where the court does not specify any specific date, but merely sanctions the scheme presented to it, the date of amalgamation and or the date of transfer is the date specified in the scheme as the transfer date. The law thus concluded is that irrespective of the date when the court passes the order sanctioning the scheme of amalgamation, it the date fixed by the court or if the court does not fix the date, the date fixed in the scheme of amalgamation/transfer, which would be the date of amalgamation/date ofbehalf of the Revenue, the learned counsel has placed reliance in the case of Dr. (Mrs) Sushma Sharma etc. Versus State of Rajasthan and Others, AIR 1985 Supreme Court 1367 to contend that while interpreting a statute, the court must bear in mind that the wisdom or lack of wisdom in the action of the Government or legislature is not justiciable by court. The Supreme Court quoted with approval the observations of Mr. Justice Kc Kenna in Metropolis Theater Company Vs. City of Chicago and Ernest J. Magerstadt (1912) 57 Led.730 asmay seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such critism should not be hastily expressed. What is best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declaredreliance was placed in the judgment in Union of India and another Versus Deoki Nandan Aggarwal, AIR 1992 Supreme Court 96. The Supreme Court observed asThe Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to get at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.We may consider the true scope of Rule 7 and 8. Rule 7 deals with the application for registration of dealers. Rulesets out that the application for registration under section 22 shall be made within sixty days from the date of succession to the business as provided under sub section 6 of section 19. What would be the date of succession in business for the applicant to make the application. Section 19(6) sets out that an application shall be made within sixty days from the date of such succession. An ordinary reading therefore, after the scheme of amalgamation, if the order is made with an anterior date then on the literal construction, the application for registration must be made within sixty days from such anterior date. We can take judicial notice of the fact that a scheme for amalgamation in the company court is not normally disposed of within sixty days of it being filed in the company court on account of mandatory procedural provisions which have to be complied with and as such the order is normally beyond the period of sixty days set out in section 19(6) of the C.S.T. Act. In such circumstances, no company applying for scheme of amalgamation to the company court would be in a position to comply with the requirement of Ruleif the date fixed by the company court is an anterior date from the date of the order. As such between the period of the anterior date and the date of the order and the date of the application, the company will have to be treated as URD. The date of succession to the business will be ordinarily the date of the order sanctioning the scheme of amalgamation. If however, the date is an anterior date, then it will normally not be possible to comply with rule 7(1)(a1). A company following the provisions of the Companies Act, cannot be disadvantaged because of procedural ambiguity or8 speaks of grant of certificate of registration. Rule 8(2) is inapplicable, similarly Rule 3(a) refers to an application under Clause (a) of Sub Rule (1) of Rule 7. Similarly Rulerefers to an application under clause (b) of sub rule (1) of rule (7). In so far as Rule 8(a)(1) and (2) are concerned, it only takes note of applications made under rule (7)(1)(a) and rule l7(1)(b). No rule for grant of certificate of registration is made in so far as ruleis concerned. Rule 7(1)was introduced by an amendment and it appears that the delegate has made no provisions to cover that eventuality under rule 8(3). Rule 8(3)(a)(3) and (4) will also not be applicable. Thus though section 19(6) and Ruleprovides for the date of succession, it does not cover the eventualities of transfer of business under a scheme of amalgamation.It is in these circumstances that this court must consider the date for the purpose of moving an application and the starting point of limitation under rule 7(1)As earlier noted in so far as amalgamating company Floatglass India Limited, is concerned, considering the provisions, its certificate of registration was cancelled from 1.4.2002. In other words, M/s. Floatglass India Limited ceases to be company from that date and that must be date to give effect to section 19(6) and rule 7(1)There is therefore, an omission on account of the failure by the delegates to provide a corresponding rule to ruleIn the absence of legislature providing and taking note of the fact that in such cases, the amalgamating company is not at fault. It will have to be construed that the time for making an application for registration will be 60 days from the date of the court passing the order. On such application being made, certificate of registration will have to be made effective from the anterior date given by the company court. This is only a procedural requirement. This would avoid hardship and give true effect to the mandate of the legislature both under BST and CST Act. No order of a court should visit a party with liabilities and or undesirable consequences in the matter of tax. The rule must be so read to give effect to the legislative mandate. The date for applying for registration under Section 19(6) for a company, can only be the date of the company courts under. If within 60 days of such order an application is made, then the expression succession to business in rulewill also be so read. Under Rule 8(8)(a)(iii) then it will be the date the company court has ordered or the date provided in the scheme which will be the date of succession to business. This would obviate any difficulty to a party till such time the delegate makes a specific provision in Rule 8.

### 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: it may be, and unscientific. But even such critism should not be hastily expressed. What is best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void.... Next reliance was placed in the judgment in Union of India and another Versus Deoki Nandan Aggarwal, AIR 1992 Supreme Court 96. The Supreme Court observed as under: ............ The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to get at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. 11. We may consider the true scope of Rule 7 and 8. Rule 7 deals with the application for registration of dealers. Rule (a-1) sets out that the application for registration under section 22 shall be made within sixty days from the date of succession to the business as provided under sub section 6 of section 19. What would be the date of succession in business for the applicant to make the application. Section 19(6) sets out that an application shall be made within sixty days from the date of such succession. An ordinary reading therefore, after the scheme of amalgamation, if the order is made with an anterior date then on the literal construction, the application for registration must be made within sixty days from such anterior date. We can take judicial notice of the fact that a scheme for amalgamation in the company court is not normally disposed of within sixty days of it being filed in the company court on account of mandatory procedural provisions which have to be complied with and as such the order is normally beyond the period of sixty days set out in section 19(6) of the C.S.T. Act. In such circumstances, no company applying for scheme of amalgamation to the company court would be in a position to comply with the requirement of Rule 7(1)(a-1) if the date fixed by the company court is an anterior date from the date of the order. As such between the period of the anterior date and the date of the order and the date of the application, the company will have to be treated as URD. The date of succession to the business will be ordinarily the date of the order sanctioning the scheme of amalgamation. If however, the date is an anterior date, then it will normally not be possible to comply with rule 7(1)(a1). A company following the provisions of the Companies Act, cannot be disadvantaged because of procedural ambiguity or lacunae. Rule 8 speaks of grant of certificate of registration. Rule 8(2) is inapplicable, similarly Rule 3(a) refers to an application under Clause (a) of Sub Rule (1) of Rule 7. Similarly Rule 3(a-2) refers to an application under clause (b) of sub rule (1) of rule (7). In so far as Rule 8(a)(1) and (2) are concerned, it only takes note of applications made under rule (7)(1)(a) and rule l7(1)(b). No rule for grant of certificate of registration is made in so far as rule 7(1)(a-1) is concerned. Rule 7(1) (a-1) was introduced by an amendment and it appears that the delegate has made no provisions to cover that eventuality under rule 8(3). Rule 8(3)(a)(3) and (4) will also not be applicable. Thus though section 19(6) and Rule 7(1)(a-1) provides for the date of succession, it does not cover the eventualities of transfer of business under a scheme of amalgamation. 12. It is in these circumstances that this court must consider the date for the purpose of moving an application and the starting point of limitation under rule 7(1) (a-1). As earlier noted in so far as amalgamating company Floatglass India Limited, is concerned, considering the provisions, its certificate of registration was cancelled from 1.4.2002. In other words, M/s. Floatglass India Limited ceases to be company from that date and that must be date to give effect to section 19(6) and rule 7(1) (a-1). There is therefore, an omission on account of the failure by the delegates to provide a corresponding rule to rule 7(1)(a-1). In the absence of legislature providing and taking note of the fact that in such cases, the amalgamating company is not at fault. It will have to be construed that the time for making an application for registration will be 60 days from the date of the court passing the order. On such application being made, certificate of registration will have to be made effective from the anterior date given by the company court. This is only a procedural requirement. This would avoid hardship and give true effect to the mandate of the legislature both under BST and CST Act. No order of a court should visit a party with liabilities and or undesirable consequences in the matter of tax. The rule must be so read to give effect to the legislative mandate. The date for applying for registration under Section 19(6) for a company, can only be the date of the company courts under. If within 60 days of such order an application is made, then the expression succession to business in rule 7(1)(1-a) will also be so read. Under Rule 8(8)(a)(iii) then it will be the date the company court has ordered or the date provided in the scheme which will be the date of succession to business. This would obviate any difficulty to a party till such time the delegate makes a specific provision in Rule 8. ### Response: 1

B.K. PAVITRA Vs. UNION OF INDIA

of Indra Sawhney holds that the creamy layer principle is a principle of equality. 138. Though, we have not accepted the above submission which was urged by Ms Jaising on behalf of the intervenors, we will have to decide as to whether the Reservation Act 2018 is unconstitutional. The challenge in the present case is to the validity of the Reservation Act 2018 which provides for consequential seniority. In other words, the nature or extent of reservation granted to the SCs and STs at the entry level in appointment is not under challenge. The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A). The concept of creamy layer has no relevance to the grant of consequential seniority. There is merit in the submission of the State of Karnataka that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status. The decision in Jarnail rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness. The Constitution Bench declined to accept the submission on the ground that it related to the validity of Article 16 (4A) and held thus: 34…We may hasten to add that Shri Dwivedis argument cannot be confused with the concept of creamy layer which, as has been pointed out by us hereinabove, applies to persons within the Scheduled Castes or the Scheduled Tribes who no longer require reservation, as opposed to posts beyond the entry stage, which may be occupied by members of the Scheduled Castes or the Scheduled Tribes. (Emphasis supplied) 139. In sustaining the validity of Articles 16 (4A) and 16 (4B) against a challenge of violating the basic structure, Nagaraj applied the test of width and the test of identity. The Constitution Bench ruled that the catch-up rule and consequential seniority are not constitutional requirements. They were held not to be implicit in clauses (1) to (4) of Article 16. Nagaraj held that they are not constitutional limitations or principles but are concepts derived from service jurisprudence. Hence, neither the obliteration of those concepts nor their insertion would violate the equality code contained in Articles 14, 15 and 16. The principle postulated in Nagaraj is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true constitutional position, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In the above view of the matter, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs. I. Retrospectivity 140. Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June 1995. The other provisions came into force at once as provided in Section 1(2). Section 4 stipulates that the consequential seniority already granted to government servants belonging to the SCs and STs in accordance with the reservation order with effect from 27 April 1978 shall be valid and shall be protected. In this context, we must note from the earlier decisions of this Court that: (i) The decision in Virpal Singh held that the catch-up rule would be applied only from 10 February 1995 which was the date of the judgment in Sabharwal; (ii) The decision in Ajit Singh II specifically protected the promotions which were granted before 1 March 1996 without following the catch-up rule; and (iii) In Badappanavar, promotions of reserved candidates based on consequential seniority which took place before 1 March 1996 were specifically protected. 141. Since promotions granted prior to 1 March 1996 were protected, it was logical for the legislature to protect consequential seniority. The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional. 142. The benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accorded J. Over representation in KPTCL and PWD 143. The Ratna Prabha Committee collected data from thirty one departments of the State Government of Karnataka. It has been pointed out on behalf of the State that corporations such as KPTCL and other public sector undertakings fall within the administrative control of one of the departments of the State government. The position in thirty one departments was taken as representative of the position in public employment under the State. The over representation in KPTCL and PWD has been projected by the petitioners with reference to the total number of posts which have been filled. On the other hand, the quota is fixed and the roster applies as regards the total sanctioned posts as held in Sabharwal and Nagaraj. On the contrary, the data submitted by the State of Karnataka indicates that if consequential seniority is not allowed, there would be under representation of the reserved categories. Finally, it may also be noted that under the Government Order dated 13 April 1999, reservation in promotion in favour of SCs and STs has been provided until the representation for these categories reaches 15 per cent and 3 per cent, respectively. The State has informed the Court that the above Government Order is applicable to KPTCL and PWD, as well K. Conclusion

0[ds]60. Besides the Governor, the legislatures of the States consist of a bicameral legislature for some States and a unicameral legislature for others.62. Where a Bill is not a Money Bill, the Governor may return the Bill for reconsideration upon which the House or Houses, as the case may be, will reconsider the desirability of introducing the amendments which the Governor has recommended. If the Bill is passed again by the House (or Houses as the case may be), the Governor cannot thereafter withhold assent. The second proviso to Article 200 stipulates that the Governor must not assent to a Bill but necessarily reserve it for the consideration of the President if the Bill upon being enacted would derogate from the powers of the High Court in a manner thatendangers its position under the Constitution. Save and except for Bills falling within the description contained in the second proviso (where the Governor must reserve the Bill for consideration of the President), a discretion is conferred upon the Governor to follow one of the courses of action enunciated in the substantive part of Article 200. Aside from Bills which are covered by the second proviso, where the Governor is obliged to reserve the Bill for the consideration of the President, the substantive part of Article 200 does not indicate specifically, the circumstances in which the Governor may reserve a Bill for the consideration of the President. The Constitution has entrusted this discretion to the Governor.63. The framers carefully eschewed defining the circumstances in which the Governor may reserve a Bill for the consideration of the President. By its very nature the conferment of the power cannot be confined to specific categories. Exigencies may arise in the working of the Constitution which justify a recourse to the power of reserving a Bill for the consideration of the President. They cannot be foreseen with the vision of a soothsayer. The power having been conferred upon a constitutional functionary, it is conditioned by the expectation that it would be exercised upon careful reflection and for resolving legitimate concerns in regard to the validity of the legislation. The entrustment of a constitutional discretion to the Governor is premised on the trust that the exercise of authority would be governed by constitutional statesmanship. In a federal structure, the conferment of this constitutional discretion is not intended to thwart democratic federalism. The state legislatures represent the popular will of those who elect their representatives. They are the collective embodiments of that will. The act of reserving a Bill for the assent of the President must be undertaken upon careful reflection, upon a doubt being entertained by the Governor about the constitutional legitimacy of the Bill which has been passed.64. Dr Dhavan in the course of his submissions, has dwelt at length on the power which is entrusted to the Governor to reserve a Bill for the consideration of the President under Article 254 (2). Article 254 (2) deals with a situation where a law which has been enacted by the legislature of a state on a matter which is enumerated in the Concurrent List of the Seventh Schedule contains any provision which is repugnant either to an earlier law made by Parliament or an existing law with respect to that matter. In such an eventuality, the law made by the legislature of the state can prevail in that state only if it has received the assent of the President on being reserved for consideration.68. Hoechst is an authority for the proposition that the assent of the President is non - justiciable. Hoechst also lays down that even if, as it turns out, it was not necessary for the Governor to reserve a Bill for the consideration of the President, yet if it was reserved for and received the assent of the President, thelaw as enacted cannot be regarded as unconstitutional for want of =proper assent70. The state government, in the course of its clarifications, was of the view that there was no necessity of reserving the Bill for the consideration of the President, since in its view, the Governor had not recorded a finding that it was unconstitutional, or fell afoul of existing central legislation on the subject or that it was beyond legislative competence or derogated from the fundamental rights. All procedural requirements under the Constitution were according to the government duly complied with. This objection of the state government cannot cast doubt upon the grant of assent by the President. The law having received the assent of the President, the submissions which were urged on behalf of the petitioners cannot be countenanced.71. The foundation of the decision in B K Pavitra I is the principle enunciated in Nagaraj that in order to sustain the exercise of the enabling power contained in Article 16 (4A), the state is required to demonstrate a compelling necessity by collecting quantifiable data on: (i) inadequacy of representation; (ii) backwardness; and (iii) overall efficiency. The judgment in B K Pavitra I held that no such exercise was undertaken by the State of Karnataka before providing for reservation in promotion and providing for consequential seniority. On the ground that the state had not collected quantifiable data on the three parameters enunciated in Nagaraj, the Reservation Act 2002 was held to be unconstitutional. The Constitution Bench in Nagaraj upheld the validity of Article 16 (4A) on the basis that before taking recourse to the enabling power the state has to carry out the exercise of collecting quantifiable data and fulfilling the three parameters noted above. B K Pavitra I essentially held that there was a failure on the part of the state to undertake this exercise, which was a pre-condition for the exercise of the enabling power to make reservations in promotions and to provide for consequential seniority72. The decision in B K Pavitra I did not restrain the state from carrying out the exercise of collecting quantifiable data so as to fulfil the conditionalities for the exercise of the enabling power under Article 16 (4A). The legislature has the plenary power to enact a law. That power extends to enacting a legislation both with prospective and retrospective effect. Where a law has been invalidated by the decision of a constitutional court, the legislature can amend the law retrospectively or enact a law which removes the cause for invalidation. A legislature cannot overrule a decision of the court on the ground that it is erroneous or is nullity. But, it is certainly open to the legislature either to amend an existing law or to enact a law which removes the basis on which a declaration of invalidity was issued in the exercise of judicial review. Curative legislation is constitutionally permissible. It is not an encroachment on judicial power. In the present case, state legislature of Karnataka, by enacting the Reservation Act 2018, has not nullified the judicial decision in B K Pavitra I, but taken care to remedy the underlying cause which led to a declaration of invalidity in the first place. Such a law is valid because it removes the basis of the decision.74. The legislature has the power to validate a law which is found to be invalid by curing the infirmity. As an incident of the exercise of this power, the legislature may enact a validating law to make the provisions of the earlier law effective from the date on which it was enacted (The United Provinces v Mst Atiqa Begum AIR 1941 FC 16and Rai Ramkrishna v State of Bihar (1964) 1 SCR 897 ). These principles were elucidated in the decision of this Court in Prithvi Cotton Mills Ltd. The judgment makes a distinction between a law which simply declares that a decision of the court will not bind (which is impermissible for the legislature) and a law which fundamentally alters the basis of an earlier legislation so that the decision would not have been given in the altered circumstances. This distinction is elaborated in the following extract:4. … Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A courts decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal76. A declaration by a court that a law is constitutionally invalid does not fetter the authority of the legislature to remedy the basis on which the declaration was issued by curing the grounds for invalidity. While curing the defect, it is essential to understand the reasons underlying the declaration of invalidity. The reasons constitute the basis of the declaration. The legislature cannot simply override the declaration of invalidity without remedying the basis on which the law was held to be ultra vires. A law may have been held to be invalid on the ground that thelegislature which enacted the law had no legislative competence on the subject matter of the legislation. Obviously, in such a case, a legislature which has been held to lack legislative competence cannot arrogate to itself competence over a subject matter over which it has been held to lack legislative competence. However, a legislature which has the legislative competence to enact a law on the subject can certainly step in and enact a legislation on a field over which it possesses legislative competence. For instance, where a law has been invalidated on the ground that the state legislature lacks legislative competence to enact a law on a particular subject – Parliament being conferred with legislative competence over the same subject – it is open for the Parliament, following a declaration of the invalidity of the state law, to enact a new law and to regulate the area. As an incident of its validating exercise, Parliament may validate the collection of a levy under the earlier law. The collection of a levy under a law which has been held to be invalid is validated by the enactment of legislation by a legislative body – Parliament in the above example – which has competence over the subject matter. Apart from legislative competence, a law may have been declared invalid on the ground that there was a breach of the fundamental rights contained in Part III of the Constitution. In that situation, if the legislature proceeds to enact a new law on the subject, the issue in essence is whether the re-enacted law has taken care to remove the infractions of the fundamental rights on the basis of which the earlier law was held to be invalid. The true test therefore is whether the legislature has acted within the bounds of its authority to remedy the basis on which the earlier law was held to suffer from a constitutional infirmity.78. The decision in Madan Mohan Pathak is hence distinguishable from the facts of the present case. The above observations recognized the constitutional position that in the case of a declaratory judgment holding an action to be invalid, a validating legislation to remove the defect is permissible. Applying this principle, it is evident that the decision in B K Pavitra I declared the Reservation Act 2002 to be invalid and consequent upon the declaration of invalidity, certain directions were issued. If the basis on which Reservation Act 2002 was held to be invalid is cured by a validating legislation, in this case the Reservation Act 2018, this would constitute a permissible legislative exercise. The grounds which weighed in Madan Mohan Pathak would hence not be available in the present case80. Madan Mohan Pathak involved a situation where a parliamentary law was enacted to override a mandamus which was issued by the High Court for thepayment of bonus under an industrial settlement. The case did not involve a situation where a law was held to be ultra vires and the basis of the declaration of invalidity of the law was sought to be curedDr Dhavan is entirely correct, if we may say so with respect, in submitting that what has to be shown is whether the Reservation Act 2018 is, in law Articles 14 and 16 compliant. This necessitates an examination of the constitutionality of the Reservation Act 2018. That would require this Court to examine the challenge on the ground that there has been a violation of the equality code contained in Articles 14 and 16.Is the basis of B K Pavitra I cured in enacting the Reservation Act 201882. The Statement of Objects and Reasons of the Reservation Act 2018 refers to the legislative history preceding its enactment. The Ratna Prabha Committeewas constituted after the Reservation Act 2002 was held to be invalid in B K Pavitra I on the ground that no compelling necessity had been shown by the state to provide for reservation in matters of promotion for SCs and STs by collecting and analysing relevant data to satisfy the requirements laid out in Nagaraj. The constitution of the Ratna Prabha Committee was consequent upon the Reservation Act 2002 having been held to be invalid in B K Pavitra IThe decision of the Constitution Bench in Nagaraj mandates that before the State can take recourse to the enabling power contained in Clauses (4A) and (4B) of Article 16, it must demonstrate the existence of compelling reasons on three facets: (i) backwardness; (ii) inadequacy of representation; and (iii) overall administrative efficiency. In Jarnail, the Constitution Bench clarified that the first of the above factors – backwardness has no application in the case of reservations for the SCs and STs. Nagaraj to that extent was held to be contrary to the decision of the larger Bench in Indra Sawhney.The Ratna Prabha Committee report90. Based on the above features, the petitioners have invoked the power of judicial review. Dr Dhavan emphasized that the decision in Nagaraj upheld the constitutional validity of successive constitutional amendments to Article 16conditional upon the existence of compelling reasons which must be demonstrated by the State by collecting and analysing relevant data. It is submitted that the flaws in the report of the Ratna Prabha Committee would indicate that the compelling reasons which constitute the foundation for the exercise of the enabling power contained in Article 16 are absent, which must result in the invalidation of the Reservation Act 201893. The second of the reinforcing principles which emerges from Indra Sawhney is that the opinion of the government on the adequacy of representation of the SCs and STs in the public services of the state is a matter which forms a part of the subjective satisfaction of the state. Significantly, the extract from Indra Sawhney reproduced earlier adverts to the decision in Barium Chemicals Ltd, which emphasises that when an authority is vested with the power to form an opinion, it is not open for the court to substitute its own opinion for that of the authority, nor can the opinion of the authority be challenged on grounds of propriety or sufficiency.95. In dealing with the submissions of the petitioners on this aspect, it is relevant for this Court to recognize the circumspection with which judicial power must be exercised on matters which pertain to propriety and sufficiency, in the context of scrutinizing the underlying collection of data by the State on the adequacy of representation and impact on efficiency. The Court, is above all, considering the validity of a law which was enacted by the State legislature for enforcing the substantive right to equality for the SCs and STs. Judicial review must hence traverse conventional categories by determining as to whether the Ratna Prabha Committee report considered material which was irrelevant or extraneous or had drawn a conclusion which no reasonable body of persons could have adopted. In this area, the fact that an alternate line of approach was possible or may even appear to be desirable cannot furnish a foundation for the assumption by the court of a decision making authority which in the legislative sphere is entrusted to the legislating body and in the administrative sphere to the executive arm of the government99. We find merit in the above submissions. The methodology which was adopted by the Ratna Prabha Committee has not been demonstrated to be alien to conventional social science methodologies. We are unable to find that the Committee has based its conclusions on any extraneous or irrelevant material. In adopting recourse to sampling methodologies, the Committee cannot be held to have acted arbitrarily. If, as we have held above, sampling is a valid methodology for collection of data, the necessary consequence is that the exercise cannot be invalidated only on the ground that data pertaining to a particular department or of some entities was not analysed. The data which was collected pertained to thirty one departments which are representative in character. The State has analysed the data which is both relevant and representative, before drawing its conclusions. As we have noted earlier, there are limitations on the power of judicial review in entering upon a factual arena involving the gathering, collation and analysis of data.101. We are of the view that once an opinion has been formed by the State government on the basis of the report submitted by an expert committee which collected, collated and analysed relevant data, it is impossible for the Court to hold that the compelling reasons which Nagaraj requires the State to demonstrate have not been established. Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the competent legislature was within its power to enact. After the decision in B K Pavitra I, the Ratna Prabha Committee was correctly appointed to carry out the required exercise. Once that exercise has been carried out, the Court must be circumspect in exercising the power of judicial review to re-evaluate the factual material on record.102. The adequacy of representation has to be assessed with reference to a benchmark on adequacy. Conventionally, the State and the Central governments have linked the percentage of reservation for the SCs and STs to their percentage of population, as a measure of adequacy. The Constitution Bench noticed this in Sabharwal, where it observed:4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16 (4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward ClassExplaining this further, the Constitution Bench held:5...Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permitthe roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster…Consequently, it is open to the State to make reservation in promotion for SCs and STs proportionate to their representation in the general populationHence, the submission that the quota must be reckoned on the basis of the posts which are actually filled up and not the sanctioned posts cannot be accepted.104. We find no merit in the challenge to the Ratna Prabha Committee report on the ground that the collection of data was on the basis of groups A, B, C and D as opposed to cadres. For one thing, the expression =cadre has no fixed meaning ascribed to it in service jurisprudence. But that apart, Nagaraj requires the collection of quantifiable data inter alia, on the inadequacy of representation in services under the state. Clause 4A of Article 16 specifically refers to the inadequacy of representation in the services under the state. The collection of data on the basis of groups A to D does not by its very nature exclude data pertaining to cadres. The state has studied in the present case the extent of reservation for SCs and STs in groups A to D, consisting of several cadres. Since, the group includes posts in all the cadres in that group, it can logically be presumed that the state has collected quantifiable data on the representation of SCs and STs in promotional posts in the cadres as well.105. Another facet of the matter is that in the judgment of Justice Jeevan Reddy in Indra Sawhney, it was observed that reservation under Article 16 (4) does not operate on communal grounds. Hence, if a member belonging to a reserved category is selected in the general category, the selection would not count against the quota prescribed for the reserved category. The decision in Sabharwal also noted that while candidates belonging to the general category are not entitled to fill reserved posts, reserved category candidates are entitled to compete for posts in the general category. In several group D posts, such as municipal sweepers, the sobering experience of administration is that the overwhelmingly large segment of applicants consists of persons belonging to the SCs and STs. Over representation in group D posts as a result of candidates belonging to the general category staying away from those posts cannot be a valid or logical basis to deny promotion to group D employees recruited from the reserved categorySubstantive versus formal equality107. For equality to be truly effective or substantive, the principle must recognise existing inequalities in society to overcome them. Reservations are thus not an exception to the rule of equality of opportunity. They are rather the true fulfilment of effective and substantive equality by accounting for thestructural conditions into which people are born. If Article 16(1) merely postulates the principle of formal equality of opportunity, then Article 16(4) (by enabling reservations due to existing inequalities) becomes an exception to the strict rule of formal equality in Article 16 (1). However, if Article 16 (1) itself sets out the principle of substantive equality (including the recognition of existing inequalities) then Article 16 (4) becomes the enunciation of one particular facet of the rule of substantive equality set out in Article 16 (1).108. During the debates on the principles of equality underlying Article 16 (then draft Article 10), certain members of the Assembly recognised that in order to give true effect to the principle of equality of opportunity, the Constitution had to expressly recognise the existing inequalities.109. By recognising that formal equality of opportunity will be insufficient in fulfilling the transformative goal of the Constitution, these members recognised that the conception of equality of opportunity must recognise and account for existing societal inequalities. The most revealing debates as to how the Constituent Assembly understood equality of opportunity under the Constitution took place on 30 November 1948. Members debated draft article 10 (which would go on to become Article 16 of the Constitution). In these debates, some members understood sub-clause (4) (providing for reservations) as an exception to the general rule of formal equality enunciated in sub-clause (1).The Constitution as a transformative instrument111. The Constitution is a transformative document. The realization of its transformative potential rests ultimately in its ability to breathe life and meaning into its abstract concepts. For, above all, the Constitution was intended by its draftspersons to be a significant instrument of bringing about social change in a caste based feudal society witnessed by centuries of oppression of and discrimination against the marginalised. As our constitutional jurisprudence has evolved, the realisation of the transformative potential of the Constitution has been founded on the evolution of equality away from its formal underpinnings to its substantive potential118. The proviso recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level playing field. Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste oriented societal structure poses real barriers of access to opportunity. The proviso contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the Constitution for the consideration of their claim to appointment will remain illusory. The proviso, in other words, is an aid of fostering the real and substantive right to equality to the SCs and STs. It protects the authority of the Union and the States to adopt any of these special measures, to effectuate a realistic (as opposed to a formal) consideration of their claims to appointment in services and posts under the Union and the states. The proviso is not a qualification to the substantive part of Article 335 but it embodies a substantive effort to realise substantive equality. The proviso also emphasises that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs.119. The Constitution does not define what the framers meant by the phrase efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a trueaspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State. Establishing the position of the SCs and STs as worthy participants in affairs of governance is intrinsic to an equal citizenship. Equal citizenship recognizes governance which is inclusive but also ensures that those segments of our society which have suffered a history of prejudice, discrimination and oppression have a real voice in governance. Since inclusion is inseparable from a well governed society, there is, in our view, no antithesis between maintaining the efficiency of administration and considering the claims of the SCs and STs to appointments to services and posts in connection with the affairs of the Union or of a State.121. The substantive right to equality is for all segments of society. Articles 15 (4) and 16 (4) represent the constitutional aspiration to ameliorate the conditions of the SCs and STs. While, we are conscious of the fact that the decision in Indra Sawhney did not accept K C Vasanth Kumaron certain aspects, the observations have been cited by us to explain the substantive relationship between equal opportunity and merit. It embodies the fundamental philosophy of the Constitution towards advancing substantive equality.122. An assumption implicit in the critique of reservations is that awarding opportunities in government services based on merit results in an increase in administrative efficiency. Firstly, it must be noted that administrative efficiency is an outcome of the actions taken by officials after they have been appointed or promoted and is not tied to the selection method itself. The argument that one selection method produces officials capable of taking better actions than a second method must be empirically proven based on an evaluation of the outcomes produced by officials selected through both methods.Secondly, arguments that attack reservations on the grounds of efficiency equate merit with candidates who perform better than other candidates on seemingly neutral criteria, e.g. standardised examinations. Thus, candidates who score beyond a particular cut-off point are considered meritoriousand others are non-meritorious. However, this is a distorted understanding of the function merit plays in society.124. Once we understand merit as instrumental in achieving goods that we as a society value, we see that the equation of merit with performance at a few narrowly defined criteria is incomplete. A meritocratic system is one that rewards actions that result in the outcomes that we as a society value.125. For example, performance in standardised examinations (distinguished from administrative efficiency) now becomes one among many of the actions that the process of appointments in government services seeks to achieve. Based on the text of Articles 335, Articles 16 (4), and 46, it is evident that the uplifting of the SCs and STs through employment in government services, and having an inclusive government are other outcomes that the process of appointments in government services seeks to achieve.126. The Proviso to Article 335 of the Constitution seeks to mitigate this risk by allowing for provisions to be made for relaxing the marks in qualifying exams in the case of candidates from the SCs and the STs. If the governments sole consideration in appointments was to appoint individuals who were considered talented or successful in standardised examinations, by virtue of the inequality in access to resources and previous educational training (existing inequalities in society), the stated constitutional goal of uplifting these sections of society and having a diverse administration would be undermined. Thus, a meritorious candidate is not merely one who is talented or successful but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.128. The first two criteria are evidently not the products of a candidates own efforts but rather the structural conditions into which they are born. By the addition of upliftment of SCs and STs in the moral compass of merit in government appointments and promotions, the Constitution mitigates the risk that the lack of the first two criteria will perpetuate the structural inequalities existing in society130. Moreover, even in a formal legal sense, promotions, including those in respect of roster points, are made on the basis of seniority-cum-merit and a candidate to be promoted has to meet this criteria [See in this context Rule 19(3) A and D of the Karnataka Civil Services General Recruitment Rules 1977 which states that subject to other provisions all appointments by promotion shall be on an officiating basis for a period of one year and at the end of the period of officiation, if appointing authority considers the person not suitable for promotion, she/he may be reverted back to the post held prior to the promotion]. A candidate on promotion has to serve a statutory period of officiation before being confirmed. This rule applies across the board including to roster point promotees. This ensures that the efficiency of administration is, in any event, not adversely affected133. Ms Jaisings argument is based on the decision in Chinnaiah that the SCs and STs cannot be split or bifurcated and the adoption of the creamy layer principle would amount to a spilt in the homogenous groups of the SCs and STs. This argument according to Dr Dhavan, was rejected in Jarnail by the Constitution Bench137. We are thus unable to subscribe to the submission that Jarnail is not per curium on the issue of creamy layer. For one thing, Jarnail specifically examined the decision in Indra Sawhney, noticing that eight of the nine learned Judges applied the creamy layer principle as a facet of the larger equality principle.Jarnail discussed the decision in Chinnaiah and held that it dealt with the lack of legislative competence on the part of the State legislatures to create subcategories among the Presidential lists under Articles 341 and 342. The decision in Jarnail therefore held that Chinnaiah did not deal with any of the aspects on which the constitutional amendments were upheld in Nagaraj and hence it was not necessary for Nagaraj to refer to Chinnaiah at all. In this view of the matter, we are clearly of the view that Jarnail, on a construction of Indra Sawhney holds that the creamy layer principle is a principle of equality.138. Though, we have not accepted the above submission which was urged by Ms Jaising on behalf of the intervenors, we will have to decide as to whether the Reservation Act 2018 is unconstitutional. The challenge in the present case is to the validity of the Reservation Act 2018 which provides for consequential seniority. In other words, the nature or extent of reservation granted to the SCs and STs at the entry level in appointment is not under challenge. The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A). The concept of creamy layer has no relevance to the grant ofconsequential seniority. There is merit in the submission of the State of Karnataka that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status. The decision in Jarnail rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness.139. In sustaining the validity of Articles 16 (4A) and 16 (4B) against a challenge of violating the basic structure, Nagaraj applied the test of width and the test of identity. The Constitution Bench ruled that the catch-up rule and consequential seniority are not constitutional requirements. They were held not to be implicit in clauses (1) to (4) of Article 16. Nagaraj held that they are not constitutional limitations or principles but are concepts derived from service jurisprudence. Hence, neither the obliteration of those concepts nor their insertion would violate the equality code contained in Articles 14, 15 and 16. The principle postulated in Nagaraj is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true constitutional position, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In the above view of the matter, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs.141. Since promotions granted prior to 1 March 1996 were protected, it was logical for the legislature to protect consequential seniority. The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional142. The benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accordedOver representation in KPTCL and PWD143. The Ratna Prabha Committee collected data from thirty one departments of the State Government of Karnataka. It has been pointed out on behalf of the State that corporations such as KPTCL and other public sector undertakings fall within the administrative control of one of the departments of the State government. The position in thirty one departments was taken as representative of the position in public employment under the State. The over representation in KPTCL and PWD has been projected by the petitioners with reference to the total number of posts which have been filled. On the other hand, the quota is fixed and the roster applies as regards the total sanctioned posts as held in Sabharwal and Nagaraj. On the contrary, the data submitted by the State of Karnataka indicates that if consequential seniority is not allowed, there would be under representation of the reserved categories. Finally, it may also be noted that under the Government Order dated 13 April 1999, reservation in promotion in favour of SCs and STs has been provided until the representation for these categories reaches 15 per cent and 3 per cent, respectively. The State has informed the Court that the above Government Order is applicable to KPTCL and PWD, 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: of Indra Sawhney holds that the creamy layer principle is a principle of equality. 138. Though, we have not accepted the above submission which was urged by Ms Jaising on behalf of the intervenors, we will have to decide as to whether the Reservation Act 2018 is unconstitutional. The challenge in the present case is to the validity of the Reservation Act 2018 which provides for consequential seniority. In other words, the nature or extent of reservation granted to the SCs and STs at the entry level in appointment is not under challenge. The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A). The concept of creamy layer has no relevance to the grant of consequential seniority. There is merit in the submission of the State of Karnataka that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status. The decision in Jarnail rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness. The Constitution Bench declined to accept the submission on the ground that it related to the validity of Article 16 (4A) and held thus: 34…We may hasten to add that Shri Dwivedis argument cannot be confused with the concept of creamy layer which, as has been pointed out by us hereinabove, applies to persons within the Scheduled Castes or the Scheduled Tribes who no longer require reservation, as opposed to posts beyond the entry stage, which may be occupied by members of the Scheduled Castes or the Scheduled Tribes. (Emphasis supplied) 139. In sustaining the validity of Articles 16 (4A) and 16 (4B) against a challenge of violating the basic structure, Nagaraj applied the test of width and the test of identity. The Constitution Bench ruled that the catch-up rule and consequential seniority are not constitutional requirements. They were held not to be implicit in clauses (1) to (4) of Article 16. Nagaraj held that they are not constitutional limitations or principles but are concepts derived from service jurisprudence. Hence, neither the obliteration of those concepts nor their insertion would violate the equality code contained in Articles 14, 15 and 16. The principle postulated in Nagaraj is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true constitutional position, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In the above view of the matter, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs. I. Retrospectivity 140. Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June 1995. The other provisions came into force at once as provided in Section 1(2). Section 4 stipulates that the consequential seniority already granted to government servants belonging to the SCs and STs in accordance with the reservation order with effect from 27 April 1978 shall be valid and shall be protected. In this context, we must note from the earlier decisions of this Court that: (i) The decision in Virpal Singh held that the catch-up rule would be applied only from 10 February 1995 which was the date of the judgment in Sabharwal; (ii) The decision in Ajit Singh II specifically protected the promotions which were granted before 1 March 1996 without following the catch-up rule; and (iii) In Badappanavar, promotions of reserved candidates based on consequential seniority which took place before 1 March 1996 were specifically protected. 141. Since promotions granted prior to 1 March 1996 were protected, it was logical for the legislature to protect consequential seniority. The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional. 142. The benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accorded J. Over representation in KPTCL and PWD 143. The Ratna Prabha Committee collected data from thirty one departments of the State Government of Karnataka. It has been pointed out on behalf of the State that corporations such as KPTCL and other public sector undertakings fall within the administrative control of one of the departments of the State government. The position in thirty one departments was taken as representative of the position in public employment under the State. The over representation in KPTCL and PWD has been projected by the petitioners with reference to the total number of posts which have been filled. On the other hand, the quota is fixed and the roster applies as regards the total sanctioned posts as held in Sabharwal and Nagaraj. On the contrary, the data submitted by the State of Karnataka indicates that if consequential seniority is not allowed, there would be under representation of the reserved categories. Finally, it may also be noted that under the Government Order dated 13 April 1999, reservation in promotion in favour of SCs and STs has been provided until the representation for these categories reaches 15 per cent and 3 per cent, respectively. The State has informed the Court that the above Government Order is applicable to KPTCL and PWD, as well K. Conclusion ### Response: 0

Mohd. Ilyas Vs. Union of India and Another

citizen of India by virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign State. Hence, if the appellant is said to have voluntarily acquired Pakistani citizenship then he cannot be held to be an India citizen.8. Section 9 of the Citizenship Act provides :"(1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires or has at any time between the 26th January, 1950 and the commencement of this Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India :Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs.(2) If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner and having regard to such rules of evidence, as may be prescribed in this behalf."9. Section 18(1) of the Citizenship Act authorises the Central Government to make rules, inter alia, for setting up an authority to determine the question of acquisition of citizenship of another country and the procedure to be followed by such authority and rules of evidence relating to such cases. In exercise of that power, the Central Government framed Citizenship Rules, 1956 and the same came into force on July 7, 1956. By Rule 30, it was provided :"(1) If any question arises as to whether, when or how any person has acquire the citizenship of another country the authority to determine such question shall, for the purpose of Section 9(2), be the Central Government.(2) The Central Government shall in determining any such question have due regard to the rules of evidence specified in Schedule III."10. Schedule III sets out the rules referred to in Rule 30(2). Clauses 1, 2 and 3 of that Schedule are relevant. They read :"1. Where it appears to the Central Government that a citizen of India has voluntarily acquired the citizenship of any other country, it may require him to prove within such period as may be fixed by it in this behalf, that he has not voluntarily acquired the citizenship of that country and the burden of proving that he has not so acquired such citizenship shall be on him.2. For the purpose of determining any question relating to the acquisition by an Indian citizen of the citizenship of any other country, the Central Government may make such reference as it thinks fit in respect of that question or of any matter relating thereto, to its Embassy in that country or to the Government of that country and act on any report or information received in pursuance of such reference.3. The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date."11. If we hold that the appellant had obtained the passport, to which reference has been made earlier from the Pakistan Government then that circumstance amounts to a conclusive proof of the fact that he had acquired voluntarily citizenship of Pakistan. Therefore the only question that we have to decide is whether he had obtained the passport in question.12. This Court in Mohd. Ayubs case (supra) made distinction between receiving of a passport and obtaining of a passport. It observed that obtaining of a passport of a foreign country cannot in all cases mean receiving the passport as cases may be visualised in which on account of force of fraud a person may be compelled or induced to obtain a passport from a foreign country. Therein this Court further observed that it will be difficult to say that in such a case the passport has been obtained within the meaning of Paragraph 3 of Schedule III. As laid down by this Court in Syed Khawaja Moinuddin v. Government of India and Others ((1967) 2 SCR 401 ) that on a representation made by a person, the Government is not called upon to make any detailed enquiry when the provisions of Paragraph 3 of Schedule III of the Citizenship Rules, namely that the authority must regard obtaining of a foreign passport on a particular date as conclusive proof that the Indian citizen had voluntarily acquired the citizenship of another country before that date, were clearly applicable. It is only when a plea is raised that a citizen had not voluntarily obtained the passport that he should be afforded an opportunity to prove that fact.13. On the allegations made above the appellant challenged by means of a suit the order made by the central Government holding that he had voluntarily acquired the citizenship of Pakistan. That suit was dismissed and the judgment of the Trial Court was affirmed both in first appeal as well as in second appeal.14. On his own showing the appellant had voluntarily applied for and obtained the Pakistani passport. If he was an Indian citizen and that he happened to be in Pakistan, the appropriate course for him was to apply for entry permit from the Indian High Commission at Karachi. Without doing that, he represented to the authorities that he was a citizen of Pakistan and that he wanted to visit India to see his parents as well a sisters husband. It is not his case that he was compelled by force to obtain a passport from Pakistan or that he was a victim of any fraud. Therefore we are unable to appreciate the contention advanced by the learned counsel for the appellant that the passport was not voluntarily obtained by the appellant. On the admitted facts, no occasion arose for the Government to give him a personal hearing or to give him an opportunity to adduce oral evidence.

0[ds]13. On the allegations made above the appellant challenged by means of a suit the order made by the central Government holding that he had voluntarily acquired the citizenship of Pakistan. That suit was dismissed and the judgment of the Trial Court was affirmed both in first appeal as well as in second appeal.14. On his own showing the appellant had voluntarily applied for and obtained the Pakistani passport. If he was an Indian citizen and that he happened to be in Pakistan, the appropriate course for him was to apply for entry permit from the Indian High Commission at Karachi. Without doing that, he represented to the authorities that he was a citizen of Pakistan and that he wanted to visit India to see his parents as well a sisters husband. It is not his case that he was compelled by force to obtain a passport from Pakistan or that he was a victim of any fraud. Therefore we are unable to appreciate the contention advanced by the learned counsel for the appellant that the passport was not voluntarily obtained by the appellant. On the admitted facts, no occasion arose for the Government to give him a personal hearing or to give him an opportunity to adduce oral evidence.

### 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: citizen of India by virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign State. Hence, if the appellant is said to have voluntarily acquired Pakistani citizenship then he cannot be held to be an India citizen.8. Section 9 of the Citizenship Act provides :"(1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires or has at any time between the 26th January, 1950 and the commencement of this Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India :Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs.(2) If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner and having regard to such rules of evidence, as may be prescribed in this behalf."9. Section 18(1) of the Citizenship Act authorises the Central Government to make rules, inter alia, for setting up an authority to determine the question of acquisition of citizenship of another country and the procedure to be followed by such authority and rules of evidence relating to such cases. In exercise of that power, the Central Government framed Citizenship Rules, 1956 and the same came into force on July 7, 1956. By Rule 30, it was provided :"(1) If any question arises as to whether, when or how any person has acquire the citizenship of another country the authority to determine such question shall, for the purpose of Section 9(2), be the Central Government.(2) The Central Government shall in determining any such question have due regard to the rules of evidence specified in Schedule III."10. Schedule III sets out the rules referred to in Rule 30(2). Clauses 1, 2 and 3 of that Schedule are relevant. They read :"1. Where it appears to the Central Government that a citizen of India has voluntarily acquired the citizenship of any other country, it may require him to prove within such period as may be fixed by it in this behalf, that he has not voluntarily acquired the citizenship of that country and the burden of proving that he has not so acquired such citizenship shall be on him.2. For the purpose of determining any question relating to the acquisition by an Indian citizen of the citizenship of any other country, the Central Government may make such reference as it thinks fit in respect of that question or of any matter relating thereto, to its Embassy in that country or to the Government of that country and act on any report or information received in pursuance of such reference.3. The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date."11. If we hold that the appellant had obtained the passport, to which reference has been made earlier from the Pakistan Government then that circumstance amounts to a conclusive proof of the fact that he had acquired voluntarily citizenship of Pakistan. Therefore the only question that we have to decide is whether he had obtained the passport in question.12. This Court in Mohd. Ayubs case (supra) made distinction between receiving of a passport and obtaining of a passport. It observed that obtaining of a passport of a foreign country cannot in all cases mean receiving the passport as cases may be visualised in which on account of force of fraud a person may be compelled or induced to obtain a passport from a foreign country. Therein this Court further observed that it will be difficult to say that in such a case the passport has been obtained within the meaning of Paragraph 3 of Schedule III. As laid down by this Court in Syed Khawaja Moinuddin v. Government of India and Others ((1967) 2 SCR 401 ) that on a representation made by a person, the Government is not called upon to make any detailed enquiry when the provisions of Paragraph 3 of Schedule III of the Citizenship Rules, namely that the authority must regard obtaining of a foreign passport on a particular date as conclusive proof that the Indian citizen had voluntarily acquired the citizenship of another country before that date, were clearly applicable. It is only when a plea is raised that a citizen had not voluntarily obtained the passport that he should be afforded an opportunity to prove that fact.13. On the allegations made above the appellant challenged by means of a suit the order made by the central Government holding that he had voluntarily acquired the citizenship of Pakistan. That suit was dismissed and the judgment of the Trial Court was affirmed both in first appeal as well as in second appeal.14. On his own showing the appellant had voluntarily applied for and obtained the Pakistani passport. If he was an Indian citizen and that he happened to be in Pakistan, the appropriate course for him was to apply for entry permit from the Indian High Commission at Karachi. Without doing that, he represented to the authorities that he was a citizen of Pakistan and that he wanted to visit India to see his parents as well a sisters husband. It is not his case that he was compelled by force to obtain a passport from Pakistan or that he was a victim of any fraud. Therefore we are unable to appreciate the contention advanced by the learned counsel for the appellant that the passport was not voluntarily obtained by the appellant. On the admitted facts, no occasion arose for the Government to give him a personal hearing or to give him an opportunity to adduce oral evidence. ### Response: 0

State Of Punjab Vs. Karnail Singh

Dr. Arijit Pasayat, J. 1. Leave granted. 2. Challenge in this appeal is to the judgment of the learned Single Judge of the Punjab and Haryana High Court allowing the Criminal revision petition filed by the respondent. 3. Challenge before the High Court was to the order dated 11.5.2004 passed by learned Special Judge, Mansa, framing charges against the respondent for offence punishable under Sections 7 and 13(2) of Prevention of Corruption Act, 1988 (in short the ‘Act). The respondent was working as a Manager of Punjab Agricultural Development Bank at Budladha. The stand before the High Court was that the writ petitioner was not covered within the definition of "public servant" as the Bank was only a Co-operative Society and not receiving aid of any kind from the Government. An affidavit was filed by the Managing Director, Punjab State Co-operative Agricultural Development Bank Limited to the effect that State Government had invested Rs.50 lakhs as share capital in the Bank and Bank is controlled by the State Government. It was also argued that the Managing Director was an official of the State Government of the designation of Additional Registrar, Cooperative Societies and, therefore, the writ petitioner was a "public servant". The High Court wanted to know the total share capital of the Bank and as to whether it falls within the definition of Government Company as defined under Section 617 of the Companies Act, 1956. After referring to sub-clause (ix) of clause (c) of Section 2 of the Act the High Court came to an abrupt conclusion that the charges had been framed relying on the aforesaid clause, but on the facts it cannot be said that the revision petitioner falls within the definition of "public servant". Accordingly, it allowed the revision petition and Special Judge, Mansas order dated 11.5.2004 was set aside.4. In support of the appeal, learned counsel for the appellant submitted that a bare reading of sub-clause (ix) of clause (c) of Section 2 of the Act makes the position clear that the respondent was a "public servant".5. Learned counsel for the respondent on the other hand submitted that the essential ingredients to cover the respondent within the definition of "Public servant" are absent and, therefore, the High Court was justified in allowing the revision petition. Section 2(c)(ix) reads as follows: "Any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1) of 1956." 6. The High Court has not analysed the factual position. It is also not known whether the details asked by the High Court like the total share capital of the Bank and as to whether it falls within the definition of Government Company were supplied or not. The effect of the affidavit filed by the Managing Director also was not considered. Learned counsel for the appellant has referred to the provisions of the Punjab Cooperative Agricultural Development Banks Act, 1957 (in short the ‘Punjab Act) and various provisions thereof e.g. Section 2(d), 2(f), 2(g) and Section 10 to contend that revision petitioner was a public servant. Needless to say the High Court was required to consider the relevance of the aforesaid provisions and other provisions of Punjab Act. 7. Therefore, we set aside the impugned order of the High Court and remit the matter to it for fresh consideration.8.

1[ds]The High Court has not analysed the factual position. It is also not known whether the details asked by the High Court like the total share capital of the Bank and as to whether it falls within the definition of Government Company were supplied or not. The effect of the affidavit filed by the Managing Director also was not considered.Learned counsel for the appellanthas referred to the provisions of the Punjab Cooperative Agricultural Development Banks Act, 1957 (in short the ‘Punjab Act) and various provisions thereof e.g. Section 2(d), 2(f), 2(g) and Section 10 to contend that revision petitioner was a public servant. Needless to say the High Court was required to consider the relevance of the aforesaid provisions and other provisions of Punjabwe set aside the impugned order of the High Court and remit the matter to it for fresh consideration.

### 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: Dr. Arijit Pasayat, J. 1. Leave granted. 2. Challenge in this appeal is to the judgment of the learned Single Judge of the Punjab and Haryana High Court allowing the Criminal revision petition filed by the respondent. 3. Challenge before the High Court was to the order dated 11.5.2004 passed by learned Special Judge, Mansa, framing charges against the respondent for offence punishable under Sections 7 and 13(2) of Prevention of Corruption Act, 1988 (in short the ‘Act). The respondent was working as a Manager of Punjab Agricultural Development Bank at Budladha. The stand before the High Court was that the writ petitioner was not covered within the definition of "public servant" as the Bank was only a Co-operative Society and not receiving aid of any kind from the Government. An affidavit was filed by the Managing Director, Punjab State Co-operative Agricultural Development Bank Limited to the effect that State Government had invested Rs.50 lakhs as share capital in the Bank and Bank is controlled by the State Government. It was also argued that the Managing Director was an official of the State Government of the designation of Additional Registrar, Cooperative Societies and, therefore, the writ petitioner was a "public servant". The High Court wanted to know the total share capital of the Bank and as to whether it falls within the definition of Government Company as defined under Section 617 of the Companies Act, 1956. After referring to sub-clause (ix) of clause (c) of Section 2 of the Act the High Court came to an abrupt conclusion that the charges had been framed relying on the aforesaid clause, but on the facts it cannot be said that the revision petitioner falls within the definition of "public servant". Accordingly, it allowed the revision petition and Special Judge, Mansas order dated 11.5.2004 was set aside.4. In support of the appeal, learned counsel for the appellant submitted that a bare reading of sub-clause (ix) of clause (c) of Section 2 of the Act makes the position clear that the respondent was a "public servant".5. Learned counsel for the respondent on the other hand submitted that the essential ingredients to cover the respondent within the definition of "Public servant" are absent and, therefore, the High Court was justified in allowing the revision petition. Section 2(c)(ix) reads as follows: "Any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1) of 1956." 6. The High Court has not analysed the factual position. It is also not known whether the details asked by the High Court like the total share capital of the Bank and as to whether it falls within the definition of Government Company were supplied or not. The effect of the affidavit filed by the Managing Director also was not considered. Learned counsel for the appellant has referred to the provisions of the Punjab Cooperative Agricultural Development Banks Act, 1957 (in short the ‘Punjab Act) and various provisions thereof e.g. Section 2(d), 2(f), 2(g) and Section 10 to contend that revision petitioner was a public servant. Needless to say the High Court was required to consider the relevance of the aforesaid provisions and other provisions of Punjab Act. 7. Therefore, we set aside the impugned order of the High Court and remit the matter to it for fresh consideration.8. ### Response: 1

HUCHANAGOUDA Vs. THE ASSISTANT COMMISSIONER AND LAND ACQUSITION OFFICER

of the fact that large number of other similarly situated persons who were affected by the determination of compensation by the Land Acquisition Officer or the Reference Court have been granted relief.?6. We further take note that this Court in the case of Dhiraj Singh (Dead) Thr. Lrs. And Others v. State of Haryana and Others, (2014) 14 SCC 127 , has considered the issue relating to condonation of delay in land acquisition matters and the manner in which the equities are to be balanced. It is held therein as hereunder:"15. Equities can be balanced by denying the appellants? interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hypertechnical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the court has to be pragmatic and not pedantic.16. The principles regarding condonation of delay particularly in land acquisition matters, have been enunciated in Collector (LA) v. Katiji, (1987) 2 SCC 107 , wherein it is sated in para 3 as under:?3. The legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on ‘merits?. The expression ‘sufficient cause? employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice – that being the life-purpoe for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that:(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties(3) ‘Every day?s delay must be explained? does not mean that a pedantic approach should be made. Why not every hour?s delay, every second?s delay? The doctrine must be applied in a rational common sense pragmatic manner.(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserved to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.(6) It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?Further, even if the consideration is made on merits after condoning the delay, the determination of the market value will in all event relate back to the date of preliminary notification and as such there is no prejudice to the acquisition authority nor added advantage to the land loser. The aspect relating to interest can be taken care by denying it to the land loser for the period of delay.7. Following the above judgment and for the further reasons assigned above, in our view the delay of 2154 days in filing and 252 days in refiling S.L.P.(C) Diary No.27982 of 2017 as also the delay of 2109 days in filing and 250 days in refiling S.L.P.(C)Diary No.27981 of 2017 cannot be a reason to deny the consideration of the matter on merits regarding the claim of the appellant for just and fair compensation.8. The High Court has granted 5% escalation for the gap of about nine years between 24.11.1994 and 16.10.2003. Admittedly, the acquisition of the land was for rehabilitating the Veerapur villagers on account of implementation of Hirehalla Project. Learned counsel appearing for the appellants has submitted that though the acquired land on the date of acquisition was agricultural land the very fact that it is acquired for rehabilitation which is non-agricultural use, the same has the potential for development for being converted into building sites and had the potential of being put to better use. Reliance was placed by learned counsel for the appellants on the judgment of this Court in General Manager, Oil and Natural Gas Corporation Limited v. Rameshbhai Jivanbhai Patel and Another, (2008) 14 SCC 745. Pointing out that there should be significant increases in the market value of the land in para ‘14? of Rameshbhai (supra) it was held by this Court which reads as under :?14. On the other extreme, in remote rural areas where there was no chance of any development and hardly any buyers, the prices stagnated for years or rose marginally at a nominal rate of 1% or 2% per annum. There is thus a significant difference in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. Therefore if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same.?

1[ds]7. Following the above judgment and for the further reasons assigned above, in our view the delay of 2154 days in filing and 252 days in refiling S.L.P.(C) Diary No.27982 of 2017 as also the delay of 2109 days in filing and 250 days in refiling S.L.P.(C)Diary No.27981 of 2017 cannot be a reason to deny the consideration of the matter on merits regarding the claim of the appellant for just and fair compensation.8. The High Court has granted 5% escalation for the gap of about nine years between 24.11.1994 and 16.10.2003. Admittedly, the acquisition of the land was for rehabilitating the Veerapur villagers on account of implementation of Hirehallaeven if the consideration is made on merits after condoning the delay, the determination of the market value will in all event relate back to the date of preliminary notification and as such there is no prejudice to the acquisition authority nor added advantage to the land loser. The aspect relating to interest can be taken care by denying it to the land loser for the period of delay.

### 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 the fact that large number of other similarly situated persons who were affected by the determination of compensation by the Land Acquisition Officer or the Reference Court have been granted relief.?6. We further take note that this Court in the case of Dhiraj Singh (Dead) Thr. Lrs. And Others v. State of Haryana and Others, (2014) 14 SCC 127 , has considered the issue relating to condonation of delay in land acquisition matters and the manner in which the equities are to be balanced. It is held therein as hereunder:"15. Equities can be balanced by denying the appellants? interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hypertechnical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the court has to be pragmatic and not pedantic.16. The principles regarding condonation of delay particularly in land acquisition matters, have been enunciated in Collector (LA) v. Katiji, (1987) 2 SCC 107 , wherein it is sated in para 3 as under:?3. The legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on ‘merits?. The expression ‘sufficient cause? employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice – that being the life-purpoe for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that:(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties(3) ‘Every day?s delay must be explained? does not mean that a pedantic approach should be made. Why not every hour?s delay, every second?s delay? The doctrine must be applied in a rational common sense pragmatic manner.(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserved to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.(6) It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.?Further, even if the consideration is made on merits after condoning the delay, the determination of the market value will in all event relate back to the date of preliminary notification and as such there is no prejudice to the acquisition authority nor added advantage to the land loser. The aspect relating to interest can be taken care by denying it to the land loser for the period of delay.7. Following the above judgment and for the further reasons assigned above, in our view the delay of 2154 days in filing and 252 days in refiling S.L.P.(C) Diary No.27982 of 2017 as also the delay of 2109 days in filing and 250 days in refiling S.L.P.(C)Diary No.27981 of 2017 cannot be a reason to deny the consideration of the matter on merits regarding the claim of the appellant for just and fair compensation.8. The High Court has granted 5% escalation for the gap of about nine years between 24.11.1994 and 16.10.2003. Admittedly, the acquisition of the land was for rehabilitating the Veerapur villagers on account of implementation of Hirehalla Project. Learned counsel appearing for the appellants has submitted that though the acquired land on the date of acquisition was agricultural land the very fact that it is acquired for rehabilitation which is non-agricultural use, the same has the potential for development for being converted into building sites and had the potential of being put to better use. Reliance was placed by learned counsel for the appellants on the judgment of this Court in General Manager, Oil and Natural Gas Corporation Limited v. Rameshbhai Jivanbhai Patel and Another, (2008) 14 SCC 745. Pointing out that there should be significant increases in the market value of the land in para ‘14? of Rameshbhai (supra) it was held by this Court which reads as under :?14. On the other extreme, in remote rural areas where there was no chance of any development and hardly any buyers, the prices stagnated for years or rose marginally at a nominal rate of 1% or 2% per annum. There is thus a significant difference in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. Therefore if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same.? ### Response: 1

The Andhra Prabha Ltd. & Ors Vs. Secretary, Madras Union Of Journalists & Ors

Ltd. and became a public company towards the end of 1960; (b) Before the company became a public company, Ramnath Goenka and the members of his family held 4,000 out of 4,200 shares; (c) till May 1959 the company which owned the entire group of newspapers published by the same Management at three branch offices one in Delhi, a second in Madurai and the third in Bombay. As a result of the splitting up, the position was that the Express Newspapers (P) Ltd. in Delhi took up the Delhi publications, the Indian Express Bombay (P) Ltd. took up the publications published by the company from Bombay, the Indian Express Madurai (P) Ltd. took up the publications issued from Madurai and Andhra Prabha (P) Ltd. Vijayawada took up the two Telugu publications. According to the Tribunal "it was only the Madurai company and the Vijayawada company that relied upon the support of the parent company after May 1959 for printing and publishing the papers acquired by them." The Tribunal further found that this position continued for sometime after May 1959 inasmuch as:"(1) The teleprinter service installed in the Express Estate building Mount Road continued to be used till the end of October 1959 and out of nine circuits comprised in the teleprinter service, seven were routed through Madras and these were allotted to the Madurai company for a period of three months commencing from 1st November, 1959. (2) Photographic materials used in tier, processing department maintained by the company up to October 1959 were purchased by the public company for the benefit of the two daughter companies; (3) Thirty-two of the former employees of the company including a reporter were retained in the service of the company after April 1959; (4) No intimation was sent to the Commissioner or other competent authority under the Employees Provident Funds Act of the termination of employment of 700 workmen and working journalists, and (5) After April 1959 a common advertising department for the two daughter companies was maintained at the Express Estate building as could be seen from certain circulars issued in December 1959".20. From all this the Tribunal inferred that the suspension of the business was a lockout at the inception and became a genuine closure only in October-November 1959. Before us, reliance was placed by Mr. Mohan Kumaramangalam on some of the above factors and the main plank of his argument was that in fact the parent company launched and financially helped the other companies which were really benamidars for the parent company. We do not think that even in Industrial law a new company which is an independent legal entity can be called a benamidar for another older organisation because there was in both companies a person or family of persons who could guide the destinies of the two companies. The Express Newspapers (P) Ltd. was later transformed into a public company and it would not be proper to describe the relationship of the Vijayawada and the Madurai companies as daughter companies or as benamidars of the company. We have to bear in mind that the company i.e., Express Newspapers (P) Ltd. did not come to an end in April 1959. It only closed its undertaking of publishing several newspapers and weeklies. It had very valuable property on its hands after April 1959 and some persons had to be retained in service to look after the property. The fact that one of them was a reporter cannot lead to the inference that the company did not close down its business but could take it up whenever it wanted to. Further, the failure to inform the Provident Fund authorities was an omission but that cannot mean that the workers continued to be in the service of the company or were meant to be taken back into its service as soon as they became submissive to Ramnath Goenka. With regard to the teleprinter service, we were told that it had been paid for up to a certain date and the fact that the Madurai and Vijayawada companies used the teleprinter service till the end of October 1959 would not either by itself or taken in conjunction with the other circumstances, justify the conclusion that the company retained the teleprinter service for its own use, if necessary.21. To all intents and purposes, the business of the company was closed from the 29th of April 1959 and whatever might have been the motive behind the closure it was an effective one from April 1959 and we see no reason to hold with the Tribunal that the closure became effective sometime in November 1959.22. On behalf of the employees an application has been made for leading additional evidence. In this application events which took place after the publication of the award are relied on as going to show that the discontinuance of the Publications from Madras was a mere ruse and a device adopted by the company to coerce and intimidate the employees and that publication of the newspapers had been commenced soon after the publication of the award. We do not think it necessary to go into this matter at any length because a break of over four years had intervened in between and what the company does after the lapse of this long period cannot and ought not to be taken into consideration in order to find out whether the closure was a real one or was a mere device as suggested by the employees. The evidence on record shows that Ramnath Goenkas plan was not to give up the business of newspaper publications altogether but he wanted to distribute his business to different places. Whatever may be the motive behind such plan, he had only carried out that plan into effect after the publication of the award and this cannot lead us to the conclusion that the closure was an assumed one. In our view, the strike was not justified and the Management was entitled to close the undertaking on 29th April, 1959.

1[ds]12. No attempt was made before us to show that the Tribunals conclusion about the absence of the verbal assurance or the inference to be drawn in respect thereof from the circumstances was wrong.It will be noticed that these two decisions were given before the amendment of the Industrial Disputes Act by the inclusion of S.FF. Now the two sections govern such cases. Under Sectionwhere the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer in relation to that undertaking to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of S.as if the workman had been retrenched. This section however is not to apply to a workman if his service had not been interrupted by such transfer, the terms and conditions of his service after transfer are not in any way less favourable to him than those applicable to him immediately before the transfer and the new employer is, under the terms of such transfer, legally liable to pay to the workman in the event of his retrenchment compensation on the basis that his service has been continues and had not been interrupted by the transfer.We are not concerned with(2) in this case. The result is that if there is in fact a closure, S.will come into play. In this case, however, it must be stated that the new company Andhra Prabha (P) Ltd. agreed to take over all employees at the time employed by the vendor in connection with the two publications as and from the date of taking over without any break in the continuity of their service and on the same terms and conditions as before.16. It is impossible to lay ones finger on the exact cause for Ramnath Goenka making up his mind to transfer a part of the undertaking to Vijayawada and another part to Madurai. It may be because he really felt that the Telugu papers would do better if printed and published at Vijayawada. It may also be that he wanted to circumvent the recommendation of the Press Commission with regard to the wages payable by the bigger units of newspapers. Again there can be no doubt that he did not like the agitation of the employees and probably thought that by the dispersal of the units the scope for agitation would be minimised. He was undoubtedly talking all steps in this regard as the resolutions passed by the shareholders of the company in February 1959, followed by the resolution of the Board of Directors and the agreement for sale of some machinery to the Andhra Prabha (P) Ltd. on the 15th of April 1959 would show. The workers probably were nettled by the, fact that they had not been consulted in regard to all this. While it is not possible to say that the alleged acts of sabotage and indiscipline said to have taken place on April 26, 1959 were of a very serious nature, Goenka stated in his evidence before the tribunal that after the demonstration of the labourers before his office on the 28th of April and their prevention of ingress and egress of the members of the staff to and from the office building he decide to close down his undertaking at Madras.17. On the evidence before the tribunal to which our attention was drawn by counsel on both sides, it appears to us that while the Management might have taken into confidence the employees and discussed with them the scheme for the dispersal of the undertaking the decision to go on strike was unwarranted and disastrous. Even if there had been no strike on the 27th of April, it seems to us that the scheme of dispersal would have been given effect to afterwards although it was the strike which precipiatedour opinion the existence of theoffset rotary pressat the Express Estate Madras until they were hired out to the Indian Express Madurai (P) Ltd. does not warrant the conclusion that the company could have made use of the rotary press when it wanted to. We have got to judge things by what was done and not by what could have been done.19. Again the circumstances that some of these journals came to be published sometime after May 1959 under new declarations made by publishers respectively on behalf of the Andhra Prabha (P) Ltd. and the Indian Express Madurai (P) Ltd. cannot be taken into consideration for finding against the closure of the companys undertaking in Aprildo not think that even in Industrial law a new company which is an independent legal entity can be called a benamidar for another older organisation because there was in both companies a person or family of persons who could guide the destinies of the two companies. The Express Newspapers (P) Ltd. was later transformed into a public company and it would not be proper to describe the relationship of the Vijayawada and the Madurai companies as daughter companies or as benamidars of the company. We have to bear in mind that the company i.e., Express Newspapers (P) Ltd. did not come to an end in April 1959. It only closed its undertaking of publishing several newspapers and weeklies. It had very valuable property on its hands after April 1959 and some persons had to be retained in service to look after the property. The fact that one of them was a reporter cannot lead to the inference that the company did not close down its business but could take it up whenever it wanted to. Further, the failure to inform the Provident Fund authorities was an omission but that cannot mean that the workers continued to be in the service of the company or were meant to be taken back into its service as soon as they became submissive to Ramnath Goenka. With regard to the teleprinter service, we were told that it had been paid for up to a certain date and the fact that the Madurai and Vijayawada companies used the teleprinter service till the end of October 1959 would not either by itself or taken in conjunction with the other circumstances, justify the conclusion that the company retained the teleprinter service for its own use, ifdo not think it necessary to go into this matter at any length because a break of over four years had intervened in between and what the company does after the lapse of this long period cannot and ought not to be taken into consideration in order to find out whether the closure was a real one or was a mere device as suggested by the employees. The evidence on record shows that Ramnath Goenkas plan was not to give up the business of newspaper publications altogether but he wanted to distribute his business to different places. Whatever may be the motive behind such plan, he had only carried out that plan into effect after the publication of the award and this cannot lead us to the conclusion that the closure was an assumed one. In our view, the strike was not justified and the Management was entitled to close the undertaking on 29th April, 1959.

### 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: Ltd. and became a public company towards the end of 1960; (b) Before the company became a public company, Ramnath Goenka and the members of his family held 4,000 out of 4,200 shares; (c) till May 1959 the company which owned the entire group of newspapers published by the same Management at three branch offices one in Delhi, a second in Madurai and the third in Bombay. As a result of the splitting up, the position was that the Express Newspapers (P) Ltd. in Delhi took up the Delhi publications, the Indian Express Bombay (P) Ltd. took up the publications published by the company from Bombay, the Indian Express Madurai (P) Ltd. took up the publications issued from Madurai and Andhra Prabha (P) Ltd. Vijayawada took up the two Telugu publications. According to the Tribunal "it was only the Madurai company and the Vijayawada company that relied upon the support of the parent company after May 1959 for printing and publishing the papers acquired by them." The Tribunal further found that this position continued for sometime after May 1959 inasmuch as:"(1) The teleprinter service installed in the Express Estate building Mount Road continued to be used till the end of October 1959 and out of nine circuits comprised in the teleprinter service, seven were routed through Madras and these were allotted to the Madurai company for a period of three months commencing from 1st November, 1959. (2) Photographic materials used in tier, processing department maintained by the company up to October 1959 were purchased by the public company for the benefit of the two daughter companies; (3) Thirty-two of the former employees of the company including a reporter were retained in the service of the company after April 1959; (4) No intimation was sent to the Commissioner or other competent authority under the Employees Provident Funds Act of the termination of employment of 700 workmen and working journalists, and (5) After April 1959 a common advertising department for the two daughter companies was maintained at the Express Estate building as could be seen from certain circulars issued in December 1959".20. From all this the Tribunal inferred that the suspension of the business was a lockout at the inception and became a genuine closure only in October-November 1959. Before us, reliance was placed by Mr. Mohan Kumaramangalam on some of the above factors and the main plank of his argument was that in fact the parent company launched and financially helped the other companies which were really benamidars for the parent company. We do not think that even in Industrial law a new company which is an independent legal entity can be called a benamidar for another older organisation because there was in both companies a person or family of persons who could guide the destinies of the two companies. The Express Newspapers (P) Ltd. was later transformed into a public company and it would not be proper to describe the relationship of the Vijayawada and the Madurai companies as daughter companies or as benamidars of the company. We have to bear in mind that the company i.e., Express Newspapers (P) Ltd. did not come to an end in April 1959. It only closed its undertaking of publishing several newspapers and weeklies. It had very valuable property on its hands after April 1959 and some persons had to be retained in service to look after the property. The fact that one of them was a reporter cannot lead to the inference that the company did not close down its business but could take it up whenever it wanted to. Further, the failure to inform the Provident Fund authorities was an omission but that cannot mean that the workers continued to be in the service of the company or were meant to be taken back into its service as soon as they became submissive to Ramnath Goenka. With regard to the teleprinter service, we were told that it had been paid for up to a certain date and the fact that the Madurai and Vijayawada companies used the teleprinter service till the end of October 1959 would not either by itself or taken in conjunction with the other circumstances, justify the conclusion that the company retained the teleprinter service for its own use, if necessary.21. To all intents and purposes, the business of the company was closed from the 29th of April 1959 and whatever might have been the motive behind the closure it was an effective one from April 1959 and we see no reason to hold with the Tribunal that the closure became effective sometime in November 1959.22. On behalf of the employees an application has been made for leading additional evidence. In this application events which took place after the publication of the award are relied on as going to show that the discontinuance of the Publications from Madras was a mere ruse and a device adopted by the company to coerce and intimidate the employees and that publication of the newspapers had been commenced soon after the publication of the award. We do not think it necessary to go into this matter at any length because a break of over four years had intervened in between and what the company does after the lapse of this long period cannot and ought not to be taken into consideration in order to find out whether the closure was a real one or was a mere device as suggested by the employees. The evidence on record shows that Ramnath Goenkas plan was not to give up the business of newspaper publications altogether but he wanted to distribute his business to different places. Whatever may be the motive behind such plan, he had only carried out that plan into effect after the publication of the award and this cannot lead us to the conclusion that the closure was an assumed one. In our view, the strike was not justified and the Management was entitled to close the undertaking on 29th April, 1959. ### Response: 1

Rajiv Kumar Gupta and Others Vs. The State of Maharashtra

the same averments are sufficient to consider the offences under the food Adulteration Act then, it is difficult to quash the averments as this stage pertaining to section 420 of the IPC. Prima facie, it appears to us that the positive assertion in the newspapers dated 18/8/2005 by the said Company and similar contentions and averments in plication which was filed on 28/2/2005 for grant of licence by the said company prima facie cannot be said to be without the knowledge and/or without the permission of the directors or such other officers of the Company. (22) THE public prosecutor relied an section 17 (4) of the Food Adulteration Act and contended that, at this stage, it cannot be said that there was no connivance and /or no knowledge to the petitioners/directors about the permission, procedure and advertisements. He rightly contended that it is difficult to believe without due investigation, that the directors were unaware of those facts. We have also noted that there are no such averments made in the petition in reference to this. The submission was that there are no specific and positive allegations against the directors that they were in charge of and/or responsible for the conduct of the business of the company. This according to us, also needs detailed investigation and trial. Therefore, the Supreme Courts judgment in R. Banerjee. V. H. D Dubey, AIR 1992 SC 1168 , can be of no help to the petitioners at this stage. (23) THE contention of mala fide action of respondent 2 in lodging the complaint against the petitioners and the Company by invoking section 420 of the IPC is also difficult to accept. There are no positive averments made of mala fide action against the department and/or any officers. On the contrary, at this stage, the complaint lodged is based on the chemical analysers report. The positive averments made by the Company that the panmasala "rajnigandha" does not contain magnesium carbonate appears to be incorrect. There is some substance in the complaint as lodged by the complainant -Inspector of Food Department. Assuming for a moment that, at the relevant time, the permission was granted to sell such product in Maharashtra, that itself cannot be the reason to overlook the complaint that after collecting the positive report, the Department found that the panmasala contains magnesium carbonate, which according to them, was never permitted to be added in the panmasala. The existence of the said magnesium carbonate itself is in breach of the provisions of the Food Adulteration Act and Rules. It is difficult for us to overlook it and interfere with the investigation, which they have invoked by filing the present complaint against the petitioners/directors and the Company.(24) IT cannot be said that there is any abuse of process of law as sought to be contended. On the contrary, this will be in the interest of public at large that there should be a proper investigation of such issues as early as possible. The learned counsel for the petitioners has also relied on the supreme Court judgment in Ajay Mitra v. State of M. P. , AIR 2003 SC 1069 to support his case of quashing the FIR in reference to section 420 of the IPC only. Prime facie, it is difficult to accept the contention that there was no mens rea, firstly, because as the petitioners have submitted their application for grant of approval of the labels with specific averments of no magnesium carbonate and secondly, by advertising the product with positive averment that it does not contain any magnesium carbonate. The Department found all these averments wrong and incorrect. It is difficult to accept the contention that the FIR as filed does not allege or disclose the essential requirement of penal provisions and/or prima facie material to form the foundation or constitute the starting point of a lawful investigation. The facts in Ajay Mitras case (supra), therefore, are totally distinct and distinguishable and, hence, it is not applicable to the present case. (25) THE uncontroverted allegations made in the FIR and/or complaint and the evidence collected in support of the same cannot be overlooked, at this stage. In view of the allegations made in the complaint, the matter requires investigation. It is difficult to quash the proceedings as prayed. In view of this, the judgment of the Apex Court in m/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate, AIR 1998 SC 128 whereby in the facts and circumstances of the case, the court had quashed and set aside the complaint, does not help the petitioners. There is no dispute that the High court can exercise the power of judicial review in criminal matters under Article 226 of the Constitution of India but it is not as a matter of course. In the present case, no case is made out for quashing the FIR in respect of section 420 of the IPC. Moreover, the restricted prayer itself means that further investigation can proceed in respect of other offences under the Food Adulteration Act, based on the same averments. Therefore, this is not a fit case where this court should interfere with the investigation by invoking "doctrine of judicial review". (26) THE learned counsel further contended that by invoking the provisions of the IPC like sections 272, 273 and 420, it amounts to exceeding their power and jurisdiction as the Food Adulteration Act and the said Rules made thereunder nowhere give them such authority to launch prosecution under the IPC. The learned counsel is, however, unable to submit any supporting foundation to this proposition. There is no bar under the Food Adulteration Act and the said Rules made thereunder that the concerned authorities under the Act have no jurisdiction and/or authority to prosecute the guilty person for the offences under the ipc based on the same averments along with the provisions of the special statutes. All such authorities have jurisdiction to launch a prosecution by invoking various provisions of the IPC, along with the special statutes.

0[ds](14) WE are not impressed by this submission and as rightly contended by the learned public prosecutor that" the averment involving section 420 of the IPC in the present case has a foundation because of positive assertion made by the petitioners. Firstly, by submitting an application along with their labels and details of ingredients of panmasala "rajnigandha" dated 28/2/ 2005, wherein apart from the ingredients, there is a positive statement that "there is no added magnesium carbonate in the said product". The Food (Health) Authorities thereafter, based on the said averments, by its order dated 1/3/2005, have granted the permission to the Company to sell the panmasala "rajnigandha" in Maharashtra. But, on information as they raided the godown, they found and later on it was confirmed by the experts that the said "rajnigandha" panmasala contains magnesium carbonate to the extent of 1. 26% to 1,35%. Prima facie, it appears that the petitioners and the Company with this approach, in fact, have misdirected and misled the Department itself while submitting the label along with the application for licence to the product in Maharashtra. There is no reference about the existence of such magnesium carbonate in the said application. Secondly, in the newspaper advertisements dated 18/8/2005 in the English Daily "indian Express" and Marathi Daily "lokmat", gave positive averment and representation to the people at large that the "rajnigandha" panmasala does not contain the magnesium carbonate. The Ingredients of the "rajnigandha" panmasala have also been advertised accordingly. The people at large, impressed by this advertisement are likely to purchase the panamasala "rajnigandha". This positive representation by the said Company, if taken note of, on the face of record and without going to the intention behind such advertisement, a prima facie case has been made out by the Department to investigate the matter fully. We cannot ignore it, at this stage, because this is a question of health of public at large also. (15) THE learned public prosecutor has relied on paragraph 43 of the Supreme Court judgment in Godawat Pan Masalas case (AIR 2004 SC 4057 ) (supra), which refers to the submissions of the petitioners "rajnigandha" panmasala, which is reproduced as under:"assuming that traces of magnesium carbonate were to be formed during consumption of the product along with lime, the exercise of power should have been restricted to banning pan masala containing magnesium carbonate and not wholesale banning of pan masala, irrespective of the content of magnesium carbonate. "(16) THE petitioners counsel has also relied following portion of the some para. "he therefore contended that magnesium carbonate is not per se injurious to health for otherwise it would never have been permitted in any article of food. There is no material on the basis of which it can be demonstrated that the very same magnesium carbonate would become injurious to health if it arises on account of mixing of traces of magnesium in arecanut and carbonate in lime. According to the learned counsel, this is a clear case ofof mind, notwithstanding the medical research papers and data made available in the affidavit filed by the State Government. "(17) THE public prosecutor has further referred to paragraph 44 of the said judgment and pointed out that, at that time, it was not the case of the State Government that "rajnigandha" panmasala itself contains magnesium carbonate and, therefore, it was observed by the Apex Court that there was no demonstrated danger to the public health by magnesium carbonate by consumption of "rajnigandha" panmasala and even if there were, the prohibition could only have extended to panmasala containing magnesium carbonate. He, therefore, contended that at this stage, the undisputed position of trace of magnesium carbonate in the "rajnigandha" panmasala is itself sufficient to proceed with the investigation. (18) THE learned counsel appearing for the petitioners, however, opposed this contention and pointed out that what is relied upon by the public prosecutor are only the submissions and they cannot be taken note of, at this stage, as the Supreme Court has, in fact, quashed and set aside the Notification banning the panmasala by the said judgment. He referred to and relied on various other paragraphs of the Godawat Panmasala judgment (AIR 2004 SC 4057 ) (supra) of the supreme Court in support of his contention. We are not going to that controversy, at this stage, as admittedly the petitioners themselves have not challenged the entire FIR and specially the reference to the provisions of the Food Adulteration Act and Rules. The present challenge is restricted to section 420 of the IPC and not to the provisions of the food Adulteration Act. All these controversial issues are in respect of automatic formation of magnesium carbonate. In this writ petition, it is difficult to opine anything on this controversy without perusing the experts opinion. All these points will have therefore to be kept open for the parties to deal with at the appropriate stage.(19) THE contention in respect of "vicarious liability" have been argued, based on the recent judgment of the Supreme Court in S. M. S. Pharmaceuticals Ltd. V. Neeta bhalla and another Appeal (Cri) 664/2002 with Special Leave Petition No. 2286 of 2003 and others, dated 20/9/2005 (2005) 8 S. C. C 89 (AIR 2005 SC 3512 ), wherein, the Supreme court while dealing with the provisions of the Negotiable instruments Act in reference to the "offence by the company" and or liability of the company and its directors, on reference, has observed as under :" (a) whether for purposes of Section 141 of the Negotiable Instruments Act, 1881, it is sufficient if the substance of the allegation read as a whole fulfill the requirements of the said section and it is not necessary to specifically state in the complaint that the persons accused was in charge of, or responsible for, the conduct of the business of the company. (b) whether a director of a company would be deemed to be in charge of, and responsible to, the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary. (c) even if it is held that specific averments are necessary, whether in the absence of such averments the signatory of the cheque and or the Managing Directors or Joint managing Director who admittedly would be in charge of the company and responsible to the company for conduct of its business could be proceeded against". (20) THE basic ingredients, therefore, which are required to be considered in such complaint are that the person accused of must be in charge of and responsible for the conduct of the business of the company at the relevant time and there must be a positive averment in this regard. In the present case as noted above, the averments are not only against the said Company but also against the petitioners/directors. There are averments that "dharampal Satyapal Limited" have published advertisements as above giving false information and misled the public. The further averments are specifically against the petitioners/directors and the nominee of the said Company. Those averments are" Therefore, this complaint is filed u/s. 2 (a), (h) (i) and (v) of the Food Adulteration (Prevention) Act, 1954 under Ruleof the Rules, 1955 under the said Act and under Sections 272, 273 and 420 of Criminal procedure Code against the manufacturer of said Rajnigandha Flavoured Pan Masala, m/s. Dharampal Satyapal Ltd. Company and the Companys Directors, R/o. 2/50, s. D. A, New Delhi110 016, (2) Shri satyanarayan, Gupta, R/o. 43/1, Rajpur road, Delhi110 054, (3) Shri Piyush kumar Srhrikishan Gupta, R/d. 43/1, rajpur Road, Delhi110 054 and (4 Shri pradipkumar Ganesh Ghosh (Seller,Nominee) R/o. B3/4 rahnaj Bhiwandi Arya Compound, bhiwandi, who inspite of a ban put by the commissioner, Food and Drugs Administration, M. S. , Mumbai, to manufacture, stock and sell Gutka and Pan Masala containing magnesium Carbonate, manufactured rajnigandha Pan Masala which contains magnesium Carbonate which is injurious to public health and stocks and sold the same and who also published advertisements in the Indian Express, English Daily and lokmat, Marathi Daily stating therein that rajnigandha Pan Masala does not contain magnesium Carbonate and that permission is given for its sale in Maharashtra, thereby misleading and deceiving the public. "Prima facie, it appears to us that the positive assertion in the newspapers dated 18/8/2005 by the said Company and similar contentions and averments in plication which was filed on 28/2/2005 for grant of licence by the said company prima facie cannot be said to be without the knowledge and/or without the permission of the directors or such other officers of the Company. He rightly contended that it is difficult to believe without due investigation, that the directors were unaware of those facts. We have also noted that there are no such averments made in the petition in reference to this. The submission was that there are no specific and positive allegations against the directors that they were in charge of and/or responsible for the conduct of the business of the company. This according to us, also needs detailed investigation and trial. Therefore, the Supreme Courts judgment in R. Banerjee. V. H. D Dubey, AIR 1992 SC 1168 , can be of no help to the petitioners at this stage. (23) THE contention of mala fide action of respondent 2 in lodging the complaint against the petitioners and the Company by invoking section 420 of the IPC is also difficult to accept. There are no positive averments made of mala fide action against the department and/or any officers. On the contrary, at this stage, the complaint lodged is based on the chemical analysers report. The positive averments made by the Company that the panmasala "rajnigandha" does not contain magnesium carbonate appears to be incorrect. There is some substance in the complaint as lodged by the complainantInspector of Food Department. Assuming for a moment that, at the relevant time, the permission was granted to sell such product in Maharashtra, that itself cannot be the reason to overlook the complaint that after collecting the positive report, the Department found that the panmasala contains magnesium carbonate, which according to them, was never permitted to be added in the panmasala. The existence of the said magnesium carbonate itself is in breach of the provisions of the Food Adulteration Act and Rules. It is difficult for us to overlook it and interfere with the investigation, which they have invoked by filing the present complaint against the petitioners/directors and the Company.(24) IT cannot be said that there is any abuse of process of law as sought to be contended. On the contrary, this will be in the interest of public at large that there should be a proper investigation of such issues as early as possible. The learned counsel for the petitioners has also relied on the supreme Court judgment in Ajay Mitra v. State of M. P. , AIR 2003 SC 1069 to support his case of quashing the FIR in reference to section 420 of the IPC only. Prime facie, it is difficult to accept the contention that there was no mens rea, firstly, because as the petitioners have submitted their application for grant of approval of the labels with specific averments of no magnesium carbonate and secondly, by advertising the product with positive averment that it does not contain any magnesium carbonate. The Department found all these averments wrong and incorrect. It is difficult to accept the contention that the FIR as filed does not allege or disclose the essential requirement of penal provisions and/or prima facie material to form the foundation or constitute the starting point of a lawful investigation. The facts in Ajay Mitras case (supra), therefore, are totally distinct and distinguishable and, hence, it is not applicable to the present case. (25) THE uncontroverted allegations made in the FIR and/or complaint and the evidence collected in support of the same cannot be overlooked, at this stage. In view of the allegations made in the complaint, the matter requires investigation. It is difficult to quash the proceedings as prayed. In view of this, the judgment of the Apex Court in m/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate, AIR 1998 SC 128 whereby in the facts and circumstances of the case, the court had quashed and set aside the complaint, does not help the petitioners. There is no dispute that the High court can exercise the power of judicial review in criminal matters under Article 226 of the Constitution of India but it is not as a matter of course. In the present case, no case is made out for quashing the FIR in respect of section 420 of the IPC. Moreover, the restricted prayer itself means that further investigation can proceed in respect of other offences under the Food Adulteration Act, based on the same averments. Therefore, this is not a fit case where this court should interfere with the investigation by invoking "doctrine of judicial review". (26) THE learned counsel further contended that by invoking the provisions of the IPC like sections 272, 273 and 420, it amounts to exceeding their power and jurisdiction as the Food Adulteration Act and the said Rules made thereunder nowhere give them such authority to launch prosecution under the IPC. The learned counsel is, however, unable to submit any supporting foundation to this proposition. There is no bar under the Food Adulteration Act and the said Rules made thereunder that the concerned authorities under the Act have no jurisdiction and/or authority to prosecute the guilty person for the offences under the ipc based on the same averments along with the provisions of the special statutes. All such authorities have jurisdiction to launch a prosecution by invoking various provisions of the IPC, along with the special statutes.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: the same averments are sufficient to consider the offences under the food Adulteration Act then, it is difficult to quash the averments as this stage pertaining to section 420 of the IPC. Prima facie, it appears to us that the positive assertion in the newspapers dated 18/8/2005 by the said Company and similar contentions and averments in plication which was filed on 28/2/2005 for grant of licence by the said company prima facie cannot be said to be without the knowledge and/or without the permission of the directors or such other officers of the Company. (22) THE public prosecutor relied an section 17 (4) of the Food Adulteration Act and contended that, at this stage, it cannot be said that there was no connivance and /or no knowledge to the petitioners/directors about the permission, procedure and advertisements. He rightly contended that it is difficult to believe without due investigation, that the directors were unaware of those facts. We have also noted that there are no such averments made in the petition in reference to this. The submission was that there are no specific and positive allegations against the directors that they were in charge of and/or responsible for the conduct of the business of the company. This according to us, also needs detailed investigation and trial. Therefore, the Supreme Courts judgment in R. Banerjee. V. H. D Dubey, AIR 1992 SC 1168 , can be of no help to the petitioners at this stage. (23) THE contention of mala fide action of respondent 2 in lodging the complaint against the petitioners and the Company by invoking section 420 of the IPC is also difficult to accept. There are no positive averments made of mala fide action against the department and/or any officers. On the contrary, at this stage, the complaint lodged is based on the chemical analysers report. The positive averments made by the Company that the panmasala "rajnigandha" does not contain magnesium carbonate appears to be incorrect. There is some substance in the complaint as lodged by the complainant -Inspector of Food Department. Assuming for a moment that, at the relevant time, the permission was granted to sell such product in Maharashtra, that itself cannot be the reason to overlook the complaint that after collecting the positive report, the Department found that the panmasala contains magnesium carbonate, which according to them, was never permitted to be added in the panmasala. The existence of the said magnesium carbonate itself is in breach of the provisions of the Food Adulteration Act and Rules. It is difficult for us to overlook it and interfere with the investigation, which they have invoked by filing the present complaint against the petitioners/directors and the Company.(24) IT cannot be said that there is any abuse of process of law as sought to be contended. On the contrary, this will be in the interest of public at large that there should be a proper investigation of such issues as early as possible. The learned counsel for the petitioners has also relied on the supreme Court judgment in Ajay Mitra v. State of M. P. , AIR 2003 SC 1069 to support his case of quashing the FIR in reference to section 420 of the IPC only. Prime facie, it is difficult to accept the contention that there was no mens rea, firstly, because as the petitioners have submitted their application for grant of approval of the labels with specific averments of no magnesium carbonate and secondly, by advertising the product with positive averment that it does not contain any magnesium carbonate. The Department found all these averments wrong and incorrect. It is difficult to accept the contention that the FIR as filed does not allege or disclose the essential requirement of penal provisions and/or prima facie material to form the foundation or constitute the starting point of a lawful investigation. The facts in Ajay Mitras case (supra), therefore, are totally distinct and distinguishable and, hence, it is not applicable to the present case. (25) THE uncontroverted allegations made in the FIR and/or complaint and the evidence collected in support of the same cannot be overlooked, at this stage. In view of the allegations made in the complaint, the matter requires investigation. It is difficult to quash the proceedings as prayed. In view of this, the judgment of the Apex Court in m/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate, AIR 1998 SC 128 whereby in the facts and circumstances of the case, the court had quashed and set aside the complaint, does not help the petitioners. There is no dispute that the High court can exercise the power of judicial review in criminal matters under Article 226 of the Constitution of India but it is not as a matter of course. In the present case, no case is made out for quashing the FIR in respect of section 420 of the IPC. Moreover, the restricted prayer itself means that further investigation can proceed in respect of other offences under the Food Adulteration Act, based on the same averments. Therefore, this is not a fit case where this court should interfere with the investigation by invoking "doctrine of judicial review". (26) THE learned counsel further contended that by invoking the provisions of the IPC like sections 272, 273 and 420, it amounts to exceeding their power and jurisdiction as the Food Adulteration Act and the said Rules made thereunder nowhere give them such authority to launch prosecution under the IPC. The learned counsel is, however, unable to submit any supporting foundation to this proposition. There is no bar under the Food Adulteration Act and the said Rules made thereunder that the concerned authorities under the Act have no jurisdiction and/or authority to prosecute the guilty person for the offences under the ipc based on the same averments along with the provisions of the special statutes. All such authorities have jurisdiction to launch a prosecution by invoking various provisions of the IPC, along with the special statutes. ### Response: 0

The Commissioner of Income Tax, Chennai Vs. Mohammed Meeran Shahul Hameed

263, more particularly sub-section (2) of Section 263 of the Act. It is submitted that the High Court has erred in holding that the revision order dated 26.03.2012 passed by the Commissioner under Section 263 of the Act was barred by period of limitation provided under Section 263 (2) of the Act. 3.1 It is submitted that the High Court has materially erred in holding that the order passed under Section 263 is barred by limitation provided under Section 263 (2) on the ground that order under Section 263 was served on the assessee – respondent herein on 29.11.2012 which was after the expiry of two years from the end of the financial year in which the order was sought to be revised. 3.2 It is vehemently submitted by learned ASG that sub-section (2) of Section 263 of the Act provides that no order shall be made under sub-section (1) of Section 263 after the expiry of two years from the end of the concerned financial year and the relevant date in the present case to pass the order under Section 263 would be 31.03.2012. It is submitted that in the present case the order in fact was passed on 26.03.2012 and in fact dispatched on 28.03.2012. It is submitted that therefore the order passed by the learned Commissioner under Section 263 was within the period of limitation prescribed under Section 263 (2) of the Act. 3.3 Shri R. Sivaraman, learned Advocate appearing on behalf of the respondent – assessee relying upon para 15 of the counter affidavit has submitted that as such the order passed by the learned Commissioner under Section 263 of the Act has been acted upon before it was set aside by learned ITAT and thereafter a fresh assessment order has been passed by the Assessing Officer. It is submitted that therefore as such the issue involved in the present appeal has become academic. 4. We have heard the learned counsel appearing on behalf of the respective parties at length. Though it is the case on behalf of the respondent – assessee that by now the issue involved in the present appeal has become academic, considering the fact that the question of law raised in the present appeal is the pure question of law and therefore we are inclined to decide the said question of law. 4.1 The short question of law which is posed for consideration before this court is, whether in the facts and circumstances of the case, the High Court and the learned ITAT are right in holding that the order passed by the learned Commissioner passed under Section 263 was barred by period of limitation provided under Section 263 (2) of the Act? Whether the High Court is right in holding that the relevant date for the purpose of considering the period of limitation under Section 263(2) of the IT Act would be the date on which the order passed under Section 263 by the learned Commissioner is received by the assessee? 4.2 While deciding the aforesaid issues and question of law, Section 263 (2) of the Income Tax Act, which is relevant for our consideration is required to be referred to, which reads as under:- (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. 4.3 On a fair reading of sub-section (2) of Section 263 it can be seen that as mandated by sub-section (2) of Section 263 no order under Section 263 of the Act shall be made after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. Therefore the word used is made and not the order received by the assessee. Even the word dispatch is not mentioned in Section 263 (2). Therefore, once it is established that the order under Section 263 was made/passed within the period of two years from the end of the financial year in which the order sought to be revised was passed, such an order cannot be said to be beyond the period of limitation prescribed under Section 263 (2) of the Act. Receipt of the order passed under Section 263 by the assessee has no relevance for the purpose of counting the period of limitation provided under Section 263 of the Income Tax Act. In the present case, the order was made/passed by the learned Commissioner on 26.03.2012 and according to the department it was dispatched on 28.03.2012. The relevant last date for the purpose of passing the order under Section 263 considering the fact that the assessment was for the financial year 2008-09 would be 31.03.2012 and the order might have been received as per the case of the assessee – respondent herein on 29.11.2012. However as observed hereinabove, the date on which the order under Section 263 has been received by the assessee is not relevant for the purpose of calculating/considering the period of limitation provided under Section 263 (2) of the Act. Therefore the High Court as such has misconstrued and has misinterpreted the provision of sub-section (2) of Section 263 of the Act. If the interpretation made by the High Court and the learned ITAT is accepted in that case it will be violating the provision of Section 263 (2) of the Act and to add something which is not there in the section. As observed hereinabove, the word used is made and not the receipt of the order. As per the cardinal principle of law the provision of the statue/act is to be read as it is and nothing is to be added or taken away from the provision of the statue. Therefore, the High Court has erred in holding that the order under Section 263 of the Act passed by the learned Commissioner was barred by period of limitation, as provided under sub-section (2) of Section 263 of the Act.

1[ds]4. We have heard the learned counsel appearing on behalf of the respective parties at length. Though it is the case on behalf of the respondent – assessee that by now the issue involved in the present appeal has become academic, considering the fact that the question of law raised in the present appeal is the pure question of law and therefore we are inclined to decide the said question of law.4.3 On a fair reading of sub-section (2) of Section 263 it can be seen that as mandated by sub-section (2) of Section 263 no order under Section 263 of the Act shall be made after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. Therefore the word used is made and not the order received by the assessee. Even the word dispatch is not mentioned in Section 263 (2). Therefore, once it is established that the order under Section 263 was made/passed within the period of two years from the end of the financial year in which the order sought to be revised was passed, such an order cannot be said to be beyond the period of limitation prescribed under Section 263 (2) of the Act. Receipt of the order passed under Section 263 by the assessee has no relevance for the purpose of counting the period of limitation provided under Section 263 of the Income Tax Act. In the present case, the order was made/passed by the learned Commissioner on 26.03.2012 and according to the department it was dispatched on 28.03.2012. The relevant last date for the purpose of passing the order under Section 263 considering the fact that the assessment was for the financial year 2008-09 would be 31.03.2012 and the order might have been received as per the case of the assessee – respondent herein on 29.11.2012. However as observed hereinabove, the date on which the order under Section 263 has been received by the assessee is not relevant for the purpose of calculating/considering the period of limitation provided under Section 263 (2) of the Act. Therefore the High Court as such has misconstrued and has misinterpreted the provision of sub-section (2) of Section 263 of the Act. If the interpretation made by the High Court and the learned ITAT is accepted in that case it will be violating the provision of Section 263 (2) of the Act and to add something which is not there in the section. As observed hereinabove, the word used is made and not the receipt of the order. As per the cardinal principle of law the provision of the statue/act is to be read as it is and nothing is to be added or taken away from the provision of the statue. Therefore, the High Court has erred in holding that the order under Section 263 of the Act passed by the learned Commissioner was barred by period of limitation, as provided under sub-section (2) of Section 263 of the Act.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: 263, more particularly sub-section (2) of Section 263 of the Act. It is submitted that the High Court has erred in holding that the revision order dated 26.03.2012 passed by the Commissioner under Section 263 of the Act was barred by period of limitation provided under Section 263 (2) of the Act. 3.1 It is submitted that the High Court has materially erred in holding that the order passed under Section 263 is barred by limitation provided under Section 263 (2) on the ground that order under Section 263 was served on the assessee – respondent herein on 29.11.2012 which was after the expiry of two years from the end of the financial year in which the order was sought to be revised. 3.2 It is vehemently submitted by learned ASG that sub-section (2) of Section 263 of the Act provides that no order shall be made under sub-section (1) of Section 263 after the expiry of two years from the end of the concerned financial year and the relevant date in the present case to pass the order under Section 263 would be 31.03.2012. It is submitted that in the present case the order in fact was passed on 26.03.2012 and in fact dispatched on 28.03.2012. It is submitted that therefore the order passed by the learned Commissioner under Section 263 was within the period of limitation prescribed under Section 263 (2) of the Act. 3.3 Shri R. Sivaraman, learned Advocate appearing on behalf of the respondent – assessee relying upon para 15 of the counter affidavit has submitted that as such the order passed by the learned Commissioner under Section 263 of the Act has been acted upon before it was set aside by learned ITAT and thereafter a fresh assessment order has been passed by the Assessing Officer. It is submitted that therefore as such the issue involved in the present appeal has become academic. 4. We have heard the learned counsel appearing on behalf of the respective parties at length. Though it is the case on behalf of the respondent – assessee that by now the issue involved in the present appeal has become academic, considering the fact that the question of law raised in the present appeal is the pure question of law and therefore we are inclined to decide the said question of law. 4.1 The short question of law which is posed for consideration before this court is, whether in the facts and circumstances of the case, the High Court and the learned ITAT are right in holding that the order passed by the learned Commissioner passed under Section 263 was barred by period of limitation provided under Section 263 (2) of the Act? Whether the High Court is right in holding that the relevant date for the purpose of considering the period of limitation under Section 263(2) of the IT Act would be the date on which the order passed under Section 263 by the learned Commissioner is received by the assessee? 4.2 While deciding the aforesaid issues and question of law, Section 263 (2) of the Income Tax Act, which is relevant for our consideration is required to be referred to, which reads as under:- (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. 4.3 On a fair reading of sub-section (2) of Section 263 it can be seen that as mandated by sub-section (2) of Section 263 no order under Section 263 of the Act shall be made after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. Therefore the word used is made and not the order received by the assessee. Even the word dispatch is not mentioned in Section 263 (2). Therefore, once it is established that the order under Section 263 was made/passed within the period of two years from the end of the financial year in which the order sought to be revised was passed, such an order cannot be said to be beyond the period of limitation prescribed under Section 263 (2) of the Act. Receipt of the order passed under Section 263 by the assessee has no relevance for the purpose of counting the period of limitation provided under Section 263 of the Income Tax Act. In the present case, the order was made/passed by the learned Commissioner on 26.03.2012 and according to the department it was dispatched on 28.03.2012. The relevant last date for the purpose of passing the order under Section 263 considering the fact that the assessment was for the financial year 2008-09 would be 31.03.2012 and the order might have been received as per the case of the assessee – respondent herein on 29.11.2012. However as observed hereinabove, the date on which the order under Section 263 has been received by the assessee is not relevant for the purpose of calculating/considering the period of limitation provided under Section 263 (2) of the Act. Therefore the High Court as such has misconstrued and has misinterpreted the provision of sub-section (2) of Section 263 of the Act. If the interpretation made by the High Court and the learned ITAT is accepted in that case it will be violating the provision of Section 263 (2) of the Act and to add something which is not there in the section. As observed hereinabove, the word used is made and not the receipt of the order. As per the cardinal principle of law the provision of the statue/act is to be read as it is and nothing is to be added or taken away from the provision of the statue. Therefore, the High Court has erred in holding that the order under Section 263 of the Act passed by the learned Commissioner was barred by period of limitation, as provided under sub-section (2) of Section 263 of the Act. ### Response: 1

Commissioner of Cgst & Central Excise Vs. Shriram Transport Finance Company Limited

financial leasing services in Section 65(12)(a)(i). 12.3. While relying on the above decision and the decisions of the Apex Court in the case of Commissioner of Central Excise & Service Tax, New Delhi Vs. M/s. Lease Plan India Ltd. (final order No.50113-20116/2018 dated 10th January 2018 in Appeal No. ST/51947-51950/2014) and Commissioner of Income Tax Vs. Sirpur Paper Mills (1999) 237 ITR 4 , and applying the ratio to the facts of the present case CESTAT has correctly concluded in paragraph Nos.13 and 15 to 18 of the impugned order which is extracted as under :- 13. It is now well settled in law that hire purchase is but a loan: that the hirer obtains goods from a seller and the banking and financial institution finances the purchase of goods with the title firmly resting with the hirer and the institution vested with right to acquire possession of the goods, through judicial intervention, in the event of nonpayment of contracted amount. This differs substantially from operating lease. Therefore, the taxability of the service is not in question. The decisions of the Tribunal that have held otherwise did not have the benefit of wisdom of the judgment of the Honble Supreme Court in re Association of Leasing and Financial Service Company and are, therefore, per incuriam. 15. The issue is whether that statutory exclusion can be denied. We hold that no statutory exclusion can be denied. However, we take note that with the inclusion of financial and equipment leasing in the definition of the activity in relation to which taxability arises, it was the decision of the Honble Supreme Court in re Association of Leasing and Financial Services Companies that settled the transactions, such as that of the appellant, within the scope of coverage as loans instead. 16. The consideration for the taxable service rendered by appellant is received as equated monthly installment which is then assigned by appellant as principal and interest. It has been held by the Honble Supreme Court that there are three components that make up consideration for hire purchase – principal, processing / management charges and interest – with taxability devolving on the letter two. Decisions of the Tribunal have excluded the scope of collection from the last. It is, therefore, clear that only processing / management fees can be subjected to tax. 17. The claim of appellant is that such charges as are subjected to tax have already suffered the burden; the ostensible base for this claim is the compliance on the processing fee collected upfront. Interest is an allencompassing expression used in the banking industry to describe the recompense for lending money besides the recovery of principal along with interest or at some agreed upon point in time. This interest must, to meet the commercial objective of profit, pay for the cost of funds deposited with the financial institution and other overheads. To the extent that the bank or institution is solely in the business of lending, such expenses are a charge on the income and interest earned is only that. 18. However, while conferring the mantle of lending on hire purchase and leases, other loan operating leases, the Honble Supreme Court in re Association of Leasing and Financial Services added another factor of income, viz., processing or management fee, to interest and principal and held it liable to tax. The judgment also distinguished these loans from normal bank loans by reference to banking companies undertaking such leases or hire-purchase through subsidiaries and by the categorization of non-banking financial companies, in accordance with instructions of Reserve Bank of India, as leasing or hire-purchase entities on the basis of prescribed parameters. There is, therefore, a distinction between the interest earned by a bank and the disaggregation of equated monthly installments earned by a financial institution engaged in financial leasing and hirepurchase. 12.4. Explanation 1 to section 67 of the Finance Act prior to 18.04.2006 contained a specific exclusion vide sub clause (viii) excluding interest on loans. Though section 67 was substituted by Finance Act 2006 w.e.f. 18.04.2006, the corresponding Service Tax Determination of Value Rules 2006 vide rule 6(2)(iv) again excluded interest on loan from the purview of valuation of taxable services. However, the Board vide circular No.80/10/2004-ST dated 17.09.2004 clarified that interest on loan would stand excluded. Respondent has been discharging service tax regularly on processing charges and also filing returns regularly. Respondent gives loan to its customers / borrowers for the purpose of hire purchase agreement for purchasing the vehicles and this lending is in the nature of a loan. Since it is in the nature of loan consequently interest on loans stands excluded from the value of taxable services. Board circular dated 09.07.2001 referred to by the appellant in fact supports the case of the respondent. In view of the settled law and in exercise of the legislative and rule making power once parliament has excluded interest on loans from the purview of taxable service, it is not open to the authority to hold that the exemption notifications would not apply. Further in view of the decision of the Apex Court in the case of Association of Leasing and Financial Service Companies and Bajaj Auto Finance Ltd. (supra) re-affirming the legal position that the respondent is not liable to pay service tax in respect of the interest on loan advanced as the same stands excluded from the purview of the taxable services, we find no reason to interfere with the impugned order. 13. In view of the above discussions, we hold that CESTAT was correct in holding that for the period prior to 01.03.2006 interest on loan is not taxable in the absence of mechanism for bifurcation of service. Therefore, recovery of service tax on interest for the period to 01.03.2006 is without authority of law as there is a presumption of attributing the entire amount to interest in the absence of any mechanism to isolate the processing or management cost even if that were collected by way of equated monthly installments

0[ds]8.1. At the outset we need to clarify that the expression banking and other financial services which finds place in Section 65(12)(a) (i) of the Finance Act, 1994 (as amended). Respondent assessee is a non-banking financial company (briefly referred to as NBFC). RBI was constituted under the Reserve Bank of India Act, 1934 (1934 Act, for short), inter alia, to regulate the countrys monetary system. It is appointed as a regulator to secure the monetary stability and to operate the credit system of the country. Chapter III-B of the 1934 Act deals with provisions relating to NBFCs and financial institutions.8.2. Under Section 45-I(a), the business of a NBFC is defined to mean carrying on the business of a financial institution referred to in clause (c) of Section 45-I and includes business of a NBFC. The expression financial institution means any non-banking institution which carries on as its business an activity inter alia of financing, whether by way of making loans or advances or otherwise. Thus, Section 45-I(c) treats financing as an activity. Under Section 45-I(f), an NBFC is defined to mean a financial institution which is a company; a non-banking institution which is a company and which as a matter of business receives deposits or which lends in any manner. These activities are regulated by RBI under the 1934 Act. Thus, all NBFCs which carry on these activities as part of their business come within the purview of being financial institutions. Under Section 45-IA, no NBFC shall carry on the business of a non-banking financial institution without obtaining a certificate of registration from RBI. Under Section 45-JA the RBI is authorized in public interest to issue directions to NBFCs relating to income recognition, accounting standards, deployment of funds etc. and the NBFCs shall be bound to follow the policy so determined or directions so issued.8.3. Accordingly, under notification dated 02.01.1998 bearing No. 114, the deposit taking activities of NBFCs was sought to be regulated. Under the said notification, there is classification of NBFCs. Vide Clause 5 it has been clarified that several instances have come to the notice of RBI where NBFCs conducting their business as loan companies claim themselves to be equipment leasing/hire-purchase finance companies with the intention to avail of higher borrowing limits and thus an NBFC having not less than 60% of its assets and deriving not less than 60% of its income from equipment leasing and hire-purchase activities taken together would only be eligible for being classified as equipment leasing company/hire-purchase finance company. The said notification has been referred to only to demonstrate that the classification of loan or investment companies is not only asset and income based but also that certain NBFCs undertake activities of equipment leasing and hire-purchase financing in addition to giving of loans. Under clause (a) of the said Direction, RBI has categorized NBFCs on the basis of the businesses in which they are engaged including giving of loans, hire-purchase finance and equipment leasing activities [See Taxmanns Statutory Guide to NBFCs page 224].8.4. The Institute of Chartered Accountants of India (ICAI) has also issued AS-19 Accounting for Leases. It is mandatory in respect of financial leases executed on or after April, 2001. It inter alia provides for capitalization of finance lease assets in the books of the lessee instead of lessor. The lessor [NBFC] is required to show the assets leased only as receivables in its balance sheet instead of as fixed assets. The implication of the above AS-19 for the NBFC prescribed by RBI vide amendments to the 1998 directions is that all financial leases would now be accounted like hire-purchase transactions. [See Manual of NBFCs 9th Edition; Page 268]. Similarly, under the RBI guidelines dealing with accounting for investments, NBFCs having not less than 60% of the total assets in lease and hire purchase and deriving not less than 60% of their total income from such activities can be classified as hire purchase/ equipment leasing companies.8.5. All these circulars and guidelines issued by RBI are referred to only to show that equipment leasing and hire- purchase are activities undertaken as business by NBFCs which are regulated as para banking activities by the RBI under the provisions of the 1934 Act. They are regulated not only to protect depositors but also the customers [See Section 45-I(c) (iii) (i)]. The above activities are financing activities encompassed under Section 45- I(c)(i) which in turn constitutes rendition of services to its customer(s) which is the taxable event under Section 65 (105) (zm) of the Finance Act, 1994 (as amended). Apart from NBFCs, even banks through their subsidiaries with the approval of RBI can undertake equipment leasing, hire-purchase business and financial services. These are not direct lending activities. However, RBI treats them as services or facilities. The financial facilities are extended by way of equipment leasing or hirepurchase finance subject to approval of RBI [See Taxmanns RBI Instructions for Banking Operations 7th Edition; page 224].8.6. The significance of the above circulars and guidelines is to show that the activities undertaken by NBFCs of equipment leasing and hire-purchase finance are facilities extended by NBFCs to their customers; that, they are financial services rendered by NBFCs to their customers and that they fall within the meaning of the words banking and other financial services which is sought to be brought within the service tax net under Section 66 of the Finance Act, 1994.8.7. One more aspect needs to be highlighted. With the application of AS-19, the leased assets are required to be shown as receivables and not as fixed assets which further shows that equipment leasing and hire-purchase finance are financial facilities which thereby funds projects presented by the customers to banks and other financial institutions including NBFCs. Thus, the impugned tax is levied on these services as taxable services. It is not a tax on material or sale. The taxable event is rendition of service. Hence, the impugned tax is different and distinct from tax on sale of goods under Entry 54 List II of the VIIth Schedule to the Constitution.9. In the backdrop of the above statutory provisions, we find that respondent is engaged in the business of lease and equipment finalizing which is squarely covered by the definition of banking and other financial service in Section 65(12) of the Finance Act. It is well settled position that hire purchase is a loan by which the hirer obtains goods from a seller and the banking and financial institution finances the purchase of goods with the title firmly rest with the hirer and the financing institution being vested with the right to acquire possession of the said goods in the event of default in payment of contracted amount / equated monthly installments. A contract for hire purchase is substantially different from that of an operating lease. Therefore, taxability of the service is not in question. Every consideration for the taxable service is leviable in accordance with the charging section unless excluded by the charging section which is Section 66 of the Finance Act read with Section 65(105)(zm) and Section 65(12) thereof. In computing the value of taxable service mandated by Section 67 of the Finance Act, the law provides exclusion either by explanation or by rules. It is that exclusion that has been claimed by the respondent as its statutory right which is disputed by the Revenue. In the present case consideration for the taxable service rendered by the respondent is received as EMI which is thereafter assigned as principal and interest. The Apex Court has held that there are three components that make up consideration for hire purchase, namely, principal, processing / management charges and interest with taxability devolving on the later two.10. Respondent is in the business of hire purchase and financing lease of commercial vehicles; its main business concerns pre-owned commercial vehicles; the service of financial leasing or hire purchase is part of Banking and other Financial Services as defined under Section 65(12) of the Finance Act and taxable from 16.07.2001.11. Order-in-Original has held that the respondent is the owner of the motor vehicles though registration of a customers name as owner under the Motor Vehicles Act, 1988 is stated in the records of the Transport Department and the registration of the name of respondent is shown as Hypothecatee in the R.C. Book. Registration of a persons name as owner in the records of the Transport Department and the R.C. Book should be confined only for the purpose of discharging the liabilities, obligations and duties imposed under the Motor Vehicles Act and the Rules framed thereunder and for no other purpose.12. However the decision of the Apex Court in the case of Association of Leasing and Financial Service Companies Vs. Union of India2001 (20) STR 417 (SC) is relevant. In this case the Apex Court has ousted the challenge to the vires of the levy of service tax on financial lease and hire purchase activity such as the respondent engages in. The decision in the above case makes it unambiguously clear that barring operating lease alone which is considered to be entirely a sale, consideration for all other lease and hire purchase transactions are squarely liable to tax except on principal amount recovered.12.1. The relevant findings in paragraph Nos.20 and 21 in the judgment in Association of Leasing and Financial Service Companies (supra) are extracted as under :-20. …………….. A hire-purchase agreement partakes of the nature of a contract of bailment with an element of sale added to it. However, if the intention of the financing party in obtaining the hire-purchase and the allied agreements is to secure the return of the loan advanced to its customer the transaction would be merely a financing transaction. [See page 75]. The point which needs to be restated is that the funding activity undertaken by the financing party which could be in the form of loan or equipment leasing or hire- purchase financing, would be exigible to service tax if such activity falls in the category of banking and other financial services under Section 65(12) of the Finance Act, 1994. The financial transaction was earlier out of the tax net. In the process there are two different and distinct transactions, viz., the financing transaction and the equipment leasing/hire-purchase transaction. The former is exigible to service tax under Section 66 of Finance Act, 1994 (as amended) whereas the latter would be exigible to local sales tax/VAT. Funding or financing the transaction of equipment leasing and hirepurchase covers two different and distinct transactions. The activity of funding or financing by NBFC who is in the business of financing by giving loans, or equipment leasing or hire-purchase finance falls in the category of financial services rendered by NBFCs to their customers. It is an activity in relation to the hire-purchase or lease transaction. In this connection, as and by way of illustration we need to give an illustration which brings out the distinction between a finance lease and operating lease. A finance lease transfers all the risks and rewards incidental to ownership, even though the title may or may not be eventually transferred to the lessee. In the case of finance lease the lessee could use the asset for its entire economic life and thereby acquires risks and rewards incidental to the ownership of such assets. In substance, finance lease is a financial loan from the lessor to the lessee. On the other hand an operating lease is a lease other than the finance lease. Accounting of a finance lease is under AS-19, which as stated above, is mandatory for NBFCs. It is a completely different regime. According to Chitty on Contract, a hirepurchase agreement is a vehicle of instalment credit. It is an agreement under which an owner lets chattels out on hire and further agrees that the hirer may either return the goods and terminate the hiring or elect to purchase the goods when the payments for hire have reached a sum equal to the amount of the purchase price stated in the agreement or upon payment of a stated sum. The essence of the transaction is bailment of goods by the owner to the hirer and the agreement by which the hirer has the option to return the goods at some time or the other [See para 36.242, 36.243]. Further, in the bailment termed hire the bailee receives both possession of the chattel and the right to use it in return for remuneration to be paid to the bailor [See para 32.045]. Further, under the head equipment leasing, it is explained that it is a form of long-term financing. In a finance lease, it is the lessee who selects the equipment to be supplied by the dealer or the manufacturer, but the lessor [finance company] provides the funds, acquires the title to the equipment and allows the lessee to use it for its expected life. During the period of the lease the risk and rewards of ownership are transferred to the lessee who bears the risks of loss, destruction and depreciation or malfunctioning. The bailment which underlies finance leasing is only a device to provide the finance company with a security interest [its reversionary right]. If the lease is terminated prematurely, the lessor is entitled to recoup its capital investment [less the realizable value of the equipment at the time] and its expected finance charges [less an allowance to reflect the return of the capital] [para 32.057]. In the case of hirepurchase agreement the periodical payments made by the hirer is made up of :(a) consideration for hire(b) payment on account of purchase21. To sum up, NBFCs essentially are loan companies. They basically conduct their business as loan companies. They could be in addition thereto in the business of equipment leasing, hire purchase finance and investment. Because NBFCs are basically loan companies, they are required to show the assets leased as receivables in their balance sheets. That, the activities of hire- purchase finance/ equipment leasing undertaken by NBFCs come under the category of para banking. That, in substance a finance lease, unlike an operating lease, is a financial loan (assistance/facility) by the lessor to the lessee. That, in the bailment termed hire the bailee receives both possession of the chattel and the right to use it in return for remuneration. On the other hand, equipment leasing is long term financing which helps the borrower to raise funds without outright payment in the first instance. Here the interest element cannot be compared to consideration for lease/hire which is in the nature of remuneration (consideration) for hire. Thus, financing as an activity or business of NBFCs is different and distinct from operating lease/hire-purchase agreements in the classical sense. The elements of the finance lease or loan transaction are quite different from those in equipment leasing/hire-purchase agreements between owner (lessor) and the hirer (lessee). There are two independent transactions and what the impugned tax seeks to do is to tax the financial facilities extended to its customers by the NBFCs under Section 66 of the 1994 Act (as amended) as they come under banking and other financial services under Section 65(12) of the said Act. The finance lease and the hire-purchase finance thus squarely come under the expression financial leasing services in Section 65(12) of the Finance Act, 1994 (as amended).12.2. The Apex Court has further concluded the question of law raised by the appellant in paragraph Nos.37 and 39 of the said judgment which are extracted as under :-37. Applying the above decisions to the present case, on examination of the impugned legislation in its entirety, we are of the view that the impugned levy relates to or is with respect to the particular topic of banking and other financial services which includes within it one of the several enumerated services, viz., financial leasing services. These include long time financing by banks and other financial institutions (including NBFCs). These are services rendered to their customers which comes within the meaning of the expression taxable services as defined in Section 65(105) (zm). The taxable event under the impugned law is the rendition of service. The impugned tax is not on material or sale. It is on activity/ service rendered by the service provider to its customer. Equipment Leasing/ Hire-Purchase finance are long term financing activities undertaken as their business by NBFCs. As far as the taxable value in case of financial leasing including equipment leasing and hirepurchase is concerned, the amount received as principal is not the consideration for services rendered. Such amount is credited to the capital account of the lessor/ hire-purchase service provider. It is the interest/ finance charge which is treated as income or revenue and which is credited to the revenue account. Such interest or finance charges together with the lease management fee/ processing fee/ documentation charges are treated as considerations for the services rendered and accordingly they constitute the value of taxable services on which service tax is made payable. In fact, the Government has given exemption from payment of service tax to financial leasing services including equipment leasing and hire-purchase on that portion of taxable value comprising of 90% of the amount representing as interest, i.e., the difference between the instalment paid towards repayment of the lease amount and the principal amount in such instalments paid (See Notification No. 4/2006 - Service Tax dated 1.3.2006). In other words, service tax is leviable only on 10% of the interest portion. (See also Circular F.No. B.11/1/2001-TRU dated 9.7.2001 in which it has been clarified that service tax, in the case of financial leasing including equipment leasing and hire-purchase, will be leviable only on the lease management fees/ processing fees/ documentation charges recovered at the time of entering into the agreement and on the finance/ interest charges recovered in equated monthly instalments and not on the principal amount). Merely because for valuation purposes inter alia finance/ interest charges are taken into account and merely because service tax is imposed on financial services with reference to hiring/ interest charges, the impugned tax does not cease to be service tax and nor does it become tax on hire- purchase/ leasing transactions under Article 366(29A) read with Entry 54, List II. Thus, while State Legislature is competent to impose tax on sale by legislation relatable to Entry 54 of List II of Seventh Schedule, tax on the aspect of the services, vendor not being relatable to any entry in the State List, would be within the legislative competence of the Parliament under Article 248 read with Entry 97 of List I of Seventh Schedule to the Constitution.39. …………. As stated above, what is challenged in this case is the service tax imposed by Section 66 of the Finance Act, 1994 (as amended) on the value of taxable services referred to in Section 65(105)(zm) read with Section 65(12) of the said Act, insofar as it relates to financial leasing services including equipment leasing and hire-purchase as beyond the legislative competence of Parliament by virtue of Article 366(29A) of the Constitution. In short, legislative competence of the Parliament to impose service tax on financial leasing services including equipment leasing and hire-purchase is the subject matter of challenge. Legislative competence was not the issue before this Court in the Bharat Sanchar Nigam Limiteds case. In that case, the principal question which arose for determination was in respect of the nature of the transaction by which mobile phone connections are enjoyed. The question was whether such connections constituted a sale or a service or both. If it was a sale then the States were legislatively competent to levy sales tax on the transaction under Entry 54, List II of the Seventh Schedule to the Constitution. If it was service then the Central Government alone had the legislative competence to levy service tax under Entry 97, List I and if the nature of the transaction partook of the character of both sale and service, then the moot question would be whether both the legislative authorities could levy their separate taxes together or only one of them. It was held that the subject transaction was a service and, thus, the Parliament had legislative competence to levy service tax under Entry 97, List I. In para 88 of the said judgment, this Court observed that No one denies the legislative competence of the States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. This does not however allow the State to entrench upon the Union List and tax services by including the cost of such service in the value of the goods. The principle of law in para 88 squarely applies to the present case. As stated above, we are concerned with financial leasing services which are sought to be taxed under Section 65(12)(a)(i). The taxable event is indicated in Section 65(105)(zm). As stated above, the impugned provision operates qua an activity of funding/ financing of equipment/ asset under equipment leasing under which a lessee is free to select, order, take delivery and maintain the asset. The lessor (NBFC) arranges the finances. It accepts the invoice from the vendor (supplier) and pays him. Thus, the lessor (NBFC) renders financial services to its customer(s) and what is taxed under the impugned provision is the income, by way of finance/ interest charges in addition to management fees/ documentation charges, which is earned by the financier (lessor). The taxable event is the service which is rendered by the finance company to its customer(s). The value of taxable service under Section 67 is income by way of interest/finance charges (measure of tax) which is not determinative of the character of the levy. Thus, Section 67 of the Finance Act, 1994 seeks to tax financial services rendered by the appellant(s) with reference to the income which the appellant(s) earns by way of interest/ finance charges. In the circumstances and for the reasons given hereinabove, the question of splitting up of transactions, as contended on behalf of the appellant(s), does not arise. As held hereinabove, equipment leasing and hirepurchase finance constitute long term financing activity. Such an activity was not the subject matter of the discussion in the Bharat Sanchar Nigam Limiteds case. The service tax in the present case is neither on the material nor on sale. It is on the activity of financing/funding of equipment/ asset within the meaning of the words financial leasing services in Section 65(12)(a)(i).12.4. Explanation 1 to section 67 of the Finance Act prior to 18.04.2006 contained a specific exclusion vide sub clause (viii) excluding interest on loans. Though section 67 was substituted by Finance Act 2006 w.e.f. 18.04.2006, the corresponding Service Tax Determination of Value Rules 2006 vide rule 6(2)(iv) again excluded interest on loan from the purview of valuation of taxable services. However, the Board vide circular No.80/10/2004-ST dated 17.09.2004 clarified that interest on loan would stand excluded. Respondent has been discharging service tax regularly on processing charges and also filing returns regularly. Respondent gives loan to its customers / borrowers for the purpose of hire purchase agreement for purchasing the vehicles and this lending is in the nature of a loan. Since it is in the nature of loan consequently interest on loans stands excluded from the value of taxable services. Board circular dated 09.07.2001 referred to by the appellant in fact supports the case of the respondent. In view of the settled law and in exercise of the legislative and rule making power once parliament has excluded interest on loans from the purview of taxable service, it is not open to the authority to hold that the exemption notifications would not apply. Further in view of the decision of the Apex Court in the case of Association of Leasing and Financial Service Companies and Bajaj Auto Finance Ltd. (supra) re-affirming the legal position that the respondent is not liable to pay service tax in respect of the interest on loan advanced as the same stands excluded from the purview of the taxable services, we find no reason to interfere with the impugned order.13. In view of the above discussions, we hold that CESTAT was correct in holding that for the period prior to 01.03.2006 interest on loan is not taxable in the absence of mechanism for bifurcation of service. Therefore, recovery of service tax on interest for the period to 01.03.2006 is without authority of law as there is a presumption of attributing the entire amount to interest in the absence of any mechanism to isolate the processing or management cost even if that were collected by way of equated monthly installments

### 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: financial leasing services in Section 65(12)(a)(i). 12.3. While relying on the above decision and the decisions of the Apex Court in the case of Commissioner of Central Excise & Service Tax, New Delhi Vs. M/s. Lease Plan India Ltd. (final order No.50113-20116/2018 dated 10th January 2018 in Appeal No. ST/51947-51950/2014) and Commissioner of Income Tax Vs. Sirpur Paper Mills (1999) 237 ITR 4 , and applying the ratio to the facts of the present case CESTAT has correctly concluded in paragraph Nos.13 and 15 to 18 of the impugned order which is extracted as under :- 13. It is now well settled in law that hire purchase is but a loan: that the hirer obtains goods from a seller and the banking and financial institution finances the purchase of goods with the title firmly resting with the hirer and the institution vested with right to acquire possession of the goods, through judicial intervention, in the event of nonpayment of contracted amount. This differs substantially from operating lease. Therefore, the taxability of the service is not in question. The decisions of the Tribunal that have held otherwise did not have the benefit of wisdom of the judgment of the Honble Supreme Court in re Association of Leasing and Financial Service Company and are, therefore, per incuriam. 15. The issue is whether that statutory exclusion can be denied. We hold that no statutory exclusion can be denied. However, we take note that with the inclusion of financial and equipment leasing in the definition of the activity in relation to which taxability arises, it was the decision of the Honble Supreme Court in re Association of Leasing and Financial Services Companies that settled the transactions, such as that of the appellant, within the scope of coverage as loans instead. 16. The consideration for the taxable service rendered by appellant is received as equated monthly installment which is then assigned by appellant as principal and interest. It has been held by the Honble Supreme Court that there are three components that make up consideration for hire purchase – principal, processing / management charges and interest – with taxability devolving on the letter two. Decisions of the Tribunal have excluded the scope of collection from the last. It is, therefore, clear that only processing / management fees can be subjected to tax. 17. The claim of appellant is that such charges as are subjected to tax have already suffered the burden; the ostensible base for this claim is the compliance on the processing fee collected upfront. Interest is an allencompassing expression used in the banking industry to describe the recompense for lending money besides the recovery of principal along with interest or at some agreed upon point in time. This interest must, to meet the commercial objective of profit, pay for the cost of funds deposited with the financial institution and other overheads. To the extent that the bank or institution is solely in the business of lending, such expenses are a charge on the income and interest earned is only that. 18. However, while conferring the mantle of lending on hire purchase and leases, other loan operating leases, the Honble Supreme Court in re Association of Leasing and Financial Services added another factor of income, viz., processing or management fee, to interest and principal and held it liable to tax. The judgment also distinguished these loans from normal bank loans by reference to banking companies undertaking such leases or hire-purchase through subsidiaries and by the categorization of non-banking financial companies, in accordance with instructions of Reserve Bank of India, as leasing or hire-purchase entities on the basis of prescribed parameters. There is, therefore, a distinction between the interest earned by a bank and the disaggregation of equated monthly installments earned by a financial institution engaged in financial leasing and hirepurchase. 12.4. Explanation 1 to section 67 of the Finance Act prior to 18.04.2006 contained a specific exclusion vide sub clause (viii) excluding interest on loans. Though section 67 was substituted by Finance Act 2006 w.e.f. 18.04.2006, the corresponding Service Tax Determination of Value Rules 2006 vide rule 6(2)(iv) again excluded interest on loan from the purview of valuation of taxable services. However, the Board vide circular No.80/10/2004-ST dated 17.09.2004 clarified that interest on loan would stand excluded. Respondent has been discharging service tax regularly on processing charges and also filing returns regularly. Respondent gives loan to its customers / borrowers for the purpose of hire purchase agreement for purchasing the vehicles and this lending is in the nature of a loan. Since it is in the nature of loan consequently interest on loans stands excluded from the value of taxable services. Board circular dated 09.07.2001 referred to by the appellant in fact supports the case of the respondent. In view of the settled law and in exercise of the legislative and rule making power once parliament has excluded interest on loans from the purview of taxable service, it is not open to the authority to hold that the exemption notifications would not apply. Further in view of the decision of the Apex Court in the case of Association of Leasing and Financial Service Companies and Bajaj Auto Finance Ltd. (supra) re-affirming the legal position that the respondent is not liable to pay service tax in respect of the interest on loan advanced as the same stands excluded from the purview of the taxable services, we find no reason to interfere with the impugned order. 13. In view of the above discussions, we hold that CESTAT was correct in holding that for the period prior to 01.03.2006 interest on loan is not taxable in the absence of mechanism for bifurcation of service. Therefore, recovery of service tax on interest for the period to 01.03.2006 is without authority of law as there is a presumption of attributing the entire amount to interest in the absence of any mechanism to isolate the processing or management cost even if that were collected by way of equated monthly installments ### Response: 0

ASHIM @ ASIM KUMAR HARANATH BHATTACHARYA @ ASIM HARINATH BHATTACHARYA @ ASEEM KUMAR BHATTACHARYA Vs. NATIONAL INVESTIGATION AGENCY

as Act 2008) mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the Act 2008 but the ground realities are totally different as in the instant case, after the charge-sheets came to be filed way back in 2012, the charges have been framed after 7 years of filing of the charge-sheet on 20th June, 2019. 11. We have to balance the nature of crime in reference to which the appellant is facing a trial. At the same time, the period of incarceration which has been suffered and the likely period within which the trial can be expected to be completed, as is informed to this Court that the statement of PW-1/de-facto complainant has still not been completed and there are 298 prosecution witnesses in the calendar of witness although the respondent has stated in its counter affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial. This fact certainly cannot be ignored that the appellant is in custody since 6th July, 2012 and has completed nine and half years of incarceration as an undertrial prisoner. 12. This Court has consistently observed in its numerous judgments that the liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail. 13. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice. 14. The three-Judge Bench of this Court in Union of India Vs. K.A. Najeeb 2021(3) SCC 713 had an occasion to consider the long incarceration and at the same time the effect of Section 43-D(5) of the UAP Act and observed as under:- 17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. 15. In the above circumstances, we are of the view that the appellant accused has made out a case for grant of post-arrest bail pending trial. 16. Before parting with the order, we would like to observe that under the scheme of the Act 2008, the power is vested with the Central Government in consultation with the Chief Justice of the High Court, for the trial of scheduled offences, designate one or more Courts of Session as Special Courts, by notification in the Official Gazette, with the place of jurisdiction of special Courts and its jurisdictional power has been defined under Sections 13 and 14 of the Act 2008. At the same time, it has been mandated under Section 19 of the Act 2008 that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall, if necessary, remain in abeyance. The power of State Government to designate one or more Courts as Special Courts for the trial of offences under any or all the enactments specified in the Schedule is provided under Section 22 of the Act, 2008. 17. It has been informed to this Court that only one such Special Court has been designated by the State of West Bengal to try such cases under the Act 2008. Before us, the order sheets have been placed for perusal of the instant case and it indicates that hearing is taking place only one day in a month and if this procedure is being followed in conducting the trial under Act 2008, it frustrates the very purpose with which the special Courts are designated. 18. It is clearly demonstrated from the instant case that after the charge-sheet came to be filed in the year 2012, charges have been framed in June 2019 and looking to the voluminous record and number of the prosecution witnesses which are to be examined, it may take its own time to conclude and indeed the undertrial prisoner cannot be detained for such a long period of incarceration noticed by us in the instant case. The correspondence which has taken place between the Central Government and the State of West Bengal from time to time is placed for our perusal but nothing elicits from the record.

1[ds]8. The charges against the accused appellant are undoubtedly serious but the charges will have to be balanced with certain other factors like the period of incarceration which the appellant has undergone and the likelihood period within which the trial can be expected to be finally concluded. That apart, the appellant is 74 years of age.10. That the requirement of law as being envisaged under Section 19 of the National Investigation Agency Act, 2008(hereinafter being referred to as Act 2008) mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the Act 2008 but the ground realities are totally different as in the instant case, after the charge-sheets came to be filed way back in 2012, the charges have been framed after 7 years of filing of the charge-sheet on 20th June, 2019.11. We have to balance the nature of crime in reference to which the appellant is facing a trial. At the same time, the period of incarceration which has been suffered and the likely period within which the trial can be expected to be completed, as is informed to this Court that the statement of PW-1/de-facto complainant has still not been completed and there are 298 prosecution witnesses in the calendar of witness although the respondent has stated in its counter affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial. This fact certainly cannot be ignored that the appellant is in custody since 6th July, 2012 and has completed nine and half years of incarceration as an undertrial prisoner.14. The three-Judge Bench of this Court in Union of India Vs. K.A. Najeeb 2021(3) SCC 713 had an occasion to consider the long incarceration and at the same time the effect of Section 43-D(5) of the UAP Act and observed as under:-17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.15. In the above circumstances, we are of the view that the appellant accused has made out a case for grant of post-arrest bail pending trial.16. Before parting with the order, we would like to observe that under the scheme of the Act 2008, the power is vested with the Central Government in consultation with the Chief Justice of the High Court, for the trial of scheduled offences, designate one or more Courts of Session as Special Courts, by notification in the Official Gazette, with the place of jurisdiction of special Courts and its jurisdictional power has been defined under Sections 13 and 14 of the Act 2008. At the same time, it has been mandated under Section 19 of the Act 2008 that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall, if necessary, remain in abeyance. The power of State Government to designate one or more Courts as Special Courts for the trial of offences under any or all the enactments specified in the Schedule is provided under Section 22 of the Act, 2008.17. It has been informed to this Court that only one such Special Court has been designated by the State of West Bengal to try such cases under the Act 2008. Before us, the order sheets have been placed for perusal of the instant case and it indicates that hearing is taking place only one day in a month and if this procedure is being followed in conducting the trial under Act 2008, it frustrates the very purpose with which the special Courts are designated.18. It is clearly demonstrated from the instant case that after the charge-sheet came to be filed in the year 2012, charges have been framed in June 2019 and looking to the voluminous record and number of the prosecution witnesses which are to be examined, it may take its own time to conclude and indeed the undertrial prisoner cannot be detained for such a long period of incarceration noticed by us in the instant case. The correspondence which has taken place between the Central Government and the State of West Bengal from time to time is placed for our perusal but nothing elicits from the record.

### 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: as Act 2008) mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the Act 2008 but the ground realities are totally different as in the instant case, after the charge-sheets came to be filed way back in 2012, the charges have been framed after 7 years of filing of the charge-sheet on 20th June, 2019. 11. We have to balance the nature of crime in reference to which the appellant is facing a trial. At the same time, the period of incarceration which has been suffered and the likely period within which the trial can be expected to be completed, as is informed to this Court that the statement of PW-1/de-facto complainant has still not been completed and there are 298 prosecution witnesses in the calendar of witness although the respondent has stated in its counter affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial. This fact certainly cannot be ignored that the appellant is in custody since 6th July, 2012 and has completed nine and half years of incarceration as an undertrial prisoner. 12. This Court has consistently observed in its numerous judgments that the liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail. 13. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice. 14. The three-Judge Bench of this Court in Union of India Vs. K.A. Najeeb 2021(3) SCC 713 had an occasion to consider the long incarceration and at the same time the effect of Section 43-D(5) of the UAP Act and observed as under:- 17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. 15. In the above circumstances, we are of the view that the appellant accused has made out a case for grant of post-arrest bail pending trial. 16. Before parting with the order, we would like to observe that under the scheme of the Act 2008, the power is vested with the Central Government in consultation with the Chief Justice of the High Court, for the trial of scheduled offences, designate one or more Courts of Session as Special Courts, by notification in the Official Gazette, with the place of jurisdiction of special Courts and its jurisdictional power has been defined under Sections 13 and 14 of the Act 2008. At the same time, it has been mandated under Section 19 of the Act 2008 that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall, if necessary, remain in abeyance. The power of State Government to designate one or more Courts as Special Courts for the trial of offences under any or all the enactments specified in the Schedule is provided under Section 22 of the Act, 2008. 17. It has been informed to this Court that only one such Special Court has been designated by the State of West Bengal to try such cases under the Act 2008. Before us, the order sheets have been placed for perusal of the instant case and it indicates that hearing is taking place only one day in a month and if this procedure is being followed in conducting the trial under Act 2008, it frustrates the very purpose with which the special Courts are designated. 18. It is clearly demonstrated from the instant case that after the charge-sheet came to be filed in the year 2012, charges have been framed in June 2019 and looking to the voluminous record and number of the prosecution witnesses which are to be examined, it may take its own time to conclude and indeed the undertrial prisoner cannot be detained for such a long period of incarceration noticed by us in the instant case. The correspondence which has taken place between the Central Government and the State of West Bengal from time to time is placed for our perusal but nothing elicits from the record. ### Response: 1

V. Verghese and Another Vs. Commissioner of Income Tax, Kerala

revenue and not capital. The court observed that if income from the sale of coal from a coal-mine or stone won from a quarry, or from the sale of paddy grown on land be regarded as income, but for the special exemption granted under the Income-tax Act, there is no logical reason for holding that income from sale of trees is not income liable to taxIn In re Ram Prasad a Division Bench of the Allahabad High Court held that receipt from sale of timber is income liable to be taxed and is not a capital receipt. The case arose under the Government Trading Taxation Act, 1926 (3 of 1926) 9. In Maharaja of Kalpurthala v. Commissioner of Income-tax the Oudh Chief Court held that net receipts from the sale of forest trees is income liable to income-tax, even though the forest may be gradually exhausted by fellings. The court further observed that income from the sale of forest trees of spontaneous growth growing on land which is assessed to land revenue is not agricultural income within the meaning of section 2(1)(a) of the Income-tax Act and is not exempt from income-tax under section 4(3) (viii) of the Act 10. In Raja Bahadur Kamakshya Narain Singh v. Commissioner of in tax, a similar view was expressed by the Patna High Court: In Fringford Estates Ltd. v. Commissioner of Income-tax it was held that profits realised from the sale of timber were trade profits and were liable to income-tax. In that case the assessee-company formed with the object of purchasing, clearing and improving of estates and the cultivation and sale of tea, coffee, etc., in such estates, purchased a tract of land part of which had already been cultivated with tea and the rest was a jungle capable of being cleared and made fit for plantation. The company entered into an agreement with a timber merchant for clearing a part of the forest of all trees and for sale of the trees in the market. This was held to be a part of the business activity of the company. 11. The cases on the other side of the line are to be found in Commissioner of Income-tax v. N. T. Patwaydhan in which a Division Bench of the Bombay High Court held that when old trees which stood on the land of the assessee were disposed of with their roots once and for all , the receipts were capital. The court observed at page 318 The asset of the man was the land with the wild growth of trees on it. If the land with the trees had been sold, there could have been no doubt that the sale was a realisation of capital and it would not have been possible to argue that the transaction in so far as it involved a sale of the trees was a sale producing income and the remaining part of the transaction was a capital sale. In the present case the land is retained by the assessee but a part of the asset is disposed of in its entirety by selling the trees with roots once and for all. 12. In State of Kerala v. Karimtharuvi Tea Estate Ltd. the Kerala High Court held in a case arising under the Kerala Agricultural Income-tax Act, 1950, that the amount realised by sale as firewood of old and useless gravelia trees grown and maintained in tea gardens for the purpose of affording shade to tea plants is capital receipt and not revenue receipt. The court observed: The gravelia trees were grown and maintained for the sole purpose of providing shade to the tea bushes in the tea estates of the assessee. That such shade is essential for the proper cultivation of tea cannot be disputed and the trees should hence be considered to be as much a part of the capital assets of the company as the tea bushes themselves or the equipment in its factories. Some of the gravelia trees became old and useless with the efflux of time and they naturally had to be cut down and sold. The sale proceeds of such trees cannot possibly amount to a revenue receipt......... 13. In Commissioner of Income-tax v. H. B. Van Ingen the Mysore High Court held that the assessee who had purchased a coffee estate of which a part had been planted with coffee plants and the rest was jungle, and had cleared the jungle for the purpose of planting coffee and had sold the trees felled, price realised by the sale of the trees was a capital and not a revenue receipt, because the trees had grown spontaneously, and the assessee had purchased the estate including the treesIt is not necessary for the purpose of this case to enter upon a detailed analysis of the principle underlying the decisions and to resolve the conflict. On the finding in the present case it is clear that the trees were not removed with routs. The stumps of the trees were allowed to remain in the land so that the trees may regenerate. If a person sells merely leaves or fruit of the trees or even branches of the trees it would be difficult (subject to the special exemption under section 4(3)(viii) of the Income-tax Act, 1922) to hold that the realization is not of the nature of income. Where the trunks are cut so that the stumps remain intact and capable of regeneration, receipts from sale of the trunks would be in the nature of income. It is true that the tree is a part of the land. But by selling a part of the trunk, the assessee does not necessarily realise a part of his capital. We need not consider whether in case there is a sale of the trees with the roots so that there is no possibility of regeneration, it may be said that the realisation is in the nature of capital. That question does not arise in the present case 14.

0[ds]It is not necessary for the purpose of this case to enter upon a detailed analysis of the principle underlying the decisions and to resolve the conflict. On the finding in the present case it is clear that the trees were not removed with routs. The stumps of the trees were allowed to remain in the land so that the trees may regenerate. If a person sells merely leaves or fruit of the trees or even branches of the trees it would be difficult (subject to the special exemption under section 4(3)(viii) of the Income-tax Act, 1922) to hold that the realization is not of the nature of income. Where the trunks are cut so that the stumps remain intact and capable of regeneration, receipts from sale of the trunks would be in the nature of income. It is true that the tree is a part of the land. But by selling a part of the trunk, the assessee does not necessarily realise a part of his capital. We need not consider whether in case there is a sale of the trees with the roots so that there is no possibility of regeneration, it may be said that the realisation is in the nature of capital. That question does not arise in the present caseThere is no suggestion that there were any Casuarina trees in the forest lands let out to the lessees. It is common ground also that the trees in the forest were of spontaneous growth. The Tribunal has found that by the use of the expressionit was stipulated that the trees are to be cut so that 6 inches of the trunk with the barks intact and adhering to it all round the stump is left. This is with a view to permit regeneration of the treesThe question whether receipts from sale of trees by an owner of the land who is not carrying on business in timber may be regarded as income liable to tax has given rise to some difference of opinion in the High Courts. In commissionerx v. T. Manavedan Tirumalpad, a Full Bench of the Madras High Court held that the receipts from sale of timber trees by the owner of unassessed forest lands in Malabar were revenue and not capital. The court observed that if income from the sale of coal from ae or stone won from a quarry, or from the sale of paddy grown on land be regarded as income, but for the special exemption granted under thex Act, there is no logical reason for holding that income from sale of trees is not income liable to taxIn In re Ram Prasad a Division Bench of the Allahabad High Court held that receipt from sale of timber is income liable to be taxed and is not a capital receipt. The case arose under the Government Trading Taxation Act, 1926 (3 of 1926)

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: revenue and not capital. The court observed that if income from the sale of coal from a coal-mine or stone won from a quarry, or from the sale of paddy grown on land be regarded as income, but for the special exemption granted under the Income-tax Act, there is no logical reason for holding that income from sale of trees is not income liable to taxIn In re Ram Prasad a Division Bench of the Allahabad High Court held that receipt from sale of timber is income liable to be taxed and is not a capital receipt. The case arose under the Government Trading Taxation Act, 1926 (3 of 1926) 9. In Maharaja of Kalpurthala v. Commissioner of Income-tax the Oudh Chief Court held that net receipts from the sale of forest trees is income liable to income-tax, even though the forest may be gradually exhausted by fellings. The court further observed that income from the sale of forest trees of spontaneous growth growing on land which is assessed to land revenue is not agricultural income within the meaning of section 2(1)(a) of the Income-tax Act and is not exempt from income-tax under section 4(3) (viii) of the Act 10. In Raja Bahadur Kamakshya Narain Singh v. Commissioner of in tax, a similar view was expressed by the Patna High Court: In Fringford Estates Ltd. v. Commissioner of Income-tax it was held that profits realised from the sale of timber were trade profits and were liable to income-tax. In that case the assessee-company formed with the object of purchasing, clearing and improving of estates and the cultivation and sale of tea, coffee, etc., in such estates, purchased a tract of land part of which had already been cultivated with tea and the rest was a jungle capable of being cleared and made fit for plantation. The company entered into an agreement with a timber merchant for clearing a part of the forest of all trees and for sale of the trees in the market. This was held to be a part of the business activity of the company. 11. The cases on the other side of the line are to be found in Commissioner of Income-tax v. N. T. Patwaydhan in which a Division Bench of the Bombay High Court held that when old trees which stood on the land of the assessee were disposed of with their roots once and for all , the receipts were capital. The court observed at page 318 The asset of the man was the land with the wild growth of trees on it. If the land with the trees had been sold, there could have been no doubt that the sale was a realisation of capital and it would not have been possible to argue that the transaction in so far as it involved a sale of the trees was a sale producing income and the remaining part of the transaction was a capital sale. In the present case the land is retained by the assessee but a part of the asset is disposed of in its entirety by selling the trees with roots once and for all. 12. In State of Kerala v. Karimtharuvi Tea Estate Ltd. the Kerala High Court held in a case arising under the Kerala Agricultural Income-tax Act, 1950, that the amount realised by sale as firewood of old and useless gravelia trees grown and maintained in tea gardens for the purpose of affording shade to tea plants is capital receipt and not revenue receipt. The court observed: The gravelia trees were grown and maintained for the sole purpose of providing shade to the tea bushes in the tea estates of the assessee. That such shade is essential for the proper cultivation of tea cannot be disputed and the trees should hence be considered to be as much a part of the capital assets of the company as the tea bushes themselves or the equipment in its factories. Some of the gravelia trees became old and useless with the efflux of time and they naturally had to be cut down and sold. The sale proceeds of such trees cannot possibly amount to a revenue receipt......... 13. In Commissioner of Income-tax v. H. B. Van Ingen the Mysore High Court held that the assessee who had purchased a coffee estate of which a part had been planted with coffee plants and the rest was jungle, and had cleared the jungle for the purpose of planting coffee and had sold the trees felled, price realised by the sale of the trees was a capital and not a revenue receipt, because the trees had grown spontaneously, and the assessee had purchased the estate including the treesIt is not necessary for the purpose of this case to enter upon a detailed analysis of the principle underlying the decisions and to resolve the conflict. On the finding in the present case it is clear that the trees were not removed with routs. The stumps of the trees were allowed to remain in the land so that the trees may regenerate. If a person sells merely leaves or fruit of the trees or even branches of the trees it would be difficult (subject to the special exemption under section 4(3)(viii) of the Income-tax Act, 1922) to hold that the realization is not of the nature of income. Where the trunks are cut so that the stumps remain intact and capable of regeneration, receipts from sale of the trunks would be in the nature of income. It is true that the tree is a part of the land. But by selling a part of the trunk, the assessee does not necessarily realise a part of his capital. We need not consider whether in case there is a sale of the trees with the roots so that there is no possibility of regeneration, it may be said that the realisation is in the nature of capital. That question does not arise in the present case 14. ### Response: 0

The Commissioner Of Income-Tax, Madras Vs. Mysore Chromite Limited

place outside British India and, ex hypothesis the profits derived from such sales arose outside British India.8. As to the second question, the.. learned Solicitor-General contends that irrespective of the place where the sale may have. taken place the profits derived from such sales were received in Madras. It is recalled that after shipment the assessee company, through its managing agent in Madras, prepared, provisional invoices and drew bills of exchange for 80 per cent. or 90 per cent., as the case may be, of the amount of such invoices and handed over the same to the Eastern Bank Ltd., Madras, and received the amount of the bill of exchange from them in Madras. He contends that the receipt of this payment by the assessee company was really the receipt of the price of the goods and amounted to receipt of profits in Madras. He draws our attention to the terms of payment in the European contract and to the letter of intimation of the opening of the credit sent by the Eastern Bank Ltd. Madras, to the assessee company which have been quoted in part in the earlier part of this judgment. He relies on the words "through the Eastern Bank Ltd., " appearing in the contract and the words "available by delivery to us" appearing in the letter. We do not think that those words support the contention of the learned Solicitor-General. The words "through the Eastern Bank Ltd., " appear to us to go with the preceding words "to be advised to sellers" which are put within brackets which seem to have been wrongly closed after the word sellers instead of after the words the Eastern Bank Ltd. ". Ordinarily, the buyer opens a letter of credit with his Bank in favour of the seller andthe words "through the Eastern Bank Ltd., " would be meaningless unless it was intended to mean that the irrevocable credit which was in favour of the assessee company was to be operated upon by the latter through the Eastern Bank Ltd. If that were the true meaning, then that certainly does not make the Eastern Bank Ltd., the agent of the buyers. The words "available by delivery to us" occurring in the letter of the Eastern Bank Ltd., Madras, do not appear to us to indicate that this was any part of the terms of the letter of credit. This was an intimation in accordance with the advice received by the Eastern Bank Ltd., Madras, from the Eastern Bank Ltd., , London, that the assessee company might avail itself of the letter of credit by delivery of the documents to the Eastern Bank Ltd., Madras. This is made further clear by the latter part of the letter where the Eastern Bank Ltd., Madras, expressed their willingness at their option to negotiate the drafts drawn in terms of the arrangement provided that the documents were in order, The concluding sentence of that letter whereby the Eastern Bank Ltd., Madras, disown any responsibility in respect of the advice clearly militates against the suggestion of the learned Solicitor-General. It is, in these circumstances, impossible to accede to the argument that the payment of 80 per cent. or 90 per cent., as the case may be, of the amount of the provisional invoice by the Eastern Bank Ltd., Madras, was a payment on account of the price. Normally, price is paid by or on behalf of the buyer. In this case the fact found is that the Eastern Bank Ltd., Madras, and the Eastern Bank Ltd., London., were agents of the assessee company. Neither of them had any relation with the buyers. Therefore, a payment by them cannot be regarded as a payment of the price. The true position is very clearly put by Lord Sumner in The Prinz Adalbert(L.R. [1917] A.C. 586, 589) : " When a shipper takes his draft, not as yet accepted, but accompanied by a bill of lading, indorsed in this way, and discounts it with a banker, he makes himself liable on the instrument as drawer, and he further makes the goods, which the bill of ladingrepresents, security for its payment. If, in turn, the discounting banker surrenders the bill of lading to the acceptor against his acceptance, the inference is that he is satisfied to part with his security in consideration of getting this further partys liability on the bill, and that in so doing he acts with the permission and by the mandate of the shipper and drawer.9. This payment by the Eastern Bank Ltd., Madras, therefore, is nothing but an advance made by them to their own customer on the security of the goods covered by the bill of lading reinforced by the benefit of the liability taken up by the assessee company as drawer of the bill which in its turn is backed by the confirmed and irrevocable credit of the buyers London Bank. If this payment was on account of the price, why should the assessee company, as the seller, undertake any liability to the Eastern Bank Ltd., as the drawer of the bill of exchange ? The truth of the matter is that the price was paid on behalf of the buyers by their respective London Banks in London to the Eastern Bank Ltd., London which was the agent of the assessee company. The first receipt of the price, therefore, as pointed out by the High Court, was by the Eastern Bank Ltd., London, on behalf of the sellers. There is no dispute that the balance of the price ascertained after weighment and assay and deducting the amount paid on the bill of exchange was similarly received in London by the Eastern Bank Ltd., London, on behalf of the assessee company. The subsequent adjustment made in the books of the Eastern Bank Ltd., London, did not operate as a receipt of profits in British India. In our opinion the High Court correctly answered the second question also in favour of the assessee company.10.

0[ds]According to section 4 of the Indian Sale of Goods Act a contract of sale of goods is a contract whereby the seller transfer, % or agrees to transfer the property in goods to the buyer for a price and where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell. By sub-section (4) of that section an agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. Section 18 of the Act clearly indicates that in the case of sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods, areargument, however, overlooks the important word "unconditionally" used in the section. The requirement of the section is not only that there shall be appropriation of the goods to the contract but that such appropriation must be made unconditionally. This is further elaborated by section 25 which provides that where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract, the seller may, by the. terms. of the contract or appropriation, , reserve the right of disposal of the goods until certain conditions are fulfilled. In such a case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailer for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller areis true that the price and delivery was F.O.B., Madras but the contracts themselves clearly required the buyers to open a confirmed irrevocable Bankers credit for, the requisite percentage of the invoice value to be available against documents. This clearly indicated that the buyers would not be entitled to the documents, , that is, the bill of lading and the provisional invoice, until payment of the requisite percentage was made upon the bill of exchange. The bill of lading is the document of title to the goods and by this termthe assessee company clearly reserved the right of disposal, of the goods until the bill of exchange *as paid. Placing of the goods on board the steamer named by the buyer under a F.O.B. contract clearly discharges the contractual liability of the seller as seller and the delivery to the buyer is complete and the goods may thenceforward be also at the risk of the buyer against which he may cover himself by taking out an insurance. Prima facie such delivery of the goods to the buyer and the passing of the risk in respect of the goods from the seller to the buyer are strong indications as to the passing also of the property in the goods to the buyer but they are not decisive and may be negatived, for under section 25 the seller may yet reserve to himself the right of disposal of the goods until the fulfilment of certain conditions and thereby prevent the passing of property in the goods from him to the buyer. The facts found in this case are that the assessee company shipped the goods under bill of lading issued in its own name. Under the contract it was not obliged to part with the bill of lading which is the document of title to the goods until the bill of exchange drawn by it on the buyers Bank where the irrevocable letter of credit was opened wasit to say, for the purposes of this case, that in any event upon the terms of the contracts in question and the course of dealings between the parties the property in the goods could not have passed to the buyer earlier than the date when the bill of exchange was accepted by the buyers Bank in London and thedocuments were delivered by the assessee companys agent, he Eastern Bank Ltd., London, to the buyers"admittedly, and as found by the Appellate, Tribunal, always took place in London. It must, therefore, . follow that at the earliest the ;property in the goods passed in London where the bill of lading was handed over to the buyers Bank against the acceptance of the relative bill of exchange. In the premises, the Appellate Tribunal as well as the High Court were quite correct in holding that the sales took place outside British India and, ex hypothesis the profits derived from such sales arose outside Britishdo not think that those words support the contention of the learned Solicitor-General. The words "through the Eastern Bank Ltd., " appear to us to go with the preceding words "to be advised to sellers" which are put within brackets which seem to have been wrongly closed after the word sellers instead of after the words the Eastern Bank Ltd.this case the fact found is that the Eastern Bank Ltd., Madras, and the Eastern Bank Ltd., London., were agents of the assessee company. Neither of them had any relation with the buyers. Therefore, a payment by them cannot be regarded as a payment of thepayment by the Eastern Bank Ltd., Madras, therefore, is nothing but an advance made by them to their own customer on the security of the goods covered by the bill of lading reinforced by the benefit of the liability taken up by the assessee company as drawer of the bill which in its turn is backed by the confirmed and irrevocable credit of the buyers London Bank. If this payment was on account of the price, why should the assessee company, as the seller, undertake any liability to the Eastern Bank Ltd., as the drawer of the bill of exchange ? The truth of the matter is that the price was paid on behalf of the buyers by their respective London Banks in London to the Eastern Bank Ltd., London which was the agent of the assessee company. The first receipt of the price, therefore, as pointed out by the High Court, was by the Eastern Bank Ltd., London, on behalf of the sellers. There is no dispute that the balance of the price ascertained after weighment and assay and deducting the amount paid on the bill of exchange was similarly received in London by the Eastern Bank Ltd., London, on behalf of the assessee company. The subsequent adjustment made in the books of the Eastern Bank Ltd., London, did not operate as a receipt of profits in British India. In our opinion the High Court correctly answered the second question also in favour of the assessee company.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: place outside British India and, ex hypothesis the profits derived from such sales arose outside British India.8. As to the second question, the.. learned Solicitor-General contends that irrespective of the place where the sale may have. taken place the profits derived from such sales were received in Madras. It is recalled that after shipment the assessee company, through its managing agent in Madras, prepared, provisional invoices and drew bills of exchange for 80 per cent. or 90 per cent., as the case may be, of the amount of such invoices and handed over the same to the Eastern Bank Ltd., Madras, and received the amount of the bill of exchange from them in Madras. He contends that the receipt of this payment by the assessee company was really the receipt of the price of the goods and amounted to receipt of profits in Madras. He draws our attention to the terms of payment in the European contract and to the letter of intimation of the opening of the credit sent by the Eastern Bank Ltd. Madras, to the assessee company which have been quoted in part in the earlier part of this judgment. He relies on the words "through the Eastern Bank Ltd., " appearing in the contract and the words "available by delivery to us" appearing in the letter. We do not think that those words support the contention of the learned Solicitor-General. The words "through the Eastern Bank Ltd., " appear to us to go with the preceding words "to be advised to sellers" which are put within brackets which seem to have been wrongly closed after the word sellers instead of after the words the Eastern Bank Ltd. ". Ordinarily, the buyer opens a letter of credit with his Bank in favour of the seller andthe words "through the Eastern Bank Ltd., " would be meaningless unless it was intended to mean that the irrevocable credit which was in favour of the assessee company was to be operated upon by the latter through the Eastern Bank Ltd. If that were the true meaning, then that certainly does not make the Eastern Bank Ltd., the agent of the buyers. The words "available by delivery to us" occurring in the letter of the Eastern Bank Ltd., Madras, do not appear to us to indicate that this was any part of the terms of the letter of credit. This was an intimation in accordance with the advice received by the Eastern Bank Ltd., Madras, from the Eastern Bank Ltd., , London, that the assessee company might avail itself of the letter of credit by delivery of the documents to the Eastern Bank Ltd., Madras. This is made further clear by the latter part of the letter where the Eastern Bank Ltd., Madras, expressed their willingness at their option to negotiate the drafts drawn in terms of the arrangement provided that the documents were in order, The concluding sentence of that letter whereby the Eastern Bank Ltd., Madras, disown any responsibility in respect of the advice clearly militates against the suggestion of the learned Solicitor-General. It is, in these circumstances, impossible to accede to the argument that the payment of 80 per cent. or 90 per cent., as the case may be, of the amount of the provisional invoice by the Eastern Bank Ltd., Madras, was a payment on account of the price. Normally, price is paid by or on behalf of the buyer. In this case the fact found is that the Eastern Bank Ltd., Madras, and the Eastern Bank Ltd., London., were agents of the assessee company. Neither of them had any relation with the buyers. Therefore, a payment by them cannot be regarded as a payment of the price. The true position is very clearly put by Lord Sumner in The Prinz Adalbert(L.R. [1917] A.C. 586, 589) : " When a shipper takes his draft, not as yet accepted, but accompanied by a bill of lading, indorsed in this way, and discounts it with a banker, he makes himself liable on the instrument as drawer, and he further makes the goods, which the bill of ladingrepresents, security for its payment. If, in turn, the discounting banker surrenders the bill of lading to the acceptor against his acceptance, the inference is that he is satisfied to part with his security in consideration of getting this further partys liability on the bill, and that in so doing he acts with the permission and by the mandate of the shipper and drawer.9. This payment by the Eastern Bank Ltd., Madras, therefore, is nothing but an advance made by them to their own customer on the security of the goods covered by the bill of lading reinforced by the benefit of the liability taken up by the assessee company as drawer of the bill which in its turn is backed by the confirmed and irrevocable credit of the buyers London Bank. If this payment was on account of the price, why should the assessee company, as the seller, undertake any liability to the Eastern Bank Ltd., as the drawer of the bill of exchange ? The truth of the matter is that the price was paid on behalf of the buyers by their respective London Banks in London to the Eastern Bank Ltd., London which was the agent of the assessee company. The first receipt of the price, therefore, as pointed out by the High Court, was by the Eastern Bank Ltd., London, on behalf of the sellers. There is no dispute that the balance of the price ascertained after weighment and assay and deducting the amount paid on the bill of exchange was similarly received in London by the Eastern Bank Ltd., London, on behalf of the assessee company. The subsequent adjustment made in the books of the Eastern Bank Ltd., London, did not operate as a receipt of profits in British India. In our opinion the High Court correctly answered the second question also in favour of the assessee company.10. ### Response: 0

The District Council; United Khasi-Jaintia Hills, Shillon Vs. Ka Drepsila Lyngdoh Of Syllai-U-Lor, Mylliem, Myllie

subject to the exceptions hereinafter specified and unless otherwise declared by the Government of Assam, be in force in the said village in so far as the same may be applicable thereto.Provided that Chapter II and Sections 9, 51, 58, 59 (b), 59 (g), 65, 78, 217 and 218 of the said Act shall not apply to the said villages and that clause (b) of sub-section (I) of S. 55 of the said Act shall not apply to the Umshirpi and Umkhra rivers so far as they are within the said villages.2. For the purposes of the application of the said provisions. Notifications, orders, schemes, rules forms, and bye-laws.(a) references to the Local Government shall be read as reference to the Government of Assam.(b) the said villages shall be deemed to be a municipality designated the Shillong (Administered Area) Municipality, and every officer or auhority, for the time being appointed or constituted in accordance with the Assam Municipal Act, 1923 as amended, to exercise powers or discharge duties within the Municipality of Shillong, shall exercise the like powers and discharge the like duties in accordance with the said Act within the Shillong (Administered Area) Municipality and shall be deemed to have been duly appointed or constituted in accordance with the said Act.(c) All sums received by the Municipal Board of the Municipality of Shillong and all fines paid or levied in the said villages shall be credited to the municipal fund of the Municipality of Shillong.x x x x5. It would appear from this notification that what was ceded to the British Government was only "the jurisdiction necessary for the municipal administration in accordance with the Assam Municipal Act, 1923" of certain villages including Mawkhar and the Governor General in Council was pleased to issue an order extending to the said villages the provisions of the Assam Municipal Act, 1923 subject to certain exceptions. The order also provided that for the purposes of the application of the said Act, and the notifications orders, schemes, rules, forms and byelaws made for the Shillong Municipality which were also made applicable, these villages were to be deemed as a municipality designated the Shillong (Administered Areas) Municipality.6. From this notification dated January 16, 1934, and an extract from the Demand and Bill Register of the Shillong Municipality for the year 1957-58, annexed to one of the writ petitions, which refers to South-East Mawkhar as a Ward of the Shillong Municipality, the High Court held that Bara Bazar was part of the Shillong Municipal area. The High Court also relied on the Khasi Siemships (Application of Laws) Order, 1949. This order refers for its purpose to "Shillong Administered Areas" by, which is meant "so much of the areas for the time being comprised within the Municipality of Shillong as forms part of the United KhasiJaintia Hills District." The first Schedule to the order defines the "Shillong Administered Areas" as comprising the area covered by the Shillong (Administered Areas) Municipality, which includes Mawkhar.7. We do not think that the material on which the High Court relied justifies the finding that village Mawkhar which includes Bara Bazar was cart of the Shillong Municipality. The notification dated the 16th January, 1934 makes it clear beyond doubt that the Siem of Mylliem ceded the villages for the specified purpose of municipal administration only. It seems to us also clear that though the provisions of the Assam Municipal Act. 1923 were made applicable to the ceded villages. the villages were-never included within the territorial jurisdiction of the Shillong Municipality. The notification itself directed that these villages were to be deemed as a distinct Municipality designated the Shillong (Administered Areas) Municipality which shows that they were not intended to be merged in the Municipality of Shillong though the officers and authorities exercising powers or discharging duties within the Municipality of Shillong were to exercise similar powers and discharge like duties in the ceded areas according to a direction contained in the notification. Chapter II of the Assam Municipal Act. 1923 which, as it stood at the date of the notification, empowered the provincial government to include within a municipality any local area in the vicinity of the same, was not made applicable to these villages. There is also no evidence that these territories were subsequently merged in the Municipality of Shillong After the commencement of the Constitution of India, as paragraph 19 of the Sixth Schedule provides, the administration of the territories comprised in the United Khasi-Jaintia Hills District vested in the Governor until the District Council was constituted in June 1952. It is not clear from the material on record whether the District Council took up the entire burden of administration throughout the territories from the beginning or allowed the existing arrangements to continue at some places for some time. The extract from the Bill and Demand Register of the Shillong Municipality for the year l957-58, referred to in the judgment of this High Court, seems to suggest the second possibility. Even if this were so. it does not mean that Mawkhar or South-East Mawkhar was included in the territorial jurisdiction of the Shillong Municipality. In view of the notification dated the 16th January, 1934 which preserves the distinct entity of the ceded villages and in the absence of any provision effecting a merger of these territories in the Municipality of Shillong, reference in the Khasi Siemships (Application of Laws) Order. 1949 to any part of the Khasi-Jaintia Hills District as "comprised within the Municipality of Shillong" must he read to mean that part of the District in which the officers and the authorities of the Shillong Municipality continued to exercise powers and discharge duties as before. In our opinion the jurisdiction of the District-Council of the Khasi-Jaintia Hills extends to the Bara Bazar areas and as such the impugned orders issued at the instance of the appellants to the first respondent in each of these two appeals restraining them from constructing shops in the aforesaid area are not invalid.

1[ds]There could be also no disputes in view of paragraph 6 of the Schedule, as to the power of the District Council to manage the Bara Bazar Market and to issue for that purpose the orders impugned in these two cases. if the provisions of the Sixth Schedule to which we have so far referred were the only relevant provisions for consideration.It would appear from this notification that what was ceded to the British Government was only "the jurisdiction necessary for the municipal administration in accordance with the Assam Municipal Act, 1923" of certain villages including Mawkhar and the Governor General in Council was pleased to issue an order extending to the said villages the provisions of the Assam Municipal Act, 1923 subject to certain exceptions. The order also provided that for the purposes of the application of the said Act, and the notifications orders, schemes, rules, forms and byelaws made for the Shillong Municipality which were also made applicable, these villages were to be deemed as a municipality designated the Shillong (Administered Areas) Municipality.We do not think that the material on which the High Court relied justifies the finding that village Mawkhar which includes Bara Bazar was cart of the Shillong Municipality. The notification dated the 16th January, 1934 makes it clear beyond doubt that the Siem of Mylliem ceded the villages for the specified purpose of municipal administration only. It seems to us also clear that though the provisions of the Assam Municipal Act. 1923 were made applicable to the ceded villages. the villages were-never included within the territorial jurisdiction of the Shillong Municipality. The notification itself directed that these villages were to be deemed as a distinct Municipality designated the Shillong (Administered Areas) Municipality which shows that they were not intended to be merged in the Municipality of Shillong though the officers and authorities exercising powers or discharging duties within the Municipality of Shillong were to exercise similar powers and discharge like duties in the ceded areas according to a direction contained in the notification. Chapter II of the Assam Municipal Act. 1923 which, as it stood at the date of the notification, empowered the provincial government to include within a municipality any local area in the vicinity of the same, was not made applicable to these villages. There is also no evidence that these territories were subsequently merged in the Municipality of Shillong After the commencement of the Constitution of India, as paragraph 19 of the Sixth Schedule provides, the administration of the territories comprised in the United Khasi-Jaintia Hills District vested in the Governor until the District Council was constituted in June 1952. It is not clear from the material on record whether the District Council took up the entire burden of administration throughout the territories from the beginning or allowed the existing arrangements to continue at some places for some time. The extract from the Bill and Demand Register of the Shillong Municipality for the year l957-58, referred to in the judgment of this High Court, seems to suggest the second possibility. Even if this were so. it does not mean that Mawkhar or South-East Mawkhar was included in the territorial jurisdiction of the Shillong Municipality. In view of the notification dated the 16th January, 1934 which preserves the distinct entity of the ceded villages and in the absence of any provision effecting a merger of these territories in the Municipality of Shillong, reference in the Khasi Siemships (Application of Laws) Order. 1949 to any part of the Khasi-Jaintia Hills District as "comprised within the Municipality of Shillong" must he read to mean that part of the District in which the officers and the authorities of the Shillong Municipality continued to exercise powers and discharge duties as before. In our opinion the jurisdiction of the District-Council of the Khasi-Jaintia Hills extends to the Bara Bazar areas and as such the impugned orders issued at the instance of the appellants to the first respondent in each of these two appeals restraining them from constructing shops in the aforesaid area are not invalid.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: subject to the exceptions hereinafter specified and unless otherwise declared by the Government of Assam, be in force in the said village in so far as the same may be applicable thereto.Provided that Chapter II and Sections 9, 51, 58, 59 (b), 59 (g), 65, 78, 217 and 218 of the said Act shall not apply to the said villages and that clause (b) of sub-section (I) of S. 55 of the said Act shall not apply to the Umshirpi and Umkhra rivers so far as they are within the said villages.2. For the purposes of the application of the said provisions. Notifications, orders, schemes, rules forms, and bye-laws.(a) references to the Local Government shall be read as reference to the Government of Assam.(b) the said villages shall be deemed to be a municipality designated the Shillong (Administered Area) Municipality, and every officer or auhority, for the time being appointed or constituted in accordance with the Assam Municipal Act, 1923 as amended, to exercise powers or discharge duties within the Municipality of Shillong, shall exercise the like powers and discharge the like duties in accordance with the said Act within the Shillong (Administered Area) Municipality and shall be deemed to have been duly appointed or constituted in accordance with the said Act.(c) All sums received by the Municipal Board of the Municipality of Shillong and all fines paid or levied in the said villages shall be credited to the municipal fund of the Municipality of Shillong.x x x x5. It would appear from this notification that what was ceded to the British Government was only "the jurisdiction necessary for the municipal administration in accordance with the Assam Municipal Act, 1923" of certain villages including Mawkhar and the Governor General in Council was pleased to issue an order extending to the said villages the provisions of the Assam Municipal Act, 1923 subject to certain exceptions. The order also provided that for the purposes of the application of the said Act, and the notifications orders, schemes, rules, forms and byelaws made for the Shillong Municipality which were also made applicable, these villages were to be deemed as a municipality designated the Shillong (Administered Areas) Municipality.6. From this notification dated January 16, 1934, and an extract from the Demand and Bill Register of the Shillong Municipality for the year 1957-58, annexed to one of the writ petitions, which refers to South-East Mawkhar as a Ward of the Shillong Municipality, the High Court held that Bara Bazar was part of the Shillong Municipal area. The High Court also relied on the Khasi Siemships (Application of Laws) Order, 1949. This order refers for its purpose to "Shillong Administered Areas" by, which is meant "so much of the areas for the time being comprised within the Municipality of Shillong as forms part of the United KhasiJaintia Hills District." The first Schedule to the order defines the "Shillong Administered Areas" as comprising the area covered by the Shillong (Administered Areas) Municipality, which includes Mawkhar.7. We do not think that the material on which the High Court relied justifies the finding that village Mawkhar which includes Bara Bazar was cart of the Shillong Municipality. The notification dated the 16th January, 1934 makes it clear beyond doubt that the Siem of Mylliem ceded the villages for the specified purpose of municipal administration only. It seems to us also clear that though the provisions of the Assam Municipal Act. 1923 were made applicable to the ceded villages. the villages were-never included within the territorial jurisdiction of the Shillong Municipality. The notification itself directed that these villages were to be deemed as a distinct Municipality designated the Shillong (Administered Areas) Municipality which shows that they were not intended to be merged in the Municipality of Shillong though the officers and authorities exercising powers or discharging duties within the Municipality of Shillong were to exercise similar powers and discharge like duties in the ceded areas according to a direction contained in the notification. Chapter II of the Assam Municipal Act. 1923 which, as it stood at the date of the notification, empowered the provincial government to include within a municipality any local area in the vicinity of the same, was not made applicable to these villages. There is also no evidence that these territories were subsequently merged in the Municipality of Shillong After the commencement of the Constitution of India, as paragraph 19 of the Sixth Schedule provides, the administration of the territories comprised in the United Khasi-Jaintia Hills District vested in the Governor until the District Council was constituted in June 1952. It is not clear from the material on record whether the District Council took up the entire burden of administration throughout the territories from the beginning or allowed the existing arrangements to continue at some places for some time. The extract from the Bill and Demand Register of the Shillong Municipality for the year l957-58, referred to in the judgment of this High Court, seems to suggest the second possibility. Even if this were so. it does not mean that Mawkhar or South-East Mawkhar was included in the territorial jurisdiction of the Shillong Municipality. In view of the notification dated the 16th January, 1934 which preserves the distinct entity of the ceded villages and in the absence of any provision effecting a merger of these territories in the Municipality of Shillong, reference in the Khasi Siemships (Application of Laws) Order. 1949 to any part of the Khasi-Jaintia Hills District as "comprised within the Municipality of Shillong" must he read to mean that part of the District in which the officers and the authorities of the Shillong Municipality continued to exercise powers and discharge duties as before. In our opinion the jurisdiction of the District-Council of the Khasi-Jaintia Hills extends to the Bara Bazar areas and as such the impugned orders issued at the instance of the appellants to the first respondent in each of these two appeals restraining them from constructing shops in the aforesaid area are not invalid. ### Response: 1

M/S STAR WIRE (INDIA) VIDYUT PVT LTD Vs. HARYANA ELECTRICITY REGULATORY COMMISSION

by the Commission in the suo moto proceedings initiated by it for revision of norms (for tariff operation for the second control period commencing from 1 st April, 2013). That order runs into over 100 typed pages and has analysed the necessity of revision vis¬à-vis each head to be reckoned for determination of tariff. The appellants had participated in the said proceedings. However, the stand taken by the appellants did not commend to the Commission, as can be discerned from the discussion in the order passed by it on 4 th August, 2015. Further, it was open to the appellants to approach the Commission by way of a review if they had any reservation with regard to the view taken by Commission in the said order. It was also open to the appellants to file appeal against the said order. However, without resorting to such remedies, the appellants chose to file writ petition and have raised grounds which are untenable in light of the discussion recorded by the Commission in its order dated 4 th August, 2015. It is certainly not a case of hostile discrimination considering the fact that Commission has recorded tangible reasons as to why the applicability of the revised regulations was required to be made prospective in respect of projects commissioned during FY 2013¬14. It is urged that the exercise of power in framing regulations ¬ be it principal Regulations or impugned Amended Regulations ¬ in terms of Section 61 read with Section 181 of the Electricity Act, 2003 permits classification on the basis of the date of commissioning of the project during the relevant period and which may inevitably result in providing for two sets of tariffs during the same control period. It is submitted that even though the impugned judgment of the High Court is brief, the conclusions reached therein are unexceptionable and therefore, this appeal ought to be dismissed. 8. After perusing the impugned judgment, we have no hesitation in taking the view that the High Court has committed manifest error or so to speak, failed to exercise jurisdiction vested in it for adjudicating the relevant issues raised by the appellants. For, there is hardly any intelligible discussion in the impugned judgment in that regard. If we may say so, it is cryptic and cannot stand the test of judicial scrutiny. We say so because, up to paragraph 9 of the judgment the High Court has only reproduced the rival stand. Paragraph 11 refers to the relevant provisions. Paragraph 12 is mere narration of some facts concerning this case. Paragraph 13, broadly refers to the purport of the provisions in the principal Regulations and the impugned Amended Regulations. The discussion with regard to the merits of the challenge, can be discerned only from paragraph Nos.14 and 15 reproduced hitherto. Paragraph 14 even if fairly analysed, merely adverts to the argument of discriminatory application of regulations qua the appellant company and proceeds to reject the same. No logic can be deduced as to why the Court was persuaded to reject the argument despite the multifaceted issues raised by the appellants. The second sentence in the said paragraph then proceeds to record that the control period may be from FY 2013-14 onwards, however, the impugned Amended Regulations envisage application of revised norms to projects commissioned in FY 2013¬14 prospectively from the date of notification of the impugned Amended Regulations. In other words, the High Court has not analysed the grounds of challenge regarding the validity of the impugned Amended Regulations and including the competency to frame such a regulation, appropriately. Strikingly, the High Court then straightaway proceeds to examine the second contention raised by the appellants in reference to the third proviso in the principal Regulations providing for adjustments as per revised regulations. The Court merely noted that the appellants failed to point out any prejudice caused to them because of exclusion from the benefit flowing from the principal Regulations. The appellants, on the other hand, have invited our attention to the specific grounds taken by the appellants in the writ petition and also noted in the order of the Commission dated 4 th August, 2015 and additionally articulated in the ground No. B of the special leave petition, giving comparative chart indicating substantial disparity regarding the norms applicable as per principal Regulations and the impugned Amended Regulations. In other words, the argument of prejudice was raised by the appellants to the detail but the High Court has failed to deal with the same, to say the least satisfactorily. Similarly, the detail arguments regarding the validity of the impugned Amended Regulations and the competency to frame such a regulation has not been analysed by the High Court.9. Suffice it to observe that the discussion in two paragraphs (para 14 and 15), to say the least, is one of disposing of the writ petition in a most casual and cavalier manner. That cannot be countenanced. Having said this, we are of the considered opinion that it would be appropriate to relegate the parties before the High Court for fresh consideration of the writ petition on its own merits in accordance with law. We refrain from expressing any opinion either way on the merits of the controversy or the grounds of challenge regarding the impugned Amended Regulations. In other words, the High Court must consider all relevant aspects of the matter agitated by the appellants and deal with the same appropriately in accordance with law.10. For completion of the record, we must note the decision of the Constitution Bench of this Court in PTC India Ltd. Vs. Central Electricity Regulatory Commission, Through Secretary (2010) 4 SCC 603 , which has held that the challenge to the validity of the regulations can be decided only in judicial review proceedings before the courts and not by way of appeal or review. The appellants having invoked such a remedy before the High Court, all contentions available to the appellants in that regard ought to have been adjudicated in proper perspective.

1[ds]8. After perusing the impugned judgment, we have no hesitation in taking the view that the High Court has committed manifest error or so to speak, failed to exercise jurisdiction vested in it for adjudicating the relevant issues raised by the appellants. For, there is hardly any intelligible discussion in the impugned judgment in that regard. If we may say so, it is cryptic and cannot stand the test of judicial scrutiny. We say so because, up to paragraph 9 of the judgment the High Court has only reproduced the rival stand. Paragraph 11 refers to the relevant provisions. Paragraph 12 is mere narration of some facts concerning this case. Paragraph 13, broadly refers to the purport of the provisions in the principal Regulations and the impugned Amended Regulations. The discussion with regard to the merits of the challenge, can be discerned only from paragraph Nos.14 and 15 reproduced hitherto. Paragraph 14 even if fairly analysed, merely adverts to the argument of discriminatory application of regulations qua the appellant company and proceeds to reject the same. No logic can be deduced as to why the Court was persuaded to reject the argument despite the multifaceted issues raised by the appellants. The second sentence in the said paragraph then proceeds to record that the control period may be from FY 2013-14 onwards, however, the impugned Amended Regulations envisage application of revised norms to projects commissioned in FY 2013¬14 prospectively from the date of notification of the impugned Amended Regulations. In other words, the High Court has not analysed the grounds of challenge regarding the validity of the impugned Amended Regulations and including the competency to frame such a regulation, appropriately. Strikingly, the High Court then straightaway proceeds to examine the second contention raised by the appellants in reference to the third proviso in the principal Regulations providing for adjustments as per revised regulations. The Court merely noted that the appellants failed to point out any prejudice caused to them because of exclusion from the benefit flowing from the principal Regulations. The appellants, on the other hand, have invited our attention to the specific grounds taken by the appellants in the writ petition and also noted in the order of the Commission dated 4 th August, 2015 and additionally articulated in the ground No. B of the special leave petition, giving comparative chart indicating substantial disparity regarding the norms applicable as per principal Regulations and the impugned Amended Regulations. In other words, the argument of prejudice was raised by the appellants to the detail but the High Court has failed to deal with the same, to say the least satisfactorily. Similarly, the detail arguments regarding the validity of the impugned Amended Regulations and the competency to frame such a regulation has not been analysed by the High Court.9. Suffice it to observe that the discussion in two paragraphs (para 14 and 15), to say the least, is one of disposing of the writ petition in a most casual and cavalier manner. That cannot be countenanced. Having said this, we are of the considered opinion that it would be appropriate to relegate the parties before the High Court for fresh consideration of the writ petition on its own merits in accordance with law. We refrain from expressing any opinion either way on the merits of the controversy or the grounds of challenge regarding the impugned Amended Regulations. In other words, the High Court must consider all relevant aspects of the matter agitated by the appellants and deal with the same appropriately in accordance with law.10. For completion of the record, we must note the decision of the Constitution Bench of this Court in PTC India Ltd. Vs. Central Electricity Regulatory Commission, Through Secretary (2010) 4 SCC 603 , which has held that the challenge to the validity of the regulations can be decided only in judicial review proceedings before the courts and not by way of appeal or review. The appellants having invoked such a remedy before the High Court, all contentions available to the appellants in that regard ought to have been adjudicated in proper perspective.

### 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: by the Commission in the suo moto proceedings initiated by it for revision of norms (for tariff operation for the second control period commencing from 1 st April, 2013). That order runs into over 100 typed pages and has analysed the necessity of revision vis¬à-vis each head to be reckoned for determination of tariff. The appellants had participated in the said proceedings. However, the stand taken by the appellants did not commend to the Commission, as can be discerned from the discussion in the order passed by it on 4 th August, 2015. Further, it was open to the appellants to approach the Commission by way of a review if they had any reservation with regard to the view taken by Commission in the said order. It was also open to the appellants to file appeal against the said order. However, without resorting to such remedies, the appellants chose to file writ petition and have raised grounds which are untenable in light of the discussion recorded by the Commission in its order dated 4 th August, 2015. It is certainly not a case of hostile discrimination considering the fact that Commission has recorded tangible reasons as to why the applicability of the revised regulations was required to be made prospective in respect of projects commissioned during FY 2013¬14. It is urged that the exercise of power in framing regulations ¬ be it principal Regulations or impugned Amended Regulations ¬ in terms of Section 61 read with Section 181 of the Electricity Act, 2003 permits classification on the basis of the date of commissioning of the project during the relevant period and which may inevitably result in providing for two sets of tariffs during the same control period. It is submitted that even though the impugned judgment of the High Court is brief, the conclusions reached therein are unexceptionable and therefore, this appeal ought to be dismissed. 8. After perusing the impugned judgment, we have no hesitation in taking the view that the High Court has committed manifest error or so to speak, failed to exercise jurisdiction vested in it for adjudicating the relevant issues raised by the appellants. For, there is hardly any intelligible discussion in the impugned judgment in that regard. If we may say so, it is cryptic and cannot stand the test of judicial scrutiny. We say so because, up to paragraph 9 of the judgment the High Court has only reproduced the rival stand. Paragraph 11 refers to the relevant provisions. Paragraph 12 is mere narration of some facts concerning this case. Paragraph 13, broadly refers to the purport of the provisions in the principal Regulations and the impugned Amended Regulations. The discussion with regard to the merits of the challenge, can be discerned only from paragraph Nos.14 and 15 reproduced hitherto. Paragraph 14 even if fairly analysed, merely adverts to the argument of discriminatory application of regulations qua the appellant company and proceeds to reject the same. No logic can be deduced as to why the Court was persuaded to reject the argument despite the multifaceted issues raised by the appellants. The second sentence in the said paragraph then proceeds to record that the control period may be from FY 2013-14 onwards, however, the impugned Amended Regulations envisage application of revised norms to projects commissioned in FY 2013¬14 prospectively from the date of notification of the impugned Amended Regulations. In other words, the High Court has not analysed the grounds of challenge regarding the validity of the impugned Amended Regulations and including the competency to frame such a regulation, appropriately. Strikingly, the High Court then straightaway proceeds to examine the second contention raised by the appellants in reference to the third proviso in the principal Regulations providing for adjustments as per revised regulations. The Court merely noted that the appellants failed to point out any prejudice caused to them because of exclusion from the benefit flowing from the principal Regulations. The appellants, on the other hand, have invited our attention to the specific grounds taken by the appellants in the writ petition and also noted in the order of the Commission dated 4 th August, 2015 and additionally articulated in the ground No. B of the special leave petition, giving comparative chart indicating substantial disparity regarding the norms applicable as per principal Regulations and the impugned Amended Regulations. In other words, the argument of prejudice was raised by the appellants to the detail but the High Court has failed to deal with the same, to say the least satisfactorily. Similarly, the detail arguments regarding the validity of the impugned Amended Regulations and the competency to frame such a regulation has not been analysed by the High Court.9. Suffice it to observe that the discussion in two paragraphs (para 14 and 15), to say the least, is one of disposing of the writ petition in a most casual and cavalier manner. That cannot be countenanced. Having said this, we are of the considered opinion that it would be appropriate to relegate the parties before the High Court for fresh consideration of the writ petition on its own merits in accordance with law. We refrain from expressing any opinion either way on the merits of the controversy or the grounds of challenge regarding the impugned Amended Regulations. In other words, the High Court must consider all relevant aspects of the matter agitated by the appellants and deal with the same appropriately in accordance with law.10. For completion of the record, we must note the decision of the Constitution Bench of this Court in PTC India Ltd. Vs. Central Electricity Regulatory Commission, Through Secretary (2010) 4 SCC 603 , which has held that the challenge to the validity of the regulations can be decided only in judicial review proceedings before the courts and not by way of appeal or review. The appellants having invoked such a remedy before the High Court, all contentions available to the appellants in that regard ought to have been adjudicated in proper perspective. ### Response: 1

Smt. Mallawwa Vs. Oriental Insurance Co. Ltd

be said to have been carried for hire or reward when he travels in a goods vehicle either on payment of fare or along with his goods. It is not necessary to refer to those decisions which were cited at Bar as we find that all the relevant aspects were not taken into consideration while expressing one view or the other. We may only refer to the decision of the Orissa High Court in New India Assurance Co. Ltd. v. Kanchan Bewa & Ors., 1994 ACJ 138 , where Hansaria, J. speaking for the Full Bench observed as under :- "18. The aforesaid is not enough to take any view as to whether goods vehicle can or cannot come within the fold or proviso (ii) with which we are concerned. Our primary reason for differing, with respect, with Rajasthan Full Bench is that allowing goods vehicle to be taken within the fold of proviso (ii) would introduce uncertainties in law as that would depend upon various factors to which we shall advert; the result would be that the law would cease to be certain which it has to be at least in a case of the present nature. We have said so because reference to the definition of goods vehicle shows that the first part of it does not deal with carrying of passengers. It is the second part which speaks about the same and that too when the vehicle is used for such a purpose. The word `use has been defined in Chambers English Dictionary in its intransitive sense to mean `to be accustomed; (to; used chiefly in the past tense); `to be in the habit of so doing; `to resort. Reference to the meaning of this word, as given in Blacks Law Dictionary, 5th edition, would show that even one user may amount to `use or it may be that for a thing being said to be `used, it has to be `employed habitually. 19. Being concerned with a beneficial legislation like the one at hand, we would have normally preferred liberal interpretation, but the question is whether, without any extra premium having been paid, the owner of a goods vehicle can claim indemnification from the insurer just because once in a year the goods vehicle had carried a passenger for hire or reward along with the goods. This would perhaps robe the third proviso dealing with coverage of contractual liability lame. ... xxx xxx 22. Thus, to find out whether an insurer would be liable to indemnify an owner of a goods vehicle in a case of the present nature, the mere fact that he passenger was carried for hire or reward would not be enough; it shall have to found out as to whether he was the owner, and the whether there were more than six persons in all in the good vehicle and whether the goods vehicle was being habitually used to carry passengers. The position would thus become very uncertain and would vary from case to case. Production of such result would not be conducive to the advancement of the object sought to be achieved by requiring a compulsory insurance policy. 23. There is another aspect of the matter which had led us to differ from the Full Bench decision of Rajasthan High Court. The same is what finds place in sub-section (2) of Section 95. That sub-section specifies the limits of liability and clause (a) deals with goods vehicle; and in so far as the person travelling in goods vehicle is concerned, it has confined the liability to the employees only. Thus is an indicator, and almost a sure indicator, of the fact that legislature did not have in mind carrying of either the hirer of the vehicle or his employee in the goods vehicle, otherwise, clause (a) would have provided a limit of liability regarding such persons also." Though, the conclusion was arrived at after taking into consideration the Orissa Motor Vehicle Rules, in our opinion the said view is correct, even otherwise also. In view of what we have said, the contrary view expressed by other High Courts has to be regarded as incorrect. 9. We will now consider whether the decision of this Court in Pushpabais case (supra) requires reconsideration. That was a case of a passenger travelling in a motor car. He was not travelling for hire or reward. The vehicle was neither a public service vehicle nor a goods vehicle, but it was a different class of vehicle. It was in that context that this Court made the following observation in paragraphs 21 and 22 : "... The plea that the words "third party" are wide enough to cover all persons except the person and the insurer is negatived as the insurance cover is not available to the passengers is made clear by the proviso to sub- section which provides that a policy shall not be required : "(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by a reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises.(22). Therefore it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the counsel for the insurance company will have to be accepted and the insurance company held not liable under the requirements of the Motor Vehicles Act."What was held in that case is, with respect, consistent with our interpretation of Section 95 as it stood before and after its Amendment by Act 56 of 1969.

1[ds](22). Therefore it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the counsel for the insurance company will have to be accepted and the insurance company held not liable under the requirements of the Motor Vehicles Act."What was held in that case is, with respect, consistent with our interpretation of Section 95 as it stood before and after its Amendment by Act 56 of 1969.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: be said to have been carried for hire or reward when he travels in a goods vehicle either on payment of fare or along with his goods. It is not necessary to refer to those decisions which were cited at Bar as we find that all the relevant aspects were not taken into consideration while expressing one view or the other. We may only refer to the decision of the Orissa High Court in New India Assurance Co. Ltd. v. Kanchan Bewa & Ors., 1994 ACJ 138 , where Hansaria, J. speaking for the Full Bench observed as under :- "18. The aforesaid is not enough to take any view as to whether goods vehicle can or cannot come within the fold or proviso (ii) with which we are concerned. Our primary reason for differing, with respect, with Rajasthan Full Bench is that allowing goods vehicle to be taken within the fold of proviso (ii) would introduce uncertainties in law as that would depend upon various factors to which we shall advert; the result would be that the law would cease to be certain which it has to be at least in a case of the present nature. We have said so because reference to the definition of goods vehicle shows that the first part of it does not deal with carrying of passengers. It is the second part which speaks about the same and that too when the vehicle is used for such a purpose. The word `use has been defined in Chambers English Dictionary in its intransitive sense to mean `to be accustomed; (to; used chiefly in the past tense); `to be in the habit of so doing; `to resort. Reference to the meaning of this word, as given in Blacks Law Dictionary, 5th edition, would show that even one user may amount to `use or it may be that for a thing being said to be `used, it has to be `employed habitually. 19. Being concerned with a beneficial legislation like the one at hand, we would have normally preferred liberal interpretation, but the question is whether, without any extra premium having been paid, the owner of a goods vehicle can claim indemnification from the insurer just because once in a year the goods vehicle had carried a passenger for hire or reward along with the goods. This would perhaps robe the third proviso dealing with coverage of contractual liability lame. ... xxx xxx 22. Thus, to find out whether an insurer would be liable to indemnify an owner of a goods vehicle in a case of the present nature, the mere fact that he passenger was carried for hire or reward would not be enough; it shall have to found out as to whether he was the owner, and the whether there were more than six persons in all in the good vehicle and whether the goods vehicle was being habitually used to carry passengers. The position would thus become very uncertain and would vary from case to case. Production of such result would not be conducive to the advancement of the object sought to be achieved by requiring a compulsory insurance policy. 23. There is another aspect of the matter which had led us to differ from the Full Bench decision of Rajasthan High Court. The same is what finds place in sub-section (2) of Section 95. That sub-section specifies the limits of liability and clause (a) deals with goods vehicle; and in so far as the person travelling in goods vehicle is concerned, it has confined the liability to the employees only. Thus is an indicator, and almost a sure indicator, of the fact that legislature did not have in mind carrying of either the hirer of the vehicle or his employee in the goods vehicle, otherwise, clause (a) would have provided a limit of liability regarding such persons also." Though, the conclusion was arrived at after taking into consideration the Orissa Motor Vehicle Rules, in our opinion the said view is correct, even otherwise also. In view of what we have said, the contrary view expressed by other High Courts has to be regarded as incorrect. 9. We will now consider whether the decision of this Court in Pushpabais case (supra) requires reconsideration. That was a case of a passenger travelling in a motor car. He was not travelling for hire or reward. The vehicle was neither a public service vehicle nor a goods vehicle, but it was a different class of vehicle. It was in that context that this Court made the following observation in paragraphs 21 and 22 : "... The plea that the words "third party" are wide enough to cover all persons except the person and the insurer is negatived as the insurance cover is not available to the passengers is made clear by the proviso to sub- section which provides that a policy shall not be required : "(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by a reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises.(22). Therefore it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the counsel for the insurance company will have to be accepted and the insurance company held not liable under the requirements of the Motor Vehicles Act."What was held in that case is, with respect, consistent with our interpretation of Section 95 as it stood before and after its Amendment by Act 56 of 1969. ### Response: 1

Lallan Singh & Others Vs. State of Bihar

any receipts showing payment of the rent to the alleged tenure holders, but it may be that no receipts was granted for Batai rent. The High Courts regarding this observed :"It is said that no receipt was granted for the Batai rent. But the rent suit of 1919 gave on opportunity to Ramcharitar to contest the same, pleading at least payment of Batai rent and this plea would have shown that he continued to be raiyat in possession of the land of khata No. 188. Ramcharitar, however, did not do so further he said that he had given up and surrendered the land of Khata No. 188 after 1911".12. It seems to us that the High Court again relied on Ext. 17 treating it as a genuine document which the High Court, in view of our decision, was not entitled to do.13. The next document is document Ext. O/s. produced by the defence, which is said to be canal parcha of 1956-57 in respect of plot No. 1203. The High Court disregarded it by saying :"But one half of this document is torn and there is no initial of any officer to show that it is a genuine document".14. Then we come to 1960-61. Here the defence has produced a receipt, Ext. P, for Khata No. 158 granted on behalf of the State. It appears that Lallan Singh made a tenaja on July 13, 1960, claiming possession over the plots of Khata No. 158. The prosecution side objected to this claim but the Kanungo decided on August 8, 1960, that Lallan Singh was in possession of the old Khata No. 158, vide Ext. M/s. It appears that Lallan Singh produced canal parcha before the Kanungo because he observed :"1st party produced canal parcha for S. P. No. 1203 for 1944 only, while the 2nd party produces canal parcha also and comes on the basis of the entries made in the last survey Record of Rights. Hence vide my order in dispute No. 63 I held that Khata may be opened in the name of Lallan Singh, Surinder Singh and for Khasra No. 1760 and 1762".In this order regarded dispute No. 63 he had disbelieved the evidence of Bengali Ahir. It is true, as remarked by the High Court, that his order was passed at the Khanapuri stage of the survey and settlement proceedings and there could be no presumption of correctness attached to the same. But it does show that the appellants were disputing the possession of the prosecution as long ago as in 1960.15. Again by order dated December 10, 1960, Ext. H/c, the application of Lallan Singh under Section 40 of the Bihar Tenancy Act praying to commute the rent from kind into cash of Khata No. 158 plot Nos. 1203, 1206 and 1207 was decided in his favour. The officer held that the applicant was in possession. An appeal was filed against this order. In appeal the Deputy Collector observed :"According to entry in Khatian the land of Khata No. 158 is recorded in the name of Ramjas Rai and Ramcharitar Rai sons of Gauri Dayal Rai and Smt. Rekhawatia wife of Ramjatan Rai and of village Rahathus, this is again recorded as Batai Nisf.......... The respondents claim is simple and more convincing so far as the entries in Khatians are concerned. They are the accepted raiyats since the last settlement and so the commutation proceedings were rightly started. As against this clear position the appellant come forth with the story that all these respondents surrendered their land to him and as being the exlandlord he kept the land as his Bakasi and so prayed for fixation of rent under Sections 5, 6 and 7. But peculiarly enough this is simply the verbal gesture of the appellant. He is not coming forth with any papers which can slightly indicate that these raiyats have surrender their holdings to the appellant. It is also unconvincing that all the there raiyat could have surrendered the land to him; generally the lands are being surrendered due to burden of excessive rent, unproductivity of land or unprofitability or some time when the raiyats wants to shift to another place under certain pressing conditions. But none of the conditions have been brought to the notice of this Court by the appellant; rather I find that the successors interest are vehemently contesting the case on the ground of possession and title. The simple story of voluntary surrender is obviously not true because it might have been applicable to one case but not in all these three cases..... Whereas the Karamchari and Circle Inspector have found the respondents in possession of the land besides the local inquiry in favour of the respondents by the Anchal Adhikari himself. Thus the respondents are equipped with the right, title and possession which seems to have not been disturbed."The Deputy Collector, held in respect of Khata No. 158 that "the right, title and possession did not accrue to the appellant in respect of the land".16. On this documentary evidence it seems to us that the prosecution has not proved that the prosecution party was in possession of Khata No. 158 at the time of the occurrence. It is remarkable that the prosecution party did not get the record of rights amended if their story of surrender of the land by Ramcharitar in 1919 were true. We cannot understand how some canal parchas came to be issued in the name of the appellants in respect of this Khata if the prosecution side was in possession. We are impressed by the reasoning of the Deputy Collector that in the circumstance the story of surrender is unacceptable. If this is unacceptable the whole edifice erected on it falls to the ground.17. The learned counsel for the State says that there is oral evidence to show that the prosecution was in possession of this Khata but, in our opinion, in such matters oral evidence cannot override the inference available from the documentary evidence.

0[ds]6. It seems to us that there is force in the contentions of the learned counsel. Ext. 2 was clearly misread by the Highis admitted before us that there is no other proof regarding Ext. 17. In view of the ruling of this Court there is no presumption regarding the genuineness of Ext. 17 and the High Court was wrong in treating it as genuine on the ground that it was more than 30 years old document.17. The learned counsel for the State says that there is oral evidence to show that the prosecution was in possession of this Khatabut, in our opinion, in such matters oral evidence cannot override the inference available from the documentary evidence.11. The next document we have on the record is some rent receipts filed on behalf of the prosecution for 1341 to 1361 Fasli granted by the Dwaraon Raj, but these receipts may well be in respect of the amounts given as tenure holders. Further these receipts are in respect of Khewat No. 2 and no Khata number is mentioned therein. It is true that the appellants have not also produced any receipts showing payment of the rent to the alleged tenure holders, but it may be that no receipts was granted for Batai rent.The next document we have on the record is some rent receipts filed on behalf of the prosecution for 1341 to 1361 Fasli granted by the Dwaraon Raj, but these receipts may well be in respect of the amounts given as tenure holders. Further these receipts are in respect of Khewat No. 2 and no Khata number is mentioned therein. It is true that the appellants have not also produced any receipts showing payment of the rent to the alleged tenure holders, but it may be that no receipts was granted for Batai. Again by order dated December 10, 1960, Ext. H/c, the application of Lallan Singh under Section 40 of the Bihar Tenancy Act praying to commute the rent from kind into cash of Khata No. 158 plot Nos. 1203, 1206 and 1207 was decided in his favour. The officer held that the applicant was in possession. An appeal was filed against this order

### 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: any receipts showing payment of the rent to the alleged tenure holders, but it may be that no receipts was granted for Batai rent. The High Courts regarding this observed :"It is said that no receipt was granted for the Batai rent. But the rent suit of 1919 gave on opportunity to Ramcharitar to contest the same, pleading at least payment of Batai rent and this plea would have shown that he continued to be raiyat in possession of the land of khata No. 188. Ramcharitar, however, did not do so further he said that he had given up and surrendered the land of Khata No. 188 after 1911".12. It seems to us that the High Court again relied on Ext. 17 treating it as a genuine document which the High Court, in view of our decision, was not entitled to do.13. The next document is document Ext. O/s. produced by the defence, which is said to be canal parcha of 1956-57 in respect of plot No. 1203. The High Court disregarded it by saying :"But one half of this document is torn and there is no initial of any officer to show that it is a genuine document".14. Then we come to 1960-61. Here the defence has produced a receipt, Ext. P, for Khata No. 158 granted on behalf of the State. It appears that Lallan Singh made a tenaja on July 13, 1960, claiming possession over the plots of Khata No. 158. The prosecution side objected to this claim but the Kanungo decided on August 8, 1960, that Lallan Singh was in possession of the old Khata No. 158, vide Ext. M/s. It appears that Lallan Singh produced canal parcha before the Kanungo because he observed :"1st party produced canal parcha for S. P. No. 1203 for 1944 only, while the 2nd party produces canal parcha also and comes on the basis of the entries made in the last survey Record of Rights. Hence vide my order in dispute No. 63 I held that Khata may be opened in the name of Lallan Singh, Surinder Singh and for Khasra No. 1760 and 1762".In this order regarded dispute No. 63 he had disbelieved the evidence of Bengali Ahir. It is true, as remarked by the High Court, that his order was passed at the Khanapuri stage of the survey and settlement proceedings and there could be no presumption of correctness attached to the same. But it does show that the appellants were disputing the possession of the prosecution as long ago as in 1960.15. Again by order dated December 10, 1960, Ext. H/c, the application of Lallan Singh under Section 40 of the Bihar Tenancy Act praying to commute the rent from kind into cash of Khata No. 158 plot Nos. 1203, 1206 and 1207 was decided in his favour. The officer held that the applicant was in possession. An appeal was filed against this order. In appeal the Deputy Collector observed :"According to entry in Khatian the land of Khata No. 158 is recorded in the name of Ramjas Rai and Ramcharitar Rai sons of Gauri Dayal Rai and Smt. Rekhawatia wife of Ramjatan Rai and of village Rahathus, this is again recorded as Batai Nisf.......... The respondents claim is simple and more convincing so far as the entries in Khatians are concerned. They are the accepted raiyats since the last settlement and so the commutation proceedings were rightly started. As against this clear position the appellant come forth with the story that all these respondents surrendered their land to him and as being the exlandlord he kept the land as his Bakasi and so prayed for fixation of rent under Sections 5, 6 and 7. But peculiarly enough this is simply the verbal gesture of the appellant. He is not coming forth with any papers which can slightly indicate that these raiyats have surrender their holdings to the appellant. It is also unconvincing that all the there raiyat could have surrendered the land to him; generally the lands are being surrendered due to burden of excessive rent, unproductivity of land or unprofitability or some time when the raiyats wants to shift to another place under certain pressing conditions. But none of the conditions have been brought to the notice of this Court by the appellant; rather I find that the successors interest are vehemently contesting the case on the ground of possession and title. The simple story of voluntary surrender is obviously not true because it might have been applicable to one case but not in all these three cases..... Whereas the Karamchari and Circle Inspector have found the respondents in possession of the land besides the local inquiry in favour of the respondents by the Anchal Adhikari himself. Thus the respondents are equipped with the right, title and possession which seems to have not been disturbed."The Deputy Collector, held in respect of Khata No. 158 that "the right, title and possession did not accrue to the appellant in respect of the land".16. On this documentary evidence it seems to us that the prosecution has not proved that the prosecution party was in possession of Khata No. 158 at the time of the occurrence. It is remarkable that the prosecution party did not get the record of rights amended if their story of surrender of the land by Ramcharitar in 1919 were true. We cannot understand how some canal parchas came to be issued in the name of the appellants in respect of this Khata if the prosecution side was in possession. We are impressed by the reasoning of the Deputy Collector that in the circumstance the story of surrender is unacceptable. If this is unacceptable the whole edifice erected on it falls to the ground.17. The learned counsel for the State says that there is oral evidence to show that the prosecution was in possession of this Khata but, in our opinion, in such matters oral evidence cannot override the inference available from the documentary evidence. ### Response: 0

Omnia Technologies P. Ltd Vs. W.M.A. Van Loosbroek

the Indian Parent Company.c) In all situations, PIM would be required to introduce the two parties to this Agreement, as a single entity, responsible for managing clients/prospective clients in the whole of Europe.d) All proposals, documentation submitted, would be in the name of OMNIA as the Indian Parent Company, with PIM being reflected as Sole Representative in Europe." 2. The agreement in Clauses 2 and 3 thereof set out the obligations which the respondent was to discharge and those to be discharged by the petitioner. Other conditions like remuneration etc. were also stipulated by the agreement including obligations cast upon the parties after termination of the agreement. Clause 13 of the agreement relevant in this regard, reads: "13. Obligations Upon Terminationa) The termination of this agreement shall not affect any liability of either party to the other, accruing prior to the date of termination, or arising out of this agreement.b) Upon termination, PIM agrees to immediately discontinue the use of any trademarks or trade names in whole or in part belonging to OMNIA.c) After termination PIM shall not represent, and shall not continue any practices, which might take it, appear, that he is still an authorized OMNIA agent and shall permanently discontinue any use of the word "OMNIA" thereform, all without any expenses to OMNIA.d) PIM shall return all manuals, informational materials, instruction booklets, and all data and information in printed form or stored in floppies, CD-ROMS, computer diskettes, or in any other version or medium that was given by OMNIA pursuant to this agreement, immediately on termination of this agreement. Electronic mail messages are excluded. PIM shall destroy or render unusable all other proprietary material and copies thereof, which for any reason cannot be delivered to OMNIA. In such event, PIM shall certify in writing to OMNIA that all proprietary material has been delivered to OMNIA or destroyed and that PIM has discontinued use of the same.e) Both the parties agree to fulfill all obligations to each other under all the work orders in force at the time of termination of this agreement until the completion of the services specified in the work orders." 3. It is common ground that the agreement in question was terminated by the parties in terms of another agreement dated 29th February, 2008 executed between the parties. This termination purported to be in conformity with the provisions of Clause 11 of the Original Agreement. The Petitioner-companys case in the present petition under Section 11(6) and (9) of the Arbitration and Conciliation Act, 1996 is that the respondent has committed a violation of the Original Agreement inasmuch as obligations cast upon the respondent under clause 13 of the agreement (supra) have not been discharged by the respondent thereby giving rise to disputes that are in terms of Clause 15 of the original agreement arbitrable. The petitioner-company appears to have invoked the arbitration clause and asked for appointment of an Arbitrator but since the respondent refused to do the needful, the petitioner has filed the present petition and prayed for the appointment of an independent Arbitrator to adjudicate upon the said disputes.4. Respondent has appeared and filed a counter-affidavit in which it was, inter alia, asserted that there is no subsisting `arbitrable disputes to call for the appointment of an Arbitrator. The respondent has in this regard relied upon Clause 4 of the termination agreement which reads as under: "4. Subject to the signing of this termination agreement by the parties, the parties hereby grant each other full and final discharge from all claims, rights and obligations arising out of or relating to the termination of the Representative Agreement. The parties acknowledge that thereafter no claims, rights or obligations will remain existing on whatever ground or whatever relation between the parties in respect of the issue at hand.This termination agreement constitutes the entire agreement and understanding between the parties." 5. When this petition came up for hearing before me on 15th November, 2010, it was pointed out to learned counsel for the respondent that in case this Court was to pronounce upon the effect of Clause 4 of the termination agreement finally and further in case this Court were to hold that Clause 4 did not prevent the petitioner from raising the disputes regarding post-termination obligations of the parties, the Arbitrator appointed by this Court shall have no option but to fall in line and accept that determination as final and binding on the parties. Learned counsel for the respondent was, therefore, asked to take instructions whether interpretation of Clause 4 which was by itself a disputed matter and requires to be adjudicated upon, could be left to be determined by the Arbitrator. Learned counsel for the respondent has, in response filed a letter consenting to the appointment of an Arbitrator for adjudication of all issues including the existence of arbitrable disputes by the Arbitrator so appointed. The relevant portion of the letter filed on behalf of the respondent is as under: "In this connection, learned Senior Advocate Mr. U.U. Lalit had mentioned the subject arbitration petition on Friday February 4, 2011 before Honble Justice T.S. Thakur in Court No.8 and informed the Honble Court that the Respondent has consented to the appointment of the arbitrator by the Honble Supreme Court of India and further consented to raising all issues including the existence of the arbitral dispute before the appointed arbitrator. As the power of attorney holder of the respondent is not in the country, I, the Advocate on Record of the Respondent after having taken instructions would like to place on record through this letter that: a) The Respondent has consented to the appointment of arbitratorb) the Respondent has consented to raising all the issues including the existence of the arbitral dispute before the said arbitrator."6. In the light of the above I see no reason why the present petition cannot be allowed and all disputes including the dispute regarding interpretation and effect of Clause 4 of the termination agreement referred for adjudication by arbitration.

1[ds]5. When this petition came up for hearing before me on 15th November, 2010, it was pointed out to learned counsel for the respondent that in case this Court was to pronounce upon the effect of Clause 4 of the termination agreement finally and further in case this Court were to hold that Clause 4 did not prevent the petitioner from raising the disputes regarding post-termination obligations of the parties, the Arbitrator appointed by this Court shall have no option but to fall in line and accept that determination as final and binding on the parties. Learned counsel for the respondent was, therefore, asked to take instructions whether interpretation of Clause 4 which was by itself a disputed matter and requires to be adjudicated upon, could be left to be determined by the Arbitrator. Learned counsel for the respondent has, in response filed a letter consenting to the appointment of an Arbitrator for adjudication of all issues including the existence of arbitrable disputes by the Arbitrator so appointed. The relevant portion of the letter filed on behalf of the respondent is as under: "In this connection, learned Senior Advocate Mr. U.U. Lalit had mentioned the subject arbitration petition on Friday February 4, 2011 before Honble Justice T.S. Thakur in Court No.8 and informed the Honble Court that the Respondent has consented to the appointment of the arbitrator by the Honble Supreme Court of India and further consented to raising all issues including the existence of the arbitral dispute before the appointed arbitrator. As the power of attorney holder of the respondent is not in the country, I, the Advocate on Record of the Respondent after having taken instructions would like to place on record through this letterThe Respondent has consented to the appointment of arbitratorb) the Respondent has consented to raising all the issues including the existence of the arbitral dispute before the said arbitrator."6. In the light of the above I see no reason why the present petition cannot be allowed and all disputes including the dispute regarding interpretation and effect of Clause 4 of the termination agreement referred for adjudication by arbitration.

### 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: the Indian Parent Company.c) In all situations, PIM would be required to introduce the two parties to this Agreement, as a single entity, responsible for managing clients/prospective clients in the whole of Europe.d) All proposals, documentation submitted, would be in the name of OMNIA as the Indian Parent Company, with PIM being reflected as Sole Representative in Europe." 2. The agreement in Clauses 2 and 3 thereof set out the obligations which the respondent was to discharge and those to be discharged by the petitioner. Other conditions like remuneration etc. were also stipulated by the agreement including obligations cast upon the parties after termination of the agreement. Clause 13 of the agreement relevant in this regard, reads: "13. Obligations Upon Terminationa) The termination of this agreement shall not affect any liability of either party to the other, accruing prior to the date of termination, or arising out of this agreement.b) Upon termination, PIM agrees to immediately discontinue the use of any trademarks or trade names in whole or in part belonging to OMNIA.c) After termination PIM shall not represent, and shall not continue any practices, which might take it, appear, that he is still an authorized OMNIA agent and shall permanently discontinue any use of the word "OMNIA" thereform, all without any expenses to OMNIA.d) PIM shall return all manuals, informational materials, instruction booklets, and all data and information in printed form or stored in floppies, CD-ROMS, computer diskettes, or in any other version or medium that was given by OMNIA pursuant to this agreement, immediately on termination of this agreement. Electronic mail messages are excluded. PIM shall destroy or render unusable all other proprietary material and copies thereof, which for any reason cannot be delivered to OMNIA. In such event, PIM shall certify in writing to OMNIA that all proprietary material has been delivered to OMNIA or destroyed and that PIM has discontinued use of the same.e) Both the parties agree to fulfill all obligations to each other under all the work orders in force at the time of termination of this agreement until the completion of the services specified in the work orders." 3. It is common ground that the agreement in question was terminated by the parties in terms of another agreement dated 29th February, 2008 executed between the parties. This termination purported to be in conformity with the provisions of Clause 11 of the Original Agreement. The Petitioner-companys case in the present petition under Section 11(6) and (9) of the Arbitration and Conciliation Act, 1996 is that the respondent has committed a violation of the Original Agreement inasmuch as obligations cast upon the respondent under clause 13 of the agreement (supra) have not been discharged by the respondent thereby giving rise to disputes that are in terms of Clause 15 of the original agreement arbitrable. The petitioner-company appears to have invoked the arbitration clause and asked for appointment of an Arbitrator but since the respondent refused to do the needful, the petitioner has filed the present petition and prayed for the appointment of an independent Arbitrator to adjudicate upon the said disputes.4. Respondent has appeared and filed a counter-affidavit in which it was, inter alia, asserted that there is no subsisting `arbitrable disputes to call for the appointment of an Arbitrator. The respondent has in this regard relied upon Clause 4 of the termination agreement which reads as under: "4. Subject to the signing of this termination agreement by the parties, the parties hereby grant each other full and final discharge from all claims, rights and obligations arising out of or relating to the termination of the Representative Agreement. The parties acknowledge that thereafter no claims, rights or obligations will remain existing on whatever ground or whatever relation between the parties in respect of the issue at hand.This termination agreement constitutes the entire agreement and understanding between the parties." 5. When this petition came up for hearing before me on 15th November, 2010, it was pointed out to learned counsel for the respondent that in case this Court was to pronounce upon the effect of Clause 4 of the termination agreement finally and further in case this Court were to hold that Clause 4 did not prevent the petitioner from raising the disputes regarding post-termination obligations of the parties, the Arbitrator appointed by this Court shall have no option but to fall in line and accept that determination as final and binding on the parties. Learned counsel for the respondent was, therefore, asked to take instructions whether interpretation of Clause 4 which was by itself a disputed matter and requires to be adjudicated upon, could be left to be determined by the Arbitrator. Learned counsel for the respondent has, in response filed a letter consenting to the appointment of an Arbitrator for adjudication of all issues including the existence of arbitrable disputes by the Arbitrator so appointed. The relevant portion of the letter filed on behalf of the respondent is as under: "In this connection, learned Senior Advocate Mr. U.U. Lalit had mentioned the subject arbitration petition on Friday February 4, 2011 before Honble Justice T.S. Thakur in Court No.8 and informed the Honble Court that the Respondent has consented to the appointment of the arbitrator by the Honble Supreme Court of India and further consented to raising all issues including the existence of the arbitral dispute before the appointed arbitrator. As the power of attorney holder of the respondent is not in the country, I, the Advocate on Record of the Respondent after having taken instructions would like to place on record through this letter that: a) The Respondent has consented to the appointment of arbitratorb) the Respondent has consented to raising all the issues including the existence of the arbitral dispute before the said arbitrator."6. In the light of the above I see no reason why the present petition cannot be allowed and all disputes including the dispute regarding interpretation and effect of Clause 4 of the termination agreement referred for adjudication by arbitration. ### Response: 1

Chandrika Misir & Anr Vs. Bhaiya Lal

finding. The finding on the first issue was that the defendant took actual possession of the plots in 1951-52. The finding on the second issue was that plaintiff no. 1 Chandrika Misir was a minor when Jagdamba died in 1948 and that he attained majority in the year 1955 and not before that.4. When the case again came before the learned Chief Justice for the disposal of the appeal, these findings were accepted as they were findings of fact. The only point that the High Court had to decide was whether the suit which had been filed on 5-9-1955 i.e. the year in which the plaintiff no. 1 had attained majority was in time. In an ordinary suit filed in a Civil Court for possession on the ground of dispossession the question of limitation, on the above facts, would have hardly arisen. Jagdamba had died in 1948 and plaintiff no. 1 the next reversioner came of age in 1955. The period of limitation would be 12 years and the suit would be obviously in time. But the High Court was of the view that the period of limitation was not the one which was prescribed in the Limitation Act but the one which was laid down in the Appendix to the Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 which was two years from 1-7-1952 which was the date of vesting under the U. P. Zamindari Abolition and Land Reforms Act (Act No. 1 of 1951). The High Court further held that the fact that the plaintiff no. 1 was a minor at the time of filing of the suit did not help him because Section 6 of the Indian Limitation Act, 1908 did not govern suits falling under U. P. Act No. 1 of 1951.5. Accordingly, the suit was dismissed.6. It is from this order that the present appeal has been filed by special leave. It is to be noticed that the suit had been filed in a Civil Court for possession and the Limitation Act will be the Act which will govern such a suit. It is not the case that U. P. Act No. 1 of 1951 authorises the filing of the suit in a Civil Court and prescribes a period of limitation for granting the relief of possession superseding the one prescribed by the Limitation Act. It was, therefore, perfectly arguable that if the suit is one properly entertainable by the Civil Court the period of limitation must be governed by the provisions of the Limitation Act and no other. In that case there would have been no alternative but to pass a decree for possession in favour of the plaintiffs. But the unfortunate part of the whole case is that the Civil Court had no jurisdiction at all to entertain the suit. It is true that such a contention with regard to the jurisdictions had not been raised by the defendant in the Trial Court but where the court is inherently lacking in jurisdiction the plea may be raised at any stage, and, it is conceded by Mr. Yogheshwar Prasad, even in execution proceedings on the ground that the decree was a nullity. If one reads Sections 209 and 331 of the U. P. Act No. 1 of l951 together one finds that a suit like the one before us has to be filed before a Special Court created under the Act within a period of limitation specially prescribed under the rules made under the Act and the jurisdiction of the ordinary Civil Courts is absolutely barred. S. 209 so far as we are concerned reads as follows :"209. Ejectment of persons occupying land without title.-(1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and -(a) where the land forms part of the holding of a bhumidhar, sirdar or asami, without the consent of such bhumidhar, sirdar or asami, and(b) ........................shall be liable to ejectment on the suit, in cases referred to in clause (a) above, of the bhumidhar, sirdar or asami concerned,.................., and shall also be liable to pay damages.(2) To every suit relating to a land referred to in clause (a) of sub-section (1) the State Government shall be impleaded as a necessary party."In the present case it has been held that the defendant has been retaining possession of the land contrary to law, being a trespasser; that the land is bhumidhari land and the plaintiffs are bhumidhars. Therefore, the suit was of a description falling under S. 209. Section 331 so far as it is relevant is as follows:"331. Cognizance of suits, etc., under this Act.(1) Except as provided by or under this Act no Court other than a Court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, l908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof."Schedule II at serial no. 24 shows that a suit for ejectment of persons occupying land without title under S. 209 should be filed in the court of the Assistant Collector, First Class, which is described as the Court of Original Jurisdiction. In view of Section 331 (l) quoted above it is evident that the suit made cognizable by a special court i.e. the Court of the Assistant Collector, First Class, could not be filed in a Civil Court and the Civil Court was, therefore, inherently lacking in jurisdiction to entertain such a suit. It is unfortunate that this position in law was not noticed in the several Courts through which this litigation has passed, not even by the High Court which had specifically come to the conclusion that the period of limitation was the one laid down by the rules under U. P. Act No. 1 of 1951. Since the Civil Court which entertained the suit suffered from an inherent lack of jurisdiction, the present appeal filed by the plaintiffs will have to be dismissed.

0[ds]It is to be noticed that the suit had been filed in a Civil Court for possession and the Limitation Act will be the Act which will govern such a suit. It is not the case that U. P. Act No. 1 of 1951 authorises the filing of the suit in a Civil Court and prescribes a period of limitation for granting the relief of possession superseding the one prescribed by the Limitation Act. It was, therefore, perfectly arguable that if the suit is one properly entertainable by the Civil Court the period of limitation must be governed by the provisions of the Limitation Act and no other. In that case there would have been no alternative but to pass a decree for possession in favour of the plaintiffs. But the unfortunate part of the whole case is that the Civil Court had no jurisdiction at all to entertain the suit. It is true that such a contention with regard to the jurisdictions had not been raised by the defendant in the Trial Court but where the court is inherently lacking in jurisdiction the plea may be raised at any stage, and, it is conceded by Mr. Yogheshwar Prasad, even in execution proceedings on the ground that the decree was a nullity. If one reads Sections 209 and 331 of the U. P. Act No. 1 of l951 together one finds that a suit like the one before us has to be filed before a Special Court created under the Act within a period of limitation specially prescribed under the rules made under the Act and the jurisdiction of the ordinary Civil Courts is absolutelyII at serial no. 24 shows that a suit for ejectment of persons occupying land without title under S. 209 should be filed in the court of the Assistant Collector, First Class, which is described as the Court of Original Jurisdiction. In view of Section 331 (l) quoted above it is evident that the suit made cognizable by a special court i.e. the Court of the Assistant Collector, First Class, could not be filed in a Civil Court and the Civil Court was, therefore, inherently lacking in jurisdiction to entertain such a suit. It is unfortunate that this position in law was not noticed in the several Courts through which this litigation has passed, not even by the High Court which had specifically come to the conclusion that the period of limitation was the one laid down by the rules under U. P. Act No. 1 of 1951. Since the Civil Court which entertained the suit suffered from an inherent lack of jurisdiction, the present appeal filed by the plaintiffs will have to be dismissed.

### 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: finding. The finding on the first issue was that the defendant took actual possession of the plots in 1951-52. The finding on the second issue was that plaintiff no. 1 Chandrika Misir was a minor when Jagdamba died in 1948 and that he attained majority in the year 1955 and not before that.4. When the case again came before the learned Chief Justice for the disposal of the appeal, these findings were accepted as they were findings of fact. The only point that the High Court had to decide was whether the suit which had been filed on 5-9-1955 i.e. the year in which the plaintiff no. 1 had attained majority was in time. In an ordinary suit filed in a Civil Court for possession on the ground of dispossession the question of limitation, on the above facts, would have hardly arisen. Jagdamba had died in 1948 and plaintiff no. 1 the next reversioner came of age in 1955. The period of limitation would be 12 years and the suit would be obviously in time. But the High Court was of the view that the period of limitation was not the one which was prescribed in the Limitation Act but the one which was laid down in the Appendix to the Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952 which was two years from 1-7-1952 which was the date of vesting under the U. P. Zamindari Abolition and Land Reforms Act (Act No. 1 of 1951). The High Court further held that the fact that the plaintiff no. 1 was a minor at the time of filing of the suit did not help him because Section 6 of the Indian Limitation Act, 1908 did not govern suits falling under U. P. Act No. 1 of 1951.5. Accordingly, the suit was dismissed.6. It is from this order that the present appeal has been filed by special leave. It is to be noticed that the suit had been filed in a Civil Court for possession and the Limitation Act will be the Act which will govern such a suit. It is not the case that U. P. Act No. 1 of 1951 authorises the filing of the suit in a Civil Court and prescribes a period of limitation for granting the relief of possession superseding the one prescribed by the Limitation Act. It was, therefore, perfectly arguable that if the suit is one properly entertainable by the Civil Court the period of limitation must be governed by the provisions of the Limitation Act and no other. In that case there would have been no alternative but to pass a decree for possession in favour of the plaintiffs. But the unfortunate part of the whole case is that the Civil Court had no jurisdiction at all to entertain the suit. It is true that such a contention with regard to the jurisdictions had not been raised by the defendant in the Trial Court but where the court is inherently lacking in jurisdiction the plea may be raised at any stage, and, it is conceded by Mr. Yogheshwar Prasad, even in execution proceedings on the ground that the decree was a nullity. If one reads Sections 209 and 331 of the U. P. Act No. 1 of l951 together one finds that a suit like the one before us has to be filed before a Special Court created under the Act within a period of limitation specially prescribed under the rules made under the Act and the jurisdiction of the ordinary Civil Courts is absolutely barred. S. 209 so far as we are concerned reads as follows :"209. Ejectment of persons occupying land without title.-(1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and -(a) where the land forms part of the holding of a bhumidhar, sirdar or asami, without the consent of such bhumidhar, sirdar or asami, and(b) ........................shall be liable to ejectment on the suit, in cases referred to in clause (a) above, of the bhumidhar, sirdar or asami concerned,.................., and shall also be liable to pay damages.(2) To every suit relating to a land referred to in clause (a) of sub-section (1) the State Government shall be impleaded as a necessary party."In the present case it has been held that the defendant has been retaining possession of the land contrary to law, being a trespasser; that the land is bhumidhari land and the plaintiffs are bhumidhars. Therefore, the suit was of a description falling under S. 209. Section 331 so far as it is relevant is as follows:"331. Cognizance of suits, etc., under this Act.(1) Except as provided by or under this Act no Court other than a Court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, l908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof."Schedule II at serial no. 24 shows that a suit for ejectment of persons occupying land without title under S. 209 should be filed in the court of the Assistant Collector, First Class, which is described as the Court of Original Jurisdiction. In view of Section 331 (l) quoted above it is evident that the suit made cognizable by a special court i.e. the Court of the Assistant Collector, First Class, could not be filed in a Civil Court and the Civil Court was, therefore, inherently lacking in jurisdiction to entertain such a suit. It is unfortunate that this position in law was not noticed in the several Courts through which this litigation has passed, not even by the High Court which had specifically come to the conclusion that the period of limitation was the one laid down by the rules under U. P. Act No. 1 of 1951. Since the Civil Court which entertained the suit suffered from an inherent lack of jurisdiction, the present appeal filed by the plaintiffs will have to be dismissed. ### Response: 0

M/s Tirupati Steels Vs. M/s Shubh Industrial Component & Anr

parties are governed by the provisions of the MSMED Act, 2006. The appellant herein preferred a claim petition before the Micro and Small Enterprises Facilitation Council constituted under the MSMED Act, 2006 for recovery of Rs. 1,40,13,053/- and interest amounting to Rs. 1,32,20,100/- which comes to a total amounting to Rs. 2,72,33,153/-. On the failure of conciliation, the dispute was referred to the Arbitrator. The Arbitrator, appointed through the MSME Facilitation Council at Chandigarh, passed an award in favour of the appellant vide award dated 16.07.2018. Thereafter, the appellant herein filed the execution petition before the District and Sessions Judge, Faridabad. Respondent No.1 herein filed an application under section 34 of the Arbitration Act, 1996 for setting aside the arbitral award before the Special Commercial Court, Gurugram. That the appellant herein submitted an application under section 19 of the MSMED Act, 2006 directing respondent No. 1 herein – judgment debtor to deposit 75% of the arbitral award. The learned Additional District Judge cum Special Commercial Court, Gurugram allowed the said application moved by the appellant herein granting six weeks time to the Respondent No.1 herein to deposit 75% of the arbitral award before the application filed under section 34 of the Arbitration Act, 1996 could be entertained by the Court. Feeling aggrieved with the order passed by the Special Commercial Court, Gurugram directing the judgment debtor – respondent No. 1 herein to deposit 75% of the arbitral award and on that condition the petition under section 34 of the Arbitration Act, 1996 was to be entertained, which order was passed on considering section 19 of the Arbitration Act, 1996, respondent No. 1 filed the commercial appeal being FAO--COM/4/2019 before the High Court. By the impugned order, considering the decision of the Division Bench of the High Court rendered in CWP No. 23368 of 2015 (M/s Mahesh Kumar Singla and another Vs. Union of India and others), by which, the Division Bench, while upholding the vires of section 19 of the MSMED Act, 2006, held that the pre-deposit of 75% of the arbitral award under section 19 of the MSMED Act, 2006 is directory and not mandatory, has permitted the proceedings under section 34 of the Arbitration Act, 1996 to continue without insistence on making a pre--deposit of 75% of the awarded amount. Feeling aggrieved and dissatisfied with the impugned order passed by the Division Bench of the High Court permitting the proceedings under section 34 of the Arbitration Act, 1996, to go on without insistence for making pre--deposit of 75% of the awarded amount, the appellant herein – original judgment creditor has preferred the present appeal. 3. We have heard learned counsel appearing on behalf of the respective parties at length. 4. The question which is posed for consideration of this Court is, whether, the pre--deposit of 75% of the awarded amount as per section 19 of the MSMED Act, 2006, while challenge to the award under section 34 of the Arbitration Act, 1996, is made mandatory or not, is now no longer res integra in view of the decision of this Court in the case of Gujarat State Disaster Management Authority Vs. Aska Equipments Limited; (2022) 1 SCC 61 . While interpreting section 19 of the MSMED Act, 2006 and after taking into consideration the earlier decision of this Court in the case of Goodyear (India) Ltd. Vs. Norton Intech Rubbers (P) Ltd.; (2012) 6 SCC 345, it is observed and held that the requirement of deposit of 75% of the amount in terms of the award as a pre--deposit as per section 19 of the MSMED Act, is mandatory. It is also observed that however, at the same time, considering the hardship which may be projected before the appellate court and if the appellate court is satisfied that there shall be undue hardship caused to the appellant/applicant to deposit 75% of the awarded amount as a pre--deposit at a time, the court may allow the pre--deposit to be made in instalments. Therefore, it is specifically observed and held that pre deposit of 75% of the awarded amount under section 19 of the MSMED Act, 2006 is a mandatory requirement. In para 13 of the aforesaid judgment, it is observed and held as under:- 13. On a plain/fair reading of Section 19 of the MSME Act, 2006, reproduced hereinabove, at the time/before entertaining the application for setting aside the award made under Section 34 of the Arbitration and Conciliation Act, the appellantapplicant has to deposit 75% of the amount in terms of the award as a pre--deposit. The requirement of deposit of 75% of the amount in terms of the award as a pre-deposit is mandatory. However, at the same time, considering the hardship which may be projected before the appellate court and if the appellate court is satisfied that there shall be undue hardship caused to the appellant-applicant to deposit 75% of the awarded amount as a pre--deposit at a time, the court may allow the pre--deposit to be made in instalments. 5. In view of the aforesaid decision of this Court, the impugned order passed by the High Court permitting the proceedings under section 34 of the Arbitration Act, 1996 without insistence for making pre--deposit of 75% of the awarded amount is unsustainable and the same deserves to be quashed and set aside. As observed hereinabove, while passing the impugned order, the Division Bench of the High Court has relied upon an earlier decision of the Division Bench in the case of M/s Mahesh Kumar Singla (supra) which has taken a contrary view. Therefore, the decision of the Division Bench in the case of M/s Mahesh Kumar Singla (supra), which has been relied upon by the Division Bench of the High Court while passing the impugned order, is held to be not good law and is specifically overruled to the extent that it holds that pre-deposit of 75% of the awarded amount under section 19 of the MSMED Act, 2006, is directory and not a mandatory requirement.

1[ds]4. The question which is posed for consideration of this Court is, whether, the pre--deposit of 75% of the awarded amount as per section 19 of the MSMED Act, 2006, while challenge to the award under section 34 of the Arbitration Act, 1996, is made mandatory or not, is now no longer res integra in view of the decision of this Court in the case of Gujarat State Disaster Management Authority Vs. Aska Equipments Limited; (2022) 1 SCC 61 . While interpreting section 19 of the MSMED Act, 2006 and after taking into consideration the earlier decision of this Court in the case of Goodyear (India) Ltd. Vs. Norton Intech Rubbers (P) Ltd.; (2012) 6 SCC 345, it is observed and held that the requirement of deposit of 75% of the amount in terms of the award as a pre--deposit as per section 19 of the MSMED Act, is mandatory. It is also observed that however, at the same time, considering the hardship which may be projected before the appellate court and if the appellate court is satisfied that there shall be undue hardship caused to the appellant/applicant to deposit 75% of the awarded amount as a pre--deposit at a time, the court may allow the pre--deposit to be made in instalments. Therefore, it is specifically observed and held that pre deposit of 75% of the awarded amount under section 19 of the MSMED Act, 2006 is a mandatory requirement. In para 13 of the aforesaid judgment, it is observed and held as under:-13. On a plain/fair reading of Section 19 of the MSME Act, 2006, reproduced hereinabove, at the time/before entertaining the application for setting aside the award made under Section 34 of the Arbitration and Conciliation Act, the appellantapplicant has to deposit 75% of the amount in terms of the award as a pre--deposit. The requirement of deposit of 75% of the amount in terms of the award as a pre-deposit is mandatory. However, at the same time, considering the hardship which may be projected before the appellate court and if the appellate court is satisfied that there shall be undue hardship caused to the appellant-applicant to deposit 75% of the awarded amount as a pre--deposit at a time, the court may allow the pre--deposit to be made in instalments.5. In view of the aforesaid decision of this Court, the impugned order passed by the High Court permitting the proceedings under section 34 of the Arbitration Act, 1996 without insistence for making pre--deposit of 75% of the awarded amount is unsustainable and the same deserves to be quashed and set aside. As observed hereinabove, while passing the impugned order, the Division Bench of the High Court has relied upon an earlier decision of the Division Bench in the case of M/s Mahesh Kumar Singla (supra) which has taken a contrary view. Therefore, the decision of the Division Bench in the case of M/s Mahesh Kumar Singla (supra), which has been relied upon by the Division Bench of the High Court while passing the impugned order, is held to be not good law and is specifically overruled to the extent that it holds that pre-deposit of 75% of the awarded amount under section 19 of the MSMED Act, 2006, is directory and not a mandatory requirement.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: parties are governed by the provisions of the MSMED Act, 2006. The appellant herein preferred a claim petition before the Micro and Small Enterprises Facilitation Council constituted under the MSMED Act, 2006 for recovery of Rs. 1,40,13,053/- and interest amounting to Rs. 1,32,20,100/- which comes to a total amounting to Rs. 2,72,33,153/-. On the failure of conciliation, the dispute was referred to the Arbitrator. The Arbitrator, appointed through the MSME Facilitation Council at Chandigarh, passed an award in favour of the appellant vide award dated 16.07.2018. Thereafter, the appellant herein filed the execution petition before the District and Sessions Judge, Faridabad. Respondent No.1 herein filed an application under section 34 of the Arbitration Act, 1996 for setting aside the arbitral award before the Special Commercial Court, Gurugram. That the appellant herein submitted an application under section 19 of the MSMED Act, 2006 directing respondent No. 1 herein – judgment debtor to deposit 75% of the arbitral award. The learned Additional District Judge cum Special Commercial Court, Gurugram allowed the said application moved by the appellant herein granting six weeks time to the Respondent No.1 herein to deposit 75% of the arbitral award before the application filed under section 34 of the Arbitration Act, 1996 could be entertained by the Court. Feeling aggrieved with the order passed by the Special Commercial Court, Gurugram directing the judgment debtor – respondent No. 1 herein to deposit 75% of the arbitral award and on that condition the petition under section 34 of the Arbitration Act, 1996 was to be entertained, which order was passed on considering section 19 of the Arbitration Act, 1996, respondent No. 1 filed the commercial appeal being FAO--COM/4/2019 before the High Court. By the impugned order, considering the decision of the Division Bench of the High Court rendered in CWP No. 23368 of 2015 (M/s Mahesh Kumar Singla and another Vs. Union of India and others), by which, the Division Bench, while upholding the vires of section 19 of the MSMED Act, 2006, held that the pre-deposit of 75% of the arbitral award under section 19 of the MSMED Act, 2006 is directory and not mandatory, has permitted the proceedings under section 34 of the Arbitration Act, 1996 to continue without insistence on making a pre--deposit of 75% of the awarded amount. Feeling aggrieved and dissatisfied with the impugned order passed by the Division Bench of the High Court permitting the proceedings under section 34 of the Arbitration Act, 1996, to go on without insistence for making pre--deposit of 75% of the awarded amount, the appellant herein – original judgment creditor has preferred the present appeal. 3. We have heard learned counsel appearing on behalf of the respective parties at length. 4. The question which is posed for consideration of this Court is, whether, the pre--deposit of 75% of the awarded amount as per section 19 of the MSMED Act, 2006, while challenge to the award under section 34 of the Arbitration Act, 1996, is made mandatory or not, is now no longer res integra in view of the decision of this Court in the case of Gujarat State Disaster Management Authority Vs. Aska Equipments Limited; (2022) 1 SCC 61 . While interpreting section 19 of the MSMED Act, 2006 and after taking into consideration the earlier decision of this Court in the case of Goodyear (India) Ltd. Vs. Norton Intech Rubbers (P) Ltd.; (2012) 6 SCC 345, it is observed and held that the requirement of deposit of 75% of the amount in terms of the award as a pre--deposit as per section 19 of the MSMED Act, is mandatory. It is also observed that however, at the same time, considering the hardship which may be projected before the appellate court and if the appellate court is satisfied that there shall be undue hardship caused to the appellant/applicant to deposit 75% of the awarded amount as a pre--deposit at a time, the court may allow the pre--deposit to be made in instalments. Therefore, it is specifically observed and held that pre deposit of 75% of the awarded amount under section 19 of the MSMED Act, 2006 is a mandatory requirement. In para 13 of the aforesaid judgment, it is observed and held as under:- 13. On a plain/fair reading of Section 19 of the MSME Act, 2006, reproduced hereinabove, at the time/before entertaining the application for setting aside the award made under Section 34 of the Arbitration and Conciliation Act, the appellantapplicant has to deposit 75% of the amount in terms of the award as a pre--deposit. The requirement of deposit of 75% of the amount in terms of the award as a pre-deposit is mandatory. However, at the same time, considering the hardship which may be projected before the appellate court and if the appellate court is satisfied that there shall be undue hardship caused to the appellant-applicant to deposit 75% of the awarded amount as a pre--deposit at a time, the court may allow the pre--deposit to be made in instalments. 5. In view of the aforesaid decision of this Court, the impugned order passed by the High Court permitting the proceedings under section 34 of the Arbitration Act, 1996 without insistence for making pre--deposit of 75% of the awarded amount is unsustainable and the same deserves to be quashed and set aside. As observed hereinabove, while passing the impugned order, the Division Bench of the High Court has relied upon an earlier decision of the Division Bench in the case of M/s Mahesh Kumar Singla (supra) which has taken a contrary view. Therefore, the decision of the Division Bench in the case of M/s Mahesh Kumar Singla (supra), which has been relied upon by the Division Bench of the High Court while passing the impugned order, is held to be not good law and is specifically overruled to the extent that it holds that pre-deposit of 75% of the awarded amount under section 19 of the MSMED Act, 2006, is directory and not a mandatory requirement. ### Response: 1

KERALA AYURVEDA PARAMPARYA VAIDYA FORUM Vs. STATE OF KERALA

to be registered, there is no question of getting the protection under sub-section (3) of Section 17 of the said Act. It is to be stated here that there is also no challenge as to the validity of the said Central Act, 1970. The decision of the Delhi High Court therefore cannot be assailed by the appellants. We may indicate here that it has been submitted by Mr Mehta and also by Ms Sona Khan appearing in the appeal arising out of Special Leave Petition No. 6167 of 1993 that proper consideration had not been given to the standard of education imparted by the said Hindi Sahitya Sammelan, Prayag and expertise acquired by the holders of the aforesaid degrees awarded by the said institution. In any event, when proper medical facilities have not been made available to a large number of poorer sections of the society, the ban imposed on the practitioners like the writ petitioners rendering useful service to the needy and poor people was wholly unjustified. It is not necessary for this Court to consider such submissions because the same remains in the realm of policy decision of other constitutional functionaries. We may also indicate here that what constitutes proper education and requisite expertise for a practitioner in Indian Medicine, must be left to the proper authority having requisite knowledge in the subject. As the decision of the Delhi High Court is justified on the face of legal position flowing from the said Central Act of 1970, we do not think that any interference by this Court is called for. These appeals therefore are dismissed without any order as to costs.?16. It would be relevant to quote the following decision in Dr. Sarwan Singh Dardi vs. State of Punjab and Others AIR 1987 P&H 81 wherein it was held as under:-?12. In view of the clear provision in the two Central Acts, namely, S. 15, sub-sec. (2)(b) of 1956 Act and S. 17 sub-sec. (2)(b) of 1970 Act, no person who is not qualified in the system of Modern Medicine and is not registered as such, either in the State Register or the Central Register, is entitled to practice modern system of medicine. Same is the case regarding right to practice the system of Indian medicine namely, that no person who is not possessed of requisite qualification envisaged in the 1970 Act or a like legislation by a State Legislature and is registered as such is entitled to practice the system of Indian medicine.?17. Similarly, in Ishaq Husain Razvi vs. State of U.P. and Others AIR 1993 All. 283 it was held as under:-?10….No doubt the Indian Medicines Central Council may further include degrees and diplomas of other recognized Universities and Institutions in the schedule of the Act, for registration as Ayurvedic/Unani Tibbi medical practitioners. The petitioner has failed to show that he possessed requisite recognized qualification for registration entitling him for practicing in Ayurvedic system of medicines….?18. In our country, the qualified practitioners are much less than the required number. Earlier, there were very few Institutions imparting teaching and training to the Doctors, Vaidyas and Hakimis but the situation has changed and there are quite a good number of Institutions imparting education in indigenous medicines. Even after 70 years of independence, the persons having little knowledge or having no recognized or approved qualification are practicing medicine and playing with the lives of thousands and millions of people. The right to practice any profession or to carry on any occupation, trade or business is no doubt a fundamental right guaranteed under the Constitution. But that right is subject to any law relating to the professional or technical qualification necessary for practicing any profession or carrying on any occupation or trade or business. The regulatory measures on the exercise of this right both with regard to the standard of professional qualifications and professional conduct have been applied keeping in view not only the right of the medical practitioners but also the right to life and proper health care of persons who need medical care and treatment.Conclusion:19. In our country, the numbers of qualified medical practitioners have been much less than the required number of such persons. The scarcity of qualified medical practitioner was previously quite large since there were very few institutions imparting teaching and training to Doctors, Vaidyas, Hakims etc. The position has now changed and there are quite a good number of medical colleges imparting education in various streams of medicine. No doubt, now there are a good numbers of such institutions training qualified medical practitioners at number of places. The persons having no recognized and approved qualifications, having little knowledge about the indigenous medicines, are becoming medical practitioners and playing with the lives of thousands and millions of people. Some time such quacks commit blunders and precious lives are lost.20. The government had been vigilant all along to stop such quackery. A number of unqualified, untrained quacks are posing a great risk to the entire society and playing with the lives of people without having the requisite training and education in the science from approved institutions. The Travancore-Cochin Medical Practitioners Act, 1953 as well as the Indian Medicine Central Council Act, 1970 were also enacted on the similar lines. Every practitioner shall be deemed to be a practitioner registered under the Act if at the commencement of this Act, his name stands entered in the appropriate register maintained under the said Act and every certificate of registration issued to every such practitioner shall be deemed to be a certificate of registration issued under this Act. But in the present case, the appellants herein have failed to show that they possessed requisite recognized qualification for registration entitling them to practice Indian system of medicines or their names have been entered in the appropriate registers after the commencement of this Act.21. In view of the above discussion, we are of the considered opinion that the High Court was right in dismissing the petitions filed by the appellants herein.

0[ds]Even though the impact of the provisions of the IMCC Act was not considered but the provision of Section 17 of the IMCC Act also provides for recognition of medical qualification included in Second, Third and Fourth Schedules to be sufficient qualification for enrolment on any State Register of Indian Medicine. Thus the same principles as had been laid down in Dr. A.K. Sabhapathy (supra), as reproduced above, will also apply.In our country, the qualified practitioners are much less than the required number. Earlier, there were very few Institutions imparting teaching and training to the Doctors, Vaidyas and Hakimis but the situation has changed and there are quite a good number of Institutions imparting education in indigenous medicines. Even after 70 years of independence, the persons having little knowledge or having no recognized or approved qualification are practicing medicine and playing with the lives of thousands and millions of people. The right to practice any profession or to carry on any occupation, trade or business is no doubt a fundamental right guaranteed under the Constitution. But that right is subject to any law relating to the professional or technical qualification necessary for practicing any profession or carrying on any occupation or trade or business. The regulatory measures on the exercise of this right both with regard to the standard of professional qualifications and professional conduct have been applied keeping in view not only the right of the medical practitioners but also the right to life and proper health care of persons who need medical care and treatment.In our country, the numbers of qualified medical practitioners have been much less than the required number of such persons. The scarcity of qualified medical practitioner was previously quite large since there were very few institutions imparting teaching and training to Doctors, Vaidyas, Hakims etc. The position has now changed and there are quite a good number of medical colleges imparting education in various streams of medicine. No doubt, now there are a good numbers of such institutions training qualified medical practitioners at number of places. The persons having no recognized and approved qualifications, having little knowledge about the indigenous medicines, are becoming medical practitioners and playing with the lives of thousands and millions of people. Some time such quacks commit blunders and precious lives areThe government had been vigilant all along to stop such quackery. A number of unqualified, untrained quacks are posing a great risk to the entire society and playing with the lives of people without having the requisite training and education in the science from approved institutions. The Travancore-Cochin Medical Practitioners Act, 1953 as well as the Indian Medicine Central Council Act, 1970 were also enacted on the similar lines. Every practitioner shall be deemed to be a practitioner registered under the Act if at the commencement of this Act, his name stands entered in the appropriate register maintained under the said Act and every certificate of registration issued to every such practitioner shall be deemed to be a certificate of registration issued under this Act. But in the present case, the appellants herein have failed to show that they possessed requisite recognized qualification for registration entitling them to practice Indian system of medicines or their names have been entered in the appropriate registers after the commencement of this Act.In view of the above discussion, we are of the considered opinion that the High Court was right in dismissing the petitions filed by the appellants herein.

### 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 be registered, there is no question of getting the protection under sub-section (3) of Section 17 of the said Act. It is to be stated here that there is also no challenge as to the validity of the said Central Act, 1970. The decision of the Delhi High Court therefore cannot be assailed by the appellants. We may indicate here that it has been submitted by Mr Mehta and also by Ms Sona Khan appearing in the appeal arising out of Special Leave Petition No. 6167 of 1993 that proper consideration had not been given to the standard of education imparted by the said Hindi Sahitya Sammelan, Prayag and expertise acquired by the holders of the aforesaid degrees awarded by the said institution. In any event, when proper medical facilities have not been made available to a large number of poorer sections of the society, the ban imposed on the practitioners like the writ petitioners rendering useful service to the needy and poor people was wholly unjustified. It is not necessary for this Court to consider such submissions because the same remains in the realm of policy decision of other constitutional functionaries. We may also indicate here that what constitutes proper education and requisite expertise for a practitioner in Indian Medicine, must be left to the proper authority having requisite knowledge in the subject. As the decision of the Delhi High Court is justified on the face of legal position flowing from the said Central Act of 1970, we do not think that any interference by this Court is called for. These appeals therefore are dismissed without any order as to costs.?16. It would be relevant to quote the following decision in Dr. Sarwan Singh Dardi vs. State of Punjab and Others AIR 1987 P&H 81 wherein it was held as under:-?12. In view of the clear provision in the two Central Acts, namely, S. 15, sub-sec. (2)(b) of 1956 Act and S. 17 sub-sec. (2)(b) of 1970 Act, no person who is not qualified in the system of Modern Medicine and is not registered as such, either in the State Register or the Central Register, is entitled to practice modern system of medicine. Same is the case regarding right to practice the system of Indian medicine namely, that no person who is not possessed of requisite qualification envisaged in the 1970 Act or a like legislation by a State Legislature and is registered as such is entitled to practice the system of Indian medicine.?17. Similarly, in Ishaq Husain Razvi vs. State of U.P. and Others AIR 1993 All. 283 it was held as under:-?10….No doubt the Indian Medicines Central Council may further include degrees and diplomas of other recognized Universities and Institutions in the schedule of the Act, for registration as Ayurvedic/Unani Tibbi medical practitioners. The petitioner has failed to show that he possessed requisite recognized qualification for registration entitling him for practicing in Ayurvedic system of medicines….?18. In our country, the qualified practitioners are much less than the required number. Earlier, there were very few Institutions imparting teaching and training to the Doctors, Vaidyas and Hakimis but the situation has changed and there are quite a good number of Institutions imparting education in indigenous medicines. Even after 70 years of independence, the persons having little knowledge or having no recognized or approved qualification are practicing medicine and playing with the lives of thousands and millions of people. The right to practice any profession or to carry on any occupation, trade or business is no doubt a fundamental right guaranteed under the Constitution. But that right is subject to any law relating to the professional or technical qualification necessary for practicing any profession or carrying on any occupation or trade or business. The regulatory measures on the exercise of this right both with regard to the standard of professional qualifications and professional conduct have been applied keeping in view not only the right of the medical practitioners but also the right to life and proper health care of persons who need medical care and treatment.Conclusion:19. In our country, the numbers of qualified medical practitioners have been much less than the required number of such persons. The scarcity of qualified medical practitioner was previously quite large since there were very few institutions imparting teaching and training to Doctors, Vaidyas, Hakims etc. The position has now changed and there are quite a good number of medical colleges imparting education in various streams of medicine. No doubt, now there are a good numbers of such institutions training qualified medical practitioners at number of places. The persons having no recognized and approved qualifications, having little knowledge about the indigenous medicines, are becoming medical practitioners and playing with the lives of thousands and millions of people. Some time such quacks commit blunders and precious lives are lost.20. The government had been vigilant all along to stop such quackery. A number of unqualified, untrained quacks are posing a great risk to the entire society and playing with the lives of people without having the requisite training and education in the science from approved institutions. The Travancore-Cochin Medical Practitioners Act, 1953 as well as the Indian Medicine Central Council Act, 1970 were also enacted on the similar lines. Every practitioner shall be deemed to be a practitioner registered under the Act if at the commencement of this Act, his name stands entered in the appropriate register maintained under the said Act and every certificate of registration issued to every such practitioner shall be deemed to be a certificate of registration issued under this Act. But in the present case, the appellants herein have failed to show that they possessed requisite recognized qualification for registration entitling them to practice Indian system of medicines or their names have been entered in the appropriate registers after the commencement of this Act.21. In view of the above discussion, we are of the considered opinion that the High Court was right in dismissing the petitions filed by the appellants herein. ### Response: 0

Sita Ram Vs. Balbir @ Bali

that there is no jurisdiction to commit him for contempt as distinguished from a breach of the injunction, which has a technical meaning. A motion to commit a man for breach of an injunction, which is technically wrong unless he is bound by the injunction, is one thing; and a motion to commit a man for contempt of court, not because he is bound by the injunction by being party to the cause, but because he is conducting himself so as to obstruct the course of justice, is another and a totally different thing. The difference is very marked. In the one case the party who is bound by the injunction is proceeded against for the purpose of enforcing the Order of the Court for the benefit of the person who got it. In the other case, the Court will not allow its process to be set at naught and treated with contempt. B] In Z Ltd. v. A, (1982) 1 All ER 556 the plaintiff had obtained injunction against certain defendants and the assets of one such defendant against whom the injunction was granted, were held by a bank. The bank was served with a copy of the injunction but the concerned defendant had not yet been served. While considering the question whether any disposal of assets belonging to the defendant by the bank would make it liable for committing contempt of Court, it was stated as under: I think that the following propositions may be stated as to the consequences which ensue when there are acts or omissions which are contrary to the terms of injunction. (1) The person against whom the Order is made will be liable for contempt of Court if he acts in breach of the Order after having notice of it. (2) A third party will also be liable if he knowingly assists in the breach, that is to say if knowing the terms of the injunction he willfully assists the person to whom it was directed to disobey it. This will be so whether or not the person enjoined has had notice of the injunction... I will give my reasons for the second proposition and take first the question of prior notice to the defendant. It was argued that the liability of the third person arose because he was treated as aiding and abetting the defendant (i.e. was an accessory) and as the defendant could himself not be in breach unless he had notice it followed that there was no offence to which the third party could be an accessory. In my opinion this argument misunderstands the true nature of the liability of the third party. He is liable for contempt of court committed by himself. It is true that his conduct may very often be seen as possessing a dual character of contempt of court by himself and aiding and abetting the contempt by another, but the conduct will always amount to contempt by himself. It will be conduct which knowingly interferes with the administration of justice by causing the Order of the court to be thwarted. C] The extent of liability of third party in such actions was considered by the House of Lords in Attorney General v. Times Newspapers Ltd. and another, (1991) 2 All ER 398. In that case the Attorney General had brought action against two newspapers seeking permanent injunction restraining them from publishing material from a book written by a person who was formerly a member of the security service and by terms of his employment was bound by confidentiality which would stand breached if his memoirs were published. While the interlocutory injunctions restraining publication of the material pending trial of such action was granted against those two newspapers, three other newspapers published extensive extracts and summaries of the book following which proceedings for criminal contempt against them were brought by the Attorney General. At the trial of those proceedings those three other newspapers were held to be guilty of criminal contempt. Lord Brandon of Oakbrook concluded as under: ..................The claims of the Attorney General in the confidentiality actions were for permanent injunctions restraining the defendants from publishing what may conveniently be called Spycatcher material. The purpose of the Millet injunctions was to prevent the publication of any such material pending the trial of the confidentiality actions. The consequence of the publication of Spycatcher material by the publishers and editor of the Sunday Times before the trial of the confidentiality actions was to nullify, in part at least, the purpose of such trial because it put into the public domain part of the material which it was claimed by the Attorney General in the confidentiality actions ought to remain confidential. It follows that the conduct of the publishers and editor of the Sunday Times constituted the actus reus of impeding or interfering with the administation of justice by the court in the confidentiality actions. D] In a separate concurring opinion Lord Jauncey of Tullichettle stated as under: I turn to consider whether there is any reason why established principle should not be applied to the situation in this case. I do not accept the propostion that to apply established principles in the foregoing circumstances would effectively be to convert every injuction from an order in personam to an order contra mundum. That proposition ignores the distinction between the breach of an order by the person named therein and interference with the course of justice resulting from a frustration of the order by the third party. 25. In our view, the Medical Professionals namely Dr. Munish Prabhakar and Dr. K.S. Sachdev extended medical asylum to the respondent without there being any reason or medical condition justifying prolonged admission of the respondent as an indoor patient as a cover to defeat the Orders passed by this Court and the Trial Court, as stated above and thereby aided and assisted the respondent in violating the Order of this Court. By such conduct these Medical Professionals have obstructed administration of justice.

1[ds]21. The explanation offered by Dr. Munish Prabhakar and Dr. Sachdev that the respondent trapped the hospital and by non-payment of the bills kept prolonging his stay in the hospital does not inspire confidence at all. If the hospital was really a victim of the machinations of the respondent, at the first opportunity i.e. when requisition was made by the police on 13.02.2015, the hospital would have responded immediately. The requisition dated 13.02.2015 had informed the hospital that respondent was a proclaimed offender and that his custody was required. This requisition was close on the heels of the medical certificate dated 07.02.2015 and if that certificate was a correct one, the time was ripe for discharge of the respondent. However, as stated by Shashank Anand in his affidavit dated 02.07.2015, the hospital refused to discharge the respondent. The theory that the hospital was trapped by the designs of the respondent is a mere eye-wash and we reject the same. Thus, the inescapable conclusion is that the hospital extended protection and asylum to the respondent to defeat the Order passed by this Court as well as those passed by the Trial Court and thereby obstructed administration of justice22. Dr. Munish Prabhakar has been Medical Director of the hospital and as submitted by learned Senior Counsel on his behalf, he receives salary and some percentage of consultation charges recovered from the patients. Dr. K.S. Sachdev, on the other hand, has been the Managing Director of the Company which owns and runs said hospital. We have found that the continued admission for such a long period as indoor patient was not justifiable for any reason or medical condition of the respondent. Both these medical professionals are responsible for such prolonged admission which was actuated by only one reason which was to extend medical asylum to the respondent as a cover to defeat the orders passed by this Court and the Trial Court. In this process, these medical professionals not only helped the respondent in violating the Order of this court but they also obstructed administration of justice25. In our view, the Medical Professionals namely Dr. Munish Prabhakar and Dr. K.S. Sachdev extended medical asylum to the respondent without there being any reason or medical condition justifying prolonged admission of the respondent as an indoor patient as a cover to defeat the Orders passed by this Court and the Trial Court, as stated above and thereby aided and assisted the respondent in violating the Order of this Court. By such conduct these Medical Professionals have obstructed administration of justice

### 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: that there is no jurisdiction to commit him for contempt as distinguished from a breach of the injunction, which has a technical meaning. A motion to commit a man for breach of an injunction, which is technically wrong unless he is bound by the injunction, is one thing; and a motion to commit a man for contempt of court, not because he is bound by the injunction by being party to the cause, but because he is conducting himself so as to obstruct the course of justice, is another and a totally different thing. The difference is very marked. In the one case the party who is bound by the injunction is proceeded against for the purpose of enforcing the Order of the Court for the benefit of the person who got it. In the other case, the Court will not allow its process to be set at naught and treated with contempt. B] In Z Ltd. v. A, (1982) 1 All ER 556 the plaintiff had obtained injunction against certain defendants and the assets of one such defendant against whom the injunction was granted, were held by a bank. The bank was served with a copy of the injunction but the concerned defendant had not yet been served. While considering the question whether any disposal of assets belonging to the defendant by the bank would make it liable for committing contempt of Court, it was stated as under: I think that the following propositions may be stated as to the consequences which ensue when there are acts or omissions which are contrary to the terms of injunction. (1) The person against whom the Order is made will be liable for contempt of Court if he acts in breach of the Order after having notice of it. (2) A third party will also be liable if he knowingly assists in the breach, that is to say if knowing the terms of the injunction he willfully assists the person to whom it was directed to disobey it. This will be so whether or not the person enjoined has had notice of the injunction... I will give my reasons for the second proposition and take first the question of prior notice to the defendant. It was argued that the liability of the third person arose because he was treated as aiding and abetting the defendant (i.e. was an accessory) and as the defendant could himself not be in breach unless he had notice it followed that there was no offence to which the third party could be an accessory. In my opinion this argument misunderstands the true nature of the liability of the third party. He is liable for contempt of court committed by himself. It is true that his conduct may very often be seen as possessing a dual character of contempt of court by himself and aiding and abetting the contempt by another, but the conduct will always amount to contempt by himself. It will be conduct which knowingly interferes with the administration of justice by causing the Order of the court to be thwarted. C] The extent of liability of third party in such actions was considered by the House of Lords in Attorney General v. Times Newspapers Ltd. and another, (1991) 2 All ER 398. In that case the Attorney General had brought action against two newspapers seeking permanent injunction restraining them from publishing material from a book written by a person who was formerly a member of the security service and by terms of his employment was bound by confidentiality which would stand breached if his memoirs were published. While the interlocutory injunctions restraining publication of the material pending trial of such action was granted against those two newspapers, three other newspapers published extensive extracts and summaries of the book following which proceedings for criminal contempt against them were brought by the Attorney General. At the trial of those proceedings those three other newspapers were held to be guilty of criminal contempt. Lord Brandon of Oakbrook concluded as under: ..................The claims of the Attorney General in the confidentiality actions were for permanent injunctions restraining the defendants from publishing what may conveniently be called Spycatcher material. The purpose of the Millet injunctions was to prevent the publication of any such material pending the trial of the confidentiality actions. The consequence of the publication of Spycatcher material by the publishers and editor of the Sunday Times before the trial of the confidentiality actions was to nullify, in part at least, the purpose of such trial because it put into the public domain part of the material which it was claimed by the Attorney General in the confidentiality actions ought to remain confidential. It follows that the conduct of the publishers and editor of the Sunday Times constituted the actus reus of impeding or interfering with the administation of justice by the court in the confidentiality actions. D] In a separate concurring opinion Lord Jauncey of Tullichettle stated as under: I turn to consider whether there is any reason why established principle should not be applied to the situation in this case. I do not accept the propostion that to apply established principles in the foregoing circumstances would effectively be to convert every injuction from an order in personam to an order contra mundum. That proposition ignores the distinction between the breach of an order by the person named therein and interference with the course of justice resulting from a frustration of the order by the third party. 25. In our view, the Medical Professionals namely Dr. Munish Prabhakar and Dr. K.S. Sachdev extended medical asylum to the respondent without there being any reason or medical condition justifying prolonged admission of the respondent as an indoor patient as a cover to defeat the Orders passed by this Court and the Trial Court, as stated above and thereby aided and assisted the respondent in violating the Order of this Court. By such conduct these Medical Professionals have obstructed administration of justice. ### Response: 1

Mrs.Pushpa P. Mulchandani & Others Vs. Admiral Radhakrishin Tahiliani (Retd.) & Others

opinion, in this regard reference can be made to the provisions of sub-section 4 of Section 43. They read as under:-"43(4) Where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (36 of 1963), for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted.""When the award is set aside for the reasons other than merits, then it is open to the parties to the arbitration agreement, if arbitration agreement survives, to invoke the arbitration agreement and to have the matter referred to arbitration. In other contingencies they can adopt other remedy that may be available to them and in that situation, either for adopting any other remedy or in initiating arbitration, the period spent during the earlier arbitration is liable to be excluded while computing the period of limitation. In our opinion, the decision of various courts either on Arbitration Act, 1940 or the Acts which were in the field before that, while considering whether the Court has the power to modify the award in a petition filed under Section 34 cannot be considered because under those enactments power was positively conferred on the court to modify the award. It is further to be seen here that Arbitration Act, 1996 has repealed the Arbitration Act, 1940. Arbitration Act 1940 had a specific power conferred on the court to modify the award. While enacting 1996 Act, the Parliament has chosen not enact that provision."In our opinion, the intention of the Legislature, therefore, was clear not to confer on the court power to modify the award. It is now well settled that scheme of Arbitration Act, 1996 is clear departure from the scheme of 1940 Act. In 1940 Act, power was conferred on the court itself to modify the award. In 1996 Act, as observed above, the scheme is that the power is conferred on the court to modify the award only in one situation found in Clause (iv) of Section 34(2), and in all other situations the court, if an application is made by the party, has to follow the course of action contemplated by sub-section 4 of Section 34 or in the absence of any application set aside the award and leave the parties to their own remedy. In our opinion, one more principle has to be taken into consider. The court before 1996 Act came into force, under the Arbitration Act had power to modify an award. While framing 1996, Act, the Legislature was conscious of the power of the court under 1940 Act to modify the award. While enacting 1996 Act, the Legislature has chosen to confer power on the court to modify the award only in one contingency found in Clause (iv) of Section 34(2), and therefore, in our opinion, it will have to be held that the Legislature has denied power to the court to modify the award in all other situations.27.The Arbitration Action 1940 and the Arbitration Act, 1996 are two legislations enacted by the same Legislature on the same subject. Therefore, the use of different language in the later statute as was used in the earlier statute on the same subject is suggestive of the intention of the Legislature that the language so used in the later statute is used in the different sense than in the earlier one. Change of language in the later statute on the same subject is suggestive that the change was deliberately made. Brett, J. in Dickerson v. Fletcher, (1873) LR 9 CP 1 has observed thus:"Where two statutes dealing with the same subject-matter use different language, it is an acknowledged rule of construction that one may be looked at as a guide to the construction of the other. If one uses distinct language, imposing a penalty under certain circumstances and other does not, it is always an argument that the Legislature did not intend to impose a penalty in the later, for where they did so intend they plainly said so."Similarly, it was stated by Cockburn, C.J. in R. V. Price, (1871) LR 6 QB 411 that,"When the Legislature, in legislating in pari materia and substituting certain provisions in that Act for those which existed in the earlier statute, has entirely changed the language of the enactment, it must be taken to have done so with some intention and motive."In relation to consideration of question of construction to be placed on the amending Act in its judgment in the case D.R. Fraser & Co. Ltd. vs. Minister of National Revenue, AIR 1949 Privy Council 120, it has been observed,"When an amending Act alters the language of the principal statute, the alteration must be taken to have been made deliberately."It is, thus, clear while considering the decision based on the provisions of 1940 Arbitration Act, the change in the language adopted by the Legislature while enacting 1996 Act has to be taken into consideration. The schemes of the 1940 Act and the 1996 Act are totally different and therefore, it would be hazardous to base interpretation of the provisions of 1996 Act on the judgments rendered by the court under 1940 Act. Placing of such a construction would result in denying efficacy to the changes that have been deliberately made by the Legislature while enacting 1996 Act.28.It is further to be seen here that though the learned Counsel appearing for the Respondents urged before us that only a part of the award should be set aside, before us no submissions were made to show how and in what manner the valid portion of the award can be segregated from the invalid portion and how the portion which remains, would still be valid and executable award.29.Taking overall view of the matter, therefore, in our opinion, the award and the order of the learned single Judge are vitiated and are liable to be set aside.

1[ds]12.From the rival submissions, it is clear that it is an admitted position that the copies of the valuation reports were not supplied to the Appellants during the pendency of the arbitration proceedings. They were also not supplied to the Appellants during the pendency of the proceedings before the learned single Judge. It is also an admitted position that the principal award made by the learned arbitrator is based on the valuation reports obtained by the learned arbitrator. Perusal of the award shows that in paragraph (5) of the award the learned arbitrator observed thus:"5. I state that to decide the issues referred to me, I have obtained valuation reports in respect of (i) the business of Jayems Engineering Co.Ltd. (including its Ensemble Division) and its interest in immovable properties by way of tenancies and (ii) of Ensemble Division as an Independent business."13.Perusal of the above quoted paragraph makes it clear that for deciding the issues referred to the arbitrator, he obtained valuation reports in respect of Jayems Engineering Co. including its Ensemble division as also in relation to the interest of that company in immoveable properties by way of tenancies and he also obtained a valuation report of the Ensemble division of the Jayems Engineering Co. Ltd. as an independent business. Perusal of answers given to Dispute No.10 referred to the arbitrator shows that it is only on the basis of the valuation reports of the Ensemble division as an independent Unit that the learned Arbitrator has held that Mr.Tarun Tahiliani and Mrs.Gayatri Parikh have to pay an amount at Rs.1,35,00,000/in order to become owners of Ensemble division and that except this valuation report, there is no other reason for fixing the amount at Rs.1,35,00,000/payable by the above said two persons as the value of the Ensemble division. By the award the learned arbitrator has held that the value of the shares held by Mr.Tarun Tahiliani and Mrs.Gayatri Parikh together in Jayems Engineering Co. is in excess of Rs.2 crore only on the basis of the valuation reports obtained by the learned arbitrator. The result is for becoming the owners of the Ensemble division of the company, the above said two persons do not have to pay anything to the company, on the contrary, they will be entitled to receive an amount in excess of Rs.60 lakh from the company towards the balance value of their shares in Jayems Engineering Co.Ltd. It is, thus, clear that valuation reports obtained by the arbitrator are not only relevant and material for the purpose of the award that is made by the learned arbitrator, but the valuation reports are the very foundation of theof the above quoted paragraphs from the judgment of the Supreme Court makes it clear that the Supreme Court calls the procedure laid down by Section 24 of the Act as mandatory procedure. In our opinion, one more aspect is required to be considered at this juncture. The Supreme Court has considered the question as to whether the observance of the principles of natural justice is mandatory and what is the consequence ofof those principles, in its judgment in the case of Nawabkhan Abbaskhan vs. State of Gujarat, AIR 1974 SC 1471 . The Supreme Court has held that when principles of natural justice are incorporated in the statute, compliance with this requirement becomes mandatory and an action taken in violation of those provisions is void. In our opinion, in view of this law laid down by the Supreme Court, the observations of the learned single Judge quoted above that because Section 24(3) incorporates only a facet of principles of natural justice and therefore, it is open to the parties to contract themselves out of that provision cannot be called legallyobserved above, the Supreme Court in its judgment in the case of Saw Pipes (supra) has held that Section 24 incorporates mandatory procedural requirement. The general rule is thatof a mandatory requirement results in nullification of the act. The requirement which has been held to be mandatory by the Supreme Court is a procedural requirement. The settled rule is that while consideringwith the procedural requirement, it has to be kept in view that such a requirement is designed to facilitate the justice and further its end. The prejudice which would be caused to the parties because ofof that mandatory requirement incorporated in3 of Section 24 cannot be over stated. The prejudice is obvious. In our opinion, therefore, as observed above, merely by the arbitration agreement conferring summary power on the arbitrator and by absolving him of the necessity of giving the reasons in his award, it cannot be said that the Appellants had waived their right under Section 24(3) of the Act.18.The settled law is that, generally, when the statute incorporates a requirement and also provides that an act done without complying that requirement would be invalid, then the requirement can be taken to be mandatory. If one looks at the provision of the Act, specially Section 34(2)(iii), it becomes clear that if Court finds that, before the arbitrator a party was not able to present his case, then the Court can set aside the award. Thus, in case an arbitrator in breach of the duty cast on him by Section 24(3) of the Act does not furnish copy of a report submitted by expert and bases his award on that report, if the court is satisfied that because ofof the report prejudice is caused to the interest of the Petitioner, the award will liable to be set aside by the Court. It is probably for this reason that the Supreme Court has said that the requirement contained in Section 24(3) is a mandatory procedural requirement. Generally when a statutory requirement is mandatory though it may be procedural, inference of waiver of that requirement by a party cannot be drawn easily. So far as the subject of waiver of the rights of the parties is concerned, it is Section 4 of the Act which makes elaborate provision. Section 4 reads asWaiver of right to object.A party who knowsany provision of this Part from which the parties may derogate, or(b) any requirement under the arbitration agreement, has not been complied with and yet proceeds with the arbitration without stating his objection to suchwithout undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object."An analysis of the above quoted provision shows that so far as the provisions of the Act are concerned, it is only those provisions which the Act permits the parties to derogate can be waived. In other words, those provisions of the Act which the Act does not permit the parties to derogate cannot be waived. Perusal of various provisions contained in Part I of the Act shows that there are many provisions which the Act permits the parties to derogate and there are many provisions from which the parties can not derogate. For example, if one considers the period during which arbitration is pending, then as per the provision of the Act interim relief can be given by the Court under Section 9 of the Act and by the Arbitrator under Section 17. The parties can not by agreement exclude the jurisdiction of the Court under Section 9, whereas the parties can do so in relation to the jurisdiction of the arbitrator under Section 17. A comparison of the provision of1 of Section 24with the provisions of(2) and (3) of that Section shows that the provision of(1) are derogable, whereas provisions of(3) are not so derogable. Perusal of the provisions of Section 4 further shows that an inference of waiver of a right can be drawn because of failure of a party to raise an objection at appropriate stage. In any case, while rejecting the argument, that the Appellants were unable to present their case because of the failure of the arbitrator to supply copy of the valuation report, on the ground that the Appellants had waived their right to receive the copies of the valuation reports consideration of the provisions of Section 4 of the Act was necessary. Perusal of the order of the learned single Judge shows that finding about waiver of right under Section 24(3) of the Act by the Petitioner has been recorded without application of mind to the provisions of Section 4 of the Act. Therefore, in our opinion, the order of the learned single Judge is liable to be set aside.19.So far as submissions made on behalf of the Respondents relying on the judgment of the Supreme Court in the case of Narayan Lohias, referred to above, that the provisions of Section 24(3) is capable of being waived is concerned, firstly we find that merely by conferring summary powers on the arbitrator absolving him from responsibility of giving reasons and even personal hearing, the Appellants cannot be said to have waived their right to receive the copies of the valuation reports obtained by the Arbitrator. Perusal of the judgment of the Supreme Court in Narayan Lohias case shows that the Supreme Court has held that the award made by the arbitral tribunal consisting of two members, though contrary to the provisions of Section 10 of the Arbitration Act, cannot be set aside because an objection to the jurisdiction of the arbitral tribunal was not raised as required by the provisions of Section 16 of the Act, and the Supreme Court relying on the provisions of Section 4Section 16 of the Act has held that an objection to the jurisdiction of the tribunal is deemed to have been waived by the parties. In so far as provisions of Section 24(3) are concerned, if the arbitrator relies on an expert report or other documents in his award, without supplyingf to the parties, the parties will come to know of it only when they receive the award. There is no provision in the Act, whichthe parties toraise an objection to theof an expert report before the arbitrator, after the award is made. The fact that expert opinion has been relied on would come to the knowledge of the parties only after a copy of the award is received and by the time the partypy of the award, in view of the provisions of Section 32 the mandate of the arbitrator would already be terminated. In our opinion, therefore, the submissions made on behalf of the Respondents, based on the judgment of the Supreme Court in Narayan Lohias case have no substance.20.Perusal of the judgment of the learned single Judge shows that in paragraph 54 the learned single Judge has observed that though the grievance is made by the Appellants that the copies of the valuation reports were not given to them they have not challenged the valuation report, and therefore, according to her there is no substance in the submission made on behalf of the Appellants in relation toof copies of the valuation reports. In our opinion, these observations suffers fromof mind. While making those observations, the learned single Judge forgot that when the proceedings were pending before her, the Appellants did not have the copies of the valuation report and therefore, in the absence of being supplied copies of the valuation report, they could not have challenged the valuation given in the valuationhaving heard the learned Counsels for both sides and after having gone through the record, we find that the view that has been taken by the learned single Judge on this aspect is a possible view and therefore, in our opinion, no exception can be taken to the finding recorded by the learned single Judge in thisof the record, however, shows that role of the said Harish Melwani was that he was second holder in relation to certain shares held by his wife. By the award it is not contemplated that he ceases to hold any shares or that his shares are transferred and consequence of the award is that part of the property of the company gets transferred. Mr.Melwani being the second holder of the shares, his interest cannot be said to be adversely affected by any order that may have been made by the learned single Judge. Considering the status of Mr.Melwani, at the best he can be called as a proper party, but by no stretch of imagination it cannot be said that he is a necessary party. Therefore, in our opinion, petition did not suffer from.It is, thus, clear that if the Court finds that the award is vitiated because of violation of principles of natural justice, or such other reasons which cannot be called as "adjudication" on merits, the Court can set aside the award and if the award is set aside for such reasons, it is open tothe parties toinvoke the arbitration clause again and initiate arbitration proceeding. In our opinion, in this regard reference can be made to the provisions of4 of Section 43. They read asWhere the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (36 of 1963), for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted.""When the award is set aside for the reasons other than merits, then it is open tothe parties tothe arbitration agreement, if arbitration agreement survives, to invoke the arbitration agreement and to have the matter referred to arbitration. In othery can adopt other remedy that may be available to them and in that situation, either for adopting any other remedy or in initiating arbitration, the period spent during the earlier arbitration is liable to be excluded while computing the period of limitation. In our opinion, the decision of various courts either on Arbitration Act, 1940 or the Acts which were in the field before that, while considering whether the Court has the power to modify the award in a petition filed under Section 34 cannot be considered because under those enactments power was positively conferred on the court to modify the award. It is further to be seen here that Arbitration Act, 1996 has repealed the Arbitration Act, 1940. Arbitration Act 1940 had a specific power conferred on the court to modify the award. While enacting 1996 Act, the Parliament has chosen not enact that provision."In our opinion, the intention of the Legislature, therefore, was clear not to confer on the court power to modify the award. It is now well settled that scheme of Arbitration Act, 1996 is clear departure from the scheme of 1940 Act. In 1940 Act, power was conferred on the court itself to modify the award. In 1996 Act, as observed above, the scheme is that the power is conferred on the court to modify the award only in one situation found in Clause (iv) of Section 34(2), and in all other situations the court, if an application is made by the party, has to follow the course of action contemplated by4 of Section 34 or in the absence of any application set aside the award and leavethe parties totheir own remedy. In our opinion, one more principle has to be taken into consider. The court before 1996 Act came into force, under the Arbitration Act had power to modify an award. While framing 1996, Act, the Legislature was conscious of the power of the court under 1940 Act to modify the award. While enacting 1996 Act, the Legislature has chosen to confer power on the court to modify the award only in one contingency found in Clause (iv) of Section 34(2), and therefore, in our opinion, it will have to be held that the Legislature has denied power to the court to modify the award in all otherArbitration Action 1940 and the Arbitration Act, 1996 are two legislations enacted by the same Legislature on the same subject. Therefore, the use of different language in the later statute as was used in the earlier statute on the same subject is suggestive of the intention of the Legislature that the language so used in the later statute is used in the different sense than in the earlier one. Change of language in the later statute on the same subject is suggestive that the change was deliberately made. Brett, J. in Dickerson v. Fletcher, (1873) LR 9 CP 1 has observed thus:"Where two statutes dealing with the sameuse different language, it is an acknowledged rule of construction that one may be looked at as a guide to the construction of the other. If one uses distinct language, imposing a penalty under certain circumstances and other does not, it is always an argument that the Legislature did not intend to impose a penalty in the later, for where they did so intend they plainly said so."Similarly, it was stated by Cockburn, C.J. in R. V. Price, (1871) LR 6 QB 411 that,"When the Legislature, in legislating in pari materia and substituting certain provisions in that Act for those which existed in the earlier statute, has entirely changed the language of the enactment, it must be taken to have done so with some intention and motive."In relation to consideration of question of construction to be placed on the amending Act in its judgment in the case D.R. FraserCo. Ltd. vs. Minister of National Revenue, AIR 1949 Privy Council 120, it has been observed,"When an amending Act alters the language of the principal statute, the alteration must be taken to have been made deliberately."It is, thus, clear while considering the decision based on the provisions of 1940 Arbitration Act, the change in the language adopted by the Legislature while enacting 1996 Act has to be taken into consideration. The schemes of the 1940 Act and the 1996 Act are totally different and therefore, it would be hazardous to base interpretation of the provisions of 1996 Act on the judgments rendered by the court under 1940 Act. Placing of such a construction would result in denying efficacy to the changes that have been deliberately made by the Legislature while enacting 1996 Act.28.It is further to be seen here that though the learned Counsel appearing for the Respondents urged before us that only a part of the award should be set aside, before us no submissions were made to show how and in what manner the valid portion of the award can be segregated from the invalid portion and how the portion which remains, would still be valid and executable award.29.Taking overall view of the matter, therefore, in our opinion, the award and the order of the learned single Judge are vitiated and are liable to be set aside.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: opinion, in this regard reference can be made to the provisions of sub-section 4 of Section 43. They read as under:-"43(4) Where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (36 of 1963), for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted.""When the award is set aside for the reasons other than merits, then it is open to the parties to the arbitration agreement, if arbitration agreement survives, to invoke the arbitration agreement and to have the matter referred to arbitration. In other contingencies they can adopt other remedy that may be available to them and in that situation, either for adopting any other remedy or in initiating arbitration, the period spent during the earlier arbitration is liable to be excluded while computing the period of limitation. In our opinion, the decision of various courts either on Arbitration Act, 1940 or the Acts which were in the field before that, while considering whether the Court has the power to modify the award in a petition filed under Section 34 cannot be considered because under those enactments power was positively conferred on the court to modify the award. It is further to be seen here that Arbitration Act, 1996 has repealed the Arbitration Act, 1940. Arbitration Act 1940 had a specific power conferred on the court to modify the award. While enacting 1996 Act, the Parliament has chosen not enact that provision."In our opinion, the intention of the Legislature, therefore, was clear not to confer on the court power to modify the award. It is now well settled that scheme of Arbitration Act, 1996 is clear departure from the scheme of 1940 Act. In 1940 Act, power was conferred on the court itself to modify the award. In 1996 Act, as observed above, the scheme is that the power is conferred on the court to modify the award only in one situation found in Clause (iv) of Section 34(2), and in all other situations the court, if an application is made by the party, has to follow the course of action contemplated by sub-section 4 of Section 34 or in the absence of any application set aside the award and leave the parties to their own remedy. In our opinion, one more principle has to be taken into consider. The court before 1996 Act came into force, under the Arbitration Act had power to modify an award. While framing 1996, Act, the Legislature was conscious of the power of the court under 1940 Act to modify the award. While enacting 1996 Act, the Legislature has chosen to confer power on the court to modify the award only in one contingency found in Clause (iv) of Section 34(2), and therefore, in our opinion, it will have to be held that the Legislature has denied power to the court to modify the award in all other situations.27.The Arbitration Action 1940 and the Arbitration Act, 1996 are two legislations enacted by the same Legislature on the same subject. Therefore, the use of different language in the later statute as was used in the earlier statute on the same subject is suggestive of the intention of the Legislature that the language so used in the later statute is used in the different sense than in the earlier one. Change of language in the later statute on the same subject is suggestive that the change was deliberately made. Brett, J. in Dickerson v. Fletcher, (1873) LR 9 CP 1 has observed thus:"Where two statutes dealing with the same subject-matter use different language, it is an acknowledged rule of construction that one may be looked at as a guide to the construction of the other. If one uses distinct language, imposing a penalty under certain circumstances and other does not, it is always an argument that the Legislature did not intend to impose a penalty in the later, for where they did so intend they plainly said so."Similarly, it was stated by Cockburn, C.J. in R. V. Price, (1871) LR 6 QB 411 that,"When the Legislature, in legislating in pari materia and substituting certain provisions in that Act for those which existed in the earlier statute, has entirely changed the language of the enactment, it must be taken to have done so with some intention and motive."In relation to consideration of question of construction to be placed on the amending Act in its judgment in the case D.R. Fraser & Co. Ltd. vs. Minister of National Revenue, AIR 1949 Privy Council 120, it has been observed,"When an amending Act alters the language of the principal statute, the alteration must be taken to have been made deliberately."It is, thus, clear while considering the decision based on the provisions of 1940 Arbitration Act, the change in the language adopted by the Legislature while enacting 1996 Act has to be taken into consideration. The schemes of the 1940 Act and the 1996 Act are totally different and therefore, it would be hazardous to base interpretation of the provisions of 1996 Act on the judgments rendered by the court under 1940 Act. Placing of such a construction would result in denying efficacy to the changes that have been deliberately made by the Legislature while enacting 1996 Act.28.It is further to be seen here that though the learned Counsel appearing for the Respondents urged before us that only a part of the award should be set aside, before us no submissions were made to show how and in what manner the valid portion of the award can be segregated from the invalid portion and how the portion which remains, would still be valid and executable award.29.Taking overall view of the matter, therefore, in our opinion, the award and the order of the learned single Judge are vitiated and are liable to be set aside. ### Response: 1

Associated Cement Staff Union & Another Vs. Associated Cement Company & Others

for increasing the working hours to the extent as prayed for by the Company.3. The first contention raised by Mr. Ramamurthi in support of the workmens appeals is that having fixed the wages of the workmen on the basis of the existing working hours of 34-1/4 hours in its award in Reference No. 111 the Tribunal was not justified in changing the working hours without making a change in the wage rates. It is argued that this increase in the working hours without an increase in the wage rates amounts really to a gift of a considerable sum of money to the Company, as but for this increase the workmen would have been entitled to overtime payment for the additional hours they will have to work under the present award. This argument seems to us to be misconceived. It is not the function of industrial adjudication to fix the working hours with an eye to enabling the workmen to earn overtime wages. Hours of work have to be fixed in consideration of many factors including the question of fatigue on the health of the workmen, the effect on their efficiency, the physical discomfort that may result from long and continuous strain, the need of leisure in the workmens lives, the hours of work prevailing for similar activities in the same region and also in similar concerns and other relevant factors. But once a conclusion about the normal working hours is reached after considering the optimum working hours on a consideration of all the relevant factors, industrial adjudication cannot hesitate to give effect to its conclusion merely because the workmen would have been entitled to more wages at overtime rates if the hours of work had been fixed at less. While it is true that in fixing the proper wage scale the question of work load and so that matter of working hours cannot be left wholly out of consideration, many other factors including the need of the workmen, the financial resources of the employer, the rates of wages prevailing in other industries in the region have all to be considered in deciding the wage scale. It would be against the interest of workmen, the employers and the country as a whole to bring into force wage rates moving on a sliding scale according to the hours of work. The proper solution of the difficulty lies in fixing wage scales after consideration of all the relevant factors including the working hours and again to fix working hours on a consideration of all relevant factors but without an eye to the effect on the overtime payment of workmen. We find therefore no substance in the workmens contention that the Tribunal was not justified in changing the working hours after it had fixed the wage rates for the workmen in Reference No. 111 of 1959 on the basis of existing working hours.4. It may be pointed out in this connection that when the Tribunal was decided the dispute in Reference No. 111 on the question of wages. Reference No. 247 of 1959 on the question of working hours was also pending. But this could not be heard at the time as its hearing had been stayed by the High Court in an application under Art. 226 of the Constitution. In any case, it is clear that the question of wages had been decided on the assumption that the working hours would be fixed at a reasonable figure and not on any assumption that the existing working hours were proper and reasonable. The first contention raised by the workmen therefore fails.5. It was next urged that the existing working hours having been found reasonable by the Industrial Tribunal in 1950 there was no sufficient justification for changing them in the present Reference. There is, in our opinion, no substance in this argument. It is true that too frequent alterations of conditions of service by industrial adjudication have been generally deprecated by this Court for the reasons that is it likely to disturb industrial peace and equilibrium. At the same time the Court has more than once pointed out the importance of remembering the dynamic nature of industrial relations. That is why the Court has, specially in the more recent decisions, refused to apply to industrial adjudications principles of res judicata that are meant and suited for ordinary civil litigation. Even where conditions of service have been changed only a few years before, industrial adjudication has allowed fresh changes if convinced of the necessity and justification of these by the existing conditions and circumstances. Where, as in the present case, in a previous Reference the Tribunal had refused the demand for change, there is, even less reason for saying that refusal should have any such binding effect. It is important to remember in this connection that working hours remained unchanged for many years in this concern and during these years, considerable changes have taken place in the countrys economic position and expectations. With the growing realisation of need for better distribution of national wealth has also come an understanding of the need for increase in production as an essential pre-requisite of which greater efforts on the part of the labour force are necessary. That itself is sufficient reason against accepting it argument against any change in working hours if found justified on relevant considerations that have been indicated above. We are satisfied that in arriving at the figure of 36 working hours in a week the Tribunal has given proper weight to all relevant considerations.6. It is worth mentioning that in appreciating the need for leisure on the part of the workmen the Tribunal has left it open to the Company and its workmen to agree on a five-day week with the total working hours at 36-1/4. We see no justification for interfering with the Tribunals award in this matter. The Companys appeal for an increase in working hours over and above what has been awarded by the Tribunal have not been pressed before us.

0[ds]3. The first contention raised by Mr. Ramamurthi in support of the workmens appeals is that having fixed the wages of the workmen on the basis of the existing working hours ofhours in its award in Reference No. 111 the Tribunal was not justified in changing the working hours without making a change in the wage rates. It is argued that this increase in the working hours without an increase in the wage rates amounts really to a gift of a considerable sum of money to the Company, as but for this increase the workmen would have been entitled to overtime payment for the additional hours they will have to work under the present award.This argument seems to us to be misconceived. It is not the function of industrial adjudication to fix the working hours with an eye to enabling the workmen to earn overtime wages. Hours of work have to be fixed in consideration of many factors including the question of fatigue on the health of the workmen, the effect on their efficiency, the physical discomfort that may result from long and continuous strain, the need of leisure in the workmens lives, the hours of work prevailing for similar activities in the same region and also in similar concerns and other relevant factors. But once a conclusion about the normal working hours is reached after considering the optimum working hours on a consideration of all the relevant factors, industrial adjudication cannot hesitate to give effect to its conclusion merely because the workmen would have been entitled to more wages at overtime rates if the hours of work had been fixed at less. While it is true that in fixing the proper wage scale the question of work load and so that matter of working hours cannot be left wholly out of consideration, many other factors including the need of the workmen, the financial resources of the employer, the rates of wages prevailing in other industries in the region have all to be considered in deciding the wage scale. It would be against the interest of workmen, the employers and the country as a whole to bring into force wage rates moving on a sliding scale according to the hours of work. The proper solution of the difficulty lies in fixing wage scales after consideration of all the relevant factors including the working hours and again to fix working hours on a consideration of all relevant factors but without an eye to the effect on the overtime payment of workmen. We find therefore no substance in the workmens contention that the Tribunal was not justified in changing the working hours after it had fixed the wage rates for the workmen in Reference No. 111 of 1959 on the basis of existing working hours.4. It may be pointed out in this connection that when the Tribunal was decided the dispute in Reference No. 111 on the question of wages. Reference No. 247 of 1959 on the question of working hours was also pending. But this could not be heard at the time as its hearing had been stayed by the High Court in an application under Art. 226 of the Constitution. In any case, it is clear that the question of wages had been decided on the assumption that the working hours would be fixed at a reasonable figure and not on any assumption that the existing working hours were proper and reasonable. The first contention raised by the workmen therefore fails.5.It was next urged that the existing working hours having been found reasonable by the Industrial Tribunal in 1950 there was no sufficient justification for changing them in the present Reference.There is, in our opinion, no substance in this argument. It is true that too frequent alterations of conditions of service by industrial adjudication have been generally deprecated by this Court for the reasons that is it likely to disturb industrial peace and equilibrium. At the same time the Court has more than once pointed out the importance of remembering the dynamic nature of industrial relations. That is why the Court has, specially in the more recent decisions, refused to apply to industrial adjudications principles of res judicata that are meant and suited for ordinary civil litigation. Even where conditions of service have been changed only a few years before, industrial adjudication has allowed fresh changes if convinced of the necessity and justification of these by the existing conditions and circumstances. Where, as in the present case, in a previous Reference the Tribunal had refused the demand for change, there is, even less reason for saying that refusal should have any such binding effect. It is important to remember in this connection that working hours remained unchanged for many years in this concern and during these years, considerable changes have taken place in the countrys economic position and expectations. With the growing realisation of need for better distribution of national wealth has also come an understanding of the need for increase in production as an essentialof which greater efforts on the part of the labour force are necessary. That itself is sufficient reason against accepting it argument against any change in working hours if found justified on relevant considerations that have been indicated above. We are satisfied that in arriving at the figure of 36 working hours in a week the Tribunal has given proper weight to all relevant considerations.6. It is worth mentioning that in appreciating the need for leisure on the part of the workmen the Tribunal has left it open to the Company and its workmen to agree on aweek with the total working hours atWe see no justification for interfering with the Tribunals award in this matter. The Companys appeal for an increase in working hours over and above what has been awarded by the Tribunal have not been pressed before us.t has been argued before us on behalf of the workmen appellants that the Tribunal was not justified in making any change in the old position that the Company would observe all the public holidays granted by the Government.On behalf of the Company it has been urged that the Tribunal was wrong in fixing the number of holidays at 21 even though it was satisfied that it was too large.While discussing in the other appeals the question of justification for increasing the working hours, we have mentioned the growing realisation in the country of the need for increase in the countrys productivity along with the necessity of better distribution of the wealth produced. It cannot be disputed that a necessary step in this direction is the reduction in the number of holidays. That is the main reason for which we agree with the Tribunal that the large number of public holidays declared by the Government of Maharashtra, need not be followed by the Industrial concerns. The figures mentioned by the Tribunal show that in Madras the number of public holidays was fixed at 14, in Andhra Pradesh 17, in Mysore at 15 and in Uttar Pradesh at 18.It appears to us that the lesser number of holidays as fixed by these States is more suitable for industrial concerns than the large number of public holidays that have been favoured by Governments of Maharashtra, West Bengal, Bihar, Rajasthan and Gujarat. We find no difficulty thus in agreeing with the Tribunal that the number of 21 holidays fixed by it is too large. We are unable however to appreciate the reason which weighted with it in awarding 21 holidays though it was itself convinced that figure was too large. As a reason for fixing 21 holidays the Tribunal has stated that there has been a practice in large number of commercial concerns to observe all public holidays and it would not be wise for the Tribunal to make any drastic reduction all at once in the case of one Company.We are not convinced by this reasoning. It may also be mentioned that in Pfizer (Private) Ltd. Bombay v. Its Workmen, (1963) 1 Lab LJ 543 : (AIR 1963) SC 1103 ) this Court has fixed 16 as the number of holidays for the workmen. We see no reason why in the present case also that standard should not be followed.

### 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: for increasing the working hours to the extent as prayed for by the Company.3. The first contention raised by Mr. Ramamurthi in support of the workmens appeals is that having fixed the wages of the workmen on the basis of the existing working hours of 34-1/4 hours in its award in Reference No. 111 the Tribunal was not justified in changing the working hours without making a change in the wage rates. It is argued that this increase in the working hours without an increase in the wage rates amounts really to a gift of a considerable sum of money to the Company, as but for this increase the workmen would have been entitled to overtime payment for the additional hours they will have to work under the present award. This argument seems to us to be misconceived. It is not the function of industrial adjudication to fix the working hours with an eye to enabling the workmen to earn overtime wages. Hours of work have to be fixed in consideration of many factors including the question of fatigue on the health of the workmen, the effect on their efficiency, the physical discomfort that may result from long and continuous strain, the need of leisure in the workmens lives, the hours of work prevailing for similar activities in the same region and also in similar concerns and other relevant factors. But once a conclusion about the normal working hours is reached after considering the optimum working hours on a consideration of all the relevant factors, industrial adjudication cannot hesitate to give effect to its conclusion merely because the workmen would have been entitled to more wages at overtime rates if the hours of work had been fixed at less. While it is true that in fixing the proper wage scale the question of work load and so that matter of working hours cannot be left wholly out of consideration, many other factors including the need of the workmen, the financial resources of the employer, the rates of wages prevailing in other industries in the region have all to be considered in deciding the wage scale. It would be against the interest of workmen, the employers and the country as a whole to bring into force wage rates moving on a sliding scale according to the hours of work. The proper solution of the difficulty lies in fixing wage scales after consideration of all the relevant factors including the working hours and again to fix working hours on a consideration of all relevant factors but without an eye to the effect on the overtime payment of workmen. We find therefore no substance in the workmens contention that the Tribunal was not justified in changing the working hours after it had fixed the wage rates for the workmen in Reference No. 111 of 1959 on the basis of existing working hours.4. It may be pointed out in this connection that when the Tribunal was decided the dispute in Reference No. 111 on the question of wages. Reference No. 247 of 1959 on the question of working hours was also pending. But this could not be heard at the time as its hearing had been stayed by the High Court in an application under Art. 226 of the Constitution. In any case, it is clear that the question of wages had been decided on the assumption that the working hours would be fixed at a reasonable figure and not on any assumption that the existing working hours were proper and reasonable. The first contention raised by the workmen therefore fails.5. It was next urged that the existing working hours having been found reasonable by the Industrial Tribunal in 1950 there was no sufficient justification for changing them in the present Reference. There is, in our opinion, no substance in this argument. It is true that too frequent alterations of conditions of service by industrial adjudication have been generally deprecated by this Court for the reasons that is it likely to disturb industrial peace and equilibrium. At the same time the Court has more than once pointed out the importance of remembering the dynamic nature of industrial relations. That is why the Court has, specially in the more recent decisions, refused to apply to industrial adjudications principles of res judicata that are meant and suited for ordinary civil litigation. Even where conditions of service have been changed only a few years before, industrial adjudication has allowed fresh changes if convinced of the necessity and justification of these by the existing conditions and circumstances. Where, as in the present case, in a previous Reference the Tribunal had refused the demand for change, there is, even less reason for saying that refusal should have any such binding effect. It is important to remember in this connection that working hours remained unchanged for many years in this concern and during these years, considerable changes have taken place in the countrys economic position and expectations. With the growing realisation of need for better distribution of national wealth has also come an understanding of the need for increase in production as an essential pre-requisite of which greater efforts on the part of the labour force are necessary. That itself is sufficient reason against accepting it argument against any change in working hours if found justified on relevant considerations that have been indicated above. We are satisfied that in arriving at the figure of 36 working hours in a week the Tribunal has given proper weight to all relevant considerations.6. It is worth mentioning that in appreciating the need for leisure on the part of the workmen the Tribunal has left it open to the Company and its workmen to agree on a five-day week with the total working hours at 36-1/4. We see no justification for interfering with the Tribunals award in this matter. The Companys appeal for an increase in working hours over and above what has been awarded by the Tribunal have not been pressed before us. ### Response: 0

Charan Dass Duggal Vs. Brahma Nand

the respondent-landlord. The appellant-tenant moved an application seeking leave to defend the ejectment petition. He inter alia, contended that the respondent landlord has a big house named ‘Parkash Bhawan, Gurdaspur Road, Pathankot, and is residing at that place and is not residing in Delhi. A serious contention was raised that the landlord was not in need of the premises at Delhi. A further averment was that the rent has been increased from time to time and this discloses that the present attempt is merely to bring pressure to increase rent.2. The learned Rent Controller rejected the application for leave to defend the action. Appellant-tenant carried the matter to High Court in Civil Revision No. 467 of 1980 without success.3. When landlord seeks possession for personal requirement, he has to prove his present need. If he has any premises in his possession he must allege and prove why that is not sufficient for his present use, or why he has to shift to the premises of which he seeks possession. If the tenant avers that the landlord is not in need of the premises and that he is not staying in the city in which the premises involved in dispute is situated and that the landlord has a big building in his possession at a different place where he is shown to be staying obviously a very serious triable issue would arise. To return to the facts of this case it is not in dispute that there is a house named ‘Parkash Bhawan’ situated at Pathankot but in this behalf the case of the landlord is that the same belongs to his sons and daughters and he would stay in that house whenever he visits Pathankot and his normal correspondence address is at Pathankot. A sale deed was shown to the learned Judge of the High Court relating to Pathankot house which appears to be in the name of the sons and daughters of respondent-landlord. The High Court concluded that there was no reason to doubt the plea of the landlord that here wants to live at Delhi.4. What should be the approach when leave to defend is sought ? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh, 1958 S. C. R. 1211). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter-assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively. If, as it appears in this case, the landlord is staying at Pathankot, that a house is purchased may be in the name of his sons and daughters, but there may not be an apparent need to return to Delhi in his old age, a triable issue would come into existence and that was sufficient in our opinion to grant leave to defend in this case.5. Recently in a good number of cases from Delhi we have noticed that long contested judgments are written refusing leave as if the trial has been concluded after recording evidence and a final decision is being reached. That is certainly not apposite at the stage of granting leave.6. The genesis of our procedural laws is to be traced to principles of natural justice. The principles amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and prove his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave. May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits. Burden is on the landlord to prove his requirements and his assertion is required to be tested more so when it is shown that for long he is staying outside Delhi, that he had a building albeit standing in the names of his sons and daughters where he is staying and at which place he receives his normal correspondence. If in such a situation one can say that a triable issue is not raised, one is at a loss to find out where, when and in what circumstances such an issue would arise. We are, therefore, satisfied that this is a case in which triable issues were raised and both the learned Rent Controller and the High Court were in error in refusing to grant the leave.

1[ds]6. The genesis of our procedural laws is to be traced to principles of natural justice. The principles amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and prove his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave. May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party byand rival affidavits may not furnish reliable evidence for concluding the point one way or the other.

### Instruction: From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant. ### Input: the respondent-landlord. The appellant-tenant moved an application seeking leave to defend the ejectment petition. He inter alia, contended that the respondent landlord has a big house named ‘Parkash Bhawan, Gurdaspur Road, Pathankot, and is residing at that place and is not residing in Delhi. A serious contention was raised that the landlord was not in need of the premises at Delhi. A further averment was that the rent has been increased from time to time and this discloses that the present attempt is merely to bring pressure to increase rent.2. The learned Rent Controller rejected the application for leave to defend the action. Appellant-tenant carried the matter to High Court in Civil Revision No. 467 of 1980 without success.3. When landlord seeks possession for personal requirement, he has to prove his present need. If he has any premises in his possession he must allege and prove why that is not sufficient for his present use, or why he has to shift to the premises of which he seeks possession. If the tenant avers that the landlord is not in need of the premises and that he is not staying in the city in which the premises involved in dispute is situated and that the landlord has a big building in his possession at a different place where he is shown to be staying obviously a very serious triable issue would arise. To return to the facts of this case it is not in dispute that there is a house named ‘Parkash Bhawan’ situated at Pathankot but in this behalf the case of the landlord is that the same belongs to his sons and daughters and he would stay in that house whenever he visits Pathankot and his normal correspondence address is at Pathankot. A sale deed was shown to the learned Judge of the High Court relating to Pathankot house which appears to be in the name of the sons and daughters of respondent-landlord. The High Court concluded that there was no reason to doubt the plea of the landlord that here wants to live at Delhi.4. What should be the approach when leave to defend is sought ? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh, 1958 S. C. R. 1211). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter-assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively. If, as it appears in this case, the landlord is staying at Pathankot, that a house is purchased may be in the name of his sons and daughters, but there may not be an apparent need to return to Delhi in his old age, a triable issue would come into existence and that was sufficient in our opinion to grant leave to defend in this case.5. Recently in a good number of cases from Delhi we have noticed that long contested judgments are written refusing leave as if the trial has been concluded after recording evidence and a final decision is being reached. That is certainly not apposite at the stage of granting leave.6. The genesis of our procedural laws is to be traced to principles of natural justice. The principles amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and prove his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave. May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits. Burden is on the landlord to prove his requirements and his assertion is required to be tested more so when it is shown that for long he is staying outside Delhi, that he had a building albeit standing in the names of his sons and daughters where he is staying and at which place he receives his normal correspondence. If in such a situation one can say that a triable issue is not raised, one is at a loss to find out where, when and in what circumstances such an issue would arise. We are, therefore, satisfied that this is a case in which triable issues were raised and both the learned Rent Controller and the High Court were in error in refusing to grant the leave. ### Response: 1

Ramanand Singh Vs. State of Bihar and Another

resides.(ii) Home Guards shall be enrolled by the District Magistrate on the recommendation of a Committee in each District consisting of the Commandant-General or in his absence Battalion Commandant, the District Magistrate and the Superintendent of police of the district, and a non-official Member nominated by the Provincial Government. The Chairman of the Committee shall be nominated from amongst its Members by the Provincial Government.(iii) After holding tests of the general knowledge, alertness, intelligence and physical fitness of the candidates under its supervision, the Committee shall interview all or such of the candidates as it thinks fit and recommend, in order of preference, to the District Magistrate, a number of candidates 50 per cent more than the number of vacancies.(iv) After such verification of character and antecedents of the candidates recommended by the Committee as may be necessary, the district Magistrate shall enrol the required number of Home Guards.(5) Seniority shall be determined by rank, and as between persons of the same rank by the date of promotion or appointment to the rank.4. Relying on this Rule the appellant contended that the power to appoint Company Commander was conferred by the Rules on the provincial Government and, therefore, Commandant-General would not be the appointing authority and was in fact not the appointing authority and, therefore, the order dismissing the appellant from service made by the Commandant-General is by an authority lower than the appointing authority and therefore Article 311 is violated. Now, this simple question could have been answered one way or the other if the appointment order of the appellant was placed on record before this Court. It is agonising or the judicial process that this order is not available. Appellant contends that appointment order given to him was taken out from his house during the search of his house. That the house of the appellant was searched is not in dispute. We fail to see why the appointment order of the appellant should be taken away during the search. It is equally true that the counterfoil or a copy of the order must be available in the records of the respondents. They pleaded their inability, not very convincing, to produce the same for the reasons here in before set out. The unfortunate fact remains that the order is not before us. But appellant contends that if the Rule is manifestly clear that the power to appoint Company Commander was conferred on the provincial Government unless otherwise shown, the court must proceed on the assumption that the rule has been complied with and the authorities acted according to law. There is considerable force in this submission but there are two aspects which preclude us from taking it to its logical conclusion; one being that the High Court noticed in its judgment that it was conceded before the High Court that Rule 5 was subsequently amended on December 27, 1949, whereby the Commandant-General was designated as the appointing authority for Company Commanders and this amended Rule was continued when Bihar Home Guards Rules, 1953 replaced the 1948 Rules. The appellant countered by saying that even if the submission about the amendment is correct, the amendment came into force on December 27, 1949, while he was appointed as company - Commander on March 1, 1949 and, therefore, unamended Rule 5 would be enforce and the conclusion is inevitable that the Provincial Government was the appointing authority. Again there is considerable force in the submission but out attention was drawn to an order dated May, 21, 1949, issued in the name of the Commandant-General making appointment of 16 persons as whole time Company Commanders in the Bihar Home Guards Organisation. The opening part of the order has some significance and it may be extracted :The following Honorary company commanders are appointed as whole time Company Commanders in the Bihar Home Guards on probation on the scale of pay of Rs. 100-160-E-B. 6-190 plus C.L.A. at the rate of Rs. 30 p.m. with effect from March 1, 1949 and are posted to districts noted against each.At serial No. 4 appears the name of the appellant and he is posted at Gaya. Now, according to the appellant this is not the appointment order but it is the posting order. The language of the order does not admit of this construction. If the appointing authority was someone other than the Commandant-General who was only the posting authority, the order would have read :The following Company Commanders who were appointed by the Provincial Government vide its order (No. sic) as whole time Company Commanders in the Bihar Home Guards on probation on the scale of pay of Rs. 100-5-160-E.B.-6-190 plus C.L.A. at the rate of Rs. 30 p.m. with effect from march 1, 1949 are posted to districts, etc.The order rather reads that it is not only an appointment order but on being appointed by the Commandant-General posting orders are also simultaneously issued. Shorn of the non-required details, the order reads the following Honorary Company Commanders are appointed and are posted. Therefore, the order is both an order of appointment and of posting. It is issued in the name of the Commandant-General. The appointment becomes effective from March 1, 1949, from which date even according to the appellant, he was appointed as Company Commander and this very order recited his name and his posting. Therefore, it would appear that the appointment was made by the Commandant-General even though Rule 5 conferred power on the Provincial Government to make such appointments. It is quite likely that the amendment referred to in the judgment of the High Court may have been made with retrospective effect. We are left to guess work but this positive order would show that the appellant was appointed as Company Commander by the Commandant-General. Therefore, the Commandant-General had the power to dismiss him. The dismissal order would not be void on the ground that it is made by an authority lower than the appointing authority. Therefore, the contention of the appellant must be negatived.

0[ds]4. Relying on this Rule the appellant contended that the power to appoint Company Commander was conferred by the Rules on the provincial Government and, therefore,would not be the appointing authority and was in fact not the appointing authority and, therefore, the order dismissing the appellant from service made by theis by an authority lower than the appointing authority and therefore Article 311 is violated. Now, this simple question could have been answered one way or the other if the appointment order of the appellant was placed on record before this Court. It is agonising or the judicial process that this order is not available. Appellant contends that appointment order given to him was taken out from his house during the search of his house. That the house of the appellant was searched is not in dispute. We fail to see why the appointment order of the appellant should be taken away during the search. It is equally true that the counterfoil or a copy of the order must be available in the records of the respondents. They pleaded their inability, not very convincing, to produce the same for the reasons here in before set out. The unfortunate fact remains that the order is not before us. But appellant contends that if the Rule is manifestly clear that the power to appoint Company Commander was conferred on the provincial Government unless otherwise shown, the court must proceed on the assumption that the rule has been complied with and the authorities acted according to law. There is considerable force in this submission but there are two aspects which preclude us from taking it to its logical conclusion; one being that the High Court noticed in its judgment that it was conceded before the High Court that Rule 5 was subsequently amended on December 27, 1949, whereby thewas designated as the appointing authority for Company Commanders and this amended Rule was continued when Bihar Home Guards Rules, 1953 replaced the 1948 Rules. The appellant countered by saying that even if the submission about the amendment is correct, the amendment came into force on December 27, 1949, while he was appointed as companyCommander on March 1, 1949 and, therefore, unamended Rule 5 would be enforce and the conclusion is inevitable that the Provincial Government was the appointing authority. Again there is considerable force in the submission but out attention was drawn to an order dated May, 21, 1949, issued in the name of themaking appointment of 16 persons as whole time Company Commanders in the Bihar Home Guards Organisation. The opening part of the order has some significance and it may be extracted :The following Honorary company commanders are appointed as whole time Company Commanders in the Bihar Home Guards on probation on the scale of pay of Rs.0 plus C.L.A. at the rate of Rs. 30 p.m. with effect from March 1, 1949 and are posted to districts noted against each.At serial No. 4 appears the name of the appellant and he is posted at Gaya. Now, according to the appellant this is not the appointment order but it is the posting order. The language of the order does not admit of this construction. If the appointing authority was someone other than thewho was only the posting authority, the order would have read :The following Company Commanders who were appointed by the Provincial Government vide its order (No. sic) as whole time Company Commanders in the Bihar Home Guards on probation on the scale of pay of Rs.plus C.L.A. at the rate of Rs. 30 p.m. with effect from march 1, 1949 are posted to districts, etc.The order rather reads that it is not only an appointment order but on being appointed by theposting orders are also simultaneously issued. Shorn of thedetails, the order reads the following Honorary Company Commanders are appointed and are posted. Therefore, the order is both an order of appointment and of posting. It is issued in the name of theThe appointment becomes effective from March 1, 1949, from which date even according to the appellant, he was appointed as Company Commander and this very order recited his name and his posting. Therefore, it would appear that the appointment was made by theeven though Rule 5 conferred power on the Provincial Government to make such appointments. It is quite likely that the amendment referred to in the judgment of the High Court may have been made with retrospective effect. We are left to guess work but this positive order would show that the appellant was appointed as Company Commander by theral had the power to dismiss him. The dismissal order would not be void on the ground that it is made by an authority lower than the appointing authority. Therefore, the contention of the appellant must be negatived.

### 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: resides.(ii) Home Guards shall be enrolled by the District Magistrate on the recommendation of a Committee in each District consisting of the Commandant-General or in his absence Battalion Commandant, the District Magistrate and the Superintendent of police of the district, and a non-official Member nominated by the Provincial Government. The Chairman of the Committee shall be nominated from amongst its Members by the Provincial Government.(iii) After holding tests of the general knowledge, alertness, intelligence and physical fitness of the candidates under its supervision, the Committee shall interview all or such of the candidates as it thinks fit and recommend, in order of preference, to the District Magistrate, a number of candidates 50 per cent more than the number of vacancies.(iv) After such verification of character and antecedents of the candidates recommended by the Committee as may be necessary, the district Magistrate shall enrol the required number of Home Guards.(5) Seniority shall be determined by rank, and as between persons of the same rank by the date of promotion or appointment to the rank.4. Relying on this Rule the appellant contended that the power to appoint Company Commander was conferred by the Rules on the provincial Government and, therefore, Commandant-General would not be the appointing authority and was in fact not the appointing authority and, therefore, the order dismissing the appellant from service made by the Commandant-General is by an authority lower than the appointing authority and therefore Article 311 is violated. Now, this simple question could have been answered one way or the other if the appointment order of the appellant was placed on record before this Court. It is agonising or the judicial process that this order is not available. Appellant contends that appointment order given to him was taken out from his house during the search of his house. That the house of the appellant was searched is not in dispute. We fail to see why the appointment order of the appellant should be taken away during the search. It is equally true that the counterfoil or a copy of the order must be available in the records of the respondents. They pleaded their inability, not very convincing, to produce the same for the reasons here in before set out. The unfortunate fact remains that the order is not before us. But appellant contends that if the Rule is manifestly clear that the power to appoint Company Commander was conferred on the provincial Government unless otherwise shown, the court must proceed on the assumption that the rule has been complied with and the authorities acted according to law. There is considerable force in this submission but there are two aspects which preclude us from taking it to its logical conclusion; one being that the High Court noticed in its judgment that it was conceded before the High Court that Rule 5 was subsequently amended on December 27, 1949, whereby the Commandant-General was designated as the appointing authority for Company Commanders and this amended Rule was continued when Bihar Home Guards Rules, 1953 replaced the 1948 Rules. The appellant countered by saying that even if the submission about the amendment is correct, the amendment came into force on December 27, 1949, while he was appointed as company - Commander on March 1, 1949 and, therefore, unamended Rule 5 would be enforce and the conclusion is inevitable that the Provincial Government was the appointing authority. Again there is considerable force in the submission but out attention was drawn to an order dated May, 21, 1949, issued in the name of the Commandant-General making appointment of 16 persons as whole time Company Commanders in the Bihar Home Guards Organisation. The opening part of the order has some significance and it may be extracted :The following Honorary company commanders are appointed as whole time Company Commanders in the Bihar Home Guards on probation on the scale of pay of Rs. 100-160-E-B. 6-190 plus C.L.A. at the rate of Rs. 30 p.m. with effect from March 1, 1949 and are posted to districts noted against each.At serial No. 4 appears the name of the appellant and he is posted at Gaya. Now, according to the appellant this is not the appointment order but it is the posting order. The language of the order does not admit of this construction. If the appointing authority was someone other than the Commandant-General who was only the posting authority, the order would have read :The following Company Commanders who were appointed by the Provincial Government vide its order (No. sic) as whole time Company Commanders in the Bihar Home Guards on probation on the scale of pay of Rs. 100-5-160-E.B.-6-190 plus C.L.A. at the rate of Rs. 30 p.m. with effect from march 1, 1949 are posted to districts, etc.The order rather reads that it is not only an appointment order but on being appointed by the Commandant-General posting orders are also simultaneously issued. Shorn of the non-required details, the order reads the following Honorary Company Commanders are appointed and are posted. Therefore, the order is both an order of appointment and of posting. It is issued in the name of the Commandant-General. The appointment becomes effective from March 1, 1949, from which date even according to the appellant, he was appointed as Company Commander and this very order recited his name and his posting. Therefore, it would appear that the appointment was made by the Commandant-General even though Rule 5 conferred power on the Provincial Government to make such appointments. It is quite likely that the amendment referred to in the judgment of the High Court may have been made with retrospective effect. We are left to guess work but this positive order would show that the appellant was appointed as Company Commander by the Commandant-General. Therefore, the Commandant-General had the power to dismiss him. The dismissal order would not be void on the ground that it is made by an authority lower than the appointing authority. Therefore, the contention of the appellant must be negatived. ### Response: 0

M/s. Sandur Manganese & Iron Ores Ltd Vs. Commissioner of Income Tax

Heard learned counsel on both sides. These civil appeals filed by the assessee pertain to Assessment Years 1985-1986, 1986-1987, 1989-1990, 1990-1991 and 1992-1993. The assessee is a limited Company engaged in the business of extraction of manganese and iron ore. The assessee is also a mine owner. For Assessment Year 1985-1986, the assessee filed its Return of Income on 30th October, 1985 declaring a loss of Rs.8,65,97,200/-. Subsequently, the Company filed its revised Return of Income declaring a loss of Rs.12,83,16,800/-. One of the claims made for deduction by the assessee was under Section 37(1) of the Income Tax Act, 1961 [`Act, for short]. The assessee claimed that it had spent a sum of Rs.11,40,641/- as welfare expenses towards providing education to its employees children. During the course of discussion with the Assessing Officer, the Company stated that it had made payments to other educational institutions where the children of its employees were studying. At this stage, it is important to note that assessee has established Sandur Residential School and Sandur Education Society for imparting education to students in that area. Before us, it has been argued on behalf of the assessee that these payments were made by way of reimbursement to cover the deficit which the school incurred during the relevant accounting year. In that connection, reliance was placed on the findings given by the Income Tax Appellate Tribunal [`ITAT, for short] and the High Court. However, what we find from the assessment order for Assessment Year 1985-1986 and from the Order of Commissioner of Income Tax (Appeals) [`C.I.T. (A) for short] is that the assessee has made payments to schools other than Sandur Residential School and Sandur Education Society, which fact has not been discussed either in the Order of ITAT or in the Order of the High Court. In fact, before the Assessing Officer as well as before C.I.T. (A), we do not find the argument of the assessee that these were reimbursements. As stated above, we are concerned with Assessment Years 1985-1986, 1986-1987, 1989-1990, 1990-1991 and 1992-1993. The interpretation of Section 40A(9) of the Act clearly brings out a dichotomy between `contribution and `reimbursement. Section 40A(9) of the Act was inserted by Finance Act No.2 of 1984. In the Explanatory Memo to the Finance Bill, 1984, the following explanation indicates the reasons why the word `contribution finds place in Section 40A of the Act. We quote hereinbelow Paragraphs 35, 36 and 37 of the Memorandum: 35. Sums contributed by an employer to a recognised provident fund, an approved superannuation fund and an approved gratuity fund are deducted in computing his taxable profits. Expenditure actually incurred on the welfare of employees is also allowed as deduction. Instances have come to notice where certain employers have created irrevocable trusts, ostensibly for the welfare of employees, and transferred to such trusts substantial amounts by way of contribution. Some of these trusts have been set up as discretionary trusts with absolute discretion to the trustees to utilise the trust property in such manner as they may think fit for the benefit of the employees, without any scheme or safeguards for the proper disbursement of these funds. Investment of trust funds has also been left to the complete discretion of the trustees. Such trusts are, therefore, intended to be used as a vehicle for tax avoidance by claiming deduction in respect of such contributions, which may even flow back to the employer in the form of deposit. 36. With a view to discouraging the creation of such trusts, the Bill seeks to make a provision that no deduction shall be allowed in the computation of taxable profits in respect of any sums paid by the taxpayer as an employer towards the setting up of, or as contribution to, any fund or trust for any purpose, except where such sum is paid or contributed (within the limits laid down under the relevant provisions) to a recognised provident find or an approved gratuity fund or an approved superannuation fund or for the purposes of and to the extent required under any other law. 37. With a view to avoiding litigation regarding the allowability of claims for deduction in respect of contributions made in recent years to such trusts, the proposed amendment is being made retrospectively from 1st April, 1980, and will, accordingly, apply in relation to the assessment year 1980-81 and subsequent years. It appears that Section 40A(9) of the Act was inserted as a measure for combating tax avoidance. Suffice it to say that the application of Section 40A(9) of the Act, in the present case, would come into play only after the assessee has established the basic facts. In the present case, we do not know how the ITAT and the High Court have come to the conclusion that these payments made by the assessee constituted reimbursement. As stated above, for the Assessment Year 1985-1986, the Assessing Officer records that an amount of Rs.11,40,641/- has been incurred by payments to other educational institutions and not by way of payments made to school or the society promoted by the assessee. For each assessment year, therefore, the ITAT will have to record a separate finding as to whether the claim for deduction is being made for payments to the school promoted by the assessee or to some other educational institutions/schools and thereafter apply Section 40A(9) of the Act which has not been done in the present case.

1[ds]In the present case, we do not know how the ITAT and the High Court have come to the conclusion that these payments made by the assessee constituted reimbursement. As stated above, for the Assessment Year 1985-1986, the Assessing Officer records that an amount of Rs.11,40,641/- has been incurred by payments to other educational institutions and not by way of payments made to school or the society promoted by the assessee. For each assessment year, therefore, the ITAT will have to record a separate finding as to whether the claim for deduction is being made for payments to the school promoted by the assessee or to some other educational institutions/schools and thereafter apply Section 40A(9) of the Act which has not been done in the present case.

### Instruction: From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant. ### Input: Heard learned counsel on both sides. These civil appeals filed by the assessee pertain to Assessment Years 1985-1986, 1986-1987, 1989-1990, 1990-1991 and 1992-1993. The assessee is a limited Company engaged in the business of extraction of manganese and iron ore. The assessee is also a mine owner. For Assessment Year 1985-1986, the assessee filed its Return of Income on 30th October, 1985 declaring a loss of Rs.8,65,97,200/-. Subsequently, the Company filed its revised Return of Income declaring a loss of Rs.12,83,16,800/-. One of the claims made for deduction by the assessee was under Section 37(1) of the Income Tax Act, 1961 [`Act, for short]. The assessee claimed that it had spent a sum of Rs.11,40,641/- as welfare expenses towards providing education to its employees children. During the course of discussion with the Assessing Officer, the Company stated that it had made payments to other educational institutions where the children of its employees were studying. At this stage, it is important to note that assessee has established Sandur Residential School and Sandur Education Society for imparting education to students in that area. Before us, it has been argued on behalf of the assessee that these payments were made by way of reimbursement to cover the deficit which the school incurred during the relevant accounting year. In that connection, reliance was placed on the findings given by the Income Tax Appellate Tribunal [`ITAT, for short] and the High Court. However, what we find from the assessment order for Assessment Year 1985-1986 and from the Order of Commissioner of Income Tax (Appeals) [`C.I.T. (A) for short] is that the assessee has made payments to schools other than Sandur Residential School and Sandur Education Society, which fact has not been discussed either in the Order of ITAT or in the Order of the High Court. In fact, before the Assessing Officer as well as before C.I.T. (A), we do not find the argument of the assessee that these were reimbursements. As stated above, we are concerned with Assessment Years 1985-1986, 1986-1987, 1989-1990, 1990-1991 and 1992-1993. The interpretation of Section 40A(9) of the Act clearly brings out a dichotomy between `contribution and `reimbursement. Section 40A(9) of the Act was inserted by Finance Act No.2 of 1984. In the Explanatory Memo to the Finance Bill, 1984, the following explanation indicates the reasons why the word `contribution finds place in Section 40A of the Act. We quote hereinbelow Paragraphs 35, 36 and 37 of the Memorandum: 35. Sums contributed by an employer to a recognised provident fund, an approved superannuation fund and an approved gratuity fund are deducted in computing his taxable profits. Expenditure actually incurred on the welfare of employees is also allowed as deduction. Instances have come to notice where certain employers have created irrevocable trusts, ostensibly for the welfare of employees, and transferred to such trusts substantial amounts by way of contribution. Some of these trusts have been set up as discretionary trusts with absolute discretion to the trustees to utilise the trust property in such manner as they may think fit for the benefit of the employees, without any scheme or safeguards for the proper disbursement of these funds. Investment of trust funds has also been left to the complete discretion of the trustees. Such trusts are, therefore, intended to be used as a vehicle for tax avoidance by claiming deduction in respect of such contributions, which may even flow back to the employer in the form of deposit. 36. With a view to discouraging the creation of such trusts, the Bill seeks to make a provision that no deduction shall be allowed in the computation of taxable profits in respect of any sums paid by the taxpayer as an employer towards the setting up of, or as contribution to, any fund or trust for any purpose, except where such sum is paid or contributed (within the limits laid down under the relevant provisions) to a recognised provident find or an approved gratuity fund or an approved superannuation fund or for the purposes of and to the extent required under any other law. 37. With a view to avoiding litigation regarding the allowability of claims for deduction in respect of contributions made in recent years to such trusts, the proposed amendment is being made retrospectively from 1st April, 1980, and will, accordingly, apply in relation to the assessment year 1980-81 and subsequent years. It appears that Section 40A(9) of the Act was inserted as a measure for combating tax avoidance. Suffice it to say that the application of Section 40A(9) of the Act, in the present case, would come into play only after the assessee has established the basic facts. In the present case, we do not know how the ITAT and the High Court have come to the conclusion that these payments made by the assessee constituted reimbursement. As stated above, for the Assessment Year 1985-1986, the Assessing Officer records that an amount of Rs.11,40,641/- has been incurred by payments to other educational institutions and not by way of payments made to school or the society promoted by the assessee. For each assessment year, therefore, the ITAT will have to record a separate finding as to whether the claim for deduction is being made for payments to the school promoted by the assessee or to some other educational institutions/schools and thereafter apply Section 40A(9) of the Act which has not been done in the present case. ### Response: 1

GOVERNMENT OF KERALA & ANR Vs. MOTHER SUPERIOR ADORATION CONVENT

of the Tribunal but without any order as to costs. 19. While construing an exemption in a sales tax statute, this Court in CST v. Amara Raja Batteries Ltd (2009) 8 SCC 209 held: 21. An exemption notification should be given a literary (sic literal) meaning. Recourse to other principles or canons of interpretation of statute should be resorted to only in the event the same give rise to anomaly or absurdity. The exemption notification must be construed having regard to the purpose and object it seeks to achieve. The Government sought for increase in industrial development in the State. Such a benevolent act on the part of the State, unless there exists any statutory interdict, should be given full effect. (See Vadilal Chemicals Ltd. v. State of A.P. (2005) 6 SCC 292 ) 20. Likewise, even under the Customs Act, this Court in Commr. of Customs (Preventive) v. M. Ambalal & Co. (2011) 2 SCC 74 made a clear distinction between exemptions which are to be strictly interpreted as opposed to beneficial exemptions having as their purpose - encouragement or promotion of certain activities. This case felicitously put the law thus follows: 16. It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. The rule regarding exemptions is that exemptions should generally be strictly interpreted but beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. This composite rule is not stated in any particular judgment in so many words. In fact, majority of judgments emphasise that exemptions are to be strictly interpreted while some of them insist that exemptions in fiscal statutes are to be liberally interpreted giving an apparent impression that they are contradictory to each other. But this is only apparent. A close scrutiny will reveal that there is no real contradiction amongst the judgments at all. The synthesis of the views is quite clearly that the general rule is strict interpretation while special rule in the case of beneficial and promotional exemption is liberal interpretation. The two go very well with each other because they relate to two different sets of circumstances. 21. This judgment was followed in CCE v. Favourite Industries (2012) 7 SCC 153 (see paragraph 42). 22. A recent 5-Judge Bench judgment was cited by Shri Gupta in Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1. The 5- Judge Bench was set up as a 3-Judge Bench in Sun Export Corporation v. Collector of Customs 1997 (6) SCC 564 was doubted, as the said judgment ruled that an ambiguity in a tax exemption provision must be interpreted so as to favour the assessee claiming the benefit of such exemption. This Court after dealing with a number of judgments relating to exemption provisions in tax statutes, ultimately concluded as follows: 66. To sum up, we answer the reference holding as under: 66.1. Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. 66.2. When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the Revenue. 66.3. The ratio in Sun Export case [Sun Export Corpn. v. Collector of Customs, (1997) 6 SCC 564 ] is not correct and all the decisions which took similar view as in Sun Export case stand overruled. 23. It may be noticed that the 5-Judge Bench judgment did not refer to the line of authority which made a distinction between exemption provisions generally and exemption provisions which have a beneficial purpose. We cannot agree with Shri Guptas contention that sub-silentio the line of judgments qua beneficial exemptions has been done away with by this 5-Judge Bench. It is well settled that a decision is only an authority for what it decides and not what may logically follow from it (see Quinn v. Leathem [1901] AC 495 as followed in State of Orissa v. Sudhansu Sekhar Misra (1968) 2 SCR 154 at 162,163) 24. This being the case, it is obvious that the beneficial purpose of the exemption contained in Section 3(1)(b) must be given full effect to, the line of authority being applicable to the facts of these cases being the line of authority which deals with beneficial exemptions as opposed to exemptions generally in tax statutes. This being the case, a literal formalistic interpretation of the statute at hand is to be eschewed. We must first ask ourselves what is the object sought to be achieved by the provision, and construe the statute in accord with such object. And on the assumption that any ambiguity arises in such construction, such ambiguity must be in favour of that which is exempted. Consequently, for the reasons given by us, we agree withthe conclusions reached by the impugned judgments of the Division Bench and the Full Bench. 25. The matter can also be seen from a slightly different angle. Where a High Court construes a local statute, ordinarily deference must be given to the High Court judgments in interpreting such a statute, particularly when they have stood the test of time (see State of Gujarat v. Zinabhai Ranchhodji Darji (1972) 1 SCC 233 at paragraph 10, Bishamber Dass Kohli v. Satya Bhalla (1993) 1 SCC 566 at paragraph 11, Duroflex Coir Industries Ltd. v. CST 1993 Supp (1) SCC 568 at paragraph 2, State of Karnataka v. G. Seenappa 1993 Supp (1) SCC 648 at paragraph 3 and Bonam Satyavathi v. Addala Raghavulu 1994 Supp (2) SCC 556 at paragraph 4). This is all the more applicable in the case of tax statutes where persons arrange their affairs on the basis of the legal position as it exists.

0[ds]12. A reading of the provision would show that the object for exempting buildings which are used principally for religious, charitable or educational purposes would be for core religious, charitable or educational activity as well as purposes directly connected with religious activity. One example will suffice to show the difference between a purpose that is directly connected with religious or educational activity and a purpose which is only indirectly connected with such activity. Take a case where, unlike the facts in Civil Appeal No. 202 of 2012, nuns are not residing in a building next to a convent so that they may walk over to the convent for religious instruction. Take a case where the neighbouring building to the convent is let out on rent to any member of the public, and the rent is then utilised only for core religious activity. Can it be said that the letting out at market rent would be connected with religious activity because the rental that is received is ploughed back only into religious activity? Letting out a building for a commercial purpose would lose any rational connection with religious activity. The indirectconnection with religious activity being the profits which are ploughed back into religious activity would obviously not suffice to exempt such a building. But if on the other hand, nuns areliving in a neighbouring building to a convent only so that they may receive religious instruction there, or if students are living in a hostel close to the school or college in which they are imparted instruction, it is obvious that the purpose of such residence is not to earn profit but residence that is integrally connected with religious or educational activity.13. A reading of the other provisions of the Act strengthens the aforesaid conclusion. Residential building is defined separately from building in Section 2(l). A residential building means a building or any other structure or part thereof built exclusively for residential purpose. It is important to note that residential building is not the subject matter of exemption under Section 3 of the Act. Quite the contrary is to be found in Section 5A of the Act, which starts with a non-obstante clause, and which states that a luxury tax is to be charged on all residential buildings having a plinth area of 278.7 square meters and which have been completed on or after 1.4.1999. If we were to accept the contention of the State, buildings in which nuns are housed and students are accommodated in hostels which have been completed after 1.4.1999 and which have a plinth area of 278.7 square meters would be liable to pay luxury tax as these buildings would now no longer be buildings used principally for religious or educational purposes, but would be residential buildings used exclusively for residential purposes. This would turn the object sought to be achieved in exempting such buildings on its head. For this reason also, we cannot countenance a plea by the State that buildings which are used for purposes integrally connected with religious or educational activity are yet outside the scope of the exemption contained in Section 3(1)(b) of the Act. We may now examine the case law.14. In Union of India v. Wood Papers Ltd (1990) 4 SCC 256 the rule as to exemption notifications in tax statutes was felicitously laid down as follows:4. Entitlement of exemption depends on construction of the expression any factory commencing production used in the Table extracted above. Literally exemption is freedom from liability, tax or duty. Fiscally it may assume varying shapes, specially, in a growing economy. For instance tax holiday to new units, concessional rate of tax to goods or persons for limited period or with the specific objective etc. That is why its construction, unlike charging provision, has to be tested on different touchstone. In fact an exemption provision is like an exception and on normal principle of construction or interpretation of statutes it is construed strictly either because of legislative intention or on economic justification of inequitable burden or progressive approach of fiscal provisions intended to augment State revenue. But once exception or exemption becomes applicable no rule or principle requires it to be construed strictly. Truly speaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction. Therefore, the first exercise that has to be undertaken is if the production of packing and wrapping material in the factory as it existed prior to 1964 is covered in the notification.15. This statement of the law was followed in a number of judgments. Suffice it to say that in Star Industries v. Commr. of Customs (Imports) (2016) 2 SCC 362 , a large number of judgments are referred to for the same proposition (see paragraphs 32 to 34).16. However, there is another line of authority which states that even in tax statutes, an exemption provision should be liberally construed in accordance with the object sought to be achieved if such provision is to grant incentive for promoting economic growth or otherwise has some beneficial reason behind it. In such cases, the rationale of the judgments following Wood Papers (supra) does not apply. In fact, the legislative intent is not to burden the subject with tax so that some specific public interest is furthered. Thus, in CST v. Industrial Coal Enterprises (1999) 2 SCC 607 , this Court held:11. In CIT v. Straw Board Mfg. Co. Ltd. 1989 Supp (2) SCC 523 this Court held that in taxing statutes, provision for concessional rate of tax should be liberally construed. So also in Bajaj Tempo Ltd. v. CIT (1992) 3 SCC 78 it was held that provision granting incentive for promoting economic growth and development in taxing statutes should be liberally construed and restriction placed on it by way of exception should be construed in a reasonable and purposive manner so as to advance the objective of the provision.12. We find that the object of granting exemption from payment of sales tax has always been for encouraging capital investment and establishment of industrial units for the purpose of increasing production of goods and promoting the development of industry in the State. If the test laid down in Bajaj Tempo Ltd. case (1992) 3 SCC 78 is applied, there is no doubt whatever that the exemption granted to the respondent from 9-8-1985 when it fulfilled all the prescribed conditions will not cease to operate just because the capital investment exceeded the limit of Rs 3 lakhs on account of the respondent becoming the owner of land and building to which the unit was shifted. If the construction sought to be placed by the appellant is accepted, the very purpose and object of the grant of exemption will be defeated. After all, the respondent had only shifted the unit to its own premises which made it much more convenient and easier for the respondent to carry on the production of the goods undisturbed by the vagaries of the lessor and without any necessity to spend a part of its income on rent. It is not the case of the appellant that there were any mala fides on the part of the respondent in obtaining exemption in the first instance as a unit with a capital investment below Rs 3 lakhs and increasing the capital investment subsequently to an amount exceeding Rs 3 lakhs with a view to defeat the provisions of any of the relevant statutes. The bona fides of the respondent have never been questioned by the appellant.18. Similarly, in Pondicherry State Coop. Consumer Federation Ltd. v. Union Territory of Pondicherry (2008) 1 SCC 206 this Court held:5. Learned Senior Counsel Shri Venkatraman appearing for the appellant assessee submitted that this question was no more res integra and was covered by the judgment of this Court in Vadilal Chemicals Ltd. v. State of A.P. (2005) 6 SCC 292. It was pointed out that in that case an identical question fell for consideration under the similar circumstances. There also, the question was as to whether the small-scale industry which was engaged in bottling of anhydrous ammonia could be said to be entitled to the exemption from payment of sales tax on the ground that it was manufacturing such goods since there was a general exemption offered by the Andhra Pradesh Government by GOMs No. 117 dated 17-3-1993 to the small-scale industry. There also it was found on inspection that the assessee industry was allowed irregular tax exemption on the first sales of anhydrous liquefied ammonia as it was found that the commodity that was purchased and sold was one of the same and there was no new commodity that had emerged and that the assessee had only done bottling of ammonia. The show-cause notices were issued to the assessee in that case suggesting therein that the activity of bottling/packing of gases into unit containers from bulk quantities was not recognised as manufacture even under the Central Excise Act. In that view the question which fell for consideration before this Court was as to whether under the circumstances the assessee could claim the exemption. This Court firstly held that the exemption certificate was granted by the authorities after due consideration. It was then noted that though the exemption was available on the products manufactured in industrial units, the interpretation put forth by the authorities on the word manufacture was incorrect. This Court took the view that the authorities had based the interpretation of word manufacture on the law relating to excise and that it was erroneous to do so. It was observed that in the State Sales Tax Act there was no provision relating to manufacture and the concept was to be found only in the 1993 G.O. which had provided the exemption. The Court further took the view that the exemption was granted with a view to give a fillip to the industry in the State and also for the industrial units of the State. The Court, therefore, took the view that a liberal interpretation of the term manufacture should have been adopted by the State authorities, more particularly, when the State authorities had granted the certificate of eligibility after due consideration of the facts.6. In our view the law laid down in this decision is applicable to the present case on all fours. Here also the authorities had firstly certified the assessees industry to be small-scale industry and had then proceeded to grant exemption to it from payment of sales tax on the goods manufactured. The said certificate was not found to have been erroneously issued and was very much in vogue when the show- cause notices came to be served on the assessee. The G.O. providing exemption clearly suggested that such exemption was given in the public interest. Therefore, it is obvious that the decision in Vadilal Chemicals case (2005) 6 SCC 292 would be equally applicable as even in that case what the industry did was to bottle the ammonia gas purchased in bulk. In the present case it is palmolive oil which is purchased in bulk and is repacked so as to facilitate its sale in the retail market.7. Shri T.L.V. Iyer, Senior Advocate appearing on behalf of the Union Territory of Pondicherry, however, tried to suggest that the exemption from payment of tax granted on 19-5-1989 was granted by the Director of Industries and it was clear from that exemption that it was only on the basis of GOMs No. 15/74 dated 25-6-1974. Our attention was invited to the last lines of the aforementioned G.O. dated 19-5-1989. The last portion is as under:The unit is exempted from payment of sales tax for five years vide GOMs No. 15/74/FIN(CT) dated 25-6-1974.On this the learned Senior Counsel argued that, therefore, it had to be proved that the goods were manufactured by the assessee and in the present case since the palmolive oil did not change its character on its being repacked by the assessee, it could not be said that the assessee had manufactured any goods. Learned counsel also urges that in the absence of any definition of manufactured goods in the Sales Tax Act, we would have to fall back upon either the dictionary meaning of the term or to borrow it from the Central Excise Act. We are afraid, the contention cannot be accepted in the wake of clear law laid down by this Court in Vadilal Chemicals case (2005) 6 SCC 292. We have already shown as to how the decision in that case is applicable to the present situation. In that view we are of the clear opinion that since in the present case the exemption was granted to all small- scale industrial units registered with the Director of Industries and since the assessee was recognised and certified as a small industrial unit, engaged in the activity of repacking of edible oil and further since the exemption was granted with the open eyes to this particular industry, the State cannot be allowed to turn around and take a stance that the appellant assessee was not entitled to the exemption on the ground that it did not manufacture any goods. We are in respectful agreement with the view taken in Vadilal Chemicals case (2005) 6 SCC 292 which is more particularly reflected in paras 19 and 20 of that decision where this Court observed as under: (SCC p. 298, para 20)20. In this case the State Sales Tax Act contains no provision relating to manufacture. The concept only finds place in the 1993 G.O. issued by the Department of Commerce and Industries. It appears from the context of the other provisions of the 1993 G.O. that the word manufacture had been used to exclude dealers who merely purchased the goods and resold the same on retail price. What the State Government wanted was investment and industrial activity. It is in this background that the 1993 G.O. must be interpreted. (See CST v. Industrial Coal Enterprises (1999) 2 SCC 607 ). The exemption was granted in terms of the 1993 G.O. the thrust of which was to increase industrial development in the State.8. We respectfully agree with the aforesaid observations and would choose to take the same view by accepting the contention of the appellant that a liberal view of GOMs No. 15/74 dated 25-6- 1974 would have to be taken. We accordingly allow the appeal, set aside the order passed by the High Court and restore that of the Tribunal but without any order as to costs.20. Likewise, even under the Customs Act, this Court in Commr. of Customs (Preventive) v. M. Ambalal & Co. (2011) 2 SCC 74 made a clear distinction between exemptions which are to be strictly interpreted as opposed to beneficial exemptions having as their purpose - encouragement or promotion of certain activities. This case felicitously put the law thus follows:16. It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. The rule regarding exemptions is that exemptions should generally be strictly interpreted but beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. This composite rule is not stated in any particular judgment in so many words. In fact, majority of judgments emphasise that exemptions are to be strictly interpreted while some of them insist that exemptions in fiscal statutes are to be liberally interpreted giving an apparent impression that they are contradictory to each other. But this is only apparent. A close scrutiny will reveal that there is no real contradiction amongst the judgments at all. The synthesis of the views is quite clearly that the general rule is strict interpretation while special rule in the case of beneficial and promotional exemption is liberal interpretation. The two go very well with each other because they relate to two different sets of circumstances.22. A recent 5-Judge Bench judgment was cited by Shri Gupta in Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1. The 5- Judge Bench was set up as a 3-Judge Bench in Sun Export Corporation v. Collector of Customs 1997 (6) SCC 564 was doubted, as the said judgment ruled that an ambiguity in a tax exemption provision must be interpreted so as to favour the assessee claiming the benefit of such exemption. This Court after dealing with a number of judgments relating to exemption provisions in tax statutes, ultimately concluded as follows:66. To sum up, we answer the reference holding as under:66.1. Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification.66.2. When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the Revenue.66.3. The ratio in Sun Export case [Sun Export Corpn. v. Collector of Customs, (1997) 6 SCC 564 ] is not correct and all the decisions which took similar view as in Sun Export case stand overruled.23. It may be noticed that the 5-Judge Bench judgment did not refer to the line of authority which made a distinction between exemption provisions generally and exemption provisions which have a beneficial purpose. We cannot agree with Shri Guptas contention that sub-silentio the line of judgments qua beneficial exemptions has been done away with by this 5-Judge Bench. It is well settled that a decision is only an authority for what it decides and not what may logically follow from it (see Quinn v. Leathem [1901] AC 495 as followed in State of Orissa v. Sudhansu Sekhar Misra (1968) 2 SCR 154 at 162,163)24. This being the case, it is obvious that the beneficial purpose of the exemption contained in Section 3(1)(b) must be given full effect to, the line of authority being applicable to the facts of these cases being the line of authority which deals with beneficial exemptions as opposed to exemptions generally in tax statutes. This being the case, a literal formalistic interpretation of the statute at hand is to be eschewed. We must first ask ourselves what is the object sought to be achieved by the provision, and construe the statute in accord with such object. And on the assumption that any ambiguity arises in such construction, such ambiguity must be in favour of that which is exempted. Consequently, for the reasons given by us, we agree withthe conclusionsreached by the impugned judgments of the Division Bench and the Full Bench.25. The matter can also be seen from a slightly different angle. Where a High Court construes a local statute, ordinarily deference must be given to the High Court judgments in interpreting such a statute, particularly when they have stood the test of time (see State of Gujarat v. Zinabhai Ranchhodji Darji (1972) 1 SCC 233 at paragraph 10, Bishamber Dass Kohli v. Satya Bhalla (1993) 1 SCC 566 at paragraph 11, Duroflex Coir Industries Ltd. v. CST 1993 Supp (1) SCC 568 at paragraph 2, State of Karnataka v. G. Seenappa 1993 Supp (1) SCC 648 at paragraph 3 and Bonam Satyavathi v. Addala Raghavulu 1994 Supp (2) SCC 556 at paragraph 4). This is all the more applicable in the case of tax statutes where persons arrange their affairs on the basis of the legal position as it exists.

### 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 the Tribunal but without any order as to costs. 19. While construing an exemption in a sales tax statute, this Court in CST v. Amara Raja Batteries Ltd (2009) 8 SCC 209 held: 21. An exemption notification should be given a literary (sic literal) meaning. Recourse to other principles or canons of interpretation of statute should be resorted to only in the event the same give rise to anomaly or absurdity. The exemption notification must be construed having regard to the purpose and object it seeks to achieve. The Government sought for increase in industrial development in the State. Such a benevolent act on the part of the State, unless there exists any statutory interdict, should be given full effect. (See Vadilal Chemicals Ltd. v. State of A.P. (2005) 6 SCC 292 ) 20. Likewise, even under the Customs Act, this Court in Commr. of Customs (Preventive) v. M. Ambalal & Co. (2011) 2 SCC 74 made a clear distinction between exemptions which are to be strictly interpreted as opposed to beneficial exemptions having as their purpose - encouragement or promotion of certain activities. This case felicitously put the law thus follows: 16. It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. The rule regarding exemptions is that exemptions should generally be strictly interpreted but beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. This composite rule is not stated in any particular judgment in so many words. In fact, majority of judgments emphasise that exemptions are to be strictly interpreted while some of them insist that exemptions in fiscal statutes are to be liberally interpreted giving an apparent impression that they are contradictory to each other. But this is only apparent. A close scrutiny will reveal that there is no real contradiction amongst the judgments at all. The synthesis of the views is quite clearly that the general rule is strict interpretation while special rule in the case of beneficial and promotional exemption is liberal interpretation. The two go very well with each other because they relate to two different sets of circumstances. 21. This judgment was followed in CCE v. Favourite Industries (2012) 7 SCC 153 (see paragraph 42). 22. A recent 5-Judge Bench judgment was cited by Shri Gupta in Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1. The 5- Judge Bench was set up as a 3-Judge Bench in Sun Export Corporation v. Collector of Customs 1997 (6) SCC 564 was doubted, as the said judgment ruled that an ambiguity in a tax exemption provision must be interpreted so as to favour the assessee claiming the benefit of such exemption. This Court after dealing with a number of judgments relating to exemption provisions in tax statutes, ultimately concluded as follows: 66. To sum up, we answer the reference holding as under: 66.1. Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. 66.2. When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the Revenue. 66.3. The ratio in Sun Export case [Sun Export Corpn. v. Collector of Customs, (1997) 6 SCC 564 ] is not correct and all the decisions which took similar view as in Sun Export case stand overruled. 23. It may be noticed that the 5-Judge Bench judgment did not refer to the line of authority which made a distinction between exemption provisions generally and exemption provisions which have a beneficial purpose. We cannot agree with Shri Guptas contention that sub-silentio the line of judgments qua beneficial exemptions has been done away with by this 5-Judge Bench. It is well settled that a decision is only an authority for what it decides and not what may logically follow from it (see Quinn v. Leathem [1901] AC 495 as followed in State of Orissa v. Sudhansu Sekhar Misra (1968) 2 SCR 154 at 162,163) 24. This being the case, it is obvious that the beneficial purpose of the exemption contained in Section 3(1)(b) must be given full effect to, the line of authority being applicable to the facts of these cases being the line of authority which deals with beneficial exemptions as opposed to exemptions generally in tax statutes. This being the case, a literal formalistic interpretation of the statute at hand is to be eschewed. We must first ask ourselves what is the object sought to be achieved by the provision, and construe the statute in accord with such object. And on the assumption that any ambiguity arises in such construction, such ambiguity must be in favour of that which is exempted. Consequently, for the reasons given by us, we agree withthe conclusions reached by the impugned judgments of the Division Bench and the Full Bench. 25. The matter can also be seen from a slightly different angle. Where a High Court construes a local statute, ordinarily deference must be given to the High Court judgments in interpreting such a statute, particularly when they have stood the test of time (see State of Gujarat v. Zinabhai Ranchhodji Darji (1972) 1 SCC 233 at paragraph 10, Bishamber Dass Kohli v. Satya Bhalla (1993) 1 SCC 566 at paragraph 11, Duroflex Coir Industries Ltd. v. CST 1993 Supp (1) SCC 568 at paragraph 2, State of Karnataka v. G. Seenappa 1993 Supp (1) SCC 648 at paragraph 3 and Bonam Satyavathi v. Addala Raghavulu 1994 Supp (2) SCC 556 at paragraph 4). This is all the more applicable in the case of tax statutes where persons arrange their affairs on the basis of the legal position as it exists. ### Response: 0

State Of Gujarat Vs. Akhil Gujarat Pravasi V.S.Mahamandal&Ors

It was held that the short break taken during the course of journey could not fasten liability for tax as the words kept employed in Section 3 had an altogether different connotation, which has an element of stationariness. The principle laid down in this case can hardly have any application here. Similarly, the writ petitioners can drive no assistance from State of Gujarat vs. Kaushikbhai K. Patel AIR 2000 SC 2175 , wherein the words for reasons beyond the control of such owner or person previously occurring in Section 3A(5)(b) were held to be beyond the legislative competence of the State. In this case the High Court had held that once the statute provided for refund of tax on account of non-use of the vehicle, the legislature could not have imposed a further condition to the effect for reasons beyond the control of such owner or person and the said expression was held to be beyond the legislative competence. The appeal preferred by the State of Gujarat was dismissed by this Court and the view taken by the High Court was affirmed. We would like to point out that the judgment does not show that the attention of the Bench was invited to any of the decisions which we have referred to above, wherein it has been held that actual user of the road is not material and mere keeping of the vehicle which is capable of being used is enough to attract liability of tax. 21. Learned counsel for the writ petitioners has submitted that the purpose for which the Act was enacted was to augment the financial resources of the State to meet the huge expenditure on account of natural calamities etc. as has been mentioned in the Statement of Objects and Reasons. Therefore, the Act is not a compensatory enactment which may have been passed for collecting revenue for the purpose of maintenance of roads and consequently the same is invalid. In our opinion, the contention raised has not substance. In G.K. Krishnan vs. State of Tamil Nadu AIR 1975 SC 583 this Court has clearly ruled that if the State Legislature was competent to pass the Act, the question of motive with which the tax was imposed is immaterial and there can be no plea of a colourable exercise of power of tax if the Government had the power to impose the tax. it was further held that if the Government had a authority to impose a tax, the fact that it gave a wrong reason for exercising the power would not derogate from the validity of the tax. 22. Learned counsel for the writ petitioners has also submitted that only contract carriages which are designated as omnibuses and luxury or tourist designated omnibuses have been subjected to a very heavy tax under Section 3A of the Act, whilst all other vehicles are taxed under Section 3 of the Act and whereunder the quantum of tax is much lower as would be evident from First to Seventh Schedule of the Act. The submission is that these vehicles have been discriminated against in the matter of taxation and there is no lawful justification for meeting out such differential treatment to them. We are unable to accept the submission made. A similar contention was negatived in G.K. Krishnan vs. State of Tamil Nadu AIR 1975 SC 583 on the ground that the classification of vehicles as Stage carriage and contract carriage for the purpose of imposing a higher tax on the latter is presumed to be reasonable having regard to the fact that it was based on local conditions of which the Government was fully cognizant and the differentiation thus made has reasonable relation to the purpose of the Act. A similar contention made in Malwa Bus Service vs. State of Punjab AIR 1983 SC 634 was repelled and it was held as under: "There is no dispute that even a fiscal legislation is subject to Article 14of the Constitution. But it is well settled that a legislature in order to tax some need not tax all. It can adopt a reasonable classification of persons and things in imposing tax liabilities. A law of taxation cannot be termed as being discriminatory because different rates of taxation are prescribed in respect of different items, provided it is possible to hold that the said items belong to distinct and separate groups and that there is a reasonable nexus between the classification and the object to be achieved by the imposition of different rates of taxation. The mere fact that a tax falls more heavily on certain goods or persons may not result in its invalidity..." It was further held that the Courts lean more readily in favour of upholding the constitutionality of taxing law in view of the complexities involved in the social and economic life of the community. Unless the fiscal law in question is manifestly discriminatory, the Court should refrain from striking it down on the ground of discrimination. This being the position of law, it is not possible to accept the contention of the writ petitioners that the tax imposed upon the designated omnibuses is discriminatory. 23. Nothing new has been pointed out to challenge Gujarat Act No. 9 of 2002 by which the Bombay Motor Vehicles Taxation Act, as adopted in the State of Gujarat with up to date amendments, was further amended after the decision of the High Court which was rendered on 17th August, 2001. In fact, the main argument of the learned counsel for the writ petitioners is that the said amending Act merely rearranged the Sections and suffered from the same infirmity as the previous Act. Since we are of the opinion that the view taken by the High Court is not correct and Section 3A and Rule 5 of the Rules, as incorporated vide notification dated 6.2.2001 are intra vires and are perfectly valid, the challenge made to Gujarat Act No. 9 of 2002 has no substance and must fail. 24.

1[ds]Learned counsel for the writ petitioners has also submitted that only contract carriages which are designated as omnibuses and luxury or tourist designated omnibuses have been subjected to a very heavy tax under Section 3A of the Act, whilst all other vehicles are taxed under Section 3 of the Act and whereunder the quantum of tax is much lower as would be evident from First to Seventh Schedule of theAct. The submission is that these vehicles have been discriminated against in the matter of taxation and there is no lawful justification for meeting out such differential treatment to them. We are unable to accept the submission made.Learned counsel for the writ petitioners has submitted that the purpose for which the Act was enacted was to augment the financial resources of the State to meet the huge expenditure on account of natural calamities etc. as has been mentioned in the Statement of Objects andTherefore, the Act is not a compensatory enactment which may have been passed for collecting revenue for the purpose of maintenance of roads and consequently the same is invalid. In our opinion, the contention raised has notnew has been pointed out to challenge Gujarat Act No. 9 of 2002 by which the Bombay Motor Vehicles Taxation Act, as adopted in the State of Gujarat with up to date amendments, was further amended after the decision of the High Court which was rendered on 17th August, 2001. In fact, the main argument of the learned counsel for the writ petitioners is that the said amending Act merely rearranged the Sections and suffered from the same infirmity as the previous Act. Since we are of the opinion that the view taken by the High Court is not correct and Section 3A and Rule 5 of the Rules, as incorporated vide notification dated 6.2.2001 are intra vires and are perfectly valid, the challenge made to Gujarat Act No. 9 of 2002 has no substance and must fail.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: It was held that the short break taken during the course of journey could not fasten liability for tax as the words kept employed in Section 3 had an altogether different connotation, which has an element of stationariness. The principle laid down in this case can hardly have any application here. Similarly, the writ petitioners can drive no assistance from State of Gujarat vs. Kaushikbhai K. Patel AIR 2000 SC 2175 , wherein the words for reasons beyond the control of such owner or person previously occurring in Section 3A(5)(b) were held to be beyond the legislative competence of the State. In this case the High Court had held that once the statute provided for refund of tax on account of non-use of the vehicle, the legislature could not have imposed a further condition to the effect for reasons beyond the control of such owner or person and the said expression was held to be beyond the legislative competence. The appeal preferred by the State of Gujarat was dismissed by this Court and the view taken by the High Court was affirmed. We would like to point out that the judgment does not show that the attention of the Bench was invited to any of the decisions which we have referred to above, wherein it has been held that actual user of the road is not material and mere keeping of the vehicle which is capable of being used is enough to attract liability of tax. 21. Learned counsel for the writ petitioners has submitted that the purpose for which the Act was enacted was to augment the financial resources of the State to meet the huge expenditure on account of natural calamities etc. as has been mentioned in the Statement of Objects and Reasons. Therefore, the Act is not a compensatory enactment which may have been passed for collecting revenue for the purpose of maintenance of roads and consequently the same is invalid. In our opinion, the contention raised has not substance. In G.K. Krishnan vs. State of Tamil Nadu AIR 1975 SC 583 this Court has clearly ruled that if the State Legislature was competent to pass the Act, the question of motive with which the tax was imposed is immaterial and there can be no plea of a colourable exercise of power of tax if the Government had the power to impose the tax. it was further held that if the Government had a authority to impose a tax, the fact that it gave a wrong reason for exercising the power would not derogate from the validity of the tax. 22. Learned counsel for the writ petitioners has also submitted that only contract carriages which are designated as omnibuses and luxury or tourist designated omnibuses have been subjected to a very heavy tax under Section 3A of the Act, whilst all other vehicles are taxed under Section 3 of the Act and whereunder the quantum of tax is much lower as would be evident from First to Seventh Schedule of the Act. The submission is that these vehicles have been discriminated against in the matter of taxation and there is no lawful justification for meeting out such differential treatment to them. We are unable to accept the submission made. A similar contention was negatived in G.K. Krishnan vs. State of Tamil Nadu AIR 1975 SC 583 on the ground that the classification of vehicles as Stage carriage and contract carriage for the purpose of imposing a higher tax on the latter is presumed to be reasonable having regard to the fact that it was based on local conditions of which the Government was fully cognizant and the differentiation thus made has reasonable relation to the purpose of the Act. A similar contention made in Malwa Bus Service vs. State of Punjab AIR 1983 SC 634 was repelled and it was held as under: "There is no dispute that even a fiscal legislation is subject to Article 14of the Constitution. But it is well settled that a legislature in order to tax some need not tax all. It can adopt a reasonable classification of persons and things in imposing tax liabilities. A law of taxation cannot be termed as being discriminatory because different rates of taxation are prescribed in respect of different items, provided it is possible to hold that the said items belong to distinct and separate groups and that there is a reasonable nexus between the classification and the object to be achieved by the imposition of different rates of taxation. The mere fact that a tax falls more heavily on certain goods or persons may not result in its invalidity..." It was further held that the Courts lean more readily in favour of upholding the constitutionality of taxing law in view of the complexities involved in the social and economic life of the community. Unless the fiscal law in question is manifestly discriminatory, the Court should refrain from striking it down on the ground of discrimination. This being the position of law, it is not possible to accept the contention of the writ petitioners that the tax imposed upon the designated omnibuses is discriminatory. 23. Nothing new has been pointed out to challenge Gujarat Act No. 9 of 2002 by which the Bombay Motor Vehicles Taxation Act, as adopted in the State of Gujarat with up to date amendments, was further amended after the decision of the High Court which was rendered on 17th August, 2001. In fact, the main argument of the learned counsel for the writ petitioners is that the said amending Act merely rearranged the Sections and suffered from the same infirmity as the previous Act. Since we are of the opinion that the view taken by the High Court is not correct and Section 3A and Rule 5 of the Rules, as incorporated vide notification dated 6.2.2001 are intra vires and are perfectly valid, the challenge made to Gujarat Act No. 9 of 2002 has no substance and must fail. 24. ### Response: 1

Madras Rubber Factory Ltd Vs. The Union Of India & Ors

order dated November 25, 1972 stating therein :-"The Govt. of India have carefully considered the reasons advanced by the petitioners for their failure to prefer the claims for refund within the time stipulated under section 27 of the Customs Act, 1962, but see no justification to interfere with the appellate orders. The revision applications are, therefore, rejected.These appeals were filed from the said order after obtaining special leave of this Court.3. Mr. D. V. Patel learned counsel for the appellant submitted that in view of the recent decision of this Court in Dunlop India Ltd. v. Union of India V. P. Latex was chargeable to duty under item 39 only. The applications filed by the appellant for refund of the excess amount have erroneously been dismissed on the ground of having been filed out of time. submitted that the appellant used to pay custom duty not as and when a particular consignment was received but by making deposits in a running account. Hence no particular date of payment could be assigned in respect of a particular consignment. He further submitted that the duty was paid under protest and hence under the proviso to sub-section 27, the limitation of six months did not apply. Mr. G. L. Sanghi, learned Counsel for the respondents contended that no case of running account had been made before the authorities below and that there was nothing to show that the duty had been paid under protest in relation to any of the five consignments.4. It is no doubt true that in view of the decision of this Court mentioned above the custom duty was chargeable on import of V. P. Latex under item 39. The authorities below do not seem to have decided the refund applications of the appellant on merits. They have dismissed them merely on the ground of limitation. The only question, therefore, which falls for determination by us is whether the applications for refund were filed out of time. Section 27 reads as follows :-"27. (1) Any person claiming refund of any duty paid by him in pursuance of an order of assessment made by an officer of customs lower in rank than an Assistant Collector of Customs may make an application for refund of such duty to the Assistant Collector of Customs before the expiry of six months from the date of payment of duty.Provided that the limitation of six months shall not apply where any duty has been paid under protest.Explanation. - Where any duty is paid provisionally under section 18, the period of six months shall be computed from the date of adjustment of duty after the final assessment thereof.(2) If on receipt of any such application the Assistant Collector of Customs is satisfied that the whole or any part of the duty paid by the applicant should be refunded to him he may make an order accordingly.(3) Where, as a result of any order in appeal or revision under this Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf.(4) Save as provided in section 26, no claim for refund of any duty shall be entertained except in accordance with the provisions of this section.The appellants case obviously and admittedly was not covered by sub-section (3) as it had not challenged the order of assessment in any appeal or revision. Nor was it a case where any duty was paid provisionally under Section 18. The appellants case was governed by sub-section (1) of section 27. No case of any running account was set up by the appellant nor was there anything in the records of this case to substantiate it. Custom duty was paid in respect of each of the five consignments on the date of its respective bill. Ultimately this position could not be disputed before us. The appellant, however, contended that the duty was paid always under general protest which covered the cases of these five consignments also. Hence under the proviso to sub-section (1) the limitation of six months does not apply.5. Our attention was drawn to several letters in the records of the appeals before us to substantiate the plea of payment under protest, but none of them helps the appellant. We may refer to only two of them. The appellant wrote a letter on February 8, 1968 to the Assistant Collector of Customs, Madras making out a case therein that V. P. Latex was assessable to duty under item 39-ICT. Finally in this letter a protest was made for the assessment of duty under item 87 on V. P. Latex imported by the company in the past. This letter was written before the five consignments in question were imported and duty paid thereon. The protest, therefore, embodied in the letter aforesaid was not in respect of any of these consignments. A letter written on July 15, 1968 was a letter written at a point of time when two out of the five consignments had been imported; but three were imported after the writing of this letter by the appellant to the Asstt. Collector of Customs, Madras. This letter relates to a consignment of 59 drums of V. P. Latex which could not be connected with any of the five consignments in question. Thus there is nothing to show that duty on them paid under protest, general or specific.6. It was lastly contended on behalf of the appellant that in view of the recent decision of this Court, the Government should be directed to refund the excess amount of Rs. 3, 74, 879.49 charged on the five consignments. We are unable to do so because the present appeals arising out of the orders made by the Government of India in proceedings under Section 27(1) of the Act have got to fail on the ground that the view taken by the authorities below on the question of limitation could not be shown to be incorrect.

0[ds]4. It is no doubt true that in view of the decision of this Court mentioned above the custom duty was chargeable on import of V. P. Latex under itemappellants case obviously and admittedly was not covered by sub-section (3) as it had not challenged the order of assessment in any appeal or revision. Nor was it a case where any duty was paid provisionally under Section 18. The appellants case was governed by sub-section (1) of section 27. No case of any running account was set up by the appellant nor was there anything in the records of this case to substantiate it. Custom duty was paid in respect of each of the five consignments on the date of its respective bill. Ultimately this position could not be disputed beforeletter relates to a consignment of 59 drums of V. P. Latex which could not be connected with any of the five consignments in question. Thus there is nothing to show that duty on them paid under protest, general orare unable to do so because the present appeals arising out of the orders made by the Government of India in proceedings under Section 27(1) of the Act have got to fail on the ground that the view taken by the authorities below on the question of limitation could not be shown to be incorrect.

### 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: order dated November 25, 1972 stating therein :-"The Govt. of India have carefully considered the reasons advanced by the petitioners for their failure to prefer the claims for refund within the time stipulated under section 27 of the Customs Act, 1962, but see no justification to interfere with the appellate orders. The revision applications are, therefore, rejected.These appeals were filed from the said order after obtaining special leave of this Court.3. Mr. D. V. Patel learned counsel for the appellant submitted that in view of the recent decision of this Court in Dunlop India Ltd. v. Union of India V. P. Latex was chargeable to duty under item 39 only. The applications filed by the appellant for refund of the excess amount have erroneously been dismissed on the ground of having been filed out of time. submitted that the appellant used to pay custom duty not as and when a particular consignment was received but by making deposits in a running account. Hence no particular date of payment could be assigned in respect of a particular consignment. He further submitted that the duty was paid under protest and hence under the proviso to sub-section 27, the limitation of six months did not apply. Mr. G. L. Sanghi, learned Counsel for the respondents contended that no case of running account had been made before the authorities below and that there was nothing to show that the duty had been paid under protest in relation to any of the five consignments.4. It is no doubt true that in view of the decision of this Court mentioned above the custom duty was chargeable on import of V. P. Latex under item 39. The authorities below do not seem to have decided the refund applications of the appellant on merits. They have dismissed them merely on the ground of limitation. The only question, therefore, which falls for determination by us is whether the applications for refund were filed out of time. Section 27 reads as follows :-"27. (1) Any person claiming refund of any duty paid by him in pursuance of an order of assessment made by an officer of customs lower in rank than an Assistant Collector of Customs may make an application for refund of such duty to the Assistant Collector of Customs before the expiry of six months from the date of payment of duty.Provided that the limitation of six months shall not apply where any duty has been paid under protest.Explanation. - Where any duty is paid provisionally under section 18, the period of six months shall be computed from the date of adjustment of duty after the final assessment thereof.(2) If on receipt of any such application the Assistant Collector of Customs is satisfied that the whole or any part of the duty paid by the applicant should be refunded to him he may make an order accordingly.(3) Where, as a result of any order in appeal or revision under this Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf.(4) Save as provided in section 26, no claim for refund of any duty shall be entertained except in accordance with the provisions of this section.The appellants case obviously and admittedly was not covered by sub-section (3) as it had not challenged the order of assessment in any appeal or revision. Nor was it a case where any duty was paid provisionally under Section 18. The appellants case was governed by sub-section (1) of section 27. No case of any running account was set up by the appellant nor was there anything in the records of this case to substantiate it. Custom duty was paid in respect of each of the five consignments on the date of its respective bill. Ultimately this position could not be disputed before us. The appellant, however, contended that the duty was paid always under general protest which covered the cases of these five consignments also. Hence under the proviso to sub-section (1) the limitation of six months does not apply.5. Our attention was drawn to several letters in the records of the appeals before us to substantiate the plea of payment under protest, but none of them helps the appellant. We may refer to only two of them. The appellant wrote a letter on February 8, 1968 to the Assistant Collector of Customs, Madras making out a case therein that V. P. Latex was assessable to duty under item 39-ICT. Finally in this letter a protest was made for the assessment of duty under item 87 on V. P. Latex imported by the company in the past. This letter was written before the five consignments in question were imported and duty paid thereon. The protest, therefore, embodied in the letter aforesaid was not in respect of any of these consignments. A letter written on July 15, 1968 was a letter written at a point of time when two out of the five consignments had been imported; but three were imported after the writing of this letter by the appellant to the Asstt. Collector of Customs, Madras. This letter relates to a consignment of 59 drums of V. P. Latex which could not be connected with any of the five consignments in question. Thus there is nothing to show that duty on them paid under protest, general or specific.6. It was lastly contended on behalf of the appellant that in view of the recent decision of this Court, the Government should be directed to refund the excess amount of Rs. 3, 74, 879.49 charged on the five consignments. We are unable to do so because the present appeals arising out of the orders made by the Government of India in proceedings under Section 27(1) of the Act have got to fail on the ground that the view taken by the authorities below on the question of limitation could not be shown to be incorrect. ### Response: 0

ANJUMAN E SHIATE ALI & ANR Vs. GULMOHAR AREA SOCIETIES WELFARE GROUP & ORS. ETC

covered by four big plots, bearing nos. 1, 3, 5 and 6. For utilizing such large area, by dividing the same into smaller plots, the Architect of the Anjuman Trust has prepared layout and submitted to competent authority, showing these two small plots as open spaces/garden. It is not in dispute, such layout is approved and all the plots, except these two plots, which are left towards open space/garden were utilized for construction. Having had the benefit of such approved layout, and after making constructions in all the plots, except these two plots, which are left towards open space/garden, the appellants cannot claim that they are entitled to make constructions, based on development plan prepared by MHADA, for the entire JVPD Scheme, which covers more than 5,80,000 sq. yards. It is the case of the appellants that such layout of 1967 was prepared as a temporary measure. There is no such concept as temporary layout in the Scheme of the MMC Act and Regulations made thereunder. 21. During the relevant time, MMC Act, 1888 (Bombay Act No.3 of 1888) was in force. To divide the land into complete plots, statutory approvals were required for the layout as per Section 302 and 302-A of the said Act. As such, the open spaces, which were left towards open space and garden in the approved layout were in conformity with the Regulation No. 39 of 1967 DCR and Sections 302 and 302A of MMC Act. 22. The development plan which is prepared by MHADA for entire area of more than 5,80,000 sq. yards, indicates broadly the usages in different zones. It is well known that such development plans are prepared by showing various zones such as residential, commercial, industrial etc. Merely because in such development plan prepared, in the area shown for residential purpose, authorities have not indicated the open spaces/garden, which were already left in the approved layout in such residential area, appellants cannot claim the benefit of making constructions in the plots which were left towards open space/garden. It is fairly well settled that the open spaces/garden left in an approved layout, cannot be allowed for the purpose of constructions. However, it is to be noticed that if one wants to utilize a big plot within the area of residential usage as indicated in the development plan, it is mandatory to sub-divide such big plots into smaller plots for utilizing them for the purpose of construction. When the layout is to be approved, certain percentage of area is required to be left towards roads, open plots, garden etc. The development Plan prepared by MHADA, cannot be confused with the layout which is approved confining to four big plots, on the application made by the appellants. It is not necessary for only the owner to apply for such layout. In any event, having applied for layout which was approved and after utilizing the 59 plots out of total of 61 plots, it is not open for the appellants to plead that it was not the obligation of the appellants to submit layout. In the layout sanctioned and obtained in the year 1967, the open spaces were rightly reserved as provided under Regulation 39 of 1967 DCR. Further, it is clear from perusal of 1991 DCR that for different layouts or sub divisions of different sizes in residential and commercial zones, different areas of open spaces are required to be provided. The development plan which was submitted by MHADA and approved on 15.10.1999, is with regard to the entire area covered by JVPD scheme. It appears that while submitting the development plan, the details of internal layouts sanctioned by BMC were not shown. The sub-division of bigger plots, as per the layout sanctioned by BMC, were also not shown in such development plan. Merely on such basis, the appellants cannot claim that the sub-plots which are covered by approved layout, left towards open spaces/garden, can also be used for constructions. The Chief Officer, in his communication, has made it clear that the mandatory open spaces in the approved plan are to be leased out to neighbouring societies for recreation purposes. Further, communication made by MHADA also shows that they have sent the proposal to MCGM for rectification of development plan, submitted in the year 1999, for showing these two plots as garden plot. It is totally erroneous on the part of 2 nd respondent-MHADA in passing the order which is impugned in the writ petition, by recording a finding that Anjuman Trust has complete and absolute right in respect of sub-plot No.14 of Plot No.3. It is clear from the material placed on record that the authorities have mixed up the issue of reservation/usage as shown in the development plan and the open spaces as required to be kept in the layout as per the 1967 DCR and 1991 DCR. 23. It is also to be noticed that the open spaces are required to be left for an approval of layout or for the purpose of creating lung space for the owners of other plots where constructions are permitted. The 4 plots bearing Nos. 1, 3, 5 and 6, were sub-divided at the instance of the appellant-Society in its entirety and approval was taken for dividing such land into 61 plots. It is not open to claim for construction in the two plots which are reserved for open spaces/garden spaces also. It is fairly well settled that in an approved layout, the open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces. The Development Plan which was submitted in the year 1999, as per the 1991 DCR, will not divest the utility of certain plots which are reserved for open spaces in the approved layout. The appellants cannot plead that such a layout was only temporary and as a stop gap arrangement, the said two plots were shown as open spaces/garden and now they be permitted to use for construction.

0[ds]19. For dividing the total land allotted for the use of Dawoodi Bohra Community, covered by plot Nos. 1, 3, 5 and 6, admeasuring 46850 sq. yards, the Architect of the appellants has prepared the layout and submitted it for sanction to the Municipal Corporation. In such layout, an area ad-measuring 1687 sq. yards in plot No.3 and the area of 2500 sq. yards in plot No.6 were shown as open spaces/garden. Since then, the said two plots were kept open for being used for garden purpose only. Subsequently, MHADA has prepared a development plan for the entire JVPD scheme covering more than 5,80,000 sq. yards20. As rightly held by the High Court, we are also of the view that the two plots, which are shown as open spaces/garden, in the approved layout, cannot be allowed to be used for the purpose of construction. A large area of 46,850 sq. yards was allotted for the purpose of allotting small plots to the members of Dawoodi Bohra Community. The entire area of 46,850 sq. yards was covered by four big plots, bearing nos. 1, 3, 5 and 6. For utilizing such large area, by dividing the same into smaller plots, the Architect of the Anjuman Trust has prepared layout and submitted to competent authority, showing these two small plots as open spaces/garden. It is not in dispute, such layout is approved and all the plots, except these two plots, which are left towards open space/garden were utilized for construction. Having had the benefit of such approved layout, and after making constructions in all the plots, except these two plots, which are left towards open space/garden, the appellants cannot claim that they are entitled to make constructions, based on development plan prepared by MHADA, for the entire JVPD Scheme, which covers more than 5,80,000 sq. yards. It is the case of the appellants that such layout of 1967 was prepared as a temporary measure. There is no such concept as temporary layout in the Scheme of the MMC Act and Regulations made thereunder21. During the relevant time, MMC Act, 1888 (Bombay Act No.3 of 1888) was in force. To divide the land into complete plots, statutory approvals were required for the layout as per Section 302 and 302-A of the said Act. As such, the open spaces, which were left towards open space and garden in the approved layout were in conformity with the Regulation No. 39 of 1967 DCR and Sections 302 and 302A of MMC Act22. The development plan which is prepared by MHADA for entire area of more than 5,80,000 sq. yards, indicates broadly the usages in different zones. It is well known that such development plans are prepared by showing various zones such as residential, commercial, industrial etc. Merely because in such development plan prepared, in the area shown for residential purpose, authorities have not indicated the open spaces/garden, which were already left in the approved layout in such residential area, appellants cannot claim the benefit of making constructions in the plots which were left towards open space/garden. It is fairly well settled that the open spaces/garden left in an approved layout, cannot be allowed for the purpose of constructions. However, it is to be noticed that if one wants to utilize a big plot within the area of residential usage as indicated in the development plan, it is mandatory to sub-divide such big plots into smaller plots for utilizing them for the purpose of construction. When the layout is to be approved, certain percentage of area is required to be left towards roads, open plots, garden etc. The development Plan prepared by MHADA, cannot be confused with the layout which is approved confining to four big plots, on the application made by the appellants. It is not necessary for only the owner to apply for such layout. In any event, having applied for layout which was approved and after utilizing the 59 plots out of total of 61 plots, it is not open for the appellants to plead that it was not the obligation of the appellants to submit layout. In the layout sanctioned and obtained in the year 1967, the open spaces were rightly reserved as provided under Regulation 39 of 1967 DCR. Further, it is clear from perusal of 1991 DCR that for different layouts or sub divisions of different sizes in residential and commercial zones, different areas of open spaces are required to be provided. The development plan which was submitted by MHADA and approved on 15.10.1999, is with regard to the entire area covered by JVPD scheme. It appears that while submitting the development plan, the details of internal layouts sanctioned by BMC were not shown. The sub-division of bigger plots, as per the layout sanctioned by BMC, were also not shown in such development plan. Merely on such basis, the appellants cannot claim that the sub-plots which are covered by approved layout, left towards open spaces/garden, can also be used for constructions. The Chief Officer, in his communication, has made it clear that the mandatory open spaces in the approved plan are to be leased out to neighbouring societies for recreation purposes. Further, communication made by MHADA also shows that they have sent the proposal to MCGM for rectification of development plan, submitted in the year 1999, for showing these two plots as garden plot. It is totally erroneous on the part of 2 nd respondent-MHADA in passing the order which is impugned in the writ petition, by recording a finding that Anjuman Trust has complete and absolute right in respect of sub-plot No.14 of Plot No.3. It is clear from the material placed on record that the authorities have mixed up the issue of reservation/usage as shown in the development plan and the open spaces as required to be kept in the layout as per the 1967 DCR and 1991 DCR23. It is also to be noticed that the open spaces are required to be left for an approval of layout or for the purpose of creating lung space for the owners of other plots where constructions are permitted. The 4 plots bearing Nos. 1, 3, 5 and 6, were sub-divided at the instance of the appellant-Society in its entirety and approval was taken for dividing such land into 61 plots. It is not open to claim for construction in the two plots which are reserved for open spaces/garden spaces also. It is fairly well settled that in an approved layout, the open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces. The Development Plan which was submitted in the year 1999, as per the 1991 DCR, will not divest the utility of certain plots which are reserved for open spaces in the approved layout. The appellants cannot plead that such a layout was only temporary and as a stop gap arrangement, the said two plots were shown as open spaces/garden and now they be permitted to use for construction.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: covered by four big plots, bearing nos. 1, 3, 5 and 6. For utilizing such large area, by dividing the same into smaller plots, the Architect of the Anjuman Trust has prepared layout and submitted to competent authority, showing these two small plots as open spaces/garden. It is not in dispute, such layout is approved and all the plots, except these two plots, which are left towards open space/garden were utilized for construction. Having had the benefit of such approved layout, and after making constructions in all the plots, except these two plots, which are left towards open space/garden, the appellants cannot claim that they are entitled to make constructions, based on development plan prepared by MHADA, for the entire JVPD Scheme, which covers more than 5,80,000 sq. yards. It is the case of the appellants that such layout of 1967 was prepared as a temporary measure. There is no such concept as temporary layout in the Scheme of the MMC Act and Regulations made thereunder. 21. During the relevant time, MMC Act, 1888 (Bombay Act No.3 of 1888) was in force. To divide the land into complete plots, statutory approvals were required for the layout as per Section 302 and 302-A of the said Act. As such, the open spaces, which were left towards open space and garden in the approved layout were in conformity with the Regulation No. 39 of 1967 DCR and Sections 302 and 302A of MMC Act. 22. The development plan which is prepared by MHADA for entire area of more than 5,80,000 sq. yards, indicates broadly the usages in different zones. It is well known that such development plans are prepared by showing various zones such as residential, commercial, industrial etc. Merely because in such development plan prepared, in the area shown for residential purpose, authorities have not indicated the open spaces/garden, which were already left in the approved layout in such residential area, appellants cannot claim the benefit of making constructions in the plots which were left towards open space/garden. It is fairly well settled that the open spaces/garden left in an approved layout, cannot be allowed for the purpose of constructions. However, it is to be noticed that if one wants to utilize a big plot within the area of residential usage as indicated in the development plan, it is mandatory to sub-divide such big plots into smaller plots for utilizing them for the purpose of construction. When the layout is to be approved, certain percentage of area is required to be left towards roads, open plots, garden etc. The development Plan prepared by MHADA, cannot be confused with the layout which is approved confining to four big plots, on the application made by the appellants. It is not necessary for only the owner to apply for such layout. In any event, having applied for layout which was approved and after utilizing the 59 plots out of total of 61 plots, it is not open for the appellants to plead that it was not the obligation of the appellants to submit layout. In the layout sanctioned and obtained in the year 1967, the open spaces were rightly reserved as provided under Regulation 39 of 1967 DCR. Further, it is clear from perusal of 1991 DCR that for different layouts or sub divisions of different sizes in residential and commercial zones, different areas of open spaces are required to be provided. The development plan which was submitted by MHADA and approved on 15.10.1999, is with regard to the entire area covered by JVPD scheme. It appears that while submitting the development plan, the details of internal layouts sanctioned by BMC were not shown. The sub-division of bigger plots, as per the layout sanctioned by BMC, were also not shown in such development plan. Merely on such basis, the appellants cannot claim that the sub-plots which are covered by approved layout, left towards open spaces/garden, can also be used for constructions. The Chief Officer, in his communication, has made it clear that the mandatory open spaces in the approved plan are to be leased out to neighbouring societies for recreation purposes. Further, communication made by MHADA also shows that they have sent the proposal to MCGM for rectification of development plan, submitted in the year 1999, for showing these two plots as garden plot. It is totally erroneous on the part of 2 nd respondent-MHADA in passing the order which is impugned in the writ petition, by recording a finding that Anjuman Trust has complete and absolute right in respect of sub-plot No.14 of Plot No.3. It is clear from the material placed on record that the authorities have mixed up the issue of reservation/usage as shown in the development plan and the open spaces as required to be kept in the layout as per the 1967 DCR and 1991 DCR. 23. It is also to be noticed that the open spaces are required to be left for an approval of layout or for the purpose of creating lung space for the owners of other plots where constructions are permitted. The 4 plots bearing Nos. 1, 3, 5 and 6, were sub-divided at the instance of the appellant-Society in its entirety and approval was taken for dividing such land into 61 plots. It is not open to claim for construction in the two plots which are reserved for open spaces/garden spaces also. It is fairly well settled that in an approved layout, the open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces. The Development Plan which was submitted in the year 1999, as per the 1991 DCR, will not divest the utility of certain plots which are reserved for open spaces in the approved layout. The appellants cannot plead that such a layout was only temporary and as a stop gap arrangement, the said two plots were shown as open spaces/garden and now they be permitted to use for construction. ### Response: 0

Malayalam Plantations Ltd Vs. The Deputy Commissioner Of Agriculturalincome-Tax And Sale

assessee contended that both these categorics of transactions were exempt from tax under Art. 286(1) (a) as they were outside sales. This Court unanimously negatived the contention of the assessee in respect of sales in which delivery in the State of first; destination was not for consumption therein, and the transactions were on that account not "Explanation sales". It was held that the State of Bihar was competent to tax those "Non-explanation sales" in which the property in the goods had passed in the State of Bihar. But two different grounds were given in support of the conclusion in that case. My brothers Hidayatullah, Das Gupta and Rajagopala Ayyangar, JJ., were of the view that passing of property within the State alone was intended after the Constitution to be fastened upon for the purpose of determining whether the sale is inside or outside the State, and therefore subject to the operation of the Explanation that State in which the property passes would be the only State, which had the power to tax the Sale. S.K. Das, J., and I were of the view that sale transactions not falling within the constitutional prohibitions remained taxable because in adjudging whether a "non explanation" sale-transaction was "outside the State", the doctrine of territorial nexus could not be wholly excluded from consideration.16. In a recent judgment of this Court in 1963-14 STC 363 : (AIR 1964 SC 569 ) this Court held in construing Art. 286(1)(a) in the light of the Explanation before that Article was amended by the Constitution (Sixth Amendment) Act, that :"Where the Explanation to Art. 286(1)(a) of the Constitution of India is inapplicable, it is the passing of property within the State that is intended to be fastened on for the purpose of determining whether a sale is inside or outside the State. Therefore Subject to the operation of the Explanation, that State in which the property in the goods passes would be the only State which would have the power to levy a tax on the sale. "17. In A. V. Thomas and Co. Ltd.s case, 1963-14 STC 363 : (AIR 1964 SC 569 ) chests of tea were stored in warehouses at Willingdon Island in the Travancore-Cochin State, but auctions of the tea chests were held at Fort Cochin which was at the material time within the State of Madras, and after the price was paid at Fort Cochin delivery orders were given to the purchasers addressed to the warehouse keepers at Willingdon island and actual delivery was given at the warehouse. The chests of tea where then sent from Willingdon Island for consumption in other parts of India or were exported out of India. It was held by the Court in that case that the property in the goods passed at Fort Cochin and as the goods were delivered not for the purpose of consumption in any particular State, the sales were not inside the State of Travancore-Cochin but were outside that State and were not liable to be taxed under the Travancore-Cochin General Sales Tax Act (11 of 1125 ME). The Court observed that in sales which were not "Explanation sales" passing of property within the State was decisive of the liability to pay sales tax. No opinion was expressed on the question whether the doctrine of territorial nexus as investing the State with the right to tax a sale transaction outside the legislative restrictions imposed by Art. 286, was, since the promulgation of the Constitution, rendered ineffective. As the facts which give rise to this case are substantially the same as the facts on which A. V. Thomas and Co. Ltd.s case, 1963-14 STC 363 : (AIR 1964 SC 569 ) was decided, the decision of the appeals must be in favour of the assessee.18. It is necessary to record this judgment, lest it be assumed that I agree with the view that the doctrine of territorial nexus in its application to sales-tax legislation has, since the enactment of the Constitution, been completely abrogated. It may be pertinent to note that since the amendment of the Constitution by the Constitution (Sixth Amendment) Act, Article 286(1)(a) (which remains unamended is now free from the shackles of the Explanation which is deleted and by cl.(2) the Parliament is invested with power to formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in cl. (1), namely, outside the State or in the course of the import of the goods into, or export of the goods out of, the territory of India. Exercising the power under cl.(2) the Parliament has enacted the Central Sales Tax Act (74 of 1956), and by S. 4(2) the doctrine of territorial nexus has been given legislative recognition, though in somewhat limited form. That sub-section provides :"A sale or purchase of goods shall be deemed to take place-inside a State if the goods are within the State-(a) in the case of specific or ascertained goods, at the time the contract of sale is made; and(b) in the case of unascertained or future goods, at the time of their appropriation to the contract of sale by the seller or by the buyer, whether assent of the other party is prior or subsequent to such appropriation.Explanation- Where there is a single contract of sale or purchase of goods situated at more places than one, the provisions of this sub-section shall apply as if there were separate contracts in respect of the goods at each of such places."19. The doctrine of territorial nexus had full play in sales-tax legislation under the Government of India Act, 1935 : it also applies subject to certain modifications since the amendment of the Constitution by the Constitution (Sixth Amendment) Act. And I am unable to persuade myself that by the enactment of Article 286 of the Constitution, it stood abrogated in the interregnum between the promulgation of the Constitution and the amendment of Art. 286 by the Constitution (Sixth Amendment) Act.ORDER20.

1[ds]In the revision application which the department filed to the High Court this question whether the property in the goods did pass at Fort Cochin was raised but nevertheless the argument before the High Court proceeded wholly on the basis of the correctness of the finding by the Appellate Tribunal that the property in the teas did pass on the fall of the hammer at Fort. The point about the property not having passed in the Madras State does not appear to have been even argued before the High Court. Even in the statement of the case filed by the respondent it is not stated that this point about the property not having passed at Fort Cochin in Madras was urged before the High Court during the course of the argument. Before concluding it might be mentioned that in A.V. Thomass case, 1963-14 STC 363 : (AIR 1964 SC 569 ) where, as we have stated earlier, the nature of the transaction was identical with the one in the appeals before us this Courthas been found and it has not been disputed that the title to the goods in the present case passed at Fortthese circumstances, we declined to permit learned Counsel for the respondent to urge any ground relating to the property in the goods in the teas sold not having passed in Fort Cochin in the Madras State to be raised, as the point which is not one of pure law was not urged before the learned Judges of the High Court.

### 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: assessee contended that both these categorics of transactions were exempt from tax under Art. 286(1) (a) as they were outside sales. This Court unanimously negatived the contention of the assessee in respect of sales in which delivery in the State of first; destination was not for consumption therein, and the transactions were on that account not "Explanation sales". It was held that the State of Bihar was competent to tax those "Non-explanation sales" in which the property in the goods had passed in the State of Bihar. But two different grounds were given in support of the conclusion in that case. My brothers Hidayatullah, Das Gupta and Rajagopala Ayyangar, JJ., were of the view that passing of property within the State alone was intended after the Constitution to be fastened upon for the purpose of determining whether the sale is inside or outside the State, and therefore subject to the operation of the Explanation that State in which the property passes would be the only State, which had the power to tax the Sale. S.K. Das, J., and I were of the view that sale transactions not falling within the constitutional prohibitions remained taxable because in adjudging whether a "non explanation" sale-transaction was "outside the State", the doctrine of territorial nexus could not be wholly excluded from consideration.16. In a recent judgment of this Court in 1963-14 STC 363 : (AIR 1964 SC 569 ) this Court held in construing Art. 286(1)(a) in the light of the Explanation before that Article was amended by the Constitution (Sixth Amendment) Act, that :"Where the Explanation to Art. 286(1)(a) of the Constitution of India is inapplicable, it is the passing of property within the State that is intended to be fastened on for the purpose of determining whether a sale is inside or outside the State. Therefore Subject to the operation of the Explanation, that State in which the property in the goods passes would be the only State which would have the power to levy a tax on the sale. "17. In A. V. Thomas and Co. Ltd.s case, 1963-14 STC 363 : (AIR 1964 SC 569 ) chests of tea were stored in warehouses at Willingdon Island in the Travancore-Cochin State, but auctions of the tea chests were held at Fort Cochin which was at the material time within the State of Madras, and after the price was paid at Fort Cochin delivery orders were given to the purchasers addressed to the warehouse keepers at Willingdon island and actual delivery was given at the warehouse. The chests of tea where then sent from Willingdon Island for consumption in other parts of India or were exported out of India. It was held by the Court in that case that the property in the goods passed at Fort Cochin and as the goods were delivered not for the purpose of consumption in any particular State, the sales were not inside the State of Travancore-Cochin but were outside that State and were not liable to be taxed under the Travancore-Cochin General Sales Tax Act (11 of 1125 ME). The Court observed that in sales which were not "Explanation sales" passing of property within the State was decisive of the liability to pay sales tax. No opinion was expressed on the question whether the doctrine of territorial nexus as investing the State with the right to tax a sale transaction outside the legislative restrictions imposed by Art. 286, was, since the promulgation of the Constitution, rendered ineffective. As the facts which give rise to this case are substantially the same as the facts on which A. V. Thomas and Co. Ltd.s case, 1963-14 STC 363 : (AIR 1964 SC 569 ) was decided, the decision of the appeals must be in favour of the assessee.18. It is necessary to record this judgment, lest it be assumed that I agree with the view that the doctrine of territorial nexus in its application to sales-tax legislation has, since the enactment of the Constitution, been completely abrogated. It may be pertinent to note that since the amendment of the Constitution by the Constitution (Sixth Amendment) Act, Article 286(1)(a) (which remains unamended is now free from the shackles of the Explanation which is deleted and by cl.(2) the Parliament is invested with power to formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in cl. (1), namely, outside the State or in the course of the import of the goods into, or export of the goods out of, the territory of India. Exercising the power under cl.(2) the Parliament has enacted the Central Sales Tax Act (74 of 1956), and by S. 4(2) the doctrine of territorial nexus has been given legislative recognition, though in somewhat limited form. That sub-section provides :"A sale or purchase of goods shall be deemed to take place-inside a State if the goods are within the State-(a) in the case of specific or ascertained goods, at the time the contract of sale is made; and(b) in the case of unascertained or future goods, at the time of their appropriation to the contract of sale by the seller or by the buyer, whether assent of the other party is prior or subsequent to such appropriation.Explanation- Where there is a single contract of sale or purchase of goods situated at more places than one, the provisions of this sub-section shall apply as if there were separate contracts in respect of the goods at each of such places."19. The doctrine of territorial nexus had full play in sales-tax legislation under the Government of India Act, 1935 : it also applies subject to certain modifications since the amendment of the Constitution by the Constitution (Sixth Amendment) Act. And I am unable to persuade myself that by the enactment of Article 286 of the Constitution, it stood abrogated in the interregnum between the promulgation of the Constitution and the amendment of Art. 286 by the Constitution (Sixth Amendment) Act.ORDER20. ### Response: 1

M. R. Balaji And Others Vs. State Of Mysore

conferred on the State by Art. 15(4). 36. The learned Advocate-General has made an earnest and strong plea before us that we should not strike down the order, but should strike down only such portions of the order which appear to us to be unconstitutional on the doctrine of severability. He has urged that since 1958, the State has had to make five orders to deal with the problems of advancing the lot of the Backward Classes and the State is anxious that the implementation of the impugned order should not be completely prohibited or stopped. We do not see how it would be possible to sever the invalid provisions of the impugned order. If the categorisation cannot and would not attempt the task of enumerating the said categories; and if the percentage of reservation is improper and outside Art. 15(4), this Court would not attempt to lay down definitely and in an inflexible manner as to what would be the proper percentage to reserve. In this connection, it may be relevant to refer to one fact on which the petitioners have strongly relied. It is urged for them that the method adopted by the Government of Maharashtra in exercising its powers under Art. 15(4) is a proper method to adopt. It appears that the Maharashtra Government has decided to afford financial assistance, and make monetary grants to students seeking higher education where it is shown that the annual income of their families is below a prescribed minimum. The said scheme is not before us and we are not called upon to express any opinion on it. However, we may observe that if any State adopts such a measure, it may afford relief to and assist the advancement of the Backward Classes in the State, because backwardness, social and educational, is ultimately and primarily due to poverty. An attempt can also be made to start newer and more educational institutions, polytechnics, vocational institutions and even rural Universities and thereby create more opportunities for higher education. This dual attack on the problem posed by the weakness of backward communities can claim to proceed on a rational, broad and scientific approach which is consistent with, and true to, the noble ideal of a secular welfare democratic State set up by the Constitution of this country. Such an approach can be supplemented, if necessary by providing special provision by way of reservation to aid the Backward classes and Scheduled castes and Tribes. 37. It may well be that there may be other ways and means of achieving the same result. In our country where social and economic conditions differ from State to State, it would be idle to expect absolute uniformity of approach; but in taking executive action to implement the policy of Art. 15(4), it is necessary for the States to remember that the policy which is intended to be implemented is the policy which has been declared by Art. 46 and the preamble of the Constitution. It is for the attainment of social and economic justice that Art. 15(4) authorises the making of special provisions for the advancement of the communities there contemplated even if such provisions may be inconsistent with the fundamental rights guaranteed under Art. 15 or 29(2). The context, therefore, requires that the executive action taken by the State must be based on an objective approach free from all extraneous pressures. The said action is intended to do social and economic justice and must be taken in a manner that justice is and should be done. 38. Whilst we are dealing with this question, it would be relevant to add that the provisions of Art. 15(4) are similar to those of Art. 16(4) which fell to be considered in the case of General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36 . In that case, the majority decision of this Court held that the power of reservation which is conferred on the State under Art. 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments, but also by providing for reservation of selections posts. This conclusion was reached on the basis that it served to give effect to the intention of the Constitution-makers to make adequate safeguards for the advancement of Backward Classes and to secure their adequate representation in the Services. The judgment shows that the only point which was raised for the decision of this Court in that case was whether the reservation made was outside Art. 16(4) and that posed the bare question about the construction of Art. 16(4). The propriety, the reasonableness or the wisdom of the impugned order was not questioned because it was not the respondents case that if the order was justified under Art. 16(4), it was a fraud on the Constitution. Even so, it was pointed out in the judgment that the efficiency of administration is of such a paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration; that, it was stated, was undoubtedly the effect of Art. 335. 39. Therefore, what is true in regard to Article 15(4) is equally true in regard to Art. 16(4). There can be no doubt that the Constitution-makers assumed, as they were entitled to, that while making adequate reservation under Art. 16(4), care would be taken not to provide for unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large field and by creating wide-spread dissatisfaction amongst the employees, materially affect efficiency. Therefore, like the special provision improperly made under Art. 15(4), reservation made under Art. 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution. In this connection it is necessary to emphasise that Art. 15(4) like Article 16(4) is an enabling provision; it does not impose an obligation, but merely leaves it to the discretion of the appropriate Government to take suitable action if necessary. 40.

1[ds]17. Article 15 (4) provides that nothing in this Article or in Cl. (2) of Art.29 shall prevent the State from making any special provision for the advancement of any socially and educationally Backward Classes of citizens or for the Scheduled Castes and the Scheduled Tribes. This Article was added by the Constitution (First Amendment) Act, 1951.The object of this amendment was to bring Arts. 15 and 29 in line with Art.16 (1). It will be recalled that in the case of State of Madras v. Smt. Champakam Dorairajan 1951 SCR 525 : (AIR 1951 SC 226 ) the validity of the Government order issued by the Madras Government fixing certain proportions in which students seeking for admissions to the Engineering and Medical Colleges in the State should be admitted, was challenged. The said Government order was on the face of it a communal order fixing the admissions in the stated proportion by reference to the communities of the candidates. This order was struck down by the Madras High Court and the decision of the Madras High Court was confirmed by this Court in appeal, on the ground that the fundamental rights guaranteed by Arts. 15 (1) and 29(2) were not controlled by any exception, and that since there was no provision under Art. 15 corresponding to Art.16(4), the impugned order could not be sustained. It was directly as a result of this decision that Art.15 was amended and Art.15(4) was added. Thus, there is no doubt that Art.15(4) has to be read as a proviso or an exception to Art.15(1) and 29(2).In other words, if the impugned order is justified by the provision of Art.15(4), its validity cannot be impeached on the ground that it violates Art.15 (1) or Art.29 (2). The fundamental rights guaranteed by the said two provisions do not affect the validity of the special provision which it is permissible to make under Art.15(4)In our opinion, this contention is misconceived. It is true that the Constitution contemplated the appointment of a Commission whose report and recommendations, it was thought, would be of assistance to the authorities concerned to take adequate steps for the advancement of Backward Classes; but it would be erroneous to assume that the appointment of the Commission and the subsequent steps that were to follow it constituted a condition precedent to any action being taken under Art. 15(4). Besides, it would be noticed that Art. 340(1) provides that recommendations had to be made by the Commission as to the steps that should be taken by the Union or any State, inter alia, to improve that means that the recommendations were to be made which would be implemented in their discretion by the Union and the State Government and not by the President. Thus, Art.340(1) itself shows that it is the Union or the State that has to take action in pursuance of the recommendations made, and so, the argument that the President alone has to act in this matter cannot be acceptedThis argument is equally mis-conceived. Under Art.12, the State includes the Government and the Legislature of each of the States, and so, it would be unreasonable to suggest that the State must necessarily mean the Legislature and not the Government. Besides, where the Constitution intended that a certain action should be taken by legislation and not by executive action it has adopted suitable phraseology in that behalf. Article 16(3) and (5) are illustrations in point. Both the said sub-cls. of Art. 16, in terms, refer to the making of the law by the Parliament in respect of the matters covered by them. Similarly, Arts. 341(2) and 342(2) expressly refer to a law being made by Parliament as therein contemplated. Therefore, when Art.15(4) contemplates that the State can make the special provision in question, it is clear that the said provision can be made by an executive order20. Article 15(4) authorises the State to make a special provision for the advancement of any socially and educationally backward classes of citizens, as distinguished from the Scheduled Castes and Scheduled Tribes. No doubt, special provision can be made for both categories of citizens, but in specifying the categories, the first category is distinguished from the second. Sub-clauses (24) and (25) of Art. 366 define Scheduled Castes and Scheduled Tribes respectively, but there is no clause defining socially and educationally backward classes of citizens, and so, in determining the question as towhether a particular provision has been validly made under Art. 15(4) ornot,the first question which falls to be determined iswhether the State has validly determined who should be included in these BackwardClasses. It21. In considering the scope and extent of the expression "backward classes" under Art. 15(4), it is necessary to remember that the concept of backwardness is not intended to be relative in the sense that any classes who are backward in relation to the most advanced classes of the society should be included in it. If such relative tests were to be applied by reason of the most advanced classes, there would be several layers or strata of backward classes and each one of them may claim to be included under Art. 15(4). This position is not disputed before us by the learned Advocate-General for the State. The backwardness under Art. 15(4) must be social and educational. It is not either social or educational, but it is both social and educational; and that takes us to the question as to how social and educational backwardness has to be determined22. Let us take the question of social backwardness first. By what test should it be decidedwhether a particular class is socially backward or not ?The group of citizens to whom Art. l5(4), applies are described as classes of citizens, not as castes of citizens. A class, according to the dictionary meaning, shows division of society according to status, rank of caste. In the Hindu social structure, caste unfortunately plays an important part in determining the status of the citizens. Though according to sociologists and Vedic scholars, the caste system may have originally begun on occupational or functional basis, in course of time, it became rigid and inflexible. The history of the growth of caste system shows that its original functional and occupational basis was later over-burdened with considerations of purity based on ritual concepts, and that led to its ramifications which introduced inflexibility and rigidity. This artificial growth inevitably tended to create a feeling of superiority and inferiority, and to foster narrow caste loyalties. Therefore, in dealing with the question as to whether any class of citizens is socially backward ornot,it may not be irrelevant to consider the caste of the said group of citizens. In this connection it is, however, necessary to bear in mind that the special provision is contemplated for class of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerated. If the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves23. Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian society which do not recognise castes in the conventional sense known to Hindu society. How is one going to decidewhether Muslims, Christians or Jains, or even Lingayats are socially backward or not ?The test of castes would be inapplicable to those groups, but that would hardly justify the exclusion of these groups in toto from the operation of Art. 15(4). It is not unlikely that in some States some Muslims or Christians or Jains forming groups may be socially backward. That is why we think that though castes in relation to Hindu may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward. They do not enjoy a status in society and have, therefore, to be content to take a backward seat. It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens24. The occupations of citizens may also contribute to make classes of citizens socially backward. There are some occupations which are treated as inferior according to conventional beliefs and classes of citizens who follow these occupations are apt to become socially backward. The place of habitation also plays not a minor part in determining the backwardness of a community of persons. In a sense, the problem of social backwardness is the problem of Rural India and in that behalf, classes of citizens occupying a socially backward position in rural area fall within the purview of Art. 15(4). The problem of determining who are socially backward classes is undoubtedly very complex. Sociological, social and economic considerations come into play in solving the problem, and evolving proper criteria for determining which classes are socially backward is obviously a very difficult task; it will need an elaborate investigation and collection of data and examining the said data in a rational and scientific way. That is the function of the State which purports to act under Art. 15(4). All that this Court is called upon to do in dealing with the present petitions is to decidewhether the tests applied by the impugned order are valid under Art.15(4).29. In this connection, it is necessary to add that the sub-classification made by the order between Backward Classes and More Backward Classes does not appear to be justified under Article15(4).Article 15(4) authorises special provision being made for the really backward classes. In introducing two categories of Backward Classes what the impugned order, in substance purports to do is to devise measures for the benefit of all the classes of citizens who are less advanced compared to the most advanced classes in the State and that, in our opinion, is not the scope of Art.15(4).here can be no doubt that the object of making a special provision for the advancement of the castes or communities, there specified, is to carry out the directive principle enshrined in Art. 46. It is obvious that unless the educational and economic interests of the weaker sections of the people are promoted quickly and liberally, the ideal of establishing social and economic equality will not be attained, and so, there can be no doubt that Art. 15(4) authorises the State to take adequate steps to achieve the object which it has in view. None can dispute the proposition that political freedom and even fundamental rights can have very little meaning or significance for the Backward Classes and the Scheduled Castes and Scheduled Tribes unless the backwardness and inequality from which they suffer are immediately redressed32. In this connection, it is necessary to remember that the reservation made by the impugned order is in regard to admission in the seats of higher education in the State. It is well-known that as a result of the awakening caused by political freedom, all classes of citizens are showing a growing desire to give their children higher university education and so, the Universities are called upon to face the challenge of this growing demand. While it is necessary that the demand for higher education which is thus increasing from year to year must be adequately met and properly channelised, we cannot overlook the fact that in meeting that demand standards of higher education in Universities must not be lowered. The large demand for education may be met by starting larger number of educational institutions, vocational schools and polytechnics. But, it would be against the national interest to exclude from the portals of our Universities qualified and competent students on the ground that all the seats in the Universities are reserved for weaker elements in society. As has been observed by the University Education Commission,"he indeed must be blind who does not see that mighty as are the political changes, far deeper are the fundamental questions which will be decided by what happen in the Universities" (P.32)Therefore in considering the question about the propriety of the reservation made by the impugned order, we cannot lose sight of the fact that the reservation is made in respect of higher university education. The demand for technicians, scientists, doctors, economists, engineers and experts for the further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by whole-sale reservation of seat in all technical, Medical or Engineering colleges or institutions of that kind. Therefore, considerations of national interest and the interests of the community or society as a whole cannot be ignored in determining the question as to whether the special provision contemplated by Art. 15(4) can be special provision which excludes the rest of the society altogether. In this connection, it would be relevant to mention that the University Education Commission which considered the problem of the assistance to backward communities, has observed that the percentage of reservation shall not exceed a third of the total number of seats, and it has added that the principle of reservation may be adopted for a period of ten years. (P. 53)This argument is well founded, and must be upheld. When it is said about an executive action that it is a fraud on the Constitution it does not necessarily mean that the action is actuated by mala fides. An executive action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf is struck down as being ultra vires the States authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power. It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth the constitutional power has been transgressed, the impugned action is struck down as a fraud on the Constitution. We have already noticed that the impugned order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, is not permitted by Art. 15(4); and we have also held that the reservation of 68% made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Art.15(4).We do not see how it would be possible to sever the invalid provisions of the impugned order. If the categorisation cannot and would not attempt the task of enumerating the said categories; and if the percentage of reservation is improper and outside Art. 15(4), this Court would not attempt to lay down definitely and in an inflexible manner as to what would be the proper percentage to reserve. In this connection, it may be relevant to refer to one fact on which the petitioners have strongly relied. It is urged for them that the method adopted by the Government of Maharashtra in exercising its powers under Art. 15(4) is a proper method to adopt. It appears that the Maharashtra Government has decided to afford financial assistance, and make monetary grants to students seeking higher education where it is shown that the annual income of their families is below a prescribed minimum. The said scheme is not before us and we are not called upon to express any opinion on it. However, we may observe that if any State adopts such a measure, it may afford relief to and assist the advancement of the Backward Classes in the State, because backwardness, social and educational, is ultimately and primarily due to poverty. An attempt can also be made to start newer and more educational institutions, polytechnics, vocational institutions and even rural Universities and thereby create more opportunities for higher education. This dual attack on the problem posed by the weakness of backward communities can claim to proceed on a rational, broad and scientific approach which is consistent with, and true to, the noble ideal of a secular welfare democratic State set up by the Constitution of this country. Such an approach can be supplemented, if necessary by providing special provision by way of reservation to aid the Backward classes and Scheduled castes and Tribes.It may well be that there may be other ways and means of achieving the same result. In our country where social and economic conditions differ from State to State, it would be idle to expect absolute uniformity of approach; but in taking executive action to implement the policy of Art. 15(4), it is necessary for the States to remember that the policy which is intended to be implemented is the policy which has been declared by Art. 46 and the preamble of the Constitution. It is for the attainment of social and economic justice that Art. 15(4) authorises the making of special provisions for the advancement of the communities there contemplated even if such provisions may be inconsistent with the fundamental rights guaranteed under Art. 15 or 29(2). The context, therefore, requires that the executive action taken by the State must be based on an objective approach free from all extraneous pressures. The said action is intended to do social and economic justice and must be taken in a manner that justice is and should be doneThe judgment shows that the only point which was raised for the decision of this Court in that case was whether the reservation made was outside Art. 16(4) and that posed the bare question about the construction of Art. 16(4). The propriety, the reasonableness or the wisdom of the impugned order was not questioned because it was not the respondents case that if the order was justified under Art. 16(4), it was a fraud on the Constitution. Even so, it was pointed out in the judgment that the efficiency of administration is of such a paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration; that, it was stated, was undoubtedly the effect of Art. 335.Therefore, what is true in regard to Article 15(4) is equally true in regard to Art. 16(4). There can be no doubt that the Constitution-makers assumed, as they were entitled to, that while making adequate reservation under Art. 16(4), care would be taken not to provide for unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large field and by creating wide-spread dissatisfaction amongst the employees, materially affect efficiency. Therefore, like the special provision improperly made under Art. 15(4), reservation made under Art. 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution. In this connection it is necessary to emphasise that Art. 15(4) like Article 16(4) is an enabling provision; it does not impose an obligation, but merely leaves it to the discretion of the appropriate Government to take suitable action if necessary.

### 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: conferred on the State by Art. 15(4). 36. The learned Advocate-General has made an earnest and strong plea before us that we should not strike down the order, but should strike down only such portions of the order which appear to us to be unconstitutional on the doctrine of severability. He has urged that since 1958, the State has had to make five orders to deal with the problems of advancing the lot of the Backward Classes and the State is anxious that the implementation of the impugned order should not be completely prohibited or stopped. We do not see how it would be possible to sever the invalid provisions of the impugned order. If the categorisation cannot and would not attempt the task of enumerating the said categories; and if the percentage of reservation is improper and outside Art. 15(4), this Court would not attempt to lay down definitely and in an inflexible manner as to what would be the proper percentage to reserve. In this connection, it may be relevant to refer to one fact on which the petitioners have strongly relied. It is urged for them that the method adopted by the Government of Maharashtra in exercising its powers under Art. 15(4) is a proper method to adopt. It appears that the Maharashtra Government has decided to afford financial assistance, and make monetary grants to students seeking higher education where it is shown that the annual income of their families is below a prescribed minimum. The said scheme is not before us and we are not called upon to express any opinion on it. However, we may observe that if any State adopts such a measure, it may afford relief to and assist the advancement of the Backward Classes in the State, because backwardness, social and educational, is ultimately and primarily due to poverty. An attempt can also be made to start newer and more educational institutions, polytechnics, vocational institutions and even rural Universities and thereby create more opportunities for higher education. This dual attack on the problem posed by the weakness of backward communities can claim to proceed on a rational, broad and scientific approach which is consistent with, and true to, the noble ideal of a secular welfare democratic State set up by the Constitution of this country. Such an approach can be supplemented, if necessary by providing special provision by way of reservation to aid the Backward classes and Scheduled castes and Tribes. 37. It may well be that there may be other ways and means of achieving the same result. In our country where social and economic conditions differ from State to State, it would be idle to expect absolute uniformity of approach; but in taking executive action to implement the policy of Art. 15(4), it is necessary for the States to remember that the policy which is intended to be implemented is the policy which has been declared by Art. 46 and the preamble of the Constitution. It is for the attainment of social and economic justice that Art. 15(4) authorises the making of special provisions for the advancement of the communities there contemplated even if such provisions may be inconsistent with the fundamental rights guaranteed under Art. 15 or 29(2). The context, therefore, requires that the executive action taken by the State must be based on an objective approach free from all extraneous pressures. The said action is intended to do social and economic justice and must be taken in a manner that justice is and should be done. 38. Whilst we are dealing with this question, it would be relevant to add that the provisions of Art. 15(4) are similar to those of Art. 16(4) which fell to be considered in the case of General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36 . In that case, the majority decision of this Court held that the power of reservation which is conferred on the State under Art. 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments, but also by providing for reservation of selections posts. This conclusion was reached on the basis that it served to give effect to the intention of the Constitution-makers to make adequate safeguards for the advancement of Backward Classes and to secure their adequate representation in the Services. The judgment shows that the only point which was raised for the decision of this Court in that case was whether the reservation made was outside Art. 16(4) and that posed the bare question about the construction of Art. 16(4). The propriety, the reasonableness or the wisdom of the impugned order was not questioned because it was not the respondents case that if the order was justified under Art. 16(4), it was a fraud on the Constitution. Even so, it was pointed out in the judgment that the efficiency of administration is of such a paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration; that, it was stated, was undoubtedly the effect of Art. 335. 39. Therefore, what is true in regard to Article 15(4) is equally true in regard to Art. 16(4). There can be no doubt that the Constitution-makers assumed, as they were entitled to, that while making adequate reservation under Art. 16(4), care would be taken not to provide for unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large field and by creating wide-spread dissatisfaction amongst the employees, materially affect efficiency. Therefore, like the special provision improperly made under Art. 15(4), reservation made under Art. 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution. In this connection it is necessary to emphasise that Art. 15(4) like Article 16(4) is an enabling provision; it does not impose an obligation, but merely leaves it to the discretion of the appropriate Government to take suitable action if necessary. 40. ### Response: 1

High Court of Judicature for Rajasthan Vs. P.P. Singh & Another

respondent. The third judge might (sic not) be justified in correcting the date with effect from which the respondent would compulsorily retire, but that is a very minor issue and would not, in our opinion, make the decision invalid.24. In regard to the case of the other respondent, namely, K. Rajeswaran, the High Court took the view that the constitution of the Review Committee by the Chief Judge and not by the Full Court was illegal. We are unable to accept the view of the High Court. We fail to understand why the Chief Justice cannot appoint a Review Committee or an Administrative Committee. But in one respect the High Court is, in our opinion, correct, namely, that the decision of the Review Committee should have been placed before a meeting of the judges. In the case of the respondent, K. Rajeswaran, the decision and recommendation of the Review Committee was not placed before the Full Court Meeting. Nor is there any material to show that the same was circulated to the judges. In that sense, the recommendation of the Review Committee was not strictly legal." 36. Furthermore, the terminology consultation used in Rule 15 having regard to purport and object thereof must be given its ordinary meaning. In Words and Phrases (Permanent Edition, 1960, Volume 9, page 3) to consult is defined as to discuss something together, to deliberate Corpus Juris Secundum (Volume 16A, Ed. 1956, page 1242) also says that the word consult is frequently defined as meaning to discuss something together, or to deliberate. By giving an opportunity to consultation or deliberation the purpose thereof is to enable the Judges to make their respective points of view known to the others and discuss and examine the relative merits of their view. It is neither in doubt nor in dispute that the Judges present in the meeting of the Full Court were supplied with all the requisite documents and had full opportunity to deliberate upon the Agenda in question.37. There is another aspect of the matter which may require consideration. For all intent and purport the report of the two Judges Committee has been approved by the Full Court. Once approved, it terminated into a decision of the Full Court itself. In the instant case even the Governor has acted upon the recommendations of the High Court. The writ petitioner-first respondents herein did not question the appointments of the appointees not the High Court. Thus, there cannot be any doubt whatsoever that for all intent and purport the opinion of the two Judges Committee received approval at the hands of the Full Court.38. The High Court, in our opinion, further committed a manifest error in arriving at its conclusion in so far as it failed to take into consideration that Rule 15 does not postulate the prior approval of the Full Court in relation to any action which may be initiated by the Chief Justice.39. When an approval is required, an action holds good. Only if it disapproved it losses its force. Only when a permission is required, the decision does not become effective till permission is obtained. (See U.P. Avas Evam Vikas Parishad and Another vs. Friends Coop. Housing Society Ltd. and Another [(1995) Supp (3) SCC 456]. In the instant case both the aforementioned requirements have been fulfilled.40. There is another aspect of the matter. In terms of Rule 2(2) of the Rules, the decision of the Full Court would have a retrospective effect and retroactive operation.41. In any view of the matter, even n a case where the initial action is illegal, the same can be ratified by a body competent therefor. This aspect of the matter has not been considered by the High Court at all. In Sri Parmeshwari Prasad Gupta vs. The Union of India [(1973) 2 SCC 543] this Court held: ".....Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorized, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953...." 42. (See also Marathwada University vs. Seshrao Balwant Rao Chavan [(1989) 3 SCC 132 para 28], Babu Verghese and Others vs. Bar Council of Kerala and Others [(1999) 3 SCC 422 para 35] and Barnard vs. National Dock Labour Board [(1953) 1 All ER 1113]). 43. In Orissa Small Industries Corpn. Ltd and Another vs. Narasingha Charan Mohanty and Others (supra) where upon the learned counsel has placed strong reliance, this Court held: "...That apart, the Court is not entitled to assess the respective merit of the candidates for adjudging their suitability for being promoted and the only right the employee has is a right of consideration. The said right of consideration not having been infringed in the present case, the High Court was not justified in issuing the impugned direction for consideration of his case......." 44. The said decision, therefore, mutilates against the contentions of the respondents. 45. Furthermore, the first respondent herein in these cases Shri P.P. Singh, Shri G.P. Pandey has been granted selection scale in RHJS with effect from 1.8.2000 and Shri P.K. Bhatia has bee given with effect from 29.3.2000. Shri P.P. Singh has also retired from service on superannuation.

1[ds]22. The High Court, in our opinion, therefore, clearly erred in arriving at the aforementioned finding that the constitution of the committee was illegal.Although Rule 15 provides that all the Judges shall be consulted in the matters enumerated therein but Rule 18 provides for the mode and manner thereof.28. If such consultation is to be made by circulation, undoubtedly, the relevant documents are required to be circulated to all the Judges. In the event, however, such consultation is to be effect by placing the matter before a Full Court, all the Judges are therefor invited but the same would not mean that in the event, one or more Judge (s) does /do not attend the Full Court, the resolution passed by it shall be invalid. Rule 29 provides for a quorum. In the case of a meeting of the Judges of the court, the quorum will be complete if one-half or more of the Judges attend the same. Consultation with all the Judges would, thus, not mean that even if some of the Judges do not choose to make themselves available in a Full Court Meeting, consultation with all the Judges shall not be complete.29. We may notice that even in the Full Court meeting held on 26th November, 1966 all the Honble Judges of the High Court were not present.30. The Committee was constituted for the purpose of considering the cases of concerned officers. It is not and cannot be the case or the contention of the writ petitions that even for the purpose of considering the case of the eligible judicial officers at the threshold, it was absolutely necessary to place the matter before the Full Court. The Acting Chief Justice constituted the Committee for a specific purpose. The Committee merely submitted its opinion which was subject to approval by the Full Court. Once the opinion of the matter is approved by the Full Court, in our opinion, it must be held that there had been a compliance of Rule 15 of the Rules.31. Interpretation of a Statute depends upon the text and context thereof. A Statute should be interpreted having regard to the purpose and object for which the same was made. The Chief Justice of a High Court although first amongst the Judges, by the nature of office he holds, he is the head of the State Judiciary. Authorisation by the Full Court in favour of the Chief Justice to constitute a Committee and / or take actions for the subordinate judiciary must be viewed from that context. Rule 15 of the Rules provides for such matters, which require consultations with the other Judges of the High Court.32. Question of consultation with the Judges would not arise unless the subject matter therefor is identified. It is for Honble the Chief Justice of the High Court to identify such matters and place the same before the Full Court with relevant papers and documents.33. It is, therefore, axiomatic that not only the Chief Justice of High Court was free to initiate any proceedings and obtain the opinion of a Committee of Judges on such matters and the only legal requirement therefor is to place such proposals together with the opinion of the Committee before the Judges of the High Court so that the matter can be fully thrashed out. Once the Full Court approves the recommendations made by the Committee of Judges, it becomes decision of the Court which could be sent to the Governor for acting thereupon.Furthermore, the terminology consultation used in Rule 15 having regard to purport and object thereof must be given its ordinary meaning. In Words and Phrases (Permanent Edition, 1960, Volume 9, page 3) to consult is defined as to discuss something together, to deliberate Corpus Juris Secundum (Volume 16A, Ed. 1956, page 1242) also says that the word consult is frequently defined as meaning to discuss something together, or to deliberate. By giving an opportunity to consultation or deliberation the purpose thereof is to enable the Judges to make their respective points of view known to the others and discuss and examine the relative merits of their view. It is neither in doubt nor in dispute that the Judges present in the meeting of the Full Court were supplied with all the requisite documents and had full opportunity to deliberate upon the Agenda in question.37. There is another aspect of the matter which may require consideration. For all intent and purport the report of the two Judges Committee has been approved by the Full Court. Once approved, it terminated into a decision of the Full Court itself. In the instant case even the Governor has acted upon the recommendations of the High Court. The writ petitioner-first respondents herein did not question the appointments of the appointees not the High Court. Thus, there cannot be any doubt whatsoever that for all intent and purport the opinion of the two Judges Committee received approval at the hands of the Full Court.38. The High Court, in our opinion, further committed a manifest error in arriving at its conclusion in so far as it failed to take into consideration that Rule 15 does not postulate the prior approval of the Full Court in relation to any action which may be initiated by the Chief Justice.39. When an approval is required, an action holds good. Only if it disapproved it losses its force. Only when a permission is required, the decision does not become effective till permission is obtained. (See U.P. Avas Evam Vikas Parishad and Another vs. Friends Coop. Housing Society Ltd. and Another [(1995) Supp (3) SCC 456]. In the instant case both the aforementioned requirements have been fulfilled.40. There is another aspect of the matter. In terms of Rule 2(2) of the Rules, the decision of the Full Court would have a retrospective effect and retroactive operation.41. In any view of the matter, even n a case where the initial action is illegal, the same can be ratified by a body competent therefor. This aspect of the matter has not been considered by the High Court at all.Furthermore, the first respondent herein in these cases Shri P.P. Singh, Shri G.P. Pandey has been granted selection scale in RHJS with effect from 1.8.2000 and Shri P.K. Bhatia has bee given with effect from 29.3.2000. Shri P.P. Singh has also retired from service on superannuation.

### 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: respondent. The third judge might (sic not) be justified in correcting the date with effect from which the respondent would compulsorily retire, but that is a very minor issue and would not, in our opinion, make the decision invalid.24. In regard to the case of the other respondent, namely, K. Rajeswaran, the High Court took the view that the constitution of the Review Committee by the Chief Judge and not by the Full Court was illegal. We are unable to accept the view of the High Court. We fail to understand why the Chief Justice cannot appoint a Review Committee or an Administrative Committee. But in one respect the High Court is, in our opinion, correct, namely, that the decision of the Review Committee should have been placed before a meeting of the judges. In the case of the respondent, K. Rajeswaran, the decision and recommendation of the Review Committee was not placed before the Full Court Meeting. Nor is there any material to show that the same was circulated to the judges. In that sense, the recommendation of the Review Committee was not strictly legal." 36. Furthermore, the terminology consultation used in Rule 15 having regard to purport and object thereof must be given its ordinary meaning. In Words and Phrases (Permanent Edition, 1960, Volume 9, page 3) to consult is defined as to discuss something together, to deliberate Corpus Juris Secundum (Volume 16A, Ed. 1956, page 1242) also says that the word consult is frequently defined as meaning to discuss something together, or to deliberate. By giving an opportunity to consultation or deliberation the purpose thereof is to enable the Judges to make their respective points of view known to the others and discuss and examine the relative merits of their view. It is neither in doubt nor in dispute that the Judges present in the meeting of the Full Court were supplied with all the requisite documents and had full opportunity to deliberate upon the Agenda in question.37. There is another aspect of the matter which may require consideration. For all intent and purport the report of the two Judges Committee has been approved by the Full Court. Once approved, it terminated into a decision of the Full Court itself. In the instant case even the Governor has acted upon the recommendations of the High Court. The writ petitioner-first respondents herein did not question the appointments of the appointees not the High Court. Thus, there cannot be any doubt whatsoever that for all intent and purport the opinion of the two Judges Committee received approval at the hands of the Full Court.38. The High Court, in our opinion, further committed a manifest error in arriving at its conclusion in so far as it failed to take into consideration that Rule 15 does not postulate the prior approval of the Full Court in relation to any action which may be initiated by the Chief Justice.39. When an approval is required, an action holds good. Only if it disapproved it losses its force. Only when a permission is required, the decision does not become effective till permission is obtained. (See U.P. Avas Evam Vikas Parishad and Another vs. Friends Coop. Housing Society Ltd. and Another [(1995) Supp (3) SCC 456]. In the instant case both the aforementioned requirements have been fulfilled.40. There is another aspect of the matter. In terms of Rule 2(2) of the Rules, the decision of the Full Court would have a retrospective effect and retroactive operation.41. In any view of the matter, even n a case where the initial action is illegal, the same can be ratified by a body competent therefor. This aspect of the matter has not been considered by the High Court at all. In Sri Parmeshwari Prasad Gupta vs. The Union of India [(1973) 2 SCC 543] this Court held: ".....Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorized, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953...." 42. (See also Marathwada University vs. Seshrao Balwant Rao Chavan [(1989) 3 SCC 132 para 28], Babu Verghese and Others vs. Bar Council of Kerala and Others [(1999) 3 SCC 422 para 35] and Barnard vs. National Dock Labour Board [(1953) 1 All ER 1113]). 43. In Orissa Small Industries Corpn. Ltd and Another vs. Narasingha Charan Mohanty and Others (supra) where upon the learned counsel has placed strong reliance, this Court held: "...That apart, the Court is not entitled to assess the respective merit of the candidates for adjudging their suitability for being promoted and the only right the employee has is a right of consideration. The said right of consideration not having been infringed in the present case, the High Court was not justified in issuing the impugned direction for consideration of his case......." 44. The said decision, therefore, mutilates against the contentions of the respondents. 45. Furthermore, the first respondent herein in these cases Shri P.P. Singh, Shri G.P. Pandey has been granted selection scale in RHJS with effect from 1.8.2000 and Shri P.K. Bhatia has bee given with effect from 29.3.2000. Shri P.P. Singh has also retired from service on superannuation. ### Response: 1

Commissioner Of Income-Tax West Bengal,Calcutta Vs. Smt. Anusuya Devi

evidence cannot be assailed before the High Court on the ground that departmental authorities had violated the basic rules of natural justice without raising that question before the Tribunal.12. Counsel for Anusuya Devi requested that in any event the question which has been referred by the Tribunal in pursuance of the order of the High Court may be reframed and a supplementary statement may be ordered to be submitted by the Tribunal.But power to reframe a question may be exercised to clarify some obscurity in the question referred, or to pinpoint the real issue between the tax-payer and the department or for similar other reasons, it cannot be exercised for reopening an enquiry on questions of fact or law which is closed by the order of the Tribunal. Again a supplementary statement may be ordered only on the question arising out of the order of the Tribunal, and if the Court is satisfied that the statements are not sufficient to enable the Court to determine the question raised thereby, and when directed may be only on such material and evidence as may already be on the record but which has not been included in the statement initially made:Keshav Mills Ltd v. Commissioner of Income-tax, Bombay North, Ahmedabad 1965-56 ITR 365 = (AIR 1965 SC 1636 ). We do not think that the judgment of this Court in Narain Swadeshi Weaving Mills v. Commissioner of Excess Profit Tax, (1954) 28 ITR 765 = (AIR 1955 SC 176 ) lays down my general proposition that the High Court hearing a reference is entitled to amend or reframe a question and call for a supplementary statement so as to enable a party to lead evidence which has not been led before the Tribunal or the departmental authorities. In Narain Swadeshi Weaving Mills case, (1954) 26 ITR 765 = (AIR 1955 SC 176 ) this Court merely reframed the question so as to bring out the real issue between the parties.13. Finally counsel for Anusuya Devi submitted that the Tribunal was bound to state a case on the following question which was set out in the application under Section 66 (1) :6. "Whether there is any material before the Tribunal to hold that the said sum of Rs. 5,84,000 representing the value of the encashed high denomination notes was the income of the deceased Amritial Ojha of the period of the year 1944-45 prior to his death?"Counsel submitted that since the Tribunal had failed to raise and state a case on that question, and the High Court had also in directing that a statement of case be submitted, ignored that question, in the interest of justice and for a final and satisfactory disposal of the case this Court may order a statement on that question. Counsel said that merely because on the findings of the Tribunal Amritlal was on April 30, 1944, possessed of a large sum of money it could not be assumed that the whole amount was earned after April 1, 1944, and was on that account taxable in its entirety in the year of assessment 1945-46.14. The question whether the amount of Rs. 5,84,000 was taxable in the proceeding for assessment for the year 1945-46 was considered by the Income-tax Officer and by the Appellate Assistant Commissioner. The Income-tax Officer observed that by the explanation submitted on behalf of Anusuya Devi before him contrary to what was stated at the time of encashment of the high denomination notes, it was attempted as an after thought, to spread over the amount over a number of years". The contention that the amount of Rs. 5,84,000 was not taxable in the year of assessment 1945-46 was rejected. The Appellate Assistant Commissioner observed that on the statement made by Anusuya Devi that she had received the amount from her husband in the year of account 1944-45 and that it was unfortunate that there was no complete record of the "earnings and withdrawals" of Amritlal from the various businesses in which he was interested, and that in the absence of such a record all that was to be done was to examine whether the explanation was credible. He observed that"the accounting year was very favourable for all types of business, and in all probability the sum represented some income earned by the deceased in some ventures which were not known to the Department and therefore the sum could be treated as income of Amritlal from undisclosed sources"The Tribunal observed that they were unable to believe the version of Anusuya Devi that the amount was accumulated by her husband during a long period and since the assessee and his legal representatives had failed to prove the source of the fund, it "must be considered as of income character" Apparently no argument was raised before the Tribunal that the amount though taxable was not income of the year of account 1944-45 and could obviously not be referred.15. The High Court may answer only those questions which are actually referred to it. New questions which have not been referred cannot be raised and answered by the High Court. If the Tribunal refuses to refer a case under Section 66 (1) which arises out of its order, the proper course is for the aggrieved party to move the High Court to require the Tribunal under Section 66 (2) to refer the same. The question whether Rs. 5,84,000 represented income of the year of account 1944-45 was not submitted by the Tribunal to the High Court.Even if it be assumed that the High Court was moved to direct the Tribunal to state a case on the sixth question which was set out in the application filed before the Tribunal under Section 66 (1), the application must be deemed to have been rejected, and the order of rejection has become final. We have no power, without an appeal by the assessee, to set aside that order of the High Court and to direct the Tribunal to state a case on that question.

1[ds]7. In our judgment the order of the High Court cannot be sustained. The statement that out of 584 high denomination notes disclosed by Anusuya Devi 494 notes were received in realization of a cheque drawn by Bhupatray at Rajkot was made for the first time in a petition under Section 66 (2):it did Dot find place in the statement before the Income-tax Officer, not in the grounds of objection raised before the Appellate Assistant Commissioner, and not even in the affidavit filed before the Tribunal. The Tribunal was never apprised of that part of the case, and had no opportunity to test the correctness of that statement. On the statements made before the Income-tax Officer and in the affidavit there can be no doubt that it was the case of Anusuya Devi that she had encashed high denomination notes which she had received from her husband. No fault can therefore be found with the observations of the Tribunal that it was a peculiar fact that all the money stated to have been received and found in the cupboard was all in high denomination note and the entire amount had to be exchanged under the High Denomination Bank Notes (Denomination) Ordinance.We find it difficult to uphold the view of the Calcutta High Court that if an order is passed by the High Court calling upon the Tribunal to state a case on a question which does not arise out of the order of the Tribunal, the High Court is bound to advise the Tribunal on that question even if the question does not arise out of the order of the Tribunal. The High Court may only answer a question referred to it by the Tribunal the High Court is however not bound to answer a question merely because it is raised and referred. It is well settled that the High Court may decline to answer a question of fact or a question of law which is purely academic, or has no bearing on the dispute between the parties or though referred by the Tribunal does not arise out of its order. The High Court may also decline to answer a question arising out of the order of the Tribunal, if it is unnecessary or irrelevant or is not calculated to dispose of the real issue between the tax-payer and the department. If the power of the High Court to refuse to answer questions other than those which are questions of law directly related to the dispute between the tax-payer and the department, and which when answered would determine qua that question the dispute, be granted, we fail to see any ground for restricting that power when by an erroneous order the High Court has directed the Tribunal to state a case on a question which did not arise out of the order of the Tribunal. We are unable therefore to hold that at the hearing of a reference pursuant to an order calling upon the Tribunal to state a case, the High Court must proceed to answer the question without considering whether it arises out of the order of the Tribunal, whether it is a question of law or whether it is academic, unnecessary or irrelevant.11. We are of the opinion that the very basis of the question on which the Tribunal was called upon to submit a statement of the case did not exist. The Tribunal cannot in this case be charged with recording its decision without considering all the evidence on the record: the decision of the Tribunal was clearly based on appreciation of evidence on the record before it, and the High Court was, in our view, incompetent to direct the Tribunal to state the case on the question which was directed to be referred and dealt with by the High Court. We are also unable to agree with the observation of the High Court that the explanation which the Assistant Commissioner says was made by Anusuya Devi was not made by her or by her attorney. No such plea was apparently raised before the Tribunal. There is also no ground for believing that Anusuya Devi was not given an opportunity to "clear up the discrepancies " between the statements made by her or on her behalf from time to time in connection with the encashment of the high denomination notes. That plea was not raised before the Tribunal, and the validity of the conclusion of the Tribunal on appreciation of evidence cannot be assailed before the High Court on the ground that departmental authorities had violated the basic rules of natural justice without raising that question before thepower to reframe a question may be exercised to clarify some obscurity in the question referred, or to pinpoint the real issue between the tax-payer and the department or for similar other reasons, it cannot be exercised for reopening an enquiry on questions of fact or law which is closed by the order of the Tribunal. Again a supplementary statement may be ordered only on the question arising out of the order of the Tribunal, and if the Court is satisfied that the statements are not sufficient to enable the Court to determine the question raised thereby, and when directed may be only on such material and evidence as may already be on the record but which has not been included in the statement initiallydo not think that the judgment of this Court in Narain Swadeshi Weaving Mills v. Commissioner of Excess Profit Tax, (1954) 28 ITR 765 = (AIR 1955 SC 176 ) lays down my general proposition that the High Court hearing a reference is entitled to amend or reframe a question and call for a supplementary statement so as to enable a party to lead evidence which has not been led before the Tribunal or the departmental authorities.The question whether the amount of Rs. 5,84,000 was taxable in the proceeding for assessment for the year 1945-46 was considered by the Income-tax Officer and by the Appellate Assistant Commissioner.The High Court may answer only those questions which are actually referred to it. New questions which have not been referred cannot be raised and answered by the High Court. If the Tribunal refuses to refer a case under Section 66 (1) which arises out of its order, the proper course is for the aggrieved party to move the High Court to require the Tribunal under Section 66 (2) to refer the same. The question whether Rs. 5,84,000 represented income of the year of account 1944-45 was not submitted by the Tribunal to the High Court.Even if it be assumed that the High Court was moved to direct the Tribunal to state a case on the sixth question which was set out in the application filed before the Tribunal under Section 66 (1), the application must be deemed to have been rejected, and the order of rejection has become final. We have no power, without an appeal by the assessee, to set aside that order of the High Court and to direct the Tribunal to state a case on that question.

### 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: evidence cannot be assailed before the High Court on the ground that departmental authorities had violated the basic rules of natural justice without raising that question before the Tribunal.12. Counsel for Anusuya Devi requested that in any event the question which has been referred by the Tribunal in pursuance of the order of the High Court may be reframed and a supplementary statement may be ordered to be submitted by the Tribunal.But power to reframe a question may be exercised to clarify some obscurity in the question referred, or to pinpoint the real issue between the tax-payer and the department or for similar other reasons, it cannot be exercised for reopening an enquiry on questions of fact or law which is closed by the order of the Tribunal. Again a supplementary statement may be ordered only on the question arising out of the order of the Tribunal, and if the Court is satisfied that the statements are not sufficient to enable the Court to determine the question raised thereby, and when directed may be only on such material and evidence as may already be on the record but which has not been included in the statement initially made:Keshav Mills Ltd v. Commissioner of Income-tax, Bombay North, Ahmedabad 1965-56 ITR 365 = (AIR 1965 SC 1636 ). We do not think that the judgment of this Court in Narain Swadeshi Weaving Mills v. Commissioner of Excess Profit Tax, (1954) 28 ITR 765 = (AIR 1955 SC 176 ) lays down my general proposition that the High Court hearing a reference is entitled to amend or reframe a question and call for a supplementary statement so as to enable a party to lead evidence which has not been led before the Tribunal or the departmental authorities. In Narain Swadeshi Weaving Mills case, (1954) 26 ITR 765 = (AIR 1955 SC 176 ) this Court merely reframed the question so as to bring out the real issue between the parties.13. Finally counsel for Anusuya Devi submitted that the Tribunal was bound to state a case on the following question which was set out in the application under Section 66 (1) :6. "Whether there is any material before the Tribunal to hold that the said sum of Rs. 5,84,000 representing the value of the encashed high denomination notes was the income of the deceased Amritial Ojha of the period of the year 1944-45 prior to his death?"Counsel submitted that since the Tribunal had failed to raise and state a case on that question, and the High Court had also in directing that a statement of case be submitted, ignored that question, in the interest of justice and for a final and satisfactory disposal of the case this Court may order a statement on that question. Counsel said that merely because on the findings of the Tribunal Amritlal was on April 30, 1944, possessed of a large sum of money it could not be assumed that the whole amount was earned after April 1, 1944, and was on that account taxable in its entirety in the year of assessment 1945-46.14. The question whether the amount of Rs. 5,84,000 was taxable in the proceeding for assessment for the year 1945-46 was considered by the Income-tax Officer and by the Appellate Assistant Commissioner. The Income-tax Officer observed that by the explanation submitted on behalf of Anusuya Devi before him contrary to what was stated at the time of encashment of the high denomination notes, it was attempted as an after thought, to spread over the amount over a number of years". The contention that the amount of Rs. 5,84,000 was not taxable in the year of assessment 1945-46 was rejected. The Appellate Assistant Commissioner observed that on the statement made by Anusuya Devi that she had received the amount from her husband in the year of account 1944-45 and that it was unfortunate that there was no complete record of the "earnings and withdrawals" of Amritlal from the various businesses in which he was interested, and that in the absence of such a record all that was to be done was to examine whether the explanation was credible. He observed that"the accounting year was very favourable for all types of business, and in all probability the sum represented some income earned by the deceased in some ventures which were not known to the Department and therefore the sum could be treated as income of Amritlal from undisclosed sources"The Tribunal observed that they were unable to believe the version of Anusuya Devi that the amount was accumulated by her husband during a long period and since the assessee and his legal representatives had failed to prove the source of the fund, it "must be considered as of income character" Apparently no argument was raised before the Tribunal that the amount though taxable was not income of the year of account 1944-45 and could obviously not be referred.15. The High Court may answer only those questions which are actually referred to it. New questions which have not been referred cannot be raised and answered by the High Court. If the Tribunal refuses to refer a case under Section 66 (1) which arises out of its order, the proper course is for the aggrieved party to move the High Court to require the Tribunal under Section 66 (2) to refer the same. The question whether Rs. 5,84,000 represented income of the year of account 1944-45 was not submitted by the Tribunal to the High Court.Even if it be assumed that the High Court was moved to direct the Tribunal to state a case on the sixth question which was set out in the application filed before the Tribunal under Section 66 (1), the application must be deemed to have been rejected, and the order of rejection has become final. We have no power, without an appeal by the assessee, to set aside that order of the High Court and to direct the Tribunal to state a case on that question. ### Response: 1

Ashwini Kumar Upadhyay Vs. Union of India & Another

W.P.(C)No.295 of 2016 and W.P.(C) No.624 of 20161. The application for permission to appear and argue in person is allowed in W.P.(C) No. 624 of 2016.2. Heard Mr.Vikas Singh, learned senior counsel appearing on behalf of the petitioner and Mr. Mukul Rohatgi, learned Attorney General for the Union of India in W.P.(C) No.295 of 2010. We have also heard the petitioner, who has appeared in person in W.P. (C)No. 624 of 2016.3. The issue of increasing the number of vacancies, at the High Court level, has been examined at the level of the Government, and an increase in the number of posts was ordered recently. Insofar as the subordinate courts, upto the district level are concerned, this Court has recently rendered a judgment in connection with the manner of increasing the posts at the said subordinate level (Imtiyaz Ahmad v. State of U.P. & Ors. - 2017 (1) Scale 164 ).4. It is not in dispute, that a large number of unfilled posts of Judges, at various levels, are pending, and a rigorous process for filling them is in progress. The question of increasing the number of posts, as has been suggested in these petitions, will arise only after the existing vacancies have been filled up, and the proposals made by this Court are adopted, which we are of the view, should be the first step in the process of increasing the vacancies and filling them.

1[ds]W.P.(C)No.295 of 2016 andW.P.(C) No.624 ofIt is not in dispute, that a large number of unfilled posts of Judges, at various levels, are pending, and a rigorous process for filling them is in progress. The question of increasing the number of posts, as has been suggested in these petitions, will arise only after the existing vacancies have been filled up, and the proposals made by this Court are adopted, which we are of the view, should be the first step in the process of increasing the vacancies and filling9. Insofar as prayer `(a) is concerned, the same has been dealt with by us while disposing ofW.P. (C)No.624 of 2016, decided on 20.03.2017 (Ashwini Kumar Upadhyay v. Union of India and Anr.). As such, prayer `(a) is disposed of, in terms of the order referred to hereinabove.10. So far as prayer (b) is concerned, a Committee of Honble Judges of the Supreme Court has been constituted, to look into the matter.

### 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: W.P.(C)No.295 of 2016 and W.P.(C) No.624 of 20161. The application for permission to appear and argue in person is allowed in W.P.(C) No. 624 of 2016.2. Heard Mr.Vikas Singh, learned senior counsel appearing on behalf of the petitioner and Mr. Mukul Rohatgi, learned Attorney General for the Union of India in W.P.(C) No.295 of 2010. We have also heard the petitioner, who has appeared in person in W.P. (C)No. 624 of 2016.3. The issue of increasing the number of vacancies, at the High Court level, has been examined at the level of the Government, and an increase in the number of posts was ordered recently. Insofar as the subordinate courts, upto the district level are concerned, this Court has recently rendered a judgment in connection with the manner of increasing the posts at the said subordinate level (Imtiyaz Ahmad v. State of U.P. & Ors. - 2017 (1) Scale 164 ).4. It is not in dispute, that a large number of unfilled posts of Judges, at various levels, are pending, and a rigorous process for filling them is in progress. The question of increasing the number of posts, as has been suggested in these petitions, will arise only after the existing vacancies have been filled up, and the proposals made by this Court are adopted, which we are of the view, should be the first step in the process of increasing the vacancies and filling them. ### Response: 1

Indiabulls Housing Finance Limited Vs. M/s. Deccan Chronicle Holdings Limited & Others

the case of United Bank of India v. Satyawati Tondon and Others (2010) 8 SCC 110 ) wherein it was held that the Act is intended to give impetus to industrial development in the country by providing speedy procedure of recovery. On account of lack of infrastructure and manpower, regular courts were not able to cope with the speed in adjudication of recovery cases. In the light of recommendations of the Tiwari Committee, special tribunals came to be set up under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for recovery of huge accumulated NPAs of the bank loans. On the recommendations of the Narasimham Committee and Andhyarujina Committee, SARFAESI Act was enacted to empower banks and financial institutions to take possession of the securities and to sell them without the intervention of the Court. In this regard, reference may be made to the following observations of this Court in the case of Satyawati Tondon: 1…With a view to give impetus to the industrial development of the country, the Central and State Governments encouraged the banks and other financial institutions to formulate liberal policies for grant of loans and other financial facilities to those who wanted to set up new industrial units or expand the existing units. Many hundred thousand took advantage of easy financing by the banks and other financial institutions but a large number of them did not repay the amount of loan, etc. Not only this, they instituted frivolous cases and succeeded in persuading the civil courts to pass orders of injunction against the steps taken by banks and financial institutions to recover their dues. Due to lack of adequate infrastructure and non-availability of manpower, the regular courts could not accomplish the task of expeditiously adjudicating the cases instituted by banks and other financial institutions for recovery of their dues. As a result, several hundred crores of public money got blocked in unproductive ventures. 2. In order to redeem the situation, the Government of India constituted a committee under the Chairmanship of Shri T. Tiwari to examine the legal and other difficulties faced by banks and financial institutions in the recovery of their dues and suggest remedial measures. The Tiwari Committee noted that the existing procedure for recovery was very cumbersome and suggested that special tribunals be set up for recovery of the dues of banks and financial institutions by following a summary procedure. The Tiwari Committee also prepared a draft of the proposed legislation which contained a provision for disposal of cases in three months and conferment of power upon the Recovery Officer for expeditious execution of orders made by adjudicating bodies. xx xx xx 16. Thus, the Act intends to provide remedy in respect of pre - existing loans. The interpretation that the Act will apply only to future debt transactions defeats the very purpose of law of reducing the non-performing assets. This object is clearly mentioned in the Statement of Objects and Reasons. As noted in the case of Satyaivati Tondon amount of rupees one lakh twenty thousand crores was due to the banks in the year 2001 which had adversely affected the economy of the country. Obviously, the Act is intended to recover the said pre-existing loans by the machinery provided under the SARFAESI Act. The pre-existing loans are not excluded from the purview of the Act. Similarly, the object of notifying the financial institution in question is to enable such institution to avail the provisions of SARFAESI Act in respect of existing loans. This salient object of the Act does not appear to have been noticed in Subash Chandra Panda. 42) We may also reproduce the following discussion from that judgment which completely answers most of the arguments raised by the learned counsel for the respondents: 17. Further, the settled principle of interpretation that while the statute affecting the substantive rights is presumed to be prospective, a statute changing the forum of remedy and the procedure is retrospective has also not been kept in mind. These principles are the basis of the view taken in the Unique Engineering Works and Pradeep Kumar Gupta. The said considerations are valid and legitimate, supported by ample authority of binding precedents of the Apex Court, to which reference may be made and relevant observations extracted: 1. Rafiquennessa v. Lal Bahadur Chetri, AIR 1964 SC 9….. Mr. Chatterjee has relied upon the well-known observations made by Wright, J. in (Re Athlumney ex parte or Wilson (1898) 2 QBD 547) when the learned Judge said that it is a general rule that when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. He added that there was one exception to that rule, namely that where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights. In order to make the statement of the law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retrospective operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision construed in the context where it occurs. In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur. (emphasis added) 43) The aforesaid discussion, thus, leads us to conclude that respondent No.1 would be treated as borrower within the meaning of Section 2(1)(f) of the SARFAESI Act; the arrangement would be classified as security arrangement under Section 2(1) (zb); the agreements created security interest under Section 2(1) (zf); and the appellant became secured creditor within the meaning of Section 2(1)(zd) of SARFAESI Act.

1[ds]11) We may record at this stage that the main ground on which notice issued under SARFAESI Act had been quashed is the impermissibility of invoking the provisions of the Act by the appellant herein who took over the assets and liabilities of IBFSL on merger. Insofar as the other issue, namely, provisions of SARFAESI Act could not be invoked as IBFSL had already invoked the machinery under the Arbitration Act by filing petitions under Section 9 thereof is concerned, this is decided as the subsidiary issue. Insofar as this subsidiary question is concerned, learned counsel for the respondent did not press this ground seriously and it was virtually conceded that merely because IBFSL had filed applications under Section 9 of the Arbitration Act, would not create a bar for proceeding under the SARFAESI Act. Even otherwise, we find that the High Court was in error in deciding this issue. It is not correct to say that proceedings under the SARFAESI Act cannot be placed on high pedestal. We find that SARFAESI Act is a special enactment which was enacted by the Parliament to provide speedy remedy to the banks and financial institutions without recourse to the court of law. On the other hand, the Arbitration and Conciliation Act, in contrast, is a statute of general nature. Merely because steps are taken under this general law would not mean that remedy under the special statute is foreclosed. If at all, legal position is just the reverse. Matter is no more res integra and is covered by a judgment of this Court in Transcore v. Union of India & Anr. (2008) 1 SCC 125 ) In that case, after analysing the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the Court summed up the position as under:18. On analysing the above provisions of the DRT Act, we find that the said Act is a complete code by itself as far as recovery of debt is concerned. It provides for various modes of recovery. It incorporates even the provisions of the Second and Third Schedules to the Income Tax Act, 1961. Therefore, the debt due under the recovery certificate can be recovered in various ways. The remedies mentioned therein are complementary to each other. The DRT Act provides for adjudication. It provides for adjudication of disputes as far as the debt due is concerned. It covers secured as well as unsecured debts. However, it does not rule out applicability of the provisions of the TP Act, in particular Sections 69 and 69-A of that Act. Further, in cases where the debt is secured by pledge of shares or immovable properties, with the passage of time and delay in the DRT proceedings, the value of the pledged assets or mortgaged properties invariably falls. On account of inflation, value of the assets in the hands of the bank/FI invariably depletes which, in turn, leads to asset-liability mismatch. These contingencies are not taken care of by the DRT Act and, therefore, Parliament had to enact the NPA Act, 2002.We may note that our discussion is not on a virgin field as the terrain has already been covered by this Court in M.D. Frozen Foods Exports Pvt. Ltd. & Ors. v. Hero Fincorp Ltd. (2017) SCC Online SC 1211)15) Learned counsel for the appellant is factually correct in pointing out that the impugned judgment of the Andhra Pradesh High Court is specifically noted and overruled by this Court in M.D. Frozen Foods. Therefore, it would be apt to discuss the said judgment in the first instance.21) The fact situation was, thus, almost the same in the instant case. The only difference is that here the loan was initially sanctioned by IBFSL which stands merged with the appellant and the appellant is the successor-in-interest which is covered by the SARFAESI Act. In the aforesaid case, though the entity which disbursed the loan remained the same, however, at the time when the loan was given by the respondent to the appellant it was not a financial institution covered under the SARFAESI Act, which status was attained by the respondent in view of notification dated August 05, 2016 issued much after the loan was disbursed to the appellant therein. This does not make any difference in the outcome, as discussed in detailed hereinafter.22) Learned counsel for respondents could not dispute that the aforesaid judgment covers the present case in its entirety. This position had to be accepted by them having regard to the fact that the judgment of the High Court which is impugned in these proceedings has been specifically overruled by this Court in M.D. Frozen Foods case. Faced with this stark reality staring at the face of the respondents, a valiant effort was made to convince this Bench to take a contrary view and in the process it was submitted that in M.D. Frozen Foods some important legal aspects have not been considered.32) After considering the aforesaid submission, we are of the opinion that entire edifice is built on the pleas which are squarely answered in M.D. Frozen Foods and there is no reason to take a different view therefrom for the reasons that follow hereinafter.33) In the instant case, loan was given by IBFSL which was not a financial institution covered by the SARFAESI Act when the loan was given. However, this entity has got merged with the appellant and appellant is a SARFAESI company.In order to deal with this aspect, we will have to first taken into consideration, the effect of such a merger scheme as approved by the High Court. It is to be kept in mind that the loan/debts/financial assets stood vested in the appellant pursuant to the amalgamation scheme filed by the two companies under Sections 391 and 394 of the Companies Act, 1956 whereunder the predecessor company, IBFSL got amalgamated with the appellant, the effect of such a merger is explained by this Court in Saraswati Industrial Syndicate Ltd. v. Commissioner of Income Tax (1990(Supp) SCC 675) in the following manner:5. Generally, where only one company is involved in change and the rights of the shareholders and creditors are varied, it amounts to reconstruction or reorganisation of scheme of arrangement. In amalgamation two or more companies are fused into one by merger or by taking over by another. Reconstruction or amalgamation has no precise legal meaning. The 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 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 a new company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another, the amalgamating company loses its entity.34) Thus, on sanction of the scheme of amalgamation, all loans, recoveries, security, interest, financial documents, etc. in favour of IBFSL got transferred to and stood vested in the appellant including the loans given by IBFSL to respondent borrowers, debts recoverable by IBFSL from respondent borrowers in favour of IBFSL, security documents executed by respondent borrowers in favour of IBFSL, etc. On the sanctioning of the scheme, the respondent borrowers became the borrower of the appellant as if the financial assistance was granted by the appellant to the respondent borrowers35) There is a force in the contention by the appellant that the debt with underlying securities is the asset of IBFSL and that IBFSL had right to transfer/assign its assets to any person without seeking consent of the borrower. Such transfer/assignment is recognized and that this Court in the case of Official Liquidator of APS Star Industries has recognised and upheld such an assignment36) In the aforesaid backdrop, the factor which assumes importance and has to be kept in mind is that the appellant is an assignee of a debt through the amalgamation of original lender with the appellant which was effected invoking the statutory provisions of the Companies Act. Once this is kept in mind, there would not be any difference as far as consequences in law are concerned from the case of M.D. Frozen Foods and this case. Therefore, M.D. Frozen Foods case would apply to the facts of this case in all force37) Further, it is too farfetched to argue that just to realise the dues from the respondents, IBFSL and the appellant devised the plan of merger so as to attract the provisions of SARFAESI Act and we are not inclined to accept such a submission. Various judgments which are relied upon by the respondents also would not apply as we neither find it to be a case of the Court creating any legislation or supplying any casus omissus.38) Apart from the factual parity, even legally the arguments of the respondents do not carry any weight. The view taken in M.D. Frozen Foods is that the SARFAESI Act is retroactive in nature.In the process, the Court approved the Full Bench decision of the Orissa High Court in Sarthak Builders Pvt. Ltd., Chinta, Arunodaya Market, Cuttack & Another v. Orissa Rural Development Corporation Limited, Station Square, Bhubaneswar & 5 Ors. ((2014) SCC Online Ori 75) and made the following observations:38…In case of retroactivity, the Parliament takes note of the existing conditions and promulgates the remedial measures to rectify those conditions. In fact the SARFAESI Act, in our view, was to remedy such a position and provide a measure against secured interests. The scheme of the SARFAESI Act, is really to provide a procedural remedy against security interest already created. Therefore, an existing borrower, who had been granted financial assistance was covered under Section 2(f) of the said Act as a borrower. Not only this expression, the definition clauses dealing with debt securities, financial assistance, financial assets, etc., clearly convey the legislative intent that the SARFAESI Act applies to all existing agreements irrespective of the fact whether the lender was a notified financial institution on the date of the execution of the agreement with the borrower or not. The scheme of the SARFAESI Act sets out an expeditious, procedural methodology, enabling the bank to take possession of the property for non-payment of dues, without intervention of the court. The mere fact that a more expeditious remedy is provided under the SARFAESI Act does not mean that it is substantive in character or has created an altogether new right. To accept the argument of the appellants would imply that they have an inherent right to delay the enforcement against the security interest!39. The catena of judgments referred to by learned senior counsel for the appellants on substantive law not being retrospective in operation, unless expressly stated so in the Act would, thus, have no application to the matter in issue, in view of what we have observed aforesaid. On the other hand, as observed by Buckley, L.J. in West v. Gwynne, retrospective operation is one matter and interference with existing rights is another. In that context, it was ruled that the provisions of the Conveyancing of Law and Property Act, 1892 were held applicable to leases containing a covenant, condition or agreement against assigning, under- letting or parting with possession or disposing of land or property leased without license or consent to all leases whether executed before or after the commencement of the Act. Such a construction was held not to make the Act retrospective in operation but merely effected the future existing rights under all leases whether executed before or after the date of that Act. (Discussed in Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil)40. In a similar vein, are the observations made in the case of In re Athlumney. Ex parte Wilson, where the question posed before the Queens Division Bench was whether Section 23 of the Bankruptcy Act, 1890 was retrospective in its operation. In the aforementioned context, Wright, J., speaking for the Bench, illuminatingly opined:Perhaps no rule of construction is more firmly established than this — that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only… it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them…It is said that there is one exception to that rule, namely, that, where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights, and it is suggested here that the alteration made by this section is within that exception… (Emphasis supplied)41. Similarly, the date on which a debt is declared as an NPA would again have no impact. We are, thus, of the view that the provisions of the SARFAESI Act would become applicable quaall debts owing and live when the Act became applicable to the respondent in terms of the parameters contended by learned senior counsel for the respondent and enlisted at serial Nos. i to iv in para 18.It, thus, follows that there is only a procedural change in respect of forum for recovery of debt and no substantive rights are affected39) In view of the aforesaid judgment, argument of the respondents herein predicated on Sections 69 and 69A of the Transfer of Property Act, which weighed with the High Court, is without any substance40) The aforesaid view also gets support from the judgment of this Court in Mardia Chemicals Ltd. & Ors. v. Union of India & Ors. (2004) 4 SCC 311 ) wherein the background and salient feature of the SARFAESI Act have been extensively discussed and analysed and the Court has also highlighted the objective behind enacting such a legislation.43) The aforesaid discussion, thus, leads us to conclude that respondent No.1 would be treated as borrower within the meaning of Section 2(1)(f) of the SARFAESI Act; the arrangement would be classified as security arrangement under Section 2(1) (zb); the agreements created security interest under Section 2(1) (zf); and the appellant became secured creditor within the meaning of Section 2(1)(zd) of SARFAESI Act.41) These sentiments are echoed in the subsequent judgment in the case of United Bank of India v. Satyawati Tondon and Others (2010) 8 SCC 110 ) wherein it was held that the Act is intended to give impetus to industrial development in the country by providing speedy procedure of recovery. On account of lack of infrastructure and manpower, regular courts were not able to cope with the speed in adjudication of recovery cases. In the light of recommendations of the Tiwari Committee, special tribunals came to be set up under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for recovery of huge accumulated NPAs of the bank loans. On the recommendations of the Narasimham Committee and Andhyarujina Committee, SARFAESI Act was enacted to empower banks and financial institutions to take possession of the securities and to sell them without the intervention of the Court.In this regard, reference may be made to the following observations of this Court in the case of Satyawati Tondon:1…With a view to give impetus to the industrial development of the country, the Central and State Governments encouraged the banks and other financial institutions to formulate liberal policies for grant of loans and other financial facilities to those who wanted to set up new industrial units or expand the existing units. Many hundred thousand took advantage of easy financing by the banks and other financial institutions but a large number of them did not repay the amount of loan, etc. Not only this, they instituted frivolous cases and succeeded in persuading the civil courts to pass orders of injunction against the steps taken by banks and financial institutions to recover their dues. Due to lack of adequate infrastructure and non-availability of manpower, the regular courts could not accomplish the task of expeditiously adjudicating the cases instituted by banks and other financial institutions for recovery of their dues. As a result, several hundred crores of public money got blocked in unproductive ventures2. In order to redeem the situation, the Government of India constituted a committee under the Chairmanship of Shri T. Tiwari to examine the legal and other difficulties faced by banks and financial institutions in the recovery of their dues and suggest remedial measures. The Tiwari Committee noted that the existing procedure for recovery was very cumbersome and suggested that special tribunals be set up for recovery of the dues of banks and financial institutions by following a summary procedure. The Tiwari Committee also prepared a draft of the proposed legislation which contained a provision for disposal of cases in three months and conferment of power upon the Recovery Officer for expeditious execution of orders made by adjudicating bodies16. Thus, the Act intends to provide remedy in respect of pre - existing loans. The interpretation that the Act will apply only to future debt transactions defeats the very purpose of law of reducing the non-performing assets. This object is clearly mentioned in the Statement of Objects and Reasons. As noted in the case of Satyaivati Tondon amount of rupees one lakh twenty thousand crores was due to the banks in the year 2001 which had adversely affected the economy of the country. Obviously, the Act is intended to recover the said pre-existing loans by the machinery provided under the SARFAESI Act. The pre-existing loans are not excluded from the purview of the Act. Similarly, the object of notifying the financial institution in question is to enable such institution to avail the provisions of SARFAESI Act in respect of existing loans. This salient object of the Act does not appear to have been noticed in Subash Chandra Panda.42) We may also reproduce the following discussion from that judgment which completely answers most of the arguments raised by the learned counsel for the respondents:17. Further, the settled principle of interpretation that while the statute affecting the substantive rights is presumed to be prospective, a statute changing the forum of remedy and the procedure is retrospective has also not been kept in mind. These principles are the basis of the view taken in the Unique Engineering Works and Pradeep Kumar Gupta. The said considerations are valid and legitimate, supported by ample authority of binding precedents of the Apex Court, to which reference may be made and relevant observations extracted:1. Rafiquennessa v. Lal Bahadur Chetri, AIR 1964 SC 9….. Mr. Chatterjee has relied upon the well-known observations made by Wright, J. in (Re Athlumney ex parte or Wilson (1898) 2 QBD 547) when the learned Judge said that it is a general rule that when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. He added that there was one exception to that rule, namely that where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights. In order to make the statement of the law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retrospective operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision construed in the context where it occurs. In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur.16) In M.D. Frozen Foods the appellants had borrowed monies for their business from the respondents against security of immovable properties by creating an equitable mortgage. Loan agreement contained an arbitration clause. Since the appellant defaulted in making the payment and the account became NPA, the respondent invoked the arbitration clause on November 16, 2016. However, three months before this invocation, a notification was issued on August 05, 2016 specifying certain Non-Financial Banking Companies (NFBCs) covered under clause (f) of Section 45-I of the RBI Act, with assets of more than Rs. 500 crores and above, as financial institutions and directing that the provisions of SARFAESI Act shall apply to such financial institutions with the exceptions of provisions of Sections 13 to 19 of that Act. Sections 13 to 19 were made applicable, as per the notification, only to such security interest which is obtained for securing repayment of secured debt with principal amount of Rs.1 crore and above. The respondent was specifically covered by the said notification which was issued in exercise of powers conferred under sub-clause (iv) of clause (m) of sub-section (1) of Section 2 read with Section 31A of the SARFAESI Act. In view of the aforesaid notification, the respondent issued a notice under Section 13(2) of SARFAESI Act on November 24, 2016 for one of the seven properties mortgaged to it against the aforesaid loan which was advanced to the appellants.17) Having regard to the aforesaid facts in M.D. Frozen Foods, the Court formulated following three questions which had arisen for consideration:A. Whether the arbitration proceedings initiated by the respondent can be carried on along with the SARFAESI proceedings simultaneously?B. Whether resort can be had to Section 13 of the SARFAESI Act in respect of debts which have arisen out of a loan agreement/mortgage created prior to the application of the SARFAESI Act to the respondent?C. A linked question to question (ii), whether the lender can invoke the SARFAESI Act provision where its notification as financial institution under Section 2(1) (m) has been issued after the account became an NPA under Section 2(1)(o) of the said Act?These questions amply demonstrate that the instant case is virtually on the same footing.18) Insofar as question A is concerned, the Court categorically held that merely because remedy under the Arbitration Act was invoked was no ground to debar the respondent from taking recourse to the SARFAESI Act. The discussion from that judgment is reproduced below:26. A claim by a bank or a financial institution, before the specified laws came into force, would ordinarily have been filed in the Civil Court having the pecuniary jurisdiction. The setting up of the Debt Recovery Tribunal under the RDDB Act resulted in this specialised Tribunal entertaining such claims by the banks and financial institutions. In fact, suits from the civil jurisdiction were transferred to the Debt Recovery Tribunal. The Tribunal was, thus, an alternative to a Civil Court recovery proceedings27. On the SARFAESI Act being brought into force seeking to recover debts against security interest, a question was raised whether parallel proceedings could go on under the RDDB Act and the SARFAESI Act. This issue was clearly answered in favour of such simultaneous proceedings in Transcore v. Union of India. A later judgment in Mathew Varghese v. M. Amritha Kumar also discussed this issue in the following terms:45. A close reading of Section 37 shows that the provisions of the SARFAESI Act or the Rules framed thereunder will be in addition to the provisions of the RDDB Act. Section 35 of the SARFAESI Act states that the provisions of the SARFAESI Act will have overriding effect notwithstanding anything inconsistent contained in any other law for the time being in force. Therefore, reading Sections 35 and 37 together, it will have to be held that in the event of any of the provisions of the RDDB Act not being inconsistent with the provisions of the SARFAESI Act, the application of both the Acts, namely, the SARFAESI Act and the RDDB Act, would be complementary to each other. In this context, reliance can be placed upon the decision in Transcore v. Union of India [(2008) 1 SCC 125 : (2008) 1 SCC (Civ) 116]. In para 64 it is stated as under after referring to Section 37 of the SARFAESI Act: (SCC p. 162)64. … According to American Jurisprudence, 2d, Vol. 25, p. 652, if in truth there is only one remedy, then the doctrine of election does not apply. In the present case, as stated above, the NPA Act is an additional remedy to the DRT Act. Together they constitute one remedy and, therefore, the doctrine of election does not apply. Even according to Snells Principles of Equity (31st Edn., p. 119), the doctrine of election of remedies is applicable only when there are two or more co-existent remedies available to the litigants at the time of election which are repugnant and inconsistent. In any event, there is no repugnancy nor inconsistency between the two remedies, therefore, the doctrine of election has no application.46. A reading of Section 37 discloses that the application of the SARFAESI Act will be in addition to and not in derogation of the provisions of the RDDB Act. In other words, it will not in any way nullify or annul or impair the effect of the provisions of the RDDB Act. We are also fortified by our above statement of law as the heading of the said section also makes the position clear that application of other laws are not barred. The effect of Section 37 would, therefore, be that in addition to the provisions contained under the SARFAESI Act, in respect of proceedings initiated under the said Act, it will be in order for a party to fall back upon the provisions of the other Acts mentioned in Section 37, namely, the Companies Act, 1956, the Securities Contracts (Regulation) Act, 1956, the Securities and Exchange Board of India Act, 1992, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, or any other law for the time being in force28. These observations, thus, leave no manner of doubt and the issue is no more res integra, especially keeping in mind the provisions of Sections 35 and 37 of the SARFAESI Act, which read as under:35. The provisions of this Act to override other laws. - The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. … .… .… .…37. Application of other laws not barred. - The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force29. The aforesaid two Acts are, thus, complimentary to each other and it is not a case of election of remedy33. SARFAESI proceedings are in the nature of enforcement proceedings, while arbitration is an adjudicatory process. In the event that the secured assets are insufficient to satisfy the debts, the secured creditor can proceed against other assets in execution against the debtor, after determination of the pending outstanding amount by a competent forum34. We are, thus, unequivocally of the view that the judgments of the Full Bench of the Orissa High Court in Sarthak Builders Pvt. Ltd. v. Orissa Rural Development Corporation Limited, the Full Bench of the Delhi High Court in HDFC Bank Limited v. Satpal Singh Bakshi (supra) and the Division Bench of the Allahabad High Court in Pradeep Kumar Gupta v. State of U.P. lay down the correct proposition of law and the view expressed by the Andhra Pradesh High Court in Deccan Chronicles Holdings Limited v. Union of India following the overruled decision of the Orissa High Court in Subash Chandra Panda v. State of Orissa does not set forth the correct position in law. SARFAESI proceedings and arbitration proceedings, thus, can go hand in hand.19) Insofar as questions B and C are concerned, the Court again referred to the conflicting opinion of different High Courts and after discussion held that the SARFAESI Act was retroactive in nature and, therefore, once this Act came into force, the respondent in the said case had right to invoke the provisions of the Act even if loan agreement was entered into and mortgage created prior to the coming into force the SARFAESI Act. Paragraphs 36 to 38 of the judgment need to be reproduced in this behalf, which are to the following effect:36. The SARFAESI Act was brought into force to solve the problem of recovery of large debts in NPAs. Thus, the very rationale for the said Act to be brought into force was to provide an expeditious procedure where there was a security interest. It certainly did not apply retrospectively from the date when it came into force. The question is whether, the Act being applicable to the respondent at a subsequent date and thereby allowing the respondent to utilize its provisions with regards to a past debt, would make any difference to this principle. We are of the view that the answer to the same is in the negative37. The Act applies to all the claims which would be alive at the time when it was brought into force. Thus, qua the respondent or other NBFCs, it would be applicable similarly from the date when it was so made applicable to them38. The Full Bench of the Orissa High Court in Sarthak Builders Pvt. Ltd. v. Orissa Rural Development Corporation Limited (supra) has, in fact, succinctly sets out this aspect. No doubt, till the respondent was not a financial institution within the meaning of Section 2(1)(m)(iv) of the SARFAESI Act, it was not a secured creditor as defined under Section 2(1)(zd) of the SARFAESI Act and, thus, could not invoke the provisions of the SARFAESI Act. However, the right to proceed under the SARFAESI Act accrued once the Notification was issued. The Full Bench referred to a Division Bench judgment of the Uttarakhand High Court in Unique Engineering Works v. Union of India which dealt with the issue of retrospectivity and retroactivity. In case of retroactivity, the Parliament takes note of the existing conditions and promulgates the remedial measures to rectify those conditions. In fact the SARFAESI Act, in our view, was to remedy such a position and provide a measure against secured interests. The scheme of the SARFAESI Act, is really to provide a procedural remedy against security interest already created. Therefore, an existing borrower, who had been granted financial assistance was covered under Section 2(f) of the said Act as a borrower. Not only this expression, the definition clauses dealing with debt securities, financial assistance, financial assets, etc., clearly convey the legislative intent that the SARFAESI Act applies to all existing agreements irrespective of the fact whether the lender was a notified financial institution on the date of the execution of the agreement with the borrower or not. The scheme of the SARFAESI Act sets out an expeditious, procedural methodology, enabling the bank to take possession of the property for non- payment of dues, without intervention of the court. The mere fact that a more expeditious remedy is provided under the SARFAESI Act does not mean that it is substantive in character or has created an altogether new right. To accept the argument of the appellants would imply that they have an inherent right to delay the enforcement against the security interest!

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: the case of United Bank of India v. Satyawati Tondon and Others (2010) 8 SCC 110 ) wherein it was held that the Act is intended to give impetus to industrial development in the country by providing speedy procedure of recovery. On account of lack of infrastructure and manpower, regular courts were not able to cope with the speed in adjudication of recovery cases. In the light of recommendations of the Tiwari Committee, special tribunals came to be set up under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for recovery of huge accumulated NPAs of the bank loans. On the recommendations of the Narasimham Committee and Andhyarujina Committee, SARFAESI Act was enacted to empower banks and financial institutions to take possession of the securities and to sell them without the intervention of the Court. In this regard, reference may be made to the following observations of this Court in the case of Satyawati Tondon: 1…With a view to give impetus to the industrial development of the country, the Central and State Governments encouraged the banks and other financial institutions to formulate liberal policies for grant of loans and other financial facilities to those who wanted to set up new industrial units or expand the existing units. Many hundred thousand took advantage of easy financing by the banks and other financial institutions but a large number of them did not repay the amount of loan, etc. Not only this, they instituted frivolous cases and succeeded in persuading the civil courts to pass orders of injunction against the steps taken by banks and financial institutions to recover their dues. Due to lack of adequate infrastructure and non-availability of manpower, the regular courts could not accomplish the task of expeditiously adjudicating the cases instituted by banks and other financial institutions for recovery of their dues. As a result, several hundred crores of public money got blocked in unproductive ventures. 2. In order to redeem the situation, the Government of India constituted a committee under the Chairmanship of Shri T. Tiwari to examine the legal and other difficulties faced by banks and financial institutions in the recovery of their dues and suggest remedial measures. The Tiwari Committee noted that the existing procedure for recovery was very cumbersome and suggested that special tribunals be set up for recovery of the dues of banks and financial institutions by following a summary procedure. The Tiwari Committee also prepared a draft of the proposed legislation which contained a provision for disposal of cases in three months and conferment of power upon the Recovery Officer for expeditious execution of orders made by adjudicating bodies. xx xx xx 16. Thus, the Act intends to provide remedy in respect of pre - existing loans. The interpretation that the Act will apply only to future debt transactions defeats the very purpose of law of reducing the non-performing assets. This object is clearly mentioned in the Statement of Objects and Reasons. As noted in the case of Satyaivati Tondon amount of rupees one lakh twenty thousand crores was due to the banks in the year 2001 which had adversely affected the economy of the country. Obviously, the Act is intended to recover the said pre-existing loans by the machinery provided under the SARFAESI Act. The pre-existing loans are not excluded from the purview of the Act. Similarly, the object of notifying the financial institution in question is to enable such institution to avail the provisions of SARFAESI Act in respect of existing loans. This salient object of the Act does not appear to have been noticed in Subash Chandra Panda. 42) We may also reproduce the following discussion from that judgment which completely answers most of the arguments raised by the learned counsel for the respondents: 17. Further, the settled principle of interpretation that while the statute affecting the substantive rights is presumed to be prospective, a statute changing the forum of remedy and the procedure is retrospective has also not been kept in mind. These principles are the basis of the view taken in the Unique Engineering Works and Pradeep Kumar Gupta. The said considerations are valid and legitimate, supported by ample authority of binding precedents of the Apex Court, to which reference may be made and relevant observations extracted: 1. Rafiquennessa v. Lal Bahadur Chetri, AIR 1964 SC 9….. Mr. Chatterjee has relied upon the well-known observations made by Wright, J. in (Re Athlumney ex parte or Wilson (1898) 2 QBD 547) when the learned Judge said that it is a general rule that when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. He added that there was one exception to that rule, namely that where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights. In order to make the statement of the law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retrospective operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision construed in the context where it occurs. In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur. (emphasis added) 43) The aforesaid discussion, thus, leads us to conclude that respondent No.1 would be treated as borrower within the meaning of Section 2(1)(f) of the SARFAESI Act; the arrangement would be classified as security arrangement under Section 2(1) (zb); the agreements created security interest under Section 2(1) (zf); and the appellant became secured creditor within the meaning of Section 2(1)(zd) of SARFAESI Act. ### Response: 1

NEW DELHI MUNICIPAL COUNCIL Vs. GANGA DEVI & ANR

Council to the Director (Estates), Directorate of Estates of the Government of India seeking guidance for revision of prescribed cut-off date i.e., 20.10.1989 for transfer of shops in the names of the occupants in possession of the premises. In response thereto, the Director of Estates, Government of India communicated on 8.7.2008 that all powers to administer the markets shall now rest with Council/MCD, the concerned local body i.e., the Council may take appropriate action in this particular case at their end. It may be mentioned that the letters dated 21.5.2008 and 8.7.2008 are interdepartmental communication and not any policy decision or circular meant for public. Thus, such interdepartmental communications are not the enforceable orders of the Union or of the Council. 10. In this factual background, learned counsel for the appellant had vehemently argued that the license deed executed in the year 1998 had clearly prohibited subletting of premises, including induction of a partner. The specific reference was made to clauses 8 and 14 of the license deed, as reproduced above. It was also argued that the notice published on 6.8.2001 would not be applicable to the stalls located at the Baba Kharag Singh Marg market and that the administrative decision of the Cabinet dated 20.10.1989 had ceased to operate. The applications were invited from the allottees/occupants who have not been given ownership rights in the Cabinet decision in the year 1989 to apply on or before 30.9.2001. 11. The cut-off date for regularization of the shops, stalls, flats was 20.10.1989 as mentioned in the Circular dated 25.7.1996. It is to be noted that the occupant was not in possession of the stall on or before 20.10.1989. Still further, the public notice dated 6.8.2001 was in respect of the 14 markets which does not include the market at Baba Kharag Singh Marg. The said public notice specifically stipulates that the earlier decision of the Cabinet dated 20.10.1989 shall cease to operate. Therefore, the date fixed in the office order dated 25.7.1996 ceased to be effective after the Cabinet decision dated 31.8.2000. 12. There was a clear stipulation in the license deed executed by the predecessor of the occupant that she shall not induct any partner or sublet the premises. But in utter violation of the terms of the license, firstly, the partnership was executed and within two months, it was dissolved. The act of the predecessor of the occupant and the occupant are clearly and unequivocally in contravention of the terms of the license deed. Such license deed was executed after the office order dated 25.7.1996. Further, the public notice dated 6.8.2001 would not be applicable in respect of Baba Kharag Singh Marg market. 13. The policy of transfer of allotments of the Council is to be made 60 days before the expiry of the present license. The transfer is also to be allowed in the cases of partnership, transfer, mutation in favour of the legal heirs on merits. It is not necessary for us to examine the applicability of such policy in view of the terms of the transfer of the markets to the Council. 14. Para 1 of the notification dated 24.3.2006 explains that the Land and Development Office and Central Public Works Department are administering various markets in Delhi. In Para 2, the markets were transferred on as is where is basis. In terms of Para 3, the Council was to function as a lessor or licensee and was to exercise all powers being performed by Land and Development Office, Directorate of Estates and Central Public Works Department, as the case may be. Para 3 further provides that guidelines and procedures of the Department in matters of substitution/mutation of title, gift permission, sale permission, mortgage permission, conversion of lease hold into freehold, change of use of premises, regularization/restoration of allotment of shops may also be followed by local bodies. Para 5 further contemplates that the revenue generated from the transfer of markets by way of receipt of rent, licenses, unearned increase, premium, conversion fee shall be deposited in a separate corpus of funds and such corpus was to be utilized only for the purpose of development of the markets and for no other purpose. 15. Thus, the rights of Government of India in administering the markets as a lessor or licensee alone was transferred and not the land or the building thereon. The Council was to administer the properties as a delegate of the Union. The regularization/restoration of allotment of shops in para 3 was in terms of the policy of the Union and not that of Council. The relevant clause is the guidelines and procedure followed by Land & Development Office and Directorate of Estates in the matter of …………………. regularization/restoration of allotment of shops may also be followed. Thus, if there is a policy of regularization or restoration of the Union, the same may be followed by the Council. However, the policy of the Council, if any, in respect of regularization/restoration of allotment would not be applicable. Therefore, even if the Council has not produced policy of regularization, it is not material to the questions raised in the present appeal. The rights of the Council are to administer the properties as a delegate of the Government of India and not as an owner as there were no transfer of rights in the markets in favour of the Council. This is evident from the fact that the revenue generated from the transfer of markets has to be deposited in a separate corpus of funds to be utilized only for the purpose of development of markets and for no other purpose. Such income would not accrue to the Council as a part of their budget. 16. Therefore, the markets transferred by the Government of India to the Council have to be dealt independently and separately than the properties owned by the Council as the Council has no title over such markets as it has been asked only to manage them on behalf of the Government of India.

1[ds]11. The cut-off date for regularization of the shops, stalls, flats was 20.10.1989 as mentioned in the Circular dated 25.7.1996. It is to be noted that the occupant was not in possession of the stall on or before 20.10.1989. Still further, the public notice dated 6.8.2001 was in respect of the 14 markets which does not include the market at Baba Kharag Singh Marg. The said public notice specifically stipulates that the earlier decision of the Cabinet dated 20.10.1989 shall cease to operate. Therefore, the date fixed in the office order dated 25.7.1996 ceased to be effective after the Cabinet decision dated 31.8.2000.12. There was a clear stipulation in the license deed executed by the predecessor of the occupant that she shall not induct any partner or sublet the premises. But in utter violation of the terms of the license, firstly, the partnership was executed and within two months, it was dissolved. The act of the predecessor of the occupant and the occupant are clearly and unequivocally in contravention of the terms of the license deed. Such license deed was executed after the office order dated 25.7.1996. Further, the public notice dated 6.8.2001 would not be applicable in respect of Baba Kharag Singh Marg market.13. The policy of transfer of allotments of the Council is to be made 60 days before the expiry of the present license. The transfer is also to be allowed in the cases of partnership, transfer, mutation in favour of the legal heirs on merits. It is not necessary for us to examine the applicability of such policy in view of the terms of the transfer of the markets to the Council.14. Para 1 of the notification dated 24.3.2006 explains that the Land and Development Office and Central Public Works Department are administering various markets in Delhi. In Para 2, the markets were transferred on as is where is basis. In terms of Para 3, the Council was to function as a lessor or licensee and was to exercise all powers being performed by Land and Development Office, Directorate of Estates and Central Public Works Department, as the case may be. Para 3 further provides that guidelines and procedures of the Department in matters of substitution/mutation of title, gift permission, sale permission, mortgage permission, conversion of lease hold into freehold, change of use of premises, regularization/restoration of allotment of shops may also be followed by local bodies. Para 5 further contemplates that the revenue generated from the transfer of markets by way of receipt of rent, licenses, unearned increase, premium, conversion fee shall be deposited in a separate corpus of funds and such corpus was to be utilized only for the purpose of development of the markets and for no other purpose.15. Thus, the rights of Government of India in administering the markets as a lessor or licensee alone was transferred and not the land or the building thereon. The Council was to administer the properties as a delegate of the Union. The regularization/restoration of allotment of shops in para 3 was in terms of the policy of the Union and not that of Council. The relevant clause is the guidelines and procedure followed by Land & Development Office and Directorate of Estates in the matter of …………………. regularization/restoration of allotment of shops may also be followed. Thus, if there is a policy of regularization or restoration of the Union, the same may be followed by the Council. However, the policy of the Council, if any, in respect of regularization/restoration of allotment would not be applicable. Therefore, even if the Council has not produced policy of regularization, it is not material to the questions raised in the present appeal. The rights of the Council are to administer the properties as a delegate of the Government of India and not as an owner as there were no transfer of rights in the markets in favour of the Council. This is evident from the fact that the revenue generated from the transfer of markets has to be deposited in a separate corpus of funds to be utilized only for the purpose of development of markets and for no other purpose. Such income would not accrue to the Council as a part of their budget.16. Therefore, the markets transferred by the Government of India to the Council have to be dealt independently and separately than the properties owned by the Council as the Council has no title over such markets as it has been asked only to manage them on behalf of the Government of India.

### 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: Council to the Director (Estates), Directorate of Estates of the Government of India seeking guidance for revision of prescribed cut-off date i.e., 20.10.1989 for transfer of shops in the names of the occupants in possession of the premises. In response thereto, the Director of Estates, Government of India communicated on 8.7.2008 that all powers to administer the markets shall now rest with Council/MCD, the concerned local body i.e., the Council may take appropriate action in this particular case at their end. It may be mentioned that the letters dated 21.5.2008 and 8.7.2008 are interdepartmental communication and not any policy decision or circular meant for public. Thus, such interdepartmental communications are not the enforceable orders of the Union or of the Council. 10. In this factual background, learned counsel for the appellant had vehemently argued that the license deed executed in the year 1998 had clearly prohibited subletting of premises, including induction of a partner. The specific reference was made to clauses 8 and 14 of the license deed, as reproduced above. It was also argued that the notice published on 6.8.2001 would not be applicable to the stalls located at the Baba Kharag Singh Marg market and that the administrative decision of the Cabinet dated 20.10.1989 had ceased to operate. The applications were invited from the allottees/occupants who have not been given ownership rights in the Cabinet decision in the year 1989 to apply on or before 30.9.2001. 11. The cut-off date for regularization of the shops, stalls, flats was 20.10.1989 as mentioned in the Circular dated 25.7.1996. It is to be noted that the occupant was not in possession of the stall on or before 20.10.1989. Still further, the public notice dated 6.8.2001 was in respect of the 14 markets which does not include the market at Baba Kharag Singh Marg. The said public notice specifically stipulates that the earlier decision of the Cabinet dated 20.10.1989 shall cease to operate. Therefore, the date fixed in the office order dated 25.7.1996 ceased to be effective after the Cabinet decision dated 31.8.2000. 12. There was a clear stipulation in the license deed executed by the predecessor of the occupant that she shall not induct any partner or sublet the premises. But in utter violation of the terms of the license, firstly, the partnership was executed and within two months, it was dissolved. The act of the predecessor of the occupant and the occupant are clearly and unequivocally in contravention of the terms of the license deed. Such license deed was executed after the office order dated 25.7.1996. Further, the public notice dated 6.8.2001 would not be applicable in respect of Baba Kharag Singh Marg market. 13. The policy of transfer of allotments of the Council is to be made 60 days before the expiry of the present license. The transfer is also to be allowed in the cases of partnership, transfer, mutation in favour of the legal heirs on merits. It is not necessary for us to examine the applicability of such policy in view of the terms of the transfer of the markets to the Council. 14. Para 1 of the notification dated 24.3.2006 explains that the Land and Development Office and Central Public Works Department are administering various markets in Delhi. In Para 2, the markets were transferred on as is where is basis. In terms of Para 3, the Council was to function as a lessor or licensee and was to exercise all powers being performed by Land and Development Office, Directorate of Estates and Central Public Works Department, as the case may be. Para 3 further provides that guidelines and procedures of the Department in matters of substitution/mutation of title, gift permission, sale permission, mortgage permission, conversion of lease hold into freehold, change of use of premises, regularization/restoration of allotment of shops may also be followed by local bodies. Para 5 further contemplates that the revenue generated from the transfer of markets by way of receipt of rent, licenses, unearned increase, premium, conversion fee shall be deposited in a separate corpus of funds and such corpus was to be utilized only for the purpose of development of the markets and for no other purpose. 15. Thus, the rights of Government of India in administering the markets as a lessor or licensee alone was transferred and not the land or the building thereon. The Council was to administer the properties as a delegate of the Union. The regularization/restoration of allotment of shops in para 3 was in terms of the policy of the Union and not that of Council. The relevant clause is the guidelines and procedure followed by Land & Development Office and Directorate of Estates in the matter of …………………. regularization/restoration of allotment of shops may also be followed. Thus, if there is a policy of regularization or restoration of the Union, the same may be followed by the Council. However, the policy of the Council, if any, in respect of regularization/restoration of allotment would not be applicable. Therefore, even if the Council has not produced policy of regularization, it is not material to the questions raised in the present appeal. The rights of the Council are to administer the properties as a delegate of the Government of India and not as an owner as there were no transfer of rights in the markets in favour of the Council. This is evident from the fact that the revenue generated from the transfer of markets has to be deposited in a separate corpus of funds to be utilized only for the purpose of development of markets and for no other purpose. Such income would not accrue to the Council as a part of their budget. 16. Therefore, the markets transferred by the Government of India to the Council have to be dealt independently and separately than the properties owned by the Council as the Council has no title over such markets as it has been asked only to manage them on behalf of the Government of India. ### Response: 1

C.Sembiam Sivakumar Vs. V.Sivachitra Devi

the case of the husband that the marriage was never consummated and the respondent was not interested in marital life. It is alleged that respondent left the company of the appellant on 27.01.1998; however, according to the respondent, she left appellants company on 10.03.1998. Though, the petition for dissolution was filed in 1998 it was disposed of by the Family Court only in the year 2002. Having regard to the evidence available on record, the Family Court was of the view that the appellant was entitled to the decree of divorce on the ground of cruelty.3. In appeal, the High Court, however, came to the conclusion that the evidence available on record was not sufficient to establish cruelty so as to grant a decree of divorce and hence the order of decree of divorce granted by the Family Court was set aside. When the matter came up before this Court on 30.10.2012, this Court passed the following order:- ?Learned counsel for the petitioner submitted that after passing of the decree of divorce by the trial Court his client had remarried and it will cause him immense injury if the impugned judgment of the High Court is not set aside. He also pointed out that during the pendency of the matter before the High Court, the respondent had agreed to accept permanent alimony of rupees four lacs.In reply to the Courts query, learned counsel submitted that his client is still ready and willing to pay the amount of permanent alimony with little enhancement.Issue notice to the respondent, returnable in the first week of February, 2013. Dasti, in addition, is permitted.Issue notice on the petitioners prayer for interim relief, returnable in the first week of February, 2013. Dasti, in addition, is permitted.In the meanwhile, operation of the impugned judgment shall remain stayed subject to the condition that within eight weeks from today the petitioner shall pay to the respondent a sum of rupees five lacs. If the needful is not done, the interim order passed today shall stand automatically vacated and the special leave petition shall stand dismissed.The Registry shall issue notice to the respondent only after the petitioner produces evidence showing payment of rupees five lacs to her.?4. On 26.09.2014, the matter again came up and Court passed a further order which reads as under:- ?Learned counsel for the petitioner submits that a sum of Rs.5 Lacs has been paid in favour of the respondent (wife).On joint request of the learned counsel for the parties, we refer the matter to the Co-ordinator, Supreme Court Mediation Centre at 110, Lawyers Chambers (R.K. Jain Block), Supreme Court Compound, Tilak Marg, New Delhi-110001. The parties to appear before the Mediator on 16th October, 2014 at 11.00 A.M. Let the Mediator examine all the option to resolve the dispute amicably.Report may be submitted within six weeks from the date of appearance.Post the matter after ten weeks.In the meantime, petitioner shall pay a sum of Rs.30,000/- in favour of the respondent(wife) towards her to and fro journey and stay at Delhi.?5. It is informed by learned counsel for the appellant that proceedings before the Mediator did not take place since it was informed by the respondent that she was not willing for any mediation.6. Thereafter, on 16.01.2015, this Court passed the following order:- ?Learned counsel for the petitioner and respondent are directed to find out whether there is a possibility between the parties to settle the dispute.We direct respondent - Ms. V.Sivachitra Devi and petitioner - Mr. C. Sembiam Sivakumar to appear before this Court on 10th February, 2015 at 1.30p.m. in Chambers.List the matter on 10th February, 2015 at 1.30p.m. in Chambers.?7. It appears that the respondent was not willing for that course of action either. On 17.02.2015, this Court hence passed the following order:- ?Pursuant to the court order dated 16.01.2015 the petitioner-Mr. C. Sembiam Sivakumar is present. Respondent-Mrs. V. Sivachitra Devi is not present. Mr. Sureshan P, Advocate-on-Record for respondent-Mrs. V. Sivachitra Devi has filed an application seeking leave of this Court to discharge himself from the matter since he did not receive any instructions from his client being respondent. The prayer made in the application is allowed.Further, as we find that the respondent is not interested to settle the dispute amicably, we re-call the order dated 16.01.2015 and direct to list the case before an appropriate Bench on 24.03.2015.?8. After discharge of the Advocate-on-record, notice was sent to the respondent and yet she did not appear on 02.07.2015. However, the Court was inclined to grant one more opportunity and the case was adjourned. When the matter is taken up today, neither the respondent is present nor any representation is there on her behalf.9. Having regard to the background of the litigation before this Court, it is fairly clear that the respondent is not interested to prosecute the matter any further, perhaps, because she has already received Rs.5 lakhs by way of permanent alimony pursuant to the order passed by this Court and as recorded in the order dated 26.09.2014. It is seen from the record that there was an earlier attempt when the matter was pending before the High Court, to have the matter settled on payment of permanent alimony to the tune of Rs.4 lakhs. Be that as it may. Now that, that the appellant is since remarried for more than a decade back, pursuant to the decree of divorce granted by the Family Court and since the respondent has accepted the amount of Rs.5 lakhs offered by the appellant/husband towards permanent alimony and since the appellant submits that he does not want to prosecute any litigation for recovery of gold jewellery and other articles worth more than Rs.5 lakhs, we do not think that there is any fruitful purpose in keeping this matter pending. For all practical purposes, there is no matrimonial bond between the parties. On scanning the evidence, in the light of the conduct of the respondent, we are satisfied that ground of cruelty has been made out.

1[ds]9. Having regard to the background of the litigation before this Court, it is fairly clear that the respondent is not interested to prosecute the matter any further, perhaps, because she has already received Rs.5 lakhs by way of permanent alimony pursuant to the order passed by this Court and as recorded in the order dated 26.09.2014. It is seen from the record that there was an earlier attempt when the matter was pending before the High Court, to have the matter settled on payment of permanent alimony to the tune of Rs.4 lakhs. Be that as it may. Now that, that the appellant is since remarried for more than a decade back, pursuant to the decree of divorce granted by the Family Court and since the respondent has accepted the amount of Rs.5 lakhs offered by the appellant/husband towards permanent alimony and since the appellant submits that he does not want to prosecute any litigation for recovery of gold jewellery and other articles worth more than Rs.5 lakhs, we do not think that there is any fruitful purpose in keeping this matter pending. For all practical purposes, there is no matrimonial bond between the parties. On scanning the evidence, in the light of the conduct of the respondent, we are satisfied that ground of cruelty has been made out.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: the case of the husband that the marriage was never consummated and the respondent was not interested in marital life. It is alleged that respondent left the company of the appellant on 27.01.1998; however, according to the respondent, she left appellants company on 10.03.1998. Though, the petition for dissolution was filed in 1998 it was disposed of by the Family Court only in the year 2002. Having regard to the evidence available on record, the Family Court was of the view that the appellant was entitled to the decree of divorce on the ground of cruelty.3. In appeal, the High Court, however, came to the conclusion that the evidence available on record was not sufficient to establish cruelty so as to grant a decree of divorce and hence the order of decree of divorce granted by the Family Court was set aside. When the matter came up before this Court on 30.10.2012, this Court passed the following order:- ?Learned counsel for the petitioner submitted that after passing of the decree of divorce by the trial Court his client had remarried and it will cause him immense injury if the impugned judgment of the High Court is not set aside. He also pointed out that during the pendency of the matter before the High Court, the respondent had agreed to accept permanent alimony of rupees four lacs.In reply to the Courts query, learned counsel submitted that his client is still ready and willing to pay the amount of permanent alimony with little enhancement.Issue notice to the respondent, returnable in the first week of February, 2013. Dasti, in addition, is permitted.Issue notice on the petitioners prayer for interim relief, returnable in the first week of February, 2013. Dasti, in addition, is permitted.In the meanwhile, operation of the impugned judgment shall remain stayed subject to the condition that within eight weeks from today the petitioner shall pay to the respondent a sum of rupees five lacs. If the needful is not done, the interim order passed today shall stand automatically vacated and the special leave petition shall stand dismissed.The Registry shall issue notice to the respondent only after the petitioner produces evidence showing payment of rupees five lacs to her.?4. On 26.09.2014, the matter again came up and Court passed a further order which reads as under:- ?Learned counsel for the petitioner submits that a sum of Rs.5 Lacs has been paid in favour of the respondent (wife).On joint request of the learned counsel for the parties, we refer the matter to the Co-ordinator, Supreme Court Mediation Centre at 110, Lawyers Chambers (R.K. Jain Block), Supreme Court Compound, Tilak Marg, New Delhi-110001. The parties to appear before the Mediator on 16th October, 2014 at 11.00 A.M. Let the Mediator examine all the option to resolve the dispute amicably.Report may be submitted within six weeks from the date of appearance.Post the matter after ten weeks.In the meantime, petitioner shall pay a sum of Rs.30,000/- in favour of the respondent(wife) towards her to and fro journey and stay at Delhi.?5. It is informed by learned counsel for the appellant that proceedings before the Mediator did not take place since it was informed by the respondent that she was not willing for any mediation.6. Thereafter, on 16.01.2015, this Court passed the following order:- ?Learned counsel for the petitioner and respondent are directed to find out whether there is a possibility between the parties to settle the dispute.We direct respondent - Ms. V.Sivachitra Devi and petitioner - Mr. C. Sembiam Sivakumar to appear before this Court on 10th February, 2015 at 1.30p.m. in Chambers.List the matter on 10th February, 2015 at 1.30p.m. in Chambers.?7. It appears that the respondent was not willing for that course of action either. On 17.02.2015, this Court hence passed the following order:- ?Pursuant to the court order dated 16.01.2015 the petitioner-Mr. C. Sembiam Sivakumar is present. Respondent-Mrs. V. Sivachitra Devi is not present. Mr. Sureshan P, Advocate-on-Record for respondent-Mrs. V. Sivachitra Devi has filed an application seeking leave of this Court to discharge himself from the matter since he did not receive any instructions from his client being respondent. The prayer made in the application is allowed.Further, as we find that the respondent is not interested to settle the dispute amicably, we re-call the order dated 16.01.2015 and direct to list the case before an appropriate Bench on 24.03.2015.?8. After discharge of the Advocate-on-record, notice was sent to the respondent and yet she did not appear on 02.07.2015. However, the Court was inclined to grant one more opportunity and the case was adjourned. When the matter is taken up today, neither the respondent is present nor any representation is there on her behalf.9. Having regard to the background of the litigation before this Court, it is fairly clear that the respondent is not interested to prosecute the matter any further, perhaps, because she has already received Rs.5 lakhs by way of permanent alimony pursuant to the order passed by this Court and as recorded in the order dated 26.09.2014. It is seen from the record that there was an earlier attempt when the matter was pending before the High Court, to have the matter settled on payment of permanent alimony to the tune of Rs.4 lakhs. Be that as it may. Now that, that the appellant is since remarried for more than a decade back, pursuant to the decree of divorce granted by the Family Court and since the respondent has accepted the amount of Rs.5 lakhs offered by the appellant/husband towards permanent alimony and since the appellant submits that he does not want to prosecute any litigation for recovery of gold jewellery and other articles worth more than Rs.5 lakhs, we do not think that there is any fruitful purpose in keeping this matter pending. For all practical purposes, there is no matrimonial bond between the parties. On scanning the evidence, in the light of the conduct of the respondent, we are satisfied that ground of cruelty has been made out. ### Response: 1

D.N. Joshi (D) Thr. LRs. & Others Vs. D.C. Harris & Another

v. Shaikh Farid (Dead) By LRs. And Others, 2011(2) R.C.R.(Civil) 940 : 2011(3) Recent Apex Judgments (R.A.J.) 163 : (2011) 5 SCC 654 , three essential aspects for a valid gift deed in respect of an immovable property under Muslim Law have been restated in paragraphs 24, 27, 28, 29 and 30 as under:"24. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are; (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials makes the gift complete and irrevocable. However, the donor may record the transaction of gift in writing.xxx xxx xxx xxx27. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law.28. In considering what is the Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohammad Abdul Ghani stated that when the old and authoritative texts of Mohammadan Law were promulgated there were not in contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.29. Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of T.P. Act to a gift of an immovable property by a Mohammadan. We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mahomedan Law (19th Edition), page 120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts.30. We are unable to concur with the view of the Full Bench of Andhra Pradesh High Court in the case of Tayyaba Begum. We approve the view of the Calcutta High Court in Nasib Ali that a deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence, such writing is not a document of title but is a piece of evidence. We also approve the view of the Gauhati High Court in the case of Mohd Hesabuddin. The judgments to the contrary by Andhra Pradesh High Court, Jammu and Kashmir High Court and Madras High Court do not lay down the correct law."27. As a matter of fact, the appellants-defendants have not questioned the validity of the sale deed in favour of the respondents-plaintiffs. The title in the property having vested in Zamir Ahmad, who, in turn, transferred it to the plaintiff (respondents) by way of a sale deed. It is not open to the appellants-defendants to question the ownership of the respondents-plaintiffs in respect of the suit premises. The factum which impressed the trial court and the first appellate court to hold that the gift deed in favour of Zamir Ahmad was invalid, namely, that donor (Akhtari Begum) did not request the tenant (defendant) to attorn to the donee (plaintiff), is also devoid of substance. For, this court in the case of Ambica Prasad v. Mohd. Alam And Another, 2015(3) R.C.R.(Civil) 85 : 2015(1) R.C.R.(Rent) 544 : 2015(3) Recent Apex Judgments (R.A.J.) 270 : (2015) 13 SCC 13 has enunciated that it is well settled that after the transfer of the landlords right in favour of the transferee, the latter gets all rights and liabilities of the landlord in respect of the subsisting tenancy. Section 109 of the Transfer of Property Act does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him and that attornment is not necessary to confer validity of the transfer of the landlords rights. Strikingly, even in this case, the transferor continued to collect the rent of the suit property from the tenant with the consent of the transferee after the execution of the exchange deed, until the transferee took over the affairs of the suit property. The court held that it will not debar the owner or transferee from filing a suit for eviction against the tenant.28. A priori, we are of the view that the judgment under appeal is a well-considered decision. It has justly relied upon another decision of the High Court (which has been upheld by this Court). That decision is between the same landlord and another tenant in respect of the selfsame gift deed. The gift deed has been held to be valid. It has also been held that the title of the property has been passed on to the respondents. Hence, it would be just and appropriate to follow the same view.

0[ds]It is an admitted position that the second appeal was filed in the High Court of Judicature at Allahabad in 1974 and was admitted by the Registrar of the High Court on 20.05.1974 with further direction to list it for hearing before the court under Order XLI, Rule 11 on 08.07.1974. The second appeal was in fact, taken up for such hearing by the learned Single Judge on 13.03.1980, albeit after the amendment of Section 100 of C.P.C. (vide Act 104 of 1974) which had already come into force on 01.02.1977. Themay be justified in relying on clause (m) of Section 97 (2) of the Act 104 of 1976 which uses the expression "appeal had been admitted" on or before 01.02.1977. In the present case, the order of admitting the second appeal was passed by the Registrar on 20.05.1974.On a conjoint reading of Rule 2 of Order XLII with Rule 11 of Order XLI, it is evident that the court is obliged to formulate substantial question of law on the day of hearing of the appeal (for admission under Rule 11) so that the second appeal can be heard on the question of law so formulated. The latter part of Rule 2 of Order XLII presupposes that the grounds of challenge by the appellants will be circumscribed by the substantial question of law so formulated. At the same time, it gives enough discretion to the High Court to permit the parties to argue any other ground, only with the leave of the court. The purport of Section 100 has already been delineated by this court in several decisions, after the Amendment Act of 1976. Thehave rightly invited our attention to those decisions.It is not necessary to multiply the authorities dealing with the purport of Section 100 of C.P.C. It is well settled that the High Court is obliged to formulate substantial question of law for its determination so that the arguments can proceed on that basis. In the present case, the High Court admitted the second appeal on 7th May, 1980 without formulating any substantial question of law. However, that order is not challenged by the appellants. Admittedly, thehad not even articulated any substantial question of law in the memorandum of appeal filed in 1974. Presumably because, at the relevant time in 1976, there was no requirement to formulate substantial question of law in the memo of appeal. However, that deficiency was sought to be cured by theby taking out a formal application for amendment of the memorandum of appeal and permission to urge the substantial questions of law framed in the amendment application.In other words, in the facts of the present case there has been substantial compliance of Section 100 of C.P.C., as amended. Significantly, the proviso to Section 100 (5) read with the latter part of Rule 2 of Order XLII enables the High Court to reframe the substantial question of law already formulated and even permit any other substantial question of law not formulated, after recording reasons, if it is satisfied that the case involves such question. This discretion has been bestowed on the High Court to ensure full, complete and effectual adjudication of all the matters in issue between the parties and to do complete justice. In our opinion, therefore, in the facts of the present case, there has been compliance of Section 100 of C.P.C. as also Order XLII of C.P.C. It is not open to theto now raise an issue ofof substantial question of law while admitting the appeal, having failed to challenge the order dated 07.05.1980 (admitting the second appeal) and dated 15.07.2006 (allowing theReverting to the second point raised by the appellantsthat the High Court should not have interfered with the finding of facts. This contention also does not commend to us. For, the High Court has analysed the entire issue in correct perspective and justly relied upon another decision of the High Court between theand another tenant in relation to the selfsame gift deed.In our opinion, the above view taken by the High Court is unexceptionable. The two courts below gave undue weightage to the fact that Akhtari Begum had reserved to herself the right to receive rent during her lifetime and that she did not issue attornment in favour of Zamir Ahmad in respect of the suit premises. Besides the reasons recorded by the High Court, in our opinion, on the plain language of the gift deed, it is evident that there is clear intention to handover possession to Zamir Ahmad, which is manifest from the following declaration in the giftAs a matter of fact, thehave not questioned the validity of the sale deed in favour of theThe title in the property having vested in Zamir Ahmad, who, in turn, transferred it to the plaintiff (respondents) by way of a sale deed. It is not open to theto question the ownership of thein respect of the suit premises. The factum which impressed the trial court and the first appellate court to hold that the gift deed in favour of Zamir Ahmad was invalid, namely, that donor (Akhtari Begum) did not request the tenant (defendant) to attorn to the donee (plaintiff), is also devoid of substance. For, this court in the case of Ambica Prasad v. Mohd. Alam And Another, 2015(3) R.C.R.(Civil) 85 : 2015(1) R.C.R.(Rent) 544 : 2015(3) Recent Apex Judgments (R.A.J.) 270 : (2015) 13 SCC 13 has enunciated that it is well settled that after the transfer of the landlords right in favour of the transferee, the latter gets all rights and liabilities of the landlord in respect of the subsisting tenancy. Section 109 of the Transfer of Property Act does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him and that attornment is not necessary to confer validity of the transfer of the landlords rights. Strikingly, even in this case, the transferor continued to collect the rent of the suit property from the tenant with the consent of the transferee after the execution of the exchange deed, until the transferee took over the affairs of the suit property. The court held that it will not debar the owner or transferee from filing a suit for eviction against the tenant.28. A priori, we are of the view that the judgment under appeal is adecision. It has justly relied upon another decision of the High Court (which has been upheld by this Court). That decision is between the same landlord and another tenant in respect of the selfsame gift deed. The gift deed has been held to be valid. It has also been held that the title of the property has been passed on to the respondents. Hence, it would be just and appropriate to follow the same view.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: v. Shaikh Farid (Dead) By LRs. And Others, 2011(2) R.C.R.(Civil) 940 : 2011(3) Recent Apex Judgments (R.A.J.) 163 : (2011) 5 SCC 654 , three essential aspects for a valid gift deed in respect of an immovable property under Muslim Law have been restated in paragraphs 24, 27, 28, 29 and 30 as under:"24. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are; (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials makes the gift complete and irrevocable. However, the donor may record the transaction of gift in writing.xxx xxx xxx xxx27. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law.28. In considering what is the Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohammad Abdul Ghani stated that when the old and authoritative texts of Mohammadan Law were promulgated there were not in contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.29. Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of T.P. Act to a gift of an immovable property by a Mohammadan. We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mahomedan Law (19th Edition), page 120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts.30. We are unable to concur with the view of the Full Bench of Andhra Pradesh High Court in the case of Tayyaba Begum. We approve the view of the Calcutta High Court in Nasib Ali that a deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence, such writing is not a document of title but is a piece of evidence. We also approve the view of the Gauhati High Court in the case of Mohd Hesabuddin. The judgments to the contrary by Andhra Pradesh High Court, Jammu and Kashmir High Court and Madras High Court do not lay down the correct law."27. As a matter of fact, the appellants-defendants have not questioned the validity of the sale deed in favour of the respondents-plaintiffs. The title in the property having vested in Zamir Ahmad, who, in turn, transferred it to the plaintiff (respondents) by way of a sale deed. It is not open to the appellants-defendants to question the ownership of the respondents-plaintiffs in respect of the suit premises. The factum which impressed the trial court and the first appellate court to hold that the gift deed in favour of Zamir Ahmad was invalid, namely, that donor (Akhtari Begum) did not request the tenant (defendant) to attorn to the donee (plaintiff), is also devoid of substance. For, this court in the case of Ambica Prasad v. Mohd. Alam And Another, 2015(3) R.C.R.(Civil) 85 : 2015(1) R.C.R.(Rent) 544 : 2015(3) Recent Apex Judgments (R.A.J.) 270 : (2015) 13 SCC 13 has enunciated that it is well settled that after the transfer of the landlords right in favour of the transferee, the latter gets all rights and liabilities of the landlord in respect of the subsisting tenancy. Section 109 of the Transfer of Property Act does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him and that attornment is not necessary to confer validity of the transfer of the landlords rights. Strikingly, even in this case, the transferor continued to collect the rent of the suit property from the tenant with the consent of the transferee after the execution of the exchange deed, until the transferee took over the affairs of the suit property. The court held that it will not debar the owner or transferee from filing a suit for eviction against the tenant.28. A priori, we are of the view that the judgment under appeal is a well-considered decision. It has justly relied upon another decision of the High Court (which has been upheld by this Court). That decision is between the same landlord and another tenant in respect of the selfsame gift deed. The gift deed has been held to be valid. It has also been held that the title of the property has been passed on to the respondents. Hence, it would be just and appropriate to follow the same view. ### Response: 0

Malegaon Electricity Co. (P) Ltd Vs. The Commissioner Of Income-Tax, Bombay

disclose fully and truly all material facts necessary for his assessment for that year. Further, Explanation to section 34 (1) says :"Production before the Income-tax Officer of account-books or other evidence from which material facts could with due diligence have been discovered by the Income-tax Officer will not necessarily amount to disclosure within the meaning of this Section".10. If the assessee had disclosed to the Income-tax Officer, the surplus price realised by it over and above the written down value of the assets sold or in the alternative if it had informed, the Income-tax Officer the price realised as well as the written down value of the assets sold, then it could have been said that the assessee had done its duty and it was for the Income-tax Officer to draw any inference on the facts placed before him. But the failure of the assessee to disclose to the Income-tax Officer the fact that the price realised by it by sale of its assets was more than the written down value of those assets or at least the written down value of those assets amounts, in our opinion, to a failure on its part to disclose fully and truly the material facts necessary for its assessment. From the cryptic statement of the Income-tax Officer in the original assessment order that "no adjustment is necessary" the tribunal was not justified in drawing the inference that the Income-tax Officer had considered all the relevant facts.11. In support of his contention that the disclosure made by the assessee was true and full in all material particulars and hence no proceedings could have been taken under Section 34 (1) (a), Mr. A. K. Sen, learned Counsel for the assessee relied on the decision of this Court in V. D. M. RM. M. RM. Muthiah Chattier v. Commr. of Income-tax, Madras, 74 ITR 183 = (AIR 1970 SC 10 ). In that case the question that arose for decision was whether the assessees failure to include in his return the income of his wife and his minor sons admitted to the partnership of which he was a partner assessable in his hands under Section 16 (3)(a) (ii) can be considered as a failure to disclose truly and fully all facts material for the assessment. This Court came to the conclusion that the omission in question did not come within the scope of Section 34 (1) (a). Therein this Court observed that in the form of return prescribed under Rule 19 of the Indian Income-tax Rules, 1922, framed under Section 59 of the Act, there was no clause which required disclosure of the income of the assessee, which was liable to be included in his total income. Nor was the assessee required under Section 22 (5) of the a Act, in making a return, to disclose that any income was received by his wife or minor child admitted to the benefits of partnership in a firm of which he was a partner. Hence by not showing the income of his wife and minor children, the assessee cannot be deemed to have failed to disclose fully and truly all material facts necessary for his assessment within the meaning of Section 34 (1) (a) of the Act. Therein this Court further observed that Section 16 (3) of the Act imposes an obligation upon the Income-tax Officer to compute the total income of an individual for the purposes of assessment by including the items of income set out in Clauses (i) to (iv) and (b) but thereby no obligation is imposed upon the tax payer to disclose the income liable to be included in his assessment under Section 16 (3). For failing or omitting to disclose that income proceedings for reassessment cannot therefore be commence under Section 34 (1) (a). The ratio of the above decision is inapplicable to the facts of the present case.If any part of the price with which we are concerned in this case can be considered as deemed profits under Section 10 (2) (vii), then the assessee had a duty to include it in his return. His failure to do so brings his case within the scope of Section 34 (1) (a).Mr. Sen next relied on the decision of this Court in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies Dist I, Calcutta 41 ITR 191 at p. 201 = (AIR 1961 SC 372 at p. 376). Therein this Court had observed :"Once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else - far less the assessee - to tell the assessing authority what inferences whether of facts or law, should be drawn. Indeed, when it is remembered that people often differ as regards what inferences should be drawn from given facts, it will be meaningless to demand that the assessee must disclose what inferences - whether of facts or law - he would draw from the primary facts."12. In that case the question for consideration was whether the assessee had a duty to inform the Income-tax Officer with what intention the shares concerned in that case were sold. We do not think that the decision in question is of any assistance to the assessee.13. For the reasons mentioned above, we are of the opinion, that the High Court should not have and we in our turn will not answer the questions referred under S. 66 (1) of the Act because in our opinion those questions cannot be answered without first deciding whether the part of the sale price received by the assessee amounts to profits under S. 10 (2) (vii). The tribunal must first decide that question and thereafter decide the other questions of law arising for decision on the basis of its decision whether there was any profit falling within S. 10 (2) (vii).

1[ds]10. If the assessee had disclosed to the Income-tax Officer, the surplus price realised by it over and above the written down value of the assets sold or in the alternative if it had informed, the Income-tax Officer the price realised as well as the written down value of the assets sold, then it could have been said that the assessee had done its duty and it was for the Income-tax Officer to draw any inference on the facts placed before him. But the failure of the assessee to disclose to the Income-tax Officer the fact that the price realised by it by sale of its assets was more than the written down value of those assets or at least the written down value of those assets amounts, in our opinion, to a failure on its part to disclose fully and truly the material facts necessary for its assessment. From the cryptic statement of the Income-tax Officer in the original assessment order that "no adjustment is necessary" the tribunal was not justified in drawing the inference that the Income-tax Officer had considered all the relevant facts.11. In support of his contention that the disclosure made by the assessee was true and full in all material particulars and hence no proceedings could have been taken under Section 34 (1) (a), Mr. A. K. Sen, learned Counsel for the assessee relied on the decision of this Court in V. D. M. RM. M. RM. Muthiah Chattier v. Commr. of Income-tax, Madras, 74 ITR 183 = (AIR 1970 SC 10 ). In that case the question that arose for decision was whether the assessees failure to include in his return the income of his wife and his minor sons admitted to the partnership of which he was a partner assessable in his hands under Section 16 (3)(a) (ii) can be considered as a failure to disclose truly and fully all facts material for the assessment. This Court came to the conclusion that the omission in question did not come within the scope of Section 34 (1) (a). Therein this Court observed that in the form of return prescribed under Rule 19 of the Indian Income-tax Rules, 1922, framed under Section 59 of the Act, there was no clause which required disclosure of the income of the assessee, which was liable to be included in his total income. Nor was the assessee required under Section 22 (5) of the a Act, in making a return, to disclose that any income was received by his wife or minor child admitted to the benefits of partnership in a firm of which he was a partner. Hence by not showing the income of his wife and minor children, the assessee cannot be deemed to have failed to disclose fully and truly all material facts necessary for his assessment within the meaning of Section 34 (1) (a) of the Act. Therein this Court further observed that Section 16 (3) of the Act imposes an obligation upon the Income-tax Officer to compute the total income of an individual for the purposes of assessment by including the items of income set out in Clauses (i) to (iv) and (b) but thereby no obligation is imposed upon the tax payer to disclose the income liable to be included in his assessment under Section 16 (3). For failing or omitting to disclose that income proceedings for reassessment cannot therefore be commence under Section 34 (1) (a). The ratio of the above decision is inapplicable to the facts of the present case.If any part of the price with which we are concerned in this case can be considered as deemed profits under Section 10 (2) (vii), then the assessee had a duty to include it in his return. His failure to do so brings his case within the scope of Section 34 (1) (a).Mr. Sen next relied on the decision of this Court in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies Dist I, Calcutta 41 ITR 191 at p. 201 = (AIR 1961 SC 372 at p. 376). Therein this Court had observedall the primary facts are before the assessing authority, he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else - far less the assessee - to tell the assessing authority what inferences whether of facts or law, should be drawn. Indeed, when it is remembered that people often differ as regards what inferences should be drawn from given facts, it will be meaningless to demand that the assessee must disclose what inferences - whether of facts or law - he would draw from the primary facts.In that case the question for consideration was whether the assessee had a duty to inform the Income-tax Officer with what intention the shares concerned in that case were sold. We do not think that the decision in question is of any assistance to the assessee.13. For the reasons mentioned above, we are of the opinion, that the High Court should not have and we in our turn will not answer the questions referred under S. 66 (1) of the Act because in our opinion those questions cannot be answered without first deciding whether the part of the sale price received by the assessee amounts to profits under S. 10 (2) (vii). The tribunal must first decide that question and thereafter decide the other questions of law arising for decision on the basis of its decision whether there was any profit falling within S. 10 (2) (vii).

### 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: disclose fully and truly all material facts necessary for his assessment for that year. Further, Explanation to section 34 (1) says :"Production before the Income-tax Officer of account-books or other evidence from which material facts could with due diligence have been discovered by the Income-tax Officer will not necessarily amount to disclosure within the meaning of this Section".10. If the assessee had disclosed to the Income-tax Officer, the surplus price realised by it over and above the written down value of the assets sold or in the alternative if it had informed, the Income-tax Officer the price realised as well as the written down value of the assets sold, then it could have been said that the assessee had done its duty and it was for the Income-tax Officer to draw any inference on the facts placed before him. But the failure of the assessee to disclose to the Income-tax Officer the fact that the price realised by it by sale of its assets was more than the written down value of those assets or at least the written down value of those assets amounts, in our opinion, to a failure on its part to disclose fully and truly the material facts necessary for its assessment. From the cryptic statement of the Income-tax Officer in the original assessment order that "no adjustment is necessary" the tribunal was not justified in drawing the inference that the Income-tax Officer had considered all the relevant facts.11. In support of his contention that the disclosure made by the assessee was true and full in all material particulars and hence no proceedings could have been taken under Section 34 (1) (a), Mr. A. K. Sen, learned Counsel for the assessee relied on the decision of this Court in V. D. M. RM. M. RM. Muthiah Chattier v. Commr. of Income-tax, Madras, 74 ITR 183 = (AIR 1970 SC 10 ). In that case the question that arose for decision was whether the assessees failure to include in his return the income of his wife and his minor sons admitted to the partnership of which he was a partner assessable in his hands under Section 16 (3)(a) (ii) can be considered as a failure to disclose truly and fully all facts material for the assessment. This Court came to the conclusion that the omission in question did not come within the scope of Section 34 (1) (a). Therein this Court observed that in the form of return prescribed under Rule 19 of the Indian Income-tax Rules, 1922, framed under Section 59 of the Act, there was no clause which required disclosure of the income of the assessee, which was liable to be included in his total income. Nor was the assessee required under Section 22 (5) of the a Act, in making a return, to disclose that any income was received by his wife or minor child admitted to the benefits of partnership in a firm of which he was a partner. Hence by not showing the income of his wife and minor children, the assessee cannot be deemed to have failed to disclose fully and truly all material facts necessary for his assessment within the meaning of Section 34 (1) (a) of the Act. Therein this Court further observed that Section 16 (3) of the Act imposes an obligation upon the Income-tax Officer to compute the total income of an individual for the purposes of assessment by including the items of income set out in Clauses (i) to (iv) and (b) but thereby no obligation is imposed upon the tax payer to disclose the income liable to be included in his assessment under Section 16 (3). For failing or omitting to disclose that income proceedings for reassessment cannot therefore be commence under Section 34 (1) (a). The ratio of the above decision is inapplicable to the facts of the present case.If any part of the price with which we are concerned in this case can be considered as deemed profits under Section 10 (2) (vii), then the assessee had a duty to include it in his return. His failure to do so brings his case within the scope of Section 34 (1) (a).Mr. Sen next relied on the decision of this Court in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies Dist I, Calcutta 41 ITR 191 at p. 201 = (AIR 1961 SC 372 at p. 376). Therein this Court had observed :"Once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else - far less the assessee - to tell the assessing authority what inferences whether of facts or law, should be drawn. Indeed, when it is remembered that people often differ as regards what inferences should be drawn from given facts, it will be meaningless to demand that the assessee must disclose what inferences - whether of facts or law - he would draw from the primary facts."12. In that case the question for consideration was whether the assessee had a duty to inform the Income-tax Officer with what intention the shares concerned in that case were sold. We do not think that the decision in question is of any assistance to the assessee.13. For the reasons mentioned above, we are of the opinion, that the High Court should not have and we in our turn will not answer the questions referred under S. 66 (1) of the Act because in our opinion those questions cannot be answered without first deciding whether the part of the sale price received by the assessee amounts to profits under S. 10 (2) (vii). The tribunal must first decide that question and thereafter decide the other questions of law arising for decision on the basis of its decision whether there was any profit falling within S. 10 (2) (vii). ### Response: 1

Sakal Papers (P) Ltd. & Others Vs. Union of India

. . etc, would be remote and depend upon various factors which may or may not come into play. Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act, it would not be possible to strike down the legislation as having that effect and operation."41. That the impugned Act was intended to affect circulation and thus directly affect the freedom of speech is discernible also from the preamble which we may here quote. It runs thus:"An Act to provide for the regulation of the prices charged for newspapers in relation to their pages and of matters connected therewith for the purpose of preventing unfair competition among newspapers so that newspapers may have fuller opportunities of freedom of expression.42. Its object thus is to regulate something which as already stated, is directly related to the circulation of a newspaper. Since circulation of a newspaper is a part of the right of freedom of speech the Act must be regarded as one directed against the freedom of speech. It has selected the fact or thing which is an essential and basic attribute of the conception of the freedom of speech, viz., the right to circulate ones views to all whom one can reach or care to reach for the imposition of a restriction. It seeks to achieve its object of enabling what are termed the smaller newspapers to secure larger circulation by provisions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength. The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does so directly though it seeks to achieve the end by purporting to regulate the business aspect of a newspaper. Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved. No doubt, the law in question was made upon the recommendation of the Press Commission but since its object is to affect directly the right of circulation of newspapers which would necessarily undermine their power to influence public opinion it cannot but be regarded as a dangerous weapon which is capable of being used against democracy itself.43. In these circumstances the Act and the Order cannot be sustained upon the ground that it merely implements a recommendation of the Press Commission and was thus not made with an ulterior object. The decision in Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671 : (AIR 1960 SC 554 ) upon which reliance was placed by the respondent in support of the contention that where an enactment is challenged on the ground of violation of fundamental rights it is legitimate to take into consideration several factors including the purpose of the legislation, the mischief intended to be suppressed, the remedy proposed by the legislature and the true reason for that remedy does not, therefore, arise for consideration. Similarly, Since the Act taken in conjunction with the Order made thereunder operates as a restraint on the freedom of speech and expression of newspapers the mere fact that its object was to suppress unfair practices by newspapers would not validate them. Carrying on unfair practices may be a matter for condemnation. But that would be no ground for placing restrictions on the right of circulation.44. It was argued that the object of the Act was to prevent monopolies and that monopolies are obnoxious. We will assume that monopolies are always against public interest and deserve to be suppressed. Even so, upon the view we have taken that the intendment of the Act and the direct and immediate effect of the Act taken along with the impugned Order was to interfere with the freedom of circulation of newspapers the circumstance that its object was to suppress monopolies and prevent unfair practices is of no assistance.45. The legitimacy of the result intended to be achieved does not necessarily imply that every means to achieve it is permissible; for even it the end is desirable and permissible, the means employed must not transgress the limits laid down by the Constitution. If they directly, impinge on any of the fundamental rights guaranteed by the Constitution it is no answer when the constitutionality, of the measure is challenged that apart from the fundamental right infringe the provision is otherwise legal.46. Finally it was said that one of its objects is to give some kind of protection to small or newly started newspapers and, therefore, the Act is good. Such an object may be desirable but for attaining it the State cannot make inroads on the right of other newspapers which Art. 19(1)(a) guarantees to them. There may be other ways of helping them and it is for the State to search for them but the one they have chosen falls foul of the Constitution.47. To repeat, the only restrictions which may be imposed on the rights of an individual under Art.19(1)(a) are those which cl.(2) of Art.19 permits and no other.48. Coming to Writ Petitions Nos. 67 and 68 of 1961, considering that the relief granted by us in the main petition will redress the grievance of the petitioners in these two petitions it will be only of academic interest to decide whether they, as readers of newspapers, can complain of an interference with their right under Art. 19 (1)(a). We, therefore, refrain from making any Order on their petitions.49. Upon the view we take it would follow that S. 3(1) of the Act, which is its pivotal provision, is unconstitutional and, therefore, the Daily Newspaper (Price and Page) Order, 1960 made thereunder is also unconstitutional. If S. 3(1) is struck down as bad, nothing remains in the Act itself.

1[ds]25. A bare perusal of the Act and the Order thus makes it abundantly clear that the right of a newspaper to publish news and views and to utilise a many pages as it likes for that purpose is made to depend upon the price charged to the readers. Prior to the promulgation if the Order every newspaper was free to charge whatever price by State regulation to publish news and views. This liberty is obviously interfered with by the Order which provides for the maximum number of pages for the particular price charged. The question is whether this amounts to any abridgment of the right of a newspaper to freedom of expression. Our Constitution does not expressly provide for the freedom of press but it has been held by this Court that this freedom is included in "freedom of speech and expression" guaranteed by cl. (1) (a) of Art.right to propagate ones ideas is inherent in the conception of freedom of speech and expression. For the purpose of propagating his idea every citizen has a right to publish them, to disseminate them and to circulate them. He is entitled to do so either by word of mouth or by writing. The right guaranteed thus extends, subject to any law competent under Art. 19(2), not merely to the matter which he is entitled to circulate, but also to the volume of circulation. In other words, the citizen is entitled to propagate his views and reach any class and number of readers as he choose subject of course to the limitations permissible under a law competent under Art. 19(2). It cannot be gainsaid that the impugned order seeks to place a restraint on the latter aspect of the right by prescribing a price page schedule. We may add that the fixation of a minimum price for the number of pages which a newspaper is entitled to publish is obviously not for ensuring a reasonable price to the buyers of newspaper but for expressly cutting down the volume of circulation of some newspaper by making the price so unattractively high for a class of its readers as is likely to deter it from purchasing such newspaper.After the schedule comes into force it will not be open to a newspaper proprietor to charge less than a certain minimum price if he wants to give a particular number of pages in his newspaper. If he should contravene this order he will incur a penalty. Similarly he cannot publish supplements in excess of four as and when he chooses, except with the permission of Government. The Order does not indicate the circumstances which would entitle a newspaper proprietor to secure the special permission of Government. Apparently, whether to allow an additional supplement or not would be dependent on the sweet will and pleasure of the Government and this would necessarily strike at the root of the independence of the press.It must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense, Certain rights have been enshrined in our Constitution as fundamental and, therefore, while considering the nature and content of those rights the Court must not be too astute to interpret the language of the Constitution in so literal a sense as to whittle them down. On the other hand the Court must interpret the Constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest measure subject, of course, to permissible restrictions. Bearing this principle in mind it would be clear, that the right to freedom of speech and expression carries with it the right to publish and circulate ones ideas, opinions and views with compete freedom and by resorting to any available means of publication subject again to such restrictions as could be legitimately imposed under cl. (2) of Art. 19.The first decision of this Court in which this was recognized is Romesh Thappar v. State of Madras, 1950 SCR 594: (AIR 1950 SC 124 ). There, this Court held that freedom of speech and expression includes freedom of propagation of ideas and that this freedom is ensured by the freedom of circulation. In that case this Court has also pointed out that freedom of speech and expression are the foundation of all democratic organisations and are essential for the proper functioning of the processes of democracy. There and in other cases this Court pointed out that very narrow and stringent limits have been set to permissible legislative abridgment of the right of freedom of speech and expression. In State of Madras v. V.G. Row, 1952 SCR 597 : (AIR 1952 SC 196 ), the question of the reasonableness of restrictions which could be imposed upon a fundamental right has been considered. This Court has pointed out that the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and scope of the evil sought to be remedied thereby, the disproportion of the imposition and the prevailing conditions at that time should all enter into the judicial verdict. In Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., 1954 SCR 674 ; (AIR 1954 SC this Court has pointed out that in construing the Constitution it is the substance and the practical result of the act of the state that should be considered rather than its purely legal aspect. The correct approach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what manner and method has been adopted by the state in placing theThough the prices of newspapers appear to be on the low side it is a fact that even so many people find it difficult to pay that small price. Thus is what has been pointed out by the Press Commission in paragraph 52 of its Report. According to it the most common reason for people in not purchasing newspapers is the cost of the newspaper and the inability of the household to spare the necessary amount. This conclusion is based upon the evidence of a very large number of individuals and representatives of Associations. We would, therefore, be justified in relying upon it and holding that raising the price of a newspaper even by a small amount such as one nP. in order that its present size be maintained. would adversely affect itsone thing, requiring newspapers to reduce their sizes would be compelling them to restrict the dissemination of news and views and thus directly affecting their right under Art. 19(1)(a)But it is said that the object could be achieved by reducing the advertisements. That is to say, the newspapers would be able to devote the same space which they are devoting today to the publication of news and views by reducing to the necessary extent the space allotted to advertisements. It is pointed out that newspapers allot a disproportionately large space to advertisements. It is true that many newspapers do devote very large areas to advertisements. But then the Act is intended to apply also to newspapers which may carry no or very few advertisements. Again, after the commencement of the Act and the coming into force of the Order a newspaper which has a right to publish any number of pages for carrying its news and views will be restrained from doing so except upon the condition that it raises the selling price as provided in the schedule to the Order. This would be the direct and immediate effect of the Order and as such would be violative of the right of newspapers guaranteed by Art.advertisement revenue of a newspaper is proportionate to its circulation. Thus the higher the circulation of a newspaper the larger would be its advertisement revenue. So if a newspaper with a high circulation were to raise its price its circulation would go down and this in turn would bring down also the advertisement revenue. That would force the newspaper either to close down or to raise its price. Raising the price further would affect the circulation still more and thus a vicious cycle would set in which would ultimately end in the closure of the newspaper. If, on the other hand, the space for advertisement is reduced the earnings of a newspaper would go down and it would either have to run at a loss or close down or raise its price. The object of the Act in regulating the space for advertisements is stated to be to prevent unfair competition. It is thus directed against circulation of a newspaper. When a law is intended to bring about this result there would be a direct interference with the right of freedom of speech and expression guaranteed trader Art.right to freedom of speech and expression is an individual right guaranteed to every citizen by Art. 19(1)(a)) of the Constitution. There is nothing in cl. (2) of Art. 19 which permits the State to abridge this right on the ground of conferring benefits upon the public in general or upon a section of the public. It is not open to the State to curtail or infringe the freedom of speech of one for promoting the general welfare of a section or a group of people unless its action could be justified under a law competent under cl.(2) of Art. 19. It is admitted that the impugned provisions cannot be justified on the grounds referred to in the aforesaida law directly affecting it is challenged, it is no answer that the restrictions enacted by it are justifiable under cls. (3) to (6). For the scheme of Art. 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and cl. (1) does not prefer one freedom to another. That is the pain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom. All the greater reason, therefore, for holding that the State cannot directly restrict one freedom by placing an otherwise permissible restriction on another freedom.Its object thus is to regulate something which as already stated, is directly related to the circulation of a newspaper. Since circulation of a newspaper is a part of the right of freedom of speech the Act must be regarded as one directed against the freedom of speech. It has selected the fact or thing which is an essential and basic attribute of the conception of the freedom of speech, viz., the right to circulate ones views to all whom one can reach or care to reach for the imposition of a restriction. It seeks to achieve its object of enabling what are termed the smaller newspapers to secure larger circulation by provisions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength. The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does so directly though it seeks to achieve the end by purporting to regulate the business aspect of a newspaper. Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved. No doubt, the law in question was made upon the recommendation of the Press Commission but since its object is to affect directly the right of circulation of newspapers which would necessarily undermine their power to influence public opinion it cannot but be regarded as a dangerous weapon which is capable of being used against democracy itself.43. In these circumstances the Act and the Order cannot be sustained upon the ground that it merely implements a recommendation of the Press Commission and was thus not made with an ulterior object. The decision in Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671 : (AIR 1960 SC 554 ) upon which reliance was placed by the respondent in support of the contention that where an enactment is challenged on the ground of violation of fundamental rights it is legitimate to take into consideration several factors including the purpose of the legislation, the mischief intended to be suppressed, the remedy proposed by the legislature and the true reason for that remedy does not, therefore, arise for consideration. Similarly, Since the Act taken in conjunction with the Order made thereunder operates as a restraint on the freedom of speech and expression of newspapers the mere fact that its object was to suppress unfair practices by newspapers would not validate them. Carrying on unfair practices may be a matter for condemnation. But that would be no ground for placing restrictions on the right of circulation.The legitimacy of the result intended to be achieved does not necessarily imply that every means to achieve it is permissible; for even it the end is desirable and permissible, the means employed must not transgress the limits laid down by the Constitution. If they directly, impinge on any of the fundamental rights guaranteed by the Constitution it is no answer when the constitutionality, of the measure is challenged that apart from the fundamental right infringe the provision is otherwise legal.46. Finally it was said that one of its objects is to give some kind of protection to small or newly started newspapers and, therefore, the Act is good. Such an object may be desirable but for attaining it the State cannot make inroads on the right of other newspapers which Art. 19(1)(a) guarantees to them. There may be other ways of helping them and it is for the State to search for them but the one they have chosen falls foul of the Constitution.47. To repeat, the only restrictions which may be imposed on the rights of an individual under Art.19(1)(a) are those which cl.(2) of Art.19 permits and no other.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: . . etc, would be remote and depend upon various factors which may or may not come into play. Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act, it would not be possible to strike down the legislation as having that effect and operation."41. That the impugned Act was intended to affect circulation and thus directly affect the freedom of speech is discernible also from the preamble which we may here quote. It runs thus:"An Act to provide for the regulation of the prices charged for newspapers in relation to their pages and of matters connected therewith for the purpose of preventing unfair competition among newspapers so that newspapers may have fuller opportunities of freedom of expression.42. Its object thus is to regulate something which as already stated, is directly related to the circulation of a newspaper. Since circulation of a newspaper is a part of the right of freedom of speech the Act must be regarded as one directed against the freedom of speech. It has selected the fact or thing which is an essential and basic attribute of the conception of the freedom of speech, viz., the right to circulate ones views to all whom one can reach or care to reach for the imposition of a restriction. It seeks to achieve its object of enabling what are termed the smaller newspapers to secure larger circulation by provisions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength. The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does so directly though it seeks to achieve the end by purporting to regulate the business aspect of a newspaper. Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved. No doubt, the law in question was made upon the recommendation of the Press Commission but since its object is to affect directly the right of circulation of newspapers which would necessarily undermine their power to influence public opinion it cannot but be regarded as a dangerous weapon which is capable of being used against democracy itself.43. In these circumstances the Act and the Order cannot be sustained upon the ground that it merely implements a recommendation of the Press Commission and was thus not made with an ulterior object. The decision in Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671 : (AIR 1960 SC 554 ) upon which reliance was placed by the respondent in support of the contention that where an enactment is challenged on the ground of violation of fundamental rights it is legitimate to take into consideration several factors including the purpose of the legislation, the mischief intended to be suppressed, the remedy proposed by the legislature and the true reason for that remedy does not, therefore, arise for consideration. Similarly, Since the Act taken in conjunction with the Order made thereunder operates as a restraint on the freedom of speech and expression of newspapers the mere fact that its object was to suppress unfair practices by newspapers would not validate them. Carrying on unfair practices may be a matter for condemnation. But that would be no ground for placing restrictions on the right of circulation.44. It was argued that the object of the Act was to prevent monopolies and that monopolies are obnoxious. We will assume that monopolies are always against public interest and deserve to be suppressed. Even so, upon the view we have taken that the intendment of the Act and the direct and immediate effect of the Act taken along with the impugned Order was to interfere with the freedom of circulation of newspapers the circumstance that its object was to suppress monopolies and prevent unfair practices is of no assistance.45. The legitimacy of the result intended to be achieved does not necessarily imply that every means to achieve it is permissible; for even it the end is desirable and permissible, the means employed must not transgress the limits laid down by the Constitution. If they directly, impinge on any of the fundamental rights guaranteed by the Constitution it is no answer when the constitutionality, of the measure is challenged that apart from the fundamental right infringe the provision is otherwise legal.46. Finally it was said that one of its objects is to give some kind of protection to small or newly started newspapers and, therefore, the Act is good. Such an object may be desirable but for attaining it the State cannot make inroads on the right of other newspapers which Art. 19(1)(a) guarantees to them. There may be other ways of helping them and it is for the State to search for them but the one they have chosen falls foul of the Constitution.47. To repeat, the only restrictions which may be imposed on the rights of an individual under Art.19(1)(a) are those which cl.(2) of Art.19 permits and no other.48. Coming to Writ Petitions Nos. 67 and 68 of 1961, considering that the relief granted by us in the main petition will redress the grievance of the petitioners in these two petitions it will be only of academic interest to decide whether they, as readers of newspapers, can complain of an interference with their right under Art. 19 (1)(a). We, therefore, refrain from making any Order on their petitions.49. Upon the view we take it would follow that S. 3(1) of the Act, which is its pivotal provision, is unconstitutional and, therefore, the Daily Newspaper (Price and Page) Order, 1960 made thereunder is also unconstitutional. If S. 3(1) is struck down as bad, nothing remains in the Act itself. ### Response: 1

Chief Director, Highways Department and Ors Vs. Er. C. Murugesan

Hemant Gupta, J. 1. The challenge in the present appeal is to an order passed by the Division Bench of the High Court of Judicature at Madras on 19th June, 2019 whereby an appeal against the order passed by the learned Single Bench on 9th January, 2019 was dismissed. 2. The Respondent joined as Junior Engineer in the Highways Department of the State on 2nd February, 1977 and his service was re-designated as Assistant Engineer on 19th June, 1985. The Respondent successfully completed his probation on 14th November, 1988. 3. A number of disciplinary proceedings were initiated against the Respondent while he was working as Assistant Engineer, but on 11th October, 2002, all the charges were dropped. The proceedings initiated against the Respondent vide charge sheet dated 26th August, 2002 with respect to issue of improper maintenance of accounts for rice and wheat led to the recovery of loss of ` 30,594/- to the Government in nine installments vide order dated 16th April, 2003. The said order was challenged by the Respondent before the Tamil Nadu Administrative Tribunal. Such order was set aside on 26th June, 2003. 4. The Respondent sought promotion as Assistant Divisional Engineer which was granted on 11th April, 2003. The Respondent joined as Assistant Divisional Engineer on 6th June, 2003. 5. Another charge sheet was served upon the Respondent on 30th December, 2003 in connection with audit objection pending to the tune of ` 25,735/- when the Respondent was working as Junior Engineer. The Respondent retired on 31st December, 2003 without prejudice to the Disciplinary Proceedings pending against him. 6. The Respondent filed a writ petition challenging memo of the charges issued by the Inquiry Officer (IO) on 30th December, 2003 calling upon the Respondent to appear before it. The said writ petition was allowed on 2nd November, 2010. An appeal preferred by the State against the order of the learned Single Bench was dismissed. 7. The name of the Respondent was included in the seniority list of Assistant Divisional Manager for the year 1991-92 at Sl. No. 16A vide order dated 11th January, 2013. It is thereafter the retirement benefits were paid to the Respondent. The junior to the Respondent i.e. S. Chandrabalan at Sl. No. 17 was promoted on 14th January, 2004 i.e. after attaining the age of superannuation of the Respondent on 31st December, 2003. 8. The Respondent filed the writ petition claiming promotion to the post of Divisional Engineer. The grievance of the Respondent was that the order directing to include the name of the Respondent at Sl. No. 16A has not been implemented. Consequently, the said writ petition was allowed by the learned Single Judge on 9th January, 2019 and directed the Appellants to promote the Respondent notionally as Divisional Engineer. The appeal against such order was dismissed. Aggrieved, the State is in appeal before us. 9. The argument of the learned Counsel for the Appellants is that the Respondent is claiming promotion from the date his junior was promoted but said junior was promoted after superannuation of the Respondent, therefore, he cannot be promoted to the post of Divisional Engineer. 10. On the other hand, the Respondent who appeared in person argued that the Appellants have intentionally delayed the preparation of panel for promotion so as to deny the benefit of promotion to the Respondent. The panel was prepared only after the retirement of the Respondent when the Appellants could prepare the panel even before the superannuation of the Respondent. He further argued that the Government Order dated 11th January, 2013 has not been implemented. 11. After examining the record, we find that the order of the High Court is clearly unsustainable in law. The argument that the order dated 11th January, 2013 has not been implemented is not factually correct. The order was to place him in the cadre of Assistant Divisional Engineer at Sl. No. 16A. As a member of Assistant Divisional Engineer, the Respondent is entitled to pay and allowances and retirement benefits corresponding to the pay payable to him as Assistant Divisional Engineer. It is not in dispute that all such retirement benefits have been paid to him. However, the argument that the Appellants have delayed the preparation of panel for promotion to the post of Divisional Engineer is in the realm of conjectures. The fact is that the junior of the Respondent was promoted on 14th January, 2004 i.e. after the superannuation of the Respondent on 31st December, 2003. The Respondent has right of consideration for promotion from the date his junior was promoted. Since the promotion of the junior is after the superannuation of the Respondent, he cannot claim any right to seek promotion.

0[ds]11. After examining the record, we find that the order of the High Court is clearly unsustainable in law. The argument that the order dated 11th January, 2013 has not been implemented is not factually correct. The order was to place him in the cadre of Assistant Divisional Engineer at Sl. No. 16A. As a member of Assistant Divisional Engineer, the Respondent is entitled to pay and allowances and retirement benefits corresponding to the pay payable to him as Assistant Divisional Engineer. It is not in dispute that all such retirement benefits have been paid to him. However, the argument that the Appellants have delayed the preparation of panel for promotion to the post of Divisional Engineer is in the realm of conjectures. The fact is that the junior of the Respondent was promoted on 14th January, 2004 i.e. after the superannuation of the Respondent on 31st December, 2003. The Respondent has right of consideration for promotion from the date his junior was promoted. Since the promotion of the junior is after the superannuation of the Respondent, he cannot claim any right to seek promotion.

### 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: Hemant Gupta, J. 1. The challenge in the present appeal is to an order passed by the Division Bench of the High Court of Judicature at Madras on 19th June, 2019 whereby an appeal against the order passed by the learned Single Bench on 9th January, 2019 was dismissed. 2. The Respondent joined as Junior Engineer in the Highways Department of the State on 2nd February, 1977 and his service was re-designated as Assistant Engineer on 19th June, 1985. The Respondent successfully completed his probation on 14th November, 1988. 3. A number of disciplinary proceedings were initiated against the Respondent while he was working as Assistant Engineer, but on 11th October, 2002, all the charges were dropped. The proceedings initiated against the Respondent vide charge sheet dated 26th August, 2002 with respect to issue of improper maintenance of accounts for rice and wheat led to the recovery of loss of ` 30,594/- to the Government in nine installments vide order dated 16th April, 2003. The said order was challenged by the Respondent before the Tamil Nadu Administrative Tribunal. Such order was set aside on 26th June, 2003. 4. The Respondent sought promotion as Assistant Divisional Engineer which was granted on 11th April, 2003. The Respondent joined as Assistant Divisional Engineer on 6th June, 2003. 5. Another charge sheet was served upon the Respondent on 30th December, 2003 in connection with audit objection pending to the tune of ` 25,735/- when the Respondent was working as Junior Engineer. The Respondent retired on 31st December, 2003 without prejudice to the Disciplinary Proceedings pending against him. 6. The Respondent filed a writ petition challenging memo of the charges issued by the Inquiry Officer (IO) on 30th December, 2003 calling upon the Respondent to appear before it. The said writ petition was allowed on 2nd November, 2010. An appeal preferred by the State against the order of the learned Single Bench was dismissed. 7. The name of the Respondent was included in the seniority list of Assistant Divisional Manager for the year 1991-92 at Sl. No. 16A vide order dated 11th January, 2013. It is thereafter the retirement benefits were paid to the Respondent. The junior to the Respondent i.e. S. Chandrabalan at Sl. No. 17 was promoted on 14th January, 2004 i.e. after attaining the age of superannuation of the Respondent on 31st December, 2003. 8. The Respondent filed the writ petition claiming promotion to the post of Divisional Engineer. The grievance of the Respondent was that the order directing to include the name of the Respondent at Sl. No. 16A has not been implemented. Consequently, the said writ petition was allowed by the learned Single Judge on 9th January, 2019 and directed the Appellants to promote the Respondent notionally as Divisional Engineer. The appeal against such order was dismissed. Aggrieved, the State is in appeal before us. 9. The argument of the learned Counsel for the Appellants is that the Respondent is claiming promotion from the date his junior was promoted but said junior was promoted after superannuation of the Respondent, therefore, he cannot be promoted to the post of Divisional Engineer. 10. On the other hand, the Respondent who appeared in person argued that the Appellants have intentionally delayed the preparation of panel for promotion so as to deny the benefit of promotion to the Respondent. The panel was prepared only after the retirement of the Respondent when the Appellants could prepare the panel even before the superannuation of the Respondent. He further argued that the Government Order dated 11th January, 2013 has not been implemented. 11. After examining the record, we find that the order of the High Court is clearly unsustainable in law. The argument that the order dated 11th January, 2013 has not been implemented is not factually correct. The order was to place him in the cadre of Assistant Divisional Engineer at Sl. No. 16A. As a member of Assistant Divisional Engineer, the Respondent is entitled to pay and allowances and retirement benefits corresponding to the pay payable to him as Assistant Divisional Engineer. It is not in dispute that all such retirement benefits have been paid to him. However, the argument that the Appellants have delayed the preparation of panel for promotion to the post of Divisional Engineer is in the realm of conjectures. The fact is that the junior of the Respondent was promoted on 14th January, 2004 i.e. after the superannuation of the Respondent on 31st December, 2003. The Respondent has right of consideration for promotion from the date his junior was promoted. Since the promotion of the junior is after the superannuation of the Respondent, he cannot claim any right to seek promotion. ### Response: 0

Narkeshari Prakashan Limited Vs. Nagpur Press Kamgar Sangh and Another

Perusal of the list of such employees filed as Annexure V of the reply by the respondent/Union before the State Government, would show that some of them are only employed upon the work relating to photo composing machines. The above list of employees is filed in answer to the information supplied by the appellant upon Item No. 16 of the prescribed proforma to the State Government in seeking permission for retrenchment.52.The above referred reply of the respondent/Union shows that, according to it, Tarun Bharat Printers and Processors Ltd., is interconnected company of the appellant. It further shows that there were originally 35 employees working in the said company as hand compositors, out of whom during the period from 1986 to 1990 i.e. after installation of photo composing machines, 21 employees were absorbed by the appellant leaving these 19 employees concerned who were sought to be and are retrenched. The submission thus is that these 19 employees of the appellant could have been offered the above jobs upon which the employees of Tarun Bharat Printers and Processors Ltd., were transferred.53.As regards these jobs and in particular regarding the jobs in relation to the photo composing machines, the appellant has pointed out in the return filed in the instant writ petition preferred by the respondent/Union that these photo composing machines are highly sophisticated and expensive requiring thorough and extensive training, and it is only after inviting application to give opportunities to all its employees including its compositors for giving the necessary training that the appointments were made in the jobs relating to photo composing machines. However, according to the appellant, none of these hand compositors responded to the said notice. It cannot be disputed that if the job is a skilled job no absorption as of right can be claimed in the said job without obtaining necessary training for the said job.54.The respondent/Union has, however, denied the notice having been displayed upon them by notice board by the appellant about training being given for the jobs in question. The learned Counsel for the appellant has in this regard brought to our notice the copy of the said notice annexed as Annexure R-1 of the return filed by it and the endorsement upon the said notice which would show that the said notice was pasted upon the notice board of the appellants Press. The conduct of the appellant in this case does not show that they were bent upon retrenching the workmen concerned at any cost because even earlier when the Mono and Lino Composing Machines were installed, no retrenchment was effected although, according to it, it was found at that time that the hand compositors with their meagre education and moderate background were not in a position to cope up with the technical work of these machines. Moreover, when the said photo composing machines were introduced because of which, according to the respondent/Union, there was likelihood of retrenchment of the hand-compositors concerned, it is difficult to believe that they would not enquire about what would happen to them in case the work of composing was done upon the said machines. In fact it would appear that since they continued to get hand composing work of "Yugdharm", they did not show any interest in doing the work upon the photo composing machines. In these circumstances, we cannot accept the submission on behalf of the respondent/Union that the notice about training for the jobs in question was not displayed upon the notice board.55.Be that as it may, the fact remains that the work upon these machines was highly technical and a skilled one and the machines could not be operated without any proper training to the hand compositors if the jobs upon such machines were to be offered to them. The said jobs could not therefore be claimed by these workers without any training. It is not shown to us that if the workers from Tarun Bharat Printers and Processors Ltd. were transferred upon these jobs, they did not possess any knowledge about the same or had not undergone any training for the same. Moreover, the aforesaid list of the said employees incorporated in Annexure V of the reply of the respondent/Union does not show actually as to at what time these employees from Tarun Bharat Printers and Processors Ltd. were transferred to the appellant because the question of retrenchment of the hand compositors concerned had actually arisen in June, 1991.55-A.As regards the other jobs except the appointment as peon, it does not appear by merely reading the said list (Annexure V) that the jobs shown therein could be done by these hand compositors, such as the work of Accountant, Cameraman, Machineman etc. Even as regards the question of appointment as peon, it is not stated when the person concerned was appointed as peon. The above list (Annexure V) is thus of no assistance to assess what job was available for absorption of the hand compositors concerned at that time when they were sought to be retrenched after the composing work of "Yugdharm" stopped coming to the appellants Press and when the application was made on 7-5-1991 for their retrenchment because of the aforesaid reason.56.It is not thus possible for us to accept the contention raised on behalf of the respondent/Union that the Secretary has not applied his mind to these factors.57.It is, however, clear as hereinbefore referred to from the talks of settlement between the management and the respondent/Union that the Management has offered that it is possible for them as on today to absorb 7 of these workmen concerned. According to the management, it would do so on the basis of the test of seniority-cum-suitability of the workmen concerned for the jobs to be offered to them. The permission thus will have to be granted for retrenchment of 12 of the workmen concerned, the discretion for absorption of 7 persons being left with the Management, because their absorption depends upon their suitability for the jobs available for them in the appellants concern.

1[ds]26.On the other hand, the learned Counsel appearing for the respondent Union has heavily relied upon the judgment of the Division Bench of this Court in the case of Nav Bharat, Hindi Daily, Nagpur v. Navbharat Sharamik Sangha, 1984 Mh. L.J.483. The facts in the said case would show that mono composing machine was installed in the Nav Bharat press in March 1973 and soon thereafter in May 1973 the services of the 33 compositors were terminated on the ground that there was no work for them. In the light of these facts, the Division Bench of this Court held that installation of mono composing machine in a press, being a rationalised machinery was likely to lead to retrenchment of workmen, and therefore Item No. 10 of the Fourth Schedule of the Act was directly attracted. Thus, according to the said judgment, it was imperative on the part of the employer to serve a notice of change under sectionof the Act, failing which it would vitiate the retrenchment resulting from the operation of such a machine.27.It is clear from the facts in the above case that retrenchment of workmen therein was a direct out come of installation of mono composing machine as there was proximity of time between the installation of the machine and the consequent retrenchment of the workmen concerned, which factor heavily weighed with the Division Bench in arriving at the conclusion in the said case that installation of rationalised machine by the Nav Bharat Press was likely to lead to retrenchment which in fact had immediately taken place within two months because of which in the absence of notice of change under sectionof the Act, it held that the retrenchment of workmen in the said case was vitiated. It is, however, pertinent to see that unlike as in the instant case no other reason was pointed out for retrenchment of workmen in the saidlearned Counsel appearing for the respondent/Union has then relied upon the judgment of the Supreme Court in the case of M/s Tata Iron and Steel Co. Ltd. v. Workmen of M/s Tata IronSteel Co. Ltd. and others, A.I.R. 1972 S.C.1917. The facts in the said case would show that the question involved therein was relating to Item 8 of the Fourth Scheduleof the Act.Sunday, which was originally fixed as a weekly day of rest was changed and some other day was fixed as day of rest. It was held in the said case that fixation of Sunday as weekly rest day having been founded on usage and practice and the same being treated as a customary privilege, changing it to some other day of rest would fall within the scope of Item 8 of the Fourth Schedule of the Act necessiating the notice of change to be given under sectionthereof. The said case thus clearly turns upon the facts therein. It cannot be disputed that if a matter directly falls within any of the entries in the Fourth Schedule, notice of change under sectionof the Act, is a must, failing which introduction of such a change by the employer is illegal and ineffective. (See para 15 of theneed not be any two opinions about the above object of enacting sectionof the Act.The question, however, is whether the retrenchment of the workmen concerned in the instant case is covered by any item of the Fourth Schedule of the Act particularly when the Supreme Court in L. Robert Desouzass case cited supra has held to the contrary and has observed that there is no change in conditions of service involved in effecting retrenchment and that notice under sectionand notice under sectionare two different aspects of notice, having no corelation with each other.32.Examining the rival submissions on facts in the light of the principles laid down in the above judgments, what has to be seen is whether the rationalisation introduced by installation of four photo composing machines in the press of the appellant was likely to lead to retrenchment. It is material to see that according to the appellant the said machines were installed in 1980 and thework could be actually extracted from these machines fromonwards. The respondent Union has denied the said fact and has stated that said machines were installed in 1985.33.Be that as it may, there is, however, no dispute between the parties that at the time of installation of these machines there was no retrenchment of the workmen concerned i.e. the hand compositors effected by the appellant Company, the reason being that although after introduction of these machines, the work ofof the Daily Tarun Bharat owned by the appellant was not available, the hand compositors in Tarun Bharat were doing the work of composing of "Yugdharm" mainly and a small quantity of work of composing of advertisement of Tarun Bharat was also given to them. As regards the hand composing work of "Yugdharm", there was no reason to believe as is clear from the facts hereinafter referred to that the said work was fortuitous or temporary in nature so that in short time there was likelihood of retrenchment of theof the appellant doing the said work.34.It is pertinent to see from the facts hereinbefore narrated that originally the newspaper "Yugdharm" was a newspaper started in about 1953 or 1954 owned and published by the appellant. It was run by a separate legal entity only from 1971 when Rashtriya Vichar Sadhana, a society registered under the Societies Registration Act, 1860, was formed and took over its ownership and management. However, in spite of the change of ownership and management, the composing work of "Yugdharm" still continued with the appellant. Onthe aforesaid society, Rashtriya Vichar Sadhana, transferred the ownership and management of "Yugdharm" to "Yugdharm Newspapers Pvt. Ltd.", a company registered under the Companies Act. What is material to be seen is that inspite of the ownership and management being transferred to the newly formed company, the composing work of "Yugdharm" still continued with the appellant. It is only when, in June 1989 the said company installed its own Desk Top Publishing System for the work of composing that it stopped giving the work of composing of "Yugdharm" to the appellant. Consequently, the appellant was not thereafter in a position to give any composing work to its hand compositors i.e. the workmen concerned and it had therefore no other alternative but to retrench their services.35.It is clear from the above facts that this is not a case where some additional temporary job work was undertaken by the appellant after installation of four photo composing machines to maintain thein question and to avoid their retrenchment temporarily. It is further clear from the above facts that initially as its own work as owner and thereafter as the work of its sister concern, the work of composing of "Yugdharm" always continued with the appellant till the time i.e. June 1989 when the Desk Top Publishing System was introduced by "Yugadharm Newspaper Pvt. Ltd." for doing the composing work of "Yugdharm". In terms of period of time, the work of composing of "Yugdharm" continued with the appellant, for about 15 or 16 years. Even after the introduction of the photo composing machines in Tarun Bharat, the work of composing of ""Yugdharm"" continued with the appellant for about a period of 7 or 8 years or even assuming that the said machines were introduced in 1985 as urged on behalf of the the respondent Union, for a period of about 4 years. The said work of composing of ""Yugdharm"" stopped not because the photo composing machines were introduced in Tarun Bharat by the appellant, but, because after a long time ""Yugdharm"" installed its own Desk Top Publishing System.36.In the conspectus of the above facts and circumstances, the question which arises for consideration is whether it could be predicated at the time of installation of the photo composing machines in the appellants press that the said installation was likely to result in retrenchment or in other words the work of composing of "Yugdharm" was likely to be discontinued when it had been done by the hand compositors of the appellant for a long time till then. The answer is obviously in the negative. There is also no material placed on record to show that at the time of installation of the photo composing machines in the appellants Press, there was plan with the management of "Yugdharm" to introduce such machines to get its composing work done through them. On the contrary; even after introduction of the photo composing machines, the work of composing of "Yugdharm" continued with the appellant for an appreciable period i.e. for about 7 or 8 years, according to the appellant, and for about 4 years even according to thecannot be said in the above facts and circumstances of this case that the introduction of photo composing machines in the appellant Press was likely to lead to retrenchment of its hand compositors because as hereinbefore shown, since many years prior to and after the installation of the said photo composing machines, the work of "Yugdharm" initially as its own concern and thereafter as its sister concern continued with theitself. In other words, it cannot be inferred in the above facts and circumstances of the instant case that the retrenchment of the workmen concerned is a direct result or out come of the installation of photo composing machines by the appellant. There was thus no question of giving any notice of change under sectionof the Act when the photo composing machines were installed because it is not in dispute that at the time of the installation or in reasonable period thereafter, there was no retrenchment made by the appellant of its handreason given for the proposed retrenchment in column No. 22 of the proforma is that the work of composing of daily "Yugdharm" was stopped from June 1989 when ""Yugdharm"" made its own arrangement of composing by installation of Desk Top Publishing System. It is then clear from column No. 24 that although there was no work of Tarun Bharat as such for theof the appellant, they were not retrenched but they were doing the work of composing of "Yugdharm" which as shown above was being given to them. As is made clear, it is only when in June, 1989 the said ""Yugdharm"" had introduced D.T.P. system that the composing work of "Yugdharm" could not be given to these hand compositors concerned. It is also stated in the said column No. 24 that the appellant is required to incur the expenditure of about Rs. 50,000/per month upon the salary of these workmen concerned.40.It is thus clear even from the information given in the prescribed proforma by the appellant that simpliciter by installation of the photo composing machines, the workmen concerned did not become surplus and were required to be retrenched, but the real reason for retrenchment of the workmen concerned was theof work of "Yugdharm" which was stopped after the D.T.P. system was introduced in "Yugdharm" itself in June, 1989. We cannot thus accept the above submission made on behalf of thethat even according to the appellant, since there was adoption of new technology in composing by all the newspapers there was no work for hand compositors in Tarun Bharat.41.Even otherwise, assuming that notice of change under sectionof the Act was necessary for introducing the photo composing machines, it would not mean that the retrenchment of workmen concerned in the instant case without giving the notice of change under sectionof the Act would be illegal because as held by the Supreme Court in L. Desouzas case cited supra, retrenchment as such is not covered by any item in the Fourth Schedule of the Act and therefore no notice of change is necessary before effecting retrenchment. It is clerly held in the said case that retrenchment does not constitute any change in the conditions of service in respect of any item in the Fourth Schedule of the Act and that notice of change under sectionand notice under sectionfor effecting retrenchment are entirely two different aspects having no corelation with each other.42.It may then be seen that retrenchment is a matter originally regulated by the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 by virtue of item 8 of the schedule to the said Act relating to "termination of service" which includes retrenchment in its genetic sense. However, after enactment of Chapter VA and VB in the Act by amendment, retrenchment is regulated according to the provisions of the said Chapters as may be applicable to the Industrial establishments in question and before effecting retrenchment, it is necessary for the employer to comply with the provisions therein and not the procedure under sectionof the Act.A similar view is taken by the Supreme Court in the case of Chhaganlal Textile Mills and the case of Amrut Banaspati Co. cited supra upon substantiallyprovisions of the B.I.R. Act . We do not therefore agree with the contention raised on behalf of thethat in the absence of notice of change under sectionof the Act, retrenchment of the workmen concerned by the appellant is illegal and void.43.It is then necessary to see that if it was the apprehension of the respondent/Union or the workmen concerned that there was likelihood of retrenchment due to installation of the said photo composing machines, it was open to them to raise, at the time of installation of such machines or immediately thereafter, an industrial dispute under the Act on the question whether the appellant had introduced a change which necessitated notice of change under sectionof the Act and which was, therefore, in its absence illegal and ineffective. If such a dispute was raised and if it was found by the Industrial Tribunal that there was likelihood of retrenchment, it could have laid down appropriate norms to safeguard the interests of the workmen concerned imposing certain conditions upon the appellant for allowing it to do its work of composing with the aid of the new photo composing machines installed byour view, the question was not whether actually the retrenchment was effected or not, but the question was whether there was likelihood of retrenchment on introduction of the new rationalised machinery for which it was necessary for them to get necessary norms laid down through an award of the Industrial Tribunal which has in industrial adjudication wider power to create new obligations upon the parties. As observed by Ludwig Teller in his Book on "Labour Disputes and Collective Bargaining" Volume I at page 536, "industrial arbitration may involve the extension of an existing agreement or the making of a new one, or in general the creation of new obligation or modification of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existingour view, the question is not one of any cause of action but of getting the norms laid down in case the change introduced or sought to be introduced by the appellant Management in installation of the photo composing machines is illegal. However, as we have held that the facts in these cases do not show that there was likelihood of retrenchment by reason of the installation of the above machines, the above discussion is reallyour view, the question is not one of any cause of action but of getting the norms laid down in case the change introduced or sought to be introduced by the appellant Management in installation of the photo composing machines is illegal. However, as we have held that the facts in these cases do not show that there was likelihood of retrenchment by reason of the installation of the above machines, the above discussion is reallyt question which arises for consideration in these letters patent appeals, is whether the Secretary of the Labour Department exercising the powers of the State Government under sectionof the Act, has applied his mind to all the relevant factors regarding the question of retrenchment as required by(3) of sectionof the Act.Perusal of the said provision i.e. section(3) of the Act would show that the State Government has to consider the question of granting permission for retrenchment having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the workmen and all other relevant factors. Under Ruleof the Rules framed under the Act, the employer has to give information in formwhich reveals that there are annexures to the said form giving the particulars about which the information has to be given by the employer. Perusal of the said annexures would show that the information demanded from the employer thereunder has bearing upon the question of consideration of the relevant factors in granting permission for retrenchment.47.Thelearned Counsel for the respondent/Union has urged before us that the Secretary of the Government who decided the application for permission for retrenchment, has not applied his mind to the factors relating to the interests of the workmen and the norms or conventions laid down about rationalisation. According to him, the norms or conventions about rationalisation, are considered by the National Commission on Labour headed by Dr. Gajendragadkar, J., in para 18.16 at page 261 of itsreport. Perusal of the said para 18.16 shows that the model tripartite agreement adopted at the 15th Indian Labour Conference (1957) on rationalisation, laid down that there should be no retrenchment or loss of earning of the existing employees i.e. the full complement required for the operations before rationalisation should be maintained except for cases of natural separation or wastage. According to it, workers could, however, be provided with suitable alternative jobs in the same establishment or under the same employer subject to agreement between the employer and the workers. The other matters considered in the said agreement are equitable sharing of benefits of rationalisation as between the community, the employer and the worker and a proper assessment ofmade by an expert or experts which factors have no relevance to the question of actual retrenchment of the workers concerned, although they may have bearing upon the workmen who are continued in employment or who are actually working on the rationalised machines.48.As regards the factor that there should be no retrenchment, the Secretary of the State Government, has in his order applied his mind to the said factor. He has held, and it is not in dispute also, that after introduction or installation of the rationalised machines by the appellant, there was no retrenchment effected by the appellant of the employees doing hand composing work. As regards the retrenched employees concerned, the case of the management as set out in Column No. 23 of the Annexure C is that they tried to obtain the job work for these workmen but since hand composing was out of demand, it could not get sufficient job work in market to offer to them. Further, according to it, it had also asked the employees concerned that they can also find out whether there is any job work for them but the said offer was not acceptable to them.49.However, as regards the question of absorption of some of the workmen concerned, during the hearing of these letters patent appeals, we had asked the Management to consider the said question. In particular, we had asked the parties to find out whether the matter as a whole can be settled amicably. The learned Counsel for the appellant has stated before us that taking into consideration the requirement as on today, the work can be found for 7 from amongst these 19 workmen concerned. It is pertinent to see that about two years have elapsed since the permission was sought for retrenchment of these workers. Therefore, at the time of their retrenchment, the case of the Management cannot be faulted because they can find work today for some of them. Even otherwise, as pointed out by us hereinbefore, retrenchment is not due to rationalisation as such, but retrenchment is because the work which these hand compositors were doing, is not available since "Yugdharm" has installed its own D.T.P. system for its composing work.50.Perusal of the impugned order of the Secretary of the State Government would show that in para 5 he has considered the question of absorption of these workmen. In para 4 also he has observed that originally the retrenchment was to be of about 28 persons but 8 persons were actually absorbed by the Management in other job, which would show that the retrenchment sought to be effected is not mala fide but is genuine. It cannot thus be said that there is no application of mind to these factors by the Secretary of the State Government who granted permission to the appellant for retrenchment of the workmen concerned.51.Itis, however, urged on behalf of thethat in fact the work upon these photo composing machines itself should have been given to these hand compositors but instead of giving them the said work, the appellant had sought to make appointments of the workers of Tarun Bharat Printers and Processors Ltd. who were transferred from the said company to the appellant Company. It is further sought to be shown that out of the 27 persons brought in the appellant company, some have retired and some have resigned and therefore, in their vacancies at least the workmen concerned could bePerusal of the list of such employees filed as Annexure V of the reply by the respondent/Union before the State Government, would show that some of them are only employed upon the work relating to photo composing machines. The above list of employees is filed in answer to the information supplied by the appellant upon Item No. 16 of the prescribed proforma to the State Government in seeking permission for retrenchment.52.The above referred reply of the respondent/Union shows that, according to it, Tarun Bharat Printers and Processors Ltd., is interconnected companyof the appellant.It further shows that there were originally 35 employees working in the said company as hand compositors, out of whom during the period from 1986 to 1990 i.e. after installation of photo composing machines, 21 employees were absorbed by the appellant leaving these 19 employees concerned who were sought to be and are retrenched. The submission thus is that these 19 employees of the appellant could have been offered the above jobs upon which the employees of Tarun Bharat Printers and Processors Ltd., were transferred.53.As regards these jobs and in particular regarding the jobs in relation to the photo composing machines, the appellant has pointed out in the return filed in the instant writ petition preferred by the respondent/Union that these photo composing machines are highly sophisticated and expensive requiring thorough and extensive training, and it is only after inviting application to give opportunities to all its employees including its compositors for giving the necessary training that the appointments were made in the jobs relating to photo composing machines. However, according to the appellant, none of these hand compositors responded to the said notice. It cannot be disputed that if the job is a skilled job no absorption as of right can be claimed in the said job without obtaining necessary training for the said job.54.The respondent/Union has, however, denied the notice having been displayed upon them by notice board by the appellant about training being given for the jobs in question. The learned Counsel for the appellant has in this regard brought to our notice the copy of the said notice annexed as Annexureof the return filed by it and the endorsement upon the said notice which would show that the said notice was pasted upon the notice board of the appellants Press. The conduct of the appellant in this case does not show that they were bent upon retrenching the workmen concerned at any cost because even earlier when the Mono and Lino Composing Machines were installed, no retrenchment was effected although, according to it, it was found at that time that the hand compositors with their meagre education and moderate background were not in a position to cope up with the technical work of these machines. Moreover, when the said photo composing machines were introduced because of which, according to the respondent/Union, there was likelihood of retrenchment of theconcerned, it is difficult to believe that they would not enquire about what would happen to them in case the work of composing was done upon the said machines. In fact it would appear that since they continued to get hand composing work of "Yugdharm", they did not show any interest in doing the work upon the photo composing machines. In these circumstances, we cannot accept the submission on behalf of the respondent/Union that the notice about training for the jobs in question was not displayed upon the notice board.55.Be that as it may, the fact remains that the work upon these machines was highly technical and a skilled one and the machines could not be operated without any proper training to the hand compositors if the jobs upon such machines were to be offered to them. The said jobs could not therefore be claimed by these workers without any training. It is not shown to us that if the workers from Tarun Bharat Printers and Processors Ltd. were transferred upon these jobs, they did not possess any knowledge about the same or had not undergone any training for the same. Moreover, the aforesaid list of the said employees incorporated in Annexure V of the reply of the respondent/Union does not show actually as to at what time these employees from Tarun Bharat Printers and Processors Ltd. were transferred to the appellant because the question of retrenchment of the hand compositors concerned had actually arisen in June,regards the other jobs except the appointment as peon, it does not appear by merely reading the said list (Annexure V) that the jobs shown therein could be done by these hand compositors, such as the work of Accountant, Cameraman, Machineman etc. Even as regards the question of appointment as peon, it is not stated when the person concerned was appointed as peon. The above list (Annexure V) is thus of no assistance to assess what job was available for absorption of the hand compositors concerned at that time when they were sought to be retrenched after the composing work of "Yugdharm" stopped coming to the appellants Press and when the application was made onfor their retrenchment because of the aforesaid reason.56.It is not thus possible for us to accept the contention raised on behalf of the respondent/Union that the Secretary has not applied his mind to these factors.57.It is, however, clear as hereinbefore referred to from the talks of settlement between the management and the respondent/Union that the Management has offered that it is possible for them as on today to absorb 7 of these workmen concerned. According to the management, it would do so on the basis of the test ofof the workmen concerned for the jobs to be offered to them. The permission thus will have to be granted for retrenchment of 12 of the workmen concerned, the discretion for absorption of 7 persons being left with the Management, because their absorption depends upon their suitability for the jobs available for them in the appellants concern.

### 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: Perusal of the list of such employees filed as Annexure V of the reply by the respondent/Union before the State Government, would show that some of them are only employed upon the work relating to photo composing machines. The above list of employees is filed in answer to the information supplied by the appellant upon Item No. 16 of the prescribed proforma to the State Government in seeking permission for retrenchment.52.The above referred reply of the respondent/Union shows that, according to it, Tarun Bharat Printers and Processors Ltd., is interconnected company of the appellant. It further shows that there were originally 35 employees working in the said company as hand compositors, out of whom during the period from 1986 to 1990 i.e. after installation of photo composing machines, 21 employees were absorbed by the appellant leaving these 19 employees concerned who were sought to be and are retrenched. The submission thus is that these 19 employees of the appellant could have been offered the above jobs upon which the employees of Tarun Bharat Printers and Processors Ltd., were transferred.53.As regards these jobs and in particular regarding the jobs in relation to the photo composing machines, the appellant has pointed out in the return filed in the instant writ petition preferred by the respondent/Union that these photo composing machines are highly sophisticated and expensive requiring thorough and extensive training, and it is only after inviting application to give opportunities to all its employees including its compositors for giving the necessary training that the appointments were made in the jobs relating to photo composing machines. However, according to the appellant, none of these hand compositors responded to the said notice. It cannot be disputed that if the job is a skilled job no absorption as of right can be claimed in the said job without obtaining necessary training for the said job.54.The respondent/Union has, however, denied the notice having been displayed upon them by notice board by the appellant about training being given for the jobs in question. The learned Counsel for the appellant has in this regard brought to our notice the copy of the said notice annexed as Annexure R-1 of the return filed by it and the endorsement upon the said notice which would show that the said notice was pasted upon the notice board of the appellants Press. The conduct of the appellant in this case does not show that they were bent upon retrenching the workmen concerned at any cost because even earlier when the Mono and Lino Composing Machines were installed, no retrenchment was effected although, according to it, it was found at that time that the hand compositors with their meagre education and moderate background were not in a position to cope up with the technical work of these machines. Moreover, when the said photo composing machines were introduced because of which, according to the respondent/Union, there was likelihood of retrenchment of the hand-compositors concerned, it is difficult to believe that they would not enquire about what would happen to them in case the work of composing was done upon the said machines. In fact it would appear that since they continued to get hand composing work of "Yugdharm", they did not show any interest in doing the work upon the photo composing machines. In these circumstances, we cannot accept the submission on behalf of the respondent/Union that the notice about training for the jobs in question was not displayed upon the notice board.55.Be that as it may, the fact remains that the work upon these machines was highly technical and a skilled one and the machines could not be operated without any proper training to the hand compositors if the jobs upon such machines were to be offered to them. The said jobs could not therefore be claimed by these workers without any training. It is not shown to us that if the workers from Tarun Bharat Printers and Processors Ltd. were transferred upon these jobs, they did not possess any knowledge about the same or had not undergone any training for the same. Moreover, the aforesaid list of the said employees incorporated in Annexure V of the reply of the respondent/Union does not show actually as to at what time these employees from Tarun Bharat Printers and Processors Ltd. were transferred to the appellant because the question of retrenchment of the hand compositors concerned had actually arisen in June, 1991.55-A.As regards the other jobs except the appointment as peon, it does not appear by merely reading the said list (Annexure V) that the jobs shown therein could be done by these hand compositors, such as the work of Accountant, Cameraman, Machineman etc. Even as regards the question of appointment as peon, it is not stated when the person concerned was appointed as peon. The above list (Annexure V) is thus of no assistance to assess what job was available for absorption of the hand compositors concerned at that time when they were sought to be retrenched after the composing work of "Yugdharm" stopped coming to the appellants Press and when the application was made on 7-5-1991 for their retrenchment because of the aforesaid reason.56.It is not thus possible for us to accept the contention raised on behalf of the respondent/Union that the Secretary has not applied his mind to these factors.57.It is, however, clear as hereinbefore referred to from the talks of settlement between the management and the respondent/Union that the Management has offered that it is possible for them as on today to absorb 7 of these workmen concerned. According to the management, it would do so on the basis of the test of seniority-cum-suitability of the workmen concerned for the jobs to be offered to them. The permission thus will have to be granted for retrenchment of 12 of the workmen concerned, the discretion for absorption of 7 persons being left with the Management, because their absorption depends upon their suitability for the jobs available for them in the appellants concern. ### Response: 1

Ahmedabad Urban Development Authority Vs. Sharad Kumar Jayantikumar Pasawalla & Ors

or development fee even though such fee was essential for the development activities and has been imposed with reference to development effected. Mr. Goswami has very strongly relied on the decision of this Court in the case of the District Council of the Jowai Autonomous District, Jowai v. Dwet Singh Rymbai 1986 (4) SCC(Tax) 768 : 1986 AIR(SC) 1930). In considering the validity of the notification issued by the District Council of District, Jowai under United Khasi and Jaintia Hills Autonomous District (Management and Control of Forests) Act, 1959, it has been held by this Court that in the real sense what is sought to be required under the Act is not royalty since the forest does not belong to the District Council. The amount claimed by way of royalty under the notification is in reality compulsory exaction of money by public authority for public purpose enforceable by law and is not a payment for service rendered. The Court has held that there is no specific reference to the power to levy any fee in respect of any matter mentioned in paragraph 3 in the Sixth Schedule to the Constitution similar to the corresponding provision in Entries of List II of Seventh Schedule. Considering the facts of the case, it has been held that the power to levy fees in respect of any of the matters mentioned in paragraph 3 should be necessarily implied but such fee should not be disproportionately very high, is a tax in disguise. This Court has indicated that the said United Khasi and Jaintia Hills Autonomous District (Management and Control of Forests) Act, 1959, was enacted for the purpose of making provisions regarding the management and the control of forests which are not reserved forests in the area within the jurisdiction of District Council in the exercise of the powers conferred by Entry 3(1)(b) of the Sixth Schedule to the Constitution. It has been held that even if there is no express provision to levy fees, the District Council under paragraph 3 can levy fees. Mr. Goswami has contended that it will not be correct to contend that in no case imposition of fee can be made unless there is specific provision for such imposition. Such power of imposition may be implied if the provisions of the Act are considered in the proper perspective and if such imposition becomes essential for the activities for which the statutory bodies are created. In this connection, Mr. Goswami has referred to another decision of this Court made in the case of Khargram Panchayat Samiti v. State of W. B. ( 1987 (3) SCC 82 ) It has been held by this Court that in a statute conferment of general statutory power also carries with it incidental and consequential powers. Relying on the said decision, Mr. Goswami has contended that as the development has been effected by the Development Authority and there was necessity for augmenting the revenue for such development work and as Section 91 has recognised a fund to be created otherwise than by way of grants, loans or advances and as imposition of such fee is incidental and/or ancillary to carrying on the purposes for which the Development Authority has been constituted under the Town Planning Act, it should be held that such power of imposition of fee is implied. He has, therefore, contended that the High Court of Gujarat was not justified in holding that such imposition of fee by framing impugned regulations was wholly unauthorised and as such illegal and void. 7. After giving our anxious consideration to the contentions raised by Mr. Goswami, it appears to us that in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. In our view, such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power. The facts and circumstances in the case of District Council of Jowai are entirely different. The exercise of powers by the Autonomous Jaintia Hills Districts are controlled by the constitutional provisions and in the special facts of the case, this Court has indicated that the realisation of just fee for a specific purpose by the autonomous District was justified and such power was implied. The said decision cannot be made applicable in the facts of this case or the same should not be held to have laid down any legal proposition that in matters of imposition of tax or fees, the question of necessary intendment may be looked into when there is no express provision for imposition of fee or tax. The other decision in Khargram Panchayat Samiti case ( 1987 (3) SCC 82 ) also deals with the exercise of incidental and consequential power in the field of the administrative law and the same does not deal with the power of imposing tax and fee. 8. The High Court has referred to the decisions of this Court in Hingir case 1961 AIR(SC) 459 : 1961 (2) SCR 537 ) and Jagannath Ramanuj case 1954 AIR(SC) 400 : 1954 SCR 1046 ) and Delhi Municipal Corporation case ( 1983 (3) SCC 229 : 1983 SCC(Tax) 154 : 1983 AIR(SC) 617). It has been consistently held by this Court that whenever there is compulsory exaction of any money, there should be specific provision for the same and there is no room for intendment. Nothing is to be read and nothing is to be implied and one should look fairly to the language used. We are, therefore, unable to accept the contention of Mr. Goswami.

0[ds]7. After giving our anxious consideration to the contentions raised by Mr. Goswami, it appears to us that in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. In our view, such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power. The facts and circumstances in the case of District Council of Jowai are entirely different. The exercise of powers by the Autonomous Jaintia Hills Districts are controlled by the constitutional provisions and in the special facts of the case, this Court has indicated that the realisation of just fee for a specific purpose by the autonomous District was justified and such power was implied. The said decision cannot be made applicable in the facts of this case or the same should not be held to have laid down any legal proposition that in matters of imposition of tax or fees, the question of necessary intendment may be looked into when there is no express provision for imposition of fee or tax. The other decision in Khargram Panchayat Samiti case ( 1987 (3) SCC 82 ) also deals with the exercise of incidental and consequential power in the field of the administrative law and the same does not deal with the power of imposing tax andThe High Court has referred to the decisions of this Court in Hingir case 1961 AIR(SC) 459 : 1961 (2) SCR 537 ) and Jagannath Ramanuj case 1954 AIR(SC) 400 : 1954 SCR 1046 ) and Delhi Municipal Corporation case ( 1983 (3) SCC 229 : 1983 SCC(Tax) 154 : 1983 AIR(SC) 617). It has been consistently held by this Court that whenever there is compulsory exaction of any money, there should be specific provision for the same and there is no room for intendment. Nothing is to be read and nothing is to be implied and one should look fairly to the language used. We are, therefore, unable to accept the contention of Mr. Goswami.

### 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: or development fee even though such fee was essential for the development activities and has been imposed with reference to development effected. Mr. Goswami has very strongly relied on the decision of this Court in the case of the District Council of the Jowai Autonomous District, Jowai v. Dwet Singh Rymbai 1986 (4) SCC(Tax) 768 : 1986 AIR(SC) 1930). In considering the validity of the notification issued by the District Council of District, Jowai under United Khasi and Jaintia Hills Autonomous District (Management and Control of Forests) Act, 1959, it has been held by this Court that in the real sense what is sought to be required under the Act is not royalty since the forest does not belong to the District Council. The amount claimed by way of royalty under the notification is in reality compulsory exaction of money by public authority for public purpose enforceable by law and is not a payment for service rendered. The Court has held that there is no specific reference to the power to levy any fee in respect of any matter mentioned in paragraph 3 in the Sixth Schedule to the Constitution similar to the corresponding provision in Entries of List II of Seventh Schedule. Considering the facts of the case, it has been held that the power to levy fees in respect of any of the matters mentioned in paragraph 3 should be necessarily implied but such fee should not be disproportionately very high, is a tax in disguise. This Court has indicated that the said United Khasi and Jaintia Hills Autonomous District (Management and Control of Forests) Act, 1959, was enacted for the purpose of making provisions regarding the management and the control of forests which are not reserved forests in the area within the jurisdiction of District Council in the exercise of the powers conferred by Entry 3(1)(b) of the Sixth Schedule to the Constitution. It has been held that even if there is no express provision to levy fees, the District Council under paragraph 3 can levy fees. Mr. Goswami has contended that it will not be correct to contend that in no case imposition of fee can be made unless there is specific provision for such imposition. Such power of imposition may be implied if the provisions of the Act are considered in the proper perspective and if such imposition becomes essential for the activities for which the statutory bodies are created. In this connection, Mr. Goswami has referred to another decision of this Court made in the case of Khargram Panchayat Samiti v. State of W. B. ( 1987 (3) SCC 82 ) It has been held by this Court that in a statute conferment of general statutory power also carries with it incidental and consequential powers. Relying on the said decision, Mr. Goswami has contended that as the development has been effected by the Development Authority and there was necessity for augmenting the revenue for such development work and as Section 91 has recognised a fund to be created otherwise than by way of grants, loans or advances and as imposition of such fee is incidental and/or ancillary to carrying on the purposes for which the Development Authority has been constituted under the Town Planning Act, it should be held that such power of imposition of fee is implied. He has, therefore, contended that the High Court of Gujarat was not justified in holding that such imposition of fee by framing impugned regulations was wholly unauthorised and as such illegal and void. 7. After giving our anxious consideration to the contentions raised by Mr. Goswami, it appears to us that in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. In our view, such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power. The facts and circumstances in the case of District Council of Jowai are entirely different. The exercise of powers by the Autonomous Jaintia Hills Districts are controlled by the constitutional provisions and in the special facts of the case, this Court has indicated that the realisation of just fee for a specific purpose by the autonomous District was justified and such power was implied. The said decision cannot be made applicable in the facts of this case or the same should not be held to have laid down any legal proposition that in matters of imposition of tax or fees, the question of necessary intendment may be looked into when there is no express provision for imposition of fee or tax. The other decision in Khargram Panchayat Samiti case ( 1987 (3) SCC 82 ) also deals with the exercise of incidental and consequential power in the field of the administrative law and the same does not deal with the power of imposing tax and fee. 8. The High Court has referred to the decisions of this Court in Hingir case 1961 AIR(SC) 459 : 1961 (2) SCR 537 ) and Jagannath Ramanuj case 1954 AIR(SC) 400 : 1954 SCR 1046 ) and Delhi Municipal Corporation case ( 1983 (3) SCC 229 : 1983 SCC(Tax) 154 : 1983 AIR(SC) 617). It has been consistently held by this Court that whenever there is compulsory exaction of any money, there should be specific provision for the same and there is no room for intendment. Nothing is to be read and nothing is to be implied and one should look fairly to the language used. We are, therefore, unable to accept the contention of Mr. Goswami. ### Response: 0

The J. K. Cotton Spinning & Weaving Mills Co., Ltd Vs. The State Of Uttar Pradesh & Ors

there is clearly this disharmony as pointed out above between two provisions, viz., Cl. 5(a) and C. 23; and undoubtedly we have to apply the rule of harmonious construction. In applying the rule, however, we have to remember that to harmonise is not to destroy.In the interpretation of status the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of rule making authority also.On the construction suggested by the learned Attorney-General it is obvious that by merely making an application under Cl. 5(a) on the allegation that a dispute has arisen about the proposed action to dismiss workmen the employer can in every case escape the requirements of cl. 23 and if for one reason or other every employer when proposing a dismissal prefers to proceed under cl. 5(a) instead of making an application under C. 23 Cl. 23 will be a dead letter. A construction like this which defeats the intention of the rule making authority in Cl. 23 must, if possible, be avoided. 8. It is hardly necessary to mention that this rule in Cl. 23 was made with a definite purpose. The provision here is very similar to S. 33 of the Industrial Disputes Act before its amendment, though there are some differences. It is easy to see however that the rule making authority in making this rule was anxious to prevent as far as possible the recrudescense of fresh disputes between employers and workmen when some dispute was already pending and that purpose will be directly defeated if a fresh dispute is allowed to be raised under Cl. 5(a) in the very cases where Cl. 23 in terms applies. 9. There will be complete harmony however if we hold instead that Cl. 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of Cl. 23. We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. Solly, (1859-53 ER 1032) quoted in Craies on Statute Law at p. 206, 6th Edition) Romilly, M. R., mentioned the rule thus :-"The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply." The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned : De Winton v. Brecon, 1858 28 LJ Ch 598, Churchill v. Crease, (1828) 5 Bing 177, United States v. Chase, (1889) 135 US 255, and Carroll v. Greenwich Ins. Co., (1905) 199 U. S. 401. 10. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the specific provision, we must hold that Cl. 5(a) has no application in a case where the special provisions of Cl. 23 are applicable. 11. As in the present case an inquiry was in fact pending before a Conciliation Officer, Cl. 23 applied in respect of any discharge or dismissal of a workman and the employer could not take advantage of Cl. 5(a) of the Government Order and such an application could not in law be entertained by the Board. 12. In view of this conclusion it is unnecessary for us to consider the other question that was raised, viz., whether an industrial dispute within the meaning of Cl. 5(a) come into existence as soon as an employer decides on the dismissal of some of its workmen and proposes to give effect to such a decision. 13. On the above conclusions we hold that the Labour Appellate Tribunal of India rightly held that the application under Cl. 5(a) filed on June 13, 1950, was not maintainable and rightly set aside the awards of the Conciliation Board and the Industrial Court. The appeal against the order of the Labour Appellate Tribunal of India is therefore dismissed. 14. As we have already pointed out above the order made by the Appellate Bench of the High Court in the writ petition was based on its acceptance of the preliminary objection that the records of the Labour Appellate Tribunal being in Calcutta could not be reached by any writ of the Allahabad High Court. In view of our conclusion that the application under Cl. 5(a) was not maintainable, the appellant was on merits not entitled to any writ and on that ground the appeal against the High Courts order must also be dismissed. 15. It is unnecessary to consider the question whether the High Court was right in its view as regards the preliminary objection and we express no opinion on the same.

0[ds]7. To remove this incongruity, says the learned Attorney-General, apply the rule of harmonious construction and hold that Cl. 23 of the Order has no application when an order is made on an application under C. 5(a). On the assumption that under Cl. 5(a) an employer can raise a dispute sought to be created by his own proposed order of dismissal of workmen there is clearly this disharmony as pointed out above between two provisions, viz., Cl. 5(a) and C. 23; and undoubtedly we have to apply the rule of harmonious construction. In applying the rule, however, we have to remember that to harmonise is not to destroy.In the interpretation of status the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of rule making authority also.On the construction suggested by the learned Attorney-General it is obvious that by merely making an application under Cl. 5(a) on the allegation that a dispute has arisen about the proposed action to dismiss workmen the employer can in every case escape the requirements of cl. 23 and if for one reason or other every employer when proposing a dismissal prefers to proceed under cl. 5(a) instead of making an application under C. 23 Cl. 23 will be a dead letter. A construction like this which defeats the intention of the rule making authority in Cl. 23 must, if possible, be avoided8. It is hardly necessary to mention that this rule in Cl. 23 was made with a definite purpose. The provision here is very similar to S. 33 of the Industrial Disputes Act before its amendment, though there are some differences. It is easy to see however that the rule making authority in making this rule was anxious to prevent as far as possible the recrudescense of fresh disputes between employers and workmen when some dispute was already pending and that purpose will be directly defeated if a fresh dispute is allowed to be raised under Cl. 5(a) in the very cases where Cl. 23 in terms applies9. There will be complete harmony however if we hold instead that Cl. 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of Cl. 23. We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. InPretty v. Solly, (1859-53 ER 1032)quoted in Craies on Statute Law at p. 206, 6th Edition) Romilly, M. R., mentioned the rule thus :-"The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply."The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned :De Winton v. Brecon, 1858 28 LJ Chl v. Crease, (1828) 5 BingUnited States v. Chase, (1889) 135 US, andCarroll v. Greenwich Ins. Co., (1905) 199 U. S. 40110. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the specific provision, we must hold that Cl. 5(a) has no application in a case where the special provisions of Cl. 23 are applicable11. As in the present case an inquiry was in fact pending before a Conciliation Officer, Cl. 23 applied in respect of any discharge or dismissal of a workman and the employer could not take advantage of Cl. 5(a) of the Government Order and such an application could not in law be entertained by the Board12. In view of this conclusion it is unnecessary for us to consider the other question that was raised, viz., whether an industrial dispute within the meaning of Cl. 5(a) come into existence as soon as an employer decides on the dismissal of some of its workmen and proposes to give effect to such a decision13. On the above conclusions we hold that the Labour Appellate Tribunal of India rightly held that the application under Cl. 5(a) filed on June 13, 1950, was not maintainable and rightly set aside the awards of the Conciliation Board and the Industrial Court. The appeal against the order of the Labour Appellate Tribunal of India is therefore dismissed14. As we have already pointed out above the order made by the Appellate Bench of the High Court in the writ petition was based on its acceptance of the preliminary objection that the records of the Labour Appellate Tribunal being in Calcutta could not be reached by any writ of the Allahabad High Court. In view of our conclusion that the application under Cl. 5(a) was not maintainable, the appellant was on merits not entitled to any writ and on that ground the appeal against the High Courts order must also be dismissed15. It is unnecessary to consider the question whether the High Court was right in its view as regards the preliminary objection and we express no opinion on the same.. A consideration of the scheme of this legislation makes it clear that while two modes are provided in clauses 5(a) and 5(b) for the commencement of proceedings for settlement of industrial disputes generally, a special provision is made in clause 23 that if an enquiry is proceeding before a Regional Conciliation Board or the Provincial Conciliation Board or an appeal is pending before the Industrial court, no workman shall be discharged except with the written permission of the Regional Conciliation officer or the Additional Conciliation Officer concerned. The consequence in cl. 26 is that if any workman is discharged or dismissed during the continuance of such enquiry or appeal without such permission the employer shall be liable to fine or to imprisonment not exceeding three years to both. The heavy punishment provided for contravention of the order shows the importance attached by the legislating authority to the directions given by the orderOne view is that it is only the party aggrieved by the proposed dismissal, in other words, the workmen, who by objecting to the same can raise the dispute and that the employer cannot by his own proposal to dismiss the workmen be heard to say that a dispute had come into existence even before the workmen had a chance to object to the dismissal. The contrary view which has found favour with Mr. Justice Chaturvedi of the High Court is that even at the stage the employer proposes to dismiss his workmen it is a case of contemplated non-employment which will come within the expression "industrial dispute"There is no dispute that on June 13, 1950, when the application under Cl. 5(a) was made an inquiry was in fact pending before a Conciliation Officer. It appears that on July 9, 1949 the Governor of the United Provinces made an order directing the Labour Commissioner of the United Provinces or a Conciliation Officer nominated by him in this behalf to re-start the adjudication proceeding between the J. K. Cotton Spinning and Weaving Mills Co. and S. N. Shukla, a dismissed employee of the concern. The Adjudicator was directed to conclude the adjudication and submit his award by August 15, 1949. The time was extended by subsequent orders - first to November 15,, andthen to March 31, 1950, again to June 30,1950,andthereafter to September 30, 1950. It is true that at the time these orders extending time for submission of award were made the Governor had no authority to make these ordersandthese orders were invalid. They were validated by the provisions of S. 3 of the U. P. Act XXIII of 1953. In view of this position of the law the learned Attorney-General has not disputed that on June 13,1950,when the application under Cl. 5 (a) was made an enquiry was actually pending before a Conciliation Officer. Consequently, before the management could make any order discharging or dismissing any of its workmen it was required by Cl. 23 to obtain permission for the same from the Regional Conciliation Officer. The question is whether in spite of this provision in Cl. 23 the employer could makeandthe Board entertain an application under Cl. 5(a) on this question of proposed dismissalSo far as the workmen are concerned they will not be able to dispute the correctness of the order except in the mode provided in the Government order itself. What, however, is the position of the employer if in pursuance of the order made on his application under S. 5(a) he discharges or dismisses his workmen ? By doing so he will have clearly contravened the provisions of Cl.will become liable to the serve penalty provided in Cl. 26 - a penalty which might even extend to imprisonment up to three years

### 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: there is clearly this disharmony as pointed out above between two provisions, viz., Cl. 5(a) and C. 23; and undoubtedly we have to apply the rule of harmonious construction. In applying the rule, however, we have to remember that to harmonise is not to destroy.In the interpretation of status the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of rule making authority also.On the construction suggested by the learned Attorney-General it is obvious that by merely making an application under Cl. 5(a) on the allegation that a dispute has arisen about the proposed action to dismiss workmen the employer can in every case escape the requirements of cl. 23 and if for one reason or other every employer when proposing a dismissal prefers to proceed under cl. 5(a) instead of making an application under C. 23 Cl. 23 will be a dead letter. A construction like this which defeats the intention of the rule making authority in Cl. 23 must, if possible, be avoided. 8. It is hardly necessary to mention that this rule in Cl. 23 was made with a definite purpose. The provision here is very similar to S. 33 of the Industrial Disputes Act before its amendment, though there are some differences. It is easy to see however that the rule making authority in making this rule was anxious to prevent as far as possible the recrudescense of fresh disputes between employers and workmen when some dispute was already pending and that purpose will be directly defeated if a fresh dispute is allowed to be raised under Cl. 5(a) in the very cases where Cl. 23 in terms applies. 9. There will be complete harmony however if we hold instead that Cl. 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of Cl. 23. We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. Solly, (1859-53 ER 1032) quoted in Craies on Statute Law at p. 206, 6th Edition) Romilly, M. R., mentioned the rule thus :-"The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply." The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned : De Winton v. Brecon, 1858 28 LJ Ch 598, Churchill v. Crease, (1828) 5 Bing 177, United States v. Chase, (1889) 135 US 255, and Carroll v. Greenwich Ins. Co., (1905) 199 U. S. 401. 10. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the specific provision, we must hold that Cl. 5(a) has no application in a case where the special provisions of Cl. 23 are applicable. 11. As in the present case an inquiry was in fact pending before a Conciliation Officer, Cl. 23 applied in respect of any discharge or dismissal of a workman and the employer could not take advantage of Cl. 5(a) of the Government Order and such an application could not in law be entertained by the Board. 12. In view of this conclusion it is unnecessary for us to consider the other question that was raised, viz., whether an industrial dispute within the meaning of Cl. 5(a) come into existence as soon as an employer decides on the dismissal of some of its workmen and proposes to give effect to such a decision. 13. On the above conclusions we hold that the Labour Appellate Tribunal of India rightly held that the application under Cl. 5(a) filed on June 13, 1950, was not maintainable and rightly set aside the awards of the Conciliation Board and the Industrial Court. The appeal against the order of the Labour Appellate Tribunal of India is therefore dismissed. 14. As we have already pointed out above the order made by the Appellate Bench of the High Court in the writ petition was based on its acceptance of the preliminary objection that the records of the Labour Appellate Tribunal being in Calcutta could not be reached by any writ of the Allahabad High Court. In view of our conclusion that the application under Cl. 5(a) was not maintainable, the appellant was on merits not entitled to any writ and on that ground the appeal against the High Courts order must also be dismissed. 15. It is unnecessary to consider the question whether the High Court was right in its view as regards the preliminary objection and we express no opinion on the same. ### Response: 0

THE JOINT LABOUR COMMISSIONER AND REGISTERING OFFICER AND ANR Vs. KESAR LAL

and facilities as may be prescribed. (2) The Board may grant loan or subsidy to a local authority or an employer in aid of any scheme approved by the State Government for the purpose connected with the welfare of building workers in any establishment. (3) The Board may pay annually grants-in-aid to a local authority or to an employer who provides to the satisfaction of the Board welfare measures and facilities of the standard specified by the Board for the benefit of the building workers and the members of their family, so, however that the amount payable as grants-in-aid to any local authority or employer shall not exceed— (a) the amount spent in providing welfare measures and facilities as determined by the State Government or any person specified by it in this behalf, or (b) such amount as may be prescribed. whichever is less: Provided that no grant-in-aid shall be payable in respect of any such welfare measures and facilities where the amount spent thereon determined as aforesaid is less than the amount prescribed in this behalf. Under Section 24, the statute has provided for the constitution of a welfare fund into which are credited (i) grants and loans made to the Board by the Central government; (ii) contributions made by the beneficiaries; and (iii) sums received by the Board from other sources as decided by the Central government. The fund is applied, under sub-section (2) of Section 24 to meet the expenses of the Board in the discharge of its statutory functions; towards payment of salaries, allowances and remuneration and for meeting the expenses on objects and for purposes authorized by the Act. The Rules of 2009 have been framed in terms of the provisions governing the rule making power. Rule 43 provides for the constitution of the welfare fund. Rule 44 provides for the registration of building workers as beneficiaries. Rule 45 provides for contributions to the fund: 45. Contribution to the Fund.-(1) A beneficiary of the fund shall contribute to the fund at such rate per mensem as may be notified by the State Government under section 16 of the Act. This contribution shall be remitted in advance once in three months in any of the banks specified by the Board in the district in which the member resides. (2) If a beneficiary commits default in the payment of contribution continuously for a period of one year, he shall cease to be beneficiary of the Fund. However, with the permission of the Secretary or an officer authorized by him in this behalf the membership may be resumed on repayment of arrears of contribution with a fine of Rs 2 per month subject to the condition that such resumption shall not be allowed more than twice. Rule 52 provides for the expenditure from the fund. Under Rule 58, the Board is empowered to notify schemes regarding benefits. The Board has been entrusted with specific functions which have been defined in Section 22. These functions squarely fall within the definition of the expression service within the meaning of Section 2(1)(o) of the Consumer Protection Act 1986. The expression service has been defined in the widest possible terms to mean service of any description which is made available to potential users. The exception in Section 2(1)(o) is a service which is rendered free of charge. The workers who are registered under the provisions of the Act of 1996 are beneficiaries of the schemes made by the Board. Upon registration, every worker is required to make a contribution to the fund at such rate per month as may be prescribed by the State government. The fund into which the contributions by persons who are registered under the Act are remitted, comprises among other sources, the contributions made by the beneficiaries. The fund is applied inter alia for meeting the expenses incurred to fulfill the objects and purposes authorized by the legislation. In view of the statutory scheme, the services which are rendered by the Board to the beneficiaries are not services which are provided free of charge so as to constitute an exclusion from the statutory definition contained in Section 2(1)(o) and Section 2(d)(ii) of the Consumer Protection Act 1986. The true test is not whether the amount which has been contributed by the beneficiary is adequate to defray the entire cost of the expenditure envisaged under the scheme. So long as the service which has been rendered is not rendered free of charge, any deficiency of service is amenable to the fora for redressal constituted under the Consumer Protection Act 1986. The Act does not require an enquiry into whether the cost of providing the service is entirely defrayed from the price which is paid for availing of the service. As we have seen from the definition contained in Section 2(1)(d), a consumer includes not only a person who has hired or availed of service but even a beneficiary of a service. The registered workers are clearly beneficiaries of the service provided by the Board in a statutory capacity. 14. As a matter of interpretation, the provisions contained in the Consumer Protection Act 1986 must be construed in a purposive manner. Parliament has provided a salutary remedy to consumers of both goods and services. Public authorities such as the appellants who have been constituted under an enactment of Parliament are entrusted with a solemn duty of providing welfare services to registered workers. The workers who are registered with the Board make contributions on the basis of which they are entitled to avail of the services provided in terms of the schemes notified by the Board. Public accountability is a significant consideration which underlies the provisions of the Consumer Protection Act 1986. The evolution of jurisprudence in relation to the enactment reflects the need to ensure a sense of public accountability by allowing consumers a redressal in the context of the discharge of non-sovereign functions which are not rendered free of charge. This test is duly met in the present case.

0[ds]11. The appellants have been entrusted with the solemn duty of enforcing and implementing the provisions of the welfare legislation which has been enacted by Parliament specifically to ameliorate the plight of construction workers. Construction workers belong to the unorganized sector of the economy. Many among them are women. Child labour is rampant. Their vulnerabilities have been attempted to be safeguarded by a law which unfortunately has not been implemented either in letter, or in spirit. Yet, we have in the present case, the spectacle of a statutory welfare board seeking to exempt itself from being held accountable to the remedies provided under the Consumer Protection Act 1986In view of the statutory scheme, the services which are rendered by the Board to the beneficiaries are not services which are provided free of charge so as to constitute an exclusion from the statutory definition contained in Section 2(1)(o) and Section 2(d)(ii) of the Consumer Protection Act 1986. The true test is not whether the amount which has been contributed by the beneficiary is adequate to defray the entire cost of the expenditure envisaged under the scheme. So long as the service which has been rendered is not rendered free of charge, any deficiency of service is amenable to the fora for redressal constituted under the Consumer Protection Act 1986. The Act does not require an enquiry into whether the cost of providing the service is entirely defrayed from the price which is paid for availing of the service. As we have seen from the definition contained in Section 2(1)(d), a consumer includes not only a person who has hired or availed of service but even a beneficiary of a service. The registered workers are clearly beneficiaries of the service provided by the Board in a statutory capacity14. As a matter of interpretation, the provisions contained in the Consumer Protection Act 1986 must be construed in a purposive manner. Parliament has provided a salutary remedy to consumers of both goods and services. Public authorities such as the appellants who have been constituted under an enactment of Parliament are entrusted with a solemn duty of providing welfare services to registered workers. The workers who are registered with the Board make contributions on the basis of which they are entitled to avail of the services provided in terms of the schemes notified by the Board. Public accountability is a significant consideration which underlies the provisions of the Consumer Protection Act 1986. The evolution of jurisprudence in relation to the enactment reflects the need to ensure a sense of public accountability by allowing consumers a redressal in the context of the discharge of non-sovereign functions which are not rendered free of charge. This test is duly met in the present case.

### 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: and facilities as may be prescribed. (2) The Board may grant loan or subsidy to a local authority or an employer in aid of any scheme approved by the State Government for the purpose connected with the welfare of building workers in any establishment. (3) The Board may pay annually grants-in-aid to a local authority or to an employer who provides to the satisfaction of the Board welfare measures and facilities of the standard specified by the Board for the benefit of the building workers and the members of their family, so, however that the amount payable as grants-in-aid to any local authority or employer shall not exceed— (a) the amount spent in providing welfare measures and facilities as determined by the State Government or any person specified by it in this behalf, or (b) such amount as may be prescribed. whichever is less: Provided that no grant-in-aid shall be payable in respect of any such welfare measures and facilities where the amount spent thereon determined as aforesaid is less than the amount prescribed in this behalf. Under Section 24, the statute has provided for the constitution of a welfare fund into which are credited (i) grants and loans made to the Board by the Central government; (ii) contributions made by the beneficiaries; and (iii) sums received by the Board from other sources as decided by the Central government. The fund is applied, under sub-section (2) of Section 24 to meet the expenses of the Board in the discharge of its statutory functions; towards payment of salaries, allowances and remuneration and for meeting the expenses on objects and for purposes authorized by the Act. The Rules of 2009 have been framed in terms of the provisions governing the rule making power. Rule 43 provides for the constitution of the welfare fund. Rule 44 provides for the registration of building workers as beneficiaries. Rule 45 provides for contributions to the fund: 45. Contribution to the Fund.-(1) A beneficiary of the fund shall contribute to the fund at such rate per mensem as may be notified by the State Government under section 16 of the Act. This contribution shall be remitted in advance once in three months in any of the banks specified by the Board in the district in which the member resides. (2) If a beneficiary commits default in the payment of contribution continuously for a period of one year, he shall cease to be beneficiary of the Fund. However, with the permission of the Secretary or an officer authorized by him in this behalf the membership may be resumed on repayment of arrears of contribution with a fine of Rs 2 per month subject to the condition that such resumption shall not be allowed more than twice. Rule 52 provides for the expenditure from the fund. Under Rule 58, the Board is empowered to notify schemes regarding benefits. The Board has been entrusted with specific functions which have been defined in Section 22. These functions squarely fall within the definition of the expression service within the meaning of Section 2(1)(o) of the Consumer Protection Act 1986. The expression service has been defined in the widest possible terms to mean service of any description which is made available to potential users. The exception in Section 2(1)(o) is a service which is rendered free of charge. The workers who are registered under the provisions of the Act of 1996 are beneficiaries of the schemes made by the Board. Upon registration, every worker is required to make a contribution to the fund at such rate per month as may be prescribed by the State government. The fund into which the contributions by persons who are registered under the Act are remitted, comprises among other sources, the contributions made by the beneficiaries. The fund is applied inter alia for meeting the expenses incurred to fulfill the objects and purposes authorized by the legislation. In view of the statutory scheme, the services which are rendered by the Board to the beneficiaries are not services which are provided free of charge so as to constitute an exclusion from the statutory definition contained in Section 2(1)(o) and Section 2(d)(ii) of the Consumer Protection Act 1986. The true test is not whether the amount which has been contributed by the beneficiary is adequate to defray the entire cost of the expenditure envisaged under the scheme. So long as the service which has been rendered is not rendered free of charge, any deficiency of service is amenable to the fora for redressal constituted under the Consumer Protection Act 1986. The Act does not require an enquiry into whether the cost of providing the service is entirely defrayed from the price which is paid for availing of the service. As we have seen from the definition contained in Section 2(1)(d), a consumer includes not only a person who has hired or availed of service but even a beneficiary of a service. The registered workers are clearly beneficiaries of the service provided by the Board in a statutory capacity. 14. As a matter of interpretation, the provisions contained in the Consumer Protection Act 1986 must be construed in a purposive manner. Parliament has provided a salutary remedy to consumers of both goods and services. Public authorities such as the appellants who have been constituted under an enactment of Parliament are entrusted with a solemn duty of providing welfare services to registered workers. The workers who are registered with the Board make contributions on the basis of which they are entitled to avail of the services provided in terms of the schemes notified by the Board. Public accountability is a significant consideration which underlies the provisions of the Consumer Protection Act 1986. The evolution of jurisprudence in relation to the enactment reflects the need to ensure a sense of public accountability by allowing consumers a redressal in the context of the discharge of non-sovereign functions which are not rendered free of charge. This test is duly met in the present case. ### Response: 0

T. Velayudhan Achari & Another Vs. Union of India & Others

of its net owned funds." 38. If, therefore, this was the position, it cannot be contended that suddenly the companies like the appellants and the petitioners are called upon to reduce deposits. Even otherwise, the interests of the depositors is the prime concern 39. Coming to the last point, as to whether Section 58-B(5-A) is violative of Article 20(1) of the Constitution, we find, when a similar argument was raised against Section 58-A of the Companies Act, that was repelled by this Court in Delhi Cloth and General Mills Co. Ltd. v. Union of India thus "Mr. G. A. shah canvassed one more contention, After stating that Rule 3-A became operative from April 1, 1978, he specifically drew attention to the proviso to Rule 3-A(1) which required that with relation to the deposits maturing during the year ending on March 31, 1979, the sum required to be deposited or invested under sub-rule (1) of Rule 3-A shall be deposited or invested before September 30, 1978. It was then contended that this provision would necessitate depositing 10% of the deposits maturing during the year ending with March 31, 1979 which may have been accepted prior to the coming into force of Rue 3-A and to this extent the rule has been made retrospective and as there was no power conferred by Section 58-A to prescribe conditions subject to which deposits can be accepted retrospectively Rule 3-A is ultra vires Section 58-A. Unquestionably, Rule 3-A became operative from April 1, 1978. The obligation cast by Rule 3-A is to deposit 10% of the deposits maturing during the year in the manner prescribed in Rule 3. Some deposits would be maturing between April 1, 1978 and March 31, 1979. To provide for such marginal situation, a proviso is inserted. Does it to make the rule retroactive ? Of course, not In D. S. Nakara v. Union of India a Constitution Bench of this Court has, in this context observed as underA statute is not properly called a retroactive statute because a part of the requisites for its action is drawn from a time antecedent to its passing.Viewed from this angle, the provisions can be properly called prospective and not retroactive. Therefore, the contention does not commend to us." 40. In the light of this, we should hold that the ruling of the Madras High Court in Chennai Bottling Co. Pvt. Ltd. is incorrect 41. As to the plight of these depositors we need only to quote the case in Peerless General Finance and Investment Co Ltd. At paragraph 37 it is held : (SCC pp. 452-53) "We would also like to query what action the Reserve Bank of India and the Union of India are taking or proposing to take against the mushroom growth of finance and investment companies offering staggeringly high rates of interest to depositors leading us to suspect whether these companies are not speculative ventures floated to attract unwary and credulous investors and capture their savings. One has only to look at the mornings newspaper to be greeted by advertisements inviting deposits and offering interest at astronomic rates. On January 1, 1987 one of the national newspapers published from Hyderabad, where one of us happened to be spending the vacation, carried as many as ten advertisements with banner headlines, covering the whole of the last page, a quarter of the first page and conspicuous spaces in other pages offering fabulous rates of interest. At least two of the advertisers offered to double the deposit in 30 months, 2000 for 1000, 10, 000 for 5000, they said. Another advertiser offered interest ranging between 30 per cent to 38 per cent for periods ranging between six months to five years. Almost all the advertisers offered extra interest ranging between 3 per cent 6 per cent if deposits were made during the Christmas-Pongal season. Several of them offered gifts and prizes. If the Reserve Bank of India considers the Peerless Company with eight hundred crores invested in Government securities, fixed deposits with National Banks etc. unsafe for depositors, one wonders what they have to say about the mushroom non-banking companies which are accepting deposits, promising most unlikely returns and what action is proposed to be taken to protect the investors. It does not require much imagination to realise the adventurous and precarious character of these businesses. Urgent action appears to be called for to protect the public. While on the one hand these schemes encourage two vice affecting public economy, the desire to make quick and easy money and the habit of excessive and wasteful consumer spending, on the other hand of investors who generally belong to the gullible and less affluent classes have no security whatsoever, Action appears imperative." * And paragraph 42 also requires to be quoted : (SCC p. 454) "I share my brothers concern about the mushroom growth of financial companies all over the country, Such companies have proliferated. The victims of the Schemes, that are attractively put forward in public media, are mostly middle class and lower middle class people. Instances are legion where such needy people have been reduced penniless because of the fraud played by such financial vultures. It is necessary for the authorities to evolve fool-proof schemes to see that fraud is not allowed to be played upon persons who are not conversant with the practice of such financial enterprises who pose themselves as benefactors of people." * 42. We may also add that this has been reaffirmed in Peerless General Finance and Investment Co. Ltd. v. RBI 43. Therefore, we are in entire agreement with the Delhi High Court44. Since, as we have stated above, all the appellants and writ petitioners were praying for time to comply with these provisions, the matter was adjourned from time to time. Though some of them have complied with the requirements of law yet a few others have not done so. We make it clear that in spite of this indulgence, their failure to comply cannot be countenanced

0[ds]39. Coming to the last point, as to whether Section 58-B(5-A) is violative of Article 20(1) of the Constitution, we find, when a similar argument was raised against Section 58-A of the Companies Act, that was repelled by this Court in Delhi Cloth and General Mills Co. Ltd. v. Union of IndiaG. A. shah canvassed one more contention, After stating that Rule 3-A became operative from April 1, 1978, he specifically drew attention to the proviso to Rule 3-A(1) which required that with relation to the deposits maturing during the year ending on March 31, 1979, the sum required to be deposited or invested under sub-rule (1) of Rule 3-A shall be deposited or invested before September 30, 1978. It was then contended that this provision would necessitate depositing 10% of the deposits maturing during the year ending with March 31, 1979 which may have been accepted prior to the coming into force of Rue 3-A and to this extent the rule has been made retrospective and as there was no power conferred by Section 58-A to prescribe conditions subject to which deposits can be accepted retrospectively Rule 3-A is ultra vires Section 58-A. Unquestionably, Rule 3-A became operative from April 1, 1978. The obligation cast by Rule 3-A is to deposit 10% of the deposits maturing during the year in the manner prescribed in Rule 3. Some deposits would be maturing between April 1, 1978 and March 31, 1979. To provide for such marginal situation, a proviso is inserted. Does it to make the rule retroactive ? Of course, not In D. S. Nakara v. Union of India a Constitution Bench of this Court has, in this context observed as underA statute is not properly called a retroactive statute because a part of the requisites for its action is drawn from a time antecedent to its passing.Viewed from this angle, the provisions can be properly called prospective and not retroactive. Therefore, the contention does not commend to us.In the light of this, we should hold that the ruling of the Madras High Court in Chennai Bottling Co. Pvt. Ltd. isTherefore, we are in entire agreement with the Delhi High Court44. Since, as we have stated above, all the appellants and writ petitioners were praying for time to comply with these provisions, the matter was adjourned from time to time. Though some of them have complied with the requirements of law yet a few others have not done so. We make it clear that in spite of this indulgence, their failure to comply cannot be countenanced

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: of its net owned funds." 38. If, therefore, this was the position, it cannot be contended that suddenly the companies like the appellants and the petitioners are called upon to reduce deposits. Even otherwise, the interests of the depositors is the prime concern 39. Coming to the last point, as to whether Section 58-B(5-A) is violative of Article 20(1) of the Constitution, we find, when a similar argument was raised against Section 58-A of the Companies Act, that was repelled by this Court in Delhi Cloth and General Mills Co. Ltd. v. Union of India thus "Mr. G. A. shah canvassed one more contention, After stating that Rule 3-A became operative from April 1, 1978, he specifically drew attention to the proviso to Rule 3-A(1) which required that with relation to the deposits maturing during the year ending on March 31, 1979, the sum required to be deposited or invested under sub-rule (1) of Rule 3-A shall be deposited or invested before September 30, 1978. It was then contended that this provision would necessitate depositing 10% of the deposits maturing during the year ending with March 31, 1979 which may have been accepted prior to the coming into force of Rue 3-A and to this extent the rule has been made retrospective and as there was no power conferred by Section 58-A to prescribe conditions subject to which deposits can be accepted retrospectively Rule 3-A is ultra vires Section 58-A. Unquestionably, Rule 3-A became operative from April 1, 1978. The obligation cast by Rule 3-A is to deposit 10% of the deposits maturing during the year in the manner prescribed in Rule 3. Some deposits would be maturing between April 1, 1978 and March 31, 1979. To provide for such marginal situation, a proviso is inserted. Does it to make the rule retroactive ? Of course, not In D. S. Nakara v. Union of India a Constitution Bench of this Court has, in this context observed as underA statute is not properly called a retroactive statute because a part of the requisites for its action is drawn from a time antecedent to its passing.Viewed from this angle, the provisions can be properly called prospective and not retroactive. Therefore, the contention does not commend to us." 40. In the light of this, we should hold that the ruling of the Madras High Court in Chennai Bottling Co. Pvt. Ltd. is incorrect 41. As to the plight of these depositors we need only to quote the case in Peerless General Finance and Investment Co Ltd. At paragraph 37 it is held : (SCC pp. 452-53) "We would also like to query what action the Reserve Bank of India and the Union of India are taking or proposing to take against the mushroom growth of finance and investment companies offering staggeringly high rates of interest to depositors leading us to suspect whether these companies are not speculative ventures floated to attract unwary and credulous investors and capture their savings. One has only to look at the mornings newspaper to be greeted by advertisements inviting deposits and offering interest at astronomic rates. On January 1, 1987 one of the national newspapers published from Hyderabad, where one of us happened to be spending the vacation, carried as many as ten advertisements with banner headlines, covering the whole of the last page, a quarter of the first page and conspicuous spaces in other pages offering fabulous rates of interest. At least two of the advertisers offered to double the deposit in 30 months, 2000 for 1000, 10, 000 for 5000, they said. Another advertiser offered interest ranging between 30 per cent to 38 per cent for periods ranging between six months to five years. Almost all the advertisers offered extra interest ranging between 3 per cent 6 per cent if deposits were made during the Christmas-Pongal season. Several of them offered gifts and prizes. If the Reserve Bank of India considers the Peerless Company with eight hundred crores invested in Government securities, fixed deposits with National Banks etc. unsafe for depositors, one wonders what they have to say about the mushroom non-banking companies which are accepting deposits, promising most unlikely returns and what action is proposed to be taken to protect the investors. It does not require much imagination to realise the adventurous and precarious character of these businesses. Urgent action appears to be called for to protect the public. While on the one hand these schemes encourage two vice affecting public economy, the desire to make quick and easy money and the habit of excessive and wasteful consumer spending, on the other hand of investors who generally belong to the gullible and less affluent classes have no security whatsoever, Action appears imperative." * And paragraph 42 also requires to be quoted : (SCC p. 454) "I share my brothers concern about the mushroom growth of financial companies all over the country, Such companies have proliferated. The victims of the Schemes, that are attractively put forward in public media, are mostly middle class and lower middle class people. Instances are legion where such needy people have been reduced penniless because of the fraud played by such financial vultures. It is necessary for the authorities to evolve fool-proof schemes to see that fraud is not allowed to be played upon persons who are not conversant with the practice of such financial enterprises who pose themselves as benefactors of people." * 42. We may also add that this has been reaffirmed in Peerless General Finance and Investment Co. Ltd. v. RBI 43. Therefore, we are in entire agreement with the Delhi High Court44. Since, as we have stated above, all the appellants and writ petitioners were praying for time to comply with these provisions, the matter was adjourned from time to time. Though some of them have complied with the requirements of law yet a few others have not done so. We make it clear that in spite of this indulgence, their failure to comply cannot be countenanced ### Response: 0

ORISSA STATE FINANCIAL CORPORATION Vs. M/S VIGYAN CHEMICALS INDUSTRIES

1. The High Court hearing the Second Appeal out of which this appeal has arisen had framed the following substantial question of law for a decision: Whether the suit was barred by period of limitation under the provisions of Section 21 of the Limitation Act, in the light of the fact that the appellant shall made a party in the suit in the year 1994 and by that time, the suit was barred by the period of limitation. 2. The answer to the question being in the negative, the Orissa State Financial Corporation (hereinafter referred to as OSFC), which was impleaded as the 4th defendant in the suit has chosen to file this appeal. 3. We have heard the learned counsels for the parties. 4. The appellant - OSFC was impleaded as the 4th defendant in the suit on 6.12.1994. The said impleadment was made on the basis that the units of the defendant Nos. 1 and 2 in the suit for recovery were taken over by the appellant - OSFC under Section 29 of the State Financial Corporation Act, 1951. On 20th August, 2001 the suit was decreed for a sum of Rs. 84,170/- along with interest at the rate of 24% per annum with effect from 1st March, 1988 to 23rd September, 1992 and from 23rd September 1992 till date of payment compound interest at the rate of 2% per month. 5. In appeal, the appellant - OSFC (defendant No.4), inter alia, raised the question of limitation. An application under Section 21(1) of the Limitation Act, 1963 was filed by the plaintiff in the suit before the First Appellate Court seeking a specific order that the date of impleadment of the 4th defendant - OSFC should be ordered to be from the date of filing of the suit. The matter was remanded to the learned trial Court and the learned trial Court by order dated 5th November, 2005 allowed the said application under Section 21(1) of the Limitation Act, 1963 and ordered that the impleadment of the 4th defendant - OSFC (appellant herein) would be from the date of the filing of the suit i.e. 29th February, 1988. The said order of the learned trial Court dated 5th November, 2005 was not challenged and has attained finality. 6. Taking into account the aforesaid facts, the High Court by the order under challenge thought it proper to answer the question of law framed in the negative and to hold the suit against the defendant No.4 - OSFC (appellant herein) to be maintainable. 7. If the order dated 5th November, 2005 passed by the learned trial Court ordering that the impleadment of the defendant No.4 - OSFC would be effective from the date of filing of the suit, has gone unchallenged and has attained finality we do not see how we can find any fault with the order of the High Court passed in Second Appeal. The issue before the High Court in the Second Appeal being limited to the question of limitation, consideration of any other issue will not arise. We, therefore, cannot find any error in the impugned order so far as the maintainability of the suit against the 4th defendant - OSFC (appellant herein) is concerned.

0[ds]7. If the order dated 5th November, 2005 passed by the learned trial Court ordering that the impleadment of the defendant No.4 - OSFC would be effective from the date of filing of the suit, has gone unchallenged and has attained finality we do not see how we can find any fault with the order of the High Court passed in Second Appeal. The issue before the High Court in the Second Appeal being limited to the question of limitation, consideration of any other issue will not arise. We, therefore, cannot find any error in the impugned order so far as the maintainability of the suit against the 4th defendant - OSFC (appellant herein) is concerned.

### 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. The High Court hearing the Second Appeal out of which this appeal has arisen had framed the following substantial question of law for a decision: Whether the suit was barred by period of limitation under the provisions of Section 21 of the Limitation Act, in the light of the fact that the appellant shall made a party in the suit in the year 1994 and by that time, the suit was barred by the period of limitation. 2. The answer to the question being in the negative, the Orissa State Financial Corporation (hereinafter referred to as OSFC), which was impleaded as the 4th defendant in the suit has chosen to file this appeal. 3. We have heard the learned counsels for the parties. 4. The appellant - OSFC was impleaded as the 4th defendant in the suit on 6.12.1994. The said impleadment was made on the basis that the units of the defendant Nos. 1 and 2 in the suit for recovery were taken over by the appellant - OSFC under Section 29 of the State Financial Corporation Act, 1951. On 20th August, 2001 the suit was decreed for a sum of Rs. 84,170/- along with interest at the rate of 24% per annum with effect from 1st March, 1988 to 23rd September, 1992 and from 23rd September 1992 till date of payment compound interest at the rate of 2% per month. 5. In appeal, the appellant - OSFC (defendant No.4), inter alia, raised the question of limitation. An application under Section 21(1) of the Limitation Act, 1963 was filed by the plaintiff in the suit before the First Appellate Court seeking a specific order that the date of impleadment of the 4th defendant - OSFC should be ordered to be from the date of filing of the suit. The matter was remanded to the learned trial Court and the learned trial Court by order dated 5th November, 2005 allowed the said application under Section 21(1) of the Limitation Act, 1963 and ordered that the impleadment of the 4th defendant - OSFC (appellant herein) would be from the date of the filing of the suit i.e. 29th February, 1988. The said order of the learned trial Court dated 5th November, 2005 was not challenged and has attained finality. 6. Taking into account the aforesaid facts, the High Court by the order under challenge thought it proper to answer the question of law framed in the negative and to hold the suit against the defendant No.4 - OSFC (appellant herein) to be maintainable. 7. If the order dated 5th November, 2005 passed by the learned trial Court ordering that the impleadment of the defendant No.4 - OSFC would be effective from the date of filing of the suit, has gone unchallenged and has attained finality we do not see how we can find any fault with the order of the High Court passed in Second Appeal. The issue before the High Court in the Second Appeal being limited to the question of limitation, consideration of any other issue will not arise. We, therefore, cannot find any error in the impugned order so far as the maintainability of the suit against the 4th defendant - OSFC (appellant herein) is concerned. ### Response: 0

Shrinivasa Reddy And Others Vs. The State Of Mysore And Others

power of implementation and to discriminate against some operators and in favour of others included in the scheme and also to break up the integrity of the scheme and in a sense modify it against the terms of S. 68E. There is no difficulty for the Undertaking to apply for permits relating to the entire scheme at the same time, for the manner in which the schemes is prepared under S. 68C takes into account all the difficulties which might arise in the implementation of the scheme and with that very object provides for taking over particular types of transport services in relation to areas or routes or even portions thereof. We need not however pursue the matter further on this occasion.6. Before we go to the other point raised in this petition, we should like briefly to refer to a feature of the scheme, which has been brought to our notice. This feature is that though the scheme mentions fourteen routes with their terminal and intermediate points and the length of the routes, there is a parrot-like repetition of the words "or any portion thereof" in all the fourteen routes.We should like to point out that it is the duty of the Undertaking when it prepares a scheme under S. 68C to decide whether it will take up a whole route or a portion thereof. If it decides to take a portion of the route (provided, however, conditions of efficiency, adequacy, economy and proper coordination are fulfilled), it should specify that portion only in the scheme.S. 68C does not contemplate that the routes should be specified in the manner in which they have been specified in this case, as, for example, "Bangalore to Anekal or any portion thereof". If the intention was not to operate on the whole Bangalore-Anekal route, but only a portion of it, that portion should have been specified as the route. However, in this particular case, we are of opinion that the intention clearly was to take over the whole route in the case of all the fourteen routes, which will be clear from the length of the route to be taken over mentioned in the schedule to the scheme.Therefore, the words "or any portion thereof" which have been repeated, as if they were some kind of charm, throughout the schedule are surplusage in view of the length specified and may be ignored and the scheme taken to apply to the entire length of the fourteen routes.7. The next question is about the order to be passed in this case. The contention on behalf of the Department is that as the petitioners had applied to the High Court and their petition was dismissed and the application for a certificate to appeal to this Court is pending before the High Court, this Court should dismiss the present petition and direct the petitioners to come either on a certificate granted by the High Court or by a special leave application in case the High Court refuses the certificate. We do not think it necessary in this case to decide this general question in view of certain special features of the present case. It is true that the writ petition by the petitioners was dismissed by the High Court; but the judgment of the High Court shows that it was of opinion that the applications under S. 68F should have complied with S. 57 (2) of the Act and should thus have been made at least six weeks before the date from which the scheme was to be implemented. On that view the High Court held that the issue of permits to the Department was not according to law. It also held in consequence that refusal of the renewal to the petitioners was illegal; but it refused to pass an order in favour of the petitioners on the ground that the relief granted to them would be short-lived. In effect, therefore, the judgment of the High Court was in favour of the petitioners and not against them, though in form the writ petition was dismissed.In these circumstances we are of opinion that as the petitioners fundamental right to carry on business is certainly involved in this case we should not refuse relief to the petitioners on the ground that their writ petition was dismissed by the High Court and they have not yet been able to obtain a certificate permitting them to appeal to this Court.8. There are two prayers in the present petition: (1) that the proceedings of the Authority issuing permits to the Department be quashed, and (2) that the proceedings rejecting the renewal applications of the petitioners be also quashed. We see no reason why we should not grant the first prayer and quash the issue of permits to the Department by the Authority on June 23, 1959. Our attention in this connection was drawn to K. N. Guruswamy v. State of Mysore, 1955-1 SCR 305 : (AIR 1954 SC 592 ). In that case this Court after declaring the law in favour of the petitioner did not issue a writ as there was hardly a fortnight left for the excise contract which was involved in that case to expire and the issue of a writ would have been meaningless and ineffective. That case however is distinguishable because the contract there would have come to an end within a few days.In the present case there is no reason to assume that the six weeks period which is the minimum period prescribed under S. 57 (2) is the only period that will be required for implementation of the scheme under S. 68F (1). In these circumstances we are of opinion that the prayer of quashing the permits granted to the Department on June 23, 1959, should be allowed. As for the other prayer for quashing the order rejecting the renewal applications of the petitioners, it is now unnecessary in view of our decision in Petitions Nos. 54 and 75 of 1959.(See A.I.R. 1960 SC 321 .)

1[ds]S. 68F lays down that where in pursuance of an approved scheme an State Transport Undertaking applies in the manner specified in Chapter IV for a stage carriage permit etc., in respect of a notified area or a notified route, the Regional Transport Authority shall issue such permit to the Undertaking notwithstanding anything to the contrary contained in Chapter IV. Clearly therefore the Undertaking has to apply for permits in the manner provided in Chapter IV, even though the Regional Transport Authority may be bound on such application to issue the permits. This takes us to S. 45, which lays down to which authority the application shall be made and then to S. 46 which lays down the particulars which the application must contain. Thus the Undertaking must comply with the terms of Ss. 45 and 46 when it applies for permits.Then comes S. 57 (2) which lays down that an application for a stage carriage permit (with which we are concerned in this case) shall be made not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates. In this case the Regional Transport Authority had appointed no date and clearly therefore the Undertaking should have applied not less than six weeks before the date on which it desired to start the service. This is necessary to give time to the Regional Transport Authority to deal with the matter and if necessary to inform those who might be affected under S. 68F (2) to be prepared for the change. That is why S. 68F (1) provided that the applications shall be made in the manner provided in Chapter IV. This provision has nothing to do with the publication required under S. 57 (3) which is meant for a different purpose.It was urged by the learned Solicitor General that the procedure provided in S. 57 (3) also applies as it is not inconsistent with the provisions of Chapter IV-A (see s. 68B).We consider it unnecessary to go into this matter for it is not disputed that the applications for permits in this case were not made at least six weeks before the date from which the permits were to take effect. In the circumstances the applications being not in the manner provided in Chapter IV and being actually in breach of S. 57 (2), no permits could be issued on such applications. Therefore, the orders in favour of the Department issuing permits to it are liable to be quashed on this groundthe scheme to be framed must be such as is capable of being carried out all at once and that is why the Undertaking has been given the power to frame a scheme for an area or route or even a portion thereof. Further after the scheme is framed it is approved and published by the State Government. Thereafter it is the duty of the Undertaking to carry out the scheme and in pursuance of that it applies for permits under S. 68F (1). If the Undertaking at that stage has the power to carry it out piecemeal, it would be possible for it to abuse the power of implementation and to discriminate against some operators and in favour of others included in the scheme and also to break up the integrity of the scheme and in a sense modify it against the terms of S. 68E. There is no difficulty for the Undertaking to apply for permits relating to the entire scheme at the same time, for the manner in which the schemes is prepared under S. 68C takes into account all the difficulties which might arise in the implementation of the scheme and with that very object provides for taking over particular types of transport services in relation to areas or routes or even portions thereof. We need not however pursue the matter further on thiseffect, therefore, the judgment of the High Court was in favour of the petitioners and not against them, though in form the writ petition was dismissed.In these circumstances we are of opinion that as the petitioners fundamental right to carry on business is certainly involved in this case we should not refuse relief to the petitioners on the ground that their writ petition was dismissed by the High Court and they have not yet been able to obtain a certificate permitting them to appeal to thiscase however is distinguishable because the contract there would have come to an end within a few days.In the present case there is no reason to assume that the six weeks period which is the minimum period prescribed under S. 57 (2) is the only period that will be required for implementation of the scheme under S. 68F (1). In these circumstances we are of opinion that the prayer of quashing the permits granted to the Department on June 23, 1959, should be allowed. As for the other prayer for quashing the order rejecting the renewal applications of the petitioners, it is now unnecessary in view of our decision in Petitions Nos. 54 and 75 of 1959.(See A.I.R. 1960 SC 321 .)

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: power of implementation and to discriminate against some operators and in favour of others included in the scheme and also to break up the integrity of the scheme and in a sense modify it against the terms of S. 68E. There is no difficulty for the Undertaking to apply for permits relating to the entire scheme at the same time, for the manner in which the schemes is prepared under S. 68C takes into account all the difficulties which might arise in the implementation of the scheme and with that very object provides for taking over particular types of transport services in relation to areas or routes or even portions thereof. We need not however pursue the matter further on this occasion.6. Before we go to the other point raised in this petition, we should like briefly to refer to a feature of the scheme, which has been brought to our notice. This feature is that though the scheme mentions fourteen routes with their terminal and intermediate points and the length of the routes, there is a parrot-like repetition of the words "or any portion thereof" in all the fourteen routes.We should like to point out that it is the duty of the Undertaking when it prepares a scheme under S. 68C to decide whether it will take up a whole route or a portion thereof. If it decides to take a portion of the route (provided, however, conditions of efficiency, adequacy, economy and proper coordination are fulfilled), it should specify that portion only in the scheme.S. 68C does not contemplate that the routes should be specified in the manner in which they have been specified in this case, as, for example, "Bangalore to Anekal or any portion thereof". If the intention was not to operate on the whole Bangalore-Anekal route, but only a portion of it, that portion should have been specified as the route. However, in this particular case, we are of opinion that the intention clearly was to take over the whole route in the case of all the fourteen routes, which will be clear from the length of the route to be taken over mentioned in the schedule to the scheme.Therefore, the words "or any portion thereof" which have been repeated, as if they were some kind of charm, throughout the schedule are surplusage in view of the length specified and may be ignored and the scheme taken to apply to the entire length of the fourteen routes.7. The next question is about the order to be passed in this case. The contention on behalf of the Department is that as the petitioners had applied to the High Court and their petition was dismissed and the application for a certificate to appeal to this Court is pending before the High Court, this Court should dismiss the present petition and direct the petitioners to come either on a certificate granted by the High Court or by a special leave application in case the High Court refuses the certificate. We do not think it necessary in this case to decide this general question in view of certain special features of the present case. It is true that the writ petition by the petitioners was dismissed by the High Court; but the judgment of the High Court shows that it was of opinion that the applications under S. 68F should have complied with S. 57 (2) of the Act and should thus have been made at least six weeks before the date from which the scheme was to be implemented. On that view the High Court held that the issue of permits to the Department was not according to law. It also held in consequence that refusal of the renewal to the petitioners was illegal; but it refused to pass an order in favour of the petitioners on the ground that the relief granted to them would be short-lived. In effect, therefore, the judgment of the High Court was in favour of the petitioners and not against them, though in form the writ petition was dismissed.In these circumstances we are of opinion that as the petitioners fundamental right to carry on business is certainly involved in this case we should not refuse relief to the petitioners on the ground that their writ petition was dismissed by the High Court and they have not yet been able to obtain a certificate permitting them to appeal to this Court.8. There are two prayers in the present petition: (1) that the proceedings of the Authority issuing permits to the Department be quashed, and (2) that the proceedings rejecting the renewal applications of the petitioners be also quashed. We see no reason why we should not grant the first prayer and quash the issue of permits to the Department by the Authority on June 23, 1959. Our attention in this connection was drawn to K. N. Guruswamy v. State of Mysore, 1955-1 SCR 305 : (AIR 1954 SC 592 ). In that case this Court after declaring the law in favour of the petitioner did not issue a writ as there was hardly a fortnight left for the excise contract which was involved in that case to expire and the issue of a writ would have been meaningless and ineffective. That case however is distinguishable because the contract there would have come to an end within a few days.In the present case there is no reason to assume that the six weeks period which is the minimum period prescribed under S. 57 (2) is the only period that will be required for implementation of the scheme under S. 68F (1). In these circumstances we are of opinion that the prayer of quashing the permits granted to the Department on June 23, 1959, should be allowed. As for the other prayer for quashing the order rejecting the renewal applications of the petitioners, it is now unnecessary in view of our decision in Petitions Nos. 54 and 75 of 1959.(See A.I.R. 1960 SC 321 .) ### Response: 1

Debapriya Pal Vs. State of West Bengal

petition has already been dismissed. Insofar as the appellant is concerned, the only reason given is that he was a friend of A1 and that is why he joined A1 in commission of the said crime. We may state at the outset that after examining the testimonies of the witnesses on this particular aspect, we find that it is not very strong inasmuch as the nature of friendship and the thickness of such friendship has not come on record. One of the witnesses has stated in a cursory manner that he had seen the appellant in the company of A1 on certain occasions. Insofar as other material/evidence, which is led against the appellant and can become the basis of his conviction is concerned, we find that there are three circumstances which weighed with the Trial Court to convict the appellant. These are: 1. Recovery of blood stained clothes of the appellant from his house on his disclosure statement.2. Recovery of laptop belonging to the sister (PW 23) of the deceased Anusha Sarkar from the house of the appellant with cushion cover.3. Finger prints of the appellant on the cello tape which was found in the house of the deceased. 7. As far as recovery of blood stained clothes is concerned, two public witnesses are examined who, purportedly, were the witnesses to the seizure list of wearing apparels of the appellant. These are PW-12 and PW13. According to their deposition, they saw the policemen along with the accused person going to the house of the appellant and they also joined the police party. It is how they became the witnesses and were associated with the recovery. For the sake of argument, we are presuming that they were present at the time when the appellant brought blood stained clothes from his house and gave the same to the police. What is material is the reliance on these blood stained clothes for the culpability of the appellant herein. As per the prosecution, the blood group on these blood stained clothes matched with the blood on the bed sheet on which the body of one of the deceased person is found. The record reveals that though blood of both the deceased persons was drawn and sent for examination, it is not known as to what was the report thereupon and what was the blood group of the deceased persons. No such blood report has been produced. So much so, blood group of the accused persons was also not ascertained. Even if we presume that the blood on the bed sheet was that of the deceased, the possibility cannot be ruled out that the same blood group as of the accused appellant thereof. Therefore, mere matching of the blood group on the blood stained clothes, which was even on the bed sheet, would not lead to the conclusion that it is the appellant who had committed the crime. Same reasoning goes with the recovery of laptop as well. Merely because laptop belonging to the sister of the deceased Anusha Sarkar is not indicative that the appellant is responsible for the commission of the crime. Under Section 27 of the Evidence Act only so much of recovery, as a result of the disclosure statement, which directly pertains to the commission of crime is relevant. Otherwise, such an evidence is barred under Section 25 of the Evidence Act. Recovery of laptop does not have any bearing. It is neither the weapon of crime nor it has any cause of connection with the commission of crime. The law on this aspect is succinctly said in the case "Jaffar Hussain Dastagir v. State of Maharashtra (1969) 2 SCC 872 in the following manner: "5. Under Section 25 of the Evidence Act no confession made by an accused to a police officer can be admitted in evidence against him. An exception to this is however provided by Section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to Section 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence." 8. Third ingredient does not seem to have been satisfied.9. As far as finger prints on the cello tape are concerned, the report is that print marked D on cello tape matched with specimen of the appellant and prints marked A to C were unfit for comparison and print B did not match with either of the accused.10. From the aforesaid, it is clear that only on print mark D, the finger prints were found to be matching with the specimen of the appellant. However, what is significant is that in the court it was found that print D was missing on the cello tape roll. In view thereof, print D could not be relied upon. Insofar as print marks A to C are concerned, the report of the expert is that they were unfit for comparison. Therefore, this circumstance has also not been satisfactorily proved. In the absence of any motive on the part of the appellant, weak linkage of his alleged friendship with A1 and hardly any circumstance clinching to point accusing finger on the appellant, we are of the opinion that the appellant should have been given the benefit of doubt as his culpability has not been proved by the prosecution beyond reasonable doubt.

1[ds]6. It is clear from the aforesaid that there is no eye witness to the crime and the conviction is based on circumstantial evidence. It also becomes clear that no direct motive is attributed to the appellant herein. As per the prosecution, the motive to commit the crime was with A1 who could not digest the stand of Anusha Sarkars mother because of which Anusha Sarkar parted the company of A1. We need not to discuss the evidence that was led and proved against A1 since his special leave petition has already been dismissed. Insofar as the appellant is concerned, the only reason given is that he was a friend of A1 and that is why he joined A1 in commission of the said crime. We may state at the outset that after examining the testimonies of the witnesses on this particular aspect, we find that it is not very strong inasmuch as the nature of friendship and the thickness of such friendship has not come on record. One of the witnesses has stated in a cursory manner that he had seen the appellant in the company of A1 on certainas other material/evidence, which is led against the appellant and can become the basis of his conviction is concerned, we find that there are three circumstances which weighed with the Trial Court to convict the appellant.As far as recovery of blood stained clothes is concerned, two public witnesses are examined who, purportedly, were the witnesses to the seizure list of wearing apparels of the appellant. These areand PW13. According to their deposition, they saw the policemen along with the accused person going to the house of the appellant and they also joined the police party. It is how they became the witnesses and were associated with the recovery. For the sake of argument, we are presuming that they were present at the time when the appellant brought blood stained clothes from his house and gave the same to the police. What is material is the reliance on these blood stained clothes for the culpability of the appellant herein. As per the prosecution, the blood group on these blood stained clothes matched with the blood on the bed sheet on which the body of one of the deceased person is found. The record reveals that though blood of both the deceased persons was drawn and sent for examination, it is not known as to what was the report thereupon and what was the blood group of the deceased persons. No such blood report has been produced. So much so, blood group of the accused persons was also not ascertained. Even if we presume that the blood on the bed sheet was that of the deceased, the possibility cannot be ruled out that the same blood group as of the accused appellant thereof. Therefore, mere matching of the blood group on the blood stained clothes, which was even on the bed sheet, would not lead to the conclusion that it is the appellant who had committed the crime. Same reasoning goes with the recovery of laptop as well. Merely because laptop belonging to the sister of the deceased Anusha Sarkar is not indicative that the appellant is responsible for the commission of the crime.Third ingredient does not seem to have been satisfied.9. As far as finger prints on the cello tape are concerned, the report is that print marked D on cello tape matched with specimen of the appellant and prints marked A to C were unfit for comparison and print B did not match with either of the accused.10. From the aforesaid, it is clear that only on print mark D, the finger prints were found to be matching with the specimen of the appellant. However, what is significant is that in the court it was found that print D was missing on the cello tape roll. In view thereof, print D could not be relied upon. Insofar as print marks A to C are concerned, the report of the expert is that they were unfit for comparison. Therefore, this circumstance has also not been satisfactorily proved. In the absence of any motive on the part of the appellant, weak linkage of his alleged friendship with A1 and hardly any circumstance clinching to point accusing finger on the appellant, we are of the opinion that the appellant should have been given the benefit of doubt as his culpability has not been proved by the prosecution beyond reasonable doubt.

### 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: petition has already been dismissed. Insofar as the appellant is concerned, the only reason given is that he was a friend of A1 and that is why he joined A1 in commission of the said crime. We may state at the outset that after examining the testimonies of the witnesses on this particular aspect, we find that it is not very strong inasmuch as the nature of friendship and the thickness of such friendship has not come on record. One of the witnesses has stated in a cursory manner that he had seen the appellant in the company of A1 on certain occasions. Insofar as other material/evidence, which is led against the appellant and can become the basis of his conviction is concerned, we find that there are three circumstances which weighed with the Trial Court to convict the appellant. These are: 1. Recovery of blood stained clothes of the appellant from his house on his disclosure statement.2. Recovery of laptop belonging to the sister (PW 23) of the deceased Anusha Sarkar from the house of the appellant with cushion cover.3. Finger prints of the appellant on the cello tape which was found in the house of the deceased. 7. As far as recovery of blood stained clothes is concerned, two public witnesses are examined who, purportedly, were the witnesses to the seizure list of wearing apparels of the appellant. These are PW-12 and PW13. According to their deposition, they saw the policemen along with the accused person going to the house of the appellant and they also joined the police party. It is how they became the witnesses and were associated with the recovery. For the sake of argument, we are presuming that they were present at the time when the appellant brought blood stained clothes from his house and gave the same to the police. What is material is the reliance on these blood stained clothes for the culpability of the appellant herein. As per the prosecution, the blood group on these blood stained clothes matched with the blood on the bed sheet on which the body of one of the deceased person is found. The record reveals that though blood of both the deceased persons was drawn and sent for examination, it is not known as to what was the report thereupon and what was the blood group of the deceased persons. No such blood report has been produced. So much so, blood group of the accused persons was also not ascertained. Even if we presume that the blood on the bed sheet was that of the deceased, the possibility cannot be ruled out that the same blood group as of the accused appellant thereof. Therefore, mere matching of the blood group on the blood stained clothes, which was even on the bed sheet, would not lead to the conclusion that it is the appellant who had committed the crime. Same reasoning goes with the recovery of laptop as well. Merely because laptop belonging to the sister of the deceased Anusha Sarkar is not indicative that the appellant is responsible for the commission of the crime. Under Section 27 of the Evidence Act only so much of recovery, as a result of the disclosure statement, which directly pertains to the commission of crime is relevant. Otherwise, such an evidence is barred under Section 25 of the Evidence Act. Recovery of laptop does not have any bearing. It is neither the weapon of crime nor it has any cause of connection with the commission of crime. The law on this aspect is succinctly said in the case "Jaffar Hussain Dastagir v. State of Maharashtra (1969) 2 SCC 872 in the following manner: "5. Under Section 25 of the Evidence Act no confession made by an accused to a police officer can be admitted in evidence against him. An exception to this is however provided by Section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to Section 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence." 8. Third ingredient does not seem to have been satisfied.9. As far as finger prints on the cello tape are concerned, the report is that print marked D on cello tape matched with specimen of the appellant and prints marked A to C were unfit for comparison and print B did not match with either of the accused.10. From the aforesaid, it is clear that only on print mark D, the finger prints were found to be matching with the specimen of the appellant. However, what is significant is that in the court it was found that print D was missing on the cello tape roll. In view thereof, print D could not be relied upon. Insofar as print marks A to C are concerned, the report of the expert is that they were unfit for comparison. Therefore, this circumstance has also not been satisfactorily proved. In the absence of any motive on the part of the appellant, weak linkage of his alleged friendship with A1 and hardly any circumstance clinching to point accusing finger on the appellant, we are of the opinion that the appellant should have been given the benefit of doubt as his culpability has not been proved by the prosecution beyond reasonable doubt. ### Response: 1