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Gorantla Thataiah Vs. Thotakura Venkata Subbaiah & Ors
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its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased." According to the decision in Fulton v. Andrew, (1875) 7 HL 448, those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction". "There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out". In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well-known observations of Baron Parke in the case of Barry v. Butlin, (1838) 2 Moo PC 480 at p. 482. The two rules of law set out by Baron Parke are :"first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator"; "the second is, that, if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased." In Sarat Kumari Bibi v. Sakhi Chand, 56 Ind App 62 = (AIR 1929 PC 45 ) the Judicial Committee made it clear that "the principle which requires the propounder to remove suspicious from the mind of the Court is not confined only to cases where the propounder takes part in the execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument propounded is the last will of the testator". This view is supported by the following observations made by Lindley and Davey, L. JJ., in Tyrrell v. Painton, 1894 P 151 at pp. 157, 159."The rule in (1838) 2 Moo PC 480 1875) 7 HL 948; and Brown v. Fisher (1890) 63 LT 465 is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to the case made for proving the will." "It must not be supposed the principle in (1838) 2 Moo PC 480 is confined to cases where the person who prepares the will is the person who takes the benefit under it - that is one state of things which raises a suspicion; but the principle is that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator the Court ought not to pronounce in favour of it unless that suspicion is removed." (Davey L. J.). 7. It is in the light of these principles that the evidence adduced in this case will have to be considered. As we have already pointed out, there is abundant testimony in this case which proves beyond doubt that the testator was physically in a weak condition and that he was in a delirious state of mind at the time of the execution of the will. It is admitted that the first defendant took a prominent part in summoning the attesting witnesses and the scribe and procuring the writing materials for the execution of the will. There is also evidence that Veeriah lost his father, Gangiah when he was hardly 10 years of age and after Gangiahs death the first defendant brought Rattamma and Veeriah to his house and was looking after them. The first defendant had therefore considerable influence over Veeriah and his another Rattamma. There is also the circumstance that Veeriah was only 24 years of age at the time of the execution of the will and he was slow witted and below the average level of intelligence and understanding. Having regard to the cumulative effect of all the circumstances we are of opinion that the will, Ex. B-4 was not executed by Veeriah in a sound and disposing state of mind and was not legally valid and binding upon the plaintiff. We accordingly set aside the finding of the High Court on this issue. 8. It is, however, not possible for us to finally dispose of this appeal because the High Court has not examined the second question arising in this case, namely, whether the Hindu Succession Act (Act XXX of 1956) is applicable to the case, and whether defendant No l was the nearest heir to succeed to the estate of the deceased Veeriah in preference to all others including the appellant, defendants 9 and 10.
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1[ds]6. It is well established that in a case in which a will is prepared under circumstances which raise the suspicion of the court that it does not express the mind of the testator it is for those who propound the will to remove that suspicion. What are suspicious circumstances must he judged in the facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the court should proceed in a vigilant and cautious manner7. It is in the light of these principles that the evidence adduced in this case will have to be considered. As we have already pointed out, there is abundant testimony in this case which proves beyond doubt that the testator was physically in a weak condition and that he was in a delirious state of mind at the time of the execution of the will. It is admitted that the first defendant took a prominent part in summoning the attesting witnesses and the scribe and procuring the writing materials for the execution of the will. There is also evidence that Veeriah lost his father, Gangiah when he was hardly 10 years of age and after Gangiahs death the first defendant brought Rattamma and Veeriah to his house and was looking after them. The first defendant had therefore considerable influence over Veeriah and his another Rattamma. There is also the circumstance that Veeriah was only 24 years of age at the time of the execution of the will and he was slow witted and below the average level of intelligence and understanding. Having regard to the cumulative effect of all the circumstances we are of opinion that the will, Ex. B-4 was not executed by Veeriah in a sound and disposing state of mind and was not legally valid and binding upon the plaintiff. We accordingly set aside the finding of the High Court on this issue8. It is, however, not possible for us to finally dispose of this appeal because the High Court has not examined the second question arising in this case, namely,whether the Hindu Succession Act (Act XXX of 1956) is applicable to the case, and whether defendant No l was the nearest heir to succeed to the estate of the deceased Veeriah in preference to all others including the appellant, defendants 9 and 10.
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its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased." According to the decision in Fulton v. Andrew, (1875) 7 HL 448, those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction". "There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out". In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well-known observations of Baron Parke in the case of Barry v. Butlin, (1838) 2 Moo PC 480 at p. 482. The two rules of law set out by Baron Parke are :"first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator"; "the second is, that, if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased." In Sarat Kumari Bibi v. Sakhi Chand, 56 Ind App 62 = (AIR 1929 PC 45 ) the Judicial Committee made it clear that "the principle which requires the propounder to remove suspicious from the mind of the Court is not confined only to cases where the propounder takes part in the execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument propounded is the last will of the testator". This view is supported by the following observations made by Lindley and Davey, L. JJ., in Tyrrell v. Painton, 1894 P 151 at pp. 157, 159."The rule in (1838) 2 Moo PC 480 1875) 7 HL 948; and Brown v. Fisher (1890) 63 LT 465 is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to the case made for proving the will." "It must not be supposed the principle in (1838) 2 Moo PC 480 is confined to cases where the person who prepares the will is the person who takes the benefit under it - that is one state of things which raises a suspicion; but the principle is that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator the Court ought not to pronounce in favour of it unless that suspicion is removed." (Davey L. J.). 7. It is in the light of these principles that the evidence adduced in this case will have to be considered. As we have already pointed out, there is abundant testimony in this case which proves beyond doubt that the testator was physically in a weak condition and that he was in a delirious state of mind at the time of the execution of the will. It is admitted that the first defendant took a prominent part in summoning the attesting witnesses and the scribe and procuring the writing materials for the execution of the will. There is also evidence that Veeriah lost his father, Gangiah when he was hardly 10 years of age and after Gangiahs death the first defendant brought Rattamma and Veeriah to his house and was looking after them. The first defendant had therefore considerable influence over Veeriah and his another Rattamma. There is also the circumstance that Veeriah was only 24 years of age at the time of the execution of the will and he was slow witted and below the average level of intelligence and understanding. Having regard to the cumulative effect of all the circumstances we are of opinion that the will, Ex. B-4 was not executed by Veeriah in a sound and disposing state of mind and was not legally valid and binding upon the plaintiff. We accordingly set aside the finding of the High Court on this issue. 8. It is, however, not possible for us to finally dispose of this appeal because the High Court has not examined the second question arising in this case, namely, whether the Hindu Succession Act (Act XXX of 1956) is applicable to the case, and whether defendant No l was the nearest heir to succeed to the estate of the deceased Veeriah in preference to all others including the appellant, defendants 9 and 10.
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601 |
M/S Tata Sky Ltd Vs. State Of M.P.
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legislature considered it necessary to amend the 1936 Act and to insert section 3-A and section 3-B respectively with effect from May 1, 1999 and April 1, 2001. In this regard, it is also very important to note that both in the case of shows by video cassette recorder or video cassette and player, cable T.V. operations, the collection machinery is in-built and provided within the respective provisions of section 3-A and section 3-B. and in those two cases the collection of duty does not take place under section 4 of the 1936 Act. 36. On behalf of the State the imposition of levy on DTH was sought to be justified on the basis of sub-clause(4) of clause (d) of section 2 which reads as under: (iv) any payment made by a person by way of contribution or subscription or installation and connection charges or any other charges, by whatever name called, for providing access to any entertainment, whether for a specified period or on a continuous basis; 37. In our view, the submission is untenable for more reasons than one. First, section 2(d)(iv) is only the measure of tax and it does not create the charge which is created by section 3. The question of going to the measure of the tax would arise only if it is found that the charge of tax is attracted. Under section 3 read with section 2(d) and section 2(a), the charge or levy of tax is attracted only if an entertainment takes place in a specified place or locations and persons are admitted to the place on payment of a charge to the proprietor providing the entertainment. In the present case, as DTH operation is not a place-related entertainment, it is not covered by the charging section 3 read with section 2(a) and 2(b) of the 1936 Act. Consequently, the question of going to section 2(d)(iv) does not arise. Moreover, even if section 2(d)(iv) is to be read as an extension of section 3 and, thus, as a part of the charge, it does not make any difference at all because section 2(d)(iv) refers to entertainment which takes us back to section 2(b) and finally to section 2(a). 38. We have held that DTH is not covered by the provisions of section 3 read with section 2(a), 2(b) and 2(d) of the 1936 Act. The issue gets further settled on reference being made to the mechanism of collection of the charge as provided under section 4 of the 1936 Act. Section 4(1) mandates that no person shall be admitted to any entertainment other than entertainment by V.C.R. except with a ticket stamped with an impressed, embossed, engraved or adhesive stamp issued by the State Government of nominal value equal to the duty payable under section 3; sub-section (2) of section 4 provides for different modes specified thereunder for payment of the amount of duty due on the entertainment. Neither the provision of section 4(1) nor any of the modes provided under section 4(2) can be made applicable for collection of duty on DTH operation. Further, it is noted above that section 8 provides rule making powers. In exercise of the powers under that provision the Madhya Pradesh Entertainment Duty and Advertisement Tax Rules 1942 were framed. A perusal of the Rules makes it absolutely clear that the collection mechanism under the 1936 Act is based on revenue stamps stuck to the tickets issued by the proprietor for entry to the specified place where entertainment is held. 39. The machinery for collection of duty provided under the 1936 Act has no application to DTH. It is well settled that if the collection machinery provided under the Act is such that it cannot be applied to an event, it follows that the event is beyond the charge created by the taxing statute. See: Commissioner of Income Tax v. B.C. Srinivasa Setty, (1981) 2 SCC 460 , Commissioner of Income-Tax Ernakulam, Kerala v. Official Liquidator, Palai Central Bank Ltd.. (1985) 1 SCC 45 (pages 50-51), PNB Finance Limited v. Commissioner of Income Tax I, New Delhi (2008) 13 SCC 94 ( paragraphs 21 and 24 pages 100 to 101). 40. In light of the discussions made above, we are clearly of the view that the 1936 Act cannot be extended to cover DTH operations being carried out by the appellants. 41. Coming now to the notification dated May 5, 2008, it is elementary that a notification issued in exercise of powers under the Act cannot amend the Act. Moreover, the notification merely prescribes the rate of entertainment duty at 20 percent in respect of every payment for admission to an entertainment other than cinema, video cassette recorder and cable service. The notification cannot enlarge either the charging section or amend the provision of collection under section 4 of the Act read with the 1942 Rules. It is, therefore, clear that the notification in no way improves the case of the State. If no duty could be levied on DTH operation under the 1936 Act prior to the issuance of the notification dated May 5, 2008 as fairly stated by Mr. Dave, we fail to see how duty can be levied under the 1936 Act after the issuance of the notification. 42. We have held that the 1936 Act does not cover DTH operations on an interpretation of the provisions of 1936 Act itself. We, therefore, see no need to refer to the cases relied upon by the appellants relating to demand of duty on DTH operations under the Uttar Pradesh Entertainments and Betting Tax Act, 1979 and under the Bihar Entertainment Tax Act. 43. Further, as we have held that the 1936 Act does not cover the DTH operations we need not go to the other submissions made on behalf of the appellants inter alia regarding the legislative competence of the statute legislature to impose tax on DTH operation as it was a notified service chargeable to service tax under the Finance Act, 1994. 44.
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1[ds]In our view, the submission is untenable for more reasons than one. First, section 2(d)(iv) is only the measure of tax and it does not create the charge which is created by section 3. The question of going to the measure of the tax would arise only if it is found that the charge of tax is attracted. Under section 3 read with section 2(d) and section 2(a), the charge or levy of tax is attracted only if an entertainment takes place in a specified place or locations and persons are admitted to the place on payment of a charge to the proprietor providing the entertainment. In the present case, as DTH operation is not a place-related entertainment, it is not covered by the charging section 3 read with section 2(a) and 2(b) of the 1936 Act. Consequently, the question of going to section 2(d)(iv) does not arise. Moreover, even if section 2(d)(iv) is to be read as an extension of section 3 and, thus, as a part of the charge, it does not make any difference at all because section 2(d)(iv) refers to entertainment which takes us back to section 2(b) and finally to section 2(a)38. We have held that DTH is not covered by the provisions of section 3 read with section 2(a), 2(b) and 2(d) of the 1936 Act. The issue gets further settled on reference being made to the mechanism of collection of the charge as provided under section 4 of the 1936 Act. Section 4(1) mandates that no person shall be admitted to any entertainment other than entertainment by V.C.R. except with a ticket stamped with an impressed, embossed, engraved or adhesive stamp issued by the State Government of nominal value equal to the duty payable under section 3; sub-section (2) of section 4 provides for different modes specified thereunder for payment of the amount of duty due on the entertainment. Neither the provision of section 4(1) nor any of the modes provided under section 4(2) can be made applicable for collection of duty on DTH operation. Further, it is noted above that section 8 provides rule making powers. In exercise of the powers under that provision the Madhya Pradesh Entertainment Duty and Advertisement Tax Rules 1942 were framed. A perusal of the Rules makes it absolutely clear that the collection mechanism under the 1936 Act is based on revenue stamps stuck to the tickets issued by the proprietor for entry to the specified place where entertainment is heldwe are clearly of the view that the 1936 Act cannot be extended to cover DTH operations being carried out by the appellants41. Coming now to the notification dated May 5, 2008, it is elementary that a notification issued in exercise of powers under the Act cannot amend the Act. Moreover, the notification merely prescribes the rate of entertainment duty at 20 percent in respect of every payment for admission to an entertainment other than cinema, video cassette recorder and cable service. The notification cannot enlarge either the charging section or amend the provision of collection under section 4 of the Act read with the 1942 Rules. It is, therefore, clear that the notification in no way improves the case of the State. If no duty could be levied on DTH operation under the 1936 Act prior to the issuance of the notification dated May 5, 2008 as fairly stated by Mr. Dave, we fail to see how duty can be levied under the 1936 Act after the issuance of the notification42. We have held that the 1936 Act does not cover DTH operations on an interpretation of the provisions of 1936 Act itself. We, therefore, see no need to refer to the cases relied upon by the appellants relating to demand of duty on DTH operations under the Uttar Pradesh Entertainments and Betting Tax Act, 1979 and under the Bihar Entertainment Tax Act43. Further, as we have held that the 1936 Act does not cover the DTH operations we need not go to the other submissions made on behalf of the appellants inter alia regarding the legislative competence of the statute legislature to impose tax on DTH operation as it was a notified service chargeable to service tax under the Finance Act, 1994.
| 1 | 5,164 |
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Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case.
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legislature considered it necessary to amend the 1936 Act and to insert section 3-A and section 3-B respectively with effect from May 1, 1999 and April 1, 2001. In this regard, it is also very important to note that both in the case of shows by video cassette recorder or video cassette and player, cable T.V. operations, the collection machinery is in-built and provided within the respective provisions of section 3-A and section 3-B. and in those two cases the collection of duty does not take place under section 4 of the 1936 Act. 36. On behalf of the State the imposition of levy on DTH was sought to be justified on the basis of sub-clause(4) of clause (d) of section 2 which reads as under: (iv) any payment made by a person by way of contribution or subscription or installation and connection charges or any other charges, by whatever name called, for providing access to any entertainment, whether for a specified period or on a continuous basis; 37. In our view, the submission is untenable for more reasons than one. First, section 2(d)(iv) is only the measure of tax and it does not create the charge which is created by section 3. The question of going to the measure of the tax would arise only if it is found that the charge of tax is attracted. Under section 3 read with section 2(d) and section 2(a), the charge or levy of tax is attracted only if an entertainment takes place in a specified place or locations and persons are admitted to the place on payment of a charge to the proprietor providing the entertainment. In the present case, as DTH operation is not a place-related entertainment, it is not covered by the charging section 3 read with section 2(a) and 2(b) of the 1936 Act. Consequently, the question of going to section 2(d)(iv) does not arise. Moreover, even if section 2(d)(iv) is to be read as an extension of section 3 and, thus, as a part of the charge, it does not make any difference at all because section 2(d)(iv) refers to entertainment which takes us back to section 2(b) and finally to section 2(a). 38. We have held that DTH is not covered by the provisions of section 3 read with section 2(a), 2(b) and 2(d) of the 1936 Act. The issue gets further settled on reference being made to the mechanism of collection of the charge as provided under section 4 of the 1936 Act. Section 4(1) mandates that no person shall be admitted to any entertainment other than entertainment by V.C.R. except with a ticket stamped with an impressed, embossed, engraved or adhesive stamp issued by the State Government of nominal value equal to the duty payable under section 3; sub-section (2) of section 4 provides for different modes specified thereunder for payment of the amount of duty due on the entertainment. Neither the provision of section 4(1) nor any of the modes provided under section 4(2) can be made applicable for collection of duty on DTH operation. Further, it is noted above that section 8 provides rule making powers. In exercise of the powers under that provision the Madhya Pradesh Entertainment Duty and Advertisement Tax Rules 1942 were framed. A perusal of the Rules makes it absolutely clear that the collection mechanism under the 1936 Act is based on revenue stamps stuck to the tickets issued by the proprietor for entry to the specified place where entertainment is held. 39. The machinery for collection of duty provided under the 1936 Act has no application to DTH. It is well settled that if the collection machinery provided under the Act is such that it cannot be applied to an event, it follows that the event is beyond the charge created by the taxing statute. See: Commissioner of Income Tax v. B.C. Srinivasa Setty, (1981) 2 SCC 460 , Commissioner of Income-Tax Ernakulam, Kerala v. Official Liquidator, Palai Central Bank Ltd.. (1985) 1 SCC 45 (pages 50-51), PNB Finance Limited v. Commissioner of Income Tax I, New Delhi (2008) 13 SCC 94 ( paragraphs 21 and 24 pages 100 to 101). 40. In light of the discussions made above, we are clearly of the view that the 1936 Act cannot be extended to cover DTH operations being carried out by the appellants. 41. Coming now to the notification dated May 5, 2008, it is elementary that a notification issued in exercise of powers under the Act cannot amend the Act. Moreover, the notification merely prescribes the rate of entertainment duty at 20 percent in respect of every payment for admission to an entertainment other than cinema, video cassette recorder and cable service. The notification cannot enlarge either the charging section or amend the provision of collection under section 4 of the Act read with the 1942 Rules. It is, therefore, clear that the notification in no way improves the case of the State. If no duty could be levied on DTH operation under the 1936 Act prior to the issuance of the notification dated May 5, 2008 as fairly stated by Mr. Dave, we fail to see how duty can be levied under the 1936 Act after the issuance of the notification. 42. We have held that the 1936 Act does not cover DTH operations on an interpretation of the provisions of 1936 Act itself. We, therefore, see no need to refer to the cases relied upon by the appellants relating to demand of duty on DTH operations under the Uttar Pradesh Entertainments and Betting Tax Act, 1979 and under the Bihar Entertainment Tax Act. 43. Further, as we have held that the 1936 Act does not cover the DTH operations we need not go to the other submissions made on behalf of the appellants inter alia regarding the legislative competence of the statute legislature to impose tax on DTH operation as it was a notified service chargeable to service tax under the Finance Act, 1994. 44.
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602 |
ASIAN HOTELS (NORTH) LTD Vs. ALOK KUMAR LODHA & ORS
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the original plaintiffs to amend their respective plaints so as to declare void ab-initio all the mortgages / charges on the entire premises in question and also implead mortgagee banks / financial institutions for that purpose. 7.2. At the outset, it is required to be noted that mortgages have been created in favour of different mortgage banks/ financial institutions since 1982 onwards which have been extended and / or rolled over, refinanced and replaced from time to time. The mortgages are created not only with respect to the shops / premises occupied by the original plaintiffs, but with respect to the entire premises / Hyatt Residency Hotel. The respective original plaintiffs are granted licenses for individual shops which are part of entire premises. According to the appellant, first mortgage was created in the year 1982. At that time, none of the original plaintiffs were license holders. They have been granted license for individual shops at the premises from 1983 onwards to various shopkeepers including respondents- original plaintiffs. The appellant, being owner – licensor, has terminated the respective licenses granted in favour of respective license holders – original plaintiffs. The revocation of the license is subject matter of respective suits. Therefore, the only controversy / issue in the respective suits is with respect to revocation of the respective licenses. By way of an amendment of the plaint the plaintiffs now want to challenge the mortgages / charges on the entire premises created by the appellant. As such, the original plaintiffs are not at all concerned with the mortgages created by the appellant which is required for the continuous development of the hotel. By the purported amendment, the original plaintiffs have now prayed to declare that all the mortgages / charges created on the premises as void ab-initio. Even such a prayer can be said to be too vague. How the original plaintiffs can now can be permitted to challenge various mortgages / charges created from time to time. At this stage, it is required to be noted that even under the License Agreement (clause 13) the Licensor shall have the right to create charges / mortgages as and by way of first charge on its land, premises and the buildings (including shops) constructed and to be constructed, in favour of financial institutions and banks as security for their terms loan advanced / to be advanced to the licensor for the completion of its hotel project. Therefore, in fact original plaintiffs being the licensee are aware that there shall be charges / mortgages on the entire premises and the buildings including the shops. In that view of the matter, now after a number of years, plaintiffs cannot be permitted to challenge the mortgages / charges created on the entire premises including shops. 8. The High Court while allowing the amendment application in exercise of powers under Order 6 Rule 17 of the Code of Civil Procedure has not properly appreciated the fact and / or considered the fact that as such, by granting such an amendment and permitting plaintiffs to amend the plaints incorporating the prayer clause to declare the respective charges / mortgages void ab-initio, the nature of the suits will be changed. As per the settled proposition of law, if, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in that case, the Court would not be justified in allowing the amendment. It would also result in misjoinder of causes of action. 9. From the impugned order passed by the High Court, it appears that what has weighed with the High Court is that plaintiffs, is the dominus litus and heavy reliance is placed in the case of Kasturi (supra). However, the principle that the plaintiffs is the dominus litus shall be applicable only in a case where parties sought to be added as defendants are necessary and / or proper parties. Plaintiffs cannot be permitted to join any party as a defendant who may not be necessary and / or proper parties at all on the ground that the plaintiffs is the dominus litus. 9.1. Even otherwise, High Court has materially erred in relying upon the decision in the case of Kasturi (supra). In the case of Kasturi (supra) before this Court the suit was for specific performance of the agreement to sell and the subsequent purchasers purchased the very property for which decree for specific performance was sought. Therefore, on facts said decision is not applicable to the facts of the case on hand. 10. In view of the above and for the reasons stated above, High Court has committed serious error in allowing the application under Order 6 Rule 17 and under Order 1 Rule 10 of the Code of Civil Procedure by permitting original plaintiffs to amend the plaint including prayer clause by which, the plaintiffs have now prayed to declare the charges / mortgages on the entire premises as void-ab initio and permitting the original plaintiffs to join / implead the respective banks / financial institutions as party defendant. The alleged rights of the plaintiffs as perpetual license holders are yet to be adjudicated upon. The licenses of the original plaintiffs have been revoked. Therefore, in a suit challenging revocation of the respective licenses, the plaintiffs cannot be permitted to challenge the respective mortgages / charges created on the entire premises as void ab-initio. It is the case on behalf of the appellant that apart from the fact that first charge was created in the year 1982, thereafter said mortgages have been rolled over, refinanced and replaced from time to time for ensuring the continuous development of the Hotel Project / premises which requires consistent upkeep, renovation and upgradation from time to time. Under the circumstances, the impugned orders passed by the High Court allowing the application under Order 6 Rule 17 and under Order 1 Rule 10 of the Code of Civil Procedure are unsustainable, both on facts as well as on law.
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1[ds]7.2. At the outset, it is required to be noted that mortgages have been created in favour of different mortgage banks/ financial institutions since 1982 onwards which have been extended and / or rolled over, refinanced and replaced from time to time. The mortgages are created not only with respect to the shops / premises occupied by the original plaintiffs, but with respect to the entire premises / Hyatt Residency Hotel. The respective original plaintiffs are granted licenses for individual shops which are part of entire premises. According to the appellant, first mortgage was created in the year 1982. At that time, none of the original plaintiffs were license holders. They have been granted license for individual shops at the premises from 1983 onwards to various shopkeepers including respondents- original plaintiffs. The appellant, being owner – licensor, has terminated the respective licenses granted in favour of respective license holders – original plaintiffs. The revocation of the license is subject matter of respective suits. Therefore, the only controversy / issue in the respective suits is with respect to revocation of the respective licenses. By way of an amendment of the plaint the plaintiffs now want to challenge the mortgages / charges on the entire premises created by the appellant. As such, the original plaintiffs are not at all concerned with the mortgages created by the appellant which is required for the continuous development of the hotel. By the purported amendment, the original plaintiffs have now prayed to declare that all the mortgages / charges created on the premises as void ab-initio. Even such a prayer can be said to be too vague. How the original plaintiffs can now can be permitted to challenge various mortgages / charges created from time to time. At this stage, it is required to be noted that even under the License Agreement (clause 13) the Licensor shall have the right to create charges / mortgages as and by way of first charge on its land, premises and the buildings (including shops) constructed and to be constructed, in favour of financial institutions and banks as security for their terms loan advanced / to be advanced to the licensor for the completion of its hotel project. Therefore, in fact original plaintiffs being the licensee are aware that there shall be charges / mortgages on the entire premises and the buildings including the shops. In that view of the matter, now after a number of years, plaintiffs cannot be permitted to challenge the mortgages / charges created on the entire premises including shops.8. The High Court while allowing the amendment application in exercise of powers under Order 6 Rule 17 of the Code of Civil Procedure has not properly appreciated the fact and / or considered the fact that as such, by granting such an amendment and permitting plaintiffs to amend the plaints incorporating the prayer clause to declare the respective charges / mortgages void ab-initio, the nature of the suits will be changed. As per the settled proposition of law, if, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in that case, the Court would not be justified in allowing the amendment. It would also result in misjoinder of causes of action.9. From the impugned order passed by the High Court, it appears that what has weighed with the High Court is that plaintiffs, is the dominus litus and heavy reliance is placed in the case of Kasturi (supra). However, the principle that the plaintiffs is the dominus litus shall be applicable only in a case where parties sought to be added as defendants are necessary and / or proper parties. Plaintiffs cannot be permitted to join any party as a defendant who may not be necessary and / or proper parties at all on the ground that the plaintiffs is the dominus litus.9.1. Even otherwise, High Court has materially erred in relying upon the decision in the case of Kasturi (supra). In the case of Kasturi (supra) before this Court the suit was for specific performance of the agreement to sell and the subsequent purchasers purchased the very property for which decree for specific performance was sought. Therefore, on facts said decision is not applicable to the facts of the case on hand.10. In view of the above and for the reasons stated above, High Court has committed serious error in allowing the application under Order 6 Rule 17 and under Order 1 Rule 10 of the Code of Civil Procedure by permitting original plaintiffs to amend the plaint including prayer clause by which, the plaintiffs have now prayed to declare the charges / mortgages on the entire premises as void-ab initio and permitting the original plaintiffs to join / implead the respective banks / financial institutions as party defendant. The alleged rights of the plaintiffs as perpetual license holders are yet to be adjudicated upon. The licenses of the original plaintiffs have been revoked. Therefore, in a suit challenging revocation of the respective licenses, the plaintiffs cannot be permitted to challenge the respective mortgages / charges created on the entire premises as void ab-initio. It is the case on behalf of the appellant that apart from the fact that first charge was created in the year 1982, thereafter said mortgages have been rolled over, refinanced and replaced from time to time for ensuring the continuous development of the Hotel Project / premises which requires consistent upkeep, renovation and upgradation from time to time. Under the circumstances, the impugned orders passed by the High Court allowing the application under Order 6 Rule 17 and under Order 1 Rule 10 of the Code of Civil Procedure are unsustainable, both on facts as well as on law.
| 1 | 4,664 |
### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
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the original plaintiffs to amend their respective plaints so as to declare void ab-initio all the mortgages / charges on the entire premises in question and also implead mortgagee banks / financial institutions for that purpose. 7.2. At the outset, it is required to be noted that mortgages have been created in favour of different mortgage banks/ financial institutions since 1982 onwards which have been extended and / or rolled over, refinanced and replaced from time to time. The mortgages are created not only with respect to the shops / premises occupied by the original plaintiffs, but with respect to the entire premises / Hyatt Residency Hotel. The respective original plaintiffs are granted licenses for individual shops which are part of entire premises. According to the appellant, first mortgage was created in the year 1982. At that time, none of the original plaintiffs were license holders. They have been granted license for individual shops at the premises from 1983 onwards to various shopkeepers including respondents- original plaintiffs. The appellant, being owner – licensor, has terminated the respective licenses granted in favour of respective license holders – original plaintiffs. The revocation of the license is subject matter of respective suits. Therefore, the only controversy / issue in the respective suits is with respect to revocation of the respective licenses. By way of an amendment of the plaint the plaintiffs now want to challenge the mortgages / charges on the entire premises created by the appellant. As such, the original plaintiffs are not at all concerned with the mortgages created by the appellant which is required for the continuous development of the hotel. By the purported amendment, the original plaintiffs have now prayed to declare that all the mortgages / charges created on the premises as void ab-initio. Even such a prayer can be said to be too vague. How the original plaintiffs can now can be permitted to challenge various mortgages / charges created from time to time. At this stage, it is required to be noted that even under the License Agreement (clause 13) the Licensor shall have the right to create charges / mortgages as and by way of first charge on its land, premises and the buildings (including shops) constructed and to be constructed, in favour of financial institutions and banks as security for their terms loan advanced / to be advanced to the licensor for the completion of its hotel project. Therefore, in fact original plaintiffs being the licensee are aware that there shall be charges / mortgages on the entire premises and the buildings including the shops. In that view of the matter, now after a number of years, plaintiffs cannot be permitted to challenge the mortgages / charges created on the entire premises including shops. 8. The High Court while allowing the amendment application in exercise of powers under Order 6 Rule 17 of the Code of Civil Procedure has not properly appreciated the fact and / or considered the fact that as such, by granting such an amendment and permitting plaintiffs to amend the plaints incorporating the prayer clause to declare the respective charges / mortgages void ab-initio, the nature of the suits will be changed. As per the settled proposition of law, if, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in that case, the Court would not be justified in allowing the amendment. It would also result in misjoinder of causes of action. 9. From the impugned order passed by the High Court, it appears that what has weighed with the High Court is that plaintiffs, is the dominus litus and heavy reliance is placed in the case of Kasturi (supra). However, the principle that the plaintiffs is the dominus litus shall be applicable only in a case where parties sought to be added as defendants are necessary and / or proper parties. Plaintiffs cannot be permitted to join any party as a defendant who may not be necessary and / or proper parties at all on the ground that the plaintiffs is the dominus litus. 9.1. Even otherwise, High Court has materially erred in relying upon the decision in the case of Kasturi (supra). In the case of Kasturi (supra) before this Court the suit was for specific performance of the agreement to sell and the subsequent purchasers purchased the very property for which decree for specific performance was sought. Therefore, on facts said decision is not applicable to the facts of the case on hand. 10. In view of the above and for the reasons stated above, High Court has committed serious error in allowing the application under Order 6 Rule 17 and under Order 1 Rule 10 of the Code of Civil Procedure by permitting original plaintiffs to amend the plaint including prayer clause by which, the plaintiffs have now prayed to declare the charges / mortgages on the entire premises as void-ab initio and permitting the original plaintiffs to join / implead the respective banks / financial institutions as party defendant. The alleged rights of the plaintiffs as perpetual license holders are yet to be adjudicated upon. The licenses of the original plaintiffs have been revoked. Therefore, in a suit challenging revocation of the respective licenses, the plaintiffs cannot be permitted to challenge the respective mortgages / charges created on the entire premises as void ab-initio. It is the case on behalf of the appellant that apart from the fact that first charge was created in the year 1982, thereafter said mortgages have been rolled over, refinanced and replaced from time to time for ensuring the continuous development of the Hotel Project / premises which requires consistent upkeep, renovation and upgradation from time to time. Under the circumstances, the impugned orders passed by the High Court allowing the application under Order 6 Rule 17 and under Order 1 Rule 10 of the Code of Civil Procedure are unsustainable, both on facts as well as on law.
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Balasaheb Arjun Torbole Vs. The Administrator & Divnl.Commr
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area for the purposes of approving a slum rehabilitation scheme for such area. As discussed earlier, we find no merit in the submission on behalf of the appellants that the required particulars were not compiled and were not available in the form of Annexure II for the private lands or it led to illegality and vitiated the approval of the particular slum rehabilitation scheme for the slum area in question. In our view, the authorities had verified the particulars contained in Annexure II and thereafter they were entitled to treat the entire slum area existing over private lands as well as Municipal Corporation lands as one slum area and since consent of 70% or more of slum dwellers of such area was available, the authorities did not commit any illegality so as to vitiate the grant of approval for slum development scheme in question. 27. The appellants have relied upon judgment of Bombay High Court in the case of Om Sai Darshan CHS v. State of Maharashtra reported in 2006(5) All.MR 323 in support of the proposition stated in paragraph 15 of that judgment that so far as grant of approval to Annexure II is concerned, the power vests in the competent authority and not in the SRA. There is no quarrel with the aforesaid proposition. In this case the facts reveal that Annexure II was verified by the competent authority and it found after verification that only 25% of the slum dwellers over private plots had given their consent for the rehabilitation scheme. The opinion regarding adequacy of consent and its legal implications in the context of a larger slum area extending to private as well as municipal lands was beyond the competence of the authority having power to verify the actual state of affairs in respect of particulars of Annexure II. The opinion of the competent verifying or certifying authority that consent was only of 25% slum dwellers was based upon a wrong premise that the slum area was required to be divided in at least 2 parts, based upon ownership of the lands comprising the entire slum area. This view was rightly not accepted by the SRA. When the entire slum area was treated as one slum area on which more than 70% slum dwellers were found to have given their consent, there was no legal impediment in acting upon the particulars already verified as per Annexure II available with the authorities. Hence in the facts of the case the judgment noted above does not help the appellants. 28. Mr. Parikh, has also placed reliance upon a judgment of this Court in the case of Pramila Suman Singh v. State of Maharashtra (2009) 2 SCC 729 in support of the proposition that a composite slum area could not be declared as such when it covered private lands as well as Municipal Corporation lands. The facts of that case were quite different and as noted in paragraph 29, the SRA had rejected the plan of the appellant of that case for as many as five reasons including the reason that appellant had not submitted proper Annexure II. In paragraph 52 this Court had recorded its satisfaction that the appellant had not annexed Annexure II in respect of concerned plot along with her original application and therefore this Court found no legal infirmity in the impugned order of the authority. Clearly the issue decided in that case was quite different and hence the judgment is not of any help to the appellants in this case. It may however be useful to note that in para 50 this Court made observations to the effect that (i) Annexure II may not have any statutory force as it was a requirement under the guidelines and (ii) a conformity with the guidelines is required to be maintained unless the guidelines are found to be ultra vires. In the context of facts of the present case it is sufficient to observe that non statutory provisions can hardly be treated as mandatory unless their non observance is shown to have caused legal injury by affecting some valuable rights of the writ petitioners. As discussed earlier no such case could be made out by the appellants so as to require interference on account of alleged shortcomings in preparation or verification of Annexure II. 29. The written submissions raise some other minor issues too but these were not raised before and decided by the High Court. Hence we refrain from going into such issues. It is, however, necessary to record that in the light of statutory provisions brought about through amendments in the 1966 Act and in the Mumbai Municipal Corporation Act, 1888 and in the light of provisions of 1971 Act, the SRA was competent to approve the Scheme by taking the required ancillary decisions.30. In course of arguments, it has been shown to us by filing details of petitioners/appellants that out of a total of 97, 60 are eligible and 33 non-eligible. Name of 4 petitioners, i.e., 90, 91, 93 and 97 are not in Annexure II to which several other persons have been added after further verification of later claims, during the pendency of the litigation. It has also been shown through a summary that pending the hearing of this appeal, 26 appellants have settled their dispute and handed over possession of their respective structures. The impugned judgment of the High Court also records in paragraph 25 that out of a total of 443 slum dwellers, 82% slum dwellers had already given consent for redevelopment of the slum and redevelopment is going on by allotment of permanent alternative accommodation to the slum dwellers. Majority of occupants of the municipal plot as noted in the High Court judgment had vacated their structures long back. Photographs produced before us show that redevelopment activity is going on and permanent structures have come up on a large area. Such facts also, in our estimate, were rightly considered by the High Court as relevant for dismissing the writ petitions.
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0[ds]21. In the present case, the only legal injury to appellants as per submissions of Mr. Parikh is that if the private plots were treated as separate slum area, the residents of these plots alone could have formed and carried out development scheme through their own cooperative society and gained some advantages including monetary. Such a plea is too far-fetched to establish legal injury to the appellants who claim to be slum dwellers and on such plea, in our considered view the appellants could not have been granted relief in writ jurisdiction which has been rightly denied to them, albeit for other reasons, after considering all their pleas on merits.22. The only other substantial issue raised by Mr. Parikh that there could have been no clubbing of private lands with municipal lands for purpose of counting consent of 70% of the slum dwellers is also found to be without any merits. Mr. Divan rightly relied upon DCR of 1991 and particularly clause 1.15 of Appendix IV which clearly shows that 70% or more of the eligible hutment dwellers in a slum or pavement ina viable stretch at oneplace can agree to join a rehabilitation scheme. There is no merit in the submission on behalf of the appellants that the clausea viable stretch at oneshould be read only in conjunction with the wordand not the wordalthough the use of the wordbetween slum and pavement clearly shows both have to be treated at same footing and therefore both are qualified by the clausea viable stretch at oneClause 3.14 providing for amalgamation/subdivision of plots of Appendix IV of the DCR 1991 also goes a long way to support the submission that the statutory provisions clearly permit natural amalgamation/sub-division of plots for the sanction of slum rehabilitation project as well as for planning of Floor Space Index (FSI) thereto. Clause 7.7 and 7.8 in the same Appendix D lend further support to the aforesaid arguments of Mr. Divan.23. Although it is not directly related to issues under consideration already noticed earlier, Mr. Sundaram has placed reliance on several provisions of Appendix IV noted above which is part of DCR 1991 to highlight that in respect of private plots the owner has been given a recognition and role. The relevant provisions to support the aforesaid submission are in the introductory para 1 of Appendix IV as well as in schedule annexed to the general slum rehabilitation scheme notified by the Government of Maharashtra in the Gazette dated 09.04.1998. The relevant provisions such as 2(B) and 11(B) & (C) do show that the owner can also be the developer for implementing slum rehabilitation scheme and before carrying out the redevelopment work of the slum located over private lands, the consent of owner is required otherwise in given circumstances the Government will have to acquire such land if slum rehabilitation scheme is to be implemented.In our considered view, the submissions advanced by Mr. Divan, Mr. Sundaram and Mr. Shishodia deserve to be accepted as having merit. Mr. Atul Chitale, learned senior advocate for the Municipal Corporation has referred to Section 159 of the Maharashtra Regional and Town Planning Act, 1966 for showing that it vests power to make regulations and, therefore, the Development Control Regulations framed under such statutory provision have to be followed by the concerned authorities and such regulations providing for eligibility for redevelopment scheme, definitions of slum, qualification as slum area on account of being censused or declared as such, their treatment as deemed slum rehabilitation areas etc. cannot be ignored by the concerned authorities be it the Municipal Corporation or the SRA until a particular provision is challenged and found to be ultra vires on account of lack of power to frame the regulations or conflict with any superior law. According to Mr. Chitale, in the present case the authorities have acted in accordance with law and, therefore, neither the Committee nor the High Court found it fit to interfere with the approved rehabilitation scheme which will benefit all the slum dwellers of the slum area comprising of lands belonging to the Municipal Corporation as well as private lands and for which consent of more than 70% of such slum dwellers was found available after proper verification.26. In view of discussions made above and on finding merit in the submissions advanced on behalf of respondents we record our agreement with the views expressed by the High Court that there is no illegality in clubbing of private land and Municipal Corporation land for declaring a contiguous area as a slum area for the purposes of approving a slum rehabilitation scheme for such area. As discussed earlier, we find no merit in the submission on behalf of the appellants that the required particulars were not compiled and were not available in the form of Annexure II for the private lands or it led to illegality and vitiated the approval of the particular slum rehabilitation scheme for the slum area in question. In our view, the authorities had verified the particulars contained in Annexure II and thereafter they were entitled to treat the entire slum area existing over private lands as well as Municipal Corporation lands as one slum area and since consent of 70% or more of slum dwellers of such area was available, the authorities did not commit any illegality so as to vitiate the grant of approval for slum development scheme in question.The written submissions raise some other minor issues too but these were not raised before and decided by the High Court. Hence we refrain from going into such issues. It is, however, necessary to record that in the light of statutory provisions brought about through amendments in the 1966 Act and in the Mumbai Municipal Corporation Act, 1888 and in the light of provisions of 1971 Act, the SRA was competent to approve the Scheme by taking the required ancillary decisions.30. In course of arguments, it has been shown to us by filing details of petitioners/appellants that out of a total of 97, 60 are eligible and 33 non-eligible. Name of 4 petitioners, i.e., 90, 91, 93 and 97 are not in Annexure II to which several other persons have been added after further verification of later claims, during the pendency of the litigation. It has also been shown through a summary that pending the hearing of this appeal, 26 appellants have settled their dispute and handed over possession of their respective structures. The impugned judgment of the High Court also records in paragraph 25 that out of a total of 443 slum dwellers, 82% slum dwellers had already given consent for redevelopment of the slum and redevelopment is going on by allotment of permanent alternative accommodation to the slum dwellers. Majority of occupants of the municipal plot as noted in the High Court judgment had vacated their structures long back. Photographs produced before us show that redevelopment activity is going on and permanent structures have come up on a large area. Such facts also, in our estimate, were rightly considered by the High Court as relevant for dismissing the writ petitions.
| 0 | 8,658 |
### Instruction:
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area for the purposes of approving a slum rehabilitation scheme for such area. As discussed earlier, we find no merit in the submission on behalf of the appellants that the required particulars were not compiled and were not available in the form of Annexure II for the private lands or it led to illegality and vitiated the approval of the particular slum rehabilitation scheme for the slum area in question. In our view, the authorities had verified the particulars contained in Annexure II and thereafter they were entitled to treat the entire slum area existing over private lands as well as Municipal Corporation lands as one slum area and since consent of 70% or more of slum dwellers of such area was available, the authorities did not commit any illegality so as to vitiate the grant of approval for slum development scheme in question. 27. The appellants have relied upon judgment of Bombay High Court in the case of Om Sai Darshan CHS v. State of Maharashtra reported in 2006(5) All.MR 323 in support of the proposition stated in paragraph 15 of that judgment that so far as grant of approval to Annexure II is concerned, the power vests in the competent authority and not in the SRA. There is no quarrel with the aforesaid proposition. In this case the facts reveal that Annexure II was verified by the competent authority and it found after verification that only 25% of the slum dwellers over private plots had given their consent for the rehabilitation scheme. The opinion regarding adequacy of consent and its legal implications in the context of a larger slum area extending to private as well as municipal lands was beyond the competence of the authority having power to verify the actual state of affairs in respect of particulars of Annexure II. The opinion of the competent verifying or certifying authority that consent was only of 25% slum dwellers was based upon a wrong premise that the slum area was required to be divided in at least 2 parts, based upon ownership of the lands comprising the entire slum area. This view was rightly not accepted by the SRA. When the entire slum area was treated as one slum area on which more than 70% slum dwellers were found to have given their consent, there was no legal impediment in acting upon the particulars already verified as per Annexure II available with the authorities. Hence in the facts of the case the judgment noted above does not help the appellants. 28. Mr. Parikh, has also placed reliance upon a judgment of this Court in the case of Pramila Suman Singh v. State of Maharashtra (2009) 2 SCC 729 in support of the proposition that a composite slum area could not be declared as such when it covered private lands as well as Municipal Corporation lands. The facts of that case were quite different and as noted in paragraph 29, the SRA had rejected the plan of the appellant of that case for as many as five reasons including the reason that appellant had not submitted proper Annexure II. In paragraph 52 this Court had recorded its satisfaction that the appellant had not annexed Annexure II in respect of concerned plot along with her original application and therefore this Court found no legal infirmity in the impugned order of the authority. Clearly the issue decided in that case was quite different and hence the judgment is not of any help to the appellants in this case. It may however be useful to note that in para 50 this Court made observations to the effect that (i) Annexure II may not have any statutory force as it was a requirement under the guidelines and (ii) a conformity with the guidelines is required to be maintained unless the guidelines are found to be ultra vires. In the context of facts of the present case it is sufficient to observe that non statutory provisions can hardly be treated as mandatory unless their non observance is shown to have caused legal injury by affecting some valuable rights of the writ petitioners. As discussed earlier no such case could be made out by the appellants so as to require interference on account of alleged shortcomings in preparation or verification of Annexure II. 29. The written submissions raise some other minor issues too but these were not raised before and decided by the High Court. Hence we refrain from going into such issues. It is, however, necessary to record that in the light of statutory provisions brought about through amendments in the 1966 Act and in the Mumbai Municipal Corporation Act, 1888 and in the light of provisions of 1971 Act, the SRA was competent to approve the Scheme by taking the required ancillary decisions.30. In course of arguments, it has been shown to us by filing details of petitioners/appellants that out of a total of 97, 60 are eligible and 33 non-eligible. Name of 4 petitioners, i.e., 90, 91, 93 and 97 are not in Annexure II to which several other persons have been added after further verification of later claims, during the pendency of the litigation. It has also been shown through a summary that pending the hearing of this appeal, 26 appellants have settled their dispute and handed over possession of their respective structures. The impugned judgment of the High Court also records in paragraph 25 that out of a total of 443 slum dwellers, 82% slum dwellers had already given consent for redevelopment of the slum and redevelopment is going on by allotment of permanent alternative accommodation to the slum dwellers. Majority of occupants of the municipal plot as noted in the High Court judgment had vacated their structures long back. Photographs produced before us show that redevelopment activity is going on and permanent structures have come up on a large area. Such facts also, in our estimate, were rightly considered by the High Court as relevant for dismissing the writ petitions.
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604 |
Commissioner of Income Tax, Bangalore Vs. K. Y. Pilliah and Sons
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the Appellate Assistant Commissioner ". On that view, the second question was also decided in favour of the assessees. The Commissioner of Income-tax has appealed to this court with special leaveThe true income, profits and gains of the assessees could obviously not be deduced from the books of account of the assessees. That was conceded by the assessees. The assessees had carried on transactions in the name of the son of the principal partner, and also in the name of the accountant of the business, and those transactions, besides other transactions, were never entered in the books of account. The Income-tax Officer, therefore, was of the view that computation of taxable income could not be based on the books of account of the assessees. The assessees had disclosed a turnover of Rs. 9, 42, 524-8-9 and a gross profit of Rs. 38, 857-15-6. These figures were in the view of the Income-tax Officer unreliable : the first, because it did not include sales which were " kept out of the accounts ", and the second, because in the light of profits disclosed by other dealers in the same business, it was wholly inadequate. He, therefore, estimated the turnover at Rs. 12 lakhs and the rate of gross profits on the turnover at 6.5%. Transactions of an amount exceeding Rs. 1 lakh were admitted by the assessees as " kept out of the accounts ". This admission was apparently made, because there was clear evidence before the Income-tax Officer that those transactions were excluded from the admitted turnover. There were, besides those transactions, other transactions with Messrs. Hameedia Stores and T. Venkataram of which the extent could not be ascertained4. On the facts disclosed, the Income-tax Officer could exercise the power to estimate the turnover. The power must of course be exercised not arbitrarily, but judicially in the light of relevant materials. It is, however, not even suggested that the Income-tax Officer acted arbitrarily or capriciously in exercising his power to estimate the undisclosed turnover. The estimate made by the Income-tax Officer was affirmed by the Appellate Assistant Commissioner and the Tribunal. There is no reason to believe that the estimate made by the Income-tax Officer was not reasonably madeThe Income-tax Officer computed the profits from the business at a flat rate. The gross profits disclosed by the assessees yielded a rate of 3.8%. It appeared, however, that the normal rate of gross profits in similar business carried on by other merchants in the locality varied from 6 to 7%. The assessees furnished no explanation at all as to why profit at the normal rate was not earned. Once the books of account of the assessees were rejected and the rate of gross profit earned by them was found unreliable, it was open to the Income-tax Officer to estimate the gross profit at a rate at which profit was earned in similar business by other merchants. We are unable to hold that the reasons recorded by the Tribunal in support of its order levying tax on profits computed on estimated turnover of Rs. 12 lakhs at the rate of 6.5 % were " irrelevant "5. The form of the second question needs some explanation. The Income-tax Officer worked out the gross profit on the estimated turnover of Rs. 12 lakhs at 6.5% and that profit amounted to Rs. 78, 000. The assessees had by their return disclosed a gross profit of Rs. 36, 858. In adopting the rate of 6.5% on the estimated turnover, the Income-tax Officer added to the income returned Rs. 41, 142, being the additional profit, and levied tax thereon. It was not suggested that there were any other admissible outgoings which could be debited against that amount. The question whether Rs. 41, 142 were liable to be taxed falls to be determined under the first question. The second question only relates to the amount of Rs. 7, 000 which was the cash credit item which represented an unexplained entry in the books of account of the assessees. In respect of that amount, the Income-tax Officer held that the explanation of the assessees was untrue and the Appellate Assistant Commissioner and the Tribunal agreed with that view. The Income-tax Appellate Tribunal is the final fact-finding authority and normally it should record its conclusion on every disputed question raised before it, setting out its reasons in support of its conclusion. But, in failing to record reasons, when the Appellate Tribunal fully agrees with the view expressed by the Appellate Assistant Commissioner and has no other ground to record in support of its conclusion, it does not act illegally or irregularly, merely because it does not repeat the grounds of the Appellate Assistant Commissioner on which the decision was given against the assessees or the department. The criticism made by the High Court that the Tribunal had " failed to perform its duty in merely affirming the conclusion of the Appellate Assistant Commissioner " is apparently unmerited. On the merits of the claim for exclusion of the amount of Rs. 7, 000, there is no question of law which could be said to arise out of the order of the Tribunal. The assessees had credited Sampangappa with two sums of Rs. 6, 000 and Rs. 1, 000 in the months of November and December, 1950, respectively. It was clear that Sampangappa had not advanced at the material time any amount to the assessees. The explanation of the assessees was, therefore, untrueIt was urged before the Appellate Assistant Commissioner and the Tribunal that the amount of Rs. 7, 000 could still be attributed to the " secreted profits." But no such explanation was furnished by the assessees ; and if the Tribunal declined to accept that contention, no question of law arises from its finding in that behalf. It cannot be said that the Tribunal was on the view expressed by it not justified in bringing to tax the amount of Rs. 7, 000, and no question of double taxation arises
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1[ds]4. On the facts disclosed, theOfficer could exercise the power to estimate the turnover. The power must of course be exercised not arbitrarily, but judicially in the light of relevant materials. It is, however, not even suggested that theOfficer acted arbitrarily or capriciously in exercising his power to estimate the undisclosed turnover. The estimate made by theOfficer was affirmed by the Appellate Assistant Commissioner and the Tribunal. There is no reason to believe that the estimate made by theOfficer was not reasonably madeTheOfficer computed the profits from the business at a flat rate. The gross profits disclosed by the assessees yielded a rate of 3.8%. It appeared, however, that the normal rate of gross profits in similar business carried on by other merchants in the locality varied from 6 to 7%. The assessees furnished no explanation at all as to why profit at the normal rate was not earned. Once the books of account of the assessees were rejected and the rate of gross profit earned by them was found unreliable, it was open to theOfficer to estimate the gross profit at a rate at which profit was earned in similar business by other merchants. We are unable to hold that the reasons recorded by the Tribunal in support of its order levying tax on profits computed on estimated turnover of Rs. 12 lakhs at the rate of 6.5 % were " irrelevantx Appellate Tribunal is the finalauthority and normally it should record its conclusion on every disputed question raised before it, setting out its reasons in support of its conclusion. But, in failing to record reasons, when the Appellate Tribunal fully agrees with the view expressed by the Appellate Assistant Commissioner and has no other ground to record in support of its conclusion, it does not act illegally or irregularly, merely because it does not repeat the grounds of the Appellate Assistant Commissioner on which the decision was given against the assessees or the department. The criticism made by the High Court that the Tribunal had " failed to perform its duty in merely affirming the conclusion of the Appellate Assistant Commissioner " is apparently unmerited. On the merits of the claim for exclusion of the amount of Rs. 7, 000, there is no question of law which could be said to arise out of the order of the Tribunal. The assessees had credited Sampangappa with two sums of Rs. 6, 000 and Rs. 1, 000 in the months of November and December, 1950, respectively. It was clear that Sampangappa had not advanced at the material time any amount to the assessees. The explanation of the assessees was, therefore, untrueIt was urged before the Appellate Assistant Commissioner and the Tribunal that the amount of Rs. 7, 000 could still be attributed to the " secreted profits." But no such explanation was furnished by the assessees ; and if the Tribunal declined to accept that contention, no question of law arises from its finding in that behalf. It cannot be said that the Tribunal was on the view expressed by it not justified in bringing to tax the amount of Rs. 7, 000, and no question of double taxation arises
| 1 | 2,192 |
### Instruction:
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the Appellate Assistant Commissioner ". On that view, the second question was also decided in favour of the assessees. The Commissioner of Income-tax has appealed to this court with special leaveThe true income, profits and gains of the assessees could obviously not be deduced from the books of account of the assessees. That was conceded by the assessees. The assessees had carried on transactions in the name of the son of the principal partner, and also in the name of the accountant of the business, and those transactions, besides other transactions, were never entered in the books of account. The Income-tax Officer, therefore, was of the view that computation of taxable income could not be based on the books of account of the assessees. The assessees had disclosed a turnover of Rs. 9, 42, 524-8-9 and a gross profit of Rs. 38, 857-15-6. These figures were in the view of the Income-tax Officer unreliable : the first, because it did not include sales which were " kept out of the accounts ", and the second, because in the light of profits disclosed by other dealers in the same business, it was wholly inadequate. He, therefore, estimated the turnover at Rs. 12 lakhs and the rate of gross profits on the turnover at 6.5%. Transactions of an amount exceeding Rs. 1 lakh were admitted by the assessees as " kept out of the accounts ". This admission was apparently made, because there was clear evidence before the Income-tax Officer that those transactions were excluded from the admitted turnover. There were, besides those transactions, other transactions with Messrs. Hameedia Stores and T. Venkataram of which the extent could not be ascertained4. On the facts disclosed, the Income-tax Officer could exercise the power to estimate the turnover. The power must of course be exercised not arbitrarily, but judicially in the light of relevant materials. It is, however, not even suggested that the Income-tax Officer acted arbitrarily or capriciously in exercising his power to estimate the undisclosed turnover. The estimate made by the Income-tax Officer was affirmed by the Appellate Assistant Commissioner and the Tribunal. There is no reason to believe that the estimate made by the Income-tax Officer was not reasonably madeThe Income-tax Officer computed the profits from the business at a flat rate. The gross profits disclosed by the assessees yielded a rate of 3.8%. It appeared, however, that the normal rate of gross profits in similar business carried on by other merchants in the locality varied from 6 to 7%. The assessees furnished no explanation at all as to why profit at the normal rate was not earned. Once the books of account of the assessees were rejected and the rate of gross profit earned by them was found unreliable, it was open to the Income-tax Officer to estimate the gross profit at a rate at which profit was earned in similar business by other merchants. We are unable to hold that the reasons recorded by the Tribunal in support of its order levying tax on profits computed on estimated turnover of Rs. 12 lakhs at the rate of 6.5 % were " irrelevant "5. The form of the second question needs some explanation. The Income-tax Officer worked out the gross profit on the estimated turnover of Rs. 12 lakhs at 6.5% and that profit amounted to Rs. 78, 000. The assessees had by their return disclosed a gross profit of Rs. 36, 858. In adopting the rate of 6.5% on the estimated turnover, the Income-tax Officer added to the income returned Rs. 41, 142, being the additional profit, and levied tax thereon. It was not suggested that there were any other admissible outgoings which could be debited against that amount. The question whether Rs. 41, 142 were liable to be taxed falls to be determined under the first question. The second question only relates to the amount of Rs. 7, 000 which was the cash credit item which represented an unexplained entry in the books of account of the assessees. In respect of that amount, the Income-tax Officer held that the explanation of the assessees was untrue and the Appellate Assistant Commissioner and the Tribunal agreed with that view. The Income-tax Appellate Tribunal is the final fact-finding authority and normally it should record its conclusion on every disputed question raised before it, setting out its reasons in support of its conclusion. But, in failing to record reasons, when the Appellate Tribunal fully agrees with the view expressed by the Appellate Assistant Commissioner and has no other ground to record in support of its conclusion, it does not act illegally or irregularly, merely because it does not repeat the grounds of the Appellate Assistant Commissioner on which the decision was given against the assessees or the department. The criticism made by the High Court that the Tribunal had " failed to perform its duty in merely affirming the conclusion of the Appellate Assistant Commissioner " is apparently unmerited. On the merits of the claim for exclusion of the amount of Rs. 7, 000, there is no question of law which could be said to arise out of the order of the Tribunal. The assessees had credited Sampangappa with two sums of Rs. 6, 000 and Rs. 1, 000 in the months of November and December, 1950, respectively. It was clear that Sampangappa had not advanced at the material time any amount to the assessees. The explanation of the assessees was, therefore, untrueIt was urged before the Appellate Assistant Commissioner and the Tribunal that the amount of Rs. 7, 000 could still be attributed to the " secreted profits." But no such explanation was furnished by the assessees ; and if the Tribunal declined to accept that contention, no question of law arises from its finding in that behalf. It cannot be said that the Tribunal was on the view expressed by it not justified in bringing to tax the amount of Rs. 7, 000, and no question of double taxation arises
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605 |
Memon Abdul Karim Haji Tayab Vs. Deputy Custodian General, New Delhi And Others
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property, namely, ;the actionable claim. The contention of the appellant that S. 48(1) will not apply to the recovery of this sum of money must therefore fail and the Custodian would have the right to recover the sum of money as it is payable in respect of the evacuee property of the appellants sister, namely, the right which she had to recover the sum from the appellant, and it is this right which vested in the Custodian. The Custodian could not take action under S. 9 by physically seizing the amount because the amount cannot be treated as specific property which is liable to be seized under that Section. If the appellants sister had the right to recover this amount from the appellant that right would be incorporeal property which would vest in the Custodian and in respect of which action could be taken under S. 48 as amended and not under S. 9 of the Act. The contention of the appellant that S. 48(1) and (2) do not apply to this case must therefore fail.5. The next contention is that in any case treating the amount as a deposit the right to recover it had become barred and therefore the Custodian could not recover it under this Section and that sub-s. (3) of S. 48 would not apply as it affects vested rights and is not procedural in nature and therefore could not be applied retrospectively. Some dates would be relevant in this connection. On the findings of the authorities concerned, it appears that the deposit was made sometime in January 1946. The appellants sister migrated sometimes between June to August 1949. According to the law in force in that area, at the relevant time on the date of migration of the appellants sister, she became an evacuee and her property would vest in the Custodian on such date. So her right to recover this amount from the appellant would vest in the Custodian sometime between June to August 1949, if it was still alive under the law of limitation that in such cases only the remedy is barred though the right remains. Further as this was a deposit, limitation would run at the earliest from the date of demand and there is no evidence that any demand was made by the appellants sister for the return of the money before she migrated to Pakistan. Therefore, the period of limitation had not even begun to run on the date the appellants sister migrated to Pakistan, assuming Art. 60 of the Limitation Act, No. 9 of 1908 applied. Consequently the right of the appellants sister to recover the amount vested in the Custodian and was not barred by limitation at the time when she became an evacuee. The demand was made for the first time on January 10, 1952 by the Assistant Custodian and time would run from that date, at the earliest.6. Then it is urged that even if the actionable claim vested in the custodian, the demand in this case was made for the first time on January 10, 1952 and therefore under Art. 60 of the Limitation Act, the right to recover the amount would be barred in January 1955, and consequently no proceeding could be taken under S. 48 to recover the same after January 1955. It is further urged that the amended Act came into force on October 22, 1956 and sub-s. (3) would only apply to such cases where the limitation had not expired before that date. We do not think it necessary for purposes of the present appeal to decide the effect of sub-s. (3) of S. 48, for the appellant never contested before the authorities concerned that recovery could not be made under S. 48 even if the amount was treated as a deposit. What the appellant had contended before the authorities concerned was that recovery would be barred as the amount was given to him as a loan. The appellant therefore cannot now for the first time in this Court take the plea that recovery could not be made under S. 48 and sub-s. (3) thereof would not apply even if the amount is treated as a deposit. This contention thus raised in this Court for the first time raises a question as to the effect of sub-s. (3) of S. 48.Besides the effect of S. 48 (3), it is contended for the respondent that if this question had been raised before the proper authorities evidence might have been led to show that the recovery was not barred even for the case proceeded in the assumption that Article 60 of the Limitation Act applied and proper defences could have been raised as for example the conditions on which the deposit was made i.e. either in demand or otherwise and acknowledgments of liability made by the appellant. Such defence would have raised questions of fact which have never been investigated. Therefore it is urged that the appellant should not be allowed to raise the point that the recovery would be barred even if the amount was treated as a deposit and should be confined to his case that this was a loan and not a deposit, for he never pleaded at any time before the authorities concerned that even if it was a deposit the recovery would be barred by time. We are of opinion that there is force in this contention on behalf of the respondents and we are not prepared to allow the appellant to raise the question whether the recovery would be barred even if the amount is treated as a deposit. In this view of the matter, it would not be necessary to consider the exact effect of S. 48 (3) and to decide whether it will apply even to cases where the recovery had become barred under the Limitation Act before October 22, 1956.We therefore do not allow the appellant to raise the point that the recovery would be barred even if the amount was a deposit.
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0[ds]We are of opinion that the argument is misconceived. Section 9 deals with the recovery of immovable property or specific movable property which can be physically seized; it does not deal with incorporeal evacuee property which may vest in the Custodian and which, for example, may be of the nature of an actionable claim. So far as actionable claims are concerned, they are dealt with by S. 48 as amended read with S. 10(2) (1). It is also a misconception to think that the amount of Rs. 85,000/- which is involved in this case is actually evacuee property. It is true that under S. 48 as amended, the Custodian can take action for recovery of such sums as may be due in respect of any evacuee property and if the sum of Rs. 85,000/- which was deposited with the appellant is actually evacuee property, the Custodian may not be able to take action under S. 48 (1) and (2) in respect of the same. But the property which vested in the Custodian was not the actual money in specie lying with the appellant who must be treated as a banker with respect to the property with him; on the other hand the property which vested in the Custodian would be the right of the appellants sister to recover the amount from the appellant and that would be incorporeal property in the form of an actionable claim. It is in respect of that actionable claim that the Custodian can proceed under S. 48, sub-secs. (1) and (2), to recover the sum payable to him in respect of that property, namely, ;the actionable claim. The contention of the appellant that S. 48(1) will not apply to the recovery of this sum of money must therefore fail and the Custodian would have the right to recover the sum of money as it is payable in respect of the evacuee property of the appellants sister, namely, the right which she had to recover the sum from the appellant, and it is this right which vested in the Custodian. The Custodian could not take action under S. 9 by physically seizing the amount because the amount cannot be treated as specific property which is liable to be seized under that Section. If the appellants sister had the right to recover this amount from the appellant that right would be incorporeal property which would vest in the Custodian and in respect of which action could be taken under S. 48 as amended and not under S. 9 of the Act. The contention of the appellant that S. 48(1) and (2) do not apply to this case must thereforethe findings of the authorities concerned, it appears that the deposit was made sometime in January 1946. The appellants sister migrated sometimes between June to August 1949. According to the law in force in that area, at the relevant time on the date of migration of the appellants sister, she became an evacuee and her property would vest in the Custodian on such date. So her right to recover this amount from the appellant would vest in the Custodian sometime between June to August 1949, if it was still alive under the law of limitation that in such cases only the remedy is barred though the right remains. Further as this was a deposit, limitation would run at the earliest from the date of demand and there is no evidence that any demand was made by the appellants sister for the return of the money before she migrated to Pakistan. Therefore, the period of limitation had not even begun to run on the date the appellants sister migrated to Pakistan, assuming Art. 60 of the Limitation Act, No. 9 of 1908 applied. Consequently the right of the appellants sister to recover the amount vested in the Custodian and was not barred by limitation at the time when she became an evacuee. The demand was made for the first time on January 10, 1952 by the Assistant Custodian and time would run from that date, at thecontention thus raised in this Court for the first time raises a question as to the effect of sub-s. (3) of S. 48.Besides the effect of S. 48 (3), it is contended for the respondent that if this question had been raised before the proper authorities evidence might have been led to show that the recovery was not barred even for the case proceeded in the assumption that Article 60 of the Limitation Act applied and proper defences could have been raised as for example the conditions on which the deposit was made i.e. either in demand or otherwise and acknowledgments of liability made by the appellant. Such defence would have raised questions of fact which have never been investigated. Therefore it is urged that the appellant should not be allowed to raise the point that the recovery would be barred even if the amount was treated as a deposit and should be confined to his case that this was a loan and not a deposit, for he never pleaded at any time before the authorities concerned that even if it was a deposit the recovery would be barred by time. We are of opinion that there is force in this contention on behalf of the respondents and we are not prepared to allow the appellant to raise the question whether the recovery would be barred even if the amount is treated as a deposit. In this view of the matter, it would not be necessary to consider the exact effect of S. 48 (3) and to decide whether it will apply even to cases where the recovery had become barred under the Limitation Act before October 22, 1956.We therefore do not allow the appellant to raise the point that the recovery would be barred even if the amount was a deposit.
| 0 | 2,959 |
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property, namely, ;the actionable claim. The contention of the appellant that S. 48(1) will not apply to the recovery of this sum of money must therefore fail and the Custodian would have the right to recover the sum of money as it is payable in respect of the evacuee property of the appellants sister, namely, the right which she had to recover the sum from the appellant, and it is this right which vested in the Custodian. The Custodian could not take action under S. 9 by physically seizing the amount because the amount cannot be treated as specific property which is liable to be seized under that Section. If the appellants sister had the right to recover this amount from the appellant that right would be incorporeal property which would vest in the Custodian and in respect of which action could be taken under S. 48 as amended and not under S. 9 of the Act. The contention of the appellant that S. 48(1) and (2) do not apply to this case must therefore fail.5. The next contention is that in any case treating the amount as a deposit the right to recover it had become barred and therefore the Custodian could not recover it under this Section and that sub-s. (3) of S. 48 would not apply as it affects vested rights and is not procedural in nature and therefore could not be applied retrospectively. Some dates would be relevant in this connection. On the findings of the authorities concerned, it appears that the deposit was made sometime in January 1946. The appellants sister migrated sometimes between June to August 1949. According to the law in force in that area, at the relevant time on the date of migration of the appellants sister, she became an evacuee and her property would vest in the Custodian on such date. So her right to recover this amount from the appellant would vest in the Custodian sometime between June to August 1949, if it was still alive under the law of limitation that in such cases only the remedy is barred though the right remains. Further as this was a deposit, limitation would run at the earliest from the date of demand and there is no evidence that any demand was made by the appellants sister for the return of the money before she migrated to Pakistan. Therefore, the period of limitation had not even begun to run on the date the appellants sister migrated to Pakistan, assuming Art. 60 of the Limitation Act, No. 9 of 1908 applied. Consequently the right of the appellants sister to recover the amount vested in the Custodian and was not barred by limitation at the time when she became an evacuee. The demand was made for the first time on January 10, 1952 by the Assistant Custodian and time would run from that date, at the earliest.6. Then it is urged that even if the actionable claim vested in the custodian, the demand in this case was made for the first time on January 10, 1952 and therefore under Art. 60 of the Limitation Act, the right to recover the amount would be barred in January 1955, and consequently no proceeding could be taken under S. 48 to recover the same after January 1955. It is further urged that the amended Act came into force on October 22, 1956 and sub-s. (3) would only apply to such cases where the limitation had not expired before that date. We do not think it necessary for purposes of the present appeal to decide the effect of sub-s. (3) of S. 48, for the appellant never contested before the authorities concerned that recovery could not be made under S. 48 even if the amount was treated as a deposit. What the appellant had contended before the authorities concerned was that recovery would be barred as the amount was given to him as a loan. The appellant therefore cannot now for the first time in this Court take the plea that recovery could not be made under S. 48 and sub-s. (3) thereof would not apply even if the amount is treated as a deposit. This contention thus raised in this Court for the first time raises a question as to the effect of sub-s. (3) of S. 48.Besides the effect of S. 48 (3), it is contended for the respondent that if this question had been raised before the proper authorities evidence might have been led to show that the recovery was not barred even for the case proceeded in the assumption that Article 60 of the Limitation Act applied and proper defences could have been raised as for example the conditions on which the deposit was made i.e. either in demand or otherwise and acknowledgments of liability made by the appellant. Such defence would have raised questions of fact which have never been investigated. Therefore it is urged that the appellant should not be allowed to raise the point that the recovery would be barred even if the amount was treated as a deposit and should be confined to his case that this was a loan and not a deposit, for he never pleaded at any time before the authorities concerned that even if it was a deposit the recovery would be barred by time. We are of opinion that there is force in this contention on behalf of the respondents and we are not prepared to allow the appellant to raise the question whether the recovery would be barred even if the amount is treated as a deposit. In this view of the matter, it would not be necessary to consider the exact effect of S. 48 (3) and to decide whether it will apply even to cases where the recovery had become barred under the Limitation Act before October 22, 1956.We therefore do not allow the appellant to raise the point that the recovery would be barred even if the amount was a deposit.
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0
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606 |
State Of Bhopal And Ors Vs. Champalal And Ors
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6, which are the key, provisions of the Act, Mr. Sen conceded that it would not be necessary to consider the validity of the other provisions and we accordingly refrain from doing so.14. This takes us to the second principal ground on which the respondents have succeeded, viz., that even if the Act be valid, the provisions of S. 7 were not complied with and as a result the demand made on the respondents for payment of an instalment of the tractorisation charges was unauthorised and illegal. It was Mr. Sens contention that the learned Judicial Commissioner was in error in upholding this contention The point arises this way. Section 5 makes provision for the constitution of a Reclamation Board. The Board consisted at the relevant date of the Development Commissioner as the Chairman, six non-official members who were members of the Legislative Assembly of the State besides five other officials with the Director, Land Reclamation as the Secretary of that Board. Section 7 entrusts this Board with the duty first of ascertaining the total expenditure incurred, or to be incurred, and then to equitably apportion it among those land-owners on whose lands eradication operations have been or would be conducted. Now, in the present case the facts were that the Central Government incurred the expenditure in the first instance by utilising the Central Tractor Organisation-a body set up by the Central Government-and then intimated to the State, Government both the total amount which they had expended andwhich was repayable to them by the State, as well as the manner in which the amount thus recoverable from the state was to be allocated among the several landholders. It is common ground that the Reclamation Board never met and consequently neither computed the total expenditure incurred or to be incurred for the eradication operations, nor did it make the allocation among the holders of the lands on which eradication operations were conducted. After referring to these features the respondents pointed out in their petitions that, without the requirements of S.7 being satisfied, they were informed of the contents of a letter dated October 29, 1954 from an Under Secretary to the Government of India to the Secretary to the Government of Bhopal-Development Department in which the amount to be recovered from the land owners for the deep ploughing of their lands was mentioned which amount, the revenue officials of the State were directed to recover. It is now admitted that this is the basis on which the impugned demands were made on the respondents.15. The learned Judicial Commissioner held that the terms of S. 7 were mandatory and that unless the mind of the Reclamation Board was brought to bear on the question, and the Board computed the total expenditure as well as the proper allocation of this sum among the several land-owners no lawful demand could be made under S. 8, nor could the same be recovered from the respondents. We find ourselves in entire agreement with the learned Judicial Commissioner in holding (1) that the procedure prescribed by S. 7 is mandatory and (2) that as admittedly there was no compliance with it no lawful demand could be made for the contribution payable by any landholder by the Central Government or by the State Government at the instance of the Central Government without recourse to the machinery provided by S. 7. The notices of demand were, therefore, properly quashed as illegal.16. It is only necessary to add that the validity of these notices of demand would arise only in the event of the crucial provisions of the Act-S. 4 and S. 6-being valid and in view of our conclusion as regards the constitutional validity of those provisions, even in the event of the terms of S. 7 being complied with there could be no lawful demand made on the respondents.17. There remain two minor points which were urged by Mr. Sen but neither of these need detain us long. The first of these was the effect on the present demand of the Madhya Pradesh Reclamation of Lands (Extension to Bhopal) Act, 1957. By this enactment the Madhya Pradesh Act which is somewhat analogous to but not identical with the Act now under consideration was extended to the Bhopal area. The argument of Mr. Sen was that by virtue of this extension of the Madhya Pradesh Act, even if the Bhopal Act were invalid, the demand made could be justified as made under the Madhya Pradesh Act. But the extension of the Act, in the present case, is of no avail to the appellant because that Act was brought into force only prospectively and not retrospectively. If therefore, the demand when made was illegal or invalid it cannot be sustained on the basis of the Madhya Pradesh Act. In the circumstances, it is unnecessary for us to consider the provisions of the Madhya Pradesh Act to find out how far, if retrospective they would affect the validity of the demand.18. The last of the points urged was that given it the Act was invalid and the demand could not be justified as a legal demand having regard to the terms of S. 7, still as eradication operations which are beneficial in their nature had been conducted on the lands of the respondents which had derived benefit therefrom, lands which the respondents still retained, the provisions of S. 70 of the Indian Contract Act were attracted and that on the bash of a quasi contract which that section postulates, the claim for compensation might be sustained. This raises larger questions for which there might be sufficient answers, but in view of the circumstance that it was not pleaded as a defence to the writ petitions before the Judicial Commissioner nor put forward in arguments before him, nor in the grounds of appeal or even in the statement of the case file on this court, we have not thought it proper to permit learned counsel to urge the ground at this stage.19.
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0[ds]. The preamble and long title of the Act make it clear that the enactment is one "for the reclamation and development of lands by the eradication of kans weed in certain areas in the State, the purpose being specified as the eradication of kans in area infested with it. The legislative policy behind the provision is thus writ large, and what remains and is left to the executive is to carry out that mandate and give effect to the law so as to achieve the purposes of the Act. The areas infested is manifestly not capable of legislative definition but must obviously be left to the executive to determine having regard to the intensity of the weed infestation and its distribution. There is thus legislative guidance offered of the criteria which must be borne in mind by the Government before any area is declared as a kans area and if the determination of the particular area is left to the executive it cannot be said to be any delegation of legislative power atthe circumstances, it is clear that possession of the Reclamation officer is exclusive and amounts to raking possession within Art. 31(2).Nor is there any force in the point about the shortness of the duration during which the owner is deprived of possession or rather the period during which the State through the Reclamation Officer is in possession of the land. As regards this it might be pointed out that the Act itself specifies no period of time within which the reclamation should be completed. Nor are we satisfied that the mere fact that this duration is not considerable has any materiality or relevance for considering whether there has been a taking possession of the land by the State.If the period during which the owner is deprived of possession be short the compensation payable to him might be less but that does not, in any manner, affect the reality of the dispossession or rather the taking of possession by the State within the meaning of Art. 31(2). We thus reach the position that there has been a taking possession by the State of the immovable property of the owner within thethe first place, the framers of the Act knew what compensation was and they made provision for compensation in S. 9 in respect of the injury suffered by the owner. In the context of this provision and its language they could certainly not be treated as considering the abstention from charging land revenue during the period when the land was not available to the owner as compensation. Secondly, even a cursory examination would demonstrate the fallacy underlying this submission. If the exemption from payment of land revenue should suffice as compensation for deprivation of possession for a time, it would follow that for possession of property being taken for ever or say for 99 years exemption from land revenue for that period would suffice as compensation. This would illustrate the utter untenability of this argument. Normally speaking, land revenue is charged on the basis that the owner is free under the law to utilise the land for profitable use. When, therefore, he is deprived of the opportunity of so utilising it, the State exempts him from payment of the same. This can in no sense be treated as compensation for the deprivation of possession. Besides, the theory of land revenue is that it represents a proportion of the income which the owner derives from the land, and is in theory fixed on the basis of allowing him some surplus over the States share.When by deprivation of possession he is prevented from making any income from the land, the exemption from payment of land revenue, offers him no compensation, only it alleviates his loss. In this view it is unnecessary for us to consider the question whether under Art. 31(2) as it stood at the relevant date, the compensation even if provided need be adequate and how far the adequacy could be justiciable. We have, therefore, no hesitation in saying that S. 4(1) read with S. 6(1)(b) is unconstitutional as violative of Art. 31(2).Sen conceded that it would not be necessary to consider the validity of the other provisions and we accordingly refrain from doingfind ourselves in entire agreement with the learned Judicial Commissioner in holding (1) that the procedure prescribed by S. 7 is mandatory and (2) that as admittedly there was no compliance with it no lawful demand could be made for the contribution payable by any landholder by the Central Government or by the State Government at the instance of the Central Government without recourse to the machinery provided by S. 7. The notices of demand were, therefore, properly quashed as illegal.16.The last of the points urged was that given it the Act was invalid and the demand could not be justified as a legal demand having regard to the terms of S. 7, still as eradication operations which are beneficial in their nature had been conducted on the lands of the respondents which had derived benefit therefrom, lands which the respondents still retained, the provisions of S. 70 of the Indian Contract Act were attracted and that on the bash of a quasi contract which that section postulates, the claim for compensation might be sustained. This raises larger questions for which there might be sufficient answers, but in view of the circumstance that it was not pleaded as a defence to the writ petitions before the Judicial Commissioner nor put forward in arguments before him, nor in the grounds of appeal or even in the statement of the case file on this court, we have not thought it proper to permit learned counsel to urge the ground at this stage.
| 0 | 6,783 |
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6, which are the key, provisions of the Act, Mr. Sen conceded that it would not be necessary to consider the validity of the other provisions and we accordingly refrain from doing so.14. This takes us to the second principal ground on which the respondents have succeeded, viz., that even if the Act be valid, the provisions of S. 7 were not complied with and as a result the demand made on the respondents for payment of an instalment of the tractorisation charges was unauthorised and illegal. It was Mr. Sens contention that the learned Judicial Commissioner was in error in upholding this contention The point arises this way. Section 5 makes provision for the constitution of a Reclamation Board. The Board consisted at the relevant date of the Development Commissioner as the Chairman, six non-official members who were members of the Legislative Assembly of the State besides five other officials with the Director, Land Reclamation as the Secretary of that Board. Section 7 entrusts this Board with the duty first of ascertaining the total expenditure incurred, or to be incurred, and then to equitably apportion it among those land-owners on whose lands eradication operations have been or would be conducted. Now, in the present case the facts were that the Central Government incurred the expenditure in the first instance by utilising the Central Tractor Organisation-a body set up by the Central Government-and then intimated to the State, Government both the total amount which they had expended andwhich was repayable to them by the State, as well as the manner in which the amount thus recoverable from the state was to be allocated among the several landholders. It is common ground that the Reclamation Board never met and consequently neither computed the total expenditure incurred or to be incurred for the eradication operations, nor did it make the allocation among the holders of the lands on which eradication operations were conducted. After referring to these features the respondents pointed out in their petitions that, without the requirements of S.7 being satisfied, they were informed of the contents of a letter dated October 29, 1954 from an Under Secretary to the Government of India to the Secretary to the Government of Bhopal-Development Department in which the amount to be recovered from the land owners for the deep ploughing of their lands was mentioned which amount, the revenue officials of the State were directed to recover. It is now admitted that this is the basis on which the impugned demands were made on the respondents.15. The learned Judicial Commissioner held that the terms of S. 7 were mandatory and that unless the mind of the Reclamation Board was brought to bear on the question, and the Board computed the total expenditure as well as the proper allocation of this sum among the several land-owners no lawful demand could be made under S. 8, nor could the same be recovered from the respondents. We find ourselves in entire agreement with the learned Judicial Commissioner in holding (1) that the procedure prescribed by S. 7 is mandatory and (2) that as admittedly there was no compliance with it no lawful demand could be made for the contribution payable by any landholder by the Central Government or by the State Government at the instance of the Central Government without recourse to the machinery provided by S. 7. The notices of demand were, therefore, properly quashed as illegal.16. It is only necessary to add that the validity of these notices of demand would arise only in the event of the crucial provisions of the Act-S. 4 and S. 6-being valid and in view of our conclusion as regards the constitutional validity of those provisions, even in the event of the terms of S. 7 being complied with there could be no lawful demand made on the respondents.17. There remain two minor points which were urged by Mr. Sen but neither of these need detain us long. The first of these was the effect on the present demand of the Madhya Pradesh Reclamation of Lands (Extension to Bhopal) Act, 1957. By this enactment the Madhya Pradesh Act which is somewhat analogous to but not identical with the Act now under consideration was extended to the Bhopal area. The argument of Mr. Sen was that by virtue of this extension of the Madhya Pradesh Act, even if the Bhopal Act were invalid, the demand made could be justified as made under the Madhya Pradesh Act. But the extension of the Act, in the present case, is of no avail to the appellant because that Act was brought into force only prospectively and not retrospectively. If therefore, the demand when made was illegal or invalid it cannot be sustained on the basis of the Madhya Pradesh Act. In the circumstances, it is unnecessary for us to consider the provisions of the Madhya Pradesh Act to find out how far, if retrospective they would affect the validity of the demand.18. The last of the points urged was that given it the Act was invalid and the demand could not be justified as a legal demand having regard to the terms of S. 7, still as eradication operations which are beneficial in their nature had been conducted on the lands of the respondents which had derived benefit therefrom, lands which the respondents still retained, the provisions of S. 70 of the Indian Contract Act were attracted and that on the bash of a quasi contract which that section postulates, the claim for compensation might be sustained. This raises larger questions for which there might be sufficient answers, but in view of the circumstance that it was not pleaded as a defence to the writ petitions before the Judicial Commissioner nor put forward in arguments before him, nor in the grounds of appeal or even in the statement of the case file on this court, we have not thought it proper to permit learned counsel to urge the ground at this stage.19.
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607 |
Sri-La-Sri Subramania Desika Gnanasambandapandarasannadhi Vs. State Of Madras And Another
|
of this Court in Shri Radheshyam Khare v. State of Madhya Pradesh, 1959 SCR 1440 : (AIR 1959 SC 107 ). In that case, it was held that Ss. 33A and 57 of the C.P. and Berar Municipalities Act, 1922, differed materially in their scope and effect, and that the nature of the orders which can be passed under the two respective Sections was not the same. That is why this Court found that whereas in taking action under S. 58A the State Government was required to act judicially, the same would not be said to be true about S. 57. We do not see how this decision can afford any assistance to Mr. Chetty in support of his argument that S. 64(4) is entirely different in character from S. 64(6). It is plain that just as while acting under S. 64(3), the Government has ultimately to consider whether a case has been made out for the issue of a notification, so while acting under S. 64(4), Government has to consider whether a case has been made out for cancelling the notification or for extending it, and on each occasion, where a decision has to be taken under S. 64(4), the process of reaching the decision is exactly similar to the process in reaching decision under S. 64(3). All relevant facts in regard to the management of the endowment must be taken into account, and the question to be considered on each occasion would be whether or not supervision by the Executive Officer under the notification is required in the interests of public good. Ii is difficult to see how the Government can legitimately and satisfactorily consider the question as to whether the notification should be cancelled, unless it hears the party asking for such cancellation. Similarly, it is difficult to understand how Government can legitimately and reasonably decide to extend the notification, unless it gives an opportunity to the Trustee to show cause why it should not be continued. One can imagine several circumstances which may arise after the issue of the first notification and which would help the Trustee to claim that the notification should either be cancelled or should not be extended. The nature of the order which can be passed under S. 64(4) and its effect on the rights of the trustee are exactly similar to the order which can be passed under S. 64(3). We are, therefore, satisfied that the High Court was right in holding that it was obligatory on the respondent State as a matter of natural justice to give notice to the appellant before the impugned notification was passed by it. 17. That takes us to the consideration of the question as to whether the two reasons given by the High Court in support of this decision are valid. The first reason, as we have already indicated, is that the High Court thought that the plea in question had not been raised by the appellant in his writ petition. This reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit-in-rejoinder filed by the appellant this plea has been expressly taken. This is not disputed by Mr. Chetty, and so, when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned Order was that he had not been given a chance to show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court. 18. The second reason given by the High Court appears to be plainly erroneous. In assuming that the impugned Order would come to an end on September 30, 1961, the High Court appears to have ignored the fact that before it delivered its judgment, a new Act had come into force (Madras Act XXII Of 1959). This Act came into operation on January 1, 1960. Section 72 (7) of this Act provides that Any notification published under sub-s. (1) or sub-s. (8) of S. 64 of Act XIX of 1951 before the commencement of this Act shall be as valid as if such notification had been published under this Act. This provision has again been subsequently amended by Act XL of 1961, and the amended provision is retrospectively brought into operation from January 1, 1960. We do not propose to consider in this appeal the effect of these amendments, because it is enough for our purpose to state that as a result of the subsequent Act which had already come into force on the date when the High Court delivered its judgment, it is obvious that the impugned notification would not automatically come to an end on September 30, 1961. This position is not disputed by Mr. Chetty and appears to be plain; so that the main reason which weighed with the High Court in not issuing a writ in favour of the appellant that the impugned notification would remain in operation for a very short period after it delivered its judgment, is found to be erroneous; and the impugned notification would continue in operation without the appellant getting an opportunity to show cause why it should not continue to be in operation. We are, therefore, satisfied that the High Court should have granted the prayer made by the appellant for the issue of an appropriate writ cancelling the impugned notification. Though the impugned notification has been issued in 1956 for five years, its life gets statutorily extended, and the only way in which the appellant would be able to show cause why the said notification should not be extended in respect of his Kattalai is to quash the said notification.
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1[ds]17. That takes us to the consideration of the question as to whether the two reasons given by the High Court in support of this decision are valid.The first reason, as we have already indicated, is that the High Court thought that the plea in question had not been raised by the appellant in his writ petition. This reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit-in-rejoinder filed by the appellant this plea has been expressly taken. This is not disputed by Mr. Chetty, and so, when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned Order was that he had not been given a chance to show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court18. The second reason given by the High Court appears to be plainly erroneous. In assuming that the impugned Order would come to an end on September 30, 1961, the High Court appears to have ignored the fact that before it delivered its judgment, a new Act had come into force (Madras Act XXII Of 1959). This Act came into operation on January 1, 1960. Section 72 (7) of this Act provides that Any notification published under sub-s. (1) or sub-s. (8) of S. 64 of Act XIX of 1951 before the commencement of this Act shall be as valid as if such notification had been published under this Act. This provision has again been subsequently amended by Act XL of 1961, and the amended provision is retrospectively brought into operation from January 1, 1960. We do not propose to consider in this appeal the effect of these amendments, because it is enough for our purpose to state that as a result of the subsequent Act which had already come into force on the date when the High Court delivered its judgment, it is obvious that the impugned notification would not automatically come to an end on September 30, 1961. This position is not disputed by Mr. Chetty and appears to be plain; so that the main reason which weighed with the High Court in not issuing a writ in favour of the appellant that the impugned notification would remain in operation for a very short period after it delivered its judgment, is found to be erroneous; and the impugned notification would continue in operation without the appellant getting an opportunity to show cause why it should not continue to be in operation. We are, therefore, satisfied that the High Court should have granted the prayer made by the appellant for the issue of an appropriate writ cancelling the impugned notification. Though the impugned notification has been issued in 1956 for five years, its life gets statutorily extended, and the only way in which the appellant would be able to show cause why the said notification should not be extended in respect of his Kattalai is to quash the said notification.
| 1 | 4,826 |
### Instruction:
Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
### Input:
of this Court in Shri Radheshyam Khare v. State of Madhya Pradesh, 1959 SCR 1440 : (AIR 1959 SC 107 ). In that case, it was held that Ss. 33A and 57 of the C.P. and Berar Municipalities Act, 1922, differed materially in their scope and effect, and that the nature of the orders which can be passed under the two respective Sections was not the same. That is why this Court found that whereas in taking action under S. 58A the State Government was required to act judicially, the same would not be said to be true about S. 57. We do not see how this decision can afford any assistance to Mr. Chetty in support of his argument that S. 64(4) is entirely different in character from S. 64(6). It is plain that just as while acting under S. 64(3), the Government has ultimately to consider whether a case has been made out for the issue of a notification, so while acting under S. 64(4), Government has to consider whether a case has been made out for cancelling the notification or for extending it, and on each occasion, where a decision has to be taken under S. 64(4), the process of reaching the decision is exactly similar to the process in reaching decision under S. 64(3). All relevant facts in regard to the management of the endowment must be taken into account, and the question to be considered on each occasion would be whether or not supervision by the Executive Officer under the notification is required in the interests of public good. Ii is difficult to see how the Government can legitimately and satisfactorily consider the question as to whether the notification should be cancelled, unless it hears the party asking for such cancellation. Similarly, it is difficult to understand how Government can legitimately and reasonably decide to extend the notification, unless it gives an opportunity to the Trustee to show cause why it should not be continued. One can imagine several circumstances which may arise after the issue of the first notification and which would help the Trustee to claim that the notification should either be cancelled or should not be extended. The nature of the order which can be passed under S. 64(4) and its effect on the rights of the trustee are exactly similar to the order which can be passed under S. 64(3). We are, therefore, satisfied that the High Court was right in holding that it was obligatory on the respondent State as a matter of natural justice to give notice to the appellant before the impugned notification was passed by it. 17. That takes us to the consideration of the question as to whether the two reasons given by the High Court in support of this decision are valid. The first reason, as we have already indicated, is that the High Court thought that the plea in question had not been raised by the appellant in his writ petition. This reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit-in-rejoinder filed by the appellant this plea has been expressly taken. This is not disputed by Mr. Chetty, and so, when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned Order was that he had not been given a chance to show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court. 18. The second reason given by the High Court appears to be plainly erroneous. In assuming that the impugned Order would come to an end on September 30, 1961, the High Court appears to have ignored the fact that before it delivered its judgment, a new Act had come into force (Madras Act XXII Of 1959). This Act came into operation on January 1, 1960. Section 72 (7) of this Act provides that Any notification published under sub-s. (1) or sub-s. (8) of S. 64 of Act XIX of 1951 before the commencement of this Act shall be as valid as if such notification had been published under this Act. This provision has again been subsequently amended by Act XL of 1961, and the amended provision is retrospectively brought into operation from January 1, 1960. We do not propose to consider in this appeal the effect of these amendments, because it is enough for our purpose to state that as a result of the subsequent Act which had already come into force on the date when the High Court delivered its judgment, it is obvious that the impugned notification would not automatically come to an end on September 30, 1961. This position is not disputed by Mr. Chetty and appears to be plain; so that the main reason which weighed with the High Court in not issuing a writ in favour of the appellant that the impugned notification would remain in operation for a very short period after it delivered its judgment, is found to be erroneous; and the impugned notification would continue in operation without the appellant getting an opportunity to show cause why it should not continue to be in operation. We are, therefore, satisfied that the High Court should have granted the prayer made by the appellant for the issue of an appropriate writ cancelling the impugned notification. Though the impugned notification has been issued in 1956 for five years, its life gets statutorily extended, and the only way in which the appellant would be able to show cause why the said notification should not be extended in respect of his Kattalai is to quash the said notification.
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608 |
NTPC Ltd Vs. M/s Deconar Services Pvt. Ltd
|
beyond the scheduled period of the contract. The Arbitrator also noted that the appellant accepted the work undertaken by the respondent beyond the period of the contract without objections. The Arbitrator also carefully assessed the period of delay attributable to the appellant and awarded escalation to the respondent only for the same. 19. With respect to the question of law as to whether the Arbitrator could order such an escalation, this Court has, in a catena of judgments, upheld the same. A three-Judge Bench of this Court in Assam State Electricity Board v. Buildworth Private Limited, (2017) 8 SCC 146 , was faced with almost identical circumstances. In that case, the Arbitrator granted escalation charges beyond what was permissible under the contract between the parties, which prescribed a cap on the same. Upholding such an award, the Court in that case held as follows: 13. The arbitrator has taken the view that the provision for price escalation would not bind the claimant beyond the scheduled date of completion. This view of the arbitrator is based on a construction of the provisions of the contract, the correspondence between the parties and the conduct of the Board in allowing the completion of the contract even beyond the formal extended date of 6-9-1983 up to 31-1-1986. Matters relating to the construction of a contract lie within the province of the Arbitral Tribunal. Moreover, in the present case, the view which has been adopted by the arbitrator is based on evidentiary material which was relevant to the decision. There is no error apparent on the face of the record which could have warranted the interference of the court within the parameters available under the Arbitration Act, 1940. The arbitrator has neither misconducted himself in the proceedings nor is the award otherwise invalid. (emphasis supplied) 20. We are of the opinion that the above holding of this Court is directly applicable to the present case. The Arbitrator in the present case has constructed the present contract, and the fixed price clause, in the same manner. This construction was on the basis of the evidence on record and the submissions of the counsel before him. The Arbitrator has carefully delineated the period of delay attributable to the appellant, and has granted the claim of the respondent only to that limited extent. 21. The counsel for the appellant has placed on record certain judgments of this Court, which according to him mandate a different view. As such, it would be necessary to analyze the same. 22. In New India Civil Erectors (P) Ltd. v. Oil & Natural Gas Corporation, (1997) 11 SCC 75 , this Court rejected the claim for escalation of prices during the period of delay on the basis of the specific stipulation in the contract therein, which specifically excluded price escalation till the completion of work. On the other hand, in the present case, the contractual clause stipulates only that the price would be firm during the period of execution of the contract, which the Arbitrator took to refer only to the 12 month period originally stipulated for the execution of the contract. This may appear to be a technical distinction, but it must be remembered that construction of a contract is in the domain of the Arbitrator, and as long as the interpretation given is a possible view, the Court may not interfere with the same. In the New India Civil Erectors case (supra), this Court was of the opinion that, in view of the specific clause of the contract in that case, the granting of escalation prices was not a possible view. This is not the case in the present matter. As we have already held above, we are of the opinion that in the facts and circumstances of the present case, the view taken by the Arbitrator was a possible one, and cannot therefore be interfered with by the Courts. 23. In State of Orissa v. Sudhakar Das (Dead) by Lrs, (2000) 3 SCC 27 , this Court was not seized of the issue of grant of escalation charges beyond the period of the contract or with respect to delay. As such, it has limited applicability to the present case. 24. In General Manager, Northern Railway v. Sarvesh Chopra, (2002) 4 SCC 45 , the Court was seized of a matter pertaining to a reference to arbitration. The considerations of a Court in such a matter are distinct from those of a Court in appeal over the final award of an Arbitrator. Be that as it may, in that case, a contractual clause between the parties specifically excluded any claims of the contractor arising out of delays attributable to the opposite party, which is not the case in the present matter. 25. It is clear from the above analysis that any decision regarding the issue of whether an arbitrator can award a particular claim or not, will revolve on the construction of the contract in that case, the evidence placed before the arbitrator and other facts and circumstances of the case. No general principle can be evolved as to whether some claim can be granted or not. The judgments placed on record by the appellant, wherein claim for escalation was denied, have to therefore be read in the context of their facts, and cannot be read in isolation. It is clear that all the judgments cited by the appellant can be distinguished on facts. 26. In these circumstances, we are of the opinion that the appellant has neither been able to point out any error apparent on the face of the record, nor otherwise made out a case for interference with the award by the Arbitrator with respect to this issue. 27. With respect to the final issue, pertaining to imposition of costs on the appellant by the forums below, we are not inclined to interfere with the same, in view of the fact that the counsel for the appellant has not pressed the same and looking to the quantum involved.
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0[ds]11. Before proceeding further, it is necessary to make note of the scope of interference by Courts in arbitral awards passed under the Arbitration Act, 1940. This Court has consistently held that the Court does not sit in appeal over an award passed by an arbitrator. In Kwality Manufacturing Corporation v. Central Warehousing Corporation, (2009) 5 SCC 142 this Court held as follows:10. At the outset, it should be noted that the scope of interference by courts in regard to arbitral awards is limited. A court considering an application under Section 30 or 33 of the Act, does not sit in appeal over the findings and decision of the arbitrator. Nor can it reassess or reappreciate evidence or examine the sufficiency or otherwise of the evidence.The award of the arbitrator is final and the only grounds on which it can be challenged are those mentioned in Sections 30 and 33 of the Act. Therefore, on the contentions urged, the only question that arose for consideration before the High Court was, whether there was any error apparent on the face of the award and whether the arbitrator misconducted himself or the proceedings.12. Further, it is also a settled proposition that where the arbitrator has taken a possible view, although a different view may be possible on the same evidence, the Court would not interfere with the award. This Court in Arosan Enterprises Ltd. v. Union of India, (1999) 9 SCC 449 held as follows:36. Be it noted that by reason of a long catena of cases, it is now a well-settled principle of law that reappraisal of evidence by the court is not permissible and as a matter of fact exercise of power by the court to reappraise the evidence is unknown to proceedings under Section 30 of the Arbitration Act. In the event of there being no reasons in the award, question of interference of the court would not arise at all. In the event, however, there are reasons, the interference would still be not available within the jurisdiction of the court unless of course, there exist a total perversity in the award or the judgment is based on a wrong proposition of law. In the event however two views are possible on a question of law as well, the court would not be justified in interfering with the award.37. The common phraseology error apparent on the face of the record does not itself, however, mean and imply closer scrutiny of the merits of documents and materials on record. The court as a matter of fact, cannot substitute its evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. If the view of the arbitrator is a possible view the award or the reasoning contained therein cannot be examined...13. From the above pronouncements, and from a catena of other judgments of this Court, it is clear that for the objector/appellant in order to succeed in their challenge against an arbitral award, they must show that the award of the arbitrator suffered from perversity or an error of law or that the arbitrator has otherwise misconducted himself. Merely showing that there is another reasonable interpretation or possible view on the basis of the material on the record is insufficient to allow for the interference by the Court [See State of U.P. v. Allied Constructions, (2003) 7 SCC 396 ; Ravindra Kumar Gupta and Company v. Union of India, (2010) 1 SCC 409 ; Oswal Woollen Mills Limited v. Oswal Agro Mills Limited, (2018) 16 SCC 219 ].15. Coming to the facts at hand, it is an admitted fact that there was substantial delay attributable to the appellant in handing over the sites for the 68 B, C and D quarters to the respondent. The appellant has not contested this finding before us.16. With respect to the first issue, viz., on the issue of refund of rebate, the Arbitrator held that the rebate of 16% on the price of construction of 100 units of A and B quarters was given by the respondent on the condition that he would be able to execute both the works simultaneously. The Arbitrator interpreted the rebate as a conditional one on analysis of the documents on record, particularly the letter dated 14.06.1988 sent by the respondent to the appellant subsequent to the negotiations held between them, the award of both contracts to the respondent on the same date and the works programme (L-2) for both the works. The Arbitrator specifically highlighted that the appellant had not denied the L-2 programme, which indicated that both the works were to be carried out together. From a reading of the above material, the Arbitrator held that the intention of the parties was to complete the work together, which would have enabled the respondent to reduce its costs and optimizing its charges, thereby allowing it to grant the 16% rebate to the appellant. By delaying the handing over of the sites, the appellant had therefore breached the condition for the grant of rebate, entitling the respondent to a refund of the same.While we are in agreement with the appellant that such an interpretation is possible, we are of the opinion that this is not sufficient to interfere with the award passed by the Arbitrator. As already highlighted, the Court does not sit as an appellate Court over the decision of an arbitrator, and cannot substitute its views for that of the Arbitrator as long as the Arbitrator had taken a possible view of the matter. We are of the considered opinion that in the present case, the Arbitrator has given clear reasoning for the possible view taken by him on the interpretation of the contract between the parties. As such, the Courts below rightly refused to interfere with the holding of the Arbitrator on the first issue.It is significant to note herein that the Arbitrator only allowed a part of the claim made by the respondent under this head. In Civil Appeal No. 6483 of 2014, the Arbitrator awarded a sum of Rs. 17,86,212/- against a claim of Rs. 66,98,773/-, while in Civil Appeal No. 6484 of 2014, the Arbitrator awarded a sum of Rs. 3,03,419/- as against a claim of Rs. 42,20,261/-. The Arbitrator took a view on the construction of the clauses of the contract that the firm price clause operated only with respect to the period for which the contract subsisted, and would not subsist beyond the scheduled period of the contract. The Arbitrator also noted that the appellant accepted the work undertaken by the respondent beyond the period of the contract without objections. The Arbitrator also carefully assessed the period of delay attributable to the appellant and awarded escalation to the respondent only for the same.19. With respect to the question of law as to whether the Arbitrator could order such an escalation, this Court has, in a catena of judgments, upheld the same. A three-Judge Bench of this Court in Assam State Electricity Board v. Buildworth Private Limited, (2017) 8 SCC 146 , was faced with almost identical circumstances. In that case, the Arbitrator granted escalation charges beyond what was permissible under the contract between the parties, which prescribed a cap on the same. Upholding such an award, the Court in that case held as follows:13. The arbitrator has taken the view that the provision for price escalation would not bind the claimant beyond the scheduled date of completion. This view of the arbitrator is based on a construction of the provisions of the contract, the correspondence between the parties and the conduct of the Board in allowing the completion of the contract even beyond the formal extended date of 6-9-1983 up to 31-1-1986. Matters relating to the construction of a contract lie within the province of the Arbitral Tribunal. Moreover, in the present case, the view which has been adopted by the arbitrator is based on evidentiary material which was relevant to the decision. There is no error apparent on the face of the record which could have warranted the interference of the court within the parameters available under the Arbitration Act, 1940. The arbitrator has neither misconducted himself in the proceedings nor is the award otherwise invalid.20. We are of the opinion that the above holding of this Court is directly applicable to the present case. The Arbitrator in the present case has constructed the present contract, and the fixed price clause, in the same manner. This construction was on the basis of the evidence on record and the submissions of the counsel before him. The Arbitrator has carefully delineated the period of delay attributable to the appellant, and has granted the claim of the respondent only to that limited extent.22. In New India Civil Erectors (P) Ltd. v. Oil & Natural Gas Corporation, (1997) 11 SCC 75 , this Court rejected the claim for escalation of prices during the period of delay on the basis of the specific stipulation in the contract therein, which specifically excluded price escalation till the completion of work. On the other hand, in the present case, the contractual clause stipulates only that the price would be firm during the period of execution of the contract, which the Arbitrator took to refer only to the 12 month period originally stipulated for the execution of the contract. This may appear to be a technical distinction, but it must be remembered that construction of a contract is in the domain of the Arbitrator, and as long as the interpretation given is a possible view, the Court may not interfere with the same. In the New India Civil Erectors case (supra), this Court was of the opinion that, in view of the specific clause of the contract in that case, the granting of escalation prices was not a possible view. This is not the case in the present matter. As we have already held above, we are of the opinion that in the facts and circumstances of the present case, the view taken by the Arbitrator was a possible one, and cannot therefore be interfered with by the Courts.23. In State of Orissa v. Sudhakar Das (Dead) by Lrs, (2000) 3 SCC 27 , this Court was not seized of the issue of grant of escalation charges beyond the period of the contract or with respect to delay. As such, it has limited applicability to the present case.24. In General Manager, Northern Railway v. Sarvesh Chopra, (2002) 4 SCC 45 , the Court was seized of a matter pertaining to a reference to arbitration. The considerations of a Court in such a matter are distinct from those of a Court in appeal over the final award of an Arbitrator. Be that as it may, in that case, a contractual clause between the parties specifically excluded any claims of the contractor arising out of delays attributable to the opposite party, which is not the case in the present matter.25. It is clear from the above analysis that any decision regarding the issue of whether an arbitrator can award a particular claim or not, will revolve on the construction of the contract in that case, the evidence placed before the arbitrator and other facts and circumstances of the case. No general principle can be evolved as to whether some claim can be granted or not. The judgments placed on record by the appellant, wherein claim for escalation was denied, have to therefore be read in the context of their facts, and cannot be read in isolation. It is clear that all the judgments cited by the appellant can be distinguished on facts.26. In these circumstances, we are of the opinion that the appellant has neither been able to point out any error apparent on the face of the record, nor otherwise made out a case for interference with the award by the Arbitrator with respect to this issue.27. With respect to the final issue, pertaining to imposition of costs on the appellant by the forums below, we are not inclined to interfere with the same, in view of the fact that the counsel for the appellant has not pressed the same and looking to the quantum involved.
| 0 | 3,329 |
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Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable?
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beyond the scheduled period of the contract. The Arbitrator also noted that the appellant accepted the work undertaken by the respondent beyond the period of the contract without objections. The Arbitrator also carefully assessed the period of delay attributable to the appellant and awarded escalation to the respondent only for the same. 19. With respect to the question of law as to whether the Arbitrator could order such an escalation, this Court has, in a catena of judgments, upheld the same. A three-Judge Bench of this Court in Assam State Electricity Board v. Buildworth Private Limited, (2017) 8 SCC 146 , was faced with almost identical circumstances. In that case, the Arbitrator granted escalation charges beyond what was permissible under the contract between the parties, which prescribed a cap on the same. Upholding such an award, the Court in that case held as follows: 13. The arbitrator has taken the view that the provision for price escalation would not bind the claimant beyond the scheduled date of completion. This view of the arbitrator is based on a construction of the provisions of the contract, the correspondence between the parties and the conduct of the Board in allowing the completion of the contract even beyond the formal extended date of 6-9-1983 up to 31-1-1986. Matters relating to the construction of a contract lie within the province of the Arbitral Tribunal. Moreover, in the present case, the view which has been adopted by the arbitrator is based on evidentiary material which was relevant to the decision. There is no error apparent on the face of the record which could have warranted the interference of the court within the parameters available under the Arbitration Act, 1940. The arbitrator has neither misconducted himself in the proceedings nor is the award otherwise invalid. (emphasis supplied) 20. We are of the opinion that the above holding of this Court is directly applicable to the present case. The Arbitrator in the present case has constructed the present contract, and the fixed price clause, in the same manner. This construction was on the basis of the evidence on record and the submissions of the counsel before him. The Arbitrator has carefully delineated the period of delay attributable to the appellant, and has granted the claim of the respondent only to that limited extent. 21. The counsel for the appellant has placed on record certain judgments of this Court, which according to him mandate a different view. As such, it would be necessary to analyze the same. 22. In New India Civil Erectors (P) Ltd. v. Oil & Natural Gas Corporation, (1997) 11 SCC 75 , this Court rejected the claim for escalation of prices during the period of delay on the basis of the specific stipulation in the contract therein, which specifically excluded price escalation till the completion of work. On the other hand, in the present case, the contractual clause stipulates only that the price would be firm during the period of execution of the contract, which the Arbitrator took to refer only to the 12 month period originally stipulated for the execution of the contract. This may appear to be a technical distinction, but it must be remembered that construction of a contract is in the domain of the Arbitrator, and as long as the interpretation given is a possible view, the Court may not interfere with the same. In the New India Civil Erectors case (supra), this Court was of the opinion that, in view of the specific clause of the contract in that case, the granting of escalation prices was not a possible view. This is not the case in the present matter. As we have already held above, we are of the opinion that in the facts and circumstances of the present case, the view taken by the Arbitrator was a possible one, and cannot therefore be interfered with by the Courts. 23. In State of Orissa v. Sudhakar Das (Dead) by Lrs, (2000) 3 SCC 27 , this Court was not seized of the issue of grant of escalation charges beyond the period of the contract or with respect to delay. As such, it has limited applicability to the present case. 24. In General Manager, Northern Railway v. Sarvesh Chopra, (2002) 4 SCC 45 , the Court was seized of a matter pertaining to a reference to arbitration. The considerations of a Court in such a matter are distinct from those of a Court in appeal over the final award of an Arbitrator. Be that as it may, in that case, a contractual clause between the parties specifically excluded any claims of the contractor arising out of delays attributable to the opposite party, which is not the case in the present matter. 25. It is clear from the above analysis that any decision regarding the issue of whether an arbitrator can award a particular claim or not, will revolve on the construction of the contract in that case, the evidence placed before the arbitrator and other facts and circumstances of the case. No general principle can be evolved as to whether some claim can be granted or not. The judgments placed on record by the appellant, wherein claim for escalation was denied, have to therefore be read in the context of their facts, and cannot be read in isolation. It is clear that all the judgments cited by the appellant can be distinguished on facts. 26. In these circumstances, we are of the opinion that the appellant has neither been able to point out any error apparent on the face of the record, nor otherwise made out a case for interference with the award by the Arbitrator with respect to this issue. 27. With respect to the final issue, pertaining to imposition of costs on the appellant by the forums below, we are not inclined to interfere with the same, in view of the fact that the counsel for the appellant has not pressed the same and looking to the quantum involved.
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0
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609 |
NORTH DELHI MUNICIPAL CORPORATION Vs. HARLEEN KAUR & ORS
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1. Delay condoned.2. Leave granted.3. The High Court has furnished cogent reasons for declining to interfere with the order of the Tribunal directing the appellant to consider the cases of the respondents for regularization as Entomologists.4. The respondents were appointed after public advertisement and were selected on the basis of interviews. They have been working since 1997-8. Though the appointment was contractual for a period of six months, it has been extended. Subsequently, on 14 July 2008, posts were created by conversion of the existing posts of AMO, DMO, Entomologist and Asst. Entomologist. The Tribunal noted that the respondents are working against seven posts of Entomologists out of twelve sanctioned posts. The respondents were engaged with a view to counter the outbreak of dengue, a situation which continues to cause concern even at the present time. The Tribunal has duly considered the decision in State of Karnataka v Umadevi (2006) 4 SCC 1 . 5. We are not inclined to entertain this appeal insofar as the grant of regularization is concerned.6. However, insofar as consequential monetary benefits are concerned, learned counsel appearing on behalf of the appellant submitted that the Municipal Corporation should not be saddled with the obligation of granting monetary benefits from 2008 as awarded by the High Court. On this aspect, learned Counsel appearing on behalf of the respondents has fairly left it to the discretion of this Court.
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1[ds]5. We are not inclined to entertain this appeal insofar as the grant of regularization is concerned.
| 1 | 258 |
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Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
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1. Delay condoned.2. Leave granted.3. The High Court has furnished cogent reasons for declining to interfere with the order of the Tribunal directing the appellant to consider the cases of the respondents for regularization as Entomologists.4. The respondents were appointed after public advertisement and were selected on the basis of interviews. They have been working since 1997-8. Though the appointment was contractual for a period of six months, it has been extended. Subsequently, on 14 July 2008, posts were created by conversion of the existing posts of AMO, DMO, Entomologist and Asst. Entomologist. The Tribunal noted that the respondents are working against seven posts of Entomologists out of twelve sanctioned posts. The respondents were engaged with a view to counter the outbreak of dengue, a situation which continues to cause concern even at the present time. The Tribunal has duly considered the decision in State of Karnataka v Umadevi (2006) 4 SCC 1 . 5. We are not inclined to entertain this appeal insofar as the grant of regularization is concerned.6. However, insofar as consequential monetary benefits are concerned, learned counsel appearing on behalf of the appellant submitted that the Municipal Corporation should not be saddled with the obligation of granting monetary benefits from 2008 as awarded by the High Court. On this aspect, learned Counsel appearing on behalf of the respondents has fairly left it to the discretion of this Court.
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610 |
M/S. Tulsidas Khimji Vs. Their Workmen
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SC 886) in which also the judgment of the Court was delivered by Wanchoo J. The appeal before this Court was by special leave from an award of the Industrial Tribunal and the case of the appellants -the employees was that they were entitled to a bonus irrespective of profit on a scale which they set out. The Tribunal negatived the case of the employees to bonus on all the three grounds upon which bonus was payable, viz., profits bonus, as an implied condition of service and thirdly as customary bonus. Dealing with the question of the Subordinate staff, the learned Judge said:"This payment of one months basic wage as bonus at puja appears to have continued uninterrupted from the time it started in 1942 or thereabout upto the time the dispute arose in 1954. The payment was invariably of one months basic wage and it appears that it was paid even in a year of loss."31. On this ground the appeal was allowed in regard to this item. Lastly, Toklai Experimental Station v. Its Workmen, Civil Appeals Nos. 459 and 460 of 1960, D/- 24-11-1961: (AIR 1962 SC 1340 ), the judgment was pronounced by Gajendragadkar J. (who incidentally was a member of the Bench which decided each of the three earlier cases). Dealing with Puja bonus the learned Judge observed:"Customary puja bonus undoubtedly prevails in many industries in Bengal but there are certain tests which have to be applied in determining the validity of the claim. The amount by way of puja bonus, it must be shown, has been consistently paid by the employer to his employees from year to year at [he same rate, that it has been paid even in years of loss and that it has no relation to the profit made by the employer during the relevant year. The course of conduct spreading over a reasonably long period between the employer and the employees in the matter of payment of puja bonus is of considerable importance in dealing with the claim of customary puja bonus (vice 1960-1 SCR 107) :(AIR 1959 SC 1151 )."32. The question now for consideration is whether on those authorities, reasonably construed it is or it is not a necessary condition for the establishment of a claim to customary bonus that it has been paid in a year of loss. The extracts that I have made from the judgment of this Court in the Graham Trading Co.s case, 1960-1 SCR 107 : (AIR 1959 SC 1151 ) where it is referred to as the third condition and the specific reference to loss in the three other decisions, particularly bearing in mind the fact that the same members of the Court had taken part in these several decisions, and Gajendragadkar J. took part in all the four, I feel unable to hold that the learned Judge did not intend this to be an essential condition. In the Graham case, 1960-1 SCR 107 : (AIR 1959 SC 1151 ) the reason for the insistence of this condition is stated, viz., that it is only a payment during a year when there is loss that would negative the payment being a bounty. In these circumstances I do not consider it possible to construe these judgments as laying down that payment during a year of loss, was merely a relevant circumstance and not a necessary condition. If, as I have pointed out earlier, what the Court is now called on to do is only to construe these decisions, and not consider the question afresh I feel compelled to hold that in these several decisions this Court did lay down that this was a sine qua non for making good the claim.33. It was suggested during the course of the argument that there was no difference between a loss of one rupee for the year and a profit of a similar sum and that if the decisions were literally understood it would lead to an unreasonable result, for whereas the claim would be excluded in the even of a loss-even though the same be nominal, event the existence of a nominal profit would enable the claim to be established. I agree that we are not construing a statute and that in the context in which the condition has been laid down, viz., that it should negative the payment being by way of bounty, the expression loss should be understood in the sense of an inadequacy of profit which would not justify the payment of that bonus. But where the profits are adequate to enable the payment of the bonus, it appears to me that these decisions clearly lay down that the right to customary bonus is not established; for, as explained in the Graham Trading Co. case, 1960-1 SCR 107 : (AIR 1959 SC 1151 ), the payment being by way of bounty would not then be excluded. In this connection it has to be borne in mind that when the right to customary bonus is held to be established, the workmen are entitled to it in future years even in an year of loss and a fortiori so in a year when the profits are inadequate to justify that payment. In these circumstances it stands to reason that there must be an earlier year in which payment has been made in such circumstances as to serve as a precedent for the future i.e., to establish the custom for payment in later years. As in the present case it is admitted that there has been an adequacy of profits to just the payment of one months bonus during Diwali during; all the earlier years the declaration granted by the Tribunal is without justification and the finding in that regard has to be set aside.34. The result therefore is that I would allow the appeal in part, reduce the profit bonus to basic wages for two months including the one months basic wage as bonus already paid, and delete the declaration as to customary bonusORDERSinha, J.35
|
0[ds]In this connection, it has been found by the Tribunal that the claim of the partners that they devoted their whole time to the business of this firm only, is not correct, and that the individual partners, on their own account, and certainly as partners of another firm, have been carrying on their other business activities. It has also to be borne in mind that the partners have not been able to adduce any reliable data to determine the amount of time and energy which they devote to the business of the firm in question. It is equally true that the sum of Rs. 20,000/- fixed by the Tribunal, under this head, amounting roughly to 10% of the gross profits is more or loss conjectural. We know that the sum of Rs. 4,60,000/- represents roughly the wage bill for the year in question. Comparing the sum allowed by way of remuneration to the partners to this figure, it appears to us that the amount fixed by the Tribunal errs on the side of inadequacy. But this Court is not in a position to come to any definite conclusion of its own on the record as it stands, assuming that it is open to this Court to record a finding, which is more or less one of fact, in disagreement with the finding of the Tribunal. It must be added that this Court does not function as a regular Court of Appeal from the Tribunal. Its function is merely to see that the law is being properly administered, in accordance with well-settled rules of natural justice. Hence, we would not embark upon a fruitless task of determining a figure which will not have any substratum of solid facts and figures to support ourpage 129 of volume I of the paper book, there is a statement of the profits of the firm between the years 1943-44 and 1957-58, and at page 157 of the reasons of the Tribunal in volume II appears a tabular statement of the bonus paid for the corresponding period of years, which has consistently been equivalent to three months basic wages, which is the bonus allowed in respect of the year in question also. This was so in spite of the fact that the profits have fluctuated considerably from year to year. Even after payment of the bonus as directed by the Tribunal, and making allowance for the higher amount of income-tax as determined by us, the appellants are left with a substantial amount by way of their share of the profits. It would thus appear that the Tribunal has not been too generous to the workmen when it allowed a consolidated bonus of three months basic wages minus the amount already paid toour opinion, therefore, the Tribunal was fully justified in finding that the traditional or customary bonus had been established in this case, notwithstanding that it had not been show, as it could not have been shown, that it was paid in a year of loss on behalf of the respondents an attempt was made to shown that such a bonus could be granted as an implied term of contract of service. But as such a case has not been made in the statement of the case in this Court, we did not allow that case to be made out at the time of the arguments. We must make it clear that this Court has to be very strict in enforcing the rules of pleading, as laid down in the rules of this Court bearing on the question of statement of case of the parties. These rules have been laid down with a view to help the Court in narrowing down the controversies between the parties and also for the purpose of giving notice to the other side that a particular question will be raised, and. that that party should be ready to meet that particular point. This Court would not ordinarily permit any laxity in the matter of pleadings in this Court, and litigants and their legal advisers must take not of what we have said so often in the course of arguments in a number of cases coming before us recently.
| 0 | 10,340 |
### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
SC 886) in which also the judgment of the Court was delivered by Wanchoo J. The appeal before this Court was by special leave from an award of the Industrial Tribunal and the case of the appellants -the employees was that they were entitled to a bonus irrespective of profit on a scale which they set out. The Tribunal negatived the case of the employees to bonus on all the three grounds upon which bonus was payable, viz., profits bonus, as an implied condition of service and thirdly as customary bonus. Dealing with the question of the Subordinate staff, the learned Judge said:"This payment of one months basic wage as bonus at puja appears to have continued uninterrupted from the time it started in 1942 or thereabout upto the time the dispute arose in 1954. The payment was invariably of one months basic wage and it appears that it was paid even in a year of loss."31. On this ground the appeal was allowed in regard to this item. Lastly, Toklai Experimental Station v. Its Workmen, Civil Appeals Nos. 459 and 460 of 1960, D/- 24-11-1961: (AIR 1962 SC 1340 ), the judgment was pronounced by Gajendragadkar J. (who incidentally was a member of the Bench which decided each of the three earlier cases). Dealing with Puja bonus the learned Judge observed:"Customary puja bonus undoubtedly prevails in many industries in Bengal but there are certain tests which have to be applied in determining the validity of the claim. The amount by way of puja bonus, it must be shown, has been consistently paid by the employer to his employees from year to year at [he same rate, that it has been paid even in years of loss and that it has no relation to the profit made by the employer during the relevant year. The course of conduct spreading over a reasonably long period between the employer and the employees in the matter of payment of puja bonus is of considerable importance in dealing with the claim of customary puja bonus (vice 1960-1 SCR 107) :(AIR 1959 SC 1151 )."32. The question now for consideration is whether on those authorities, reasonably construed it is or it is not a necessary condition for the establishment of a claim to customary bonus that it has been paid in a year of loss. The extracts that I have made from the judgment of this Court in the Graham Trading Co.s case, 1960-1 SCR 107 : (AIR 1959 SC 1151 ) where it is referred to as the third condition and the specific reference to loss in the three other decisions, particularly bearing in mind the fact that the same members of the Court had taken part in these several decisions, and Gajendragadkar J. took part in all the four, I feel unable to hold that the learned Judge did not intend this to be an essential condition. In the Graham case, 1960-1 SCR 107 : (AIR 1959 SC 1151 ) the reason for the insistence of this condition is stated, viz., that it is only a payment during a year when there is loss that would negative the payment being a bounty. In these circumstances I do not consider it possible to construe these judgments as laying down that payment during a year of loss, was merely a relevant circumstance and not a necessary condition. If, as I have pointed out earlier, what the Court is now called on to do is only to construe these decisions, and not consider the question afresh I feel compelled to hold that in these several decisions this Court did lay down that this was a sine qua non for making good the claim.33. It was suggested during the course of the argument that there was no difference between a loss of one rupee for the year and a profit of a similar sum and that if the decisions were literally understood it would lead to an unreasonable result, for whereas the claim would be excluded in the even of a loss-even though the same be nominal, event the existence of a nominal profit would enable the claim to be established. I agree that we are not construing a statute and that in the context in which the condition has been laid down, viz., that it should negative the payment being by way of bounty, the expression loss should be understood in the sense of an inadequacy of profit which would not justify the payment of that bonus. But where the profits are adequate to enable the payment of the bonus, it appears to me that these decisions clearly lay down that the right to customary bonus is not established; for, as explained in the Graham Trading Co. case, 1960-1 SCR 107 : (AIR 1959 SC 1151 ), the payment being by way of bounty would not then be excluded. In this connection it has to be borne in mind that when the right to customary bonus is held to be established, the workmen are entitled to it in future years even in an year of loss and a fortiori so in a year when the profits are inadequate to justify that payment. In these circumstances it stands to reason that there must be an earlier year in which payment has been made in such circumstances as to serve as a precedent for the future i.e., to establish the custom for payment in later years. As in the present case it is admitted that there has been an adequacy of profits to just the payment of one months bonus during Diwali during; all the earlier years the declaration granted by the Tribunal is without justification and the finding in that regard has to be set aside.34. The result therefore is that I would allow the appeal in part, reduce the profit bonus to basic wages for two months including the one months basic wage as bonus already paid, and delete the declaration as to customary bonusORDERSinha, J.35
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611 |
Amadalavalasa Cooperative Agricultural &Industrial Society Vs. U.O.I
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of the factory or goods insured was incurred Acts and the schemes were in operation. The liability to pay premia on the basis of the full insurable value of the factory or goods is one thing; the quantification of the amount is another.16. But it was argued that if a policy was taken not for the full insurable value, the authorized officer should have ascertained the correct insurab le value within the quarter and a supplementary policy should have been issued on the basis of the full insurable value, also within the quarter, so that the liability to pay premia on the basis of the full insurable value might arise. In other words, the argument was that the liability to pay premia on the basis of the full insurable value in case of under insurance was conditioned by the capacity on the part of the insurer to issue a supplementary policy within the quarter undertaking to indemnify the insured on the basis of the correct value against emergency risks, and, as the insurer ceased to have the capacity after the expiry of the quarter, and a fortiort after the expiry of the Acts, to issue a supplementary policy undertaking the liability to indemnify against loss arising out of emergency risk, on the basis of the full insured value, the obligation to pay premia on the full insurance value ceased, as, after the expiry of the Acts, there could no longer be any emergency risk.17. We do not think that the argument is correct. As we said, the obligation to insure for full insurable value of the factory or goods was an obligation which was not dependent upon the corresponding liability of the insurer to indemnify. If the owner of factory or goods failed to take insurance policy at the time he ought to have taken it and pay the premia, the liability of the insured to pay the premia could be enforced under clause 13 or 14 respectively of the Schemes under the Goods Act or the Factories Act. In such a case there would be no obligation on the part of the President to indemnify the insured in case of loss or damage on account of emergency risk the insured did not take out the policy of insurance. The obligation to issue the policy or supplementary policy, as the case may be, would arise only after payment or recovery of the evaded premia, and even then, the liability of the insurer under the policy or supplementary policy would be from the date of payment or recovery of the evaded premia. The fact, therefore, that no supplementary policy was issued before the expiry of the Acts is no answer for not fulfilling the obligation of the insured to pay the premia in accordance with the correct insurable value of the factory or goods as determined under the Third Schedule to the Schemes. Therefore, if under 6. S of the Factories Act or under s. 7 of the Goods Act, the liability to pay the premia on the full insurable value was incurred before he expiry of the Act, s. 6 of the General Clauses Act would enable the ascertainment of the extent of liability for the evaded premia by an officer who was authorized when the Act was in force or by an officer authorised after the expiry of the Act. The principle behind s. 6 of the General Clauses Act is that all the provisions of the Acts would continue in force for purposes of enforcing the liability incurred when the Acts were in force and any investigation, legal proceeding, remedy, may be instituted, continued or enforced as if the Acts had not expired.The Third Schedule to the Schemes provides for the method of ascertaining the liability in case of under insurance. The provisions of the Third Schedule show that the officer has to give an opportunity to the insured to show cause why he should not be made to pay the premia on the basis of correct value of the factory or goods under valued.18. It was contended for the petitioner in Writ Petition No. 461 of 971 that the provisions of the Acts contravened Articles 14, 19 and Article 19 is not available to the petitioner for challenging the validity of the provisions of the Acts a s these Acts were passed during the currency of the proclamation of emergency under Article 352. No doubt, when the proclamation of emergency was revoked in 1968, the provisions of the Acts became liable to be challenged on the ground that they violated Article 19(1); but the liability incured for acts or omissions during the currency of the proclamation of emergency cannot be nullified even if it be assumed that the provisions of the Acts were violative of Article 19. In other words, liability crated by an act or omission when the Acts were in operation during the currency of the proclamation of emergency cannot be challenged even after the revocation of the proclamation on the ground that the provisions of the Acts violated Article 19. This, we think, is the principle laid down by this Court after reading Article 358 of the constitution in Makhan Singh v. State of Punjab([1964] 4 S.C.R. 797 at 812).19. We also think that the procedure for ascertaining the correct insurable value of the factory or goods is reasonable, having regard to the provisions of the Third Schedule in that behalf and cannot, therefore, violate Article 19(1)(f) or (g).20. The writ petitioner has not shown how the provisions of the Acts violated Article 14.And, as regards the contention of the petitioner that the provisions of the Acts violated Article 31(1), we do not think that the petitioner was deprived of any property without the authority of law. he petitioner has not succeeded in showing law the law which deprived him of his property could be challenged on the ground that it was violative of any of the provisions in Part III of the Constitution;21.
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0[ds]It is clear from the provisions of the Acts t hat the duty to take out insurance policy for the full insurable value of the factory of goods was mandatory and that the failure to do so was an offence. Besides, in the case of failure to insure for the full insurable value, provisions were made for recovery of the relative premia. To effectuate this purpose, the procedure for determination of the insurable value of the factory or goods and of the premia evaded was alsois no compulsion in a voluntary insur ance that the cover should be made for the entire insurable value of the property. The premium collected in a voluntary insurance is related to the quantum of the risk undertaken in the light of the insurable value suggested by the insured. Generally, in a voluntary insurance, the premium is paid in consideration of the cover provided. In other words, premium is paid in order to enable the insurer to indemnify the insured against loss or damage on account of the risk specified. The scheme of insurance envisaged by the Acts was different. There was no element of consensus on the fundamental terms of insurance in the scheme. The liability to take insurance policy for the full insurable value of the factory or goods was compulsory. The terms and conditions of the policy to be taken were governed solely by the provisions of the Acts and the Schemes. It is a mistake to assume that the rights and liabilities of the parties in this statutory scheme were similar t o those of a voluntary contract of insurance. If the liability to take the insurance policy for the full insurable value was absolute and if the terms and conditions of insurance were settled by the terms of the statutes and the Schemes read with the Schedules, there is no merit in the contention of counsel for the appellants that the obligation of the President as insurer was same as that of an insurer in a contract of voluntary insurance. The liability to pay premia ill case of under-valuation was not dependent upon the subsequent determination of the full insurable value of the factory or goods insured. If the factory or goods was under-valued, when the insurance policy was taken, the liability to pay premia on the basis of the full insurable value arose at the time when the policy was taken. That liability was not dependent upon the ascertainment of the full insurable value by the authorized officer in accordance with the Thirddo not think that the argument is correct. As we said, the obligation to insure for full insurable value of the factory or goods was an obligation which was not dependent upon the corresponding liability of the insurer to indemnify. If the owner of factory or goods failed to take insurance policy at the time he ought to have taken it and pay the premia, the liability of the insured to pay the premia could be enforced under clause 13 or 14 respectively of the Schemes under the Goods Act or the Factories Act. In such a case there would be no obligation on the part of the President to indemnify the insured in case of loss or damage on account of emergency risk the insured did not take out the policy of insurance. The obligation to issue the policy or supplementary policy, as the case may be, would arise only after payment or recovery of the evaded premia, and even then, the liability of the insurer under the policy or supplementary policy would be from the date of payment or recovery of the evaded premia. The fact, therefore, that no supplementary policy was issued before the expiry of the Acts is no answer for not fulfilling the obligation of the insured to pay the premia in accordance with the correct insurable value of the factory or goods as determined under the Third Schedule to the Schemes. Therefore, if under 6. S of the Factories Act or under s. 7 of the Goods Act, the liability to pay the premia on the full insurable value was incurred before he expiry of the Act, s. 6 of the General Clauses Act would enable the ascertainment of the extent of liability for the evaded premia by an officer who was authorized when the Act was in force or by an officer authorised after the expiry of the Act. The principle behind s. 6 of the General Clauses Act is that all the provisions of the Acts would continue in force for purposes of enforcing the liability incurred when the Acts were in force and any investigation, legal proceeding, remedy, may be instituted, continued or enforced as if the Acts had not expired.The Third Schedule to the Schemes provides for the method of ascertaining the liability in case of under insurance. The provisions of the Third Schedule show that the officer has to give an opportunity to the insured to show cause why he should not be made to pay the premia on the basis of correct value of the factory or goods underdoubt, when the proclamation of emergency was revoked in 1968, the provisions of the Acts became liable to be challenged on the ground that they violated Article 19(1); but the liability incured for acts or omissions during the currency of the proclamation of emergency cannot be nullified even if it be assumed that the provisions of the Acts were violative of Article 19. In other words, liability crated by an act or omission when the Acts were in operation during the currency of the proclamation of emergency cannot be challenged even after the revocation of the proclamation on the ground that the provisions of the Acts violated Article 19. This, we think, is the principle laid down by this Court after reading Article 358 of the constitution in Makhan Singh v. State of Punjab([1964] 4 S.C.R. 797 atalso think that the procedure for ascertaining the correct insurable value of the factory or goods is reasonable, having regard to the provisions of the Third Schedule in that behalf and cannot, therefore, violate Article 19(1)(f) orwrit petitioner has not shown how the provisions of the Acts violated Article 14.And, as regards the contention of the petitioner that the provisions of the Acts violated Article 31(1), we do not think that the petitioner was deprived of any property without the authority of law. he petitioner has not succeeded in showing law the law which deprived him of his property could be challenged on the ground that it was violative of any of the provisions in Part III of the Constitution;
| 0 | 3,742 |
### Instruction:
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of the factory or goods insured was incurred Acts and the schemes were in operation. The liability to pay premia on the basis of the full insurable value of the factory or goods is one thing; the quantification of the amount is another.16. But it was argued that if a policy was taken not for the full insurable value, the authorized officer should have ascertained the correct insurab le value within the quarter and a supplementary policy should have been issued on the basis of the full insurable value, also within the quarter, so that the liability to pay premia on the basis of the full insurable value might arise. In other words, the argument was that the liability to pay premia on the basis of the full insurable value in case of under insurance was conditioned by the capacity on the part of the insurer to issue a supplementary policy within the quarter undertaking to indemnify the insured on the basis of the correct value against emergency risks, and, as the insurer ceased to have the capacity after the expiry of the quarter, and a fortiort after the expiry of the Acts, to issue a supplementary policy undertaking the liability to indemnify against loss arising out of emergency risk, on the basis of the full insured value, the obligation to pay premia on the full insurance value ceased, as, after the expiry of the Acts, there could no longer be any emergency risk.17. We do not think that the argument is correct. As we said, the obligation to insure for full insurable value of the factory or goods was an obligation which was not dependent upon the corresponding liability of the insurer to indemnify. If the owner of factory or goods failed to take insurance policy at the time he ought to have taken it and pay the premia, the liability of the insured to pay the premia could be enforced under clause 13 or 14 respectively of the Schemes under the Goods Act or the Factories Act. In such a case there would be no obligation on the part of the President to indemnify the insured in case of loss or damage on account of emergency risk the insured did not take out the policy of insurance. The obligation to issue the policy or supplementary policy, as the case may be, would arise only after payment or recovery of the evaded premia, and even then, the liability of the insurer under the policy or supplementary policy would be from the date of payment or recovery of the evaded premia. The fact, therefore, that no supplementary policy was issued before the expiry of the Acts is no answer for not fulfilling the obligation of the insured to pay the premia in accordance with the correct insurable value of the factory or goods as determined under the Third Schedule to the Schemes. Therefore, if under 6. S of the Factories Act or under s. 7 of the Goods Act, the liability to pay the premia on the full insurable value was incurred before he expiry of the Act, s. 6 of the General Clauses Act would enable the ascertainment of the extent of liability for the evaded premia by an officer who was authorized when the Act was in force or by an officer authorised after the expiry of the Act. The principle behind s. 6 of the General Clauses Act is that all the provisions of the Acts would continue in force for purposes of enforcing the liability incurred when the Acts were in force and any investigation, legal proceeding, remedy, may be instituted, continued or enforced as if the Acts had not expired.The Third Schedule to the Schemes provides for the method of ascertaining the liability in case of under insurance. The provisions of the Third Schedule show that the officer has to give an opportunity to the insured to show cause why he should not be made to pay the premia on the basis of correct value of the factory or goods under valued.18. It was contended for the petitioner in Writ Petition No. 461 of 971 that the provisions of the Acts contravened Articles 14, 19 and Article 19 is not available to the petitioner for challenging the validity of the provisions of the Acts a s these Acts were passed during the currency of the proclamation of emergency under Article 352. No doubt, when the proclamation of emergency was revoked in 1968, the provisions of the Acts became liable to be challenged on the ground that they violated Article 19(1); but the liability incured for acts or omissions during the currency of the proclamation of emergency cannot be nullified even if it be assumed that the provisions of the Acts were violative of Article 19. In other words, liability crated by an act or omission when the Acts were in operation during the currency of the proclamation of emergency cannot be challenged even after the revocation of the proclamation on the ground that the provisions of the Acts violated Article 19. This, we think, is the principle laid down by this Court after reading Article 358 of the constitution in Makhan Singh v. State of Punjab([1964] 4 S.C.R. 797 at 812).19. We also think that the procedure for ascertaining the correct insurable value of the factory or goods is reasonable, having regard to the provisions of the Third Schedule in that behalf and cannot, therefore, violate Article 19(1)(f) or (g).20. The writ petitioner has not shown how the provisions of the Acts violated Article 14.And, as regards the contention of the petitioner that the provisions of the Acts violated Article 31(1), we do not think that the petitioner was deprived of any property without the authority of law. he petitioner has not succeeded in showing law the law which deprived him of his property could be challenged on the ground that it was violative of any of the provisions in Part III of the Constitution;21.
### Response:
0
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612 |
Indian Drugs & Pharmaceutical Ltd Vs. Famy Care
|
the list of 102 items that those 102 items would be purchased directly without any tendering process. Therefore, the High Court should not have interfered with the policy making exercise of the Union of India.12. When we see the impugned judgment, it is clear that the policy of the Union of India was not in question in any manner before the High Court. In fact, even the writ petitioners before the High Court i.e. the respondents herein had relied upon that policy and their only contention was that the policy should be implemented in its true spirit. In that, the contention was that the bare reading of entry at serial No.51 was clear that the Government had decided to purchase these products directly without any tendering process and had decided so only in case of Mala D and Mala N. There will be no question of finding fault with the policy nor can it be argued that the policy was being tinkered with. The argument raised by Shri Rao, Learned Senior Counsel and Shri Prag Tripathi, Learned ASG has to be rejected. The basic question that fell for consideration was the interpretation of the entry at serial No.51 and that is correctly decided.13. The contention raised on behalf of Shri Rao as well as Shri Tripathi was that the entry was only illustrative. To buttress this argument, it was tried to be contended that the chemical formulation of Mala D and Mala N was identical with the other brands and, therefore, mere mention of Mala D and Mala N did not make any difference and the entry related to all the Oral Contraceptive Pills. The argument is quite attractive, however, it lacks substance.14. A simple question was asked during the debate as to whether if a customer went to a medical shop and demanded some other brand of Oral Contraceptive Pills, could Mala D and Mala N, as the case may be, given to that customer legitimately. This is obviously answered in the negative. It was also found that even the price of Mala D and Mala N differed from the other Oral Contraceptive Pills. But even more than that, the basic argument on behalf of the appellant is that the entry was only illustrative. We do not see any merit in this argument. The whole world knows and presumably the Union of India also knew what an Oral Contraceptive Pill is. The Union of India, therefore, in branding the particular entry at serial No. 51 could have simply stated Oral Contraceptive Pills. That would have been the end of the matter and that would have been the complete answer to the original writ petitioners claim before the High Court. However, if the list specifically mentions Mala D and Mala N, there was no question of jumping back and explaining that it was only an illustrative entry.15. We have scanned the whole list very carefully and we do not find any such illustrations which would lead to some other meaning to the entry. Wherever an illustration is required, it has been specifically given. The explanations are also to be found in that list. The entries at serial No.12, fluconazole and at serial No.2, Ampicillin IP so also the entries at serial Nos. 13, 72 and 78 are clear enough to suggest that wherever the authorities wanted to be specific, they have been very specific. However, in so far as the present entry is concerned, it is specific and tends to be restrictive to Mala D and Mala N. In short, the controversy here is quite simple and that is the true and correct meaning of entry at serial No.51. In our opinion, the High Court has committed no mistake in giving the correct explanation of the entry. We are not prepared to accept the argument that the entry in the bracket was illustrative, as, in our opinion, there was no necessity to give any illustrations for the general and commonly well understood words `Oral Contraceptive Pills.16. Learned Counsel, in support of their argument, further argued that entry at serial No. 50 was relating to a generic medicine and did not refer to any branded product. We were also taken to the position prior to the introduction of this entry. The entry then read was Nishchint Emergency Contraceptive Pills Livonorgestrel. It was argued that Nishchint was an Oral Contraceptive Pill. However, it was a pill to be taken after the sexual intercourse, as opposed to the type of Oral Contraceptive Pills in categories similar to Mala D and Mala N, which are to be used in one complete cycle for efficacy.17. This argument does not impress us. There was no necessity on the part of the Union of India to explain or make illustration of OCPs because the whole world knows what an OCP is. Once a specific brand name was included, it was obvious that it would be only the Mala D and Mala N which would be covered under the entry.18. It was further tried to be suggested that where two views are possible, the view of the policy maker should be adopted. For this purpose, reliance was made on Secretary, Ministry of Chemicals & Fertilizers Government of India v. M/s. Cipla Ltd. & Ors. [2003 (7) SCC 1 ]. We have absolutely no quarrel with the proposition laid down by this Court in the aforementioned judgment. However, in this case, we do not think that two views could be possible. The mention of Mala D and Mala N in the bracket was specific, and, therefore, the Oral Contraceptive Pills only of that brand were obviously included in the list.19. It was further suggested that the argument based on the notings on the file on behalf of the present respondent cannot be accepted. We do not want to go into that question, since we have already held that on merits the entry cannot mean anything else and it has to be restricted only to Mala D and Mala N.
|
0[ds]9. The High Court noted that in case of contraceptives other than reservation in favour of HLL was required to be 55 per cent and the balance of 45 per cent was to be opened for private sector and could be released only after finalization of the rate contract through tendering process. The High Court further noted that the Purchase Preference Policy was to be applicable to the purchases of maximum 102 medicines, which was to be valid for a period of five years up to 06.08.2011. The High Court also noted that, before it, the original petitioners/present respondents did not challenge the validity of the Purchase Preference Policy. The only contention raised was that in so far as the OCPs were concerned, the Purchase Preference Policy set out only specifically Mala D and Mala N in the category of OCPs as the medicines covered under the said Policy. In other words, the other branded contraceptive pills apart from Mala D and Mala N were not covered under the purchase preference policy in favour of Pharma CPSEs and their subsidiaries and as such the Union of India could not have placed an order for all other branded OCPs on the appellant herein, IDPL under the said Purchase Preference Policy. The High Court also noted the defence raised by the Union of India that the entry at serial No.51 was only illustrative and not exhaustive and in fact the said Purchase Preference Policy in favour of CPSEs extended to all the OCPs. The High Court further noted the stand taken by the Union of India that the Purchase Preference Policy ousted all private players from selling medicines therein to the Union of India. The High Court rejected the stand taken by the Union of India. It went on the plain language of entry at serial No.51 in the list and held that it was clear from the language of entry that it was only in respect of Mala D and Mala N that the Purchase Preference Policy was applicable and in fact the Policy was formulated by the Government only in respect of these two brands in mind in respect of OCPs and it was not possible to countenance the submission that the specific mention of Mala D and Mala N was only illustrative. It was on this basis that the High Court came to the conclusion that the entry related only to Mala D and Mala N and it did not cover the other brands of OCPs, the purchase of which was bound to be effected by the Union of India through tendering process which was the earlier policy.10. In that view, the High Court further approved of the Purchase Preference Policy and held that the orders could be placed on private sector, once the preference in favour of Pharma CPSEs had been exhausted.11. This judgment was severely commented upon by Shri L.N. Rao, Learned Senior Counsel appearing on behalf of the appellant herein. We were taken through the whole facts including the initial orders and the Purchase Preference Policy. The basic contention raised was that it was for the Union of India to decide as to from whom it would purchase the OCPs and it made quite clear in the list of 102 items that those 102 items would be purchased directly without any tendering process. Therefore, the High Court should not have interfered with the policy making exercise of the Union of India.12. When we see the impugned judgment, it is clear that the policy of the Union of India was not in question in any manner before the High Court. In fact, even the writ petitioners before the High Court i.e. the respondents herein had relied upon that policy and their only contention was that the policy should be implemented in its true spirit. In that, the contention was that the bare reading of entry at serial No.51 was clear that the Government had decided to purchase these products directly without any tendering process and had decided so only in case of Mala D and Mala N. There will be no question of finding fault with the policy nor can it be argued that the policy was being tinkered with. The argument raised by Shri Rao, Learned Senior Counsel and Shri Prag Tripathi, Learned ASG has to be rejected. The basic question that fell for consideration was the interpretation of the entry at serial No.51 and that is correctly decided.13. The contention raised on behalf of Shri Rao as well as Shri Tripathi was that the entry was only illustrative. To buttress this argument, it was tried to be contended that the chemical formulation of Mala D and Mala N was identical with the other brands and, therefore, mere mention of Mala D and Mala N did not make any difference and the entry related to all the Oral Contraceptive Pills. The argument is quite attractive, however, it lacks substance.14. A simple question was asked during the debate as to whether if a customer went to a medical shop and demanded some other brand of Oral Contraceptive Pills, could Mala D and Mala N, as the case may be, given to that customer legitimately. This is obviously answered in the negative. It was also found that even the price of Mala D and Mala N differed from the other Oral Contraceptive Pills. But even more than that, the basic argument on behalf of the appellant is that the entry was only illustrative. We do not see any merit in this argument. The whole world knows and presumably the Union of India also knew what an Oral Contraceptive Pill is. The Union of India, therefore, in branding the particular entry at serial No. 51 could have simply stated Oral Contraceptive Pills. That would have been the end of the matter and that would have been the complete answer to the original writ petitioners claim before the High Court. However, if the list specifically mentions Mala D and Mala N, there was no question of jumping back and explaining that it was only an illustrative entry.15. We have scanned the whole list very carefully and we do not find any such illustrations which would lead to some other meaning to the entry. Wherever an illustration is required, it has been specifically given. The explanations are also to be found in that list. The entries at serial No.12, fluconazole and at serial No.2, Ampicillin IP so also the entries at serial Nos. 13, 72 and 78 are clear enough to suggest that wherever the authorities wanted to be specific, they have been very specific. However, in so far as the present entry is concerned, it is specific and tends to be restrictive to Mala D and Mala N. In short, the controversy here is quite simple and that is the true and correct meaning of entry at serial No.51. In our opinion, the High Court has committed no mistake in giving the correct explanation of the entry. We are not prepared to accept the argument that the entry in the bracket was illustrative, as, in our opinion, there was no necessity to give any illustrations for the general and commonly well understood words `Oral Contraceptive Pills.16. Learned Counsel, in support of their argument, further argued that entry at serial No. 50 was relating to a generic medicine and did not refer to any branded product. We were also taken to the position prior to the introduction of this entry. The entry then read was Nishchint Emergency Contraceptive Pills Livonorgestrel. It was argued that Nishchint was an Oral Contraceptive Pill. However, it was a pill to be taken after the sexual intercourse, as opposed to the type of Oral Contraceptive Pills in categories similar to Mala D and Mala N, which are to be used in one complete cycle for efficacy.17. This argument does not impress us. There was no necessity on the part of the Union of India to explain or make illustration of OCPs because the whole world knows what an OCP is. Once a specific brand name was included, it was obvious that it would be only the Mala D and Mala N which would be covered under the entry.18. It was further tried to be suggested that where two views are possible, the view of the policy maker should be adopted. For this purpose, reliance was made on Secretary, Ministry of Chemicals & Fertilizers Government of India v. M/s. Cipla Ltd. & Ors. [2003 (7) SCC 1 ]. We have absolutely no quarrel with the proposition laid down by this Court in the aforementioned judgment. However, in this case, we do not think that two views could be possible. The mention of Mala D and Mala N in the bracket was specific, and, therefore, the Oral Contraceptive Pills only of that brand were obviously included in the list.19. It was further suggested that the argument based on the notings on the file on behalf of the present respondent cannot be accepted. We do not want to go into that question, since we have already held that on merits the entry cannot mean anything else and it has to be restricted only to Mala D and Mala N.
| 0 | 2,816 |
### Instruction:
Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
### Input:
the list of 102 items that those 102 items would be purchased directly without any tendering process. Therefore, the High Court should not have interfered with the policy making exercise of the Union of India.12. When we see the impugned judgment, it is clear that the policy of the Union of India was not in question in any manner before the High Court. In fact, even the writ petitioners before the High Court i.e. the respondents herein had relied upon that policy and their only contention was that the policy should be implemented in its true spirit. In that, the contention was that the bare reading of entry at serial No.51 was clear that the Government had decided to purchase these products directly without any tendering process and had decided so only in case of Mala D and Mala N. There will be no question of finding fault with the policy nor can it be argued that the policy was being tinkered with. The argument raised by Shri Rao, Learned Senior Counsel and Shri Prag Tripathi, Learned ASG has to be rejected. The basic question that fell for consideration was the interpretation of the entry at serial No.51 and that is correctly decided.13. The contention raised on behalf of Shri Rao as well as Shri Tripathi was that the entry was only illustrative. To buttress this argument, it was tried to be contended that the chemical formulation of Mala D and Mala N was identical with the other brands and, therefore, mere mention of Mala D and Mala N did not make any difference and the entry related to all the Oral Contraceptive Pills. The argument is quite attractive, however, it lacks substance.14. A simple question was asked during the debate as to whether if a customer went to a medical shop and demanded some other brand of Oral Contraceptive Pills, could Mala D and Mala N, as the case may be, given to that customer legitimately. This is obviously answered in the negative. It was also found that even the price of Mala D and Mala N differed from the other Oral Contraceptive Pills. But even more than that, the basic argument on behalf of the appellant is that the entry was only illustrative. We do not see any merit in this argument. The whole world knows and presumably the Union of India also knew what an Oral Contraceptive Pill is. The Union of India, therefore, in branding the particular entry at serial No. 51 could have simply stated Oral Contraceptive Pills. That would have been the end of the matter and that would have been the complete answer to the original writ petitioners claim before the High Court. However, if the list specifically mentions Mala D and Mala N, there was no question of jumping back and explaining that it was only an illustrative entry.15. We have scanned the whole list very carefully and we do not find any such illustrations which would lead to some other meaning to the entry. Wherever an illustration is required, it has been specifically given. The explanations are also to be found in that list. The entries at serial No.12, fluconazole and at serial No.2, Ampicillin IP so also the entries at serial Nos. 13, 72 and 78 are clear enough to suggest that wherever the authorities wanted to be specific, they have been very specific. However, in so far as the present entry is concerned, it is specific and tends to be restrictive to Mala D and Mala N. In short, the controversy here is quite simple and that is the true and correct meaning of entry at serial No.51. In our opinion, the High Court has committed no mistake in giving the correct explanation of the entry. We are not prepared to accept the argument that the entry in the bracket was illustrative, as, in our opinion, there was no necessity to give any illustrations for the general and commonly well understood words `Oral Contraceptive Pills.16. Learned Counsel, in support of their argument, further argued that entry at serial No. 50 was relating to a generic medicine and did not refer to any branded product. We were also taken to the position prior to the introduction of this entry. The entry then read was Nishchint Emergency Contraceptive Pills Livonorgestrel. It was argued that Nishchint was an Oral Contraceptive Pill. However, it was a pill to be taken after the sexual intercourse, as opposed to the type of Oral Contraceptive Pills in categories similar to Mala D and Mala N, which are to be used in one complete cycle for efficacy.17. This argument does not impress us. There was no necessity on the part of the Union of India to explain or make illustration of OCPs because the whole world knows what an OCP is. Once a specific brand name was included, it was obvious that it would be only the Mala D and Mala N which would be covered under the entry.18. It was further tried to be suggested that where two views are possible, the view of the policy maker should be adopted. For this purpose, reliance was made on Secretary, Ministry of Chemicals & Fertilizers Government of India v. M/s. Cipla Ltd. & Ors. [2003 (7) SCC 1 ]. We have absolutely no quarrel with the proposition laid down by this Court in the aforementioned judgment. However, in this case, we do not think that two views could be possible. The mention of Mala D and Mala N in the bracket was specific, and, therefore, the Oral Contraceptive Pills only of that brand were obviously included in the list.19. It was further suggested that the argument based on the notings on the file on behalf of the present respondent cannot be accepted. We do not want to go into that question, since we have already held that on merits the entry cannot mean anything else and it has to be restricted only to Mala D and Mala N.
### Response:
0
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613 |
Sales Tax Officer, Special Circle, Ernakulam & Anr Vs. Tata Oil Mills Co. Ltd
|
that the State legislature was directly legislating for the imposition of sales or purchase tax under entry 54 of List II when it made such a provision, for on the face of the provision. the amount, though collected by way of tax, was not exigible as tax under the law."An attempt was made on behalf of the State in that case to sustain the validity of section 11(2 ) of the Hyderabad Act on the ground that the Legislature had enacted that law as part of the incidental and ancillary power to make provision for the levy and collection of sales or purchase tax. This contention was repelled and it was observed that the ambit of ancillary or incidental power did not go to the extent of permitting the legislature to provide that though the amount collected-may be wrongly-by way of tax is not exigible under the law. as made under the relevant taxing entry, it shall s till be paid over to Government, as if it were a tax.10. The question again arose in this Court before a Bench consisting of six Judges in the case of Ashoka Marketing Ltd. v. State of Bihar &Anr.([1970] 1 S. C. R. 455.). In that case in determining the appellants turnover for assessment to sales tax for the year 1956-57, the Superintendent of Sales Tax included an amount representing Railway freight in the appellants sales of cement. The appellate authority set aside the orders directing the inclusion of the Railway freight in the turnover. After the introduction of section 20-A of the Bihar Sales Tax Act the Assistant Commissioner issued a notice under section 20-A(3) of the Act requiring the appellant to show cause why an amount representing sales tax on the Railway freight which became refundable under the orders of assessment be not forfeited. The appellants contention that section 20-A was ultra vires the State Legislature was rejected by the Assistant Commissioner as well as by the High Court in a writ petition under article 226 of the Constitution. On appeal filed by the assessee this Court held that sub-sections (3), (4) and (5) of section 20-A were ultra vires the State legislature. As a corollary thereto, sub-sections (6) and (7) of that section were also held to be invalid. Subsection (3) of section 20-A of the Bihar Sales Tax Act read as under:"(3)(a) Notwithstanding anything to the contrary contained in any law or contract or any judgment, decree or order of any Tribunal, Court or authority, if the prescribed authority has reason to believe that any dealer has or had, at any time, whether before or after the commencement of this Act, collected any such amount, in a case in which or to an extent to which the said dealer was or is not liable to pay such amount, it shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a time and place to be specified therein neither to attend in person or through authorised representative to show cause why he should not deposit into the Government treasury the amount so collected by him.(b) On the day specified in the notice under clause (a) or as soon thereafter as may be, the prescribed authority may. after giving the dealer or his authorised representative a reason able opportunity of being heard and examining such accounts and other evidence as may be produced by or on behalf of the dealer and making such further enquiry as it may deem necessary, order that the dealer shall deposit forthwith into the Government treasury, the amount found to have been so collected by the dealer and not refunded prior to the receipt of the, notice aforesaid to the person from whom it had been collected."In holding sub-section (3) and other impugned provisions of section 20-A to be beyond the legislative competence of the State Legislature, this Court in the case of Ashoka Marketing Ltd. (supra) relied upon the decision of this Court in Abdul Qadars case (supra).11. Dr. Muhammad has, however, tried to distinguish the above two cases on the ground that the present case relates to an amount realised in excess of the tax leviable under the Act and not to an amount which was not payable at all as tax under the Act. This fact, in our opinion, would not prevent the applicability of the principle laid down in the cases of Abdul Qadar and Ashoka Marketing Ltd. (supra). Any amount realised by a dealer in excess of the tax leviable under the Act stands, for the purpose of determining the legislative competence under entry 54, on the same footing as an amount not due as tax under the Act. Dr. Muhammads argument involves inventing a category of a "deemed tax" which is not there in the Act. T he provisions of the Act contain a definition of "tax". This necessarily means that every thing outside it collected by the dealer would be an exaction not authorised by the Act. "Tax", according to section 2(xxiv) of the Act, means the tax payable under the Act. The amount which was realised by the respondent in excess of what was due as tax cannot be held to be "tax", because such excess amount was not tax payable under the Act. If the State Legislature cannot make a law under entry 54 of List II of the Seventh Schedule to the Constitution directing the payment to the State of any amount collected as tax on transactions not liable to tax under the Act, it would likewise be incompetent to make a law directing payment to the State of an amount realised be a dealer in excess of the tax payable under the Act. The amount realised in excess of the tax leviable under the Act would not stand for this purpose on a footing different from that of the amount realised as tax, eve n though the same could not be recovered as tax under the Act.
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0[ds]After hearing the learned counsel, we are of the opinion that there is no merit in these twoState Legislature is competent to make a law under entry 54 of List II in Seventh Schedule to the Constitution in respect of "taxes on the sale or purchase of goods other than newspapers subject to the provisions of entry 92A of List I". Entry 92A of List I relates to taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce, and we are not concerned with thisanswer to such a question has to be in the negative. The matter indeed is not res integra and is concluded by two decisions of thisfact, in our opinion, would not prevent the applicability of the principle laid down in the cases of Abdul Qadar and Ashoka Marketing Ltd. (supra). Any amount realised by a dealer in excess of the tax leviable under the Act stands, for the purpose of determining the legislative competence under entry 54, on the same footing as an amount not due as tax under the Act. Dr. Muhammads argument involves inventing a category of a "deemed tax" which is not there in the Act. T he provisions of the Act contain a definition of "tax". This necessarily means that every thing outside it collected by the dealer would be an exaction not authorised by the Act. "Tax", according to section 2(xxiv) of the Act, means the tax payable under the Act. The amount which was realised by the respondent in excess of what was due as tax cannot be held to be "tax", because such excess amount was not tax payable under the Act. If the State Legislature cannot make a law under entry 54 of List II of the Seventh Schedule to the Constitution directing the payment to the State of any amount collected as tax on transactions not liable to tax under the Act, it would likewise be incompetent to make a law directing payment to the State of an amount realised be a dealer in excess of the tax payable under the Act. The amount realised in excess of the tax leviable under the Act would not stand for this purpose on a footing different from that of the amount realised as tax, eve n though the same could not be recovered as tax under the Act.
| 0 | 2,940 |
### Instruction:
Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
### Input:
that the State legislature was directly legislating for the imposition of sales or purchase tax under entry 54 of List II when it made such a provision, for on the face of the provision. the amount, though collected by way of tax, was not exigible as tax under the law."An attempt was made on behalf of the State in that case to sustain the validity of section 11(2 ) of the Hyderabad Act on the ground that the Legislature had enacted that law as part of the incidental and ancillary power to make provision for the levy and collection of sales or purchase tax. This contention was repelled and it was observed that the ambit of ancillary or incidental power did not go to the extent of permitting the legislature to provide that though the amount collected-may be wrongly-by way of tax is not exigible under the law. as made under the relevant taxing entry, it shall s till be paid over to Government, as if it were a tax.10. The question again arose in this Court before a Bench consisting of six Judges in the case of Ashoka Marketing Ltd. v. State of Bihar &Anr.([1970] 1 S. C. R. 455.). In that case in determining the appellants turnover for assessment to sales tax for the year 1956-57, the Superintendent of Sales Tax included an amount representing Railway freight in the appellants sales of cement. The appellate authority set aside the orders directing the inclusion of the Railway freight in the turnover. After the introduction of section 20-A of the Bihar Sales Tax Act the Assistant Commissioner issued a notice under section 20-A(3) of the Act requiring the appellant to show cause why an amount representing sales tax on the Railway freight which became refundable under the orders of assessment be not forfeited. The appellants contention that section 20-A was ultra vires the State Legislature was rejected by the Assistant Commissioner as well as by the High Court in a writ petition under article 226 of the Constitution. On appeal filed by the assessee this Court held that sub-sections (3), (4) and (5) of section 20-A were ultra vires the State legislature. As a corollary thereto, sub-sections (6) and (7) of that section were also held to be invalid. Subsection (3) of section 20-A of the Bihar Sales Tax Act read as under:"(3)(a) Notwithstanding anything to the contrary contained in any law or contract or any judgment, decree or order of any Tribunal, Court or authority, if the prescribed authority has reason to believe that any dealer has or had, at any time, whether before or after the commencement of this Act, collected any such amount, in a case in which or to an extent to which the said dealer was or is not liable to pay such amount, it shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a time and place to be specified therein neither to attend in person or through authorised representative to show cause why he should not deposit into the Government treasury the amount so collected by him.(b) On the day specified in the notice under clause (a) or as soon thereafter as may be, the prescribed authority may. after giving the dealer or his authorised representative a reason able opportunity of being heard and examining such accounts and other evidence as may be produced by or on behalf of the dealer and making such further enquiry as it may deem necessary, order that the dealer shall deposit forthwith into the Government treasury, the amount found to have been so collected by the dealer and not refunded prior to the receipt of the, notice aforesaid to the person from whom it had been collected."In holding sub-section (3) and other impugned provisions of section 20-A to be beyond the legislative competence of the State Legislature, this Court in the case of Ashoka Marketing Ltd. (supra) relied upon the decision of this Court in Abdul Qadars case (supra).11. Dr. Muhammad has, however, tried to distinguish the above two cases on the ground that the present case relates to an amount realised in excess of the tax leviable under the Act and not to an amount which was not payable at all as tax under the Act. This fact, in our opinion, would not prevent the applicability of the principle laid down in the cases of Abdul Qadar and Ashoka Marketing Ltd. (supra). Any amount realised by a dealer in excess of the tax leviable under the Act stands, for the purpose of determining the legislative competence under entry 54, on the same footing as an amount not due as tax under the Act. Dr. Muhammads argument involves inventing a category of a "deemed tax" which is not there in the Act. T he provisions of the Act contain a definition of "tax". This necessarily means that every thing outside it collected by the dealer would be an exaction not authorised by the Act. "Tax", according to section 2(xxiv) of the Act, means the tax payable under the Act. The amount which was realised by the respondent in excess of what was due as tax cannot be held to be "tax", because such excess amount was not tax payable under the Act. If the State Legislature cannot make a law under entry 54 of List II of the Seventh Schedule to the Constitution directing the payment to the State of any amount collected as tax on transactions not liable to tax under the Act, it would likewise be incompetent to make a law directing payment to the State of an amount realised be a dealer in excess of the tax payable under the Act. The amount realised in excess of the tax leviable under the Act would not stand for this purpose on a footing different from that of the amount realised as tax, eve n though the same could not be recovered as tax under the Act.
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614 |
Antifriction Bearings Corporation Limited & Others Vs. State of Maharashtra & Others
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and subsequently received in the State. What is significant that these provisions take note of the duty already paid on the instrument in other State and seeks to recover only difference between duty chargeable in this State and duty already paid when registered in some other State. Doing something pursuant to the instrument in this State is a chargeable transaction and what is recoverable is additional duty payable according to rates prevailing in this State. Receipt of the copy could only be a chargeable event. It however, could not be construed that Sec.7 attempts simpliciter to levy a stamp duty on the copy of the instrument.8. To read, that the receipt of original instrument alone is a chargeable event, would certainly frustrate the entire legislative scheme under Section 7 read with Section 19 of the Act of 1958. Certainly such construction would fertilise the design of executor to evade Stamp Duty. At this stage, we refer to the Amending Act of 1993 which has added Sub-section 3 to Section 7 and term copies of the instrument at various places in Section 19. The learned Govt. Pleader invited attention to the ratio led down in 1992 (2) BCR, page 29, which has been affirmed by the Supreme Court in the case of Ruby Sales and Services (P) Ltd. and another Versus State of Maharashtra and others reported in (1994) 1 Supreme Court Cases 531 . They dealt with definition of term "Conveyance" under Maharashtra Amending Act No.27 of 1985 and a question whether a Consent decree was included in the unamended definition or not It is contended that amendment of 1993 is by way of clarification of what was already comprehended by a Legislative provisions. However, in view of our discussion, we do not propose to express on the nature or effect of these amendments.9. Learned Counsel for the petitioners, submitted that copy received in the State need to be only in terms of Sub-section 2 of Section 7 of the Act 1958. Any other mode is not contemplated by Section 7 and, therefore, filing of the copy under Section 125 of the Act of 1956 would not be a chargeable event. The submission does not hold any merit. Sub-section 1 & 2 of Section 7 of Act 1958 as reproduced, referred to distinctly the copy of instrument received in the State and received in evidence. Both of them are different contingencies.10. Mere receipt of the copy of an instrument, it is then contended, could not be a chargeable event. Filing copy under Section 125 of the Act of 1956 is merely a formality. It is optional and not obligatory. Bringing copy thereof, could not be of any legal implication so as to be chargeable as envisaged by Section 7 of the Act of 1958. Submission is erroneous.The Act of 1956 (Part V) deals with the registration of charges which includes mortgage. Section 125 reads thus:-"125 (1) Subject to the provisions of this part, every charge created on or after the 1st day of April, 1914, by a company and being a charge to which this section applies shall, so far as any security on the companys property or undertaking is conferred thereby, be void against the liquidator and any creditor of the company, unless the prescribed particulars of the charge, together with the instrument, if any, by which the charge is created or evidenced, or a copy thereof verified in the prescribed manner, are filed with the Registrar for registration in the manner required by this Act ......(3) When a charge becomes void under this section, the money secured thereby shall immediately become payable."(Emphasis supplied)11. What is explicit that the Instrument or copy thereof duly verified if not filed with the Registrar of Companies, the charge would become void against liquidator and creditor of the company. Statutory presumption (Section 126) of the notice of charge is also provided Certificate of registration (Section 132) further becomes conclusive proof of the charge. The company (Section 133) is obliged to cause endorsement of the certificate on the debentures. As such filing of copy could not be a formality but a definite legal requirement and non filing creates certain legal impediments. The petitioner companies, undisputedly, at Bombay issued debentures duly endorsed with the certificate envisaged by Section 132. The charge registered at Bombay (Section 125) was certainly to promote sale of debentures. The Instruments registered in Gujrat have therefore, relation with the matter or thing done by the company in the State of Maharashtra, as envisaged by Section 19 of the Act 1958.12. Section 125 of the Act of 1956 emphasises on filing of instrument or copy thereof duly verified in a prescribed manner. Rule 6 of Companies (Central Govt.s) Generale Rules & Forms has prescribed the manner of verification, which reads thus:-"Section 125, 127 and 128 - A copy of every instrument or deed creating or evidencing any charge and required to be filed with the Registrar in pursuance of Section 125, 127 or 128 shall be verified as follows:(i) ....................................(ii)where the instrument or deed relates, whether wholly or partly, to property situate in India, the copy shall be verified by a certificate of a responsible officer of the company stating that it is a true copy or by a certificate of a public officer given under and in accordance with the provisions of section 76 of the Indian Evidence Act, 1872 (1 of 1872)"(Emphasis supplied)The copy of the instrument duly verified as per the statutory dictate, evidencing or creating the charge has the character of an instrument.13. Mr. Chinoy, learned Counsel appearing for the petitioners fairly conceded before us, that the certified copy of the original instrument is an instrument. In view of this and discussion here-in-before, we do not propose to deal with the submission that the copy of the instrument is not a document as envisaged by Section 2(1) of the Act of 1958. The petitioners are, therefore, liable to pay duties as ordered by the Superintendent of Stamp, Maharashtra.
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0[ds]8. To read, that the receipt of original instrument alone is a chargeable event, would certainly frustrate the entire legislative scheme under Section 7 read with Section 19 of the Act of 1958. Certainly such construction would fertilise the design of executor to evade Stamp Duty. At this stage, we refer to the Amending Act of 1993 which has added3 to Section 7 and term copies of the instrument at various places in Section 19. The learned Govt. Pleader invited attention to the ratio led down in 1992 (2) BCR, page 29, which has been affirmed by the Supreme Court in the case of Ruby Sales and Services (P) Ltd. and another Versus State of Maharashtra and others reported in (1994) 1 Supreme Court Cases 531 . They dealt with definition of term "Conveyance" under Maharashtra Amending Act No.27 of 1985 and a question whether a Consent decree was included in the unamended definition or not It is contended that amendment of 1993 is by way of clarification of what was already comprehended by a Legislative provisions. However, in view of our discussion, we do not propose to express on the nature or effect of thesesubmission does not hold any merit.2 of Section 7 of Act 1958 as reproduced, referred to distinctly the copy of instrument received in the State and received in evidence. Both of them are differentcopy thereof, could not be of any legal implication so as to be chargeable as envisaged by Section 7 of the Act of 1958. Submission is erroneous.The Act of 1956 (Part V) deals with the registration of charges which includes mortgage. Section 125 reads(1) Subject to the provisions of this part, every charge created on or after the 1st day of April, 1914, by a company and being a charge to which this section applies shall, so far as any security on the companys property or undertaking is conferred thereby, be void against the liquidator and any creditor of the company, unless the prescribed particulars of the charge, together with the instrument, if any, by which the charge is created or evidenced, or a copy thereof verified in the prescribed manner, are filed with the Registrar for registration in the manner required by this Act ......(3) When a charge becomes void under this section, the money secured thereby shall immediately become payable."(Emphasis supplied)11. What is explicit that the Instrument or copy thereof duly verified if not filed with the Registrar of Companies, the charge would become void against liquidator and creditor of the company. Statutory presumption (Section 126) of the notice of charge is also provided Certificate of registration (Section 132) further becomes conclusive proof of the charge. The company (Section 133) is obliged to cause endorsement of the certificate on the debentures. As such filing of copy could not be a formality but a definite legal requirement and non filing creates certain legal impediments. The petitioner companies, undisputedly, at Bombay issued debentures duly endorsed with the certificate envisaged by Section 132. The charge registered at Bombay (Section 125) was certainly to promote sale of debentures. The Instruments registered in Gujrat have therefore, relation with the matter or thing done by the company in the State of Maharashtra, as envisaged by Section 19 of the Act 1958.Mr. Chinoy, learned Counsel appearing for the petitioners fairly conceded before us, that the certified copy of the original instrument is an instrument. In view of this and discussionwe do not propose to deal with the submission that the copy of the instrument is not a document as envisaged by Section 2(1) of the Act of 1958. The petitioners are, therefore, liable to pay duties as ordered by the Superintendent of Stamp, Maharashtra.
| 0 | 2,295 |
### Instruction:
Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0).
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and subsequently received in the State. What is significant that these provisions take note of the duty already paid on the instrument in other State and seeks to recover only difference between duty chargeable in this State and duty already paid when registered in some other State. Doing something pursuant to the instrument in this State is a chargeable transaction and what is recoverable is additional duty payable according to rates prevailing in this State. Receipt of the copy could only be a chargeable event. It however, could not be construed that Sec.7 attempts simpliciter to levy a stamp duty on the copy of the instrument.8. To read, that the receipt of original instrument alone is a chargeable event, would certainly frustrate the entire legislative scheme under Section 7 read with Section 19 of the Act of 1958. Certainly such construction would fertilise the design of executor to evade Stamp Duty. At this stage, we refer to the Amending Act of 1993 which has added Sub-section 3 to Section 7 and term copies of the instrument at various places in Section 19. The learned Govt. Pleader invited attention to the ratio led down in 1992 (2) BCR, page 29, which has been affirmed by the Supreme Court in the case of Ruby Sales and Services (P) Ltd. and another Versus State of Maharashtra and others reported in (1994) 1 Supreme Court Cases 531 . They dealt with definition of term "Conveyance" under Maharashtra Amending Act No.27 of 1985 and a question whether a Consent decree was included in the unamended definition or not It is contended that amendment of 1993 is by way of clarification of what was already comprehended by a Legislative provisions. However, in view of our discussion, we do not propose to express on the nature or effect of these amendments.9. Learned Counsel for the petitioners, submitted that copy received in the State need to be only in terms of Sub-section 2 of Section 7 of the Act 1958. Any other mode is not contemplated by Section 7 and, therefore, filing of the copy under Section 125 of the Act of 1956 would not be a chargeable event. The submission does not hold any merit. Sub-section 1 & 2 of Section 7 of Act 1958 as reproduced, referred to distinctly the copy of instrument received in the State and received in evidence. Both of them are different contingencies.10. Mere receipt of the copy of an instrument, it is then contended, could not be a chargeable event. Filing copy under Section 125 of the Act of 1956 is merely a formality. It is optional and not obligatory. Bringing copy thereof, could not be of any legal implication so as to be chargeable as envisaged by Section 7 of the Act of 1958. Submission is erroneous.The Act of 1956 (Part V) deals with the registration of charges which includes mortgage. Section 125 reads thus:-"125 (1) Subject to the provisions of this part, every charge created on or after the 1st day of April, 1914, by a company and being a charge to which this section applies shall, so far as any security on the companys property or undertaking is conferred thereby, be void against the liquidator and any creditor of the company, unless the prescribed particulars of the charge, together with the instrument, if any, by which the charge is created or evidenced, or a copy thereof verified in the prescribed manner, are filed with the Registrar for registration in the manner required by this Act ......(3) When a charge becomes void under this section, the money secured thereby shall immediately become payable."(Emphasis supplied)11. What is explicit that the Instrument or copy thereof duly verified if not filed with the Registrar of Companies, the charge would become void against liquidator and creditor of the company. Statutory presumption (Section 126) of the notice of charge is also provided Certificate of registration (Section 132) further becomes conclusive proof of the charge. The company (Section 133) is obliged to cause endorsement of the certificate on the debentures. As such filing of copy could not be a formality but a definite legal requirement and non filing creates certain legal impediments. The petitioner companies, undisputedly, at Bombay issued debentures duly endorsed with the certificate envisaged by Section 132. The charge registered at Bombay (Section 125) was certainly to promote sale of debentures. The Instruments registered in Gujrat have therefore, relation with the matter or thing done by the company in the State of Maharashtra, as envisaged by Section 19 of the Act 1958.12. Section 125 of the Act of 1956 emphasises on filing of instrument or copy thereof duly verified in a prescribed manner. Rule 6 of Companies (Central Govt.s) Generale Rules & Forms has prescribed the manner of verification, which reads thus:-"Section 125, 127 and 128 - A copy of every instrument or deed creating or evidencing any charge and required to be filed with the Registrar in pursuance of Section 125, 127 or 128 shall be verified as follows:(i) ....................................(ii)where the instrument or deed relates, whether wholly or partly, to property situate in India, the copy shall be verified by a certificate of a responsible officer of the company stating that it is a true copy or by a certificate of a public officer given under and in accordance with the provisions of section 76 of the Indian Evidence Act, 1872 (1 of 1872)"(Emphasis supplied)The copy of the instrument duly verified as per the statutory dictate, evidencing or creating the charge has the character of an instrument.13. Mr. Chinoy, learned Counsel appearing for the petitioners fairly conceded before us, that the certified copy of the original instrument is an instrument. In view of this and discussion here-in-before, we do not propose to deal with the submission that the copy of the instrument is not a document as envisaged by Section 2(1) of the Act of 1958. The petitioners are, therefore, liable to pay duties as ordered by the Superintendent of Stamp, Maharashtra.
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615 |
Bai Hiragauri Vs. Abdul Kadar Mamadji & Another
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and disposed of together. The Trial court by its judgment dated the 17th November, 1960 held that the tenants were in arrears for more than the statutory six months; that the standard rent was the same as claimed by the landlady; that the tenants were liable to pay the municipal tax in addition and that in view of S. 12 (3) (a) of the Bombay Rent Act, as applied to the Gujarat area, both the tenants were liable to be evicted.3. The tenants went in appeal to the City Civil Court. The appeals were heard together and the learned City Civil Judge who heard the appeals confirmed the findings and the decrees of the Trial Court. The appeals were disposed of on January 31, 1962. From this judgment the two tenants filed Civil Revision Applications to the High Court. The learned single Judge, who heard the Revision applications, relying upon a previous judgment of that court, held that since the rent was not "payable by the month" as required by Section 12 (3) (a) referred to above the cases fell within Section 12 (3) (b) of the Act and, therefore, decrees for eviction could not be passed. It is from that Order that the present appeals have been filed by the landlady by special leave.4. A preliminary objection seems to have been raised before the High Court on behalf of the landlady that a revision did not lie and under Section 29 of the Bombay Rent Act in its application to Gujarat, the Order passed by the City Civil Court was final and since no question under Section 115 C.P.C. arose the revision was not maintainable. This objection was rejected by the learned Judge who pointed out that under Section 29 (2) as it stood amended by Gujarat Act 18 of l965 the High Court had jurisdiction. Before that amendment the sub-section read, "No further appeal shall lie against any decision in appeal under sub-section (1)". But by the amendment the following was substituted therefor: "No further appeal shall lie against any decision in appeal under sub-section (1) but the High Court may, for the purpose of satisfying himself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit." In the opinion of the learned Judge having regard to the amended S. 29 (2) he could examine the decision as a whole and enquire as to whether the decision arrived at as a whole was according to law or not and the High Court was not confined merely to the authority to see whether there were any errors of law. Thus the learned Judge came to the conclusion that the decisions were not in accordance with law because, in his opinion, though the monthly rent was admittedly as claimed by the landlady, since the tenants were also liable to pay the municipal tax in addition, it could not be said that these were cases where the "rent was payable by the month" within the meaning of Section 12 (3) (a). It is not necessary to consider whether this view is correct because the present appeals must succeed on other points.5. It is obvious from the Judgment of the High Court that it interfered with the concurrent findings of the lower courts on the ground that it had jurisdiction to deal with the cases under Section 29 (2). It seems to have escaped the learned Judges notice that the revisions before him arose out of suits which had been filed in 1957. Therefore, though the revisions were heard after the 1965 amendment referred to above the revisions were not liable to be disposed of under the changed law. It has been held by this court in Keshavlal Jethalal v. Mohanlal Bhagwandas, (1968) 3 SCR 623 = (AIR 1968 SC 1336 ) that in a case like this in which the appellate decree had become final under the unamended Section 29(2) of the Bombay Rent Act, it could not be set aside in exercise of the jurisdiction under the amended Section 29 (2) the amendment having been made long after the appellate decree had become final. The High Court could deal with the cases only under its revisional powers under Section 115 C.P.C. The learned counsel for the tenants appearing before us conceded the position and requested that the cases may, therefore, be remanded to the High Court for being disposed of under Section 115 C.P.C.6. We do not think any useful purpose will be served by sending the cases back to the High Court. As already pointed out the learned Judge interfered in these cases only because he thought that he had jurisdiction to do so under Section 29 (2) as amended. It is obvious that he had recourse to that section because in view of the decided cases, he could not have interfered with the final decision of the City Civil Court under Section 115, C.P.C. The court in which the suits had been filed had jurisdiction to consider whether the suits fell within Section 12 (3) (a) or Section 12 (3) (b). Both the courts held on the facts that the cases fell under Section 12 (3) (a). Even if that finding was erroneous in law and we do not want to suggest that it was-the courts had jurisdiction and it cannot be said that that jurisdiction was exercised illegally or with material irregularity. The worst that could be said is that they had placed an erroneous construction on the relevant provisions. It has been held by this court in Ratilal v. Ranchhodbhai, AIR 1966 SC 439 which was also a case under the same Rent Act that an erroneous construction placed upon a statute does not amount to exercising jurisdiction illegally or with material irregularity and would not furnish a ground for interference under Section 115 C.P.C. See also Abbasbhai v. Gulamnabi, AIR 1964 SC 1341 .
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1[ds]5. It is obvious from the Judgment of the High Court that it interfered with the concurrent findings of the lower courts on the ground that it had jurisdiction to deal with the cases under Section 29 (2). It seems to have escaped the learned Judges notice that the revisions before him arose out of suits which had been filed in 1957. Therefore, though the revisions were heard after the 1965 amendment referred to above the revisions were not liable to be disposed of under the changed law.We do not think any useful purpose will be served by sending the cases back to the High Court. As already pointed out the learned Judge interfered in these cases only because he thought that he had jurisdiction to do so under Section 29 (2) as amended. It is obvious that he had recourse to that section because in view of the decided cases, he could not have interfered with the final decision of the City Civil Court under Section 115, C.P.C. The court in which the suits had been filed had jurisdiction to consider whether the suits fell within Section 12 (3) (a) or Section 12 (3) (b). Both the courts held on the facts that the cases fell under Section 12 (3) (a). Even if that finding was erroneous in law and we do not want to suggest that itcourts had jurisdiction and it cannot be said that that jurisdiction was exercised illegally or with material irregularity. The worst that could be said is that they had placed an erroneous construction on the relevant provisions. It has been held by this court in Ratilal v. Ranchhodbhai, AIR 1966 SC 439 which was also a case under the same Rent Act that an erroneous construction placed upon a statute does not amount to exercising jurisdiction illegally or with material irregularity and would not furnish a ground for interference under Section 115 C.P.C. See also Abbasbhai v. Gulamnabi, AIR 1964 SC 1341 .
| 1 | 1,397 |
### Instruction:
Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case.
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and disposed of together. The Trial court by its judgment dated the 17th November, 1960 held that the tenants were in arrears for more than the statutory six months; that the standard rent was the same as claimed by the landlady; that the tenants were liable to pay the municipal tax in addition and that in view of S. 12 (3) (a) of the Bombay Rent Act, as applied to the Gujarat area, both the tenants were liable to be evicted.3. The tenants went in appeal to the City Civil Court. The appeals were heard together and the learned City Civil Judge who heard the appeals confirmed the findings and the decrees of the Trial Court. The appeals were disposed of on January 31, 1962. From this judgment the two tenants filed Civil Revision Applications to the High Court. The learned single Judge, who heard the Revision applications, relying upon a previous judgment of that court, held that since the rent was not "payable by the month" as required by Section 12 (3) (a) referred to above the cases fell within Section 12 (3) (b) of the Act and, therefore, decrees for eviction could not be passed. It is from that Order that the present appeals have been filed by the landlady by special leave.4. A preliminary objection seems to have been raised before the High Court on behalf of the landlady that a revision did not lie and under Section 29 of the Bombay Rent Act in its application to Gujarat, the Order passed by the City Civil Court was final and since no question under Section 115 C.P.C. arose the revision was not maintainable. This objection was rejected by the learned Judge who pointed out that under Section 29 (2) as it stood amended by Gujarat Act 18 of l965 the High Court had jurisdiction. Before that amendment the sub-section read, "No further appeal shall lie against any decision in appeal under sub-section (1)". But by the amendment the following was substituted therefor: "No further appeal shall lie against any decision in appeal under sub-section (1) but the High Court may, for the purpose of satisfying himself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit." In the opinion of the learned Judge having regard to the amended S. 29 (2) he could examine the decision as a whole and enquire as to whether the decision arrived at as a whole was according to law or not and the High Court was not confined merely to the authority to see whether there were any errors of law. Thus the learned Judge came to the conclusion that the decisions were not in accordance with law because, in his opinion, though the monthly rent was admittedly as claimed by the landlady, since the tenants were also liable to pay the municipal tax in addition, it could not be said that these were cases where the "rent was payable by the month" within the meaning of Section 12 (3) (a). It is not necessary to consider whether this view is correct because the present appeals must succeed on other points.5. It is obvious from the Judgment of the High Court that it interfered with the concurrent findings of the lower courts on the ground that it had jurisdiction to deal with the cases under Section 29 (2). It seems to have escaped the learned Judges notice that the revisions before him arose out of suits which had been filed in 1957. Therefore, though the revisions were heard after the 1965 amendment referred to above the revisions were not liable to be disposed of under the changed law. It has been held by this court in Keshavlal Jethalal v. Mohanlal Bhagwandas, (1968) 3 SCR 623 = (AIR 1968 SC 1336 ) that in a case like this in which the appellate decree had become final under the unamended Section 29(2) of the Bombay Rent Act, it could not be set aside in exercise of the jurisdiction under the amended Section 29 (2) the amendment having been made long after the appellate decree had become final. The High Court could deal with the cases only under its revisional powers under Section 115 C.P.C. The learned counsel for the tenants appearing before us conceded the position and requested that the cases may, therefore, be remanded to the High Court for being disposed of under Section 115 C.P.C.6. We do not think any useful purpose will be served by sending the cases back to the High Court. As already pointed out the learned Judge interfered in these cases only because he thought that he had jurisdiction to do so under Section 29 (2) as amended. It is obvious that he had recourse to that section because in view of the decided cases, he could not have interfered with the final decision of the City Civil Court under Section 115, C.P.C. The court in which the suits had been filed had jurisdiction to consider whether the suits fell within Section 12 (3) (a) or Section 12 (3) (b). Both the courts held on the facts that the cases fell under Section 12 (3) (a). Even if that finding was erroneous in law and we do not want to suggest that it was-the courts had jurisdiction and it cannot be said that that jurisdiction was exercised illegally or with material irregularity. The worst that could be said is that they had placed an erroneous construction on the relevant provisions. It has been held by this court in Ratilal v. Ranchhodbhai, AIR 1966 SC 439 which was also a case under the same Rent Act that an erroneous construction placed upon a statute does not amount to exercising jurisdiction illegally or with material irregularity and would not furnish a ground for interference under Section 115 C.P.C. See also Abbasbhai v. Gulamnabi, AIR 1964 SC 1341 .
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616 |
K.D Sharma Vs. Steel Authorities Of India Ltd
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of the Bank was challenged by the Federation by filing a petition in this Court under Article 32 of the Constitution. It was supported by an affidavit and the contents were affirmed by the President of the Federation to be true to his `personal knowledge. It was stated: The petitioners have not filed any other similar writ petition in this Honourable Court or any other High Court. 41. In the counter-affidavit filed on behalf of the Bank, however, it was asserted that the statement was `false. The Federation had filed a writ petition in the High Court of Andhra Pradesh which was admitted but interim stay was refused. Another petition was also filed in the High Court of Karnataka. It was further pointed out that Promotion Policy was implemented and 58 officers were promoted who were not made parties to the petition. 42. In affidavit-in-rejoinder, once again, the stand taken by the petitioner was sought to be justified. It was stated: The deponent had no knowledge of the writ petition filed before the High Court of Andhra Pradesh, hence as soon as it came to his knowledge the same has been withdrawn. Secondly, the petitioners even today do not know the names of all such 58 candidates who have been promoted/favoured. It was contended on behalf of the Bank that even that statement was false. Not only the petitioner-Federation was aware of the names of all the 58 officers who had been promoted to the higher post, but they had been joined as party- respondents in the writ petition filed in the Karnataka High Court, seeking stay of promotion of those respondents. It was, therefore, submitted that the petitioner had not come with clean hands and the petition should be dismissed on that ground alone. 43. `Strongly disapproving the explanation put forth by the petitioner and describing the tactics adopted by the Federation as `abuse of process of court, this Court observed: There is no doubt left in our minds that the petitioner has not only suppressed material facts in the petition but has also tried to abuse judicial process. Apart from misstatements in the affidavits filed before this Court, the petitioner Federation has clearly resorted to tactics which can only be described as abuse of the process of court. The simultaneous filing of writ petitions in various High Courts on the same issue though purportedly on behalf of different associations of the Officers of the Bank, is a practice which has to be discouraged. Sri Sachhar and Sri Ramamurthy wished to pinpoint the necessity and importance of petitions being filed by different associations in order to discharge satisfactorily their responsibilities towards their respective members. We are not quite able to appreciate such necessity where there is no diversity but only a commonness of interest. All that they had to do was to join forces and demonstrate their unity by filing a petition in a Single Court. It seems the object here in filing different petitions in different Courts was a totally different and not very laudable one. (emphasis supplied) 44. `Deeply grieved by the situation and adversely commenting on the conduct and behaviour of the responsible officers of a Premier Bank of the country, the Court observed; We have set out the facts in this case at some length and passed a detailed order because we are deeply grieved to come across such conduct on the part of an association, which claims to represent high placed officers of a premier bank of this country. One expects such officers to fight their battles fairly and squarely and not to stoop low to gain, what can only be, temporary victories by keeping away material facts from the court. It is common knowledge that, of late, statements are being made in petitions and affidavits recklessly and without proper verification not to speak of dishonest and deliberate misstatements. We, therefore, take this opportunity to record our strong and emphatic disapproval of the conduct of the petitioners in this ease and hope that this will be a lesson to the present petitioner as well as to other litigants and that at least in future people will act more truthfully and with a greater sense of responsibility. (emphasis supplied) 45. Yet in another case in Vijay Syal & Anr. v. State of Punjab & Ors., (2003) 9 SCC 401 ; this Court stated; In order to sustain and maintain sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters are either mistaken or lightly taken instead of learning proper lesson. Hence there is a compelling need to take serious view in such matters to ensure expected purity and grace in the administration of justice. 46. In the case on hand, the appellant has not come forward with all the facts. He has chosen to state facts in the manner suited to him by giving an impression to the Writ Court that an instrumentality of State (SAIL) has not followed doctrine of natural justice and fundamental principles of fair procedure. This is not proper. Hence, on that ground alone, the appellant cannot claim equitable relief. But we have also considered the merits of the case and even on merits, we are convinced that no case has been made out by him to interfere with the action of SAIL, or the order passed by the High Court.
|
0[ds]46. In the case on hand, the appellant has not come forward with all the facts. He has chosen to state facts in the manner suited to him by giving an impression to the Writ Court that an instrumentality of State (SAIL) has not followed doctrine of natural justice and fundamental principles of fair procedure. This is not proper. Hence, on that ground alone, the appellant cannot claim equitable relief. But we have also considered the merits of the case and even on merits, we are convinced that no case has been made out by him to interfere with the action of SAIL, or the order passed by the High Court
| 0 | 7,218 |
### 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 Bank was challenged by the Federation by filing a petition in this Court under Article 32 of the Constitution. It was supported by an affidavit and the contents were affirmed by the President of the Federation to be true to his `personal knowledge. It was stated: The petitioners have not filed any other similar writ petition in this Honourable Court or any other High Court. 41. In the counter-affidavit filed on behalf of the Bank, however, it was asserted that the statement was `false. The Federation had filed a writ petition in the High Court of Andhra Pradesh which was admitted but interim stay was refused. Another petition was also filed in the High Court of Karnataka. It was further pointed out that Promotion Policy was implemented and 58 officers were promoted who were not made parties to the petition. 42. In affidavit-in-rejoinder, once again, the stand taken by the petitioner was sought to be justified. It was stated: The deponent had no knowledge of the writ petition filed before the High Court of Andhra Pradesh, hence as soon as it came to his knowledge the same has been withdrawn. Secondly, the petitioners even today do not know the names of all such 58 candidates who have been promoted/favoured. It was contended on behalf of the Bank that even that statement was false. Not only the petitioner-Federation was aware of the names of all the 58 officers who had been promoted to the higher post, but they had been joined as party- respondents in the writ petition filed in the Karnataka High Court, seeking stay of promotion of those respondents. It was, therefore, submitted that the petitioner had not come with clean hands and the petition should be dismissed on that ground alone. 43. `Strongly disapproving the explanation put forth by the petitioner and describing the tactics adopted by the Federation as `abuse of process of court, this Court observed: There is no doubt left in our minds that the petitioner has not only suppressed material facts in the petition but has also tried to abuse judicial process. Apart from misstatements in the affidavits filed before this Court, the petitioner Federation has clearly resorted to tactics which can only be described as abuse of the process of court. The simultaneous filing of writ petitions in various High Courts on the same issue though purportedly on behalf of different associations of the Officers of the Bank, is a practice which has to be discouraged. Sri Sachhar and Sri Ramamurthy wished to pinpoint the necessity and importance of petitions being filed by different associations in order to discharge satisfactorily their responsibilities towards their respective members. We are not quite able to appreciate such necessity where there is no diversity but only a commonness of interest. All that they had to do was to join forces and demonstrate their unity by filing a petition in a Single Court. It seems the object here in filing different petitions in different Courts was a totally different and not very laudable one. (emphasis supplied) 44. `Deeply grieved by the situation and adversely commenting on the conduct and behaviour of the responsible officers of a Premier Bank of the country, the Court observed; We have set out the facts in this case at some length and passed a detailed order because we are deeply grieved to come across such conduct on the part of an association, which claims to represent high placed officers of a premier bank of this country. One expects such officers to fight their battles fairly and squarely and not to stoop low to gain, what can only be, temporary victories by keeping away material facts from the court. It is common knowledge that, of late, statements are being made in petitions and affidavits recklessly and without proper verification not to speak of dishonest and deliberate misstatements. We, therefore, take this opportunity to record our strong and emphatic disapproval of the conduct of the petitioners in this ease and hope that this will be a lesson to the present petitioner as well as to other litigants and that at least in future people will act more truthfully and with a greater sense of responsibility. (emphasis supplied) 45. Yet in another case in Vijay Syal & Anr. v. State of Punjab & Ors., (2003) 9 SCC 401 ; this Court stated; In order to sustain and maintain sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters are either mistaken or lightly taken instead of learning proper lesson. Hence there is a compelling need to take serious view in such matters to ensure expected purity and grace in the administration of justice. 46. In the case on hand, the appellant has not come forward with all the facts. He has chosen to state facts in the manner suited to him by giving an impression to the Writ Court that an instrumentality of State (SAIL) has not followed doctrine of natural justice and fundamental principles of fair procedure. This is not proper. Hence, on that ground alone, the appellant cannot claim equitable relief. But we have also considered the merits of the case and even on merits, we are convinced that no case has been made out by him to interfere with the action of SAIL, or the order passed by the High Court.
### Response:
0
|
617 |
Central India Spinning, Weaving and Manufacturing Company Limited, Nagpur Vs. Union of India, Ministry of Finance & Others
|
discount not being refundable on any account whatsoever) allowed in accordance with the normal practice of the wholesale trade at the time of removal in respect of such goods sold or contracted for sale.Explanation.---For the purpose of this sub-clause, the amount of the duty of excise payable on any excisable goods shall be the sum total of---(a) the effective duty of excise payable on such goods under this Act; and(b) ... ... ..... and the effective duty of excise on such goods under the Act referred to in Clause (a) or Clause (b) shall be,---(i) In a case where a notification or order providing for any exemption (not being an exemption for giving credit with respect to, or reduction of any duty of excise on such goods equal to, any duty of excise already paid on the raw material or component parts used in the production or manufacture of such goods) from the duty of excise under such Act is for the time being in force, the duty of excise computed with reference to the rate specified in such Act in respect of such goods as reduced so as to give full and complete effect to such exemption; and(ii) ..... ......9. It appears to be quite obvious from the above provisions that the Value of excisable goods is the normal price i.e. the price at which the goods are ordinarily sold by the assessee to the buyers in the course of wholesale trade. Therefore, the value for the purpose of excise duty is the normal price but not including the duty of excise payable. Normally the price under the Sale of Goods Act may contain several ingredients. It may consist of the cost of the raw material, cost of labour, cost of advertisement, cost of packing and so on. But excise duty is not levied on these different items. It is levied only on the normal price of the goods. But if such normal price includes excise duty payable then such amount of excise duty is to be excluded from the price for arriving at the value of the goods for the levy of the excise duty. We have already shown above that, from Notification No. 128/1977 dated 18-6-1977 as also from the explanation to section 4(4)(d)(ii) it is clear that when the effect of exemption notification is a reduction in the rate prescribed in the Act, it is the reduced rate of excise duty which is to be excluded under section 4(4)(d)(ii). The explanation referred to above, in our view makes it clean that the exclusion under section 4(4)(d)(ii) is only of the duty of excise as reduced by the exemption notification. Thus, in our view, the authorities below were justified in holding that what was being collected by the company as excise duty from the customers is not excise duty but the value in substance of the goods. The company is realising from its customers excise duty worked out on tariff rates while it is actually paying duty to Government at concessional rate. It is true that according to section 4(4)(d)(ii) of the Act the value does not include the amount of the duty of excise, if any payable on such goods, but in view of the explanation to section 4(4)(d)(ii) of the Act, the duty of excise means the duty payable in terms of the Central Exercise Tariff read with Exemption Notification issued under Rule 8 of the Central Excise Rules. In this view of the matter, the only deduction that is permissible is of the actual duty paid or payable while fixing the assessable value.10. Shri Bobde has invited our attention to several decisions, but most of them have already been discussed by this Court in B.K. Paper Mills Pvt. Ltd. v. Union of India, (supra) and have been rightly distinguished. Hence it is not necessary to discuss the same over again. Suffice it to say that they do not deal with the point which is directly in issue in our case.11. Shri Bobde has placed the copy of the judgment of the Karnataka High Court, disposing of Writ Petition No. 3548 of 1978 and Writ Petition No. 4766 of 1981 on 3rd October, 1985. In this case the Collector of Central Excise had issued a Trade notice purporting to clarity the levy of excise duty on goods manufactured by the petitioners as detailed in Exemption Notification No. 198/76-CE. On the basis of the Trade Notice, duty was demanded from the petitioners, who paid the duty under protest. The Karnataka High Court has expressed thus :"(35) What emerges from the above discussion is that in determining the assessable value of manufactured goods governed by the exemptions granted by the Government either partial or whole, only that amount of duty actually paid or payable by such manufacturer should be excluded and the benefit of such exemptions cannot be denied on the ground that the extent of such exemptions either in whole or in part had not been passed to the customer."The Karnataka High Court has also referred to the decision of this Court in B.K. Paper Mills Pvt. Ltd. (supra) and expressed thus :"We are of the view that this enunciation made by the learned Judge is in accord with what we have expressed earlier. We are of the view that it is unnecessary to examine the other questions that were decided in that case."In view of what we have stated above, it is difficult to appreciate how this decision supports Shri Bobde.12. Lastly, Shri Bobde urged a question of limitation in Writ Petition No. 2250 of 1983 based on the statement of show cause notices (Annexure 11) at Serial Nos. 12 and 13 as barred by limitation under rule 10 of the Rules in force framed under the Central Excise Salt Act, 1944. The authorities below have dealt with this aspect and, in our view, rightly. We see no reason to take a view different from the one that has been taken by the authorities below.
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0[ds]9. It appears to be quite obvious from the above provisions that the Value of excisable goods is the normal price i.e. the price at which the goods are ordinarily sold by the assessee to the buyers in the course of wholesale trade. Therefore, the value for the purpose of excise duty is the normal price but not including the duty of excise payable. Normally the price under the Sale of Goods Act may contain several ingredients. It may consist of the cost of the raw material, cost of labour, cost of advertisement, cost of packing and so on. But excise duty is not levied on these different items. It is levied only on the normal price of the goods. But if such normal price includes excise duty payable then such amount of excise duty is to be excluded from the price for arriving at the value of the goods for the levy of the excise duty. We have already shown above that, from Notification No. 128/1977 datedas also from the explanation to section 4(4)(d)(ii) it is clear that when the effect of exemption notification is a reduction in the rate prescribed in the Act, it is the reduced rate of excise duty which is to be excluded under section 4(4)(d)(ii). The explanation referred to above, in our view makes it clean that the exclusion under section 4(4)(d)(ii) is only of the duty of excise as reduced by the exemption notification. Thus, in our view, the authorities below were justified in holding that what was being collected by the company as excise duty from the customers is not excise duty but the value in substance of the goods. The company is realising from its customers excise duty worked out on tariff rates while it is actually paying duty to Government at concessional rate. It is true that according to section 4(4)(d)(ii) of the Act the value does not include the amount of the duty of excise, if any payable on such goods, but in view of the explanation to section 4(4)(d)(ii) of the Act, the duty of excise means the duty payable in terms of the Central Exercise Tariff read with Exemption Notification issued under Rule 8 of the Central Excise Rules. In this view of the matter, the only deduction that is permissible is of the actual duty paid or payable while fixing the assessable value.Shri Bobde has placed the copy of the judgment of the Karnataka High Court, disposing of Writ Petition No. 3548 of 1978 and Writ Petition No. 4766 of 1981 on 3rd October, 1985. In this case the Collector of Central Excise had issued a Trade notice purporting to clarity the levy of excise duty on goods manufactured by the petitioners as detailed in Exemption Notification No.On the basis of the Trade Notice, duty was demanded from the petitioners, who paid the duty under protest. The Karnataka High Court has expressed thus :"(35) What emerges from the above discussion is that in determining the assessable value of manufactured goods governed by the exemptions granted by the Government either partial or whole, only that amount of duty actually paid or payable by such manufacturer should be excluded and the benefit of such exemptions cannot be denied on the ground that the extent of such exemptions either in whole or in part had not been passed to the customer."The Karnataka High Court has also referred to the decision of this Court in B.K. Paper Mills Pvt. Ltd. (supra) and expressed thus :"We are of the view that this enunciation made by the learned Judge is in accord with what we have expressed earlier. We are of the view that it is unnecessary to examine the other questions that were decided in that case."In view of what we have stated above, it is difficult to appreciate how this decision supports Shri Bobde.12. Lastly, Shri Bobde urged a question of limitation in Writ Petition No. 2250 of 1983 based on the statement of show cause notices (Annexure 11) at Serial Nos. 12 and 13 as barred by limitation under rule 10 of the Rules in force framed under the Central Excise Salt Act, 1944. The authorities below have dealt with this aspect and, in our view, rightly. We see no reason to take a view different from the one that has been taken by the authorities below.
| 0 | 3,869 |
### 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:
discount not being refundable on any account whatsoever) allowed in accordance with the normal practice of the wholesale trade at the time of removal in respect of such goods sold or contracted for sale.Explanation.---For the purpose of this sub-clause, the amount of the duty of excise payable on any excisable goods shall be the sum total of---(a) the effective duty of excise payable on such goods under this Act; and(b) ... ... ..... and the effective duty of excise on such goods under the Act referred to in Clause (a) or Clause (b) shall be,---(i) In a case where a notification or order providing for any exemption (not being an exemption for giving credit with respect to, or reduction of any duty of excise on such goods equal to, any duty of excise already paid on the raw material or component parts used in the production or manufacture of such goods) from the duty of excise under such Act is for the time being in force, the duty of excise computed with reference to the rate specified in such Act in respect of such goods as reduced so as to give full and complete effect to such exemption; and(ii) ..... ......9. It appears to be quite obvious from the above provisions that the Value of excisable goods is the normal price i.e. the price at which the goods are ordinarily sold by the assessee to the buyers in the course of wholesale trade. Therefore, the value for the purpose of excise duty is the normal price but not including the duty of excise payable. Normally the price under the Sale of Goods Act may contain several ingredients. It may consist of the cost of the raw material, cost of labour, cost of advertisement, cost of packing and so on. But excise duty is not levied on these different items. It is levied only on the normal price of the goods. But if such normal price includes excise duty payable then such amount of excise duty is to be excluded from the price for arriving at the value of the goods for the levy of the excise duty. We have already shown above that, from Notification No. 128/1977 dated 18-6-1977 as also from the explanation to section 4(4)(d)(ii) it is clear that when the effect of exemption notification is a reduction in the rate prescribed in the Act, it is the reduced rate of excise duty which is to be excluded under section 4(4)(d)(ii). The explanation referred to above, in our view makes it clean that the exclusion under section 4(4)(d)(ii) is only of the duty of excise as reduced by the exemption notification. Thus, in our view, the authorities below were justified in holding that what was being collected by the company as excise duty from the customers is not excise duty but the value in substance of the goods. The company is realising from its customers excise duty worked out on tariff rates while it is actually paying duty to Government at concessional rate. It is true that according to section 4(4)(d)(ii) of the Act the value does not include the amount of the duty of excise, if any payable on such goods, but in view of the explanation to section 4(4)(d)(ii) of the Act, the duty of excise means the duty payable in terms of the Central Exercise Tariff read with Exemption Notification issued under Rule 8 of the Central Excise Rules. In this view of the matter, the only deduction that is permissible is of the actual duty paid or payable while fixing the assessable value.10. Shri Bobde has invited our attention to several decisions, but most of them have already been discussed by this Court in B.K. Paper Mills Pvt. Ltd. v. Union of India, (supra) and have been rightly distinguished. Hence it is not necessary to discuss the same over again. Suffice it to say that they do not deal with the point which is directly in issue in our case.11. Shri Bobde has placed the copy of the judgment of the Karnataka High Court, disposing of Writ Petition No. 3548 of 1978 and Writ Petition No. 4766 of 1981 on 3rd October, 1985. In this case the Collector of Central Excise had issued a Trade notice purporting to clarity the levy of excise duty on goods manufactured by the petitioners as detailed in Exemption Notification No. 198/76-CE. On the basis of the Trade Notice, duty was demanded from the petitioners, who paid the duty under protest. The Karnataka High Court has expressed thus :"(35) What emerges from the above discussion is that in determining the assessable value of manufactured goods governed by the exemptions granted by the Government either partial or whole, only that amount of duty actually paid or payable by such manufacturer should be excluded and the benefit of such exemptions cannot be denied on the ground that the extent of such exemptions either in whole or in part had not been passed to the customer."The Karnataka High Court has also referred to the decision of this Court in B.K. Paper Mills Pvt. Ltd. (supra) and expressed thus :"We are of the view that this enunciation made by the learned Judge is in accord with what we have expressed earlier. We are of the view that it is unnecessary to examine the other questions that were decided in that case."In view of what we have stated above, it is difficult to appreciate how this decision supports Shri Bobde.12. Lastly, Shri Bobde urged a question of limitation in Writ Petition No. 2250 of 1983 based on the statement of show cause notices (Annexure 11) at Serial Nos. 12 and 13 as barred by limitation under rule 10 of the Rules in force framed under the Central Excise Salt Act, 1944. The authorities below have dealt with this aspect and, in our view, rightly. We see no reason to take a view different from the one that has been taken by the authorities below.
### Response:
0
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618 |
Abdul Rehman Vs. State of Karnataka
|
Fazal Ali, J.This appeal by special leave is directed against the judgment of the Karnataka High Court upholding the conviction of the appellant under Section 302 and his sentence of life imprisonment. Facts of this case have been fully detailed in the judgment of the High Court and it is not necessary for us to repeat the same all over again.2. The central evidence against the appellant consists of his confessional statement before PW 20, Nemichand, a Taluka Magistrate, Hubli. It appears from a perusal of his evidence where he has categorically stated that he gave necessary warning to the accused that he was not bound to make any confession and if he does so, he may be convicted thereon. The Magistrate has also asserted in his statement that he was satisfied that the confession was true and voluntary. We have also perused the confessional statement of the appellant which gives coherent version of the manner and the circumstances in which the deceased was killed, by the appellant. The High Court has pointed out that the material facts mentioned in the confession have been generally corroborated by the evidence produced in the case. Mr. B. P. Singh appearing for the appellant submitted that the confession suffers from important infirmities. In the first place he submits that according to defence the accused was arrested on April 26, 1971, and thus a month elapsed between the time of his arrest and the making of the confession from where a reasonable inference can be drawn that the confession was extorted. There is, however, no evidence to show that the accused was actually arrested on April 26, 1971 as alleged by the defence. On the other hand, the evidence shows that he was arrested on May 31, 1971 and soon thereafter the confession was recorded. In the circumstances, we are unable to accept the first plank of the argument advanced by the learned for the appellant. Secondly, it was argued that as a Judicial Magistrate was available at Hubli, the Investigating Officer should have requisitioned his services rather than that of the Taluka Magistrate. It is no doubt true that it would have been better for the Police to get the confession recorded by a Judicial Magistrate but that by itself is not sufficient to enable us to discard the sole testimony of PW 20. PW 20 has also stated that he was appointed as Magistrate in 1952 and he had been specially empowered to record the confession. Thus PW 20 was a Magistrate of sufficient experience. Having carefully gone through evidence of the witness we are satisfied that he was fully satisfied that the confession was voluntary and was given without any duress or coercion. In the circumstances, therefore, the second contention raised by the appellant must fail.
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0[ds]There is, however, no evidence to show that the accused was actually arrested on April 26, 1971 as alleged by thethe circumstances, we are unable to accept the first plank of the argument advanced by the learned for the appellant. Secondly, it was argued that as a Judicial Magistrate was available at Hubli, the Investigating Officer should have requisitioned his services rather than that of the Taluka Magistrate. It is no doubt true that it would have been better for the Police to get the confession recorded by a Judicial Magistrate but that by itself is not sufficient to enable us to discard the sole testimony of PW 20. PW 20 has also stated that he was appointed as Magistrate in 1952 and he had been specially empowered to record the confession. Thus PW 20 was a Magistrate of sufficient experience. Having carefully gone through evidence of the witness we are satisfied that he was fully satisfied that the confession was voluntary and was given without any duress or coercion. In the circumstances, therefore, the second contention raised by the appellant must fail.
| 0 | 501 |
### 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:
Fazal Ali, J.This appeal by special leave is directed against the judgment of the Karnataka High Court upholding the conviction of the appellant under Section 302 and his sentence of life imprisonment. Facts of this case have been fully detailed in the judgment of the High Court and it is not necessary for us to repeat the same all over again.2. The central evidence against the appellant consists of his confessional statement before PW 20, Nemichand, a Taluka Magistrate, Hubli. It appears from a perusal of his evidence where he has categorically stated that he gave necessary warning to the accused that he was not bound to make any confession and if he does so, he may be convicted thereon. The Magistrate has also asserted in his statement that he was satisfied that the confession was true and voluntary. We have also perused the confessional statement of the appellant which gives coherent version of the manner and the circumstances in which the deceased was killed, by the appellant. The High Court has pointed out that the material facts mentioned in the confession have been generally corroborated by the evidence produced in the case. Mr. B. P. Singh appearing for the appellant submitted that the confession suffers from important infirmities. In the first place he submits that according to defence the accused was arrested on April 26, 1971, and thus a month elapsed between the time of his arrest and the making of the confession from where a reasonable inference can be drawn that the confession was extorted. There is, however, no evidence to show that the accused was actually arrested on April 26, 1971 as alleged by the defence. On the other hand, the evidence shows that he was arrested on May 31, 1971 and soon thereafter the confession was recorded. In the circumstances, we are unable to accept the first plank of the argument advanced by the learned for the appellant. Secondly, it was argued that as a Judicial Magistrate was available at Hubli, the Investigating Officer should have requisitioned his services rather than that of the Taluka Magistrate. It is no doubt true that it would have been better for the Police to get the confession recorded by a Judicial Magistrate but that by itself is not sufficient to enable us to discard the sole testimony of PW 20. PW 20 has also stated that he was appointed as Magistrate in 1952 and he had been specially empowered to record the confession. Thus PW 20 was a Magistrate of sufficient experience. Having carefully gone through evidence of the witness we are satisfied that he was fully satisfied that the confession was voluntary and was given without any duress or coercion. In the circumstances, therefore, the second contention raised by the appellant must fail.
### Response:
0
|
619 |
Renuka Mukherjee Vs. Vodafone Essar Ltd. and Ors
|
the said Complaint to its logical conclusion and subjected herself to cross-examination. The contention on behalf of the Petitioner that she did not prosecute the said Complaint because she was not a workman and her Complaint before the Labour Court may not have been entertained, is merely stated to be rejected. In her Complaint before the Labour Court, she has specifically pleaded that from June 1999 she was shifted to pager division from the customer services department, where the work assigned to her was clearly clerical and she was relegated to a workman status till she was terminated on 01-08-2000. As a matter of fact, even in the present Petition, the Petitioner has reiterated in paragraph 9 that she was doing low profile clerk job of inferior status, which falls in the category of workman. The Petitioner cannot be allowed to take a stand contrary to her pleadings in this Petition. She cannot approbate and reprobate to suit her convenience. In any event, nothing prevented the Petitioner from withdrawing her Complaint before the Labour Court if she felt that her Complaint before the Labour Court may not be entertained on technical grounds. We find substance in the submission of the learned Counsel for the Respondent that the Complaint was kept pending by the Petitioner merely to harass the Respondents knowing fully well that she would not be appearing before the Labour Court. 15. It is also required to be noted that in the present Petition there is no prayer seeking direction from the Court to constitute a Complaints Committee on sexual harassment. Pertinently, even at the time of admission of the Petition, the Petitioner through her Counsel did not press for the constitution of the Complaints Committee to look into her Complaint on sexual harassment. It is an admitted position that during the course of her employment there was no letter written by the Petitioner to the Respondent No. 1-Company seeking constitution of Complaints Committee to look into her grievance on sexual harassment. As a matter of fact even in the letter dated 04-08-2000 of the Petitioner as also her Advocates letter dated 22-08-2000 addressed to the Respondent No. 1-Company (for the first time), no such request was made. Merely to test the bonafides of the Petitioner, during the course of hearing, we suggested to the learned Counsel for the Petitioner that if the Petitioner was serious about her Complaint even at this stage we can explore possibility of directing the Respondent No. 1-Company to have the Complaint of the Petitioner atleast to the extent of veracity of her Complaint examined by the Complaints Committee which is now stated to be in place in the Respondent No. 1-Company. However, the learned Counsel for the Petitioner, after taking instructions, stated that the Petitioner is now settled in Australia and does not wish to appear before any Committee. The other judgments cited on behalf of the Petitioner were cases where compensation was awarded because the injury was established/accepted and therefore the said judgments do not help the case of the Petitioner. Though the Petitioner claims that her fundamental rights were violated and claims compensation relying upon the judgment of the Supreme Court in the case of Vishaka, she has given up prayer clause 28(b)(iv) of the Petition as discussed in paragraph 4 hereinabove. The said prayer clause 28(b)(iv) reads as follows: (b)(iv) that the letter of termination of the Petitioners service dated 1st August 2000 is entirely malicious, bad in law, void, non-est, being in violation of the Fundamental Rights of the Petitioner and against the law laid down by the Honble the Supreme Court; (emphasis supplied) 16. In view of the aforesaid discussion, we do not find that this is a fit case to grant compensation to the Petitioner for non-constitution of the Complaints Committee by Respondent No. 1. It is an admitted position that at the relevant time there was no Complaints Committee constituted by the Respondent No. 1 despite the law laid down by the Supreme Court in Vishaka. To that extent it can be said that the Respondent No. 1-Company had not implemented the directions of the Supreme Court in Vishaka. We are informed by the learned Senior Counsel for the Respondent No. 1 that the Complaints Committee was constituted later and is presently in place. It is no doubt true and as rightly pointed out on behalf of the Respondent No. 1 that there were several establishments even in the Government Departments and other Institutions where the Complaints Committee were yet to be constituted even in the year 2012. As a matter of fact, in Medha Kotwal Lele (supra) and Seema Lapcha (supra) directions have been issued by the Apex Court in the year 2012 to constitute Complaints Committee in terms of Vishaka. Even assuming that there was no Complaint of the Petitioner on record of the Respondent No. 1 making grievance of sexual harassment during the course of her employment and it was only after she was terminated that she had made allegations of sexual harassment as contended by the Respondents, we find that nothing prevented the Respondent No. 1 from inquiring into her grievance even after her termination. However, there was no Complaints Committee in place to inquire into Complaint of sexual harassment made by the Petitioner. In our view, some preliminary inquiry also could have been undertaken by the Complaints Committee to determine the veracity of the Complaint and whether the same was bonafide and genuine, had such Complaints Committee been in place. It is noticed that the Respondent No. 1 did constitute an Inquiry Committee consisting of three persons, which shows that they were conscious of the fact that the Complaint of the Petitioner was required to be look into. However, curiously that Inquiry Committee has admittedly not issued any notice to the Petitioner pertaining to her Complaint and she was not examined and no opportunity of hearing was given to her. That inquiry therefore was no inquiry in the eyes of law.
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0[ds]Thus, at the time of admission of the Petition, the Petitioner had not pressed the prayer challenging her termination order dated 1 August 2000 in view of the substantive challenge to the said termination order made by her in her Complaint (ULP) No. 93 of 2000 filed before the Labour Court. It is not in dispute that the said Complaint before the Labour Court was ultimately dismissed ex parte.In Vishaka, the 3-Judge Bench of the Supreme Court has laid down the guidelines in respect of the protection of women from sexual harassment at work places. The Supreme Court inter alia noted that in absence of any legislative measures there was a need to find an effective alternate mechanism for prevention of working women who may be exposed to sexual harassment which results in violation of fundamental rights of gender equality and right to life and liberty for women workers under Article 14, 15, 19(1)(g) and 21 of the Constitution. In paragraph 17 and 18 of the judgment in Vishaka, the Supreme Court has laid down the guidelines and issued directions in the following terms:17. The GUIDELINES and NORMS prescribed herein are as under:-HAVING REGARD to the definition of human rights in Section 2(d) of the Protection of Human Rights Act, 1993.TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time.It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:1. Duty of the employer or other responsible persons in work places and other institutions:It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:a) physical contact and advances;b) a demand or request for sexual favours;c) sexually coloured remarks;d) showing pornography;e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victims employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.3. Preventive Steps:All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.(b) The rules/regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.4. Criminal Proceedings:Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.5. Disciplinary action:Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.6. Complaint mechanism:Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employers organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time-bound treatment of complaints.7. Complaints Committee:The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.The Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.The Complaints Committee must make an annual report to the Government Department concerned of the complaints and action taken by them.The employers and person-in-charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.8. Workers Initiative:Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in employer-employee meetings.Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.10. Third-party harassment:Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person-in-charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in private sector.12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.18. Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly.12. We have given our due consideration to the submissions of the learned Counsel. In paragraph 3 of the judgment of the Supreme Court in Vishaka it is observed as under:When, however, instances of sexual harassment resulting in violation of fundamental rights of woman workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.Thus, it is only when there is/are instance/s of sexual harassment that it can be said that there is violation of fundamental rights under Articles 14, 19 and 21 of the Constitution. In other words, unless it is established that there was sexual harassment, there can be no violation of fundamental rights under Articles 14, 19 and 21. In the present case, as conceded before us by the learned Counsel for the Petitioner, this Court in the exercise of writ jurisdiction under Article 226 of the Constitution is not expected to adjudicate the disputed question of fact whether or not the Petitioner was a victim of sexual harassment. In our view, therefore, the non-constitution of the Complaints Committee by the Respondent No. 1-Company in its work place may not ipso facto mean that the fundamental rights of the Petitioner have been violated.13. From a bare perusal of the prayer clauses of the Petition, it would be apparent that there is no prayer made by the Petitioner for compensation for non-constitution of Complaints Committee by the Respondent No. 1. The prayer for compensation made in prayer clause 28(d) is in relation to seeking compensation from the respondents Nos. 1 to 4 for grievous injury and irreparable damage done to her physical and her psych by reason of action complained against them. Thus, this prayer clause 28(d) proceeds on the basis that the injury and damage is established, which is not so in the present case.We are not inclined to go into this disputed question of fact whether Exhibits H, I, J & L were on record of the Respondent No. 1 or they were false and fabricated documents. Indeed, it is not possible for us in the exercise of our writ jurisdiction to rule on the above disputed question of fact and come to a positive finding in this regard. It is required to be noted that the Petitioner had filed a Complaint before the Labour Court being Complaint (ULP) No. 98 of 2000 under the provisions of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act (MRTU & PULP Act) prior to the filing of the present Petition. The pleadings in the said Complaint before the Labour Court were on the same lines as that of the present Petition. In the said Complaint, the Petitioner had claimed victimization and had also sought a declaration that the Respondent No. 1 had committed unfair labour practice under the MRTU & PULP Act apart from seeking setting aside of her termination and reinstatement. The Petitioner had asserted that she was a victim of sexual harassment and since she did not cave into the demand of the Respondent No. 2, she came to be terminated. The Labour Court is a fact finding Court and could have gone into the issues threadbare including the issue whether or not the said Exhibits H, I, J & L were on record of the Respondent No. 1 or whether they were false and fabricated documents. The Petitioner, however, chose not to pursue the said Complaint and after about 112 adjournments the Complaint ultimately came to be dismissed ex parte by the Labour Court on 06-05-2008. It is not disputed before the Court that the Petitioner had not attended the Labour Court even on a single occasion. In our view, the Petitioner ought to have taken the said Complaint to its logical conclusion and subjected herself to cross-examination. The contention on behalf of the Petitioner that she did not prosecute the said Complaint because she was not a workman and her Complaint before the Labour Court may not have been entertained, is merely stated to be rejected. In her Complaint before the Labour Court, she has specifically pleaded that from June 1999 she was shifted to pager division from the customer services department, where the work assigned to her was clearly clerical and she was relegated to a workman status till she was terminated on 01-08-2000. As a matter of fact, even in the present Petition, the Petitioner has reiterated in paragraph 9 that she was doing low profile clerk job of inferior status, which falls in the category of workman. The Petitioner cannot be allowed to take a stand contrary to her pleadings in this Petition. She cannot approbate and reprobate to suit her convenience. In any event, nothing prevented the Petitioner from withdrawing her Complaint before the Labour Court if she felt that her Complaint before the Labour Court may not be entertained on technical grounds. We find substance in the submission of the learned Counsel for the Respondent that the Complaint was kept pending by the Petitioner merely to harass the Respondents knowing fully well that she would not be appearing before the Labour Court.15. It is also required to be noted that in the present Petition there is no prayer seeking direction from the Court to constitute a Complaints Committee on sexual harassment. Pertinently, even at the time of admission of the Petition, the Petitioner through her Counsel did not press for the constitution of the Complaints Committee to look into her Complaint on sexual harassment. It is an admitted position that during the course of her employment there was no letter written by the Petitioner to the Respondent No. 1-Company seeking constitution of Complaints Committee to look into her grievance on sexual harassment. As a matter of fact even in the letter dated 04-08-2000 of the Petitioner as also her Advocates letter dated 22-08-2000 addressed to the Respondent No. 1-Company (for the first time), no such request was made. Merely to test the bonafides of the Petitioner, during the course of hearing, we suggested to the learned Counsel for the Petitioner that if the Petitioner was serious about her Complaint even at this stage we can explore possibility of directing the Respondent No. 1-Company to have the Complaint of the Petitioner atleast to the extent of veracity of her Complaint examined by the Complaints Committee which is now stated to be in place in the Respondent No. 1-Company. However, the learned Counsel for the Petitioner, after taking instructions, stated that the Petitioner is now settled in Australia and does not wish to appear before any Committee. The other judgments cited on behalf of the Petitioner were cases where compensation was awarded because the injury was established/accepted and therefore the said judgments do not help the case of the Petitioner. Though the Petitioner claims that her fundamental rights were violated and claims compensation relying upon the judgment of the Supreme Court in the case of Vishaka, she has given up prayer clause 28(b)(iv) of the Petition as discussed in paragraph 4 hereinabove. The said prayer clause 28(b)(iv) reads as follows:that the letter of termination of the Petitioners service dated 1st August 2000 is entirely malicious, bad in law, void, non-est, being in violation of the Fundamental Rights of the Petitioner and against the law laid down by the Honble the Supreme Court;16. In view of the aforesaid discussion, we do not find that this is a fit case to grant compensation to the Petitioner for non-constitution of the Complaints Committee by Respondent No. 1. It is an admitted position that at the relevant time there was no Complaints Committee constituted by the Respondent No. 1 despite the law laid down by the Supreme Court in Vishaka. To that extent it can be said that the Respondent No. 1-Company had not implemented the directions of the Supreme Court in Vishaka. We are informed by the learned Senior Counsel for the Respondent No. 1 that the Complaints Committee was constituted later and is presently in place. It is no doubt true and as rightly pointed out on behalf of the Respondent No. 1 that there were several establishments even in the Government Departments and other Institutions where the Complaints Committee were yet to be constituted even in the year 2012. As a matter of fact, in Medha Kotwal Lele (supra) and Seema Lapcha (supra) directions have been issued by the Apex Court in the year 2012 to constitute Complaints Committee in terms of Vishaka. Even assuming that there was no Complaint of the Petitioner on record of the Respondent No. 1 making grievance of sexual harassment during the course of her employment and it was only after she was terminated that she had made allegations of sexual harassment as contended by the Respondents, we find that nothing prevented the Respondent No. 1 from inquiring into her grievance even after her termination. However, there was no Complaints Committee in place to inquire into Complaint of sexual harassment made by the Petitioner. In our view, some preliminary inquiry also could have been undertaken by the Complaints Committee to determine the veracity of the Complaint and whether the same was bonafide and genuine, had such Complaints Committee been in place. It is noticed that the Respondent No. 1 did constitute an Inquiry Committee consisting of three persons, which shows that they were conscious of the fact that the Complaint of the Petitioner was required to be look into. However, curiously that Inquiry Committee has admittedly not issued any notice to the Petitioner pertaining to her Complaint and she was not examined and no opportunity of hearing was given to her. That inquiry therefore was no inquiry in the eyes of law.
| 0 | 8,906 |
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Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal?
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the said Complaint to its logical conclusion and subjected herself to cross-examination. The contention on behalf of the Petitioner that she did not prosecute the said Complaint because she was not a workman and her Complaint before the Labour Court may not have been entertained, is merely stated to be rejected. In her Complaint before the Labour Court, she has specifically pleaded that from June 1999 she was shifted to pager division from the customer services department, where the work assigned to her was clearly clerical and she was relegated to a workman status till she was terminated on 01-08-2000. As a matter of fact, even in the present Petition, the Petitioner has reiterated in paragraph 9 that she was doing low profile clerk job of inferior status, which falls in the category of workman. The Petitioner cannot be allowed to take a stand contrary to her pleadings in this Petition. She cannot approbate and reprobate to suit her convenience. In any event, nothing prevented the Petitioner from withdrawing her Complaint before the Labour Court if she felt that her Complaint before the Labour Court may not be entertained on technical grounds. We find substance in the submission of the learned Counsel for the Respondent that the Complaint was kept pending by the Petitioner merely to harass the Respondents knowing fully well that she would not be appearing before the Labour Court. 15. It is also required to be noted that in the present Petition there is no prayer seeking direction from the Court to constitute a Complaints Committee on sexual harassment. Pertinently, even at the time of admission of the Petition, the Petitioner through her Counsel did not press for the constitution of the Complaints Committee to look into her Complaint on sexual harassment. It is an admitted position that during the course of her employment there was no letter written by the Petitioner to the Respondent No. 1-Company seeking constitution of Complaints Committee to look into her grievance on sexual harassment. As a matter of fact even in the letter dated 04-08-2000 of the Petitioner as also her Advocates letter dated 22-08-2000 addressed to the Respondent No. 1-Company (for the first time), no such request was made. Merely to test the bonafides of the Petitioner, during the course of hearing, we suggested to the learned Counsel for the Petitioner that if the Petitioner was serious about her Complaint even at this stage we can explore possibility of directing the Respondent No. 1-Company to have the Complaint of the Petitioner atleast to the extent of veracity of her Complaint examined by the Complaints Committee which is now stated to be in place in the Respondent No. 1-Company. However, the learned Counsel for the Petitioner, after taking instructions, stated that the Petitioner is now settled in Australia and does not wish to appear before any Committee. The other judgments cited on behalf of the Petitioner were cases where compensation was awarded because the injury was established/accepted and therefore the said judgments do not help the case of the Petitioner. Though the Petitioner claims that her fundamental rights were violated and claims compensation relying upon the judgment of the Supreme Court in the case of Vishaka, she has given up prayer clause 28(b)(iv) of the Petition as discussed in paragraph 4 hereinabove. The said prayer clause 28(b)(iv) reads as follows: (b)(iv) that the letter of termination of the Petitioners service dated 1st August 2000 is entirely malicious, bad in law, void, non-est, being in violation of the Fundamental Rights of the Petitioner and against the law laid down by the Honble the Supreme Court; (emphasis supplied) 16. In view of the aforesaid discussion, we do not find that this is a fit case to grant compensation to the Petitioner for non-constitution of the Complaints Committee by Respondent No. 1. It is an admitted position that at the relevant time there was no Complaints Committee constituted by the Respondent No. 1 despite the law laid down by the Supreme Court in Vishaka. To that extent it can be said that the Respondent No. 1-Company had not implemented the directions of the Supreme Court in Vishaka. We are informed by the learned Senior Counsel for the Respondent No. 1 that the Complaints Committee was constituted later and is presently in place. It is no doubt true and as rightly pointed out on behalf of the Respondent No. 1 that there were several establishments even in the Government Departments and other Institutions where the Complaints Committee were yet to be constituted even in the year 2012. As a matter of fact, in Medha Kotwal Lele (supra) and Seema Lapcha (supra) directions have been issued by the Apex Court in the year 2012 to constitute Complaints Committee in terms of Vishaka. Even assuming that there was no Complaint of the Petitioner on record of the Respondent No. 1 making grievance of sexual harassment during the course of her employment and it was only after she was terminated that she had made allegations of sexual harassment as contended by the Respondents, we find that nothing prevented the Respondent No. 1 from inquiring into her grievance even after her termination. However, there was no Complaints Committee in place to inquire into Complaint of sexual harassment made by the Petitioner. In our view, some preliminary inquiry also could have been undertaken by the Complaints Committee to determine the veracity of the Complaint and whether the same was bonafide and genuine, had such Complaints Committee been in place. It is noticed that the Respondent No. 1 did constitute an Inquiry Committee consisting of three persons, which shows that they were conscious of the fact that the Complaint of the Petitioner was required to be look into. However, curiously that Inquiry Committee has admittedly not issued any notice to the Petitioner pertaining to her Complaint and she was not examined and no opportunity of hearing was given to her. That inquiry therefore was no inquiry in the eyes of law.
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Venture Global Engineering Vs. Satyam Computer Services Ltd
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in the contemplation of a civil court of justice, may be said to include properly all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another."50. In Indian law, namely the Indian Contract Act, the said common law doctrine of fraud has been assimilated in Section 17 of the said Act. A very wide definition of fraud has been given, which is as under: "17. `Fraud defined.-`Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;(2) the active concealment of a fact by one having knowledge or belief of the fact;(3) a promise made without any intention of performing it;(4) any other act fitted to deceive;(5) any such act or omission as the law specially declares to be fraudulent.Explanation.-Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is, in itself, equivalent to speech." 51. Therefore, this Court is unable to accept the contention of the learned counsel for the respondent that the expression `fraud in the making of the award has to be narrowly construed. This Court cannot do so primarily because fraud being of `infinite variety may take many forms, and secondly, the expression `the making of the award will have to be read in conjunction with whether the award `was induced or affected by fraud.52. On such conjoint reading, this Court is unable to accept the contentions of the learned counsel for the respondents that facts which surfaced subsequent to the making of the award, but have a nexus with the facts constituting the award, are not relevant to demonstrate that there has been fraud in the making of the award. Concealment of relevant and material facts, which should have been disclosed before the arbitrator, is an act of fraud. If the argument advanced by the learned counsel for the respondents is accepted, then a party, who has suffered an award against another party who has concealed facts and obtained an award, cannot rely on facts which have surfaced subsequently even if those facts have a bearing on the facts constituting the award. Concealed facts in the very nature of things surface subsequently. Such a construction would defeat the principle of due process and would be opposed to the concept of public policy incorporated in the explanation. 53. In English Arbitration Law, a somewhat similar provision for challenging an award is contained in Section 68(2)(g) of the 1996 Arbitration Act, which reads as follows: "68(2)(g).- The award being obtained by fraud or the way in which it was procured being contrary to public policy." 54. Commenting on the said provision, Russell (Russell on Arbitration, 23rd Edition) stated that an "award will be obtained by fraud if the consequence of deliberate concealment is an award in favour of the concealing party." (P. 497, Para 8-100) 55. In Elektrim S.A. vs. Vivendi Universal S.A. and Ors. (2007) EWHC 11 (Comm), Mr. Justice Aikens held that the words `obtained by fraud must refer to an award being obtained by the fraud of the party to the arbitration or by the fraud of another to which the party to the arbitration was a privy. The learned Judge at page 82 of the report held that "an award will only be obtained by fraud if the party which has deliberately concealed the document has, as a consequence of that concealment, obtained an award in its favour. The party relying on Section 68(2)(g) must therefore also prove a causative link between the deliberate concealment of the document and a decision in the award in favour of the other successful party." 56. In Profilati Italia S.R.L. vs. Painewebber Inc. and Anr. [(2001) 1 Lloyds Law Reports 715], while construing Section 68(2)(g) of the English Arbitration Act, it has been held that where an important document which should have been disclosed has been deliberately withheld resulting in the party withholding obtaining the award, the Court may consider that the award was `procured in a manner contrary to public policy and such conduct is not far removed from fraud. (para 19, pg. 720) 57. This Court also holds that the facts concealed must have a causative link. And if the concealed facts, disclosed after the passing of the award, have a causative link with the facts constituting or inducing the award, such facts are relevant in a setting aside proceeding and award may be set aside as affected or induced by fraud.58. The question in this case, is therefore one of relevance of the materials which the appellant wants to bring on record by way of amendment in its plea for setting aside the award. 59. Whether the award will be set aside or not is a different question and that has to be decided by the appropriate Court. In this appeal, this Court is concerned only with the question whether by allowing the amendment, as prayed for by the appellant, the Court will allow material facts to be brought on record in the pending setting aside proceeding. 60. Judging the case from this angle, this Court is of the opinion that in the interest of justice and considering the fairness of procedure, the Court should allow the appellant to bring those materials on record as those materials are not wholly irrelevant or they may have a bearing on the appellants plea for setting aside the award.
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1[ds]22. We are of the opinion that in dealing with a prayer for amendment, Courts normally prefer substance to form and techniques and the interest of justice is one of most relevant considerations. Therefore, if a party is entitled to amend its pleadings, having regard to the justice of the case, the right of the party to amend cannot be defeated just because a wrong Section or a wrong provision has been quoted in the amendment petition. The approach of the High Court in this case, in rejecting the appellants prayer for amendment, inter alia, on the ground that a wrong provision has been quoted in the amendment petition, is obviously a very hyper technical one. Mr. Salve rightly did not even try to defend the impugned order on the aforesaid technical ground adopted by the High Court.This concept of public policy, in the realm of arbitration law, is a rather vexed concept, in the sense that different countries have different concepts of public policy. Say for instance, some countries which do not countenance gambling, an award arising out of a gambling dispute may be set aside on the ground that it offends public policy of the State. But in a country where gambling is legalized in some form, the award will not offend public policy. Similarly, a dispute between a producer of wine and its distributor is arbitrable in countries which are not governed by a strict Islamic Code. But a country with such a Code may hold the award contrary to public policy.45. In view of such varying standards of public policy in different countries, an attempt is made to arrive at a somewhat acceptable standard by construing that something is opposed to public policy where there is an excess of jurisdiction and a lack of due process. (See Redfern and Hunter on International Arbitration, 5th Edition, paragraphs6. The concept of public policy in ABC, 1996 as given in the explanation has virtually adopted the aforesaid international standard, namely if anything is found in excess of jurisdiction and depicts a lack of due process, it will be opposed to public policy of India. When an award is induced or affected by fraud or corruption, the same will fall within the aforesaid grounds of excess of jurisdiction and a lack of due process. Therefore, if we may say so, the explanation to Section 34 of ABC is like `a stable man in the saddle on the unruly horse of public policy.47. It is well known that fraud cannot be put in a strait jacket and it has a very wide connotation in legal parlance.48. In the decision of the House of Lords in Frank Reddaway and Co. Ltd. vs. George Banham, 1896 Appeal Cases 199, Lord Macnaghten explained the multifarious aspects of fraud very lucidly, and which we quote: "But fraud is infinite in variety; sometimes it is audacious and unblushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be honesty itself if it could only afford it. But fraud is fraud all the same; and it is the fraud, not the manner of it, which calls for the interposition of the Court."(Page 221 of the report).49. The aforesaid elucidation by the learned Law Lord has also been accepted in celebrated treaties on fraud (see Kerr on Fraud and Mistake, 7th Edition, pg. 1). Kerr has also referred to Storys Equity Jurisprudence and defined fraud as: "Fraud, in the contemplation of a civil court of justice, may be said to include properly all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another."50. In Indian law, namely the Indian Contract Act, the said common law doctrine of fraud has been assimilated in Section 17 of the said Act.Therefore, this Court is unable to accept the contention of the learned counsel for the respondent that the expression `fraud in the making of the award has to be narrowly construed. This Court cannot do so primarily because fraud being of `infinite variety may take many forms, and secondly, the expression `the making of the award will have to be read in conjunction with whether the award `was induced or affected by fraud.52. On such conjoint reading, this Court is unable to accept the contentions of the learned counsel for the respondents that facts which surfaced subsequent to the making of the award, but have a nexus with the facts constituting the award, are not relevant to demonstrate that there has been fraud in the making of the award. Concealment of relevant and material facts, which should have been disclosed before the arbitrator, is an act of fraud. If the argument advanced by the learned counsel for the respondents is accepted, then a party, who has suffered an award against another party who has concealed facts and obtained an award, cannot rely on facts which have surfaced subsequently even if those facts have a bearing on the facts constituting the award. Concealed facts in the very nature of things surface subsequently. Such a construction would defeat the principle of due process and would be opposed to the concept of public policy incorporated in the explanation.Commenting on the said provision, Russell (Russell on Arbitration, 23rd Edition) stated that an "award will be obtained by fraud if the consequence of deliberate concealment is an award in favour of the concealing party." (P. 497, ParaThis Court also holds that the facts concealed must have a causative link. And if the concealed facts, disclosed after the passing of the award, have a causative link with the facts constituting or inducing the award, such facts are relevant in a setting aside proceeding and award may be set aside as affected or induced by fraud.58. The question in this case, is therefore one of relevance of the materials which the appellant wants to bring on record by way of amendment in its plea for setting aside the award.Judging the case from this angle, this Court is of the opinion that in the interest of justice and considering the fairness of procedure, the Court should allow the appellant to bring those materials on record as those materials are not wholly irrelevant or they may have a bearing on the appellants plea for setting aside the award.
| 1 | 5,544 |
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Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
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in the contemplation of a civil court of justice, may be said to include properly all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another."50. In Indian law, namely the Indian Contract Act, the said common law doctrine of fraud has been assimilated in Section 17 of the said Act. A very wide definition of fraud has been given, which is as under: "17. `Fraud defined.-`Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;(2) the active concealment of a fact by one having knowledge or belief of the fact;(3) a promise made without any intention of performing it;(4) any other act fitted to deceive;(5) any such act or omission as the law specially declares to be fraudulent.Explanation.-Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is, in itself, equivalent to speech." 51. Therefore, this Court is unable to accept the contention of the learned counsel for the respondent that the expression `fraud in the making of the award has to be narrowly construed. This Court cannot do so primarily because fraud being of `infinite variety may take many forms, and secondly, the expression `the making of the award will have to be read in conjunction with whether the award `was induced or affected by fraud.52. On such conjoint reading, this Court is unable to accept the contentions of the learned counsel for the respondents that facts which surfaced subsequent to the making of the award, but have a nexus with the facts constituting the award, are not relevant to demonstrate that there has been fraud in the making of the award. Concealment of relevant and material facts, which should have been disclosed before the arbitrator, is an act of fraud. If the argument advanced by the learned counsel for the respondents is accepted, then a party, who has suffered an award against another party who has concealed facts and obtained an award, cannot rely on facts which have surfaced subsequently even if those facts have a bearing on the facts constituting the award. Concealed facts in the very nature of things surface subsequently. Such a construction would defeat the principle of due process and would be opposed to the concept of public policy incorporated in the explanation. 53. In English Arbitration Law, a somewhat similar provision for challenging an award is contained in Section 68(2)(g) of the 1996 Arbitration Act, which reads as follows: "68(2)(g).- The award being obtained by fraud or the way in which it was procured being contrary to public policy." 54. Commenting on the said provision, Russell (Russell on Arbitration, 23rd Edition) stated that an "award will be obtained by fraud if the consequence of deliberate concealment is an award in favour of the concealing party." (P. 497, Para 8-100) 55. In Elektrim S.A. vs. Vivendi Universal S.A. and Ors. (2007) EWHC 11 (Comm), Mr. Justice Aikens held that the words `obtained by fraud must refer to an award being obtained by the fraud of the party to the arbitration or by the fraud of another to which the party to the arbitration was a privy. The learned Judge at page 82 of the report held that "an award will only be obtained by fraud if the party which has deliberately concealed the document has, as a consequence of that concealment, obtained an award in its favour. The party relying on Section 68(2)(g) must therefore also prove a causative link between the deliberate concealment of the document and a decision in the award in favour of the other successful party." 56. In Profilati Italia S.R.L. vs. Painewebber Inc. and Anr. [(2001) 1 Lloyds Law Reports 715], while construing Section 68(2)(g) of the English Arbitration Act, it has been held that where an important document which should have been disclosed has been deliberately withheld resulting in the party withholding obtaining the award, the Court may consider that the award was `procured in a manner contrary to public policy and such conduct is not far removed from fraud. (para 19, pg. 720) 57. This Court also holds that the facts concealed must have a causative link. And if the concealed facts, disclosed after the passing of the award, have a causative link with the facts constituting or inducing the award, such facts are relevant in a setting aside proceeding and award may be set aside as affected or induced by fraud.58. The question in this case, is therefore one of relevance of the materials which the appellant wants to bring on record by way of amendment in its plea for setting aside the award. 59. Whether the award will be set aside or not is a different question and that has to be decided by the appropriate Court. In this appeal, this Court is concerned only with the question whether by allowing the amendment, as prayed for by the appellant, the Court will allow material facts to be brought on record in the pending setting aside proceeding. 60. Judging the case from this angle, this Court is of the opinion that in the interest of justice and considering the fairness of procedure, the Court should allow the appellant to bring those materials on record as those materials are not wholly irrelevant or they may have a bearing on the appellants plea for setting aside the award.
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621 |
SUSHIL SETHI Vs. THE STATE OF ARUNACHAL PRADESH
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Director of vicarious liability, in the absence of company being arrayed as a party, no proceedings can be initiated against such Managing Director or any officer of a company. It is further observed and held that when a complainant intends to rope in a Managing Director or any officer of a company, it is essential to make requisite allegation to constitute the vicarious liability. 7.6 In the case of Joseph Salvaraja A v. State of Gujarat (2011) 7 SCC 59 , it is observed and held by this Court that when dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out. 7.7 In the case of Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 , it is observed and held by this Court that the Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. It is further observed and held by this Court that it is neither possible nor desirable to law down an inflexible rule that would govern the exercise of inherent jurisdiction. It is further observed and held that inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself. 8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that this is a fit case to exercise powers under Section 482 Cr.P.C. and to quash the impugned criminal proceedings. 8.1. As observed hereinabove, the chargesheet has been filed against the appellants for the offences under Section 420 read with Section 120B of the IPC. However, it is required to be noted that there are no specific allegations and averments in the FIR and/or even in the chargesheet that fraudulent and dishonest intention of the accused was from the very beginning of the transaction. It is also required to be noted that contract between M/s SPML Infra Limited and the Government was for supply and commissioning of the Nurang Hydel Power Project including three power generating units. The appellants purchased the turbines for the project from another manufacturer. The company used the said turbines in the power project. The contract was in the year 1993. Thereafter in the year 1996 the project was commissioned. In the year 1997, the Department of Power issued a certificate certifying satisfaction over the execution of the project. Even the defect liability period ended/expired in January, 1998. In the year 2000, there was some defect found with respect to three turbines. Immediately, the turbines were replaced. The power project started functioning right from the very beginning – 1996 onwards. If the intention of the company/appellants was to cheat the Government of Arunachal Pradesh, they would not have replaced the turbines which were found to be defective. In any case, there are no specific allegations and averments in the complaint that the accused had fraudulent or dishonest intention at the time of entering into the contract. Therefore, applying the law laid down by this Court in the aforesaid decisions, it cannot be said that even a prima facie case for the offence under Section 420 IPC has been made out. 8.2. It is also required to be noted that the main allegations can be said to be against the company. The company has not been made a party. The allegations are restricted to the Managing Director and the Director of the company respectively. There are no specific allegations against the Managing Director or even the Director. There are no allegations to constitute the vicarious liability. In the case of Maksud Saiyed v. State of Gujarat (2008) 5 SCC 668 , it is observed and held by this Court that the penal code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company when the accused is the company. It is further observed and held that the vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. It is further observed that statute indisputably must contain provision fixing such vicarious liabilities. It is further observed that even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the present case, there are no such specific allegations against the appellants being Managing Director or the Director of the company respectively. Under the circumstances also, the impugned criminal proceedings are required to be quashed and set aside. 8.3 At this stage, it is required to be noted that though the FIR was filed in the year 2000 and the chargesheet was submitted/filed as far back as on 28.5.2004, the appellants were served with the summons only in the year 2017, i.e., after a period of approximately 13 years from the date of filing the chargesheet. Under the circumstances, the High Court has committed a grave error in not quashing and setting aside the impugned criminal proceedings and has erred in not exercising the jurisdiction vested in it under Section 482 Cr.P.C. 9. In view of the above and for the reasons stated above, we are of the firm opinion that this is a fit case to exercise the powers under Section 482 Cr.P.C. and to quash the criminal proceedings against the appellants for the offence under Section 420 read with Section 120B of the IPC. To continue the criminal proceedings against the appellants would be undue harassment to them. As observed hereinabove, no prima facie case for the offence under Section 420 of the IPC is made out.
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1[ds]5.1 At the outset, it is required to be noted that the chargesheet has been filed against the appellants for the offences under Section 420 read with Section 120B of the IPC. By the impugned judgment and order, the High Court has refused to quash the FIR and the chargesheet against the appellants in exercise of powers under Section 482 Cr.P.C6. Considering the averments and the allegations in the FIR and even the chargesheet the main allegations are that the company, namely, M/s SPML Infra Limited supplied sub¬ standard materials – runner bucket turbines and the supplied runner bucket turbines were not as per the technical specifications. It is also required to be noted that there is no FIR/complaint/chargesheet against the company – M/s SPML Infra Limited and the appellants are arrayed as an accused as Managing Director and Director of M/s SPML Infra Limited respectively. From a bare reading of the FIR and even the chargesheet, there are no allegations that there was a fraudulent and dishonest intention to cheat the government from the very beginning of the transaction. Even there are no specific allegations and averments in the FIR/chargesheet that the appellants were in-charge of administration and management of the company and thereby vicariously liable. In light of the aforesaid, the prayer of the appellants to quash the criminal proceedings against the appellants for the offence under Section 420 IPC is required to be considered8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that this is a fit case to exercise powers under Section 482 Cr.P.C. and to quash the impugned criminal proceedings8.1. As observed hereinabove, the chargesheet has been filed against the appellants for the offences under Section 420 read with Section 120B of the IPC. However, it is required to be noted that there are no specific allegations and averments in the FIR and/or even in the chargesheet that fraudulent and dishonest intention of the accused was from the very beginning of the transaction. It is also required to be noted that contract between M/s SPML Infra Limited and the Government was for supply and commissioning of the Nurang Hydel Power Project including three power generating units. The appellants purchased the turbines for the project from another manufacturer. The company used the said turbines in the power project. The contract was in the year 1993. Thereafter in the year 1996 the project was commissioned. In the year 1997, the Department of Power issued a certificate certifying satisfaction over the execution of the project. Even the defect liability period ended/expired in January, 1998. In the year 2000, there was some defect found with respect to three turbines. Immediately, the turbines were replaced. The power project started functioning right from the very beginning – 1996 onwards. If the intention of the company/appellants was to cheat the Government of Arunachal Pradesh, they would not have replaced the turbines which were found to be defective. In any case, there are no specific allegations and averments in the complaint that the accused had fraudulent or dishonest intention at the time of entering into the contract. Therefore, applying the law laid down by this Court in the aforesaid decisions, it cannot be said that even a prima facie case for the offence under Section 420 IPC has been made out8.2. It is also required to be noted that the main allegations can be said to be against the company. The company has not been made a party. The allegations are restricted to the Managing Director and the Director of the company respectively. There are no specific allegations against the Managing Director or even the Director. There are no allegations to constitute the vicarious liability. In the case of Maksud Saiyed v. State of Gujarat (2008) 5 SCC 668 , it is observed and held by this Court that the penal code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company when the accused is the company. It is further observed and held that the vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. It is further observed that statute indisputably must contain provision fixing such vicarious liabilities. It is further observed that even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the present case, there are no such specific allegations against the appellants being Managing Director or the Director of the company respectively. Under the circumstances also, the impugned criminal proceedings are required to be quashed and set aside8.3 At this stage, it is required to be noted that though the FIR was filed in the year 2000 and the chargesheet was submitted/filed as far back as on 28.5.2004, the appellants were served with the summons only in the year 2017, i.e., after a period of approximately 13 years from the date of filing the chargesheet. Under the circumstances, the High Court has committed a grave error in not quashing and setting aside the impugned criminal proceedings and has erred in not exercising the jurisdiction vested in it under Section 482 Cr.P.C9. In view of the above and for the reasons stated above, we are of the firm opinion that this is a fit case to exercise the powers under Section 482 Cr.P.C. and to quash the criminal proceedings against the appellants for the offence under Section 420 read with Section 120B of the IPC. To continue the criminal proceedings against the appellants would be undue harassment to them. As observed hereinabove, no prima facie case for the offence under Section 420 of the IPC is made out8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that this is a fit case to exercise powers under Section 482 Cr.P.C. and to quash the impugned criminal proceedings8.1. As observed hereinabove, the chargesheet has been filed against the appellants for the offences under Section 420 read with Section 120B of the IPC. However, it is required to be noted that there are no specific allegations and averments in the FIR and/or even in the chargesheet that fraudulent and dishonest intention of the accused was from the very beginning of the transaction. It is also required to be noted that contract between M/s SPML Infra Limited and the Government was for supply and commissioning of the Nurang Hydel Power Project including three power generating units. The appellants purchased the turbines for the project from another manufacturer. The company used the said turbines in the power project. The contract was in the year 1993. Thereafter in the year 1996 the project was commissioned. In the year 1997, the Department of Power issued a certificate certifying satisfaction over the execution of the project. Even the defect liability period ended/expired in January, 1998. In the year 2000, there was some defect found with respect to three turbines. Immediately, the turbines were replaced. The power project started functioning right from the very beginning – 1996 onwards. If the intention of the company/appellants was to cheat the Government of Arunachal Pradesh, they would not have replaced the turbines which were found to be defective. In any case, there are no specific allegations and averments in the complaint that the accused had fraudulent or dishonest intention at the time of entering into the contract. Therefore, applying the law laid down by this Court in the aforesaid decisions, it cannot be said that even a prima facie case for the offence under Section 420 IPC has been made out8.2. It is also required to be noted that the main allegations can be said to be against the company. The company has not been made a party. The allegations are restricted to the Managing Director and the Director of the company respectively. There are no specific allegations against the Managing Director or even the Director. There are no allegations to constitute the vicarious liability. In the case of Maksud Saiyed v. State of Gujarat (2008) 5 SCC 668 , it is observed and held by this Court that the penal code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company when the accused is the company. It is further observed and held that the vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. It is further observed that statute indisputably must contain provision fixing such vicarious liabilities. It is further observed that even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the present case, there are no such specific allegations against the appellants being Managing Director or the Director of the company respectively. Under the circumstances also, the impugned criminal proceedings are required to be quashed and set aside8.3 At this stage, it is required to be noted that though the FIR was filed in the year 2000 and the chargesheet was submitted/filed as far back as on 28.5.2004, the appellants were served with the summons only in the year 2017, i.e., after a period of approximately 13 years from the date of filing the chargesheet. Under the circumstances, the High Court has committed a grave error in not quashing and setting aside the impugned criminal proceedings and has erred in not exercising the jurisdiction vested in it under Section 482 Cr.P.
| 1 | 6,497 |
### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
Director of vicarious liability, in the absence of company being arrayed as a party, no proceedings can be initiated against such Managing Director or any officer of a company. It is further observed and held that when a complainant intends to rope in a Managing Director or any officer of a company, it is essential to make requisite allegation to constitute the vicarious liability. 7.6 In the case of Joseph Salvaraja A v. State of Gujarat (2011) 7 SCC 59 , it is observed and held by this Court that when dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out. 7.7 In the case of Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 , it is observed and held by this Court that the Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. It is further observed and held by this Court that it is neither possible nor desirable to law down an inflexible rule that would govern the exercise of inherent jurisdiction. It is further observed and held that inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself. 8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that this is a fit case to exercise powers under Section 482 Cr.P.C. and to quash the impugned criminal proceedings. 8.1. As observed hereinabove, the chargesheet has been filed against the appellants for the offences under Section 420 read with Section 120B of the IPC. However, it is required to be noted that there are no specific allegations and averments in the FIR and/or even in the chargesheet that fraudulent and dishonest intention of the accused was from the very beginning of the transaction. It is also required to be noted that contract between M/s SPML Infra Limited and the Government was for supply and commissioning of the Nurang Hydel Power Project including three power generating units. The appellants purchased the turbines for the project from another manufacturer. The company used the said turbines in the power project. The contract was in the year 1993. Thereafter in the year 1996 the project was commissioned. In the year 1997, the Department of Power issued a certificate certifying satisfaction over the execution of the project. Even the defect liability period ended/expired in January, 1998. In the year 2000, there was some defect found with respect to three turbines. Immediately, the turbines were replaced. The power project started functioning right from the very beginning – 1996 onwards. If the intention of the company/appellants was to cheat the Government of Arunachal Pradesh, they would not have replaced the turbines which were found to be defective. In any case, there are no specific allegations and averments in the complaint that the accused had fraudulent or dishonest intention at the time of entering into the contract. Therefore, applying the law laid down by this Court in the aforesaid decisions, it cannot be said that even a prima facie case for the offence under Section 420 IPC has been made out. 8.2. It is also required to be noted that the main allegations can be said to be against the company. The company has not been made a party. The allegations are restricted to the Managing Director and the Director of the company respectively. There are no specific allegations against the Managing Director or even the Director. There are no allegations to constitute the vicarious liability. In the case of Maksud Saiyed v. State of Gujarat (2008) 5 SCC 668 , it is observed and held by this Court that the penal code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company when the accused is the company. It is further observed and held that the vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. It is further observed that statute indisputably must contain provision fixing such vicarious liabilities. It is further observed that even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the present case, there are no such specific allegations against the appellants being Managing Director or the Director of the company respectively. Under the circumstances also, the impugned criminal proceedings are required to be quashed and set aside. 8.3 At this stage, it is required to be noted that though the FIR was filed in the year 2000 and the chargesheet was submitted/filed as far back as on 28.5.2004, the appellants were served with the summons only in the year 2017, i.e., after a period of approximately 13 years from the date of filing the chargesheet. Under the circumstances, the High Court has committed a grave error in not quashing and setting aside the impugned criminal proceedings and has erred in not exercising the jurisdiction vested in it under Section 482 Cr.P.C. 9. In view of the above and for the reasons stated above, we are of the firm opinion that this is a fit case to exercise the powers under Section 482 Cr.P.C. and to quash the criminal proceedings against the appellants for the offence under Section 420 read with Section 120B of the IPC. To continue the criminal proceedings against the appellants would be undue harassment to them. As observed hereinabove, no prima facie case for the offence under Section 420 of the IPC is made out.
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622 |
UTTAR HARYANA BIJLI VITRAN NIGAM LTD.(UHBVNL) Vs. ADANI POWER LTD
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judgments cited by learned counsel on behalf of both sides. In South Eastern Coalfields Ltd. v. State of Madhya Pradesh and Ors., (2003) 8 SCC 648 [ “South Eastern Coalfields”], this Court held that interest is payable in equity in certain circumstances and finally concluded: “24. We are, therefore, of the opinion that in the absence of there being a prohibition either in law or in the contract entered into between the two parties, there is no reason why the Coalfields should not be compensated by payment of interest for the period for which the consumers/purchasers did not pay the amount of enhanced royalty which is a constituent part of the price of the mineral for the period for which it remained unpaid. The justification for award of interest stands fortified by the weighty factor that the Coalfields themselves are obliged to pay interest to the State on such amount. It will be a travesty of justice to hold that though the Coalfields must pay the amount of interest to the State but the consumers/purchasers in whose hands the money was actually withheld be exonerated from liability to pay the interest.” What was argued by Shri Giri was that this judgment cannot be applied to fact situations that arise under the PPA in view of Article 18.17 of the PPA which clearly states that the liability of the seller and the procurer shall be limited to that explicitly provided in this agreement and that, in no event, shall either procurer or seller claim any indirect or consequential losses or damages. Since we have found that the claim for carrying costs is under Article 13 of the PPAs, this judgment would have no application to the facts of the present case. 12. Shri Giri also relied upon National Thermal Power Corporation Ltd. (supra), in which, South Eastern Coalfields (supra) was distinguished in the following manner: “25. In this connection, it is material to note that the claim in South Eastern Coalfields [(2003) 8 SCC 648] was essentially covered under Section 61 of the Sale of Goods Act, 1930, and the interest by way of damages was payable as per this statutory provision itself. The liability had been crystallised and the interest had become payable because of the failure to pay the amount as per the liability. Besides, there was nothing in the agreement between the parties to the contrary on the issue of grant of interest. In the present matter, we have the second proviso to Regulation 79(2) of the 1999 Regulations which permitted the generating company to continue to charge the existing tariff for such period as may be specified in the notification by the Commission, and the notifications permitted continuation of the existing tariff as on 31-3-2001, until the final tariff was determined. There was no provision for payment of interest therein. The very fact that interest came to be provided subsequently by a notification under the Regulations of 2004 is also indicative of a contrary situation in the present matter viz. that interest was not payable earlier.” 13. Article 13 of the PPAs provides for payment of carrying costs, as held by us above. This judgment also turned on the interpretation of Regulation 79(2) of the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999, and therefore, also has no manner of application to the facts of the present case.14. In Indian Council for Enviro-Legal Action v. Union of India and Ors., (2011) 8 SCC 161 , this Court was concerned with whether a successful party in a litigation should not be compensated by way of restitution for deprivation of its legitimate dues. While dealing with restitutionary principles as applicable in the context of environment pollution, this Court laid down certain principles in paragraph 197. This judgment, again, has no manner of application to the facts of the present case which are confined to the interpretation of Article 13 of the PPAs.15. The next judgment relied upon by Shri Giri was All India Power Engineer Federation and Ors. v. Sasan Power Ltd. and Ors., (2017) 1 SCC 487. Paragraph 31 of this judgment was relied upon to state that in context of Section 63 of the Electricity Act, the Commission alone can accept amended tariff that would impact consumer interest, and therefore, public interest, and waiver of any rights of one of the parties under the PPA, if it impacts such consumer interest, would have to pass muster under the Commission which would look into all factors and then pass a reasoned order. We fail to see how this judgment has any application on the facts of the present case as, in the present case, we are concerned with the interpretation of Article 13 of the PPAs. 16. Lastly, the judgment of this Court in Energy Watchdog v. Central Electricity Regulatory Commission and Ors., (2017) 14 SCC 80 was also relied upon. In this judgment, three issues were set out and decided, one of which was concerned with a change in law provision of a PPA. In holding that change in Indonesian law would not qualify as a change in law under the guidelines read with the PPAs, this Court referred to Clause 13.2 as follows: “57. …… This being so, it is clear that so far as the procurement of Indian coal is concerned, to the extent that the supply from Coal India and other Indian sources is cut down, the PPA read with these documents provides in Clause 13.2 that while determining the consequences of change in law, parties shall have due regard to the principle that the purpose of compensating the party affected by such change in law is to restore, through monthly tariff payments, the affected party to the economic position as if such change in law has not occurred……” There can be no doubt from this judgment that the restitutionary principle contained in Clause 13.2 must always be kept in mind even when compensation for increase/decrease in cost is determined by the CERC.
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0[ds]6. It will be seen that Article 13.4.1 makes it clear that adjustment in monthly tariff payment on account of change in law shall be effected from the date of the change in law [see sub-clause (i) of clause 4.1], in case the change in law happens to be by way of adoption, promulgation, amendment, re-enactment or repeal of the law or change in law. As opposed to this, if the change in law is on account of a change in interpretation of law by a judgment of a Court or Tribunal or governmental instrumentality, the case would fall under sub-clause (ii) of clause 4.1, in which case, the monthly tariff payment shall be effected from the date of the said order/judgment of the competent authority/Tribunal or the governmental instrumentality. What is important to notice is that Article 13.4.1 is subject to Article 13.2 of the PPAs.7. Article 13.2 is an in-built restitutionary principle which compensates the party affected by such change in law and which must restore, through monthly tariff payments, the affected party to the same economic position as if such change in law has not occurred. This would mean that by this clause a fiction is created, and the party has to be put in the same economic position is if such change in law has not occurred, i.e., the party must be given the benefit of restitution as understood in civil law. Article 13.2, however, goes on to divide such restitution into two separate periods. The first period is thein which increase/decrease of capital cost of the project in the tariff is to be governed by a certain formula. However, the seller has to provide to the procurer documentary proof of such increase/decrease in capital cost for establishing the impact of such change in law and in the case of dispute as to the same, a dispute resolution mechanism as per Article 17 of the PPA is to be resorted to. It is also made clear that compensation is only payable to either party only with effect from the date on which the total increase/decrease exceeds the amount stated therein.8. So far as theis concerned, compensation for any increase/decrease in revenues or costs to the seller is to be determined and effected from such date as is decided by the appropriate Commission. Here again, this compensation is only payable for increase/decrease in revenue or cost to the seller if it is in excess of an amount equivalent to 1% of the Letter of Credit in aggregate for a contract year. What is clear, therefore, from a reading of Article 13.2, is that restitutionary principles apply in case a certain threshold limit is crossed in both sub-clauses (a) and (b). There is no dispute that the present case is covered by sub-clause (b) and that the aforesaid threshold has been crossed. The mechanism for claiming a change in law is then set out by Article 13.3 of thewill be seen that sub-clause (c) does not occur in the PPA in Civil Appeal No.5865 of 2018. As we have held that the present case is governed by sub-clause (i) of Article 13.4.1, it is obvious that sub- clauses (b) and (c) have no application to the facts of the present case.10. A reading of Article 13 as a whole, therefore, leads to the position that subject to restitutionary principles contained in Article 13.2, the adjustment in monthly tariff payment, in the facts of the present case, has to be from the date of the withdrawal of exemption which was done by administrative orders dated 06.04.2015 and 16.02.2016. The present case, therefore, falls within Article 13.4.1(i). This being the case, it is clear that the adjustment in monthly tariff payment has to be effected from the date on which the exemptions given were withdrawn. This being the case, monthly invoices to be raised by the seller after such change in tariff are to appropriately reflect the changed tariff. On the facts of the present case, it is clear that the respondents were entitled to adjustment in their monthly tariff payment from the date on which the exemption notifications became effective. This being the case, the restitutionary principle contained in Article 13.2 would kick in for the simple reason that it is only after the order dated 04.05.2017 that the CERC held that the respondents were entitled to claim added costs on account of change in law w.e.f. 01.04.2015. This being the case, it would be fallacious to say that the respondents would be claiming this restitutionary amount on some general principle of equity outside the PPA. Since it is clear that this amount of carrying cost is only relatable to Article 13 of the PPA, we find no reason to interfere with the judgment of the Appellatewas argued by Shri Giri was that this judgment cannot be applied to fact situations that arise under the PPA in view of Article 18.17 of the PPA which clearly states that the liability of the seller and the procurer shall be limited to that explicitly provided in this agreement and that, in no event, shall either procurer or seller claim any indirect or consequential losses or damages. Since we have found that the claim for carrying costs is under Article 13 of the PPAs, this judgment would have no application to the facts of the present case.Article 13 of the PPAs provides for payment of carrying costs, as held by us above. This judgment also turned on the interpretation of Regulation 79(2) of the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999, and therefore, also has no manner of application to the facts of the present case.14. In Indian Council for Enviro-Legal Action v. Union of India and Ors., (2011) 8 SCC 161 , this Court was concerned with whether a successful party in a litigation should not be compensated by way of restitution for deprivation of its legitimate dues. While dealing with restitutionary principles as applicable in the context of environment pollution, this Court laid down certain principles in paragraph 197. This judgment, again, has no manner of application to the facts of the present case which are confined to the interpretation of Article 13 of the PPAs.15. The next judgment relied upon by Shri Giri was All India Power Engineer Federation and Ors. v. Sasan Power Ltd. and Ors., (2017) 1 SCC 487. Paragraph 31 of this judgment was relied upon to state that in context of Section 63 of the Electricity Act, the Commission alone can accept amended tariff that would impact consumer interest, and therefore, public interest, and waiver of any rights of one of the parties under the PPA, if it impacts such consumer interest, would have to pass muster under the Commission which would look into all factors and then pass a reasoned order. We fail to see how this judgment has any application on the facts of the present case as, in the present case, we are concerned with the interpretation of Article 13 of thecan be no doubt from this judgment that the restitutionary principle contained in Clause 13.2 must always be kept in mind even when compensation for increase/decrease in cost is determined by the CERC.
| 0 | 4,888 |
### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
judgments cited by learned counsel on behalf of both sides. In South Eastern Coalfields Ltd. v. State of Madhya Pradesh and Ors., (2003) 8 SCC 648 [ “South Eastern Coalfields”], this Court held that interest is payable in equity in certain circumstances and finally concluded: “24. We are, therefore, of the opinion that in the absence of there being a prohibition either in law or in the contract entered into between the two parties, there is no reason why the Coalfields should not be compensated by payment of interest for the period for which the consumers/purchasers did not pay the amount of enhanced royalty which is a constituent part of the price of the mineral for the period for which it remained unpaid. The justification for award of interest stands fortified by the weighty factor that the Coalfields themselves are obliged to pay interest to the State on such amount. It will be a travesty of justice to hold that though the Coalfields must pay the amount of interest to the State but the consumers/purchasers in whose hands the money was actually withheld be exonerated from liability to pay the interest.” What was argued by Shri Giri was that this judgment cannot be applied to fact situations that arise under the PPA in view of Article 18.17 of the PPA which clearly states that the liability of the seller and the procurer shall be limited to that explicitly provided in this agreement and that, in no event, shall either procurer or seller claim any indirect or consequential losses or damages. Since we have found that the claim for carrying costs is under Article 13 of the PPAs, this judgment would have no application to the facts of the present case. 12. Shri Giri also relied upon National Thermal Power Corporation Ltd. (supra), in which, South Eastern Coalfields (supra) was distinguished in the following manner: “25. In this connection, it is material to note that the claim in South Eastern Coalfields [(2003) 8 SCC 648] was essentially covered under Section 61 of the Sale of Goods Act, 1930, and the interest by way of damages was payable as per this statutory provision itself. The liability had been crystallised and the interest had become payable because of the failure to pay the amount as per the liability. Besides, there was nothing in the agreement between the parties to the contrary on the issue of grant of interest. In the present matter, we have the second proviso to Regulation 79(2) of the 1999 Regulations which permitted the generating company to continue to charge the existing tariff for such period as may be specified in the notification by the Commission, and the notifications permitted continuation of the existing tariff as on 31-3-2001, until the final tariff was determined. There was no provision for payment of interest therein. The very fact that interest came to be provided subsequently by a notification under the Regulations of 2004 is also indicative of a contrary situation in the present matter viz. that interest was not payable earlier.” 13. Article 13 of the PPAs provides for payment of carrying costs, as held by us above. This judgment also turned on the interpretation of Regulation 79(2) of the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999, and therefore, also has no manner of application to the facts of the present case.14. In Indian Council for Enviro-Legal Action v. Union of India and Ors., (2011) 8 SCC 161 , this Court was concerned with whether a successful party in a litigation should not be compensated by way of restitution for deprivation of its legitimate dues. While dealing with restitutionary principles as applicable in the context of environment pollution, this Court laid down certain principles in paragraph 197. This judgment, again, has no manner of application to the facts of the present case which are confined to the interpretation of Article 13 of the PPAs.15. The next judgment relied upon by Shri Giri was All India Power Engineer Federation and Ors. v. Sasan Power Ltd. and Ors., (2017) 1 SCC 487. Paragraph 31 of this judgment was relied upon to state that in context of Section 63 of the Electricity Act, the Commission alone can accept amended tariff that would impact consumer interest, and therefore, public interest, and waiver of any rights of one of the parties under the PPA, if it impacts such consumer interest, would have to pass muster under the Commission which would look into all factors and then pass a reasoned order. We fail to see how this judgment has any application on the facts of the present case as, in the present case, we are concerned with the interpretation of Article 13 of the PPAs. 16. Lastly, the judgment of this Court in Energy Watchdog v. Central Electricity Regulatory Commission and Ors., (2017) 14 SCC 80 was also relied upon. In this judgment, three issues were set out and decided, one of which was concerned with a change in law provision of a PPA. In holding that change in Indonesian law would not qualify as a change in law under the guidelines read with the PPAs, this Court referred to Clause 13.2 as follows: “57. …… This being so, it is clear that so far as the procurement of Indian coal is concerned, to the extent that the supply from Coal India and other Indian sources is cut down, the PPA read with these documents provides in Clause 13.2 that while determining the consequences of change in law, parties shall have due regard to the principle that the purpose of compensating the party affected by such change in law is to restore, through monthly tariff payments, the affected party to the economic position as if such change in law has not occurred……” There can be no doubt from this judgment that the restitutionary principle contained in Clause 13.2 must always be kept in mind even when compensation for increase/decrease in cost is determined by the CERC.
### Response:
0
|
623 |
Moriroku UT India (P) Ltd., Vs. State of U.P. & Others
|
this Act, two independent sales or purchases shall, for the purposes of this Act, be deemed to have taken place--(a) when the goods are transferred from a principal to his selling agent and from the selling agent to his purchaser,(b) when the goods are transferred from the seller to a buying agent and from the buying agent to his principal, if the agent is found, in either of the cases aforesaid,--(i) to have sold the goods at one rate and passed on the sale proceeds to his principal at another rate; or(ii) to have purchased the goods at one rate and passed them on to his principal at another rate; or(iii) not to have accounted to his principal for the entire collection or deductions made by him, in the sales or purchases effected by him on behalf of his principal; or(iv) to have acted for a fictitious or non-existent principal." 19. U.P. Trade Tax Act, 1948 is a self-contained code for levy of tax on sale or purchase of goods in Uttar Pradesh. Clause (bb) of Section 2 defines the expression "trade tax" to mean a tax payable under the Act. Clause (h) of Section 2 defines the expression "sale" to include transfer of the right to use any goods for any purpose for cash or deferred payment or other valuable consideration. In this case we are concerned only with Section 3 and not with Section 3-F of the 1948 Act. Section 3 inter alia provides that every dealer shall for each assessment year pay a tax at the rates provided under Section 3-A, Section 3-D or Section 3-H on his turnover of sales or purchases or both, as the case may be, which shall be determined in such manner as may be prescribed. Section 3-F provides for tax on transfer of right to use any goods or goods involved in execution of works contract. The definition of "sale" in Section 2(h) is in two parts. The first part covers the normal sale and the second part covers deemed sales. In the present case, we are concerned with sale of auto components to the buyer. It is a normal sale. The aggregate amount for which these auto parts/components are sold constitutes the turnover relating to such sales within the meaning of turnover in Section 2(i). Therefore, it is on such turnover that liability of tax under Section 3 of the 1948 Act has to be determined. Therefore, sales-tax or trade-tax under the 1948 Act is leviable on sale, whether actual or deemed, and for every sale there has to be a consideration. On the other hand, excise duty is a levy on a taxable event of "manufacture" and it is calculated on the "value" of manufactured goods. Excise duty is not concerned with ownership or sale. The liability under the excise law is event-based and irrespective of whether the goods are sold or captively consumed. Under the excise law, the liability is there even when the manufacturer is not the owner of raw material or finished goods (as in the case of job workers). Excise duty, therefore, is independent of ownership (see: Ujagar Prints & Ors. v. Union of India & Ors. [(1989) 3 SCC 488] . Therefore, for sales-tax purposes, what has to be taken into account is the consideration for transfer of property in goods from the seller to the buyer. For this purpose, tax is to be levied on the agreed consideration for transfer of property in the goods and in such a case cost of manufacture is irrelevant. As compared to the sales-tax law, the scheme of levy of excise duty is totally different. For excise duty purposes, transfer of property in goods or ownership is irrelevant. As stated, excise duty is a duty on manufacture. The provisions relating to measure (Section 4 of 1944 Act read with Excise Valuation Rules, 2000) aim at taking into consideration all items of costs of manufacture and all expenses which lead to value addition to be taken into account and for that purpose Rule 6 makes a deeming provision by providing for notional additions. Such deeming fictions and notional additions in excise law are totally irrelevant for sales-tax purposes. Therefore, in any event, these notional additions cannot be read into clause 5.1 and clause 5.2 of the General Agreement for Purchase of Parts dated 31.7.1997. 20. Before concluding, it may be clarified, that, in the present case, moulds were manufactured by the buyer/customer so that the auto components could be manufactured by the appellant in terms of the specifications given by the buyer. Therefore, the cost of manufacture of these moulds was incurred by the buyer/customer and not by the appellant. In our judgment, we have termed the "amortisation cost" as notional in the sense that it is not the cost in the hands of the appellant. As stated above, Rule 6 of Excise Valuation Rules, 2000 refers to items of additional consideration. But for Rule 6 it was not possible for the Department under the 1944 Act to load such items to the transaction value of the final product. It is for above reasons, particularly because cost of manufacture is not incurred by the appellant but by the customer, such cost cannot be added to the price of the final product, particularly when there is no law to that effect.21. Accordingly, we hold that the High Court had erred in holding that the amortization cost calculated in terms of Rule 6 of the Excise Valuation Rules, 2000 is includible in the sale price of auto components sold by the appellant herein to its customer, M/s Honda Siel Cars India Ltd.,22. Consequently, the impugned judgment is set aside and the civil appeal filed by the assessee is allowed with no order as to cost.[TS Tech Sun (India) Ltd. v. State of Uttar Pradesh & Ors.] 23. In the light of the above judgment, in the case of Moriroku UT India (P) Ltd. v. State of U.P. & Ors., this
|
1[ds]In the present case,moulds were manufactured by the buyer/customer so that the auto components could be manufactured by the appellant in terms of the specifications given by the buyer. Therefore, the cost of manufacture of these moulds was incurred by the buyer/customer and not by the appellant. In our judgment, we have termed the "amortisation cost" as notional in the sense that it is not the cost in the hands of the appellant. As stated above, Rule 6 of Excise Valuation Rules, 2000 refers to items of additional consideration. But for Rule 6 it was not possible for the Department under the 1944 Act to load such items to the transaction value of the final product. It is for above reasons, particularly because cost of manufacture is not incurred by the appellant but by the customer, such cost cannot be added to the price of the final product, particularly when there is no law to that effect.21. Accordingly, we hold that the High Court had erred in holding that the amortization cost calculated in terms of Rule 6 of the Excise Valuation Rules, 2000 is includible in the sale price of auto components sold by the appellant herein to its customer, M/s Honda Siel Cars India Ltd.,22. Consequently, the impugned judgment is set aside and the civil appeal filed by the assessee is allowed with no order as to cost.[TS Tech Sun (India) Ltd. v. State of Uttar Pradesh &
| 1 | 5,736 |
### 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:
this Act, two independent sales or purchases shall, for the purposes of this Act, be deemed to have taken place--(a) when the goods are transferred from a principal to his selling agent and from the selling agent to his purchaser,(b) when the goods are transferred from the seller to a buying agent and from the buying agent to his principal, if the agent is found, in either of the cases aforesaid,--(i) to have sold the goods at one rate and passed on the sale proceeds to his principal at another rate; or(ii) to have purchased the goods at one rate and passed them on to his principal at another rate; or(iii) not to have accounted to his principal for the entire collection or deductions made by him, in the sales or purchases effected by him on behalf of his principal; or(iv) to have acted for a fictitious or non-existent principal." 19. U.P. Trade Tax Act, 1948 is a self-contained code for levy of tax on sale or purchase of goods in Uttar Pradesh. Clause (bb) of Section 2 defines the expression "trade tax" to mean a tax payable under the Act. Clause (h) of Section 2 defines the expression "sale" to include transfer of the right to use any goods for any purpose for cash or deferred payment or other valuable consideration. In this case we are concerned only with Section 3 and not with Section 3-F of the 1948 Act. Section 3 inter alia provides that every dealer shall for each assessment year pay a tax at the rates provided under Section 3-A, Section 3-D or Section 3-H on his turnover of sales or purchases or both, as the case may be, which shall be determined in such manner as may be prescribed. Section 3-F provides for tax on transfer of right to use any goods or goods involved in execution of works contract. The definition of "sale" in Section 2(h) is in two parts. The first part covers the normal sale and the second part covers deemed sales. In the present case, we are concerned with sale of auto components to the buyer. It is a normal sale. The aggregate amount for which these auto parts/components are sold constitutes the turnover relating to such sales within the meaning of turnover in Section 2(i). Therefore, it is on such turnover that liability of tax under Section 3 of the 1948 Act has to be determined. Therefore, sales-tax or trade-tax under the 1948 Act is leviable on sale, whether actual or deemed, and for every sale there has to be a consideration. On the other hand, excise duty is a levy on a taxable event of "manufacture" and it is calculated on the "value" of manufactured goods. Excise duty is not concerned with ownership or sale. The liability under the excise law is event-based and irrespective of whether the goods are sold or captively consumed. Under the excise law, the liability is there even when the manufacturer is not the owner of raw material or finished goods (as in the case of job workers). Excise duty, therefore, is independent of ownership (see: Ujagar Prints & Ors. v. Union of India & Ors. [(1989) 3 SCC 488] . Therefore, for sales-tax purposes, what has to be taken into account is the consideration for transfer of property in goods from the seller to the buyer. For this purpose, tax is to be levied on the agreed consideration for transfer of property in the goods and in such a case cost of manufacture is irrelevant. As compared to the sales-tax law, the scheme of levy of excise duty is totally different. For excise duty purposes, transfer of property in goods or ownership is irrelevant. As stated, excise duty is a duty on manufacture. The provisions relating to measure (Section 4 of 1944 Act read with Excise Valuation Rules, 2000) aim at taking into consideration all items of costs of manufacture and all expenses which lead to value addition to be taken into account and for that purpose Rule 6 makes a deeming provision by providing for notional additions. Such deeming fictions and notional additions in excise law are totally irrelevant for sales-tax purposes. Therefore, in any event, these notional additions cannot be read into clause 5.1 and clause 5.2 of the General Agreement for Purchase of Parts dated 31.7.1997. 20. Before concluding, it may be clarified, that, in the present case, moulds were manufactured by the buyer/customer so that the auto components could be manufactured by the appellant in terms of the specifications given by the buyer. Therefore, the cost of manufacture of these moulds was incurred by the buyer/customer and not by the appellant. In our judgment, we have termed the "amortisation cost" as notional in the sense that it is not the cost in the hands of the appellant. As stated above, Rule 6 of Excise Valuation Rules, 2000 refers to items of additional consideration. But for Rule 6 it was not possible for the Department under the 1944 Act to load such items to the transaction value of the final product. It is for above reasons, particularly because cost of manufacture is not incurred by the appellant but by the customer, such cost cannot be added to the price of the final product, particularly when there is no law to that effect.21. Accordingly, we hold that the High Court had erred in holding that the amortization cost calculated in terms of Rule 6 of the Excise Valuation Rules, 2000 is includible in the sale price of auto components sold by the appellant herein to its customer, M/s Honda Siel Cars India Ltd.,22. Consequently, the impugned judgment is set aside and the civil appeal filed by the assessee is allowed with no order as to cost.[TS Tech Sun (India) Ltd. v. State of Uttar Pradesh & Ors.] 23. In the light of the above judgment, in the case of Moriroku UT India (P) Ltd. v. State of U.P. & Ors., this
### Response:
1
|
624 |
Commissioner of Income Tax Vs. Lucas T. V. S. Limited
|
The order of the Tribunal states that clause 4(ii) of the agreement dated November 27, 1962, between Lucas, the English company, and the respondent would show that the purchase price of the plant and machinery, which had been advanced to the respondent by Lucas (England), would be satisfied with the issue by the respondent to Lucas (England) of its equity shares at par of an equivalent value. The question that arose, therefore, was whether the said agreement had created any debt towards the supply of plant and machinery by Lucas (England). The Tribunal too the view that the obligation of the respondent in respect of the price of the plant and machinery had to be satisfied by the issue of the respondents shares to Lucas (England). The view of the Tribunal was upheld by the High Court and the Revenue is in appeal. It was contended by learned counsel for the Revenue that on the relevant date, for the purpose of section 80J of the Income-tax Act, the shares had not been allotted by the respondent to Lucas (England) and that the value thereof had been shown in the respondents balance-sheet. In his submission, therefore, there was a debt and it had to be taken into account for the purposes of computing the respondents capital in the application of section 80J. Our attention was drawn to the judgment of this court in Kesoram Industries and Cotton Mills Ltd. v. CWT. This court there referred to English judgments and the judgments of this court to determine what a debt was. It held that a debt was a sum of money which is now payable or will become payable in future by reason of a present obligation. It added that (page 780) "a liability depending upon a contingency is not a debt in praesenti or in futuro till the contingency happened. But if there is a debt the fact that the amount is to be ascertained does not make it any the less a debt if the liability is certain and what remains is only the quantification of the amount. In short, a debt owed within the meaning of section 2(m) of the Wealth-tax Act can be defined as a liability to pay in praesenti or in futuro an ascertainable sum of money." * What is relevant for our purpose is that a liability depending upon a contingency is not a debt in praesenti or in futuro till the contingency has happened. In the present case, the liability of the respondent to Lucas (England) is to issue to Lucas (England) equity shares of a value equivalent to the amount advanced by Lucas (England) for the plant and machinery. It is only if, for any reason, the shares cannot be allotted that the question of compensating Lucas (England) in cash might arise. We do not think that, in these circumstances, it can be said that there was a debt owed by the respondent to Lucas (England) to be taken into account for the purposes of computing the capital under section 80J.
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0[ds]What is relevant for our purpose is that a liability depending upon a contingency is not a debt in praesenti or in futuro till the contingency has happened. In the present case, the liability of the respondent to Lucas (England) is to issue to Lucas (England) equity shares of a value equivalent to the amount advanced by Lucas (England) for the plant and machinery. It is only if, for any reason, the shares cannot be allotted that the question of compensating Lucas (England) in cash might arise. We do not think that, in these circumstances, it can be said that there was a debt owed by the respondent to Lucas (England) to be taken into account for the purposes of computing the capital under section 80J.
| 0 | 573 |
### Instruction:
Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant.
### Input:
The order of the Tribunal states that clause 4(ii) of the agreement dated November 27, 1962, between Lucas, the English company, and the respondent would show that the purchase price of the plant and machinery, which had been advanced to the respondent by Lucas (England), would be satisfied with the issue by the respondent to Lucas (England) of its equity shares at par of an equivalent value. The question that arose, therefore, was whether the said agreement had created any debt towards the supply of plant and machinery by Lucas (England). The Tribunal too the view that the obligation of the respondent in respect of the price of the plant and machinery had to be satisfied by the issue of the respondents shares to Lucas (England). The view of the Tribunal was upheld by the High Court and the Revenue is in appeal. It was contended by learned counsel for the Revenue that on the relevant date, for the purpose of section 80J of the Income-tax Act, the shares had not been allotted by the respondent to Lucas (England) and that the value thereof had been shown in the respondents balance-sheet. In his submission, therefore, there was a debt and it had to be taken into account for the purposes of computing the respondents capital in the application of section 80J. Our attention was drawn to the judgment of this court in Kesoram Industries and Cotton Mills Ltd. v. CWT. This court there referred to English judgments and the judgments of this court to determine what a debt was. It held that a debt was a sum of money which is now payable or will become payable in future by reason of a present obligation. It added that (page 780) "a liability depending upon a contingency is not a debt in praesenti or in futuro till the contingency happened. But if there is a debt the fact that the amount is to be ascertained does not make it any the less a debt if the liability is certain and what remains is only the quantification of the amount. In short, a debt owed within the meaning of section 2(m) of the Wealth-tax Act can be defined as a liability to pay in praesenti or in futuro an ascertainable sum of money." * What is relevant for our purpose is that a liability depending upon a contingency is not a debt in praesenti or in futuro till the contingency has happened. In the present case, the liability of the respondent to Lucas (England) is to issue to Lucas (England) equity shares of a value equivalent to the amount advanced by Lucas (England) for the plant and machinery. It is only if, for any reason, the shares cannot be allotted that the question of compensating Lucas (England) in cash might arise. We do not think that, in these circumstances, it can be said that there was a debt owed by the respondent to Lucas (England) to be taken into account for the purposes of computing the capital under section 80J.
### Response:
0
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625 |
Union Of India Vs. Gurbaksh Singh & Another
|
the post of Assistant Settlement Commissioner, unless such power was conferred upon it by virtue of a direction given by the Central Government under Section 34, but admittedly there was no such direction in the present case. In fact, the Central Government, by its letter dated 18th April, 1955 requested the State Government to intimate "the names of officers appointed as Assistant Settlement Commissioner" for issue of necessary notification under the Act. The Central Government did empower the State Government to nominate the person to be appointed to the post of Assistant Settlement Commissioner but the appointment of the person so nominated could only be made and was in fact made by the Central Government by its order dated 3rd September, 1955. Once the appointment of the first respondent as Assistant Settlement Commissioner was made by the Central Government by its order dated 3rd September, 1955, there was no question thereafter of the State Government once again appointing him to the same post. The State Government, no doubt, by its order dated 1st December, 1955 purported to appoint the first respondent as Assistant Settlement Commissioner, but that was merely a formal "appointment letter" persuant to the suggestion contained in the letter of the Central Government dated 21st September, 1955.It was an ineffectual and futile exercise which had no legal consequence since by that the first respondent was already appointed to the post of Assistant Settlement Commissioner by the Central Government legally competent so to appoint and he was already functioning as such Assistant Settlement Commissioner. Moreover, the post of Assistant Settlement Commissioner, to which the first respondent was so appointed, was a post sanctioned by the President of India and created by the Central Government and the whole of the expenditure in connection with that post was to be borne out of the funds allocated by the Central Government, vice the letter of the Central Government dated 23rd July, 1955.It is true that the State Government also, by its order dated 30th November, 1955, purported to accord sanction to the creation of one post of Assistant Settlement Commissioner, but that was obviously for the purpose of regularising its own accounts procedure because the amount of Rs. 6.50 lacs for meeting the expenditure in connection with the staff for this work was made available by the Central Government to the State Government and it was the State Government which was to disburse the expenditure out of that amount. The post of Assistant Settlement Commissioner having already been created by the Central Govt. by the sanction of the President of India as conveyed under the letter dated 23rd July, 1955, did not need validation from the order of the Government of Punjab dated 30th November, 1955.In fact, when the question arose in regard to issue of pay slip in favour of the first respondent for the period subsequent to 29th February, 1956, when the original sanction of the President of India for the post of Assistant Settlement Commissioner expired, the Accountant General, Punjab pointed out in his letter dated 21st April, 1956 that the sanction to the continuance of the post by the Punjab Government was meaningless and ineffective and it could not be acted upon until receipt of sanction to the continuance of the post from the Central Government since "the post was created by them."It would, therefore, be seen that the post of Assistant Settlement Commissioner was created by the Central Government and the expenditure in connection with it was to be met out of the funds provided by the Central Government and it was the Central Government alone which was competent to make appointment to the post and in fact, the first respondent was appointed to the post by the Central Government by its order dated 3rd September, 1955. If this be the correct position, as it undeniably is, there can be no doubt that the Central Government alone could terminate the service of the first respondent. It is now a well-settled rule of interpretation that a power to appoint ordinarily implies a power to determine the employment. That was pointed out by this Court in S. R. Tiwari v. District Board, Agra, (1964) 3 SCR 55 = (AIR 1964 SC 1680 ):"Power to appoint ordinarily carries with it the power to determine appointment, and a power to terminate may in the absence of restrictions express or implied be exercised, subject to the conditions prescribed in that behalf, by the authority competent to appoint."This rule is also found incorporated in Section 16 of the General Clauses Act, 1897. It is, therefore, clear that the Central Government, which is given the power to make a appointment to the post of Assistant Settlement Commissioner under Section 3, would also have the power to determine the appointment. The Central Government would also be entitled to terminate the appointment, since the post of Assistant Settlement Commissioner is a post under the Union of India and the person appointed to it would hold it during the pleasure of the President. There is no provision under which the Government of Punjab could have the power to determine the appointment as Assistant Settlement Commissioner made by the Central Government under Section 3. The Central Government alone could terminate the appointment, both as the appointing authority as also under Article 310 (1) of the Constitution. The High Court was therefore, right in taking the view that the order of the Punjab Government dated 17th April, 1956 was ineffectual and invalid and the service of the first respondent as Assistant Settlement Commissioner was validly terminated only on 10th February, 1959 when the Central Government, by its memorandum dated 10th January, 1959, gave notice terminating the service of the first respondent. There was no dispute before us that if the service of the first respondent came to an end on 10th February, 1959, and not earlier on 17th April, 1956, the first respondent would be entitled to a sum of Rupees 22,927.34 p. as decreed by the High Court.
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0[ds]9. Now, if we look at the provisions of the Act, it is clear that it is the Central Government which is constituted the ultimate authority responsible for the administration of the provisions of thepost of Assistant Settlement Commissioner - that being the post with which we are concerned in this appeal - is, therefore, clearly a post under the Union of India to which appointment is to be made by the Central Government. It was in exercise of this power conferred by Section 3, sub-section (1) that the Central Government appointed the first respondent to the post of Assistant Settlement Commissioner, by its order dated 3rd September 1955. The Government of Punjab had no power to make appointment to the post of Assistant Settlement Commissioner, unless such power was conferred upon it by virtue of a direction given by the Central Government under Section 34, but admittedly there was no such direction in the present case. In fact, the Central Government, by its letter dated 18th April, 1955 requested the State Government to intimate "the names of officers appointed as Assistant Settlement Commissioner" for issue of necessary notification under the Act. The Central Government did empower the State Government to nominate the person to be appointed to the post of Assistant Settlement Commissioner but the appointment of the person so nominated could only be made and was in fact made by the Central Government by its order dated 3rd September, 1955. Once the appointment of the first respondent as Assistant Settlement Commissioner was made by the Central Government by its order dated 3rd September, 1955, there was no question thereafter of the State Government once again appointing him to the same post. The State Government, no doubt, by its order dated 1st December, 1955 purported to appoint the first respondent as Assistant Settlement Commissioner, but that was merely a formal "appointment letter" persuant to the suggestion contained in the letter of the Central Government dated 21st September, 1955.It was an ineffectual and futile exercise which had no legal consequence since by that the first respondent was already appointed to the post of Assistant Settlement Commissioner by the Central Government legally competent so to appoint and he was already functioning as such Assistant Settlement Commissioner. Moreover, the post of Assistant Settlement Commissioner, to which the first respondent was so appointed, was a post sanctioned by the President of India and created by the Central Government and the whole of the expenditure in connection with that post was to be borne out of the funds allocated by the Central Government, vice the letter of the Central Government dated 23rd July, 1955.It is true that the State Government also, by its order dated 30th November, 1955, purported to accord sanction to the creation of one post of Assistant Settlement Commissioner, but that was obviously for the purpose of regularising its own accounts procedure because the amount of Rs. 6.50 lacs for meeting the expenditure in connection with the staff for this work was made available by the Central Government to the State Government and it was the State Government which was to disburse the expenditure out of that amount. The post of Assistant Settlement Commissioner having already been created by the Central Govt. by the sanction of the President of India as conveyed under the letter dated 23rd July, 1955, did not need validation from the order of the Government of Punjab dated 30th November, 1955.In fact, when the question arose in regard to issue of pay slip in favour of the first respondent for the period subsequent to 29th February, 1956, when the original sanction of the President of India for the post of Assistant Settlement Commissioner expired, the Accountant General, Punjab pointed out in his letter dated 21st April, 1956 that the sanction to the continuance of the post by the Punjab Government was meaningless and ineffective and it could not be acted upon until receipt of sanction to the continuance of the post from the Central Government since "the post was created by them."It would, therefore, be seen that the post of Assistant Settlement Commissioner was created by the Central Government and the expenditure in connection with it was to be met out of the funds provided by the Central Government and it was the Central Government alone which was competent to make appointment to the post and in fact, the first respondent was appointed to the post by the Central Government by its order dated 3rd September, 1955. If this be the correct position, as it undeniably is, there can be no doubt that the Central Government alone could terminate the service of the firstrule is also found incorporated in Section 16 ofthe General Clauses Act, 1897. It is, therefore, clear that the Central Government, which is given the power to make a appointment to the post of Assistant Settlement Commissioner under Section 3, would also have the power to determine the appointment. The Central Government would also be entitled to terminate the appointment, since the post of Assistant Settlement Commissioner is a post under the Union of India and the person appointed to it would hold it during the pleasure of the President. There is no provision under which the Government of Punjab could have the power to determine the appointment as Assistant Settlement Commissioner made by the Central Government under Section 3. The Central Government alone could terminate the appointment, both as the appointing authority as also under Article 310 (1) of the Constitution. The High Court was therefore, right in taking the view that the order of the Punjab Government dated 17th April, 1956 was ineffectual and invalid and the service of the first respondent as Assistant Settlement Commissioner was validly terminated only on 10th February, 1959 when the Central Government, by its memorandum dated 10th January, 1959, gave notice terminating the service of the first respondent. There was no dispute before us that if the service of the first respondent came to an end on 10th February, 1959, and not earlier on 17th April, 1956, the first respondent would be entitled to a sum of Rupees 22,927.34 p. as decreed by the High Court.
| 0 | 3,917 |
### Instruction:
Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
### Input:
the post of Assistant Settlement Commissioner, unless such power was conferred upon it by virtue of a direction given by the Central Government under Section 34, but admittedly there was no such direction in the present case. In fact, the Central Government, by its letter dated 18th April, 1955 requested the State Government to intimate "the names of officers appointed as Assistant Settlement Commissioner" for issue of necessary notification under the Act. The Central Government did empower the State Government to nominate the person to be appointed to the post of Assistant Settlement Commissioner but the appointment of the person so nominated could only be made and was in fact made by the Central Government by its order dated 3rd September, 1955. Once the appointment of the first respondent as Assistant Settlement Commissioner was made by the Central Government by its order dated 3rd September, 1955, there was no question thereafter of the State Government once again appointing him to the same post. The State Government, no doubt, by its order dated 1st December, 1955 purported to appoint the first respondent as Assistant Settlement Commissioner, but that was merely a formal "appointment letter" persuant to the suggestion contained in the letter of the Central Government dated 21st September, 1955.It was an ineffectual and futile exercise which had no legal consequence since by that the first respondent was already appointed to the post of Assistant Settlement Commissioner by the Central Government legally competent so to appoint and he was already functioning as such Assistant Settlement Commissioner. Moreover, the post of Assistant Settlement Commissioner, to which the first respondent was so appointed, was a post sanctioned by the President of India and created by the Central Government and the whole of the expenditure in connection with that post was to be borne out of the funds allocated by the Central Government, vice the letter of the Central Government dated 23rd July, 1955.It is true that the State Government also, by its order dated 30th November, 1955, purported to accord sanction to the creation of one post of Assistant Settlement Commissioner, but that was obviously for the purpose of regularising its own accounts procedure because the amount of Rs. 6.50 lacs for meeting the expenditure in connection with the staff for this work was made available by the Central Government to the State Government and it was the State Government which was to disburse the expenditure out of that amount. The post of Assistant Settlement Commissioner having already been created by the Central Govt. by the sanction of the President of India as conveyed under the letter dated 23rd July, 1955, did not need validation from the order of the Government of Punjab dated 30th November, 1955.In fact, when the question arose in regard to issue of pay slip in favour of the first respondent for the period subsequent to 29th February, 1956, when the original sanction of the President of India for the post of Assistant Settlement Commissioner expired, the Accountant General, Punjab pointed out in his letter dated 21st April, 1956 that the sanction to the continuance of the post by the Punjab Government was meaningless and ineffective and it could not be acted upon until receipt of sanction to the continuance of the post from the Central Government since "the post was created by them."It would, therefore, be seen that the post of Assistant Settlement Commissioner was created by the Central Government and the expenditure in connection with it was to be met out of the funds provided by the Central Government and it was the Central Government alone which was competent to make appointment to the post and in fact, the first respondent was appointed to the post by the Central Government by its order dated 3rd September, 1955. If this be the correct position, as it undeniably is, there can be no doubt that the Central Government alone could terminate the service of the first respondent. It is now a well-settled rule of interpretation that a power to appoint ordinarily implies a power to determine the employment. That was pointed out by this Court in S. R. Tiwari v. District Board, Agra, (1964) 3 SCR 55 = (AIR 1964 SC 1680 ):"Power to appoint ordinarily carries with it the power to determine appointment, and a power to terminate may in the absence of restrictions express or implied be exercised, subject to the conditions prescribed in that behalf, by the authority competent to appoint."This rule is also found incorporated in Section 16 of the General Clauses Act, 1897. It is, therefore, clear that the Central Government, which is given the power to make a appointment to the post of Assistant Settlement Commissioner under Section 3, would also have the power to determine the appointment. The Central Government would also be entitled to terminate the appointment, since the post of Assistant Settlement Commissioner is a post under the Union of India and the person appointed to it would hold it during the pleasure of the President. There is no provision under which the Government of Punjab could have the power to determine the appointment as Assistant Settlement Commissioner made by the Central Government under Section 3. The Central Government alone could terminate the appointment, both as the appointing authority as also under Article 310 (1) of the Constitution. The High Court was therefore, right in taking the view that the order of the Punjab Government dated 17th April, 1956 was ineffectual and invalid and the service of the first respondent as Assistant Settlement Commissioner was validly terminated only on 10th February, 1959 when the Central Government, by its memorandum dated 10th January, 1959, gave notice terminating the service of the first respondent. There was no dispute before us that if the service of the first respondent came to an end on 10th February, 1959, and not earlier on 17th April, 1956, the first respondent would be entitled to a sum of Rupees 22,927.34 p. as decreed by the High Court.
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626 |
The Sindhu Resettlement Corporation Ltd Vs. The Industrial Tribunal Of Gujarat & Ors
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the services he had rendered in that Company, but the appellant Corporation was responsible for his retrenchment dues for the service which had been rendered by respondent No. 3 in the appellant Corporation. The prayer was that, as the appellant had refused him re-employment, arrangement should be made to pay his retrenchment dues according to Section 25-F of the Industrial Disputes Act, 1947. Thus, both the respondents, in their claims put forward before the management of the appellant, requested for payment of retrenchment compensation and did not raise any dispute for reinstatement. Since no such dispute about reinstatement was raised by either of the respondents before the management of the appellant, it is clear that the State Government was not competent to refer a question of reinstatement as an industrial dispute for adjudication by the Tribunal. The dispute that the State Government could have referred competently was the dispute relating to payment of retrenchment compensation by the appellant to respondent No. 3 which had been refused. No doubt, the order of the State Government making the reference mentions that the Government had considered the report submitted by the Conciliation Officer under sub-section (4) of Section 12 of the Industrial Disputes Act, in respect of the dispute between the appellant and workmen employed under it, over the demand mentioned in the Schedule appended to that order; and, in the Schedule, the Government mentioned that the dispute was that of reinstatement of respondent No. 3 in the service of the appellant and payment of his wages from 21st February, 1958. It was urged by Mr. Gopalakrishnan on behalf of the respondents that this Court cannot examine whether the Government, in forming its opinion that an industrial dispute exists, came to its view correctly or incorrectly on the material before it. This proposition is, no doubt, correct; but the aspect that is being examined is entirely different. It may be that the Conciliation Officer reported to the Government that an industrial dispute did exist relating to the reinstatement of respondent No. 3 and payment of wages to him from 21st February, 1958 but when the dispute came up for adjudication before the Tribunal, the evidence produced clearly showed that no such dispute had ever been raised by either respondent with the management of the appellant.If no dispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and not an industrial dispute between them and their employer. An industrial dispute, as defined, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the workmen with their employer, cannot become an industrial dispute.Consequently, the material before the Tribunal clearly showed that no such industrial dispute, as was purported to be referred by the State Government to the tribunal, had ever existed between the appellant Corporation and the respondents and the State Government, in making a reference, obviously committed an error in basing its opinion an material which was not relevant to the formation of opinion. The Government had to come to an opinion that an industrial dispute did exist and that opinion could only be formed on the basis that there was a dispute between the appellant and the respondents relating to reinstatement. Such material could not possibly exist when, as early as March and July. 1958. respondent No. 3 and respondent No 2 respectively had confined their demands to the management to retrenchment compensation only and; did not make any demand for reinstatement. On those facts it is clear that the reference made by the Government was not competent. The only reference that the Government could have made had to be related to payment of retrenchment compensation which was the only subject-matter of dispute between the appellant and the respondents. 5. So far as the third ground is concerned, it loses force and does not arise in view of our decision relating to the first ground. We have already held, when dealing with die first ground, that the appellant lent had neither dismissed respondent No. 3, nor had it discharged him from service. There was no question of wrongful dismissal or discharge by the appellant. It was not even a case of retrenchment, because respondent No 3 had willingly gone to join the service under Sindhu Hotchief. He obviously joined the service in Sindhu. Hotchief because of the financial advantages that were to accrue to him. In September, 1953, he was drawing a salary of Rs. 200/- p. m. in the scale of Rs. 150-10-250 while serving the appellant. The site allowance of 20 per cent., which he had been receiving earlier, had been discontinued from March, 1952 and he was not getting it at the time when he went to join Sindhu Hotchief, where he was given a start of Rs 240/- in the grade of Rs. 200-20-400. Consequently, in addition to the immediate rise in salary of Rs. 40/- p. m, he had the advantage of working in the higher grade in which, within two years, he exceeded the maximum of the stale in which he had been working with the appellant. He served Sindhu Hotchief for a period of about 41/2 years and became confirmed there in accordance with the terms and conditions which were offered to him by Sindhu Hotchief.In these circumstances, the respondents cannot urge that the services of respondent No. 3 were retrenched by the appellant, either when he went and joined Sindhu Hotchief, or when he wanted to get back to his post with the appellant. His appointment in the service of the appellant having terminated, no question could arise of retrenching him at the stage when he wanted to come back after serving. Sindhu Hotchief His services were, in fact, retrened by his new employer, Sindhu Hotchief, and from that Company he received retrenchment compensation. The third ground therefore, needs no consideration. 6.
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1[ds]It is true that the form in which it was urged before the High Court was slightly different. There, the point raised was that a demand for reinstatement, when there had been retrenchment only and no discharge or dismissal, could not be held to constitute an industrial dispute. On the facts of the case as they appeared from the material before the Tribunal, it is now urged that, in fact, the demand, which was being pressed with the management by both the respondents, was in respect of retrenchment compensation and not reinstatement. The demand for reinstatement seems to have been given up, because the respondents realised that the services of respondent No. 3 had not been terminated by discharge or dismissal, but by retrenchment only and that retrenchment not being the result of any unfair labour practice or victimisation, respondent No. 3 could only claim retrenchment compensation. In the evidence given before the Tribunal, there were included two letters written by the two respondents containing the demand for retrenchment compensation. We have already referred to one of these letters which was sent on 7th March, 1958 by respondent No. 3 to the Administrative Officer of the appellant. The other letter was sent on 10th July, 1958 by the General Secretary of respondent No 2 in which again it was stated that Sindhu Hotchief had paid retrenchment; dues to respondent No. 3 in respect of the services he had rendered in that Company, but the appellant Corporation was responsible for his retrenchment dues for the service which had been rendered by respondent No. 3 in the appellant Corporation. The prayer was that, as the appellant had refused him re-employment, arrangement should be made to pay his retrenchment dues according to Section 25-F of the Industrial Disputes Act, 1947. Thus, both the respondents, in their claims put forward before the management of the appellant, requested for payment of retrenchment compensation and did not raise any dispute for reinstatement. Since no such dispute about reinstatement was raised by either of the respondents before the management of the appellant, it is clear that the State Government was not competent to refer a question of reinstatement as an industrial dispute for adjudication by the Tribunal. The dispute that the State Government could have referred competently was the dispute relating to payment of retrenchment compensation by the appellant to respondent No. 3 which had been refused. No doubt, the order of the State Government making the reference mentions that the Government had considered the report submitted by the Conciliation Officer under sub-section (4) of Section 12 of the Industrial Disputes Act, in respect of the dispute between the appellant and workmen employed under it, over the demand mentioned in the Schedule appended to that order; and, in the Schedule, the Government mentioned that the dispute was that of reinstatement of respondent No. 3 in the service of the appellant and payment of his wages from 21st February, 1958. It was urged by Mr. Gopalakrishnan on behalf of the respondents that this Court cannot examine whether the Government, in forming its opinion that an industrial dispute exists, came to its view correctly or incorrectly on the material before it. This proposition is, no doubt, correct; but the aspect that is being examined is entirely different. It may be that the Conciliation Officer reported to the Government that an industrial dispute did exist relating to the reinstatement of respondent No. 3 and payment of wages to him from 21st February, 1958 but when the dispute came up for adjudication before the Tribunal, the evidence produced clearly showed that no such dispute had ever been raised by either respondent with the management of the appellant.If no dispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and not an industrial dispute between them and their employer. An industrial dispute, as defined, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the workmen with their employer, cannot become an industrial dispute.Consequently, the material before the Tribunal clearly showed that no such industrial dispute, as was purported to be referred by the State Government to the tribunal, had ever existed between the appellant Corporation and the respondents and the State Government, in making a reference, obviously committed an error in basing its opinion an material which was not relevant to the formation of opinion. The Government had to come to an opinion that an industrial dispute did exist and that opinion could only be formed on the basis that there was a dispute between the appellant and the respondents relating to reinstatement. Such material could not possibly exist when, as early as March and July. 1958. respondent No. 3 and respondent No 2 respectively had confined their demands to the management to retrenchment compensation only and; did not make any demand for reinstatement. On those facts it is clear that the reference made by the Government was not competent. The only reference that the Government could have made had to be related to payment of retrenchment compensation which was the only subject-matter of dispute between the appellant and the respondents5. So far as the third ground is concerned, it loses force and does not arise in view of our decision relating to the first ground. We have already held, when dealing with die first ground, that the appellant lent had neither dismissed respondent No. 3, nor had it discharged him from service. There was no question of wrongful dismissal or discharge by the appellant. It was not even a case of retrenchment, because respondent No 3 had willingly gone to join the service under Sindhu Hotchief. He obviously joined the service in Sindhu. Hotchief because of the financial advantages that were to accrue to him. In September, 1953, he was drawing a salary of Rs. 200/- p. m. in the scale of Rs. 150-10-250 while serving the appellant. The site allowance of 20 per cent., which he had been receiving earlier, had been discontinued from March, 1952 and he was not getting it at the time when he went to join Sindhu Hotchief, where he was given a start of Rs 240/- in the grade of Rs. 200-20-400. Consequently, in addition to the immediate rise in salary of Rs. 40/- p. m, he had the advantage of working in the higher grade in which, within two years, he exceeded the maximum of the stale in which he had been working with the appellant. He served Sindhu Hotchief for a period of about 41/2 years and became confirmed there in accordance with the terms and conditions which were offered to him by Sindhu Hotchief.In these circumstances, the respondents cannot urge that the services of respondent No. 3 were retrenched by the appellant, either when he went and joined Sindhu Hotchief, or when he wanted to get back to his post with the appellant. His appointment in the service of the appellant having terminated, no question could arise of retrenching him at the stage when he wanted to come back after serving. Sindhu Hotchief His services were, in fact, retrened by his new employer, Sindhu Hotchief, and from that Company he received retrenchment compensation. The third ground therefore, needs no consideration.
| 1 | 4,346 |
### Instruction:
Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
### Input:
the services he had rendered in that Company, but the appellant Corporation was responsible for his retrenchment dues for the service which had been rendered by respondent No. 3 in the appellant Corporation. The prayer was that, as the appellant had refused him re-employment, arrangement should be made to pay his retrenchment dues according to Section 25-F of the Industrial Disputes Act, 1947. Thus, both the respondents, in their claims put forward before the management of the appellant, requested for payment of retrenchment compensation and did not raise any dispute for reinstatement. Since no such dispute about reinstatement was raised by either of the respondents before the management of the appellant, it is clear that the State Government was not competent to refer a question of reinstatement as an industrial dispute for adjudication by the Tribunal. The dispute that the State Government could have referred competently was the dispute relating to payment of retrenchment compensation by the appellant to respondent No. 3 which had been refused. No doubt, the order of the State Government making the reference mentions that the Government had considered the report submitted by the Conciliation Officer under sub-section (4) of Section 12 of the Industrial Disputes Act, in respect of the dispute between the appellant and workmen employed under it, over the demand mentioned in the Schedule appended to that order; and, in the Schedule, the Government mentioned that the dispute was that of reinstatement of respondent No. 3 in the service of the appellant and payment of his wages from 21st February, 1958. It was urged by Mr. Gopalakrishnan on behalf of the respondents that this Court cannot examine whether the Government, in forming its opinion that an industrial dispute exists, came to its view correctly or incorrectly on the material before it. This proposition is, no doubt, correct; but the aspect that is being examined is entirely different. It may be that the Conciliation Officer reported to the Government that an industrial dispute did exist relating to the reinstatement of respondent No. 3 and payment of wages to him from 21st February, 1958 but when the dispute came up for adjudication before the Tribunal, the evidence produced clearly showed that no such dispute had ever been raised by either respondent with the management of the appellant.If no dispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and not an industrial dispute between them and their employer. An industrial dispute, as defined, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the workmen with their employer, cannot become an industrial dispute.Consequently, the material before the Tribunal clearly showed that no such industrial dispute, as was purported to be referred by the State Government to the tribunal, had ever existed between the appellant Corporation and the respondents and the State Government, in making a reference, obviously committed an error in basing its opinion an material which was not relevant to the formation of opinion. The Government had to come to an opinion that an industrial dispute did exist and that opinion could only be formed on the basis that there was a dispute between the appellant and the respondents relating to reinstatement. Such material could not possibly exist when, as early as March and July. 1958. respondent No. 3 and respondent No 2 respectively had confined their demands to the management to retrenchment compensation only and; did not make any demand for reinstatement. On those facts it is clear that the reference made by the Government was not competent. The only reference that the Government could have made had to be related to payment of retrenchment compensation which was the only subject-matter of dispute between the appellant and the respondents. 5. So far as the third ground is concerned, it loses force and does not arise in view of our decision relating to the first ground. We have already held, when dealing with die first ground, that the appellant lent had neither dismissed respondent No. 3, nor had it discharged him from service. There was no question of wrongful dismissal or discharge by the appellant. It was not even a case of retrenchment, because respondent No 3 had willingly gone to join the service under Sindhu Hotchief. He obviously joined the service in Sindhu. Hotchief because of the financial advantages that were to accrue to him. In September, 1953, he was drawing a salary of Rs. 200/- p. m. in the scale of Rs. 150-10-250 while serving the appellant. The site allowance of 20 per cent., which he had been receiving earlier, had been discontinued from March, 1952 and he was not getting it at the time when he went to join Sindhu Hotchief, where he was given a start of Rs 240/- in the grade of Rs. 200-20-400. Consequently, in addition to the immediate rise in salary of Rs. 40/- p. m, he had the advantage of working in the higher grade in which, within two years, he exceeded the maximum of the stale in which he had been working with the appellant. He served Sindhu Hotchief for a period of about 41/2 years and became confirmed there in accordance with the terms and conditions which were offered to him by Sindhu Hotchief.In these circumstances, the respondents cannot urge that the services of respondent No. 3 were retrenched by the appellant, either when he went and joined Sindhu Hotchief, or when he wanted to get back to his post with the appellant. His appointment in the service of the appellant having terminated, no question could arise of retrenching him at the stage when he wanted to come back after serving. Sindhu Hotchief His services were, in fact, retrened by his new employer, Sindhu Hotchief, and from that Company he received retrenchment compensation. The third ground therefore, needs no consideration. 6.
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627 |
Glencore International AG Vs. Hindustan Zinc Ltd
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sum of Rs 55 lakhs against the respondent. The respondent not having settled the claim, a notice was issued on behalf of the petitioner invoking Clause.17.1(2) of the arbitration agreement and nominating a retired Judge of the High Court of Delhi as its nominee arbitrator and calling upon the respondent to name its nominee. The respondent named a retired District Judge of the Rajasthan cadre as its nominee. In terms of the arbitration agreement and S.11(3) of the Act, the two nominee arbitrators, were to nominate the third arbitrator preferably of a nationality other than the nationality of the parties involved. At this stage, the respondent altered its stand and taking up the position that the claim by the petitioner involved only an amount less than Rs 50 lakhs, and it came within the purview of Clause.17.1(1) of the arbitration agreement proceeded to name the arbitrator, it had already nominated, as the sole arbitrator to adjudicate on the dispute. It appears that subsequently that nominee was replaced by Mr Justice S.S. Chadha, a retired Judge of the High Court of Delhi. 3. The petitioner approached the Chief Justice of India at this stage with the present application seeking the appointment of the third arbitrator on the basis that the nominated arbitrators have failed to name the third arbitrator. According to the petitioner, the respondent was not justified in going back upon its earlier stand that the matter had to go before the Arbitral Tribunal in terms of Clause.17.1(2) of the arbitration agreement. The claim made, exceeded Rs 50 lakhs and Clause.17.1(2) was attracted. On behalf of the respondent, it is submitted that the claim, as can be seen from the notice originally issued, was only for a sum of Rs 49,52,051.04. On a point of law, it is contended that the sole arbitrator having entered on the reference, it was for the petitioner to raise its objection to his jurisdiction before him in terms of S.16 of the Act and the present petition invoking S.11 of the Act was misconceived. 4. In the original notice making the claim, though the specific amounts claimed under two heads amounted only to Rs 49,52,051.04, there was also a claim for interest and the total claim was for an amount of Rs 55 lakhs. Whether the petitioner would be entitled to interest on the amounts claimed is a different question, yet to be decided. But, it is not possible to accept the argument that the claim did not exceed Rs 50 lakhs since the notice specifically claimed a sum of Rs 55 lakhs, though it may be correct to say that the rate of interest was not specified in the demand. That is not a ground for taking the view that the claim itself did not exceed Rs 50 lakhs, thereby attracting Clause.17.1(1) of the arbitration agreement. It is significant to note that the respondent itself understood the claim as one exceeding Rs 50 lakhs when it originally made its nomination of an arbitrator in terms of Clause.17.1(2) of the arbitration agreement, though of course, it resiled from that stand at a subsequent stage. On looking into the claim as made by the petitioner, it has to be stated that the claim exceeded Rs 50 lakhs thereby attracting Clause.17.1(2) of the arbitration agreement. 5. Then the question is whether the Chief Justice of India or his nominee, can step in to supply the omission by nominating the third arbitrator or whether the parties are to be left to raise their objections before the sole arbitrator, now purported to be appointed by the respondent under Clause.17.1(1) of the arbitration agreement. In the light of my conclusion above that the claim exceeded Rs 50 lakhs, it has logically to follow that it was Clause.17.1(2) of the arbitration agreement that was attracted and not Clause.17.1(1). If that be so, the act of the respondent in nominating the sole arbitrator itself has to be held to be outside its authority under the arbitration agreement. Moreover, even if this objection were to be raised before the sole arbitrator in terms of S.16 of the Act, that arbitrator can only either uphold the objection or reject it. If he were to uphold the objection raised by the petitioner, he would have no further jurisdiction in the matter and the parties will again be driven to approach the Chief Justice of India with an application under S.11 of the Act. I do not think that the parties should be driven to such a course, on the facts and in the circumstances of the case. I am not forgetting the ratio of the decision in Konkan Railway (Konkan Railway Corpn. Ltd. v. Rani Construction (P) Ltd., 2002 (2) SCC 388 ) when I say this. But in the face of my conclusion that it was Clause.17.1(2) of the arbitration agreement that was attracted, I think that it will be an exercise in futility to drive the parties before the sole arbitrator who on the basis of that finding, does not have the jurisdiction to deal with a claim now made. The role of the Chief Justice of India or his nominee under S.11 of the Act, may only be administrative and not adjudicatory but that does not mean that when the Chief Justice is moved he has to act as a rubber stamp and he could not apply his mind to see whether it was a case for exercise of power under S.11 of the Act or not. I am, therefore, satisfied that I will be justified in exercising my power under S.11 of the Act. 6. Now, that the respondent has named Justice Chadha as the sole arbitrator, it is necessary to give the respondent an opportunity either to nominate Justice Chadha as its nominee arbitrator or to nominate anyone else in his place in terms of Clause.17.1(2) of the arbitration agreement. Obviously, the respondent has now acted on the basis of its conception of the claim involved in the case.
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1[ds]In the light of my conclusion above that the claim exceeded Rs 50 lakhs, it has logically to follow that it was Clause.17.1(2) of the arbitration agreement that was attracted and not Clause.17.1(1). If that be so, the act of the respondent in nominating the sole arbitrator itself has to be held to be outside its authority under the arbitration agreement. Moreover, even if this objection were to be raised before the sole arbitrator in terms of S.16 of the Act, that arbitrator can only either uphold the objection or reject it. If he were to uphold the objection raised by the petitioner, he would have no further jurisdiction in the matter and the parties will again be driven to approach the Chief Justice of India with an application under S.11 of the Act. I do not think that the parties should be driven to such a course, on the facts and in the circumstances of the case. I am not forgetting the ratio of the decision in Konkan Railway (Konkan Railway Corpn. Ltd. v. Rani Construction (P) Ltd., 2002 (2) SCC 388 ) when I say this. But in the face of my conclusion that it was Clause.17.1(2) of the arbitration agreement that was attracted, I think that it will be an exercise in futility to drive the parties before the sole arbitrator who on the basis of that finding, does not have the jurisdiction to deal with a claim now made. The role of the Chief Justice of India or his nominee under S.11 of the Act, may only be administrative and not adjudicatory but that does not mean that when the Chief Justice is moved he has to act as a rubber stamp and he could not apply his mind to see whether it was a case for exercise of power under S.11 of the Act or not. I am, therefore, satisfied that I will be justified in exercising my power under S.11 of the Act6. Now, that the respondent has named Justice Chadha as the sole arbitrator, it is necessary to give the respondent an opportunity either to nominate Justice Chadha as its nominee arbitrator or to nominate anyone else in his place in terms of Clause.17.1(2) of the arbitration agreement. Obviously, the respondent has now acted on the basis of its conception of the claim involved in the case.
| 1 | 1,643 |
### 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:
sum of Rs 55 lakhs against the respondent. The respondent not having settled the claim, a notice was issued on behalf of the petitioner invoking Clause.17.1(2) of the arbitration agreement and nominating a retired Judge of the High Court of Delhi as its nominee arbitrator and calling upon the respondent to name its nominee. The respondent named a retired District Judge of the Rajasthan cadre as its nominee. In terms of the arbitration agreement and S.11(3) of the Act, the two nominee arbitrators, were to nominate the third arbitrator preferably of a nationality other than the nationality of the parties involved. At this stage, the respondent altered its stand and taking up the position that the claim by the petitioner involved only an amount less than Rs 50 lakhs, and it came within the purview of Clause.17.1(1) of the arbitration agreement proceeded to name the arbitrator, it had already nominated, as the sole arbitrator to adjudicate on the dispute. It appears that subsequently that nominee was replaced by Mr Justice S.S. Chadha, a retired Judge of the High Court of Delhi. 3. The petitioner approached the Chief Justice of India at this stage with the present application seeking the appointment of the third arbitrator on the basis that the nominated arbitrators have failed to name the third arbitrator. According to the petitioner, the respondent was not justified in going back upon its earlier stand that the matter had to go before the Arbitral Tribunal in terms of Clause.17.1(2) of the arbitration agreement. The claim made, exceeded Rs 50 lakhs and Clause.17.1(2) was attracted. On behalf of the respondent, it is submitted that the claim, as can be seen from the notice originally issued, was only for a sum of Rs 49,52,051.04. On a point of law, it is contended that the sole arbitrator having entered on the reference, it was for the petitioner to raise its objection to his jurisdiction before him in terms of S.16 of the Act and the present petition invoking S.11 of the Act was misconceived. 4. In the original notice making the claim, though the specific amounts claimed under two heads amounted only to Rs 49,52,051.04, there was also a claim for interest and the total claim was for an amount of Rs 55 lakhs. Whether the petitioner would be entitled to interest on the amounts claimed is a different question, yet to be decided. But, it is not possible to accept the argument that the claim did not exceed Rs 50 lakhs since the notice specifically claimed a sum of Rs 55 lakhs, though it may be correct to say that the rate of interest was not specified in the demand. That is not a ground for taking the view that the claim itself did not exceed Rs 50 lakhs, thereby attracting Clause.17.1(1) of the arbitration agreement. It is significant to note that the respondent itself understood the claim as one exceeding Rs 50 lakhs when it originally made its nomination of an arbitrator in terms of Clause.17.1(2) of the arbitration agreement, though of course, it resiled from that stand at a subsequent stage. On looking into the claim as made by the petitioner, it has to be stated that the claim exceeded Rs 50 lakhs thereby attracting Clause.17.1(2) of the arbitration agreement. 5. Then the question is whether the Chief Justice of India or his nominee, can step in to supply the omission by nominating the third arbitrator or whether the parties are to be left to raise their objections before the sole arbitrator, now purported to be appointed by the respondent under Clause.17.1(1) of the arbitration agreement. In the light of my conclusion above that the claim exceeded Rs 50 lakhs, it has logically to follow that it was Clause.17.1(2) of the arbitration agreement that was attracted and not Clause.17.1(1). If that be so, the act of the respondent in nominating the sole arbitrator itself has to be held to be outside its authority under the arbitration agreement. Moreover, even if this objection were to be raised before the sole arbitrator in terms of S.16 of the Act, that arbitrator can only either uphold the objection or reject it. If he were to uphold the objection raised by the petitioner, he would have no further jurisdiction in the matter and the parties will again be driven to approach the Chief Justice of India with an application under S.11 of the Act. I do not think that the parties should be driven to such a course, on the facts and in the circumstances of the case. I am not forgetting the ratio of the decision in Konkan Railway (Konkan Railway Corpn. Ltd. v. Rani Construction (P) Ltd., 2002 (2) SCC 388 ) when I say this. But in the face of my conclusion that it was Clause.17.1(2) of the arbitration agreement that was attracted, I think that it will be an exercise in futility to drive the parties before the sole arbitrator who on the basis of that finding, does not have the jurisdiction to deal with a claim now made. The role of the Chief Justice of India or his nominee under S.11 of the Act, may only be administrative and not adjudicatory but that does not mean that when the Chief Justice is moved he has to act as a rubber stamp and he could not apply his mind to see whether it was a case for exercise of power under S.11 of the Act or not. I am, therefore, satisfied that I will be justified in exercising my power under S.11 of the Act. 6. Now, that the respondent has named Justice Chadha as the sole arbitrator, it is necessary to give the respondent an opportunity either to nominate Justice Chadha as its nominee arbitrator or to nominate anyone else in his place in terms of Clause.17.1(2) of the arbitration agreement. Obviously, the respondent has now acted on the basis of its conception of the claim involved in the case.
### Response:
1
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628 |
Office Of The Chief Post Master Vs. Living Media India Ltd
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on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights". After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under:- "29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.30. Public interest undoubtedly is a paramount consideration in exercising the courts discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest." 11) We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in LPA Nos. 418 and 1006 of 2007 as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.12) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.
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0[ds]29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.30. Public interest undoubtedly is a paramount consideration in exercising the courts discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no publicWe have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in LPA Nos. 418 and 1006 of 2007 as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.12) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.14) In view of our conclusion on issue (a), there is no need to go into the merits of the issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.
| 0 | 4,836 |
### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights". After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under:- "29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.30. Public interest undoubtedly is a paramount consideration in exercising the courts discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest." 11) We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in LPA Nos. 418 and 1006 of 2007 as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.12) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.
### Response:
0
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629 |
LMJ International Ltd Vs. Dankuni Steels Limited
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only stated that if an opportunity is given to Siona Enterprise it would be in a position to offer Rs. 14500/- per MT. Again without depositing 10% of the offer value, only a statement was made that the intending bidder was willing to deposit that amount immediately with Special Officer. It was contended that such an offer was no offer in the eyes of law.9. Insofar as dispute about the withdrawal of bid by Respondent no. 5 in the form of statement given by its counsel in the Court on May 29, 2017 is concerned, Mr. Shyam Diwan argued that the statement by the counsel for Respondent no. 5 was made in mistaken belief as the respondent no. 5 only wanted to withdraw the amount. He submitted that since the bid of Respondent no. 5 was for a total sum of Rs. 14,00,00,000/- (Rs. 14 crores only) and 1,40,00,000/- (one crore forty lakhs only) thereof was deposited as EMD (10% of the bid amount) after the acceptance of a bid by the High Court. Respondent no. 5 had also deposited the balance amount of Rs. 12,60,00,000/- (twelve crores and sixty lakhs only). Intention was to withdraw said amount of Rs. 12.60 crores only since this Court had granted stay of the order of the High Court on May 25, 2017. In fact, only this amount was withdrawn thereafter leaving Rs. 1,40,00,000/- (one crore forty lakhs only) still in deposit as EMD amount. This was a bona fide statement made to withdraw the said amount as Respondent no. 5 did not want to block the said money till the settlement of dispute and he had all intention to give back the said money in case order of the High Court is sustained. Therefore, there was no intention to withdraw from the bid itself.10. Prima facie, we find that the submission of Mr. Sinha is correct. On May 29, 2017, when the matter was taken up for arguments on application filed by Respondent no. 5 for vacation of the stay, order was passed on May 25, 2017 and this Court was not inclined to vacate the stay, counsel for Respondent no. 5 had stated that he wanted to withdraw from the auction and this was recorded in the order. Thereafter, the learned counsel for Respondent no. 5 mentioned the matter at the end of the list but at that time Mr. Sinha, learned senior counsel for the appellant was not present. It is for this reason, he mentioned the matter on June 06, 2017 and on that day following order was passed:"Shri Ajit Kumar Sinha, learned senior counsel has produced two orders dated 29th May, 2017 and stated that the second order was passed in his absence.There seems to be some error in the second order passed on 29th May, 2017. When the first order was passed learned counsel stated on instructions received from the applicant that he will withdraw from the auction. At that time, Mr. Ajit Kumar Sinha, learned senior counsel was present and did not raise any objection.On the same date, the matter was again mentioned by the learned counsel or the applicant and he had submitted that the applicant may also be permitted to withdraw the amount deposited by the applicant when he had submitted that bid.When the second order was passed Mr. Ajit Kumar Sinha was not present and his presence was wrongly marked. However, no request was made on behalf of the applicant that he may be permitted to take part in the auction. We therefore, clarify that the applicant has been permitted to withdraw from the auction and also to withdraw the amount which he had initially deposited with his bid, but was not permitted to take in the auction."11. In this order which was passed in the presence of counsel for Respondent no. 5, it is specifically clarified that the Respondent no. 5 had been permitted to withdraw from the auction and also to withdraw the amount which he had initially deposited with his bid. Generally, one has to go by the record and as per the order sheet reproduced above it is noted that Respondent no. 5 had been permitted to withdraw from the auction as well.12. Notwithstanding the above, we have examined the matter on merits as well and are of the opinion that the order of the High Court warrants to be interdicted. The valuation report has fixed the value at Rs. 13000 per MT as the price of the Met Coke which is exclusive of other charges and taxes etc. Therefore, the High Court is not correct in its observations that the amount was inclusive of other charges and taxes. May be some confusion is created by the public notice that was published for inviting bids as it does not categorically state as to whether the reserve price of Rs. 13000/- per MT was exclusive of or inclusive of the taxes. Fact remains that when as per the valuation report, the reserve price is fixed at Rs. 13000/- per MT without taxes etc., the offer of Rs. 14000/- per MT, after excluding the taxes would be well below Rs. 13000/- per MT. Calculations which are given by the appellant of charges and taxes payable, which is not refuted by Respondent no. 5, are as under:chart13. Therefore, it would be impermissible to accept the offer of Respondent no. 5 which turned out to be in the sum of Rs. 8895.15 paisa per MT.14. It is clear that value of Met Coke is much higher (which gets substantiated by the valuation report as well) and may be for this reason Siona Enterprises came forward with much higher offer, i.e., Rs. 14,500/- per MT exclusive of taxes. Though, High Court was right in rejecting that offer on technical grounds, this fact is emphasised to point out that the goods in question are capable of receiving much higher price. It would, therefore, be in the overall interest of the parties to have fresh auction.
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1[ds]10. Prima facie, we find that the submission of Mr. Sinha is correct. On May 29, 2017, when the matter was taken up for arguments on application filed by Respondent no. 5 for vacation of the stay, order was passed on May 25, 2017 and this Court was not inclined to vacate the stay, counsel for Respondent no. 5 had stated that he wanted to withdraw from the auction and this was recorded in the order. Thereafter, the learned counsel for Respondent no. 5 mentioned the matter at the end of the list but at that time Mr. Sinha, learned senior counsel for the appellant was not present.In this order which was passed in the presence of counsel for Respondent no. 5, it is specifically clarified that the Respondent no. 5 had been permitted to withdraw from the auction and also to withdraw the amount which he had initially deposited with his bid. Generally, one has to go by the record and as per the order sheet reproduced above it is noted that Respondent no. 5 had been permitted to withdraw from the auction as well.12. Notwithstanding the above, we have examined the matter on merits as well and are of the opinion that the order of the High Court warrants to be interdicted. The valuation report has fixed the value at Rs. 13000 per MT as the price of the Met Coke which is exclusive of other charges and taxes etc. Therefore, the High Court is not correct in its observations that the amount was inclusive of other charges and taxes. May be some confusion is created by the public notice that was published for inviting bids as it does not categorically state as to whether the reserve price of Rs. 13000/per MT was exclusive of or inclusive of the taxes. Fact remains that when as per the valuation report, the reserve price is fixed at Rs. 13000/per MT without taxes etc., the offer of Rs. 14000/per MT, after excluding the taxes would be well below Rs. 13000/. Therefore, it would be impermissible to accept the offer of Respondent no. 5 which turned out to be in the sum of Rs. 8895.15 paisa per MT.14. It is clear that value of Met Coke is much higher (which gets substantiated by the valuation report as well) and may be for this reason Siona Enterprises came forward with much higher offer, i.e., Rs. 14,500/per MT exclusive of taxes. Though, High Court was right in rejecting that offer on technical grounds, this fact is emphasised to point out that the goods in question are capable of receiving much higher price. It would, therefore, be in the overall interest of the parties to have fresh auction.
| 1 | 3,061 |
### Instruction:
Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
### Input:
only stated that if an opportunity is given to Siona Enterprise it would be in a position to offer Rs. 14500/- per MT. Again without depositing 10% of the offer value, only a statement was made that the intending bidder was willing to deposit that amount immediately with Special Officer. It was contended that such an offer was no offer in the eyes of law.9. Insofar as dispute about the withdrawal of bid by Respondent no. 5 in the form of statement given by its counsel in the Court on May 29, 2017 is concerned, Mr. Shyam Diwan argued that the statement by the counsel for Respondent no. 5 was made in mistaken belief as the respondent no. 5 only wanted to withdraw the amount. He submitted that since the bid of Respondent no. 5 was for a total sum of Rs. 14,00,00,000/- (Rs. 14 crores only) and 1,40,00,000/- (one crore forty lakhs only) thereof was deposited as EMD (10% of the bid amount) after the acceptance of a bid by the High Court. Respondent no. 5 had also deposited the balance amount of Rs. 12,60,00,000/- (twelve crores and sixty lakhs only). Intention was to withdraw said amount of Rs. 12.60 crores only since this Court had granted stay of the order of the High Court on May 25, 2017. In fact, only this amount was withdrawn thereafter leaving Rs. 1,40,00,000/- (one crore forty lakhs only) still in deposit as EMD amount. This was a bona fide statement made to withdraw the said amount as Respondent no. 5 did not want to block the said money till the settlement of dispute and he had all intention to give back the said money in case order of the High Court is sustained. Therefore, there was no intention to withdraw from the bid itself.10. Prima facie, we find that the submission of Mr. Sinha is correct. On May 29, 2017, when the matter was taken up for arguments on application filed by Respondent no. 5 for vacation of the stay, order was passed on May 25, 2017 and this Court was not inclined to vacate the stay, counsel for Respondent no. 5 had stated that he wanted to withdraw from the auction and this was recorded in the order. Thereafter, the learned counsel for Respondent no. 5 mentioned the matter at the end of the list but at that time Mr. Sinha, learned senior counsel for the appellant was not present. It is for this reason, he mentioned the matter on June 06, 2017 and on that day following order was passed:"Shri Ajit Kumar Sinha, learned senior counsel has produced two orders dated 29th May, 2017 and stated that the second order was passed in his absence.There seems to be some error in the second order passed on 29th May, 2017. When the first order was passed learned counsel stated on instructions received from the applicant that he will withdraw from the auction. At that time, Mr. Ajit Kumar Sinha, learned senior counsel was present and did not raise any objection.On the same date, the matter was again mentioned by the learned counsel or the applicant and he had submitted that the applicant may also be permitted to withdraw the amount deposited by the applicant when he had submitted that bid.When the second order was passed Mr. Ajit Kumar Sinha was not present and his presence was wrongly marked. However, no request was made on behalf of the applicant that he may be permitted to take part in the auction. We therefore, clarify that the applicant has been permitted to withdraw from the auction and also to withdraw the amount which he had initially deposited with his bid, but was not permitted to take in the auction."11. In this order which was passed in the presence of counsel for Respondent no. 5, it is specifically clarified that the Respondent no. 5 had been permitted to withdraw from the auction and also to withdraw the amount which he had initially deposited with his bid. Generally, one has to go by the record and as per the order sheet reproduced above it is noted that Respondent no. 5 had been permitted to withdraw from the auction as well.12. Notwithstanding the above, we have examined the matter on merits as well and are of the opinion that the order of the High Court warrants to be interdicted. The valuation report has fixed the value at Rs. 13000 per MT as the price of the Met Coke which is exclusive of other charges and taxes etc. Therefore, the High Court is not correct in its observations that the amount was inclusive of other charges and taxes. May be some confusion is created by the public notice that was published for inviting bids as it does not categorically state as to whether the reserve price of Rs. 13000/- per MT was exclusive of or inclusive of the taxes. Fact remains that when as per the valuation report, the reserve price is fixed at Rs. 13000/- per MT without taxes etc., the offer of Rs. 14000/- per MT, after excluding the taxes would be well below Rs. 13000/- per MT. Calculations which are given by the appellant of charges and taxes payable, which is not refuted by Respondent no. 5, are as under:chart13. Therefore, it would be impermissible to accept the offer of Respondent no. 5 which turned out to be in the sum of Rs. 8895.15 paisa per MT.14. It is clear that value of Met Coke is much higher (which gets substantiated by the valuation report as well) and may be for this reason Siona Enterprises came forward with much higher offer, i.e., Rs. 14,500/- per MT exclusive of taxes. Though, High Court was right in rejecting that offer on technical grounds, this fact is emphasised to point out that the goods in question are capable of receiving much higher price. It would, therefore, be in the overall interest of the parties to have fresh auction.
### Response:
1
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630 |
State Of Madhya Pradesh And Another Vs. Col. Lal Rampal Singh
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Sarkar, J.1. This is the third case in the series and it arises out of a petition for a writ of certiorari moyed in the High Court of Madhya Pradesh to quash certain orders reducing the pension granted to the respondent Col. Lal Rampal Singh by an order of the Ruler of Rewa before that State had merged in the United States of Vindhya Pradesh. The High Court of Madhya Pradesh took the same view as in the Nagod case (Civil Appeal No. 738 of 1963: (AIR 1966 SC 704 ) in which judgment has been delivered earlier in the day. The subsequent fortunes of the United States have been described in that judgment. Here also the question is whether the order of the Ruler of Rewa was law.2. The respondent held various offices in the Government of Rawa. By an order made on April 3, 1948 and published in an extraordinary issue of the Rewa Raj Gazette the Ruler stated that "Col. Lal Rampal Singh entered State service on 21st November 1922 and he is now anxious to retire.I find that he has put in a service of more than 25 years up to date, and, as such, he is allowed to retire on a full pension of Rs. 350 per month of his last grade, as a special case with effect from the date of this order, and the so-called breaks in his service, if there be any, are hereby condoned."3. The respondent in his petition stated that in Rewa the Ruler had made a set of rules which was called "Rewa State Pension and Gratuity Rules" for grant of pension to Rewa State Civil Servants. He, however, added that the Ruler was not bound by those Rules as he was a sovereign Ruler. It seems to us quite clear from the terms of the order that the Ruler purported to act under the Rewa State Rules. This appears from the reference in the order to "full pension", condemnation of the "breaks in his service" and "special case". This also appears from the fact that the order granted the respondent certain advance which could only have been done to justify the full pension of Rs. 350 per month under the Rules. Obviously, under the rules the respondent would have been entitled to a smaller pension in view of the breaks and if the increments had not been granted. The Ruler was not, therefore, acting in the exercise of his sovereign power and in disregard of the Rules; on the contrary, he was purporting to act in terms of the Rules. That being so, it has to be held that the Order of April 3, 1948 is not a law but an executive order passed in terms of the Rules. It is open to the succeeding Government to set aside that order by another executive order. What appropriate order can be passed by the Government of India is not a question that arises at the present moment. The respondents rights under the Rewa State Rules, accepting it as a law binding on the Indian Union, are not in the least affected. He is, however, not entitled to any rights except those which the Rules justify. The first contention of the respondent, therefore, that the order of April 3, 1948 is a law which can only be altered by another law duly passed by the Union or other competent legislature must fail.4. Another point raised was that if the order was not a law, it was a grant and that as the Indian Union had paid the respondent in terms of the order up to March 27, 1953, it must be deemed to have accepted that grant and it cannot now deprive the respondent of his right of property under the grant. It seems to us that this contention is ill-founded. What the Ruler did by his order of April 3, 1948 does not appear to have been to make a grant but to have passed an order purporting to act under the Rules. If that order was not justified by the Rules, it was illegal and is liable to be set aside by another order duly made under them. Pension is furthermore normally always a matter of grace when there is no law governing. It is implicit in the grant of a pension that it may be subsequently reviewed. Therefore, the grant of the pension-assuming that to be the correct view to take - must always have been subject to alteration. The succeeding State was hence competent to review the order even if it had paid the pension for sometime in terms of it.5.
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1[ds]It seems to us quite clear from the terms of the order that the Ruler purported to act under the Rewa State Rules. This appears from the reference in the order to "full pension", condemnation of the "breaks in his service" and "special case". This also appears from the fact that the order granted the respondent certain advance which could only have been done to justify the full pension of Rs. 350 per month under the Rules. Obviously, under the rules the respondent would have been entitled to a smaller pension in view of the breaks and if the increments had not been granted. The Ruler was not, therefore, acting in the exercise of his sovereign power and in disregard of the Rules; on the contrary, he was purporting to act in terms of the Rules. That being so, it has to be held that the Order of April 3, 1948 is not a law but an executive order passed in terms of the Rules. It is open to the succeeding Government to set aside that order by another executive order. What appropriate order can be passed by the Government of India is not a question that arises at the present moment. The respondents rights under the Rewa State Rules, accepting it as a law binding on the Indian Union, are not in the least affected. He is, however, not entitled to any rights except those which the Rules justify. The first contention of the respondent, therefore, that the order of April 3, 1948 is a law which can only be altered by another law duly passed by the Union or other competent legislature mustseems to us that this contention is ill-founded. What the Ruler did by his order of April 3, 1948 does not appear to have been to make a grant but to have passed an order purporting to act under the Rules. If that order was not justified by the Rules, it was illegal and is liable to be set aside by another order duly made under them. Pension is furthermore normally always a matter of grace when there is no law governing. It is implicit in the grant of a pension that it may be subsequently reviewed. Therefore, the grant of the pension-assuming that to be the correct view to take - must always have been subject to alteration. The succeeding State was hence competent to review the order even if it had paid the pension for sometime in terms of it.
| 1 | 853 |
### Instruction:
Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
### Input:
Sarkar, J.1. This is the third case in the series and it arises out of a petition for a writ of certiorari moyed in the High Court of Madhya Pradesh to quash certain orders reducing the pension granted to the respondent Col. Lal Rampal Singh by an order of the Ruler of Rewa before that State had merged in the United States of Vindhya Pradesh. The High Court of Madhya Pradesh took the same view as in the Nagod case (Civil Appeal No. 738 of 1963: (AIR 1966 SC 704 ) in which judgment has been delivered earlier in the day. The subsequent fortunes of the United States have been described in that judgment. Here also the question is whether the order of the Ruler of Rewa was law.2. The respondent held various offices in the Government of Rawa. By an order made on April 3, 1948 and published in an extraordinary issue of the Rewa Raj Gazette the Ruler stated that "Col. Lal Rampal Singh entered State service on 21st November 1922 and he is now anxious to retire.I find that he has put in a service of more than 25 years up to date, and, as such, he is allowed to retire on a full pension of Rs. 350 per month of his last grade, as a special case with effect from the date of this order, and the so-called breaks in his service, if there be any, are hereby condoned."3. The respondent in his petition stated that in Rewa the Ruler had made a set of rules which was called "Rewa State Pension and Gratuity Rules" for grant of pension to Rewa State Civil Servants. He, however, added that the Ruler was not bound by those Rules as he was a sovereign Ruler. It seems to us quite clear from the terms of the order that the Ruler purported to act under the Rewa State Rules. This appears from the reference in the order to "full pension", condemnation of the "breaks in his service" and "special case". This also appears from the fact that the order granted the respondent certain advance which could only have been done to justify the full pension of Rs. 350 per month under the Rules. Obviously, under the rules the respondent would have been entitled to a smaller pension in view of the breaks and if the increments had not been granted. The Ruler was not, therefore, acting in the exercise of his sovereign power and in disregard of the Rules; on the contrary, he was purporting to act in terms of the Rules. That being so, it has to be held that the Order of April 3, 1948 is not a law but an executive order passed in terms of the Rules. It is open to the succeeding Government to set aside that order by another executive order. What appropriate order can be passed by the Government of India is not a question that arises at the present moment. The respondents rights under the Rewa State Rules, accepting it as a law binding on the Indian Union, are not in the least affected. He is, however, not entitled to any rights except those which the Rules justify. The first contention of the respondent, therefore, that the order of April 3, 1948 is a law which can only be altered by another law duly passed by the Union or other competent legislature must fail.4. Another point raised was that if the order was not a law, it was a grant and that as the Indian Union had paid the respondent in terms of the order up to March 27, 1953, it must be deemed to have accepted that grant and it cannot now deprive the respondent of his right of property under the grant. It seems to us that this contention is ill-founded. What the Ruler did by his order of April 3, 1948 does not appear to have been to make a grant but to have passed an order purporting to act under the Rules. If that order was not justified by the Rules, it was illegal and is liable to be set aside by another order duly made under them. Pension is furthermore normally always a matter of grace when there is no law governing. It is implicit in the grant of a pension that it may be subsequently reviewed. Therefore, the grant of the pension-assuming that to be the correct view to take - must always have been subject to alteration. The succeeding State was hence competent to review the order even if it had paid the pension for sometime in terms of it.5.
### Response:
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631 |
Oberoi Hotel P.Ltd Vs. The Commissioner Of Income Tax
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of an office or agency is regarded as capital receipt, but this rule is subject to an exception that payment received even for termination of agency agreement would be revenue and not capital in the case where the agency was one of many which the assessee held and its termination did not impair the profit making structure of the assessee, but was within the framework of the business, it being a necessary incident of the business that existing agencies may be terminated and fresh agencies may be taken. Thereafter the Court held that it was difficult to lay down a precise principle of universal application but various workable rules have been evolved for guidance. 6. Applying the aforesaid test laid down by this Court in the present case in our view the Tribunal was right in arriving at a conclusion that it was a capital receipt. Reason is that as provided in Article XVIII of the First Agreement assessee was having an option or right or lien, if owner desired to transfer the hotel or lease or part of the hotel to any other person, the same was required to be offered first to the assessee (operator) or its nominee. This right to exercise its option was given up by a Supplementary Agreement which was executed in September, 1975 between the Receiver and assessee. It was agreed that Receiver would be at liberty to sell or otherwise dispose of the said property at such price and on such terms as he may deem fit and was not under any obligation requiring the purchaser thereof to enter into any agreement with the operator (assessee) for the purpose of operating and managing the hotel or otherwise and in its return, agreed consideration was as stated above in clause X. On the basis of the said agreement the assessee has received the amount in question. The amount was received because the assessee had given up its right to purchase and or to operate the property. Further it is loss of source of income to the assessee and that right is determined for consideration. Obviously therefore, it is a capital receipt and not a revenue receipt.7. Learned counsel for the Revenue relied upon the decision in the case of Commissioner of Income Tax v. Rai Bahadur Jairam Valji and others, 35 ITR 148 and submitted that assessee had the business of running the hotels in various countries and the amount which is received by him is for the termination of first contract which was executed in 1970 and, therefore, it should be considered his revenue receipt. In that case the Court was dealing with a trading contract and held that compensation paid in respect of the rights arising under the trading contract would be a revenue receipt and must be referred to the profits which would be made in carrying out of that contract. The Court has also observed : "Whether a payment of compensation or termination of an agency is a capital or revenue receipt, it would have to be considered whether the agency was in the nature of capital asset in the hands of the assessee, or whether it was only part of his stock-in-trade." 8. The aforesaid judgment was considered in the case of Kettlewell Bullen and Co. Ltd. v. Commissioner of Income Tax, Calcutta, 1964(53) ITR 261 wherein the Court has held as under : "Whether a particular receipt is capital or income from business, has frequently engaged the attention of the courts. It may be broadly stated that what is received for loss of capital is a capital receipt : what is received as profit in a trading transaction is taxable income. But the difficulty arises in ascertaining whether what is received in a given case is compensation for loss of a source of income, or profit in a trading transaction." After considering various decisions it was further held as under : "These cases illustrate the principle that compensation for injury to trading operations, arising from breach of contract or in consequence of exercise of sovereign rights, is revenue. These cases must, however, be distinguished from another class of cases where compensation is paid as a solatium for loss of office. Such compensation may be regarded as capital or revenue: it would be regarded as capital, if it is for loss of an asset of enduring value to the assessee, but not where payment is received in settlement of loss in a trading transaction." 9. After analysing number of cases, the Court observed that following satisfactory measure of consistency in the principle is disclosed :"Where on a consideration of the circumstances, payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business, nor deprive him of what in substance is his source of income, termination of the contract being a normal incident of the business, and such cancellation leave him from to carry on his trade (freed from the contract terminated) the receipt is revenue : Where by the cancellation of an agency the trading structure of the assessee is impaired, or such cancellation results in loss of what may be regarded as the source of the assessees income, the payment made to compensate for cancellation of the agency agreement is normally a capital receipt."10. The aforesaid principal is relied upon in the case of Karam Chand Thapar and Bros.s case (supra). Considering the aforesaid principals laid down as per Article XVIII of the Principal Agreement, the amount received by the assessee is for the consideration for giving up his right to purchase and or to operate the property or for getting it on lease before it is transferred or let out to other persons. It is not for settlement of rights under trading contract, but the injury is inflicted on the capital asset of the assessee and giving up the contractual right on the basis of Principal Agreement has resulted in loss of source of assessees income.
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1[ds]6. Applying the aforesaid test laid down by this Court in the present case in our view the Tribunal was right in arriving at a conclusion that it was a capital receipt. Reason is that as provided in Article XVIII of the First Agreement assessee was having an option or right or lien, if owner desired to transfer the hotel or lease or part of the hotel to any other person, the same was required to be offered first to the assessee (operator) or its nominee. This right to exercise its option was given up by a Supplementary Agreement which was executed in September, 1975 between the Receiver and assessee. It was agreed that Receiver would be at liberty to sell or otherwise dispose of the said property at such price and on such terms as he may deem fit and was not under any obligation requiring the purchaser thereof to enter into any agreement with the operator (assessee) for the purpose of operating and managing the hotel or otherwise and in its return, agreed consideration was as stated above in clause X. On the basis of the said agreement the assessee has received the amount in question. The amount was received because the assessee had given up its right to purchase and or to operate the property. Further it is loss of source of income to the assessee and that right is determined for consideration. Obviously therefore, it is a capital receipt and not a revenue receipt.After analysing number of cases, the Court observed that following satisfactory measure of consistency in the principle is disclosed :"Where on a consideration of the circumstances, payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business, nor deprive him of what in substance is his source of income, termination of the contract being a normal incident of the business, and such cancellation leave him from to carry on his trade (freed from the contract terminated) the receipt is revenue : Where by the cancellation of an agency the trading structure of the assessee is impaired, or such cancellation results in loss of what may be regarded as the source of the assessees income, the payment made to compensate for cancellation of the agency agreement is normally a capital receipt."10. The aforesaid principal is relied upon in the case of Karam Chand Thapar and Bros.s case (supra). Considering the aforesaid principals laid down as per Article XVIII of the Principal Agreement, the amount received by the assessee is for the consideration for giving up his right to purchase and or to operate the property or for getting it on lease before it is transferred or let out to other persons. It is not for settlement of rights under trading contract, but the injury is inflicted on the capital asset of the assessee and giving up the contractual right on the basis of Principal Agreement has resulted in loss of source of assessees income.Applying the aforesaid test laid down by this Court in the present case in our view the Tribunal was right in arriving at a conclusion that it was a capital receipt. Reason is that as provided in Article XVIII of the First Agreement assessee was having an option or right or lien, if owner desired to transfer the hotel or lease or part of the hotel to any other person, the same was required to be offered first to the assessee (operator) or its nominee. This right to exercise its option was given up by a Supplementary Agreement which was executed in September, 1975 between the Receiver and assessee. It was agreed that Receiver would be at liberty to sell or otherwise dispose of the said property at such price and on such terms as he may deem fit and was not under any obligation requiring the purchaser thereof to enter into any agreement with the operator (assessee) for the purpose of operating and managing the hotel or otherwise and in its return, agreed consideration was as stated above in clause X. On the basis of the said agreement the assessee has received the amount in question. The amount was received because the assessee had given up its right to purchase and or to operate the property. Further it is loss of source of income to the assessee and that right is determined for consideration. Obviously therefore, it is a capital receipt and not a revenue receipt.
| 1 | 2,167 |
### 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:
of an office or agency is regarded as capital receipt, but this rule is subject to an exception that payment received even for termination of agency agreement would be revenue and not capital in the case where the agency was one of many which the assessee held and its termination did not impair the profit making structure of the assessee, but was within the framework of the business, it being a necessary incident of the business that existing agencies may be terminated and fresh agencies may be taken. Thereafter the Court held that it was difficult to lay down a precise principle of universal application but various workable rules have been evolved for guidance. 6. Applying the aforesaid test laid down by this Court in the present case in our view the Tribunal was right in arriving at a conclusion that it was a capital receipt. Reason is that as provided in Article XVIII of the First Agreement assessee was having an option or right or lien, if owner desired to transfer the hotel or lease or part of the hotel to any other person, the same was required to be offered first to the assessee (operator) or its nominee. This right to exercise its option was given up by a Supplementary Agreement which was executed in September, 1975 between the Receiver and assessee. It was agreed that Receiver would be at liberty to sell or otherwise dispose of the said property at such price and on such terms as he may deem fit and was not under any obligation requiring the purchaser thereof to enter into any agreement with the operator (assessee) for the purpose of operating and managing the hotel or otherwise and in its return, agreed consideration was as stated above in clause X. On the basis of the said agreement the assessee has received the amount in question. The amount was received because the assessee had given up its right to purchase and or to operate the property. Further it is loss of source of income to the assessee and that right is determined for consideration. Obviously therefore, it is a capital receipt and not a revenue receipt.7. Learned counsel for the Revenue relied upon the decision in the case of Commissioner of Income Tax v. Rai Bahadur Jairam Valji and others, 35 ITR 148 and submitted that assessee had the business of running the hotels in various countries and the amount which is received by him is for the termination of first contract which was executed in 1970 and, therefore, it should be considered his revenue receipt. In that case the Court was dealing with a trading contract and held that compensation paid in respect of the rights arising under the trading contract would be a revenue receipt and must be referred to the profits which would be made in carrying out of that contract. The Court has also observed : "Whether a payment of compensation or termination of an agency is a capital or revenue receipt, it would have to be considered whether the agency was in the nature of capital asset in the hands of the assessee, or whether it was only part of his stock-in-trade." 8. The aforesaid judgment was considered in the case of Kettlewell Bullen and Co. Ltd. v. Commissioner of Income Tax, Calcutta, 1964(53) ITR 261 wherein the Court has held as under : "Whether a particular receipt is capital or income from business, has frequently engaged the attention of the courts. It may be broadly stated that what is received for loss of capital is a capital receipt : what is received as profit in a trading transaction is taxable income. But the difficulty arises in ascertaining whether what is received in a given case is compensation for loss of a source of income, or profit in a trading transaction." After considering various decisions it was further held as under : "These cases illustrate the principle that compensation for injury to trading operations, arising from breach of contract or in consequence of exercise of sovereign rights, is revenue. These cases must, however, be distinguished from another class of cases where compensation is paid as a solatium for loss of office. Such compensation may be regarded as capital or revenue: it would be regarded as capital, if it is for loss of an asset of enduring value to the assessee, but not where payment is received in settlement of loss in a trading transaction." 9. After analysing number of cases, the Court observed that following satisfactory measure of consistency in the principle is disclosed :"Where on a consideration of the circumstances, payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business, nor deprive him of what in substance is his source of income, termination of the contract being a normal incident of the business, and such cancellation leave him from to carry on his trade (freed from the contract terminated) the receipt is revenue : Where by the cancellation of an agency the trading structure of the assessee is impaired, or such cancellation results in loss of what may be regarded as the source of the assessees income, the payment made to compensate for cancellation of the agency agreement is normally a capital receipt."10. The aforesaid principal is relied upon in the case of Karam Chand Thapar and Bros.s case (supra). Considering the aforesaid principals laid down as per Article XVIII of the Principal Agreement, the amount received by the assessee is for the consideration for giving up his right to purchase and or to operate the property or for getting it on lease before it is transferred or let out to other persons. It is not for settlement of rights under trading contract, but the injury is inflicted on the capital asset of the assessee and giving up the contractual right on the basis of Principal Agreement has resulted in loss of source of assessees income.
### Response:
1
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632 |
Cit Vs. M/S Meghalaya Steels Ltd
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But, we are concerned in this case with the transport and interest subsidy which has a direct nexus with the manufacturing activity inasmuch as these subsidies go to reduce the cost of production. Therefore, the judgment in the case of Liberty India v. Commissioner of Income Tax has no manner of application. The Supreme Court in the case of Sahney Steel and Press Works Ltd. & Others versus Commissioner of Income Tax, reported in [1997] 228 ITR at page 257 expressed the following views:- ?…. Similarly, subsidy on power was confined to ‘power consumed for production?. In other words, if power is consumed for any other purpose like setting up the plant and machinery, the incentives will not be given. Refund of sales tax will also be in respect of taxes levied after commencement of production and up to a period of five years from the date of commencement of production. It is difficult to hold these subsidies as anything but operation subsidies. These subsidies were given to encourage setting up of industries in the State of Andhra Pradesh by making the business of production and sale of goods in the State more profitable.? 23. We are of the view that the judgment in Merino Ply & Chemicals Ltd. and the recent judgment of the Calcutta High Court have correctly appreciated the legal position. 24. We do not find it necessary to refer in detail to any of the other judgments that have been placed before us. The judgment in Jai Bhagwan case (supra) is helpful on the nature of a transport subsidy scheme, which is described as under: ?The object of the Transport Subsidy Scheme is not augmentation of revenue, by levy and collection of tax or duty. The object of the Scheme is to improve trade and commerce between the remote parts of the country with other parts, so as to bring about economic development of remote backward regions. This was sought to be achieved by the Scheme, by making it feasible and attractive to industrial entrepreneurs to start and run industries in remote parts, by giving them a level playing field so that they could compete with their counterparts in central (non-remote) areas.The huge transportation cost for getting the raw materials to the industrial unit and finished goods to the existing market outside the state, was making it unviable for industries in remote parts of the country to compete with industries in central areas. Therefore, industrial units in remote areas were extended the benefit of subsidized transportation. For industrial units in Assam and other northeastern States, the benefit was given in the form of a subsidy in respect of a percentage of the cost of transportation between a point in central area (Siliguri in West Bengal) and the actual location of the industrial unit in the remote area, so that the industry could become competitive and economically viable.? (Paras 14 and 15) 25. The decision in Sahney Steel and Press Works Ltd. v. Commissioner of Income Tax, A.P. - I, Hyderabad (1997) 7 SCC 764 , dealt with subsidy received from the State Government in the form of refund of sales tax paid on raw materials, machinery, and finished goods; subsidy on power consumed by the industry; and exemption from water rate. It was held that such subsidies were treated as assistance given for the purpose of carrying on the business of the assessee. 26. We do not find it necessary to further encumber this judgment with the judgments which Shri Ganesh cited on the netting principle. We find it unnecessary to further substantiate the reasoning in our judgment based on the said principle. 27. A Delhi High Court judgment was also cited before us being CIT v. Dharampal Premchand Ltd., 317 ITR 353 from which an SLP preferred in the Supreme Court was dismissed. This judgment also concerned itself with Section 80-IB of the Act, in which it was held that refund of excise duty should not be excluded in arriving at the profit derived from business for the purpose of claiming deduction under Section 80-IB of the Act. 28. It only remains to consider one further argument by Shri Radhakrishnan. He has argued that as the subsidies that are received by the respondent, would be income from other sources referable to Section 56 of the Income Tax Act, any deduction that is to be made, can only be made from income from other sources and not from profits and gains of business, which is a separate and distinct head as recognised by Section 14 of the Income Tax Act. Shri Radhakrishnan is not correct in his submission that assistance by way of subsidies which are reimbursed on the incurring of costs relatable to a business, are under the head ?income from other sources?, which is a residuary head of income that can be availed only if income does not fall under any of the other four heads of income. Section 28(iii)(b) specifically states that income from cash assistance, by whatever name called, received or receivable by any person against exports under any scheme of the Government of India, will be income chargeable to income tax under the head ?profits and gains of business or profession?. If cash assistance received or receivable against exports schemes are included as being income under the head ?profits and gains of business or profession?, it is obvious that subsidies which go to reimbursement of cost in the production of goods of a particular business would also have to be included under the head ?profits and gains of business or profession?, and not under the head ?income from other sources?.29. For the reasons given by us, we are of the view that the Gauhati, Calcutta and Delhi High Courts have correctly construed Sections 80-IB and 80-IC. The Himachal Pradesh High Court, having wrongly interpreted the judgments in Sterling Foods and Liberty India to arrive at the opposite conclusion, is held to be wrongly decided for the reasons given by us hereinabove.
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0[ds]10. There is no dispute between the parties that the businesses referred to in Section 80-IB are businesses which are eligible businesses under both the aforesaid Sections. The parties have only locked horns on the meaning of the expression ?any profits and gains derived from any business?.We are of the view that the judgment in Merino Ply & Chemicals Ltd. and the recent judgment of the Calcutta High Court have correctly appreciated the legaljudgment in Jai Bhagwan case (supra) is helpful on the nature of a transport subsidy scheme, which is described asobject of the Transport Subsidy Scheme is not augmentation of revenue, by levy and collection of tax or duty. The object of the Scheme is to improve trade and commerce between the remote parts of the country with other parts, so as to bring about economic development of remote backward regions. This was sought to be achieved by the Scheme, by making it feasible and attractive to industrial entrepreneurs to start and run industries in remote parts, by giving them a level playing field so that they could compete with their counterparts in central (non-remote) areas.The huge transportation cost for getting the raw materials to the industrial unit and finished goods to the existing market outside the state, was making it unviable for industries in remote parts of the country to compete with industries in central areas. Therefore, industrial units in remote areas were extended the benefit of subsidized transportation. For industrial units in Assam and other northeastern States, the benefit was given in the form of a subsidy in respect of a percentage of the cost of transportation between a point in central area (Siliguri in West Bengal) and the actual location of the industrial unit in the remote area, so that the industry could become competitive and economically viable.? (Paras 14 andThe decision in Sahney Steel and Press Works Ltd. v. Commissioner of Income Tax, A.P. - I, Hyderabad (1997) 7 SCC 764 , dealt with subsidy received from the State Government in the form of refund of sales tax paid on raw materials, machinery, and finished goods; subsidy on power consumed by the industry; and exemption from water rate. It was held that such subsidies were treated as assistance given for the purpose of carrying on the business of the assessee.A Delhi High Court judgment was also cited before us being CIT v. Dharampal Premchand Ltd., 317 ITR 353 from which an SLP preferred in the Supreme Court was dismissed. This judgment also concerned itself with Section 80-IB of the Act, in which it was held that refund of excise duty should not be excluded in arriving at the profit derived from business for the purpose of claiming deduction under Section 80-IB of theRadhakrishnan is not correct in his submission that assistance by way of subsidies which are reimbursed on the incurring of costs relatable to a business, are under the head ?income from other sources?, which is a residuary head of income that can be availed only if income does not fall under any of the other four heads of income. Section 28(iii)(b) specifically states that income from cash assistance, by whatever name called, received or receivable by any person against exports under any scheme of the Government of India, will be income chargeable to income tax under the head ?profits and gains of business or profession?. If cash assistance received or receivable against exports schemes are included as being income under the head ?profits and gains of business or profession?, it is obvious that subsidies which go to reimbursement of cost in the production of goods of a particular business would also have to be included under the head ?profits and gains of business or profession?, and not under the head ?income from other sources?.29. For the reasons given by us, we are of the view that the Gauhati, Calcutta and Delhi High Courts have correctly construed Sections 80-IB and 80-IC. The Himachal Pradesh High Court, having wrongly interpreted the judgments in Sterling Foods and Liberty India to arrive at the opposite conclusion, is held to be wrongly decided for the reasons given by us
| 0 | 7,412 |
### Instruction:
Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
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But, we are concerned in this case with the transport and interest subsidy which has a direct nexus with the manufacturing activity inasmuch as these subsidies go to reduce the cost of production. Therefore, the judgment in the case of Liberty India v. Commissioner of Income Tax has no manner of application. The Supreme Court in the case of Sahney Steel and Press Works Ltd. & Others versus Commissioner of Income Tax, reported in [1997] 228 ITR at page 257 expressed the following views:- ?…. Similarly, subsidy on power was confined to ‘power consumed for production?. In other words, if power is consumed for any other purpose like setting up the plant and machinery, the incentives will not be given. Refund of sales tax will also be in respect of taxes levied after commencement of production and up to a period of five years from the date of commencement of production. It is difficult to hold these subsidies as anything but operation subsidies. These subsidies were given to encourage setting up of industries in the State of Andhra Pradesh by making the business of production and sale of goods in the State more profitable.? 23. We are of the view that the judgment in Merino Ply & Chemicals Ltd. and the recent judgment of the Calcutta High Court have correctly appreciated the legal position. 24. We do not find it necessary to refer in detail to any of the other judgments that have been placed before us. The judgment in Jai Bhagwan case (supra) is helpful on the nature of a transport subsidy scheme, which is described as under: ?The object of the Transport Subsidy Scheme is not augmentation of revenue, by levy and collection of tax or duty. The object of the Scheme is to improve trade and commerce between the remote parts of the country with other parts, so as to bring about economic development of remote backward regions. This was sought to be achieved by the Scheme, by making it feasible and attractive to industrial entrepreneurs to start and run industries in remote parts, by giving them a level playing field so that they could compete with their counterparts in central (non-remote) areas.The huge transportation cost for getting the raw materials to the industrial unit and finished goods to the existing market outside the state, was making it unviable for industries in remote parts of the country to compete with industries in central areas. Therefore, industrial units in remote areas were extended the benefit of subsidized transportation. For industrial units in Assam and other northeastern States, the benefit was given in the form of a subsidy in respect of a percentage of the cost of transportation between a point in central area (Siliguri in West Bengal) and the actual location of the industrial unit in the remote area, so that the industry could become competitive and economically viable.? (Paras 14 and 15) 25. The decision in Sahney Steel and Press Works Ltd. v. Commissioner of Income Tax, A.P. - I, Hyderabad (1997) 7 SCC 764 , dealt with subsidy received from the State Government in the form of refund of sales tax paid on raw materials, machinery, and finished goods; subsidy on power consumed by the industry; and exemption from water rate. It was held that such subsidies were treated as assistance given for the purpose of carrying on the business of the assessee. 26. We do not find it necessary to further encumber this judgment with the judgments which Shri Ganesh cited on the netting principle. We find it unnecessary to further substantiate the reasoning in our judgment based on the said principle. 27. A Delhi High Court judgment was also cited before us being CIT v. Dharampal Premchand Ltd., 317 ITR 353 from which an SLP preferred in the Supreme Court was dismissed. This judgment also concerned itself with Section 80-IB of the Act, in which it was held that refund of excise duty should not be excluded in arriving at the profit derived from business for the purpose of claiming deduction under Section 80-IB of the Act. 28. It only remains to consider one further argument by Shri Radhakrishnan. He has argued that as the subsidies that are received by the respondent, would be income from other sources referable to Section 56 of the Income Tax Act, any deduction that is to be made, can only be made from income from other sources and not from profits and gains of business, which is a separate and distinct head as recognised by Section 14 of the Income Tax Act. Shri Radhakrishnan is not correct in his submission that assistance by way of subsidies which are reimbursed on the incurring of costs relatable to a business, are under the head ?income from other sources?, which is a residuary head of income that can be availed only if income does not fall under any of the other four heads of income. Section 28(iii)(b) specifically states that income from cash assistance, by whatever name called, received or receivable by any person against exports under any scheme of the Government of India, will be income chargeable to income tax under the head ?profits and gains of business or profession?. If cash assistance received or receivable against exports schemes are included as being income under the head ?profits and gains of business or profession?, it is obvious that subsidies which go to reimbursement of cost in the production of goods of a particular business would also have to be included under the head ?profits and gains of business or profession?, and not under the head ?income from other sources?.29. For the reasons given by us, we are of the view that the Gauhati, Calcutta and Delhi High Courts have correctly construed Sections 80-IB and 80-IC. The Himachal Pradesh High Court, having wrongly interpreted the judgments in Sterling Foods and Liberty India to arrive at the opposite conclusion, is held to be wrongly decided for the reasons given by us hereinabove.
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REJI THOMAS Vs. THE STATE OF KERALA STATE OF KERALA AND ORS. REPRESENTED BY THE SECRETARY TO GOVERNMENT
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could be gone into. It is pointed out that a dispute arising in connection with the election should be raised within one month from the date of election as per the Act. But we notice that the election to the Managing Committee of the bank was held subject to the result of the writ petitions only by virtue of the interim order. Therefore it is clarified that any dispute raised in connection with the election to the Managing Committee of the bank within one month from today shall be dealt with as per law. What exactly should be the arrangement in the meanwhile is the further question since more than three months have elapsed since the conduct of election. The Supreme Court has permitted the Managing Committee to perform the day-to-day work on provisional basis without taking any policy decision. We make it clear that the status quo as ordered by the Supreme Court in its judgment dated 05.12.2016 shall hold the field till the culmination of the dispute.?Contextually, it is also significant to note that even in the interim order dated 01.11.2016, the Court had taken the view that certain disputes regarding the eligibility, infractions, if any, of Sections 16A and 19A of the Act etc. are all subject matter of the Statutory dispute under Section 69 of the Act.7. It may be noted that the election had already been conducted on 05.11.2016. Under Section 69(3) of the Act,?No dispute arising in connection with the election of the Board of Management or an officer of the society shall be entertained by the Cooperative Arbitration Court unless it is referred to it within one month from the date of the election.?8. The Division Bench, however, was of the view that since the writ petitioners had approached the High Court prior to the election and since by way of an interim order, the election was permitted to be conducted as scheduled making it subject to the result of the writ petitions and also Section 69 of the Act, it is only appropriate that while relegating the parties to the Arbitration Court trying the election dispute, a further period of thirty days be granted.9. Whether, in view of the statutory period prescribed under Section 69(3), the High Court could have extended the period, is the question.10. Article 243ZK of the Constitution of India, which provides for Election of Members to the Managing Committee of a Cooperative Society, reads as follows :-?(1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the office of members of the outgoing board. (2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co-operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law: Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections.?11. Section 69 of the Act is the mechanism provided by the State Legislature as contemplated under Article 243 ZK (2) of the Constitution of India. Once the mechanism provided under the Statute provides for a time schedule for preferring an election petition, in the absence of a provision in the Statute for enlarging the time under any given circumstances, no court, whether the High Court under Article 226 or this Court under Article 32, 136 or 142 of the Constitution can extend the period in election matters. In the matter of limitation in election cases, the Court has to adopt strict interpretation of the provisions. This Court in Smita Subhash Sawant Vs. Jagdeeshwari Jagdish Amin & Ors. reported in (2015) 12 SCC 169 , though in a different context, has held at paragraph 33 that?In the absence of any provision made in the Act for condoning the delay in filing the election petition, the Chief Judge had no power to condone the delay in filing the election petition beyond the period of limitation prescribed in law?12. In Union of India & Anr. vs. Kirloskar Pneumatic Co. Ltd. reported in (1996) 4 SCC 453 , at paragraph 10, this Court has held as under :-?.......The power conferred by Articles 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creature of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. Maybe the High Court or a civil court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a civil court. No such delegation or conferment can ever be conceived.?13. It has also to be noted that while passing the interim order dated 01.11.2016, the High Court had specifically noted that the same was subject to the writ petitions and also Section 69 of the Act.14. In the above circumstances, we are of the view that the matters need to be considered afresh by the High Court since the Court could not have relegated the parties to the alternative remedy under the Statute by enlarging the time for preferring the election dispute. Accordingly, the impugned Judgment to that extent is set aside. The writ petitions are remitted to the High Court for fresh consideration. It will be open to the parties to raise all available contentions before the High Court. We request the High Court to dispose of the writ petitions expeditiously.
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1[ds]10. Article 243ZK of the Constitution of India, which provides for Election of Members to the Managing Committee of a Cooperative Society, reads as followsNotwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the office of members of the outgoing board. (2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to asociety shall vest in such an authority or body, as may be provided by the Legislature of a State, by law: Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections.Section 69 of the Act is the mechanism provided by the State Legislature as contemplated under Article 243 ZK (2) of the Constitution of India. Once the mechanism provided under the Statute provides for a time schedule for preferring an election petition, in the absence of a provision in the Statute for enlarging the time under any given circumstances, no court, whether the High Court under Article 226 or this Court under Article 32, 136 or 142 of the Constitution can extend the period in election matters. In the matter of limitation in election cases, the Court has to adopt strict interpretation of the provisions. This Court in Smita Subhash Sawant Vs. Jagdeeshwari Jagdish Amin & Ors. reported in (2015) 12 SCC 169 , though in a different context, has held at paragraph 33In Union of India & Anr. vs. Kirloskar Pneumatic Co. Ltd. reported in (1996) 4 SCC 453 , at paragraph 10, this Court has held as underpower conferred by Articles 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creature of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. Maybe the High Court or a civil court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a civil court. No such delegation or conferment can ever be conceived.It has also to be noted that while passing the interim order dated 01.11.2016, the High Court had specifically noted that the same was subject to the writ petitions and also Section 69 of the Act.14. In the above circumstances, we are of the view that the matters need to be considered afresh by the High Court since the Court could not have relegated the parties to the alternative remedy under the Statute by enlarging the time for preferring the election dispute. Accordingly, the impugned Judgment to that extent is set aside. The writ petitions are remitted to the High Court for fresh consideration. It will be open to the parties to raise all available contentions before the High Court. We request the High Court to dispose of the writ petitions expeditiously.
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could be gone into. It is pointed out that a dispute arising in connection with the election should be raised within one month from the date of election as per the Act. But we notice that the election to the Managing Committee of the bank was held subject to the result of the writ petitions only by virtue of the interim order. Therefore it is clarified that any dispute raised in connection with the election to the Managing Committee of the bank within one month from today shall be dealt with as per law. What exactly should be the arrangement in the meanwhile is the further question since more than three months have elapsed since the conduct of election. The Supreme Court has permitted the Managing Committee to perform the day-to-day work on provisional basis without taking any policy decision. We make it clear that the status quo as ordered by the Supreme Court in its judgment dated 05.12.2016 shall hold the field till the culmination of the dispute.?Contextually, it is also significant to note that even in the interim order dated 01.11.2016, the Court had taken the view that certain disputes regarding the eligibility, infractions, if any, of Sections 16A and 19A of the Act etc. are all subject matter of the Statutory dispute under Section 69 of the Act.7. It may be noted that the election had already been conducted on 05.11.2016. Under Section 69(3) of the Act,?No dispute arising in connection with the election of the Board of Management or an officer of the society shall be entertained by the Cooperative Arbitration Court unless it is referred to it within one month from the date of the election.?8. The Division Bench, however, was of the view that since the writ petitioners had approached the High Court prior to the election and since by way of an interim order, the election was permitted to be conducted as scheduled making it subject to the result of the writ petitions and also Section 69 of the Act, it is only appropriate that while relegating the parties to the Arbitration Court trying the election dispute, a further period of thirty days be granted.9. Whether, in view of the statutory period prescribed under Section 69(3), the High Court could have extended the period, is the question.10. Article 243ZK of the Constitution of India, which provides for Election of Members to the Managing Committee of a Cooperative Society, reads as follows :-?(1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the office of members of the outgoing board. (2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co-operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law: Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections.?11. Section 69 of the Act is the mechanism provided by the State Legislature as contemplated under Article 243 ZK (2) of the Constitution of India. Once the mechanism provided under the Statute provides for a time schedule for preferring an election petition, in the absence of a provision in the Statute for enlarging the time under any given circumstances, no court, whether the High Court under Article 226 or this Court under Article 32, 136 or 142 of the Constitution can extend the period in election matters. In the matter of limitation in election cases, the Court has to adopt strict interpretation of the provisions. This Court in Smita Subhash Sawant Vs. Jagdeeshwari Jagdish Amin & Ors. reported in (2015) 12 SCC 169 , though in a different context, has held at paragraph 33 that?In the absence of any provision made in the Act for condoning the delay in filing the election petition, the Chief Judge had no power to condone the delay in filing the election petition beyond the period of limitation prescribed in law?12. In Union of India & Anr. vs. Kirloskar Pneumatic Co. Ltd. reported in (1996) 4 SCC 453 , at paragraph 10, this Court has held as under :-?.......The power conferred by Articles 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creature of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. Maybe the High Court or a civil court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a civil court. No such delegation or conferment can ever be conceived.?13. It has also to be noted that while passing the interim order dated 01.11.2016, the High Court had specifically noted that the same was subject to the writ petitions and also Section 69 of the Act.14. In the above circumstances, we are of the view that the matters need to be considered afresh by the High Court since the Court could not have relegated the parties to the alternative remedy under the Statute by enlarging the time for preferring the election dispute. Accordingly, the impugned Judgment to that extent is set aside. The writ petitions are remitted to the High Court for fresh consideration. It will be open to the parties to raise all available contentions before the High Court. We request the High Court to dispose of the writ petitions expeditiously.
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The State Of Bihar Vs. D. N. Ganguly & Others
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decision to which reference has been made in support of the appellants case is the decision of Bishan Narain, J., in Textile Workers Union Amritsar v. State of Punjab, AIR 1957 Punjab 255 (C). Bishan Narain, J., appears to have taken the view that the power to cancel an order of reference made under S. 10(1) can be implied by invoking S. 21 of the General Clauses Act, because he thought that by the exercise of such a power, the appropriate government may be able to achieve the object of preserving industrial peace and harmony. The judgment shows that the learned judge was conscious of the fact that this conclusion, may have the effect of weakening a trade unions power of negotiation and may encourage the individual firms to deal directly with its (their) own workmen but it is a matter of policy with which I have nothing to do in these proceedings. In dealing with the present question, we would not be concerned with any questions of policy. Nevertheless, it may be pertinent to state that on the conclusion which we have reached in the present case there would be no scope for entertaining the apprehensions mentioned by the learned judge. As we have already indicated, the scheme of the Act plainly appears to be to leave the conduct and final decision of the industrial dispute to the industrial tribunal once an order of reference is made under S. 10(1) by the appropriate government. We must accordingly hold that Bishan Narain, J., was in error in taking the view that the appropriate government has power to cancel its own order made under S. 10(1) of the Act. 19. The decision of the Kerala High Court in Iyyappen Mills (Private) Ltd. Trichur v. State of Travancore-Cochin, 1958-1 Lab LJ 50 (D), is not of much assistance because in this case the learned judges appear to have taken the view that the first tribunal before which the industrial dispute was pending had cease to exist at the material time when the dispute was referred by the local government for adjudication to the second tribunal. If that be the true position, the conclusion of the learned judges would be supported by the decision of this court in 1954 SCR 465: (AIR 1953 SC 505 ) (A). 20. Then, in regard to, the observations made by Sinha, J. in Harendranath Bose v. Judge Second Industrial Tribunal, 1958-2 Lab LJ 198: (AIR 1958 Cal 208 ) (E), it is clear that the learned judge was in error in seeking to support his view that the appropriate government can cancel its order made under S. 10(1) by the observations found in the judgment of this court in 1953 SCR 439(AIR 1953 SC 95) (B). We have already stated that the said observations are really a part of the arguments urged by the appellant before this court in that case and are not obiter observations made by the learned judge. 21. The last case to which reference must be made is the decision of Rajamannar C. J. and Venkatarama Aiyyar J. in South India Estate Labour Relations Organisation v. State of Madras, (S) AIR 1955 Mad 45 (F). In this case the Madras government had purported to amend the reference made by it under S. 10 of the Act and the validity of this amendment was challenged before the court. This objection was repelled on the ground that it would be open to the government to make an independent reference concerning any matter not covered by the previous reference. That it took the form of an amendment to the existing reference and not additional reference is a mere technicality which does not merit any interference in the writ proceedings. The objection was one of form and was without substance. It would thus appear that the question before the court was whether the appropriate government can amend the reference originally made under S. 10 so far as the new matters not covered by the original reference are concerned, and the court held that what the appropriate government could have achieved by making an independent reference, it sought to do by amending the original reference itself. This decision would not assist the appellant because in the present case we are not considering the power of the government to amend, or add to, a reference made under S. 10(1). Our present decision is confined to the narrow question as to whether an order of reference made by the appropriate government under S. 10(1) can be subsequently cancelled or superseded by it. 22. We must therefore confirm the finding made by the learned judges of the High Court at Patna, that the notification issued by the appellant cancelling the first two notifications is invalid and ultra vires. 23. That takes us to the question as to the form in which the final order should be passed in the present appeals. The High Court has purported to issue a writ of certiorari against the State government quashing the impugned notification.It has however, the impugned notification. It has however, been held by this court in State of Madras v. C. P. Sarathy, 1953 SCR 334: (AIR 1953 SC 53 )(G) that in making a reference under S. 10(1) the appropriate agreement is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any-the-less administrative in character. That being so, we think it would be more appropriate to issue a writ of mandamus against the appellant in respect of the impugned notification.We would also like to add that since the first two industrial disputes referred by the appellant under the first two notifications have remained pending before the tribunal for a fairly long time, it is desirable that the tribunal should take up these references on its file and dispose of them as expeditiously as possible.
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0[ds]8. Dr. Bannerjee for the appellant has urged before us that in dealing with the question about the powers of the appropriate government under Sec. 10 (1) of the Act, it would be necessary to bear in mind the facts which led to the cancellation of the first two notifications and the issue of the third impugned notification. He contends that in issuing the third notification the appellant has actede and solely in the interests ofy and justice; it came to the conclusion that it was necessary that the union should be heard before the disputes in question are adjudicated upon by the Industrial Tribunal and that it would be more convenient and in the interest of industrial peace and harmony that the dispute should be referred to the tribunal in a more comprehensive and consolidated form bringing before the tribunal all the parties interested inIn our opinion, the bona fides of the appellant on which reliance is placed by Dr. Bannerjee are really not relevant for determining the appellants powers under S. 10(1) of the Act. If the appellant has authority to cancel the notification issued under S. 10(1), and if the validity of the cancelling notification is challenged on the ground of mala fides it may be relevant and material to inquire into the motives of the appellant.But, if the appellant has no authority to cancel or revoke a notification issued under S. 10 (1), the bona fides of the appellant can hardly validate the impugned cancellation.That is why, we think, the appellant cannot base its arguments on the alleged bona fides of its conduct11. The power claimed by the appellant to cancel a reference made under section 10 (1) seems also to be inconsistent with some other provisions of the Act. The proviso to Sec. 10 lays down that the appropriate government shall refer a dispute relating to the public utility service when a notice under Sec. 22 has been given, unless in considers that the notice has been frivolously or V exatiously given, or that it would be inexpedient to refer the dispute. This proviso indicates that in regard to a dispute relating to public utility concerns normally the government is expected to refer it for adjudication. In such a case if the government makes the reference it is difficult to appreciate that it would be open to the government pending the proceedings of the said reference before the Industrial Tribunal to cancel the reference and supersede its original order in that behalf. Section 10,. (2) deals with the case where the parties to an industrial disputes apply to the appropriate government in the prescribed manner, either jointly or separately, for a reference of the dispute to the appropriate authority; and it provides that in such a case if the appropriate government is satisfied that the persons applying represent the majority of each party it shall make the reference accordingly. In such a case all that the government has to satisfy itself about is the fact that the demand for reference is made by the majority of each party, and once this condition is satisfied, the government is under obligation to refer the dispute for industrial adjudication. It is inconceivable that in such a case the government can claim power to cancel a reference made under Sec. 10 (2).Indeed in the course of his arguments. Dr. Bannerjee fairly conceded that it would be difficult to sustain a claim for an implied power of cancellation in respect of a reference made under S. 10 (2).12. There is another consideration which is relevant is dealing with this question. Section 12 which deals with the duties of the conciliation officer provides inthe conciliation officer should try his best to bring about settlement between the parties. If no settlement is arrived at, the conciliation officer has to make a report to the appropriate government, as provided in. (4) of Sec. 12. This report must contain a full statement of the relevant facts and circumstances and the reasons on account of which in the opinion of the officer the settlement could not be arrived atn (5) the lays down that if, on a consideration of the report, the appropriate government is satisfied that there is a case for reference to a board, labour court, tribunal or national tribunal, it may make such a reference. Where the appropriate government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. This provision imposes on the appropriate government an obligation to record its reasons, for not making a reference after receiving a report from the conciliation officer and to communicate the said reasons to the parties concerned. It would show that when the efforts of the conciliation officer fail to settle a dispute, on receipt of the conciliation officers report by the appropriate government, the government would normally refer the dispute for adjudication; but if the government is not satisfied that a reference should be made, it is required to communicate its reasons for its decision to the parties concerned. If the appellants argument is accepted, it would mean that even after the order is made by the appropriate government under Sec. 10 (1), the said government can cancel the said order without giving any reasons. This position is clearly inconsistent with the policy underlying the provisions of Sec. 12 (5) of the Act. In our opinion, if the legislature had intended to confer on the appropriate government the power to cancel an order made under Sec. 10 (1), the legislature would have made a specific provision in that behalf and would have prescribed appropriate limitations on the exercise of the said power13. It is, however, urged that if a dispute referred to the industrial tribunal under Sec. 10 (1) is settled between the parties, the only remedy for giving effect to such a compromise would be to cancel the reference and to take the proceedings out of the jurisdiction of the industrial tribunal. This argument is based on the assumption that the industrial tribunal would have to ignore the settlement by the parties of their dispute pending before it and would have to make an award on the merits in spite of the saidWe are not satisfied that this argument is. It is true that the Act does not contain any provision specifically authorising the industrial tribunal to record a compromise and pass an award in its terms corresponding to the provisions of O. XXIII, R. 3 of the Code of Civil Procedure. But it would be very unreasonable to assume that the industrial tribunal would insist upon dealing with the dispute on the merits even after it is informed that the dispute has been amicably settled between the parties. We have already indicated that amicable settlements of industrial disputes which generally lead to industrial peace and harmony are the primary objects of this Act. Settlements reached before the conciliation officers or boards are specifically dealt with by Ss. 12 (2) and 13 (3) and the same are made binding under Sec. 18. There can, therefore, be no doubt that if an industrial dispute before a tribunal is amicably settled, the tribunal would immediately agree to make an award in terms of the settlement between the parties. It was stated before us at the bar that innumerable awards had been made by industrial tribunals in terms of the settlements between the parties. In this connection we may incidentally refer to the provisions of Sec. 7 (2) (b) of the Industrial Disputes (Appellate Tribunal) Act, 1950, (XLVIII of 1950), which expressly refer to an award or decision of an industrial tribunal made with the consent of the parties. It is true that this Act is no longer in force; but when it was in force, in providing for appeals to the Appellate Tribunal set up under the said Act, the legislature had recognised the making of awards by the industrial tribunals with the consent of the parties. Therefore, we cannot accept the argument that cancellation of reference would be necessary in order to give effect to the amicable settlement of the dispute reached by the parties pending proceedings before the industrial tribunalThe discretion given to the appropriate government under S. 10(1) in the matter of referring industrial disputes to industrial tribunals is very wide; but it seems the power to cancel which is claimed is wider still; andit is claimed by implication on the strength of S. 21 of the General Clauses Act. We have no hesitation in holding that the rule of construction enunciated by S. 21 of the General Clauses Act in so far as it refers to the power of rescinding or cancelling the original order cannot be invoked in respect of the provisions of S. 10(1) of the Industrial Disputes Act17. The decision of this court in Strawboard Manufacturing Co. Ltd., v. Gutta Mills Workers Union. 1953 SCR 439 : (AIR 1953SC 95) (B), is then cited in support of the proposition that the appellant has implied power to cancel its order made under S. 10(1). In this case, the government of the State of Uttar Pradesh had referred an industrial dispute to the Labour Commissioner on, and had directed the Commissioner to make his award not later than. While the proceedings were pending before the Commissioner, two additional issues were referred to him. Ultimately, the award was made on April 13, and it was sought to be validated by the issue of a notification by the Governor of Uttar Pradesh on April 26, by which the time for making the award was retrospectively extended up to. This court held that the notification retrospectively extending the period to make the award was invalid. Since the award had been made beyond the period prescribed by the original notification, it was voidIt is, however, argued that in dealing with the question of the validity of the award it was observed by Das, J., (as he then was), In the circumstances, if the State Government took the view that the addition of those two issues would render the time specified in the original order inadequate for the purpose it should have cancelled the previous notification and issued a fresh notification referring all the issues to the adjudicator and specifying a fresh period of time within which he was to make his award. The State Government did not adopt that. As we read the judgment, we are not inclined the accept the appellants assumption that the passage just cited expresses the view accepted by this courtAs we have already indicated, the scheme of the Act plainly appears to be to leave the conduct and final decision of the industrial dispute to the industrial tribunal once an order of reference is made under S. 10(1) by the appropriate government. We must accordingly hold that Bishan Narain, J., was in error in taking the view that the appropriate government has power to cancel its own order made under S. 10(1) of the ActThis decision would not assist the appellant because in the present case we are not considering the power of the government to amend, or add to, a reference made under S. 10(1).22. We must therefore confirm the finding made by the learned judges of the High Court at Patna, that the notification issued by the appellant cancelling the first two notifications is invalid and ultra vires23. That takes us to the question as to the form in which the final order should be passed in the present appeals. The High Court has purported to issue a writ of certiorari against the State government quashing the impugned notification.It has however, the impugned notification. It has however, been held by this court in State of Madras v. C. P. Sarathy, 1953 SCR 334: (AIR 1953 SC 53 )(G) that in making a reference under S. 10(1) the appropriate agreement is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make its administrative in character. That being so, we think it would be more appropriate to issue a writ of mandamus against the appellant in respect of the impugned notification.We would also like to add that since the first two industrial disputes referred by the appellant under the first two notifications have remained pending before the tribunal for a fairly long time, it is desirable that the tribunal should take up these references on its file and dispose of them as expeditiously as possible.
| 0 | 7,414 |
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decision to which reference has been made in support of the appellants case is the decision of Bishan Narain, J., in Textile Workers Union Amritsar v. State of Punjab, AIR 1957 Punjab 255 (C). Bishan Narain, J., appears to have taken the view that the power to cancel an order of reference made under S. 10(1) can be implied by invoking S. 21 of the General Clauses Act, because he thought that by the exercise of such a power, the appropriate government may be able to achieve the object of preserving industrial peace and harmony. The judgment shows that the learned judge was conscious of the fact that this conclusion, may have the effect of weakening a trade unions power of negotiation and may encourage the individual firms to deal directly with its (their) own workmen but it is a matter of policy with which I have nothing to do in these proceedings. In dealing with the present question, we would not be concerned with any questions of policy. Nevertheless, it may be pertinent to state that on the conclusion which we have reached in the present case there would be no scope for entertaining the apprehensions mentioned by the learned judge. As we have already indicated, the scheme of the Act plainly appears to be to leave the conduct and final decision of the industrial dispute to the industrial tribunal once an order of reference is made under S. 10(1) by the appropriate government. We must accordingly hold that Bishan Narain, J., was in error in taking the view that the appropriate government has power to cancel its own order made under S. 10(1) of the Act. 19. The decision of the Kerala High Court in Iyyappen Mills (Private) Ltd. Trichur v. State of Travancore-Cochin, 1958-1 Lab LJ 50 (D), is not of much assistance because in this case the learned judges appear to have taken the view that the first tribunal before which the industrial dispute was pending had cease to exist at the material time when the dispute was referred by the local government for adjudication to the second tribunal. If that be the true position, the conclusion of the learned judges would be supported by the decision of this court in 1954 SCR 465: (AIR 1953 SC 505 ) (A). 20. Then, in regard to, the observations made by Sinha, J. in Harendranath Bose v. Judge Second Industrial Tribunal, 1958-2 Lab LJ 198: (AIR 1958 Cal 208 ) (E), it is clear that the learned judge was in error in seeking to support his view that the appropriate government can cancel its order made under S. 10(1) by the observations found in the judgment of this court in 1953 SCR 439(AIR 1953 SC 95) (B). We have already stated that the said observations are really a part of the arguments urged by the appellant before this court in that case and are not obiter observations made by the learned judge. 21. The last case to which reference must be made is the decision of Rajamannar C. J. and Venkatarama Aiyyar J. in South India Estate Labour Relations Organisation v. State of Madras, (S) AIR 1955 Mad 45 (F). In this case the Madras government had purported to amend the reference made by it under S. 10 of the Act and the validity of this amendment was challenged before the court. This objection was repelled on the ground that it would be open to the government to make an independent reference concerning any matter not covered by the previous reference. That it took the form of an amendment to the existing reference and not additional reference is a mere technicality which does not merit any interference in the writ proceedings. The objection was one of form and was without substance. It would thus appear that the question before the court was whether the appropriate government can amend the reference originally made under S. 10 so far as the new matters not covered by the original reference are concerned, and the court held that what the appropriate government could have achieved by making an independent reference, it sought to do by amending the original reference itself. This decision would not assist the appellant because in the present case we are not considering the power of the government to amend, or add to, a reference made under S. 10(1). Our present decision is confined to the narrow question as to whether an order of reference made by the appropriate government under S. 10(1) can be subsequently cancelled or superseded by it. 22. We must therefore confirm the finding made by the learned judges of the High Court at Patna, that the notification issued by the appellant cancelling the first two notifications is invalid and ultra vires. 23. That takes us to the question as to the form in which the final order should be passed in the present appeals. The High Court has purported to issue a writ of certiorari against the State government quashing the impugned notification.It has however, the impugned notification. It has however, been held by this court in State of Madras v. C. P. Sarathy, 1953 SCR 334: (AIR 1953 SC 53 )(G) that in making a reference under S. 10(1) the appropriate agreement is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any-the-less administrative in character. That being so, we think it would be more appropriate to issue a writ of mandamus against the appellant in respect of the impugned notification.We would also like to add that since the first two industrial disputes referred by the appellant under the first two notifications have remained pending before the tribunal for a fairly long time, it is desirable that the tribunal should take up these references on its file and dispose of them as expeditiously as possible.
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635 |
State of Orissa Vs. M.A. Tulloch & Co. Ltd
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they are not being mentioned. The Tribunal stated a case to the High Court and one of the questions referred to was "whether the assessing officer was not wrong in allowing deduction of Rs. 2,40,000/- for the quarter ending on 30-6-51 and Rs. 15,677/1/3 for the quarter ending on 30-9-51 from the respective gross turnover of the applicant." The High Court, following its earlier decision in Members, Sales Tax Tribunal Orissa v. S. Lal and Co., (1961) 12 STC 25 (Orissa), answered the question in the affirmative. The State of Orissa having obtained special leave from this Court, these appeals are now before us for disposal.2. Mr. Ganapathy Iyer, on behalf of the State of Orissa, has contended before us that it is clear that R. 27(2) was not complied with, and, therefore, the Sales Tax Officer was wrong in allowing the said deduction. The answer to the question referred depends on the correct interpretation of S. 5 (2) (a) (ii), and R. 27 (2). They read thus:-"S. 5(2) (a) (ii) - sales to a registered dealer of goods specified in the purchasing dealers certificate of registration as being intended for resale by him in Orissa and on sales to a registered dealer of containers or other materials for the packing of such goods.Provided that when such goods are used by the registered dealer for purposes other than those specified in his certificate of registration, the price of goods so utilised shall be included in his taxable turnover.""Rule 27(2). Claims for deduction of turnover under Sub-clause (ii) of clause (a) of Sub-section (2) of Section 5 - A dealer who wishes to deduct from his gross turnover on sales which have taken place in Orissa the amount of a sale on the ground that he is entitled to make such deduction under Sub-clause (ii) of clause (a) of Sub-section (2) of Section 5 of the Act, shall produce a copy of the relevant cash receipt or bill according as the sale is a cash sale or a sale on credit in respect of such sale and a true declaration in writing by the purchasing dealer or by such responsible person as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the purchasing dealers certificate of registration as being required for resale by him or in the execution of any contract :Provided that no dealer whose certificate of registration has not been renewed for the year during which the purchase is made shall make such a declaration and that the selling dealer shall not be entitled to claim any deduction of sales to such a dealer."3. It is plain from the terms of S. 5(2) (a) (ii) that a selling dealer is entitled to a deduction in respect of sales to a registered dealer of goods, if the goods are specified in the purchasing dealers certificate of registration as being intended for re-sale by him in Orissa. No other condition is imposed by the above Section. The proviso deals with consequences that follow if the purchasing dealer uses them for purposes other than those specified in his certificate of registration, and direct that, in that event, the price of goods so utilised shall be included in his turnover. Therefore, there is nothing in the Section itself that disentitles a selling dealer to a deduction, but if the contingency provided in the proviso occurs, then the price of goods is included in the taxable turnover of the buying dealer. But Mr. Ganapathy Iyer says, be it so, but the rule making authority is entitled to make rules for carrying out the purposes of the Act, and R. 27(2) is designed to ensure that a buying dealers certificate of registration does, in fact, mention that the goods are intended for re-sale by him, and for that purpose it has chosen one exclusive method of proving the fact before a Sales Tax Officer. He further urges that no other method of proving that fact is permissible. Rule 27(2) is mandatory and if there is breach of it the selling dealer is not entitled to deduction. The learned counsel for the respondent, on the other hand, contends that R. 27(2) is directory. He points out that the word shall should be read as may, in the context. He further says that supposing the selling dealer brought the original certificate of registration of a buying dealer and produced it before the Sales Tax Officer, according to the appellant, this would not be enough, but this could never have been intended. In our opinion, R. 27(2) must be reconciled with the Section and the rule can be reconciled by treating it as directory. But the rule must be substantially complied with in every case. It is for the Sales Tax Officer to be satisfied that, in fact, the certificate of registration of the buying dealer contains the requisite statement, and if he has any doubts about it, the selling dealer must satisfy his doubts. But if he is satisfied from other facts on the record, it is not necessary that the selling dealer should produce a declaration in the form required in R. 27(2), before being entitled to a deduction.4. We are, therefore, of the opinion that the High Court came to a correct conclusion. The High Court is correct in holding that the production of declaration under R. 27(2) is not always obligatory on the part of a selling dealer when claiming the exemption. It is open to him to claim exemption by adducing other evidence so as to bring the transaction within the scope of S. 5(2) (a) (ii) of the Act. In this case, the Sales Tax Officer was satisfied by a mere statement of the dealer and it has not been shown that in fact the registration certificate of the buying dealer, M/s. S. Lal and Co., did not contain the statement that the goods were intended for re-sale by him in Orissa.
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0[ds]In our opinion, R. 27(2) must be reconciled with the Section and the rule can be reconciled by treating it as directory. But the rule must be substantially complied with in every case. It is for the Sales Tax Officer to be satisfied that, in fact, the certificate of registration of the buying dealer contains the requisite statement, and if he has any doubts about it, the selling dealer must satisfy his doubts. But if he is satisfied from other facts on the record, it is not necessary that the selling dealer should produce a declaration in the form required in R. 27(2), before being entitled to a deduction.4. We are, therefore, of the opinion that the High Court came to a correct conclusion. The High Court is correct in holding that the production of declaration under R. 27(2) is not always obligatory on the part of a selling dealer when claiming the exemption. It is open to him to claim exemption by adducing other evidence so as to bring the transaction within the scope of S. 5(2) (a) (ii) of the Act. In this case, the Sales Tax Officer was satisfied by a mere statement of the dealer and it has not been shown that in fact the registration certificate of the buying dealer, M/s. S. Lal and Co., did not contain the statement that the goods were intended for re-sale by him in Orissa.It is plain from the terms of S. 5(2) (a) (ii) that a selling dealer is entitled to a deduction in respect of sales to a registered dealer of goods, if the goods are specified in the purchasing dealers certificate of registration as being intended for re-sale by him in Orissa. No other condition is imposed by the above Section. The proviso deals with consequences that follow if the purchasing dealer uses them for purposes other than those specified in his certificate of registration, and direct that, in that event, the price of goods so utilised shall be included in his turnover. Therefore, there is nothing in the Section itself that disentitles a selling dealer to a deduction, but if the contingency provided in the proviso occurs, then the price of goods is included in the taxable turnover of the buyinganswer to the question referred depends on the correct interpretation of S. 5 (2) (a) (ii), and R. 27 (2).
| 0 | 1,522 |
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they are not being mentioned. The Tribunal stated a case to the High Court and one of the questions referred to was "whether the assessing officer was not wrong in allowing deduction of Rs. 2,40,000/- for the quarter ending on 30-6-51 and Rs. 15,677/1/3 for the quarter ending on 30-9-51 from the respective gross turnover of the applicant." The High Court, following its earlier decision in Members, Sales Tax Tribunal Orissa v. S. Lal and Co., (1961) 12 STC 25 (Orissa), answered the question in the affirmative. The State of Orissa having obtained special leave from this Court, these appeals are now before us for disposal.2. Mr. Ganapathy Iyer, on behalf of the State of Orissa, has contended before us that it is clear that R. 27(2) was not complied with, and, therefore, the Sales Tax Officer was wrong in allowing the said deduction. The answer to the question referred depends on the correct interpretation of S. 5 (2) (a) (ii), and R. 27 (2). They read thus:-"S. 5(2) (a) (ii) - sales to a registered dealer of goods specified in the purchasing dealers certificate of registration as being intended for resale by him in Orissa and on sales to a registered dealer of containers or other materials for the packing of such goods.Provided that when such goods are used by the registered dealer for purposes other than those specified in his certificate of registration, the price of goods so utilised shall be included in his taxable turnover.""Rule 27(2). Claims for deduction of turnover under Sub-clause (ii) of clause (a) of Sub-section (2) of Section 5 - A dealer who wishes to deduct from his gross turnover on sales which have taken place in Orissa the amount of a sale on the ground that he is entitled to make such deduction under Sub-clause (ii) of clause (a) of Sub-section (2) of Section 5 of the Act, shall produce a copy of the relevant cash receipt or bill according as the sale is a cash sale or a sale on credit in respect of such sale and a true declaration in writing by the purchasing dealer or by such responsible person as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the purchasing dealers certificate of registration as being required for resale by him or in the execution of any contract :Provided that no dealer whose certificate of registration has not been renewed for the year during which the purchase is made shall make such a declaration and that the selling dealer shall not be entitled to claim any deduction of sales to such a dealer."3. It is plain from the terms of S. 5(2) (a) (ii) that a selling dealer is entitled to a deduction in respect of sales to a registered dealer of goods, if the goods are specified in the purchasing dealers certificate of registration as being intended for re-sale by him in Orissa. No other condition is imposed by the above Section. The proviso deals with consequences that follow if the purchasing dealer uses them for purposes other than those specified in his certificate of registration, and direct that, in that event, the price of goods so utilised shall be included in his turnover. Therefore, there is nothing in the Section itself that disentitles a selling dealer to a deduction, but if the contingency provided in the proviso occurs, then the price of goods is included in the taxable turnover of the buying dealer. But Mr. Ganapathy Iyer says, be it so, but the rule making authority is entitled to make rules for carrying out the purposes of the Act, and R. 27(2) is designed to ensure that a buying dealers certificate of registration does, in fact, mention that the goods are intended for re-sale by him, and for that purpose it has chosen one exclusive method of proving the fact before a Sales Tax Officer. He further urges that no other method of proving that fact is permissible. Rule 27(2) is mandatory and if there is breach of it the selling dealer is not entitled to deduction. The learned counsel for the respondent, on the other hand, contends that R. 27(2) is directory. He points out that the word shall should be read as may, in the context. He further says that supposing the selling dealer brought the original certificate of registration of a buying dealer and produced it before the Sales Tax Officer, according to the appellant, this would not be enough, but this could never have been intended. In our opinion, R. 27(2) must be reconciled with the Section and the rule can be reconciled by treating it as directory. But the rule must be substantially complied with in every case. It is for the Sales Tax Officer to be satisfied that, in fact, the certificate of registration of the buying dealer contains the requisite statement, and if he has any doubts about it, the selling dealer must satisfy his doubts. But if he is satisfied from other facts on the record, it is not necessary that the selling dealer should produce a declaration in the form required in R. 27(2), before being entitled to a deduction.4. We are, therefore, of the opinion that the High Court came to a correct conclusion. The High Court is correct in holding that the production of declaration under R. 27(2) is not always obligatory on the part of a selling dealer when claiming the exemption. It is open to him to claim exemption by adducing other evidence so as to bring the transaction within the scope of S. 5(2) (a) (ii) of the Act. In this case, the Sales Tax Officer was satisfied by a mere statement of the dealer and it has not been shown that in fact the registration certificate of the buying dealer, M/s. S. Lal and Co., did not contain the statement that the goods were intended for re-sale by him in Orissa.
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636 |
Thumati Venkaiah and Ors Vs. State of Andhra Pradesh
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of ceiling on land situate within such area. No sooner such area is notified to be an urban agglomeration, the Central Act would apply in relation to land situate within such area, but until that happens the Andhra Pradesh Act would continue to be applicable to determine the ceiling on holding of land. It may be noticed that the Andhra Pradesh Act came into force on 1st January 1975 and it was with reference to this date the surplus holding of land in excess of the ceiling area was required to be determined and if there was any surplus it was to be surrendered to the State Government It must therefore follow that in an area other than that comprised in the urban agglomerations referred to in section 2(n) (A) (i), land held by a person in excess of the ceiling area would be liable to be determined as on 1st January 1975 under the Andhra Pradesh Act and only land within the ceiling area will be allowed to remain with him. It is only in respect of land remaining with a person whether an individual or a family after the operation of the Andhra Pradesh Act, that the Central Act would apply if and when the area in question is notified to be an urban agglomeration under section 2(n)(A)(ii) of the Central Act. We fail to see how it can at all be contended that merely because an area may possibly in the future be notified as an urban agglomeration under section 2(n)(A) (ii) of the Central Act, the Andhra Pradesh Legislature would cease to have competence to legislate with respect to ceiling on land situate in such area even though it is not an urban agglomeration at the date of the enactment of the Andhra Pradesh Act. Undoubtedly, when an area is notified as an urban agglomeration under section 2(n)(A)(ii), the Central Act would apply to land situate in such area and the Andhra Pradesh Act would cease to have application but by that time the Andhra Pradesh Act would have already operated to determine the ceiling on holding of land falling within the definition in section 3(j) of that Act and situate within such area. It is therefore not possible to uphold the contention of the landholders that the whole of the Andhra Pradesh Act is ultra vires and void as being outside the area of legislative competence of the Andhra Pradesh Legislature. It is only in respect of land situate within the urban agglomerations referred to in section 2(n) (A) (i) of the Central Act that the Andhra Pradesh Act would not apply but it would be fully applicable in respect of land situate in all the other areas of the State of Andhra Pradesh. 12. The next contention urged on behalf of the landholders was that on a proper construction of the relevant provisions of the Andhra Pradesh Act, a divided minor son was not liable to be included in family unit as defined in section 3(f) of that Act. The argument was that sub-section (2) of section 7 did not invalidate all partitions of joint family property but struck only against partitions effected on or before 2nd May 1972 and thus by necessary implication recognised the validity of partitions affected prior to that date. If therefore a partition was effected prior to 2nd May 1972 and under that partition a minor son become divided from his father and mother, the divided minor son could not be included in the family unit and his property could not be clubbed with that of his father and mother, because otherwise it would amount to invalidation of the partition though section 7, sub-section (2) clearly recognised such partition as valid. This argument is clearly fallacious in that it fail s to give due effect to the definition of family unit in section 3(f) and the provisions of section 4. It is undoubtedly true that a partition effected prior to 2nd May 1972 is not invalidated by the Andhra Pradesh Act and therefore any property w hich comes to the share of a divided minor son would in law belong to him and would not be liable to be required as part of joint family property. But under the definition of family unit in section 3(f) the divided minor son would clearly be include d in the family unit and by reason of section 4 his land whether self-acquired or obtained on partition would be liable to be clubbed with the land held by the other members of the family unit. The land obtained by the divided minor son on partition would be liable to be aggregated with the lands of other members of the family unit not because the partition is invalid but because the land held by him howsoever acquired is liable to be clubbed together with the lands of others for the purpose of applying the ceiling area to the family unit. We do not therefore see how a divided minor son can be excluded from the family unit. That would be flying in the face of sections 3(f) and 4 of the Andhra Pradesh Act. 13. Then a contention was advanced on behalf of the landholders that the definition of family unit was violative of Article 14, of the Constitution in that it made unjust discrimination between a minor son and the major son by including minor son in the family unit while excluding a major son from it. This contention has already been dealt with by learned brother Tulzapurkar, J. in the judgment delivered by him today in the Haryana Land Ceiling matters and we need not repeat what he had already stated there while repelling this contention. Moreover, this contention isl no longer open to the landholders since the Andhra Pradesh Act is admittedly an agrarian reform legislation and it is protected against challenge on the ground of infraction of Articles 14, 19 and 31 by the protective umbrella of Article 31A. 14.
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0[ds]The effect of passing of resolutions be the Houses of Legislature of two or more States under this constitutional provision is that Parliament which has otherwise power to legislate with respect to a matter, except as provided in Articles 249 and 250, becomes entitled to legislate with respect to such matter and the State Legislatures passing the resolutions cease to have power to make law relating to. that matter. The resolutions operate as abdication or surrender of the powers of the State Legislatures with respect to the matter which is the subject of the resolutions and such matter is placed entirely in the hands of Parliament and Parliament alone can then legislate with respect to it. It is as if such matter is lifted out of List II and placed in List I of the Seventh Schedule to the Constitution. This would seem to be quite clear on a plain natural construction of the language of clauses (1) and (2) of Article 25 2 and no authority. is necessary in support of it, but if any was wanted, it may be found in the decision of a Full Bench of five Judges of this Court in Union of India v. V. V. Chaudhary in fact the same Bench as the presente an identical view has been taken. It was in pursuance of clause (l) of this Article that a Resolution was passed by the Andhra Pradesh Legislative Council on 7th April 1972 to the effect that the imposition of a ceiling on urban immovable property and acquisition of such property in excess of the ceiling and all matters connected therewith or ancillary and incidental thereto should be regulated in the State of Madhya Pradesh by Parliament by law and an identical resolution in the same terms was passed on the next day by the Andhra Pradesh Legislature Assembly. Similar resolutions were also passed by the Houses of Legislature of some other States, though there is no material to show as to when they were passed. It was however common ground that at best some of these resolutions were passed prior to the enactment of the Andhra Pradesh Act. The result was that at the date when the Andhra Pradesh Act was enacted, Parliament alone was competent to legislate with respect to ceiling on urban im movable property and acquisition of such property in excess of the ceiling and all connected, ancillary or incidental matters, and the Andhra Pradesh Legislature stood denuded of its power to legislate on that subjectNow the Andhra Pradesh Act, as its long title shows, was enacted to consolidate and damned the law relating to the fixation of ceiling on agricultural holdings and taking over of surplus land and matter connected therewith. On its plain terms, it applies to land situate in any part of Andhra Pradesh. Section 3(f) creates an artificial unit called family unitIt will thus be seen that the ceiling area in the case of an individual who is not a member of a family unit is equivalent to one standard holding and so also in the case of a family unit with not more than five members, the ceiling area is the same, but if the family unit consists of more than five members, the ceiling area would stand increased byh of one standard holding for every additional member of the family unit, subject however to the maximum limit of 2 standard holdings. When the ceiling area is applied to the holding of a family unit, the Explanation requires that the lands held by all the members of the family unit shall be aggregated for the purpose of computing, the holding of the family unit. Where, therefore, there in a family unit consisting of father, mother and three minor sons or daughters, the lands held by all these persons would have to be club bed together and then the ceiling area applied to the aggregate holding. There is no distinction made in the definition of family unit between a divided minor son and an undivided minor son. Both stand on the same footing and a divided minor son is as much a member of the family unit as an undivided minor son, and consequently the lands held by a divided minor son would have to be included in the holding of the family unit for the purpose of application of the ceiling area. Section 7 invalidates certain transfers of land and provides for inclusion of such lands in the holding of an individual or a family unit. Then there is a provision in section 8 for furnishing a declaration in respect of his holding by every person whose land exceeds the ceiling area and the Tribunal is required by section 9 to hold an enquiry. and pass an order determining the land held in excess of the ceiling area. Such land has to be surrendered by the person holding the land and on such surrender, the Revenue Divisional officer is empowered under section 11 to take possession of the land which thereupon vests in the State Government free from all encumbrances. Section 14 provides inter alia that the land vested in the State Government shal l be allotted for use ass for agricultural labourers. village artisans or other poor persons owning no houses ors or transferred to the weaker sections of the people dependent on agriculture for purposes of agriculture/or for purposes ancillary thereto in such manner as may be prescribed by the Rules, subject to a proviso that as far as practicable not less thanf of the total extent of land so allotted or transferred shall be allotted or transferre d to the members of the Scheduled Castes and the Scheduled Tribes. Section 15 enacts a provision for payment of compensation for land vested in the State Government at the rates specified in the Second Schedule. These are the only relevant provisions of the Andhra Pradesh Act which need to be referred to for the purpose of the present appealsWe may now turn to examine the relevant provisions of the Central Act. This Act was enacted by Parliament pursuant to the authority conferred upon it by the resolutions passed by the Houses of legislature of several States including the State of Andhra Pradesh under clause (1) of Article 252. It received the assent of the President on 17th February 1 976 and as its long title and recital shows it was enacted to provide for the imposition of a ceiling on vacant land is urban agglomerations for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for ma tters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations toe the common good. We shall refer to a few material provisions of this ActNow, as we have already pointed out above, the Andhra Pradesh Legislature had, at the time when the Andhra Pradesh Act was enacted, no power to legislate with respect to ceiling on urban immovable property. That power stood transferred to parliament and as a first step towards the eventual imposition of ceiling on immovable property of every other description, the Parliament enacted the Central Act with a view to imposing ceiling on vacant land, other than land mainly used for the purpose of agriculture, in an urban agglomeration. The argument of the landholders was that the Andhra Pradesh Act sought to impose ceiling on land in the whole of Andhra Pradesh including land situate in urban agglomeration and since the concept of agglomeration defined in section 2(n) of the Central Act was an expensive concept and any area with an existing or future population of more than one lakh could be notified to be an urban agglomeration, the whole of the Andhra Pradesh Act was ultra vires and void as being outside the legislative competence of the Andhra Pradesh Legislature. This argument plausible though it may seem, in our opinion, is unsustainable. It is no doubt true that if the Andhra Pradesh Act seeks to impose ceiling on land falling within an urban agglomeration, it would be outside the area of its legislative competence , because it cannot provide for imposition of ceiling on urban immovable property. But the only urban agglomerations in the State of Andhra Pradesh recognised in the Central Act were those referred to in section 2(n) (A) (ii) and there can be no doubt that so far as these urban agglomerations are concerned, it was not within the legislative competence of the Andhra Pradesh Legislature to provide for imposition of ceiling on land situate within these urban agglomerations. It is, however, difficult to see how the Andhra Pradesh Act could be said to be outside the legislative competence of the Andhra Pradesh Legislature in so far as land situate in the other areas of the State of Andhra Pradesh is concerned. We accept that any other area in the State of Andhra Pradesh with a population of more than one lakh could be notified as an urban agglomeration under section 2(n)(A)(ii) of the Central Act but until it is so notified it would not be an urban agglomeration and the Andhra Pradesh Legislature would have legislative competence to provide for imposition of ceiling on land situate within such area. No sooner such area is notified to be an urban agglomeration, the Central Act would apply in relation to land situate within such area, but until that happens the Andhra Pradesh Act would continue to be applicable to determine the ceiling on holding of land. It may be noticed that the Andhra Pradesh Act came into force on 1st January 1975 and it was with reference to this date the surplus holding of land in excess of the ceiling area was required to be determined and if there was any surplus it was to be surrendered to the State Government It must therefore follow that in an area other than that comprised in the urban agglomerations referred to in section 2(n) (A) (i), land held by a person in excess of the ceiling area would be liable to be determined as on 1st January 1975 under the Andhra Pradesh Act and only land within the ceiling area will be allowed to remain with him. It is only in respect of land remaining with a person whether an individual or a family after the operation of the Andhra Pradesh Act, that the Central Act would apply if and when the area in question is notified to be an urban agglomeration under section 2(n)(A)(ii) of the Central Act. We fail to see how it can at all be contended that merely because an area may possibly in the future be notified as an urban agglomeration under section 2(n)(A) (ii) of the Central Act, the Andhra Pradesh Legislature would cease to have competence to legislate with respect to ceiling on land situate in such area even though it is not an urban agglomeration at the date of the enactment of the Andhra Pradesh Act. Undoubtedly, when an area is notified as an urban agglomeration under section 2(n)(A)(ii), the Central Act would apply to land situate in such area and the Andhra Pradesh Act would cease to have application but by that time the Andhra Pradesh Act would have already operated to determine the ceiling on holding of land falling within the definition in section 3(j) of that Act and situate within such area. It is therefore not possible to uphold the contention of the landholders that the whole of the Andhra Pradesh Act is ultra vires and void as being outside the area of legislative competence of the Andhra Pradesh Legislature. It is only in respect of land situate within the urban agglomerations referred to in section 2(n) (A) (i) of the Central Act that the Andhra Pradesh Act would not apply but it would be fully applicable in respect of land situate in all the other areas of the State of Andhra Pradeshn (2) of section 7 did not invalidate all partitions of joint family property but struck only against partitions effected on or before 2nd May 1972 and thus by necessary implication recognised the validity of partitions affected prior to that date. If therefore a partition was effected prior to 2nd May 1972 and under that partition a minor son become divided from his father and mother, the divided minor son could not be included in the family unit and his property could not be clubbed with that of his father and mother, because otherwise it would amount to invalidation of the partition though section 7,n (2) clearly recognised such partition as valid. This argument is clearly fallacious in that it fail s to give due effect to the definition of family unit in section 3(f) and the provisions of section 4. It is undoubtedly true that a partition effected prior to 2nd May 1972 is not invalidated by the Andhra Pradesh Act and therefore any property w hich comes to the share of a divided minor son would in law belong to him and would not be liable to be required as part of joint family property. But under the definition of family unit in section 3(f) the divided minor son would clearly be include d in the family unit and by reason of section 4 his land whetherd or obtained on partition would be liable to be clubbed with the land held by the other members of the family unit. The land obtained by the divided minor son on partition would be liable to be aggregated with the lands of other members of the family unit not because the partition is invalid but because the land held by him howsoever acquired is liable to be clubbed together with the lands of others for the purpose of applying the ceiling area to the family unit. We do not therefore see how a divided minor son can be excluded from the family unit. That would be flying in the face of sections 3(f) and 4 of the Andhra Pradesh ActThen a contention was advanced on behalf of the landholders that the definition of family unit was violative of Article 14, of the Constitution in that it made unjust discrimination between a minor son and the major son by including minor son in thefamily unit while excluding a major son from it. This contention has already been dealt with by learned brother Tulzapurkar, J. in the judgment delivered by him today in the Haryana Land Ceiling matters and we need not repeat what he had already stated there while repelling this contention. Moreover, this contention isl no longer open to the landholders since the Andhra Pradesh Act is admittedly an agrarian reform legislation and it is protected against challenge on the ground of infraction of Articles 14, 19 and 31 by the protective umbrella of Article 31A.
| 0 | 5,618 |
### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
### Input:
of ceiling on land situate within such area. No sooner such area is notified to be an urban agglomeration, the Central Act would apply in relation to land situate within such area, but until that happens the Andhra Pradesh Act would continue to be applicable to determine the ceiling on holding of land. It may be noticed that the Andhra Pradesh Act came into force on 1st January 1975 and it was with reference to this date the surplus holding of land in excess of the ceiling area was required to be determined and if there was any surplus it was to be surrendered to the State Government It must therefore follow that in an area other than that comprised in the urban agglomerations referred to in section 2(n) (A) (i), land held by a person in excess of the ceiling area would be liable to be determined as on 1st January 1975 under the Andhra Pradesh Act and only land within the ceiling area will be allowed to remain with him. It is only in respect of land remaining with a person whether an individual or a family after the operation of the Andhra Pradesh Act, that the Central Act would apply if and when the area in question is notified to be an urban agglomeration under section 2(n)(A)(ii) of the Central Act. We fail to see how it can at all be contended that merely because an area may possibly in the future be notified as an urban agglomeration under section 2(n)(A) (ii) of the Central Act, the Andhra Pradesh Legislature would cease to have competence to legislate with respect to ceiling on land situate in such area even though it is not an urban agglomeration at the date of the enactment of the Andhra Pradesh Act. Undoubtedly, when an area is notified as an urban agglomeration under section 2(n)(A)(ii), the Central Act would apply to land situate in such area and the Andhra Pradesh Act would cease to have application but by that time the Andhra Pradesh Act would have already operated to determine the ceiling on holding of land falling within the definition in section 3(j) of that Act and situate within such area. It is therefore not possible to uphold the contention of the landholders that the whole of the Andhra Pradesh Act is ultra vires and void as being outside the area of legislative competence of the Andhra Pradesh Legislature. It is only in respect of land situate within the urban agglomerations referred to in section 2(n) (A) (i) of the Central Act that the Andhra Pradesh Act would not apply but it would be fully applicable in respect of land situate in all the other areas of the State of Andhra Pradesh. 12. The next contention urged on behalf of the landholders was that on a proper construction of the relevant provisions of the Andhra Pradesh Act, a divided minor son was not liable to be included in family unit as defined in section 3(f) of that Act. The argument was that sub-section (2) of section 7 did not invalidate all partitions of joint family property but struck only against partitions effected on or before 2nd May 1972 and thus by necessary implication recognised the validity of partitions affected prior to that date. If therefore a partition was effected prior to 2nd May 1972 and under that partition a minor son become divided from his father and mother, the divided minor son could not be included in the family unit and his property could not be clubbed with that of his father and mother, because otherwise it would amount to invalidation of the partition though section 7, sub-section (2) clearly recognised such partition as valid. This argument is clearly fallacious in that it fail s to give due effect to the definition of family unit in section 3(f) and the provisions of section 4. It is undoubtedly true that a partition effected prior to 2nd May 1972 is not invalidated by the Andhra Pradesh Act and therefore any property w hich comes to the share of a divided minor son would in law belong to him and would not be liable to be required as part of joint family property. But under the definition of family unit in section 3(f) the divided minor son would clearly be include d in the family unit and by reason of section 4 his land whether self-acquired or obtained on partition would be liable to be clubbed with the land held by the other members of the family unit. The land obtained by the divided minor son on partition would be liable to be aggregated with the lands of other members of the family unit not because the partition is invalid but because the land held by him howsoever acquired is liable to be clubbed together with the lands of others for the purpose of applying the ceiling area to the family unit. We do not therefore see how a divided minor son can be excluded from the family unit. That would be flying in the face of sections 3(f) and 4 of the Andhra Pradesh Act. 13. Then a contention was advanced on behalf of the landholders that the definition of family unit was violative of Article 14, of the Constitution in that it made unjust discrimination between a minor son and the major son by including minor son in the family unit while excluding a major son from it. This contention has already been dealt with by learned brother Tulzapurkar, J. in the judgment delivered by him today in the Haryana Land Ceiling matters and we need not repeat what he had already stated there while repelling this contention. Moreover, this contention isl no longer open to the landholders since the Andhra Pradesh Act is admittedly an agrarian reform legislation and it is protected against challenge on the ground of infraction of Articles 14, 19 and 31 by the protective umbrella of Article 31A. 14.
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637 |
The State of Maharashtra and another Vs. Madhukar Antu Patil and another
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TBP) considering his initial period of appointment of 1982 on completion of twelve years of service and thereafter he was also granted the benefit of second TBP on completion of twenty four years of service. Respondent No.1 retired from service on 31.05.2013. After his retirement, pension proposal was forwarded to the Office of the Accountant General for grant of pension on the basis of the last pay drawn at the time of retirement. 2.1 The Office of the Accountant General raised an objection for grant of benefit of first TBP to respondent no.1 considering his date of initial appointment dated 11.05.1982, on the basis of the letter issued by Water Resources Department, Government of Maharashtra on 19.05.2004. It was found that respondent no.1 was wrongly granted the first TBP considering his initial period of appointment of 1982 and it was found that he was entitled to the benefit from the date of his absorption in the year 1989 only. Vide orders dated 06.10.2015 and 21.11.2015, his pay scale was down-graded and consequently his pension was also re-fixed. 2.2 Feeling aggrieved and dissatisfied with orders dated 06.10.2015 and 21.11.2015 down-grading his pay scale and pension, respondent no.1 approached the Tribunal by way of Original Application No. 238/2016. By judgment and order dated 25.06.2019, the Tribunal allowed the said original application and set aside orders dated 06.10.2015 and 21.11.2015 and directed the appellants herein to release the pension of respondent no.1 as per his pay scale on the date of his retirement. While passing the aforesaid order, the Tribunal observed and held that respondent no.1 was granted the first TBP considering his initial period of appointment of 1982 pursuant to the approval granted by the Government vide order dated 18.03.1998 and the subsequent approval of the Finance Department, and therefore, it cannot be said that the benefit of the first TBP was granted mistakenly. The Tribunal also observed that the services rendered by respondent no.1 on the post of Technical Assistant (for the period 11.05.1982 to 26.09.1989) cannot be wiped out from consideration while granting the benefit of first TBP. 2.3 Feeling aggrieved and dissatisfied with the judgment and order passed by the Tribunal, quashing and setting aside orders dated 06.10.2015 and 21.11.2015, refixing the pay scale and pension of respondent no.1, the appellants herein preferred writ petition before the High Court. By the impugned judgment and order, the High Court has dismissed the said writ petition. Hence, the present appeal. 3. We have heard Mr. Sachin Patil, learned counsel appearing on behalf of the appellants and Mr. Sandeep Sudhakar Deshmukh, learned counsel appearing on behalf of the contesting respondent. 3.1 At the outset, it is required to be noted and it is not in dispute that respondent no.1 was initially appointed on 11.05.1982 as a Technical Assistant on work charge basis. It is also not in dispute that thereafter he was absorbed in the year 1989 on the newly created post of Civil Engineering Assistant, which carried a different pay scale. Therefore, when the contesting respondent was absorbed in the year 1989 on the newly created post of Civil Engineering Assistant which carried a different pay scale, he shall be entitled to the first TBP on completion of twelve years of service from the date of his absorption in the post of Civil Engineering Assistant. The services rendered by the contesting respondent as Technical Assistant on work charge basis from 11.05.1982 could not have been considered for the grant of benefit of first TBP. If the contesting respondent would have been absorbed on the same post of Technical Assistant on which he was serving on work charge basis, the position may have been different. The benefit of TBP scheme shall be applicable when an employee has worked for twelve years in the same post and in the same pay scale. 4. In the present case, as observed hereinabove, his initial appointment in the year 1982 was in the post of Technical Assistant on work charge basis, which was altogether a different post than the newly created post of Civil Engineering Assistant in which he was absorbed in the year 1989, which carried a different pay scale. Therefore, the department was right in holding that the contesting respondent was entitled to the first TBP on completion of twelve years from the date of his absorption in the year 1989 in the post of Civil Engineering Assistant. Therefore both, the High Court as well as the Tribunal have erred in observing that as the first TBP was granted on the approval of the Government and the Finance Department, subsequently the same cannot be modified and/or withdrawn. Merely because the benefit of the first TBP was granted after the approval of the Department cannot be a ground to continue the same, if ultimately it is found that the contesting respondent was entitled to the first TBP on completion of twelve years of service only from the year 1989. Therefore both, the High Court as well as the Tribunal have committed a grave error in quashing and setting aside the revision of pay scale and the revision in pension, which were on re-fixing the date of grant of first TBP from the date of his absorption in the year 1989 as Civil Engineering Assistant. 5. However, at the same time, as the grant of first TBP considering his initial period of appointment of 1982 was not due to any misrepresentation by the contesting respondent and on the contrary, the same was granted on the approval of the Government and the Finance Department and since the downward revision of the pay scale was after the retirement of the respondent, we are of the opinion that there shall not be any recovery on re-fixation of the pay scale. However, the respondent shall be entitled to the pension on the basis of the re-fixation of the pay scale on grant of first TBP from the year 1989, i.e., from the date of his absorption as Civil Engineering Assistant.
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1[ds]3.1 At the outset, it is required to be noted and it is not in dispute that respondent no.1 was initially appointed on 11.05.1982 as a Technical Assistant on work charge basis. It is also not in dispute that thereafter he was absorbed in the year 1989 on the newly created post of Civil Engineering Assistant, which carried a different pay scale. Therefore, when the contesting respondent was absorbed in the year 1989 on the newly created post of Civil Engineering Assistant which carried a different pay scale, he shall be entitled to the first TBP on completion of twelve years of service from the date of his absorption in the post of Civil Engineering Assistant. The services rendered by the contesting respondent as Technical Assistant on work charge basis from 11.05.1982 could not have been considered for the grant of benefit of first TBP. If the contesting respondent would have been absorbed on the same post of Technical Assistant on which he was serving on work charge basis, the position may have been different. The benefit of TBP scheme shall be applicable when an employee has worked for twelve years in the same post and in the same pay scale.4. In the present case, as observed hereinabove, his initial appointment in the year 1982 was in the post of Technical Assistant on work charge basis, which was altogether a different post than the newly created post of Civil Engineering Assistant in which he was absorbed in the year 1989, which carried a different pay scale. Therefore, the department was right in holding that the contesting respondent was entitled to the first TBP on completion of twelve years from the date of his absorption in the year 1989 in the post of Civil Engineering Assistant. Therefore both, the High Court as well as the Tribunal have erred in observing that as the first TBP was granted on the approval of the Government and the Finance Department, subsequently the same cannot be modified and/or withdrawn. Merely because the benefit of the first TBP was granted after the approval of the Department cannot be a ground to continue the same, if ultimately it is found that the contesting respondent was entitled to the first TBP on completion of twelve years of service only from the year 1989. Therefore both, the High Court as well as the Tribunal have committed a grave error in quashing and setting aside the revision of pay scale and the revision in pension, which were on re-fixing the date of grant of first TBP from the date of his absorption in the year 1989 as Civil Engineering Assistant.5. However, at the same time, as the grant of first TBP considering his initial period of appointment of 1982 was not due to any misrepresentation by the contesting respondent and on the contrary, the same was granted on the approval of the Government and the Finance Department and since the downward revision of the pay scale was after the retirement of the respondent, we are of the opinion that there shall not be any recovery on re-fixation of the pay scale. However, the respondent shall be entitled to the pension on the basis of the re-fixation of the pay scale on grant of first TBP from the year 1989, i.e., from the date of his absorption as Civil Engineering Assistant.
| 1 | 1,267 |
### 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:
TBP) considering his initial period of appointment of 1982 on completion of twelve years of service and thereafter he was also granted the benefit of second TBP on completion of twenty four years of service. Respondent No.1 retired from service on 31.05.2013. After his retirement, pension proposal was forwarded to the Office of the Accountant General for grant of pension on the basis of the last pay drawn at the time of retirement. 2.1 The Office of the Accountant General raised an objection for grant of benefit of first TBP to respondent no.1 considering his date of initial appointment dated 11.05.1982, on the basis of the letter issued by Water Resources Department, Government of Maharashtra on 19.05.2004. It was found that respondent no.1 was wrongly granted the first TBP considering his initial period of appointment of 1982 and it was found that he was entitled to the benefit from the date of his absorption in the year 1989 only. Vide orders dated 06.10.2015 and 21.11.2015, his pay scale was down-graded and consequently his pension was also re-fixed. 2.2 Feeling aggrieved and dissatisfied with orders dated 06.10.2015 and 21.11.2015 down-grading his pay scale and pension, respondent no.1 approached the Tribunal by way of Original Application No. 238/2016. By judgment and order dated 25.06.2019, the Tribunal allowed the said original application and set aside orders dated 06.10.2015 and 21.11.2015 and directed the appellants herein to release the pension of respondent no.1 as per his pay scale on the date of his retirement. While passing the aforesaid order, the Tribunal observed and held that respondent no.1 was granted the first TBP considering his initial period of appointment of 1982 pursuant to the approval granted by the Government vide order dated 18.03.1998 and the subsequent approval of the Finance Department, and therefore, it cannot be said that the benefit of the first TBP was granted mistakenly. The Tribunal also observed that the services rendered by respondent no.1 on the post of Technical Assistant (for the period 11.05.1982 to 26.09.1989) cannot be wiped out from consideration while granting the benefit of first TBP. 2.3 Feeling aggrieved and dissatisfied with the judgment and order passed by the Tribunal, quashing and setting aside orders dated 06.10.2015 and 21.11.2015, refixing the pay scale and pension of respondent no.1, the appellants herein preferred writ petition before the High Court. By the impugned judgment and order, the High Court has dismissed the said writ petition. Hence, the present appeal. 3. We have heard Mr. Sachin Patil, learned counsel appearing on behalf of the appellants and Mr. Sandeep Sudhakar Deshmukh, learned counsel appearing on behalf of the contesting respondent. 3.1 At the outset, it is required to be noted and it is not in dispute that respondent no.1 was initially appointed on 11.05.1982 as a Technical Assistant on work charge basis. It is also not in dispute that thereafter he was absorbed in the year 1989 on the newly created post of Civil Engineering Assistant, which carried a different pay scale. Therefore, when the contesting respondent was absorbed in the year 1989 on the newly created post of Civil Engineering Assistant which carried a different pay scale, he shall be entitled to the first TBP on completion of twelve years of service from the date of his absorption in the post of Civil Engineering Assistant. The services rendered by the contesting respondent as Technical Assistant on work charge basis from 11.05.1982 could not have been considered for the grant of benefit of first TBP. If the contesting respondent would have been absorbed on the same post of Technical Assistant on which he was serving on work charge basis, the position may have been different. The benefit of TBP scheme shall be applicable when an employee has worked for twelve years in the same post and in the same pay scale. 4. In the present case, as observed hereinabove, his initial appointment in the year 1982 was in the post of Technical Assistant on work charge basis, which was altogether a different post than the newly created post of Civil Engineering Assistant in which he was absorbed in the year 1989, which carried a different pay scale. Therefore, the department was right in holding that the contesting respondent was entitled to the first TBP on completion of twelve years from the date of his absorption in the year 1989 in the post of Civil Engineering Assistant. Therefore both, the High Court as well as the Tribunal have erred in observing that as the first TBP was granted on the approval of the Government and the Finance Department, subsequently the same cannot be modified and/or withdrawn. Merely because the benefit of the first TBP was granted after the approval of the Department cannot be a ground to continue the same, if ultimately it is found that the contesting respondent was entitled to the first TBP on completion of twelve years of service only from the year 1989. Therefore both, the High Court as well as the Tribunal have committed a grave error in quashing and setting aside the revision of pay scale and the revision in pension, which were on re-fixing the date of grant of first TBP from the date of his absorption in the year 1989 as Civil Engineering Assistant. 5. However, at the same time, as the grant of first TBP considering his initial period of appointment of 1982 was not due to any misrepresentation by the contesting respondent and on the contrary, the same was granted on the approval of the Government and the Finance Department and since the downward revision of the pay scale was after the retirement of the respondent, we are of the opinion that there shall not be any recovery on re-fixation of the pay scale. However, the respondent shall be entitled to the pension on the basis of the re-fixation of the pay scale on grant of first TBP from the year 1989, i.e., from the date of his absorption as Civil Engineering Assistant.
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638 |
RATNAM SUDESH IYER Vs. JACKIE KAKUBHAI SHROFF
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1.5 million was kept in escrow to ensure that those proceedings came to an end, and on achieving the said objective the escrow amount had to be released to the respondent. 35. The second stage was of the sale of shares and the escrow amount of US$ 2 million was to be paid to the respondent when the shares were sold. It appears that there was some delay in the sale of shares which is what was objected to by the wife of the respondent and the appellant claimed that he could not be pushed into an early sale. Be that as it may, the sale did take place. Thus, the necessary conditions of the Deed of Settlement stood satisfied. It is in this context that we have to consider whether clause 6 would come into play, so as to deprive the respondent of the benefits which were two fold, i.e., monetary benefit to cease and desist on complaints and litigations, and the proceeds from the sale of shares that were owned by him. Clause 6 provided for the return of the amount of US$ 1.5 million in case the representations/assurances of the respondent turn out to be false or incorrect. That was not the case. The only aspect emphasised by the appellant as a cause for denying the respondent his dues are the two e-mails sent by his wife. We may note here that though the wife was initially impleaded in the proceedings under Section 9 of the said Act, she was later dropped from the arbitration proceedings as she was not a party to the agreement vide consent order dated 06.08.2012. In a sense the agreement accepted that the wife of the respondent had no role to play and the respondent could not be penalised for her conduct. 36. We may note that what has weighed with the Courts below is the fact that the respondent did nothing to ratify the e-mails of his wife. The effect of the award would be to deprive the respondent of the due valuation of the shares and what was paid to him to bring his complaints to an end. 37. Even if we turn to the complaints of the wife, at best they would fall in the category of some indiscreet language. The e-mail dated 09.06.2011 makes a grievance to the appellant about not being informed about the deal term sheet having been signed and uses the expression that the appellant was not being straight with us. This can hardly be objected to. Of course, this was circulated to their associates but the e- mail itself can hardly be called damaging. If we turn to the e-mail dated 15.06.2011, once again, a grievance about updates not being given is made. Certainly, the sentence I have no wish to fraternise with a forger. must be called wholly inappropriate. But then, that by itself cannot deny the respondent of his dues merely because of such an indiscreet e-mail by his wife, who was not even party to the proceedings nor party to the Deed of Settlement which contained the arbitration clause. It is in the aforesaid context that the impugned orders have been delivered and we consider it appropriate to extract para 23 of the learned Single Judges order which succinctly set forth what would be the consequences of the result of the award. 23. When we see the bizarre outcome it has brought about in the matter, the extent of the fallacy can be realised better. The Respondent got practically everything that he wanted from the Petitioner in return for payment of USD 3,500,000 to the latter. He got the EOW complaint withdrawn; he got the Petitioner to ratify the original Placement Instruction to SCB for sale of Atlas shares and for making over of the consideration to Grandway; he got an irrevocable power of attorney in his name for sale of shares of Atlas from the Petitioner; he got all the Petitioners claims against him, his wife and Atlas and Grandway and their shareholders released; he got the Petitioners resignation from the Board of Atlas; he got an agreement and irrevocable consent from the Petitioner for sale and transfer of Atlas shares; he got an agreement or consent from the Petitioner for dividend distribution and winding up of Atlas in a manner as the Board and the other shareholders might deem fit; and he got a confirmation of no claim against him or his family member or Atlas or Grandway of their shareholders by the Petitioner. And after all that is done, he even gets back his entire money of USD 3,500,000. And that because the Petitioners wife calls him a forger in a private communication made to a couple of acquaintances or associates. Can such award be ever sustained as something a fair and judiciously minded person could have made. In my humble opinion, it is the very opposite of justice; it would be a travesty of justice to uphold such award. 38. The aforesaid scenario cannot be countenanced and this is what has been responsible for interference with the award of the learned arbitrator in the context of the legal position applicable to the award pre the amendment. We find that the arbitrators conclusions are not in accordance with the fundamental policy of Indian law, and can thus be set aside under the pre-2015 interpretation of S. 34 of the said Act. We may also note that clause 6 of the Deed of Settlement could not have been relied on to award liquidated damages in favour of the appellant, we agree with the observations of the Single Judge and the Division Bench in this regard. In fact, the consequences are so inappropriate that the same appears to be the reason that both the learned Single Judge and the Division Bench have opined that whatever be the position that is applicable - pre or post amendment, in these facts the award would not stand, something with which we agree. Conclusion:
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0[ds]The admitted position is that the appellant is a party based in Singapore and thus, in terms of the aforesaid definition the arbitration although carried out a within the country, would be an international commercial arbitration. We may notice at this stage that it is nobodys case that the award in question is a foreign award within the meaning of Part II Section 44 of the said Act. For domestic awards, Chapter 7 of the said Act provides recourse against the arbitral award. Section 34 of the said Chapter provides for application for setting aside an arbitral award and specifies the ground available for the same. The Arbitration and Conciliation (Amendment) Act, 2015 (for short 2015 Amendment Act) amended the said Act w.e.f. 23.10.2015; inter alia by inserting Explanations to Section 34(2) of the said Act as well as by inserting Sub-Section 2A to Section 34. There is no doubt that the scope of interference by the Court became more restrictive with the amendments coming into force. The pre- amendment position with respect to expression in conflict with public policy of India was enunciated by this Court in Ssangyong Engineering and Construction Company Ltd. v. National Highways Authority of India (NHAI) (2019) 15 SCC 131, which referred to the judgment of this Court in Associated Builders v. Delhi Development Authority (2015) 3 SCC 49 .17. The crux of the aforesaid is that while the plea of the award being vitiated by patent illegality is available for an arbitral award, such an award has to be a purely domestic award, i.e. the plea of patent illegality is not available for an award which arises from international commercial arbitration post the amendment.18. We are noticing the aforesaid distinction as it appears that the judgments of the learned Single Judge and the Division Bench decide the challenge to the award on the plea of patent illegality without noticing this distinction. No doubt both judgments proceed on the basis that in either situation, i.e., within the test available for a purely domestic award or a domestic award arising from an international commercial arbitration; the award cannot be sustained. Thus far as to the nature of the award.20. It is not in dispute that the Section 34 proceedings commenced prior to 23.10.2015, which is the crucial date. As to when the amendment would apply is an aspect that is no longer res integra. We may refer to relevant judicial pronouncements in this regard.21. In Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd. & Ors. (2018) 6 SCC 287 a reference was made to Section 26 of the 2015 Amendment Act which had bifurcated proceedings into arbitral proceedings and court proceedings. The said provision reads as under:26. Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of Section 21 of the principal Act, before the commencement of this Act, unless the parties, otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act.22. It was clearly elucidated in para 39 of the judgment that the reason behind the first part of Section 26 of the 2015 Amendment Act being couched in the negative was only to state that the Amendment Act will apply even to arbitral proceedings commenced before the amendment if the parties otherwise agree. This is not so in the second part. The judgment derived that the intention of the legislature was to mean that the 2015 Amendment Act is prospective in nature and will apply to those arbitral proceedings that are commenced, as understood by Section 21 of the said Act, on or after the 2015 Amendment Act, and to court proceedings which had commenced on or after the 2015 Amendment Act came into force.27. In the context of the Arbitration Act, 1940 (hereinafter referred to as the Old Act) and the said Act, there are some observations in Thyssen Stahlunion Gmbh v. Steel Authority of India Limited (1999) 9 SCC 334, which are relevant for the purposes of this discussion. While opining that the provisions of the Old Act would apply in relation to arbitral proceedings which had commenced before the coming into force of the said Act, this Court referred to the Repeal and savings provision in Section 85(2)(a) of the said Act. It was observed that the phrase in relation to arbitral proceedings cannot be given a narrow meaning so as to mean only pendency of arbitration proceedings before the arbitrator, but would also cover proceedings before the court. The appellants cited two judgments of the Bombay High Court in support of their case, i.e., Padmini Chandran Menon v. Vijay Chandran Menon (2018) 2 AIR Bom R 108 and Board of Trustees of the Pot of Mumbai v. Afcons Infrastructure Limited 2016 SCC Online Bom 10037, which in turn rely on Thyssen Stahlunion Gmbh(supra).28. However, the general observations aforesaid cannot come to the aid of the appellant in view of a number of judicial pronouncements by this Court which deal with a similar issue.30. In a similar vein, the arbitration clause in Union of India v. Parmar Construction Company (2019) 15 SCC 682 provided that subject to the provisions of the aforesaid Arbitration and Conciliation Act, 1996 and the Rules thereunder and any statutory modifications thereof shall apply to the arbitration proceedings under this Clause.Relying on this clause, a contention was sought to be raised that the 2015 Amendment Act would apply to the arbitral proceedings which had been pending on 23.10.2015.It was opined by this Court that a conjoint reading of Section 21 of the said Act and Section 26 of the 2015 Amendment Act left no manner of doubt that the provisions of the 2015 Amendment Act shall not apply to arbitral proceedings which had commenced in terms of the provisions of Section 21 of the said Act unless the parties otherwise agree. Whether the application was pending for appointment of an arbitrator or in the case of rejection because of no claim as in that case for appointment of an arbitrator including change/substitution of the arbitrator was held not to be of any legal effect for invoking the provision of the 2015 amendment. While S.P. Singla (supra) and Parmar Construction Company (supra) opined on the topic of arbitral proceedings, we may note here that the matter concerns Section 34 proceedings for setting aside the award. In this case, the Section 34 proceedings had already commenced when the 2015 Amendment Act came into effect. The court proceedings were already subject to the pre- 2015 legal position. In a conspectus of the aforesaid, a generally worded clause such as Clause 9 of the Deed of Settlement cannot be said to constitute an agreement to change the course of law that the Section 34 proceedings were subject to. We may also note that a learned single Judge of the Delhi High Court in ABB India Ltd. v. Bharat Heavy Electricals Ltd. (OMP (T) (Comm) No.48/2020), while referring to the judgment in Parmar Construction Company (supra)case, has proceeded in accordance with this Courts observations while distinguishing the judgment in Thyssen Stahlunion Gmbh (supra) .In the context of anticipating new enactments that may come into operation, it was opined that while Thyssen Stahlunion Gmbh (supra)dealt with Section 85(2)(a) of the said Act, this provision is dissimilar to Section 26 of the 2015 Amendment Act. Section 26 starts with a negative covenant which is subject to an exception in the case of an agreement between the parties, whereas the observations in Thyssen Stahlunion Gmbh (supra) were coloured by Section 85(2)(a) of the said Act which is structured differently. We refer to the same only to give our imprimatur. The relevant portion of ABB India Ltd. (supra) reads as follows:71. Besides, in Thyssen Stahlunion GMBH, there was no provision, similar to Section 26 of the 2015 Amendment Act, which is crucial to adjudication of the dispute in the present case. In this context, it is necessary to distinguish the structure of Section 85(2)(a) of the 1996 Act, with Section 26 of the 2015 Amendment Act. Whereas Section 85 (2)(a) of the 1996 Act made, inter alia, the 1940 Act applicable to arbitral proceedings which commenced before the coming into force of the 1996 Act, unless otherwise agreed by the parties. Section 26 of the 2015 Amendment Act starts with a negative covenant, to the effect that nothing contained in the 2015 Amendment Act – which would include the insertion of Section 12(5) of the 1996 Act – would apply to arbitral proceedings, commenced before the 2015 Amendment Act came into force, i.e. before 23rd October, 2015. This negative covenant was subject to an exception in the case of agreement, otherwise, by the parties. Structurally and conceptually, therefore, Section 26 of the 2015 Amendment Act is fundamentally different from Section 85(2)(a) of the 1996 Act, and requires, therefore, to be interpreted, keeping this distinction in mind.31. We may note that the line of reasoning in Ssangyong Engineering and Construction Company Ltd. (supra) itself shows that to prevent any uncertainty in law, while seeking to fine tune the law to restrict the scope of interference in awards the legislature took a conscious decision to make applicable the amendments only from the date it came into force. Thus, the general phraseology of a clause which seeks to include any amendment to the Act would not be able to be availed of to expand the scope of scrutiny as it would appear to run contrary to the legislative intent of Section 26 of the Amendment Act. In this regard it may be appropriate to refer to the Supreme Courts observations in Ssyangong Engineering and Construction Company Ltd. (supra) relating to the scope of public policy as a ground to set aside arbitral awards before the 2015 Amendment Act:24. Yet another expansion of the phrase public policy of India contained in Section 34 of the 1996 Act was by another judgment of this Court in Western Geco [ONGC v. Western Geco International Ltd., (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12] , which was explained in Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] as follows : (SCC pp. 73-77, paras 28-34)28. In a recent judgment, ONGC v. Western Geco International Ltd. [ONGC v. Western Geco International Ltd., (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12] , this Court added three other distinct and fundamental juristic principles which must be understood as a part and parcel of the fundamental policy of Indian law. The Court held : (SCC pp. 278-80, paras 35 & 38-40)29. It is clear that the juristic principle of a judicial approach demands that a decision be fair, reasonable and objective. On the obverse side, anything arbitrary and whimsical would obviously not be a determination which would either be fair, reasonable or objective.30. The audi alteram partem principle which undoubtedly is a fundamental juristic principle in Indian law is also contained in Sections 18 and 34(2)(a)(iii) of the Arbitration and Conciliation Act. These sections read as follows:18. Equal treatment of parties.—The parties shall be treated with equality and each party shall be given a full opportunity to present his case.34. Application for setting aside arbitral award.—(1)* * *(2) An arbitral award may be set aside by the court only if—(a) the party making the application furnishes proof that—(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case;31. The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. It is settled law that where:(i) a finding is based on no evidence, or(ii) an Arbitral Tribunal takes into account something irrelevant to the decision which it arrives at; or(iii) ignores vital evidence in arriving at its decision,such decision would necessarily be perverse.32. We have considered the aforesaid two legal issues which would govern the present case and have come to the conclusion that it would be the pre-2015 legal position which would prevail.33. It is no doubt true that the arbitrator has the first hand benefit of recording evidence and examining the factual scenario. The present case is one which is solely based on an interpretation of a clause against the background of a dispute which gave rise to the Deed of Settlement. Wehave reproduced the relevant clauses which would emphasise that the respondent was required to take a couple of steps back from the position they had reached in the dispute, in order to avail the financial benefit under the Deed of Settlement.34. The first such step was to withdraw all complaints and proceedings against appellant and all other named and unnamed persons before the EOW. The respondent complied with the same and all such proceedings were brought to an end. US $ 1.5 million was kept in escrow to ensure that those proceedings came to an end, and on achieving the said objective the escrow amount had to be released to the respondent.35. The second stage was of the sale of shares and the escrow amount of US$ 2 million was to be paid to the respondent when the shares were sold. It appears that there was some delay in the sale of shares which is what was objected to by the wife of the respondent and the appellant claimed that he could not be pushed into an early sale. Be that as it may, the sale did take place. Thus, the necessary conditions of the Deed of Settlement stood satisfied. It is in this context that we have to consider whether clause 6 would come into play, so as to deprive the respondent of the benefits which were two fold, i.e., monetary benefit to cease and desist on complaints and litigations, and the proceeds from the sale of shares that were owned by him. Clause 6 provided for the return of the amount of US$ 1.5 million in case the representations/assurances of the respondent turn out to be false or incorrect. That was not the case. The only aspect emphasised by the appellant as a cause for denying the respondent his dues are the two e-mails sent by his wife. We may note here that though the wife was initially impleaded in the proceedings under Section 9 of the said Act, she was later dropped from the arbitration proceedings as she was not a party to the agreement vide consent order dated 06.08.2012. In a sense the agreement accepted that the wife of the respondent had no role to play and the respondent could not be penalised for her conduct.36. We may note that what has weighed with the Courts below is the fact that the respondent did nothing to ratify the e-mails of his wife. The effect of the award would be to deprive the respondent of the due valuation of the shares and what was paid to him to bring his complaints to an end.37. Even if we turn to the complaints of the wife, at best they would fall in the category of some indiscreet language. The e-mail dated 09.06.2011 makes a grievance to the appellant about not being informed about the deal term sheet having been signed and uses the expression that the appellant was not being straight with us. This can hardly be objected to. Of course, this was circulated to their associates but the e- mail itself can hardly be called damaging. If we turn to the e-mail dated 15.06.2011, once again, a grievance about updates not being given is made. Certainly, the sentence I have no wish to fraternise with a forger. must be called wholly inappropriate. But then, that by itself cannot deny the respondent of his dues merely because of such an indiscreet e-mail by his wife, who was not even party to the proceedings nor party to the Deed of Settlement which contained the arbitration clause. It is in the aforesaid context that the impugned orders have been delivered and we consider it appropriate to extract para 23 of the learned Single Judges order which succinctly set forth what would be the consequences of the result of the award.23. When we see the bizarre outcome it has brought about in the matter, the extent of the fallacy can be realised better. The Respondent got practically everything that he wanted from the Petitioner in return for payment of USD 3,500,000 to the latter. He got the EOW complaint withdrawn; he got the Petitioner to ratify the original Placement Instruction to SCB for sale of Atlas shares and for making over of the consideration to Grandway; he got an irrevocable power of attorney in his name for sale of shares of Atlas from the Petitioner; he got all the Petitioners claims against him, his wife and Atlas and Grandway and their shareholders released; he got the Petitioners resignation from the Board of Atlas; he got an agreement and irrevocable consent from the Petitioner for sale and transfer of Atlas shares; he got an agreement or consent from the Petitioner for dividend distribution and winding up of Atlas in a manner as the Board and the other shareholders might deem fit; and he got a confirmation of no claim against him or his family member or Atlas or Grandway of their shareholders by the Petitioner. And after all that is done, he even gets back his entire money of USD 3,500,000. And that because the Petitioners wife calls him a forger in a private communication made to a couple of acquaintances or associates. Can such award be ever sustained as something a fair and judiciously minded person could have made. In my humble opinion, it is the very opposite of justice; it would be a travesty of justice to uphold such award.38. The aforesaid scenario cannot be countenanced and this is what has been responsible for interference with the award of the learned arbitrator in the context of the legal position applicable to the award pre the amendment. We find that the arbitrators conclusions are not in accordance with the fundamental policy of Indian law, and can thus be set aside under the pre-2015 interpretation of S. 34 of the said Act. We may also note that clause 6 of the Deed of Settlement could not have been relied on to award liquidated damages in favour of the appellant, we agree with the observations of the Single Judge and the Division Bench in this regard. In fact, the consequences are so inappropriate that the same appears to be the reason that both the learned Single Judge and the Division Bench have opined that whatever be the position that is applicable - pre or post amendment, in these facts the award would not stand, something with which we agree.
| 0 | 6,685 |
### 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:
1.5 million was kept in escrow to ensure that those proceedings came to an end, and on achieving the said objective the escrow amount had to be released to the respondent. 35. The second stage was of the sale of shares and the escrow amount of US$ 2 million was to be paid to the respondent when the shares were sold. It appears that there was some delay in the sale of shares which is what was objected to by the wife of the respondent and the appellant claimed that he could not be pushed into an early sale. Be that as it may, the sale did take place. Thus, the necessary conditions of the Deed of Settlement stood satisfied. It is in this context that we have to consider whether clause 6 would come into play, so as to deprive the respondent of the benefits which were two fold, i.e., monetary benefit to cease and desist on complaints and litigations, and the proceeds from the sale of shares that were owned by him. Clause 6 provided for the return of the amount of US$ 1.5 million in case the representations/assurances of the respondent turn out to be false or incorrect. That was not the case. The only aspect emphasised by the appellant as a cause for denying the respondent his dues are the two e-mails sent by his wife. We may note here that though the wife was initially impleaded in the proceedings under Section 9 of the said Act, she was later dropped from the arbitration proceedings as she was not a party to the agreement vide consent order dated 06.08.2012. In a sense the agreement accepted that the wife of the respondent had no role to play and the respondent could not be penalised for her conduct. 36. We may note that what has weighed with the Courts below is the fact that the respondent did nothing to ratify the e-mails of his wife. The effect of the award would be to deprive the respondent of the due valuation of the shares and what was paid to him to bring his complaints to an end. 37. Even if we turn to the complaints of the wife, at best they would fall in the category of some indiscreet language. The e-mail dated 09.06.2011 makes a grievance to the appellant about not being informed about the deal term sheet having been signed and uses the expression that the appellant was not being straight with us. This can hardly be objected to. Of course, this was circulated to their associates but the e- mail itself can hardly be called damaging. If we turn to the e-mail dated 15.06.2011, once again, a grievance about updates not being given is made. Certainly, the sentence I have no wish to fraternise with a forger. must be called wholly inappropriate. But then, that by itself cannot deny the respondent of his dues merely because of such an indiscreet e-mail by his wife, who was not even party to the proceedings nor party to the Deed of Settlement which contained the arbitration clause. It is in the aforesaid context that the impugned orders have been delivered and we consider it appropriate to extract para 23 of the learned Single Judges order which succinctly set forth what would be the consequences of the result of the award. 23. When we see the bizarre outcome it has brought about in the matter, the extent of the fallacy can be realised better. The Respondent got practically everything that he wanted from the Petitioner in return for payment of USD 3,500,000 to the latter. He got the EOW complaint withdrawn; he got the Petitioner to ratify the original Placement Instruction to SCB for sale of Atlas shares and for making over of the consideration to Grandway; he got an irrevocable power of attorney in his name for sale of shares of Atlas from the Petitioner; he got all the Petitioners claims against him, his wife and Atlas and Grandway and their shareholders released; he got the Petitioners resignation from the Board of Atlas; he got an agreement and irrevocable consent from the Petitioner for sale and transfer of Atlas shares; he got an agreement or consent from the Petitioner for dividend distribution and winding up of Atlas in a manner as the Board and the other shareholders might deem fit; and he got a confirmation of no claim against him or his family member or Atlas or Grandway of their shareholders by the Petitioner. And after all that is done, he even gets back his entire money of USD 3,500,000. And that because the Petitioners wife calls him a forger in a private communication made to a couple of acquaintances or associates. Can such award be ever sustained as something a fair and judiciously minded person could have made. In my humble opinion, it is the very opposite of justice; it would be a travesty of justice to uphold such award. 38. The aforesaid scenario cannot be countenanced and this is what has been responsible for interference with the award of the learned arbitrator in the context of the legal position applicable to the award pre the amendment. We find that the arbitrators conclusions are not in accordance with the fundamental policy of Indian law, and can thus be set aside under the pre-2015 interpretation of S. 34 of the said Act. We may also note that clause 6 of the Deed of Settlement could not have been relied on to award liquidated damages in favour of the appellant, we agree with the observations of the Single Judge and the Division Bench in this regard. In fact, the consequences are so inappropriate that the same appears to be the reason that both the learned Single Judge and the Division Bench have opined that whatever be the position that is applicable - pre or post amendment, in these facts the award would not stand, something with which we agree. Conclusion:
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0
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639 |
Reliance Industries Limited Vs. S.D. Rane
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If the view taken in the present case by the learned Presiding Officer is not possible or probable at all and that is also demonstrated, then, this Courts interference under Article 226 of the Constitution of India is fully justified."7. He also relied on a decision of the same learned Single Judge in the case of Mahindra and Mahindra vs. Suryabhan Avhad in Writ Petition No.5 of 2007 dated 5th March, 2007, which reads thus:"Normally, this Court is reluctant to interfere at a preliminary stage. However, when illegality and perversity of the above nature is noticed and seen, when the Courts below do not perform their duty in accordance with law, so also. When exercise of powers vested in them results in miscarriage of justice, then it is the duty of this Court to interfere in the writ jurisdiction."He pointed out that the decision in the case of Mahindra and Mahindra (supra) has been confirmed in Letters Patent Appeal.8. So far as correctness of the order of Labour Court is concerned, Mr. Talsania read over the evidence and the findings of both the Labour Court and Enquiry Officer extensively. Mr. Talsania pointed out the admissions given by the respondent in his cross-examination. The respondent admitted that he had submitted medical certificate that he was suffering from malaria from 1st January, 1997 till 17th January, 1997 and thereafter he did not submit any medical certificate to the Company but he remained absent for the period from 17th January, 1997 to 11th June, 1997 without leave. The respondent also admitted that he did not mention anything that he was taking treatment for his sickness after 17th January, 1997 till 11th June, 1997. Further in the cross-examination in Question No.8, it was put to him that since June 1996 to December 1996 he neither filled up any leave nor informed the management about his absentism and he accepted the same. The respondent accepted the correctness of the said suggestion. Further he drew our attention to the cross-examination of the Enquiry Officer wherein the Enquiry Officer has categorically denied that at any time the workmen had requested him to stop the proceedings due to his sickness. The Enquiry Officer has admitted that his conclusion that the respondent was running the hotel business and therefore he was not interested in work was not correct and was based on hearsay evidence. Mr. Talsania argued that the charge is not based on whether the reason for absentism was due to running hotel or not but the charge is in respect of absentism without leave. Running hotel business is an ancillary circumstance. Moreover, when it was admitted by the Enquiry Officer that it was an hearsay evidence then the finding of the Enquiry Officer on that point should not have been given much importance by the Labour Court for setting aside the order of the Enquiry Officer.9. The learned counsel for the respondent defended the order passed by the learned Single Judge and the Labour Court. He submitted that the medical certificate dated 17th January, 1997 of Dr. G.R. Gune disclosing that the respondent was under treatment from 1st January, 1997 till that date was produced and thereafter another certificate dated 14th February, 1998 of Dr. Gune that the respondent was suffering from malaria and hepatitis and was under his treatment from 1st January, 1997 upto 14th February, 1998 and he was physically fit from 15th February, 1998 is also on record explaining the absentism.10. A short point for our consideration in this appeal is whether any bar exists while exercising jurisdiction under Articles 226 and 227 of the Constitution of India when Award Part I passed by the Labour Court is challenged before this Court. The learned Single Judge refrained himself from examining the legality of the said Award Part I order relying on the judgment of the Apex Court in Cooper Engineering Ltd. (supra). It appears that the judgments of learned Single Judge in Indian Hotels Co. (supra) and Mahindra and Mahindra (supra) were not placed before the learned Single Judge wherein the learned Single Judge has discussed the observations made by the Supreme Court in the case of Cooper Engineering (supra) that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision regarding preliminary issue, when the matter, if worthy, can be agitated even after final award and it will be legitimate for the High Court to refuse to intervene at this stage. However, the Supreme Court in Cooper Engineering did not lay down as an absolute proposition of law that the High Court should not exercise its jurisdiction under Articles 226 and 227 in a petition challenging the preliminary Part I Award and should not go into the legality of the Award Part-I.This view is further confirmed by the Division Bench of this Court in Hindustan Unilever Ltd. vs. Hindustan Lever Employees Union & Anr., reported in 2009 II CLR 1083 in which the Division Bench while allowing the appeal held that the learned Single Judge ought to have considered whether the finding recorded by the Labour Court in Part I Award that the enquiry is not proper is correct or not. The Division Bench has set aside the order of the Learned Single Judge and requested the Single Judge to dispose of the petition expeditiously.11. Thus, considering the settled position of law, in writ jurisdiction there is no bar to test and question the order passed in Part I Award, if the same is perverse or illegal. In the present case, the learned Single Judge rejected the Writ Petition filed by the petitioner at the threshold by reading the decision of the Apex Court in the case of Cooper Engineering as the absolute bar. We do not want to go into the merits of the matter and give our opinion which might come into the way of the parties of agitating all the contentions before the learned Single Judge.
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1[ds]The learned Single Judge refrained himself from examining the legality of the said Award Part I order relying on the judgment of the Apex Court in Cooper Engineering Ltd. (supra). It appears that the judgments of learned Single Judge in Indian Hotels Co. (supra) and Mahindra and Mahindra (supra) were not placed before the learned Single Judge wherein the learned Single Judge has discussed the observations made by the Supreme Court in the case of Cooper Engineering (supra) that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision regarding preliminary issue, when the matter, if worthy, can be agitated even after final award and it will be legitimate for the High Court to refuse to intervene at this stage. However, the Supreme Court in Cooper Engineering did not lay down as an absolute proposition of law that the High Court should not exercise its jurisdiction under Articles 226 and 227 in a petition challenging the preliminary Part I Award and should not go into the legality of the Awardview is further confirmed by the Division Bench of this Court in Hindustan Unilever Ltd. vs. Hindustan Lever Employees UnionAnr., reported in 2009 II CLR 1083 in which the Division Bench while allowing the appeal held that the learned Single Judge ought to have considered whether the finding recorded by the Labour Court in Part I Award that the enquiry is not proper is correct or not. The Division Bench has set aside the order of the Learned Single Judge and requested the Single Judge to dispose of the petition expeditiously.11. Thus, considering the settled position of law, in writ jurisdiction there is no bar to test and question the order passed in Part I Award, if the same is perverse or illegal. In the present case, the learned Single Judge rejected the Writ Petition filed by the petitioner at the threshold by reading the decision of the Apex Court in the case of Cooper Engineering as the absolute bar. We do not want to go into the merits of the matter and give our opinion which might come into the way of the parties of agitating all the contentions before the learned Single Judge.
| 1 | 2,128 |
### 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:
If the view taken in the present case by the learned Presiding Officer is not possible or probable at all and that is also demonstrated, then, this Courts interference under Article 226 of the Constitution of India is fully justified."7. He also relied on a decision of the same learned Single Judge in the case of Mahindra and Mahindra vs. Suryabhan Avhad in Writ Petition No.5 of 2007 dated 5th March, 2007, which reads thus:"Normally, this Court is reluctant to interfere at a preliminary stage. However, when illegality and perversity of the above nature is noticed and seen, when the Courts below do not perform their duty in accordance with law, so also. When exercise of powers vested in them results in miscarriage of justice, then it is the duty of this Court to interfere in the writ jurisdiction."He pointed out that the decision in the case of Mahindra and Mahindra (supra) has been confirmed in Letters Patent Appeal.8. So far as correctness of the order of Labour Court is concerned, Mr. Talsania read over the evidence and the findings of both the Labour Court and Enquiry Officer extensively. Mr. Talsania pointed out the admissions given by the respondent in his cross-examination. The respondent admitted that he had submitted medical certificate that he was suffering from malaria from 1st January, 1997 till 17th January, 1997 and thereafter he did not submit any medical certificate to the Company but he remained absent for the period from 17th January, 1997 to 11th June, 1997 without leave. The respondent also admitted that he did not mention anything that he was taking treatment for his sickness after 17th January, 1997 till 11th June, 1997. Further in the cross-examination in Question No.8, it was put to him that since June 1996 to December 1996 he neither filled up any leave nor informed the management about his absentism and he accepted the same. The respondent accepted the correctness of the said suggestion. Further he drew our attention to the cross-examination of the Enquiry Officer wherein the Enquiry Officer has categorically denied that at any time the workmen had requested him to stop the proceedings due to his sickness. The Enquiry Officer has admitted that his conclusion that the respondent was running the hotel business and therefore he was not interested in work was not correct and was based on hearsay evidence. Mr. Talsania argued that the charge is not based on whether the reason for absentism was due to running hotel or not but the charge is in respect of absentism without leave. Running hotel business is an ancillary circumstance. Moreover, when it was admitted by the Enquiry Officer that it was an hearsay evidence then the finding of the Enquiry Officer on that point should not have been given much importance by the Labour Court for setting aside the order of the Enquiry Officer.9. The learned counsel for the respondent defended the order passed by the learned Single Judge and the Labour Court. He submitted that the medical certificate dated 17th January, 1997 of Dr. G.R. Gune disclosing that the respondent was under treatment from 1st January, 1997 till that date was produced and thereafter another certificate dated 14th February, 1998 of Dr. Gune that the respondent was suffering from malaria and hepatitis and was under his treatment from 1st January, 1997 upto 14th February, 1998 and he was physically fit from 15th February, 1998 is also on record explaining the absentism.10. A short point for our consideration in this appeal is whether any bar exists while exercising jurisdiction under Articles 226 and 227 of the Constitution of India when Award Part I passed by the Labour Court is challenged before this Court. The learned Single Judge refrained himself from examining the legality of the said Award Part I order relying on the judgment of the Apex Court in Cooper Engineering Ltd. (supra). It appears that the judgments of learned Single Judge in Indian Hotels Co. (supra) and Mahindra and Mahindra (supra) were not placed before the learned Single Judge wherein the learned Single Judge has discussed the observations made by the Supreme Court in the case of Cooper Engineering (supra) that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision regarding preliminary issue, when the matter, if worthy, can be agitated even after final award and it will be legitimate for the High Court to refuse to intervene at this stage. However, the Supreme Court in Cooper Engineering did not lay down as an absolute proposition of law that the High Court should not exercise its jurisdiction under Articles 226 and 227 in a petition challenging the preliminary Part I Award and should not go into the legality of the Award Part-I.This view is further confirmed by the Division Bench of this Court in Hindustan Unilever Ltd. vs. Hindustan Lever Employees Union & Anr., reported in 2009 II CLR 1083 in which the Division Bench while allowing the appeal held that the learned Single Judge ought to have considered whether the finding recorded by the Labour Court in Part I Award that the enquiry is not proper is correct or not. The Division Bench has set aside the order of the Learned Single Judge and requested the Single Judge to dispose of the petition expeditiously.11. Thus, considering the settled position of law, in writ jurisdiction there is no bar to test and question the order passed in Part I Award, if the same is perverse or illegal. In the present case, the learned Single Judge rejected the Writ Petition filed by the petitioner at the threshold by reading the decision of the Apex Court in the case of Cooper Engineering as the absolute bar. We do not want to go into the merits of the matter and give our opinion which might come into the way of the parties of agitating all the contentions before the learned Single Judge.
### Response:
1
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640 |
Competition Commission of India Vs. M/s. Fast Way Transmission Pvt. Ltd. & Others
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therewith contained in any other law for the time being in force."7. The Preamble of the Act, read with the aforesaid provisions, would show that the Commission set up by the Competition Act certainly has a positive role to play. A perusal of Sections18 and 19 would show that it is a positive duty of the Commission to eliminate all practices which have an adverse effect on competition. Further the Commission should promote and sustain competition, apart from protecting the interest of consumers, so as to ensure freedom of trade carried on by all participants in markets all over India. Also, a positive role is given to the Commission to inquire, suo motu, into the dominant position of enterprises, and to prohibit anti competitive agreements. Section 60 then gives the Act overriding effect over other statutes in case of a clash between the Act and such statues to effectuate the policy of the Act, keeping in view the economic development of the country as a whole.8. On the facts of the present case, it is clear that "dominant position" is clearly made out. The Explanation to Section 4 specifically refers to a position of strength that is enjoyed by an enterprise or group thereof in the relevant market, which, as is stated hereinbefore, is Punjab and Chandigarh, in the Cable TV market, which enables respondents no. 1-4 to operate independently of competitive forces prevailing in the relevant market. The Commission has found, on facts, that since the aforesaid MSOs group has 85% of the subscribers share in the aforesaid cable TV market in the State of Punjab and Chandigarh, and that they are able to operate independently of competitive forces prevailing in the aforesaid market. This finding has notbeen set aside by the Appellate Tribunal. Also, the respondent would fall within Explanation (a)(ii) as well, though it is enough that it would fall within sub-section a(i) of the Explanation. Sub-section (ii) refers to a position of strength as enjoyed by the respondents which enables them to affect consumers in its favour.9. Replying upon the definition in Section 2(f)(ii), ShriNarsimha, learned ASG has, in our view, correctly argued that a broadcaster would certainly fall within the wide language contained in the aforesaid sub-section. We may also add that in all fairness the learned counsel for the respondent has agreed with the same. This being the case, it is clear that as both sub-sections (i) and (ii) of clause (a) of the Explanation apply, the respondent could be said to be in a "dominant position", for the purpose of Section 4, in the facts of the present case.10. The question which now arises is whether there is an abuse of such dominant position under Section 4(2)(c) where the respondent could be stated to have indulged in a practice resulting in denial of market access in any manner.11. It can be seen that in the facts of the case, the broadcaster, namely respondent No. 5, had a broadcast agreement which was entered into for a period of one year from 1stAugust, 2010. This was sought to be terminated within the aforesaid period by the respondent by notices dated 19thJanuary, 2011. The TDSAT has, by its order dated 25thApril, 2012, adverted to Regulation 4.2 of the relevant Telecom Regulations, and has found that the respondents have not followed the aforesaid regulations, inasmuch as no reasons for termination have been given in the notices of termination. This being the case, it is clear that, on the present facts, there is an abuse of the dominant position enjoyed by the respondents 1-4 only for the reason that the broadcaster was denied market access on and after 19thFebruary, 2011 until 1st August, 2011. The words "in any manner" one of wide import and must be given their natural meaning. This being the case, it is difficult to appreciate the reasoning of the Appellate Tribunal that, as the broadcaster and MSOs are not in competition with one another, the provisions of Sections 3 and 4 do not get attracted. As has been held by us, the "dominant position" held by the respondent MSOs is clearly established for the purpose of Section 4 in the present case, and the Commission finding in that behalf is also not set aside by the Appellate Tribunal. If this be so, then once a dominant position is made out on facts, whether a broadcaster is in competition with MSOs is a factor that is irrelevant for the purpose of application of Section 4(2)(c) which, as has been found by us, becomes applicable for the simple reason that the broadcaster is denied market access due to an unlawful termination of the agreement between the said broadcaster and the respondents 1-4.12. Having said this, however, we are of the view that no penalty ought to have been imposed on the facts of the present case. The finding of the Competition Commission that TRP rating of the broadcaster was not so low as it was almost equal to that of other channels, is not correct. In the counter affidavit filed before us by the respondent, they have specifically stated the TAM ratings of the respondent channel, as opposed to other news channels, from the month of September 2010 to January 2011, were as follows:S.No.Name of the ChannelAverage GRP of the Channel during five month period (Sept.’10 – Jan.’11)1.AAJ TAK33.62.Day and Night News3.83.IBN724.74.MH1 News7.05.NDTV India22.56.PTC News35.67.Star News27.98.Zee News21.513. A perusal of the aforesaid chart would show that the GRP given to the news channel `Day and Night is much lower than that given to any other channel, and that learned senior counsel for the respondent was correct in stating that this was the reason for terminating the agreement with the broadcaster in mid-stream. Though we find that, on the facts of this case, Section 4(2)(c) has been breached, yet the reason given by respondents 1 to 4 for termination being otherwise justifiable, we feel that no penalty should be levied on the facts of the present case.
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1[ds]7. The Preamble of the Act, read with the aforesaid provisions, would show that the Commission set up by the Competition Act certainly has a positive role to play. A perusal of Sections18 and 19 would show that it is a positive duty of the Commission to eliminate all practices which have an adverse effect on competition. Further the Commission should promote and sustain competition, apart from protecting the interest of consumers, so as to ensure freedom of trade carried on by all participants in markets all over India. Also, a positive role is given to the Commission to inquire, suo motu, into the dominant position of enterprises, and to prohibit anti competitive agreements. Section 60 then gives the Act overriding effect over other statutes in case of a clash between the Act and such statues to effectuate the policy of the Act, keeping in view the economic development of the country as a whole.8. On the facts of the present case, it is clear that "dominant position" is clearly made out. The Explanation to Section 4 specifically refers to a position of strength that is enjoyed by an enterprise or group thereof in the relevant market, which, as is stated hereinbefore, is Punjab and Chandigarh, in the Cable TV market, which enables respondents no.to operate independently of competitive forces prevailing in the relevant market. The Commission has found, on facts, that since the aforesaid MSOs group has 85% of the subscribers share in the aforesaid cable TV market in the State of Punjab and Chandigarh, and that they are able to operate independently of competitive forces prevailing in the aforesaid market. This finding has notbeen set aside by the Appellate Tribunal. Also, the respondent would fall within Explanation (a)(ii) as well, though it is enough that it would fall withina(i) of the Explanation.(ii) refers to a position of strength as enjoyed by the respondents which enables them to affect consumers in its favour.9. Replying upon the definition in Section 2(f)(ii), ShriNarsimha, learned ASG has, in our view, correctly argued that a broadcaster would certainly fall within the wide language contained in the aforesaidWe may also add that in all fairness the learned counsel for the respondent has agreed with the same. This being the case, it is clear that as both(i) and (ii) of clause (a) of the Explanation apply, the respondent could be said to be in a "dominant position", for the purpose of Section 4, in the facts of the present case.It can be seen that in the facts of the case, the broadcaster, namely respondent No. 5, had a broadcast agreement which was entered into for a period of one year from 1stAugust, 2010. This was sought to be terminated within the aforesaid period by the respondent by notices dated 19thJanuary, 2011. The TDSAT has, by its order dated 25thApril, 2012, adverted to Regulation 4.2 of the relevant Telecom Regulations, and has found that the respondents have not followed the aforesaid regulations, inasmuch as no reasons for termination have been given in the notices of termination. This being the case, it is clear that, on the present facts, there is an abuse of the dominant position enjoyed by the respondentsHaving said this, however, we are of the view that no penalty ought to have been imposed on the facts of the present case. The finding of the Competition Commission that TRP rating of the broadcaster was not so low as it was almost equal to that of other channels, is not correct.A perusal of the aforesaid chart would show that the GRP given to the news channel `Day and Night is much lower than that given to any other channel, and that learned senior counsel for the respondent was correct in stating that this was the reason for terminating the agreement with the broadcaster inThough we find that, on the facts of this case, Section 4(2)(c) has been breached, yet the reason given by respondents 1 to 4 for termination being otherwise justifiable, we feel that no penalty should be levied on the facts of the present case.
| 1 | 5,098 |
### 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:
therewith contained in any other law for the time being in force."7. The Preamble of the Act, read with the aforesaid provisions, would show that the Commission set up by the Competition Act certainly has a positive role to play. A perusal of Sections18 and 19 would show that it is a positive duty of the Commission to eliminate all practices which have an adverse effect on competition. Further the Commission should promote and sustain competition, apart from protecting the interest of consumers, so as to ensure freedom of trade carried on by all participants in markets all over India. Also, a positive role is given to the Commission to inquire, suo motu, into the dominant position of enterprises, and to prohibit anti competitive agreements. Section 60 then gives the Act overriding effect over other statutes in case of a clash between the Act and such statues to effectuate the policy of the Act, keeping in view the economic development of the country as a whole.8. On the facts of the present case, it is clear that "dominant position" is clearly made out. The Explanation to Section 4 specifically refers to a position of strength that is enjoyed by an enterprise or group thereof in the relevant market, which, as is stated hereinbefore, is Punjab and Chandigarh, in the Cable TV market, which enables respondents no. 1-4 to operate independently of competitive forces prevailing in the relevant market. The Commission has found, on facts, that since the aforesaid MSOs group has 85% of the subscribers share in the aforesaid cable TV market in the State of Punjab and Chandigarh, and that they are able to operate independently of competitive forces prevailing in the aforesaid market. This finding has notbeen set aside by the Appellate Tribunal. Also, the respondent would fall within Explanation (a)(ii) as well, though it is enough that it would fall within sub-section a(i) of the Explanation. Sub-section (ii) refers to a position of strength as enjoyed by the respondents which enables them to affect consumers in its favour.9. Replying upon the definition in Section 2(f)(ii), ShriNarsimha, learned ASG has, in our view, correctly argued that a broadcaster would certainly fall within the wide language contained in the aforesaid sub-section. We may also add that in all fairness the learned counsel for the respondent has agreed with the same. This being the case, it is clear that as both sub-sections (i) and (ii) of clause (a) of the Explanation apply, the respondent could be said to be in a "dominant position", for the purpose of Section 4, in the facts of the present case.10. The question which now arises is whether there is an abuse of such dominant position under Section 4(2)(c) where the respondent could be stated to have indulged in a practice resulting in denial of market access in any manner.11. It can be seen that in the facts of the case, the broadcaster, namely respondent No. 5, had a broadcast agreement which was entered into for a period of one year from 1stAugust, 2010. This was sought to be terminated within the aforesaid period by the respondent by notices dated 19thJanuary, 2011. The TDSAT has, by its order dated 25thApril, 2012, adverted to Regulation 4.2 of the relevant Telecom Regulations, and has found that the respondents have not followed the aforesaid regulations, inasmuch as no reasons for termination have been given in the notices of termination. This being the case, it is clear that, on the present facts, there is an abuse of the dominant position enjoyed by the respondents 1-4 only for the reason that the broadcaster was denied market access on and after 19thFebruary, 2011 until 1st August, 2011. The words "in any manner" one of wide import and must be given their natural meaning. This being the case, it is difficult to appreciate the reasoning of the Appellate Tribunal that, as the broadcaster and MSOs are not in competition with one another, the provisions of Sections 3 and 4 do not get attracted. As has been held by us, the "dominant position" held by the respondent MSOs is clearly established for the purpose of Section 4 in the present case, and the Commission finding in that behalf is also not set aside by the Appellate Tribunal. If this be so, then once a dominant position is made out on facts, whether a broadcaster is in competition with MSOs is a factor that is irrelevant for the purpose of application of Section 4(2)(c) which, as has been found by us, becomes applicable for the simple reason that the broadcaster is denied market access due to an unlawful termination of the agreement between the said broadcaster and the respondents 1-4.12. Having said this, however, we are of the view that no penalty ought to have been imposed on the facts of the present case. The finding of the Competition Commission that TRP rating of the broadcaster was not so low as it was almost equal to that of other channels, is not correct. In the counter affidavit filed before us by the respondent, they have specifically stated the TAM ratings of the respondent channel, as opposed to other news channels, from the month of September 2010 to January 2011, were as follows:S.No.Name of the ChannelAverage GRP of the Channel during five month period (Sept.’10 – Jan.’11)1.AAJ TAK33.62.Day and Night News3.83.IBN724.74.MH1 News7.05.NDTV India22.56.PTC News35.67.Star News27.98.Zee News21.513. A perusal of the aforesaid chart would show that the GRP given to the news channel `Day and Night is much lower than that given to any other channel, and that learned senior counsel for the respondent was correct in stating that this was the reason for terminating the agreement with the broadcaster in mid-stream. Though we find that, on the facts of this case, Section 4(2)(c) has been breached, yet the reason given by respondents 1 to 4 for termination being otherwise justifiable, we feel that no penalty should be levied on the facts of the present case.
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641 |
Oriental Investment Company Limited Vs. Commissioner of Income Tax, Bombay
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fact and that a finding of fact without evidence to support it or if based on relevant and irrelevant matters is not unassailable.30. The limits of the boundary dividing questions of law were laid done by this Court in Meenakshi Mills Ltd., v. Commissioners of Income Tax, Madras, 1956 S C R 691 : ((S) A I R 1957 S C 49) (R) where the question for decision was whether certain profits made and shown in the name of certain intermediaries were in fact profits actually earned by the assesses or the intermediaries. Taking the course of dealings and the extent of the transaction and the position of the intermediaries and all the evidence into consideration the tribunal came to the conclusion that the intermediaries were dummies brought into existence by the appellant for concealing the true amount of profits and that the sales in their name were sham and factious and profits were actually earned by the assessee. The test laid down by this Court is to be found in the various passages in that judgment. At p. 701 (of S C R): (at p. 55 of A I R). Venkatarama Ayyarm J., pointed out that questions of fact are not open to review by the Court unless they are unsupported by any evidence or are perverse. At p. 706 (of S C R): (at p. 58 of A I R) it was observed :"In between the domains occupied respectively by questions of fact and of law, them is a large area in which both these questions run into each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained."The law was thus summed up at p. 726 (of S C R) (at p. 68 of A I R):1. When the point for determination is a pure question of law such as construction of a statute of document of title, the decision of the Tribunal is open to reference to the Court under S. 66 (1).2. When the point for determination is a mixed question of law and fact, while the finding of the Tribunal on the facts found is final its decision as the legal effect of those finding is a question of law which can be reviewed by the Court.3. A finding on a question of fact is open to attack under S. 66 (1) as erroneous in law if there is no evidence to support it or if it is perverse.4. When the finding is one of fact, the fact that it is itself an inference from other basic facts will not alter its character as one of fact.31. In the instant case the Appellant Tribunal in its appellate order has set out the amount of profits made by the assessee company in the years of assessment 1943-44 to 1948-49. It has also mentioned the inconsistent positions taken up by the assessee in first claiming to be a dealer and then to be an investor which according to the tribunal was due to the fact that it was incurring losses in the earlier years and had begun making profits when the claim of being an investor was put forward. But the two basic facts on which the Tribunal has based its findings are :1. the objects set out in the memorandum of association of the assessee company.2. the previous assertion by the assessee company that it was a dealer in investments and not merely an investor. Counsel for the assessee relies on the decision of Kishan Prasad and Co. Ltd. v. Commr. of Income-tax, Punjab, 1954-27 I T R 49 : ((S) A I R 1955 S C 252) (S) where this Court held that the circumstances whether a transaction is or is not within the powers of the company has no bearing on the nature of the transaction or on the question whether the profits arising therefrom are capital or revenue income and, therefore, it is contended that the Tribunal had relied upon an irrelevant circumstances.Counsel for Revenue on the other hand refers to the judgment in Lakshminarayan Ram Gopal v. Government of Hyderabad, 1954-25 I T R 449 at p.461 : (A I R 1954 S C 364 at p. 369) (T) where the objects of an incorporated company were held not to be conclusive but relevant for the purpose of determining the nature and scope of its activities. Merely because the company has within its objects the dealing in investment in shares does not give to it the characteristics of a dealer in shares. But if other circumstances are proved it may be a relevant consideration for the purpose of determining the nature of activities of an assessee. Whether in the instant case it will have any relevance because of other materials on which the assessee company was relying in support of its case that it was merely an investor and not a dealer will have to be considered when the suggested questions of law are answered.32.As to what are the characteristics of the business of dealing in shares or that of an investor is a mixed question of fact and law. What is the legal effect of the facts found by the Tribunal and whether as a result the assessee can be termed a dealer or an investor is itself a question of law.33. The questions of law that arise out of the order of the Tribunal.1. Whether there are any materials on the record to support the finding of the Income Tax officer that the assessee company was a dealer in shares, securities and immoveable property during the assessment year in question?2. Whether the profits and losses arising from the sale of shares, securities and immoveable properties of the assessee company can be taxed as business profits?
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1[ds]25. A review of these authorities shows that though the English decisions began with a broad definition of what are questions of law, ultimately the House of Lords decided that a "matter of degree" is a question of fact and it has also been decided that a finding by the Commissioners of a fact under a misapprehension of law or want of evidence to support a finding are both questions ofresult of the authorities is that inference from facts would be a question of fact or of law according as the point for determination is one of pure fact or a mixed question of law and fact and that a finding of fact without evidence to support it or if based on relevant and irrelevant matters is not unassailable.In the instant case the Appellant Tribunal in its appellate order has set out the amount of profits made by the assessee company in the years of assessment9. It has also mentioned the inconsistent positions taken up by the assessee in first claiming to be a dealer and then to be an investor which according to the tribunal was due to the fact that it was incurring losses in the earlier years and had begun making profits when the claim of being an investor was put forward. But the two basic facts on which the Tribunal has based its findings are :1. the objects set out in the memorandum of association of the assessee company.2. the previous assertion by the assessee company that it was a dealer in investments and not merely an investor. Counselfor the assessee relies on the decision of Kishan Prasad and Co. Ltd. v. Commr. of27 I T R 49 : ((S) A I R 1955 S C 252) (S) where this Court held that the circumstances whether a transaction is or is not within the powers of the company has no bearing on the nature of the transaction or on the question whether the profits arising therefrom are capital or revenue income and, therefore, it is contended that the Tribunal had relied upon an irrelevantfor Revenue on the other hand refers to the judgment in Lakshminarayan Ram Gopal v. Government of Hyderabad,I T R 449 at p.461 : (A I R 1954 S C 364 at p. 369) (T) where the objects of an incorporated company were held not to be conclusive but relevant for the purpose of determining the nature and scope of its activities.Merely because the company has within its objects the dealing in investment in shares does not give to it the characteristics of a dealer in shares. But if other circumstances are proved it may be a relevant consideration for the purpose of determining the nature of activities of an assessee. Whether in the instant case it will have any relevance because of other materials on which the assessee company was relying in support of its case that it was merely an investor and not a dealer will have to be considered when the suggested questions of law are answered.32.As to what are the characteristics of the business of dealing in shares or that of an investor is a mixed question of fact and law. What is the legal effect of the facts found by the Tribunal and whether as a result the assessee can be termed a dealer or an investor is itself a question of law.
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### 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:
fact and that a finding of fact without evidence to support it or if based on relevant and irrelevant matters is not unassailable.30. The limits of the boundary dividing questions of law were laid done by this Court in Meenakshi Mills Ltd., v. Commissioners of Income Tax, Madras, 1956 S C R 691 : ((S) A I R 1957 S C 49) (R) where the question for decision was whether certain profits made and shown in the name of certain intermediaries were in fact profits actually earned by the assesses or the intermediaries. Taking the course of dealings and the extent of the transaction and the position of the intermediaries and all the evidence into consideration the tribunal came to the conclusion that the intermediaries were dummies brought into existence by the appellant for concealing the true amount of profits and that the sales in their name were sham and factious and profits were actually earned by the assessee. The test laid down by this Court is to be found in the various passages in that judgment. At p. 701 (of S C R): (at p. 55 of A I R). Venkatarama Ayyarm J., pointed out that questions of fact are not open to review by the Court unless they are unsupported by any evidence or are perverse. At p. 706 (of S C R): (at p. 58 of A I R) it was observed :"In between the domains occupied respectively by questions of fact and of law, them is a large area in which both these questions run into each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained."The law was thus summed up at p. 726 (of S C R) (at p. 68 of A I R):1. When the point for determination is a pure question of law such as construction of a statute of document of title, the decision of the Tribunal is open to reference to the Court under S. 66 (1).2. When the point for determination is a mixed question of law and fact, while the finding of the Tribunal on the facts found is final its decision as the legal effect of those finding is a question of law which can be reviewed by the Court.3. A finding on a question of fact is open to attack under S. 66 (1) as erroneous in law if there is no evidence to support it or if it is perverse.4. When the finding is one of fact, the fact that it is itself an inference from other basic facts will not alter its character as one of fact.31. In the instant case the Appellant Tribunal in its appellate order has set out the amount of profits made by the assessee company in the years of assessment 1943-44 to 1948-49. It has also mentioned the inconsistent positions taken up by the assessee in first claiming to be a dealer and then to be an investor which according to the tribunal was due to the fact that it was incurring losses in the earlier years and had begun making profits when the claim of being an investor was put forward. But the two basic facts on which the Tribunal has based its findings are :1. the objects set out in the memorandum of association of the assessee company.2. the previous assertion by the assessee company that it was a dealer in investments and not merely an investor. Counsel for the assessee relies on the decision of Kishan Prasad and Co. Ltd. v. Commr. of Income-tax, Punjab, 1954-27 I T R 49 : ((S) A I R 1955 S C 252) (S) where this Court held that the circumstances whether a transaction is or is not within the powers of the company has no bearing on the nature of the transaction or on the question whether the profits arising therefrom are capital or revenue income and, therefore, it is contended that the Tribunal had relied upon an irrelevant circumstances.Counsel for Revenue on the other hand refers to the judgment in Lakshminarayan Ram Gopal v. Government of Hyderabad, 1954-25 I T R 449 at p.461 : (A I R 1954 S C 364 at p. 369) (T) where the objects of an incorporated company were held not to be conclusive but relevant for the purpose of determining the nature and scope of its activities. Merely because the company has within its objects the dealing in investment in shares does not give to it the characteristics of a dealer in shares. But if other circumstances are proved it may be a relevant consideration for the purpose of determining the nature of activities of an assessee. Whether in the instant case it will have any relevance because of other materials on which the assessee company was relying in support of its case that it was merely an investor and not a dealer will have to be considered when the suggested questions of law are answered.32.As to what are the characteristics of the business of dealing in shares or that of an investor is a mixed question of fact and law. What is the legal effect of the facts found by the Tribunal and whether as a result the assessee can be termed a dealer or an investor is itself a question of law.33. The questions of law that arise out of the order of the Tribunal.1. Whether there are any materials on the record to support the finding of the Income Tax officer that the assessee company was a dealer in shares, securities and immoveable property during the assessment year in question?2. Whether the profits and losses arising from the sale of shares, securities and immoveable properties of the assessee company can be taxed as business profits?
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642 |
GURMEET PAL SINGH Vs. STATE OF PUNJAB
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absorption of the Judges from the Fast Track court. The moot point, however, remains whether one of the vacancies in the advertisement, which arose ought to have been utilized for absorption of these Fast Track court Judges, which, in turn, affected the senior- most, i.e., Gurmeet Pal Singh. In a way, Gurmeet Pal Singh suffered the consequences both of a more meritorious candidate from the SC category being found eligible, because of which he went one slot down. But then it is a well-established legal position that members belonging to the reserved category, who get selected in open competition on the basis of their merit have a right to be included in the General/Unreserved category and are not to be included in the quota reserved for the SC category (Samta Andolan Samiti v. Union of India 2 ).13. Insofar as the adjustment against the seat which was made available on account of the wrongful reservation for Ex-Servicemen, we cannot lose sight of the fact that the said Mr. Gurmeet Pal Singh made an endeavour by taking three successive subsequent exams held on 08.04.2011, 02.01.2012 and 29.04.2013, but was unsuccessful (chart reproduced above). Not only that, there has been a passage of a decade since the initial recruitment and though the appellants cannot be blamed for judicial delays, it is really not possible to put the clock back for all the aforesaid reasons.14. We are, thus, not inclined on this aspect to interfere with the recruitment process.D. Non-availability of candidate with disability:15. The plea based on an inherent right in view of the wording of the advertisement qua the seat meant for person with disability when no candidate is available is intrinsically flawed. The provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, are towards the social objective of accommodating people with physical disability. We find nothing wrong in carrying forward the vacancy for the future.E. The larger recruitment was possible since the cadre strength was more:16. The undisputed fact is that the advertisement was issued on the basis of a cadre strength of 107. Twenty-seven (27) posts would arise in the category in question and six (6) were already occupied and, thus, the advertisement was issued for twenty-one (21) posts. The advertisement was not challenged by any of the appellants. It is a well settled principle of law that when a candidate appears in an examination without objection and is subsequently found to be not successful a challenge to the process is precluded. In a recent judgment in Ashok Kumar & Anr. v. State of Bihar & Ors. 3 , this principle has been re-emphasised by referring to the earlier judgments on this point starting from Chandra Prakash Tiwari v. Shakuntala Shukla 4 . Thus, undoubtedly the appellants not having challenged the advertisement at the relevant point of time, cannot be permitted to contend that having not made the mark in the cut off for the select list, something must be done to somehow accommodate them. The plea of the existence of a larger number of posts is in this direction. No doubt every endeavor should be made to fill up the existing vacancies and prospective vacancies keeping in mind the judgment in Malik Mazhar Sultan & Anr. v. U.P . Public Service Commission & Ors. 5 . However, there cannot be a blanket proposition that the advertisement is defective merely because every vacancy which existed or which is contemplated is not taken into account. Certainly, a subsequent vacancy arising from an elevation can hardly be treated as in contemplation.17. We agree with the contention advanced by learned counsel appearing for the High Court, more so when merely because the name of a candidate finds a place in the select merit list does not given an indefeasible right to appointment as well and it is always open to not even fill up a vacancy. (Kulwinder Pal Singh & Anr. v. State of Punjab & Ors. 6 ).18. It is also the plea of learned counsel appearing for respondent No.2 that the cadre consisted of only 107 posts. This is stated to be quite apparent from the gradation and distribution list of officers of The Judicial Department, Punjab corrected up to 01.01.2008. The strength, including permanent and temporary has been mentioned as 109. However, at serial No.6, under the temporary post are two temporary posts of Additional District & Sessions Judges sanctioned by the Punjab Government letter dated 27.01.2004 for setting up of special courts at Patiala and Jalandhar. These courts were actually not set up till much later. It was also contended that even if the cadre strength was 109, then the particular category would be entitled to 27.25 (25% of 109 = 27.25) posts, with this six (6) posts filled up. Therefore, once again, one would come to 21 posts. The cadre strength of 111 relied upon by the appellants is available from the Gradation and Distribution List of Officers of the Judicial Department, Punjab corrected up to 31.01.2010, i.e., which was subsequent to the advertisement and the recruitment process. Thus, the appellants cannot get any relief even on this ground.Conclusion:19. We have dealt with the pleas advanced before us on behalf of the appellants. We have, of course, perused the impugned order. We may note that the line of attack before the High Court appeared majorly to be on different pleas, though it cannot be said that the issues raised before us have been raised for the first time. The focus was, however, elsewhere. We have, thus, dealt with the pleas, which have been advanced before us.20. We are, thus, unable to grant any relief to the appellants in the present case.21. We may, however, note in the end that one of the appellants, Ms. Kadambini, Advocate, argued the appeal in person and, without taking anything away from the endeavour of the other learned senior counsel, did a commendable job. However, that cannot be a ground to accommodate the said appellant.
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0[ds]7. The elevation of Justice Sabina on 12.03.2008 is a matter of fact. It is not also in dispute that the advertisement was issued prior to such elevation on 02.02.2008 and the advertisement noted the possibility of the number of posts being subject to variation. However, in our view, this would not mandate the inclusion of a post which fell vacant subsequently, nor can there be even otherwise a compulsion on the High Court to necessarily expand the scope of the number of persons to be recruited. In fact, the persons, who may have become eligible post the advertisement would suffer a prejudice were subsequent vacant posts to be included against an earlier advertisement. The plea based on the vacancy of this seat is, thus, completely devoid of merit.Insofar as the adjustment against the seat which was made available on account of the wrongful reservation forwe cannot lose sight of the fact that the said Mr. Gurmeet Pal Singh made an endeavour by taking three successive subsequent exams heldon 08.04.2011, 02.01.2012 and 29.04.2013, but was unsuccessful (chart reproduced above). Not only that, there has been a passage of a decade since the initial recruitment and though the appellants cannot be blamed for judicial delays, it is really not possible to put the clock back for all the aforesaid reasons.14. We are, thus, not inclined on this aspect to interfere with the recruitment process.The plea based on an inherent right in view of the wording of the advertisement qua the seat meant for person with disability when no candidate is available is intrinsically flawed. The provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, are towards the social objective of accommodating people with physical disability. We find nothing wrong in carrying forward the vacancy for the future.The undisputed fact is that the advertisement was issued on the basis of a cadre strength of 107.(27) posts would arise in the category in question and six (6) were already occupied and, thus, the advertisement was issued for(21) posts. The advertisement was not challenged by any of the appellants. It is a well settled principle of law that when a candidate appears in an examination without objection and is subsequently found to be not successful a challenge to the process isundoubtedly the appellants not having challenged the advertisement at the relevant point of time, cannot be permitted to contend that having not made the mark in the cut off for the select list, something must be done to somehow accommodate them. The plea of the existence of a larger number of posts is in this direction. No doubt every endeavor should be made to fill up the existing vacancies and prospective vacancies keeping in mind the judgment in Malik Mazhar Sultan & Anr. v. U.P . Public Service Commission & Ors. 5 . However, there cannot be a blanket proposition that the advertisement isdefective merely because every vacancy which existed or which is contemplated is not taken into account. Certainly, a subsequent vacancy arising from an elevation can hardly be treated as in contemplation.17. We agree with the contention advanced by learned counsel appearing for the High Court, more so when merely because the name of a candidate finds a place in the select merit list does not given an indefeasible right to appointment as well and it is always open to not even fill up a vacancy.We have dealt with the pleas advanced before us on behalf of the appellants. We have, of course, perused the impugned order. We may note that the line of attack before the High Court appeared majorly to be on different pleas, though it cannot be said that the issues raised before us have been raised for the first time. The focus was, however, elsewhere. We have, thus, dealt with the pleas, which have been advanced before us.20. We are, thus, unable to grant any relief to the appellants in the present case.
| 0 | 3,312 |
### 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:
absorption of the Judges from the Fast Track court. The moot point, however, remains whether one of the vacancies in the advertisement, which arose ought to have been utilized for absorption of these Fast Track court Judges, which, in turn, affected the senior- most, i.e., Gurmeet Pal Singh. In a way, Gurmeet Pal Singh suffered the consequences both of a more meritorious candidate from the SC category being found eligible, because of which he went one slot down. But then it is a well-established legal position that members belonging to the reserved category, who get selected in open competition on the basis of their merit have a right to be included in the General/Unreserved category and are not to be included in the quota reserved for the SC category (Samta Andolan Samiti v. Union of India 2 ).13. Insofar as the adjustment against the seat which was made available on account of the wrongful reservation for Ex-Servicemen, we cannot lose sight of the fact that the said Mr. Gurmeet Pal Singh made an endeavour by taking three successive subsequent exams held on 08.04.2011, 02.01.2012 and 29.04.2013, but was unsuccessful (chart reproduced above). Not only that, there has been a passage of a decade since the initial recruitment and though the appellants cannot be blamed for judicial delays, it is really not possible to put the clock back for all the aforesaid reasons.14. We are, thus, not inclined on this aspect to interfere with the recruitment process.D. Non-availability of candidate with disability:15. The plea based on an inherent right in view of the wording of the advertisement qua the seat meant for person with disability when no candidate is available is intrinsically flawed. The provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, are towards the social objective of accommodating people with physical disability. We find nothing wrong in carrying forward the vacancy for the future.E. The larger recruitment was possible since the cadre strength was more:16. The undisputed fact is that the advertisement was issued on the basis of a cadre strength of 107. Twenty-seven (27) posts would arise in the category in question and six (6) were already occupied and, thus, the advertisement was issued for twenty-one (21) posts. The advertisement was not challenged by any of the appellants. It is a well settled principle of law that when a candidate appears in an examination without objection and is subsequently found to be not successful a challenge to the process is precluded. In a recent judgment in Ashok Kumar & Anr. v. State of Bihar & Ors. 3 , this principle has been re-emphasised by referring to the earlier judgments on this point starting from Chandra Prakash Tiwari v. Shakuntala Shukla 4 . Thus, undoubtedly the appellants not having challenged the advertisement at the relevant point of time, cannot be permitted to contend that having not made the mark in the cut off for the select list, something must be done to somehow accommodate them. The plea of the existence of a larger number of posts is in this direction. No doubt every endeavor should be made to fill up the existing vacancies and prospective vacancies keeping in mind the judgment in Malik Mazhar Sultan & Anr. v. U.P . Public Service Commission & Ors. 5 . However, there cannot be a blanket proposition that the advertisement is defective merely because every vacancy which existed or which is contemplated is not taken into account. Certainly, a subsequent vacancy arising from an elevation can hardly be treated as in contemplation.17. We agree with the contention advanced by learned counsel appearing for the High Court, more so when merely because the name of a candidate finds a place in the select merit list does not given an indefeasible right to appointment as well and it is always open to not even fill up a vacancy. (Kulwinder Pal Singh & Anr. v. State of Punjab & Ors. 6 ).18. It is also the plea of learned counsel appearing for respondent No.2 that the cadre consisted of only 107 posts. This is stated to be quite apparent from the gradation and distribution list of officers of The Judicial Department, Punjab corrected up to 01.01.2008. The strength, including permanent and temporary has been mentioned as 109. However, at serial No.6, under the temporary post are two temporary posts of Additional District & Sessions Judges sanctioned by the Punjab Government letter dated 27.01.2004 for setting up of special courts at Patiala and Jalandhar. These courts were actually not set up till much later. It was also contended that even if the cadre strength was 109, then the particular category would be entitled to 27.25 (25% of 109 = 27.25) posts, with this six (6) posts filled up. Therefore, once again, one would come to 21 posts. The cadre strength of 111 relied upon by the appellants is available from the Gradation and Distribution List of Officers of the Judicial Department, Punjab corrected up to 31.01.2010, i.e., which was subsequent to the advertisement and the recruitment process. Thus, the appellants cannot get any relief even on this ground.Conclusion:19. We have dealt with the pleas advanced before us on behalf of the appellants. We have, of course, perused the impugned order. We may note that the line of attack before the High Court appeared majorly to be on different pleas, though it cannot be said that the issues raised before us have been raised for the first time. The focus was, however, elsewhere. We have, thus, dealt with the pleas, which have been advanced before us.20. We are, thus, unable to grant any relief to the appellants in the present case.21. We may, however, note in the end that one of the appellants, Ms. Kadambini, Advocate, argued the appeal in person and, without taking anything away from the endeavour of the other learned senior counsel, did a commendable job. However, that cannot be a ground to accommodate the said appellant.
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643 |
Nepc Micon Ltd. Vs. Magma Leasing Ltd
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of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commode, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. Even with regard to the penal provision which is also remedial one in the case of State of Tamil Nadu v. M.K. Kandaswami and others, 1974(4) S.C.C. 745, the Court observed that in interpreting such a provision, a construction which would defeat its purpose and, in effect, obliterate it from the statute book should be eschewed; if more than one construction is possible that which preserves its workability, and efficacy is to be preferred to the one which would render it otiose or sterile." 11. In the case of M/s International Ore and Fertilizers (India) Pvt. Ltd. v. Employees State Insurance Corporation AIR, 1988 S.C. 79, this Court referred to often quoted passage from the decision in the case of Seaford Court Estates Ltd. v. Asher, 1949(2) All ER 155 wherein Lord Denning, L.J. observed : "The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if the Acts of Parliament were drafted with divine pre-science and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give force and life to the intention of legislature.A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases" (Emphasis supplied). 12. Lastly, we would refer to the decision by a Three-Judge Bench of this Court in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi, 1998(2) RCR (Crl.) 77 : 1998(3) S.C.C. 249 dealing with a similar contention and interpreting Section 138 of the Act. In that case, the Court referred to the earlier decisions in the case of Electronics Trade and Technology Development Corporation, 1996(1) RCR (Crl.) 593 : 1996(2) SCC 739 and K.K. Siddharthan v. T.P. Praveena Chandran, 1997(1) RCR (Crl.) 158 : 1996(6) S.C.C. 369 and agreed that the legal proposition enunciated in the aforesaid decisions to effect that if the cheque is dishonoured, because of "stop payment" instruction to the bank, Section 138 would get attracted. It also amounts to dishonour of the cheque within the meaning of Section 138 when it is returned by the bank with the endorsement like (i) in this case, "referred to the drawer" (ii) instructions for stoppage of payment and stamped (iii) exceeds agreement. The Court observed that the object of bringing Section 138 on statute appears to be to inculcate faith in the efficacy of banking operations and to ensure credibility in transacting business through cheques. Thereafter, the Court disagreed with other views expressed in aforesaid two cases and held that once the cheque is issued by the drawer a presumption under section 139 must follow and merely because the drawer issues a notice to the drawer or to the bank for stoppage of the payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of a cheque in due course. The Court further held that it will make section 138 a dead letter if the contention that by giving instruction to the Bank to stop payment immediately after issuing a cheque against the debtor or liability the drawer can easily get rid of the penal consequences notwithstanding the fact that deemed offence was committed. Finally, the Court held that Section 138 of the Act gets attracted only when the cheque is dishonoured.13. In view of the aforesaid discussion we are of the opinion that even though Section 138 is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and purpose so as to suppress the mischief and advance the remedy. As stated above, section 138 of the Act has created a contractual breach as an offence and the legislative purpose is to promote efficacy of banking and of ensuring that in commercial or contractual transactions cheques are not dishonoured and credibility in transacting business through cheques is maintained. The above interpretation would be in accordance with the principle of interpretation quoted above brush away the cobweb varnish, and show the transactions in their true light (Wilmot C.J.) or (by Maxwell) "to carry out effectively the breach of the statute, it must be so construed as to defeat all attempts to do, or avoid doing, to an indirect or circuitous manner that it has prohibited". Hence, when the cheque is returned by a bank with an endorsement account closed, it would amount to returning the cheque unpaid because "the amount of money standing to the credit of that account is insufficient to honour the cheque" as envisaged in Section 138 of the Act.In
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0[ds]The Court observed that the object of bringing Section 138 on statute appears to be to inculcate faith in the efficacy of banking operations and to ensure credibility in transacting business through cheques. Thereafter, the Court disagreed with other views expressed in aforesaid two cases and held that once the cheque is issued by the drawer a presumption under section 139 must follow and merely because the drawer issues a notice to the drawer or to the bank for stoppage of the payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of a cheque in due course. The Court further held that it will make section 138 a dead letter if the contention that by giving instruction to the Bank to stop payment immediately after issuing a cheque against the debtor or liability the drawer can easily get rid of the penal consequences notwithstanding the fact that deemed offence was committed. Finally, the Court held that Section 138 of the Act gets attracted only when the cheque is dishonoured.13. In view of the aforesaid discussion we are of the opinion that even though Section 138 is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and purpose so as to suppress the mischief and advance the remedy. As stated above, section 138 of the Act has created a contractual breach as an offence and the legislative purpose is to promote efficacy of banking and of ensuring that in commercial or contractual transactions cheques are not dishonoured and credibility in transacting business through cheques is maintained. The above interpretation would be in accordance with the principle of interpretation quoted above brush away the cobweb varnish, and show the transactions in their true light (Wilmot C.J.) or (by Maxwell) "to carry out effectively the breach of the statute, it must be so construed as to defeat all attempts to do, or avoid doing, to an indirect or circuitous manner that it has prohibited". Hence, when the cheque is returned by a bank with an endorsement account closed, it would amount to returning the cheque unpaid because "the amount of money standing to the credit of that account is insufficient to honour the cheque" as envisaged in Section 138 of the Act.Inour view, the answer would obviously be in the affirmative because cheque is dishonoured as the amount of money standing to the credit of that account was nil at the relevant time apart from it being closed. Closure of the account would be an eventuality after the entire amount in the account is withdrawn. It means that there was no amount in the credit of "that account" on the relevant date when the cheque was presented for honouring the same. The expression "the amount of money standing to the credit of that account is insufficient to honour the cheque" is a genus of which the expression "that account being closed" is specie. After issuing the cheque drawn on an account maintained, a person, if he closes that account apart from the fact that it may amount to another offence, it would certainly be an offence under Section 138 as there was insufficient or no fund to honour the cheque in that account. Further, cheque is to be drawn by a person for payment of any amount of money due to him on an account maintained by him with a banker and only on "that account" cheque should be drawn. This would be clear by reading the Section along with proviso (a), (b)r view, the answer would obviously be in the affirmative because cheque is dishonoured as the amount of money standing to the credit of that account was nil at the relevant time apart from it being closed. Closure of the account would be an eventuality after the entire amount in the account is withdrawn. It means that there was no amount in the credit of "that account" on the relevant date when the cheque was presented for honouring the same. The expression "the amount of money standing to the credit of that account is insufficient to honour the cheque" is a genus of which the expression "that account being closed" is specie. After issuing the cheque drawn on an account maintained, a person, if he closes that account apart from the fact that it may amount to another offence, it would certainly be an offence under Section 138 as there was insufficient or no fund to honour the cheque in that account. Further, cheque is to be drawn by a person for payment of any amount of money due to him on an account maintained by him with a banker and only on "that account" cheque should be drawn. This would be clear by reading the Section along with proviso (a), (b)n our view even with regard to penal provision, any interpretation, which withdraws life and blood of the provision and makes it ineffective and a dead letter should be averted. If the interpretation, which is sought for, were given, then it would only encourage dishonest persons to issue cheques and before presentation of the cheque close that account and thereby escape from the penal consequences of Section 138.In view of the aforesaid discussion we are of the opinion that even though Section 138 is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and purpose so as to suppress the mischief and advance the remedy. As stated above, section 138 of the Act has created a contractual breach as an offence and the legislative purpose is to promote efficacy of banking and of ensuring that in commercial or contractual transactions cheques are not dishonoured and credibility in transacting business through cheques is maintained. The above interpretation would be in accordance with the principle of interpretation quoted above brush away the cobweb varnish, and show the transactions in their true light (Wilmot C.J.) or (by Maxwell) "to carry out effectively the breach of the statute, it must be so construed as to defeat all attempts to do, or avoid doing, to an indirect or circuitous manner that it has prohibited". Hence, when the cheque is returned by a bank with an endorsement account closed, it would amount to returning the cheque unpaid because "the amount of money standing to the credit of that account is insufficient to honour the cheque" as envisaged in Section 138 of the Act.Inour view even with regard to penal provision, any interpretation, which withdraws life and blood of the provision and makes it ineffective and a dead letter should be averted. If the interpretation, which is sought for, were given, then it would only encourage dishonest persons to issue cheques and before presentation of the cheque close that account and thereby escape from the penal consequences of Section 138.
| 0 | 3,773 |
### 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 all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commode, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. Even with regard to the penal provision which is also remedial one in the case of State of Tamil Nadu v. M.K. Kandaswami and others, 1974(4) S.C.C. 745, the Court observed that in interpreting such a provision, a construction which would defeat its purpose and, in effect, obliterate it from the statute book should be eschewed; if more than one construction is possible that which preserves its workability, and efficacy is to be preferred to the one which would render it otiose or sterile." 11. In the case of M/s International Ore and Fertilizers (India) Pvt. Ltd. v. Employees State Insurance Corporation AIR, 1988 S.C. 79, this Court referred to often quoted passage from the decision in the case of Seaford Court Estates Ltd. v. Asher, 1949(2) All ER 155 wherein Lord Denning, L.J. observed : "The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if the Acts of Parliament were drafted with divine pre-science and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give force and life to the intention of legislature.A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases" (Emphasis supplied). 12. Lastly, we would refer to the decision by a Three-Judge Bench of this Court in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi, 1998(2) RCR (Crl.) 77 : 1998(3) S.C.C. 249 dealing with a similar contention and interpreting Section 138 of the Act. In that case, the Court referred to the earlier decisions in the case of Electronics Trade and Technology Development Corporation, 1996(1) RCR (Crl.) 593 : 1996(2) SCC 739 and K.K. Siddharthan v. T.P. Praveena Chandran, 1997(1) RCR (Crl.) 158 : 1996(6) S.C.C. 369 and agreed that the legal proposition enunciated in the aforesaid decisions to effect that if the cheque is dishonoured, because of "stop payment" instruction to the bank, Section 138 would get attracted. It also amounts to dishonour of the cheque within the meaning of Section 138 when it is returned by the bank with the endorsement like (i) in this case, "referred to the drawer" (ii) instructions for stoppage of payment and stamped (iii) exceeds agreement. The Court observed that the object of bringing Section 138 on statute appears to be to inculcate faith in the efficacy of banking operations and to ensure credibility in transacting business through cheques. Thereafter, the Court disagreed with other views expressed in aforesaid two cases and held that once the cheque is issued by the drawer a presumption under section 139 must follow and merely because the drawer issues a notice to the drawer or to the bank for stoppage of the payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of a cheque in due course. The Court further held that it will make section 138 a dead letter if the contention that by giving instruction to the Bank to stop payment immediately after issuing a cheque against the debtor or liability the drawer can easily get rid of the penal consequences notwithstanding the fact that deemed offence was committed. Finally, the Court held that Section 138 of the Act gets attracted only when the cheque is dishonoured.13. In view of the aforesaid discussion we are of the opinion that even though Section 138 is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and purpose so as to suppress the mischief and advance the remedy. As stated above, section 138 of the Act has created a contractual breach as an offence and the legislative purpose is to promote efficacy of banking and of ensuring that in commercial or contractual transactions cheques are not dishonoured and credibility in transacting business through cheques is maintained. The above interpretation would be in accordance with the principle of interpretation quoted above brush away the cobweb varnish, and show the transactions in their true light (Wilmot C.J.) or (by Maxwell) "to carry out effectively the breach of the statute, it must be so construed as to defeat all attempts to do, or avoid doing, to an indirect or circuitous manner that it has prohibited". Hence, when the cheque is returned by a bank with an endorsement account closed, it would amount to returning the cheque unpaid because "the amount of money standing to the credit of that account is insufficient to honour the cheque" as envisaged in Section 138 of the Act.In
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644 |
Mrs. Dossibai N. B. Jeejeebhoy Vs. Khemchand Gorumal And Others
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say that it is being let for residence, just as they will say that the land has been let for residence if the lessee intends to use it as caravan site so that the people may live on the open land in caravans.9. In our opinion, the words "let for residence, education, business, trade or storage" are wide enough to include a letting for the achievement of these purposes with construction of buildings as also without construction of buildings.10. But, says Mr. Bhat, look at sub-section (i) of Section 15 of the Rent Act which is in this very Part II and that will show that the Legislature could not have intended land which is let for the construction of buildings for residence to be within the phrase premises let for residence" Section 15 of the Act after its amendment by Bombay Act 49 of 1959 reads thus:-"Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful, after the coming into operation of this act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein."It may be mentioned that as the section originally stood the words "but subject to any contract to the contrary were not there. When the amending Act of 1959 introduced these words the amendment further provided that these words shall be deemed always to have been there. Even after the amendment, it remains unlawful, where there is, no contract to the contrary, for any tenant of premises to sublet the whole or any part thereof. Mr. Bhatts argument is that in every case where there is no such contract to the contrary the difficulty that will result if land let for construction of residential buildings be held to be premises let for residence within the meaning of Section 6 is that after the building is constructed the lessee will not be able to sublet the building or any portion of it; so that in many cases where the real purpose of taking the land is for the construction of building for letting out the same, that purpose will be defeated. This argument as regards the difficulty in the matter of letting out the building constructed on the land on which lease has been taken was more plausible when the saving phrase "but subject to any contract to the contrary" did not form part of the section. Now, however, the cases in which such difficulty will arise, if at all, would be few and far between; for, it is reasonable to expect that when taking lease of land for the construction of building intended to be let out to others for residence, the lessee of the land would take care to include in the contract of lease a term permitting him to let out the building. Assuming that there may be cases where the contract of lease does not contain any such term and assuming further that it will not be lawful for the lessee of the land to let out the building constructed by him, the probability of such difficulty in some cases, can be no reason to cut down the ordinary and reasonable connotation of the words "let for residence" in Section 6.11. It is unnecessary for us to decide whether if there is no contract to the contrary, S. 15 will really stand in the way of a lessee of the land letting out buildings constructed by him on such land. We may say however that there is in our opinion much force in the argument which found favour with the Bombay High Court in Vinayak Gopal v. Laxman Kashinath, ILR (1956) Bom 827 : (AIR 1957 Bom 94 ), where the very question which is now before us arose for decision, that the bar of Section 15 will operate only in the way of letting out the land of which lease has been taken, but will not stand in the way of letting the building constructed on the land.12. In that case the Bombay High Court held that where land is leased for the purpose of construction of buildings for residence the land is "let for residence" within the meaning of Section 6 of the Rent Act. Mr. Bhatt devoted a considerable part of his argument to persuade us that some of the reasons given in that judgment do not stand scrutiny. We think it unnecessary however to examine whether all the reasons given in the judgment are correct. For, as already indicated, the words "let for residence" on a proper construction would cover the case of open land being let for construction of residential buildings and so the conclusion reached by the Bombay High Court in Vinayak Gopals case, ILR (1956) Bom 827 : (AIR 1957 Bom 94 ), is, in our opinion, correct.13. It is unnecessary for us also to consider for the purpose of the present appeals as to what may happen to the sub-lessee if and when on the terms of a particular lease the building ultimately vests in the owner of the land nor as to what may happen if and when on the terms of a particular lease the lessee who has constructed the building gets the right to remove the building gets the right to remove the building. These considerations should not, in our opinion, affect the construction of the words "let for residence."14. Turning now to the facts of the present case we find that in each of these cases the lease was taken with a view to construct buildings thereon for residential, business, industrial or office purposes. The premises let are therefore "premises" to which under S. 6 (1) of the Rent Act the provisions of Part II of the Act, apply.15. The Trial Court and the High Court were therefore right in holding that the City Civil Court, Bombay, had no jurisdiction to try the suits.
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0[ds]It is subject to a proviso that the State Government may direct that in any of the said areas, this Part shall cease to apply to premises let for any of the said purposes, with a further proviso that the State Government may against direct that in any of the said areas this Part shall re-apply to premises let for such of the aforesaid purposes. As there has been no notification under these provisos affecting the premises in suit, we are not concerned with them; nor are we concerned with sub-s. (1) (a) under which the State Government may direct that this Part shall apply to premises let for any otherThe lease mentions that the lessee will construct buildings suitable for residential, business industrial or office purposes. The plaintiffs case is that as open land is not intended to be used as it is for residence or business but for construction of buildings for residence or business the land is not being let for residence oris, in our opinion, no substance in this contention.6. It is quite clear that open land as it is can be used for residence and to there is no reason to think that open land was not intended to be included in "premises" when Section 6 speaks of premises being let forare unable to accept this argument. Land can be used for many purposes. It may be used for agriculture; for residence of human beings; for keeping cattle or other animals; for holding meetings; for carrying on business or trade; for storage of goods; for supply of water by excavating tanks, and many other purposes. Many of these purposes can be achieved on the open land without the construction of any buildings. But many of them can be better achieved if some kind of structure is erected on the open land: It seems reasonable to us to think that when the Bombay Legislature took particular care to include open land not being used for agricultural purposes within the word "premises" and the went on in the very next section to speak of premises being let for several specified purposes, it was thinking of the purposes to which the land will be used irrespective of whether the purpose was intended to be achieved with or without construction of a structure. The intention in mentioning only some purposes. Viz., residence, education, business, trade or storage in Section 6 was to exclude land let for purposes like, keeping of cattle (except in the way of business or trade) and numerous other purposes to which the land may be put from the benefit of Part II of the Act.8. It seems to us that when people speak ordinarily of land being let for business, they are only thinking that the ultimate purpose behind the letting is that business will be carried on and they are not thinking whether the business will be carried on the land in its present state or by the construction of temporary sheds or by putting up permanent buildings. Similarly, when a man says that he will take lease of a plot of land for storage of his goods, what he has in mind is that by taking lease of the land he will achieve the object of storing goods, irrespective of whether for such storage he will have to put up a structure or not. In the same way, we think, that when land has been let for the purpose of constructing buildings for residence, people will say that it is being let for residence, just as they will say that the land has been let for residence if the lessee intends to use it as caravan site so that the people may live on the open land in caravans.9. In our opinion, the words "let for residence, education, business, trade or storage" are wide enough to include a letting for the achievement of these purposes with construction of buildings as also without construction ofhowever, the cases in which such difficulty will arise, if at all, would be few and far between; for, it is reasonable to expect that when taking lease of land for the construction of building intended to be let out to others for residence, the lessee of the land would take care to include in the contract of lease a term permitting him to let out the building. Assuming that there may be cases where the contract of lease does not contain any such term and assuming further that it will not be lawful for the lessee of the land to let out the building constructed by him, the probability of such difficulty in some cases, can be no reason to cut down the ordinary and reasonable connotation of the words "let for residence" in Sectionmay say however that there is in our opinion much force in the argument which found favour with the Bombay High Court in Vinayak Gopal v. Laxman Kashinath, ILR (1956) Bom 827 : (AIR 1957 Bom 94 ), where the very question which is now before us arose for decision, that the bar of Section 15 will operate only in the way of letting out the land of which lease has been taken, but will not stand in the way of letting the building constructed on thethink it unnecessary however to examine whether all the reasons given in the judgment are correct. For, as already indicated, the words "let for residence" on a proper construction would cover the case of open land being let for construction of residential buildings and so the conclusion reached by the Bombay High Court in Vinayak Gopals case, ILR (1956) Bom 827 : (AIR 1957 Bom 94 ), is, in our opinion, correct.13. It is unnecessary for us also to consider for the purpose of the present appeals as to what may happen to the sub-lessee if and when on the terms of a particular lease the building ultimately vests in the owner of the land nor as to what may happen if and when on the terms of a particular lease the lessee who has constructed the building gets the right to remove the building gets the right to remove the building. These considerations should not, in our opinion, affect the construction of the words "let for residence."14. Turning now to the facts of the present case we find that in each of these cases the lease was taken with a view to construct buildings thereon for residential, business, industrial or office purposes. The premises let are therefore "premises" to which under S. 6 (1) of the Rent Act the provisions of Part II of the Act, apply.15. The Trial Court and the High Court were therefore right in holding that the City Civil Court, Bombay, had no jurisdiction to try the suits.
| 0 | 2,593 |
### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
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say that it is being let for residence, just as they will say that the land has been let for residence if the lessee intends to use it as caravan site so that the people may live on the open land in caravans.9. In our opinion, the words "let for residence, education, business, trade or storage" are wide enough to include a letting for the achievement of these purposes with construction of buildings as also without construction of buildings.10. But, says Mr. Bhat, look at sub-section (i) of Section 15 of the Rent Act which is in this very Part II and that will show that the Legislature could not have intended land which is let for the construction of buildings for residence to be within the phrase premises let for residence" Section 15 of the Act after its amendment by Bombay Act 49 of 1959 reads thus:-"Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful, after the coming into operation of this act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein."It may be mentioned that as the section originally stood the words "but subject to any contract to the contrary were not there. When the amending Act of 1959 introduced these words the amendment further provided that these words shall be deemed always to have been there. Even after the amendment, it remains unlawful, where there is, no contract to the contrary, for any tenant of premises to sublet the whole or any part thereof. Mr. Bhatts argument is that in every case where there is no such contract to the contrary the difficulty that will result if land let for construction of residential buildings be held to be premises let for residence within the meaning of Section 6 is that after the building is constructed the lessee will not be able to sublet the building or any portion of it; so that in many cases where the real purpose of taking the land is for the construction of building for letting out the same, that purpose will be defeated. This argument as regards the difficulty in the matter of letting out the building constructed on the land on which lease has been taken was more plausible when the saving phrase "but subject to any contract to the contrary" did not form part of the section. Now, however, the cases in which such difficulty will arise, if at all, would be few and far between; for, it is reasonable to expect that when taking lease of land for the construction of building intended to be let out to others for residence, the lessee of the land would take care to include in the contract of lease a term permitting him to let out the building. Assuming that there may be cases where the contract of lease does not contain any such term and assuming further that it will not be lawful for the lessee of the land to let out the building constructed by him, the probability of such difficulty in some cases, can be no reason to cut down the ordinary and reasonable connotation of the words "let for residence" in Section 6.11. It is unnecessary for us to decide whether if there is no contract to the contrary, S. 15 will really stand in the way of a lessee of the land letting out buildings constructed by him on such land. We may say however that there is in our opinion much force in the argument which found favour with the Bombay High Court in Vinayak Gopal v. Laxman Kashinath, ILR (1956) Bom 827 : (AIR 1957 Bom 94 ), where the very question which is now before us arose for decision, that the bar of Section 15 will operate only in the way of letting out the land of which lease has been taken, but will not stand in the way of letting the building constructed on the land.12. In that case the Bombay High Court held that where land is leased for the purpose of construction of buildings for residence the land is "let for residence" within the meaning of Section 6 of the Rent Act. Mr. Bhatt devoted a considerable part of his argument to persuade us that some of the reasons given in that judgment do not stand scrutiny. We think it unnecessary however to examine whether all the reasons given in the judgment are correct. For, as already indicated, the words "let for residence" on a proper construction would cover the case of open land being let for construction of residential buildings and so the conclusion reached by the Bombay High Court in Vinayak Gopals case, ILR (1956) Bom 827 : (AIR 1957 Bom 94 ), is, in our opinion, correct.13. It is unnecessary for us also to consider for the purpose of the present appeals as to what may happen to the sub-lessee if and when on the terms of a particular lease the building ultimately vests in the owner of the land nor as to what may happen if and when on the terms of a particular lease the lessee who has constructed the building gets the right to remove the building gets the right to remove the building. These considerations should not, in our opinion, affect the construction of the words "let for residence."14. Turning now to the facts of the present case we find that in each of these cases the lease was taken with a view to construct buildings thereon for residential, business, industrial or office purposes. The premises let are therefore "premises" to which under S. 6 (1) of the Rent Act the provisions of Part II of the Act, apply.15. The Trial Court and the High Court were therefore right in holding that the City Civil Court, Bombay, had no jurisdiction to try the suits.
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645 |
Parveen Mehta Vs. Inderjit Mehta
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case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. 19. Clause (ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91). 20. In the case in hand the foundation of the case of cruelty as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated. when the husband offered to have the wife treated medically she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K. Jain. This Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastane (supra), observed: Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment. 21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The interference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instances of misbehavior in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the fact and circumstances emerging from the evidence on record and then drawn a fair inference whether the petitioner in the divorce petition her been subjected to mental cruelty due to conduct of the other. 22. Judged in the light of the principles discussed above what we find is that right from the beginning the matrimonial relationship between the parties was not normal; the spouses stayed together at the matrimonial home for a short period of about six months; the respondent had been trying to persuade the appellant and her parents to agree to go for proper medical treatment to improve her health so that the parties may lead a normal sexual life; all such attempts proved futile. The appellant even refused to subject herself to medical test as advised by the doctor. After 21st June, 1987 she stayed away from the matrimonial home and the respondent was deprived of her company. In such circumstances, the respondent who was enjoying normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person expects to enjoy and also social embarrassment due to the behavior of the appellant. Further, the conduct of the appellant in approaching the police complaining against her husband and his parents and in not accepting the advice of the superior judicial officer Mr. S.K. Jain and taking a false plea in the case that she had conceived but unfortunately there was miscarriage are bound to cause a sense of mental depression in the respondent. The cumulative effect of all these on the mind of the respondent, in our considered view, amounts to mental cruelty caused due to the stubborn attitude and inexplicably unreasonable conduct of the appellant. 23. The learned Single Judge in his judgment has discussed the evidence in detail and has based his findings on such discussions. In the Letters Patent Appeal the Division Bench on consideration of the facts and circumstances of the case agreed with the findings recorded by the learned Single Judge. In the context of the facts and circumstances on record we are of the view that the learned Single Judge rightly came to the conclusion that the prayer of the respondent for dissolution of the marriage on the ground of cruelty under Section 13(1)(ia) of the Act was acceptable. Therefore, the Division Bench committed no error in upholding the judgment of the learned Single Judge. 24. As noted earlier the parties were married on 6th December, 1985. They stayed together for a short period till 28th April 1986 when they parted company. Despite several attempts by relatives and well-wishers no conciliation between them was possible. The petition for the dissolution of the marriage was filed in the year 1996. In the meantime so many years have elapsed since the spouses parted company.
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0[ds]n (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91)20. In the case in hand the foundation of the case of cruelty as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated. when the husband offered to have the wife treated medically she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K. Jain. This Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastane (supra), observed: Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The interference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instances of misbehavior in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the fact and circumstances emerging from the evidence on record and then drawn a fair inference whether the petitioner in the divorce petition her been subjected to mental cruelty due to conduct of the other22. Judged in the light of the principles discussed above what we find is that right from the beginning the matrimonial relationship between the parties was not normal; the spouses stayed together at the matrimonial home for a short period of about six months; the respondent had been trying to persuade the appellant and her parents to agree to go for proper medical treatment to improve her health so that the parties may lead a normal sexual life; all such attempts proved futile. The appellant even refused to subject herself to medical test as advised by the doctor. After 21st June, 1987 she stayed away from the matrimonial home and the respondent was deprived of her company. In such circumstances, the respondent who was enjoying normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person expects to enjoy and also social embarrassment due to the behavior of the appellant. Further, the conduct of the appellant in approaching the police complaining against her husband and his parents and in not accepting the advice of the superior judicial officer Mr. S.K. Jain and taking a false plea in the case that she had conceived but unfortunately there was miscarriage are bound to cause a sense of mental depression in the respondent. The cumulative effect of all these on the mind of the respondent, in our considered view, amounts to mental cruelty caused due to the stubborn attitude and inexplicably unreasonable conduct of the appellant23. The learned Single Judge in his judgment has discussed the evidence in detail and has based his findings on such discussions. In the Letters Patent Appeal the Division Bench on consideration of the facts and circumstances of the case agreed with the findings recorded by the learned Single Judge. In the context of the facts and circumstances on record we are of the view that the learned Single Judge rightly came to the conclusion that the prayer of the respondent for dissolution of the marriage on the ground of cruelty under Section 13(1)(ia) of the Act was acceptable. Therefore, the Division Bench committed no error in upholding the judgment of the learned Single Judge24. As noted earlier the parties were married on 6th December, 1985. They stayed together for a short period till 28th April 1986 when they parted company. Despite several attempts by relatives ands no conciliation between them was possible. The petition for the dissolution of the marriage was filed in the year 1996. In the meantime so many years have elapsed since the spouses parted company.
| 0 | 4,853 |
### 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:
case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. 19. Clause (ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91). 20. In the case in hand the foundation of the case of cruelty as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated. when the husband offered to have the wife treated medically she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K. Jain. This Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastane (supra), observed: Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment. 21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The interference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instances of misbehavior in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the fact and circumstances emerging from the evidence on record and then drawn a fair inference whether the petitioner in the divorce petition her been subjected to mental cruelty due to conduct of the other. 22. Judged in the light of the principles discussed above what we find is that right from the beginning the matrimonial relationship between the parties was not normal; the spouses stayed together at the matrimonial home for a short period of about six months; the respondent had been trying to persuade the appellant and her parents to agree to go for proper medical treatment to improve her health so that the parties may lead a normal sexual life; all such attempts proved futile. The appellant even refused to subject herself to medical test as advised by the doctor. After 21st June, 1987 she stayed away from the matrimonial home and the respondent was deprived of her company. In such circumstances, the respondent who was enjoying normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person expects to enjoy and also social embarrassment due to the behavior of the appellant. Further, the conduct of the appellant in approaching the police complaining against her husband and his parents and in not accepting the advice of the superior judicial officer Mr. S.K. Jain and taking a false plea in the case that she had conceived but unfortunately there was miscarriage are bound to cause a sense of mental depression in the respondent. The cumulative effect of all these on the mind of the respondent, in our considered view, amounts to mental cruelty caused due to the stubborn attitude and inexplicably unreasonable conduct of the appellant. 23. The learned Single Judge in his judgment has discussed the evidence in detail and has based his findings on such discussions. In the Letters Patent Appeal the Division Bench on consideration of the facts and circumstances of the case agreed with the findings recorded by the learned Single Judge. In the context of the facts and circumstances on record we are of the view that the learned Single Judge rightly came to the conclusion that the prayer of the respondent for dissolution of the marriage on the ground of cruelty under Section 13(1)(ia) of the Act was acceptable. Therefore, the Division Bench committed no error in upholding the judgment of the learned Single Judge. 24. As noted earlier the parties were married on 6th December, 1985. They stayed together for a short period till 28th April 1986 when they parted company. Despite several attempts by relatives and well-wishers no conciliation between them was possible. The petition for the dissolution of the marriage was filed in the year 1996. In the meantime so many years have elapsed since the spouses parted company.
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646 |
Anil Hada Vs. Indian Acrylic Ltd
|
in a case. It is open to any one of the accused to adduce evidence to rebut the said presumption. In a prosecution where both the drawer company and its office-bearers are arrayed as accused, and if the drawer company does not choose to adduce any rebuttal evidence it is open to the other office bearers-accused to adduce such rebuttal evidence. If that be so, even in a case where the drawer company is not made an accused but the office-bearers of the company alone are made the accused such office bearers-accused are well within their rights to adduce rebuttal evidence to establish that the company did not issue the cheque towards any antecedent liability. 15. Hence we are not impressed by the contention that Section 139 of the Act would afford support to the plea that prosecution of the company is sine qua non for persecuting its directors under section 141 of the Act. 16. In State of Madras v. C.V. Parekh and anr., 1970 (3) SCC 491 , a prosecution was launched against the Managing Director of a private limited company for the offence under Section 7 of the Essential Commodities Act with the aid of Section 10 of that Act. (That provision is very much analogous to Section 141 of the N.I. Act). The said private limited company was not included as an accused in the case. When the trial court acquitted the Managing Director the State challenged the acquittal before the High Court and having failed there also the State filed an appeal before this Court by special leave. It was contended before this Court that if the person arrayed as accused was shown to be in charge and was responsible for the conduct of the business of the company such person is liable to be convicted. This Court did not accept the contention and held that it must further be proved that the company has contravened the order issued under the E.C. Act. The following observations of this Court in the said decision are relevant: This argument cannot be accepted, because it ignores the first condition for the applicability of Section 10 to the effect that the person contravening the order must be a company itself. In the present case, there is no finding either by the Magistrate or by the High Court that the sale in contravention of clause (5) of the Iron and Steel Control Order was made by the Company. In fact, the Company was not charged with the offence at all. The liability of the persons in charge of the Company only arises when the contravention is by the Company itself. Since, in this case, there is no evidence and no finding that the Company contravened clause (5) of the Iron and Steel Control Order, the two respondents could not be held responsible. 17. The same provision under the E.C. Act was again considered by this Court in Sheoratan Agarwal and another v. State of Madhya Pradesh, AIR 1984 SC 1824 . In the said decision this Court explained the legal principle enunciated in State of Madras v. C.V. Parekh (supra) that there should be a finding that the contravention was made by the company before convicting the accused and not that the company itself should have been prosecuted along with the accused. We may say with great respect that the above understanding of the ratio in State of Madras v. C.V. Parekh cannot be taken exception to. Chinnappa Reddy, J., who spoke for the two Judge Bench in Sheoratan Agarwal (supra) further observed as follows : Any one or more or all of them may be prosecuted and punished. The Company alone may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. There is no statutory compulsion that the person-in-charge or an officer of the Company may not be prosecuted unless he be ranged alongside the company itself. S. 10 indicates the persons who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person-in-charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the company. 18. Smt. Indira Jaising, learned senior counsel submitted that he observations in the aforesaid two decisions are not exactly to the point involved in this case and on the contrary the decision in U.P. Pollution Control Board v. M/s. Modi Distillery and others, AIR 1988 SC 1128 was endeavoured to be shown as covering the issue involved now. In the said case a prosecution was moved against members of the Board of Directors of M/s. Modi Distillery under Section 44 of the Water (Prevention and Control of Pollution) Act, 1974. Section 47 of that Act is identical to Section 141 of the N.I. Act. M/s. Modi Distillery was not arraigned as an accused in that case and hence the High Court quashed the proceedings as against the others. This Court set aside the judgment of the High Court on the premise that even if there was any such technical flaw it was a curable flaw and directed the trial court to implead the company also as an accused. Of course there is an observation in the said decision, which is sought to be given much emphasis to, as follows: Although as a pure proposition of law in the abstract the learned single Judges view that there can be no vicarious liability of the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors under sub-s. (1) or (2) of S. 47 of the Act unless there was a prosecution against Messrs Modi Industries Limited, the Company owing the industrial unit, can be termed as correct, the objection raised by the petitioners before the High Court ought to have been viewed not in isolation but in the conspectus of facts and events and not in vacuum.
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0[ds]10. Normally an offence can be committed by human beings who are natural persons. Such offence can be tried according to the procedure established by law. But there are offences which could be attributed to juristic persons also. If the drawer of a cheque happens to be a juristic person like a body corporate it can be prosecuted for the offence under Section 138 of the Act. Now there is no scope for doubt regarding that aspect in view of the clear language employed in Section 141 of the Act. In the expanded ambit of the word company even firms or any other associations of persons are included and as a necessary adjunct thereof a partner of the firm is treated as director of that company11. Thus when the drawer of the cheque who falls within the ambit of Section 138 of the Act is a human being or a body corporate or even firm, prosecution proceedings can be initiated against such drawer. In this context the phrase as well as used inn (1) of Section 141 of the Act has some importance. The said phrase would embroil the persons mentioned in the first category within the tentacles of the offence on a par with the offending company. Similarly the words shall also inn (2) are capable of bringing the third category persons traditionally within the dragnet of the offence on an equal par. The effect of reading Section 141 is that when the company is the drawer of the cheque such company is the principal offender under Section 138 of the Act and the remaining persons are made offenders by virtue of the legal fiction created by the legislature as per the Section. Hence the actual offence should have been committed by the company, and then alone the other two categories of persons can also become liable for the offence12. If the offence was committed by a company it can be punished only if the company is prosecuted. But instead of prosecuting the company if a payee opts to prosecute only the persons falling within the second or third category the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company. In such a prosecution the accused can show that the company has not committed the offence, though such company is not made an accused, and hence the prosecuted accused is not liable to be punished. The provisions do not contain a condition that prosecution of the company is sine qua non for prosecution of the other persons who fall within the second and the third categories mentioned above. No doubt a finding that the offence was committed by the company is sine qua non for convicting those other persons. But if a company is not prosecuted due to any legal snag or otherwise, the other prosecuted persons cannot, on that score alone, escape from the penal liability created through the legal fiction envisaged in Section 141 of the Act14. The aforesaid presumption is in favour of the holder of the cheque. It is not mentioned in the section that the said presumption would operate only against the drawer. After all a presumption is only for casting the burden of proof as to who should adduce evidence in a case. It is open to any one of the accused to adduce evidence to rebut the said presumption. In a prosecution where both the drawer company and itss are arrayed as accused, and if the drawer company does not choose to adduce any rebuttal evidence it is open to the other officed to adduce such rebuttal evidence. If that be so, even in a case where the drawer company is not made an accused but thes of the company alone are made the accused such officed are well within their rights to adduce rebuttal evidence to establish that the company did not issue the cheque towards any antecedent liability15. Hence we are not impressed by the contention that Section 139 of the Act would afford support to the plea that prosecution of the company is sine qua non for persecuting its directors under section 141 of the Act.
| 0 | 3,152 |
### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
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in a case. It is open to any one of the accused to adduce evidence to rebut the said presumption. In a prosecution where both the drawer company and its office-bearers are arrayed as accused, and if the drawer company does not choose to adduce any rebuttal evidence it is open to the other office bearers-accused to adduce such rebuttal evidence. If that be so, even in a case where the drawer company is not made an accused but the office-bearers of the company alone are made the accused such office bearers-accused are well within their rights to adduce rebuttal evidence to establish that the company did not issue the cheque towards any antecedent liability. 15. Hence we are not impressed by the contention that Section 139 of the Act would afford support to the plea that prosecution of the company is sine qua non for persecuting its directors under section 141 of the Act. 16. In State of Madras v. C.V. Parekh and anr., 1970 (3) SCC 491 , a prosecution was launched against the Managing Director of a private limited company for the offence under Section 7 of the Essential Commodities Act with the aid of Section 10 of that Act. (That provision is very much analogous to Section 141 of the N.I. Act). The said private limited company was not included as an accused in the case. When the trial court acquitted the Managing Director the State challenged the acquittal before the High Court and having failed there also the State filed an appeal before this Court by special leave. It was contended before this Court that if the person arrayed as accused was shown to be in charge and was responsible for the conduct of the business of the company such person is liable to be convicted. This Court did not accept the contention and held that it must further be proved that the company has contravened the order issued under the E.C. Act. The following observations of this Court in the said decision are relevant: This argument cannot be accepted, because it ignores the first condition for the applicability of Section 10 to the effect that the person contravening the order must be a company itself. In the present case, there is no finding either by the Magistrate or by the High Court that the sale in contravention of clause (5) of the Iron and Steel Control Order was made by the Company. In fact, the Company was not charged with the offence at all. The liability of the persons in charge of the Company only arises when the contravention is by the Company itself. Since, in this case, there is no evidence and no finding that the Company contravened clause (5) of the Iron and Steel Control Order, the two respondents could not be held responsible. 17. The same provision under the E.C. Act was again considered by this Court in Sheoratan Agarwal and another v. State of Madhya Pradesh, AIR 1984 SC 1824 . In the said decision this Court explained the legal principle enunciated in State of Madras v. C.V. Parekh (supra) that there should be a finding that the contravention was made by the company before convicting the accused and not that the company itself should have been prosecuted along with the accused. We may say with great respect that the above understanding of the ratio in State of Madras v. C.V. Parekh cannot be taken exception to. Chinnappa Reddy, J., who spoke for the two Judge Bench in Sheoratan Agarwal (supra) further observed as follows : Any one or more or all of them may be prosecuted and punished. The Company alone may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. There is no statutory compulsion that the person-in-charge or an officer of the Company may not be prosecuted unless he be ranged alongside the company itself. S. 10 indicates the persons who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person-in-charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the company. 18. Smt. Indira Jaising, learned senior counsel submitted that he observations in the aforesaid two decisions are not exactly to the point involved in this case and on the contrary the decision in U.P. Pollution Control Board v. M/s. Modi Distillery and others, AIR 1988 SC 1128 was endeavoured to be shown as covering the issue involved now. In the said case a prosecution was moved against members of the Board of Directors of M/s. Modi Distillery under Section 44 of the Water (Prevention and Control of Pollution) Act, 1974. Section 47 of that Act is identical to Section 141 of the N.I. Act. M/s. Modi Distillery was not arraigned as an accused in that case and hence the High Court quashed the proceedings as against the others. This Court set aside the judgment of the High Court on the premise that even if there was any such technical flaw it was a curable flaw and directed the trial court to implead the company also as an accused. Of course there is an observation in the said decision, which is sought to be given much emphasis to, as follows: Although as a pure proposition of law in the abstract the learned single Judges view that there can be no vicarious liability of the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors under sub-s. (1) or (2) of S. 47 of the Act unless there was a prosecution against Messrs Modi Industries Limited, the Company owing the industrial unit, can be termed as correct, the objection raised by the petitioners before the High Court ought to have been viewed not in isolation but in the conspectus of facts and events and not in vacuum.
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647 |
M/S. Peirce Leslie & Co., Ltd., Kozhikode Vs. Their Workmen
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the fact that not these staff members alone but 11,247 other workmen as well have contributed to the emergence of this surplus.The appellants argument was that staff members who have raised this dispute should not be allowed to steal an advantage over the numerous other workers of the company and that just as results of the different branches of the company have been considered as a whole in arriving at the figure of available surplus it is just and proper that these workmen who have raised the dispute should be given only a fair share not of that portion of the surplus which may be considered properly payable to all the workmen of the company.In dealing with this question the Tribunal has said :-"But the fortune of the 11,247 workers depends upon the trading results of the department in which they are working; the bonus of the workers is decided compartment-wise and not on the basis of the over-all profits of the company. Cashew workers are given bonus on the basis of the cashew department profits and not on the basis of the total profits of the company. The staff members are transferable from one department to another and from one branch to another branch." We are not able to understand how in spite of the way the companys balance-sheets and profit and loss accounts have been kept the different departments of the company could be treated separately for the purposes of bonus. The mere fact that the company has actually done so does not make such distribution right. Obviously if cashew workers would in fact be entitled to a larger bonus on the overall results of the company they have been unfairly treated by the company in having been given lesser bonus on the basis of cashew department profits. It is urged on behalf of the appellant that the fact that the workmen other than these staff-members have got less than they would have been entitled to does not justify the grant of a larger share to the present workmen than what they would be entitled to if those other workmen had been given a fair share. 19. This Court had to deal with a some-what similar position in Indian Hume Pipe Co. v. Their Workmen, 1959-2 Lab LJ 357 : (AIR 1959 SC 1081 ). The respondents there were workmen only of the Wadala factory. The appellant had however paid to various workmen elsewhere as and by way of bonus varying between 4 per cent and 29 per cent of the basic wages for the year in question. It was clear that the sum of Rs. 1,23,138 only had been paid in full and final settlement to the workmen in some of the factories and the bonus calculations on an all-India basis would work to the advantage of the appellant, in so far as they would result in saving to the appellant of the difference between the amounts to which those workmen would be entitled to on the basis of the all-India figures adopted by the tribunal and the amounts actually paid to them as a result of agreements, conciliation or adjudication. On behalf of the respondents it was therefore contended that the calculations should be made after taking into account the savings thus effected. Dealing with this contention this Court observed :-"We are afraid we cannot accept this contention. If this contention was accepted, the respondents before us would have an advantage over those workmen with whom settlements have been made and would get larger amounts by way of bonus merely by reason of the fact that the appellant had managed to settle the claims of those workmen at lesser figures. If this contention of the respondents was pushed to its logical extent, it would also mean that in the event of the non-fulfilment of the conditions imposed by the tribunal in the award of bonus herein bringing in saving in the hands of the appellant, the respondents would be entitled to take advantage of those savings also and should be awarded larger amounts by way of bonus, which would really be the result of the claimants entitled to the same not receiving it under certain circumstances - an event which would be purely an extraneous one and unconnected with the contribution of the respondents towards the gross profits earned by the appellant. The tribunal was, therefore, right in calculating the bonus on an all-India basis." 20. Though in the present case there has been no "settlement" strictly speaking with the other workers in the various branches, the considerations which weighed with the Court in the above case are fully applicable to this case and the Tribunal must be held to have committed an error in treating the sum still in the hands of the company as a matter only between the company and these present claimants. 21. In deciding what relief may reasonably be given to the appellant company in view of this error in the Tribunals approach to the question of distribution of the amount still available, we have however to take into account two errors which have been made by the Tribunal in this connection in favour of the appellant. One of these is that in distributing the available surplus the Tribunal omitted to take into account the important fact that a sum of no less than L1,10,000 has been capitalised out of the reserves at the beginning of the year. The second error was that the Tribunal in saying that after paying 8 months bonus there is a balance of L34,397 with the employer, omitted to take into consideration the fact that the company would also have the benefit of a large amount as income-tax rebate in respect of the bonus paid of its clerical staff. 22. Taking all these facts into consideration we are of opinion that a fair order would be to award to the staff bonus equivalent to 3 months basic wages in addition to the amount already paid voluntarily.
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1[ds]3. If therefore there was reason to think that the appellant companys contention that its business was attended with ususual risks was correct there would have been good reason to allow a higher rate than 6 per cent on the paid up capital and also a higher rate than 4 per cent on the reserves used a working capital. We are not however satisfied that any such unusual risk is run. There is no more speculation in buying raw nuts and roasting the same and selling them than there is, say, in buying raw cotton in the market, spinning yarn therefrom, making it into cloth and selling such cloth, or in buying raw jute, spinning yarn therefrom weaving it into gunny cloth and selling the same.No case for any higher return on the paid up capital or working capital has been made out by the evidence6. The very fact that such care has been taken in furnishing details to the Court inclines on prima facie to accept the correctness of these figures without much scrutiny. Scrutiny is however very much needed before the figures and the calculations are accepted. Mention may first be made of the fact that though it was stated by the witness who is responsible for the preparation of the replacement costs of the machinery that he obtained quotations from different firms, no such quotation has been placed on record. That, as the Tribunal itself recognized affected very much the value of these figures. As however after mentioning the infirmities of the evidence the Tribunal decided to accept as a reasonably accurate statement this figure of Rs. 1,08,02,330 as the total replacement value we need not consider whether we ourselves would have been prepared to accept the evidence if the matter was being considered by us in the first instance9. It appears to us that this method of arriving at the rehabilitation costs to be provided in a particular year is not useful and cannot be safely relied upon.To understand the fallacy of the method applied we may briefly state the logic behind the provisions for rehabilitation. Because the fixed capital of any industry is the victim of gradual deterioration the prudent businessman creates reserves out of his profits so that as soon as any portion of the fixed capital has become too deteriorated for efficient working it may be replaced. The economic welfare of the country as a whole no less than the interests of the businessman requires that the companys capital fund should remain intact. It is for this reason that an amount reasonably sufficient for the notional requirement of rehabilitation during the relevant year is deducted as a prior charge in ascertaining surplus profits from which bonus can be paid. The basis of the prior charge is the assumption that rehabilitation is a continuing process and so needs allotment from year to year. That is why it has now been held that if the amount allotted for a specific year is not used, it should be taken into account in the later year11. The entire basis of the calculation of the replacement cost by the appellants experts is what such costs will be if the building was pulled down or the machinery scrapped in 1955 and had to be replaced by a new machinery on that date. His estimate of the replacement cost cannot therefore be accepted as a sure basis for any calculation of the rehabilitation costs to be provided12. It is unnecessary therefore to go into the further question as to whether the Tribunal was justified in treating the sum of L20,000 and also another sum of L44,760 as available towards rehabilitation. We may however indicate that if it were necessary to go into the question we would have probably hesitated to hold that these sums were not in fact available for rehabilitation13. A strict view of the evidence thus justifies a conclusion that the appellant company has failed to make out any case for rehabilitation allowance in addition to the ordinary depreciation. As however the learned counsel for the respondent did not challenge the correctness of the allowance of L11,250 assessed by the Tribunal as the total allowances towards statutory depreciation and rehabilitation together it would be proper to apply the formula on that basis16. There is apart from this the important fact that the company itself does not claim that whatever appears to be one the asset side over and above the paid up capital has some from the reserves. Exhibit E-30 is the statement prepared by the companys chartered Accountant to show "Reconciliation of working capital as on 30th June, 1958." It arrives at the figure of L6,05,564 as the working capital by deducting from the current assets as per balance-sheet as on June 30, 1955, six out of nine items under "Current liabilities and provisions", - 3 items not deducted are those under (1) liability for taxation other than U. K. Income-tax, (2) proposed dividend on deferred ordinary shares and (3) capital profits on proposed distribution. The obvious reason for deducting the six items from the current assets to arrive at the working capital is that these items in the balance-sheets under current liabilities and provision would have to be met during the year out of a portion of the current assets, which portion would accordingly not be available for use as working capital. If that is the case as regards the other items under current liabilities and provisions it is not clear why that should not also be the case as regards the current liabilities under "liabilities for taxation other than U. K. Income-tax and under "proposed dividend on deferred ordinary shares." In the absence of evidence to the contrary there is no ground for thinking that these current liabilities had not also to be met out of the current assets during the year. No such evidence has been produced. The Tribunal is therefore right in our opinion in rejecting the companys claim that these amounts were also employed as working capital20. Though in the present case there has been no "settlement" strictly speaking with the other workers in the various branches, the considerations which weighed with the Court in the above case are fully applicable to this case and the Tribunal must be held to have committed an error in treating the sum still in the hands of the company as a matter only between the company and these present claimants22. Taking all these facts into consideration we are of opinion that a fair order would be to award to the staff bonus equivalent to 3 months basic wages in addition to the amount already paid voluntarily.
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Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
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the fact that not these staff members alone but 11,247 other workmen as well have contributed to the emergence of this surplus.The appellants argument was that staff members who have raised this dispute should not be allowed to steal an advantage over the numerous other workers of the company and that just as results of the different branches of the company have been considered as a whole in arriving at the figure of available surplus it is just and proper that these workmen who have raised the dispute should be given only a fair share not of that portion of the surplus which may be considered properly payable to all the workmen of the company.In dealing with this question the Tribunal has said :-"But the fortune of the 11,247 workers depends upon the trading results of the department in which they are working; the bonus of the workers is decided compartment-wise and not on the basis of the over-all profits of the company. Cashew workers are given bonus on the basis of the cashew department profits and not on the basis of the total profits of the company. The staff members are transferable from one department to another and from one branch to another branch." We are not able to understand how in spite of the way the companys balance-sheets and profit and loss accounts have been kept the different departments of the company could be treated separately for the purposes of bonus. The mere fact that the company has actually done so does not make such distribution right. Obviously if cashew workers would in fact be entitled to a larger bonus on the overall results of the company they have been unfairly treated by the company in having been given lesser bonus on the basis of cashew department profits. It is urged on behalf of the appellant that the fact that the workmen other than these staff-members have got less than they would have been entitled to does not justify the grant of a larger share to the present workmen than what they would be entitled to if those other workmen had been given a fair share. 19. This Court had to deal with a some-what similar position in Indian Hume Pipe Co. v. Their Workmen, 1959-2 Lab LJ 357 : (AIR 1959 SC 1081 ). The respondents there were workmen only of the Wadala factory. The appellant had however paid to various workmen elsewhere as and by way of bonus varying between 4 per cent and 29 per cent of the basic wages for the year in question. It was clear that the sum of Rs. 1,23,138 only had been paid in full and final settlement to the workmen in some of the factories and the bonus calculations on an all-India basis would work to the advantage of the appellant, in so far as they would result in saving to the appellant of the difference between the amounts to which those workmen would be entitled to on the basis of the all-India figures adopted by the tribunal and the amounts actually paid to them as a result of agreements, conciliation or adjudication. On behalf of the respondents it was therefore contended that the calculations should be made after taking into account the savings thus effected. Dealing with this contention this Court observed :-"We are afraid we cannot accept this contention. If this contention was accepted, the respondents before us would have an advantage over those workmen with whom settlements have been made and would get larger amounts by way of bonus merely by reason of the fact that the appellant had managed to settle the claims of those workmen at lesser figures. If this contention of the respondents was pushed to its logical extent, it would also mean that in the event of the non-fulfilment of the conditions imposed by the tribunal in the award of bonus herein bringing in saving in the hands of the appellant, the respondents would be entitled to take advantage of those savings also and should be awarded larger amounts by way of bonus, which would really be the result of the claimants entitled to the same not receiving it under certain circumstances - an event which would be purely an extraneous one and unconnected with the contribution of the respondents towards the gross profits earned by the appellant. The tribunal was, therefore, right in calculating the bonus on an all-India basis." 20. Though in the present case there has been no "settlement" strictly speaking with the other workers in the various branches, the considerations which weighed with the Court in the above case are fully applicable to this case and the Tribunal must be held to have committed an error in treating the sum still in the hands of the company as a matter only between the company and these present claimants. 21. In deciding what relief may reasonably be given to the appellant company in view of this error in the Tribunals approach to the question of distribution of the amount still available, we have however to take into account two errors which have been made by the Tribunal in this connection in favour of the appellant. One of these is that in distributing the available surplus the Tribunal omitted to take into account the important fact that a sum of no less than L1,10,000 has been capitalised out of the reserves at the beginning of the year. The second error was that the Tribunal in saying that after paying 8 months bonus there is a balance of L34,397 with the employer, omitted to take into consideration the fact that the company would also have the benefit of a large amount as income-tax rebate in respect of the bonus paid of its clerical staff. 22. Taking all these facts into consideration we are of opinion that a fair order would be to award to the staff bonus equivalent to 3 months basic wages in addition to the amount already paid voluntarily.
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648 |
Commissioner of Income Tax, Bihar & Orissa Vs. S.P. Jain
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Bank in which were credited sum of about Rs. 38 lakhs got by the sale of those shares. Practically all these amounts were said to have been realised by the Rana by issuing bearer cheques in favour of a peon of Ashoka Marketing Co. who had been casually introduced to him. The Rana could not have been too big to go to the bank to collect these huge amounts, if he was the real owner of the money. He is said to have waited in the premises belonging to Sahu Jain Co. and sent these bearer cheques through the said peon. It is further said that with a view to see that the peon did not misappropriate the money. Rana used to send his own driver with him. If that was so, it is not explained why Rana did not give the bearer cheques to his driver himself if the driver was so trustworthy and it is not explained what the Rana did with the money so collected. The above enumerated circumstances are tell-tale. The only reasonable inference that can be drawn from those circumstances is that the Rana was a mere name lender. The conclusion reached by the Income-tax Officer and the Appellate Assistant Commissioner that the Rana was a mere name-lender is a reasonable conclusion. Neither the Tribunal nor the High Court has given any good reasons for rejecting those conclusions. 35. The next question is whether the department has established that the Rana was a benamidar for the assessee. As mentioned earlier, it is not sufficient if the department establishes that the Rana was the benamidar for somebody. It must go further and establish that the Rana was the benamidar of the assessee. There are good reasons to come to a conclusion that the Rana was the benamidar of the assessee. There are, as have been noted already :-1. The close association of the assessee with the Rana, which is evident from the record. It was the assessee who introduced the Rana to Nandlal who was a close associate of the assessee and it was Nandlal who introduced the Rana to the Allahabad Bank. Rana did not go to collect the money from the Allahabad Bank, but is said to have stayed in the premises of Sahu Jain Co., a company with which the assessee was closely associated and further a peon who gets the money from the bank was residing in the house of Sahu Jain. 11 Clive Row when the notice under Section 37 of the Act was served on him. According to this peon. A. C. Das, it was Dujaria who asked him to render that service to Rana. According to Dujaria it was the assessee Jain who introduced him to Rana and asked him to assist the Rana. It also appears from the evidence adduced on behalf of the assessee that the huge amount of about Rs. 38 lakhs collected by the Allahabad Bank was realised by the Rana by issuing bearer cheques to the above mentioned peon of Ashoka Marketing Co., an assessees concern. Further, it was the assessee who produced the so-called affidavit of the Rana but at the same time would not produce the Rana for examination for obvious reasons. 2. The D. J. C. Ltd. and M. C. Ltd., would not have sold suddenly the shares without any previous correspondence or without even informing the companys Secretary or Director, unless of course, there was intercession by some one who had influence over those companies. 3. There is no admissible evidence to establish that Rana brought a bagful of currency notes and gave it to the companies. Even if the Rana had paid the price in cash to the companies, the companies would have deposited those amounts in some bank. On the other hand, those companies are said to have given the entire price realised by the sale of the shares immediately as a loan to one Durga Prasad on the basis of the two promissory notes. In discussing this aspect we had pointed out the incongruity in the first and the second statement of Durga Prasad to show that the loan of Rs. 10,80,000/- was said to have been given to him by the vendor companies in one lump sum that he carried this huge amount from Calcutta to Nagpur and gave it to his Munim and that he never deposited that amount in any bank. There is also a total absence of any material to show how Durga Prasad had spent these amounts. All these circumstances would clearly indicate that the story is a fictitious one and that the alleged loan to Durga Prasad is a pure fabrication. It is therefore clear that Durga Prasad is no other than a mere puppet of the assessee. 4. The shares alleged to have been purchased by the Rana were found to be in possession of Ashoka Marketing Co. a concern practically owned by the assessee. Unless the assessee was the purchaser of those shares, the shares could not have been in the possession of the Ashoka Marketing Co. It is reasonable to assume that after the alleged sale, the assessee was in possession of the shares through Ashoka Marketing Company. 5. After the shares were sold the money was collected and brought from the bank as pointed out above by the peon A. C. Das of the Ashoka Marketing Co. on nine bearer cheques and according to A. C. Das he paid those amounts to the Rana in the premises of the assessee Sahu Jain at 11 Clive Row. 36. From the circumstances above enumerated, the Income-tax Officer and the Appellate Assistant Commissioner were fully justified in drawing an inference that the Rana was a name lender for the assessee. Neither the Tribunal nor the High Court has given good reasons for displacing the conclusions reached by the Income-tax Officer and the Appellate Assistant Commissioner. They had a duty to examine the reasons given by those authorities before rejecting them.
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1[ds]17. In this case the revenue had in its application under Section 66 of the Act asked for specific reference on the question:"Whether on the facts and in the circumstances of the case the finding of the Tribunal that a sum of Rs. 10,80,000/- paid for the purpose of the shares was not assessees own income was a perverse finding having regard to the evidence on the record ?"This question was repeated in its application under Section 66 (2) but perhaps the High Court thought that questions 2 and 3 on which it directed the Tribunal to state a case would cover the scope and ambit of question 3 on which the revenue had asked for reference. We think that the two questions on which the reference has been made impugn the finding and the validity of the Tribunals conclusion that Rs. 10,80,000/- was not an income from undisclosed sources, but was the product of a genuine sale by the vendor companies. Though this question does raise the validity of the finding given by the Tribunal, we have to ask ourselves the question, in what circumstances will this Court interfere with the finding given by the Tribunal or arrive at a different conclusions to that arrived at by it18. In our view, the High Court and this Court have always the jurisdiction to intervene if it appears that either the Tribunal has misunderstood the statutory language, because the proper construction of the statutory language is a matter of law, or it has arrived at a finding based on no evidence or where the finding is inconsistent with the evidence or contradictory of it or it has acted on material partly relevant and partly irrelevant or where the Tribunal draws upon its own imagination, imports facts and circumstances not apparent from the record or bases its cosnclusions on mere conjectures or surmises or where no person judicially acting and properly instructed as to the relevant law could have come to the determination reached. In all such cases the finding arrived at are vitiated31. Another important factor to be considered is that after the shares were transferred in the name of Rana in 1955, Rana is said to have opened an account in his name in the Allahabad Bank and was said to be selling them in the market in lots and whenever their sale proceeds accumulated he would withdraw it by cheques. Nandan Lal Podar said, he introduced Rana to the Bank. It also appears that Podar was a Director and a close associate of the assessee. There is no discussion of this persons evidence by the Accountant Member though Judicial Member thought that it was unsatisfactory. In the course of one year i.e. from April, 1955 to 1956 Rana is alleged to have withdrawn large amounts by nine cheques aggregating to Rs. 38 lakhs. These cheques were said to have been sent for by Rana sitting at 11 Clive Row, Calcutta which is the address of the assessee and also of the Sahu Jain concerns. These cheques were bearer cheques for lakhs of rupees and encashed through one A. C. Das, peon of Ashoka Marketing Ltd. The letters of authorisation given to Das were typed in identical form bearing only the signature of Rana, the other entries having been filled up by someone else. These large amounts brought by A. C. Das in cash were handed over in the office of Sahu Jain concerns. A. C. Das states that he was directed to render this service for the Rana by T. D. Dujari, Dujari said that when he had gone to Jain (assessee) for office work the latter introduced him to Rana and asked Dujari to assist Rana if the latter so desired and that some days later Rana came to him with a request for a bearer to fetch money from the bank and that Rana himself handed the cheques to A. C. Das. The Judicial Member thought that this raises some doubt on the genuineness of Ranas transactions. The Accountant Member thought that the statement of A. C. Das was positive evidence and the Department had not produced any material to show that the moneys were actually withdrawn from the Bank and collected on behalf of the assessee. This again was an unreasonable assumption for the only way that fact could have been proved is to establish primary facts from which an inference that it was the assessee to whom the amount was paid could be drawn. It cannot be expected of A. C. Das, an employee of assessees concern and who was reluctant to appear before the Income-tax Officer to state that he in fact gave the money to the assessee. The Accountant Member however would have relied on that evidence for he says "if it had been established that A. C. Das was in the employ of Ashoka Marketing Ltd. in 1955-56, it would have cast a serious doubt about the acceptability of the evidence of A. C. Das". This observation overlooks the fact that A. C. Das in his deposition made on 18th December, 1962 stated that he used to receive pay from M/s. Ashoka Marketing Ltd. and in the Remand Report of I. T. O. dated 12th April 1963 it was observed that there was documentary proof that A. C. Das was an employee of the Ashoka Marketing Ltd. None of the contradictions in A. C. Dass evidence mentioned in the remand report dated 12th April, 1963 were adverted to or discussed by the Tribunal. It also did not notice that A. C. Das was really the assessees witness which is borne out by what was stated in that remand report that A. C. Das continued to be an employee of Sahu Jain Group of Companies, that he was ultimately found in the house of Sahu Jain at 11 Clive Row, Calcutta when a notice under Section 37 was served on him on 9th November 1962 asking him to appear on 12th November, 1962 and that he actually turned up on 17th November, 1962. Dealing with this aspect, the Income-tax Officer observed "this period of absence was rather meaningful." This has not been discussed or commented upon by the Tribunal nor has it considered any of the adverse circumstances referred to by the Income-tax Officer in his remand report in which he discussed the improbability of the story of the withdrawal of the moneys by A. C. Das as an agent of Rana32. We have already pointed out the improbability of the story of Durga Prasad that he received Rs. 10,80,000/- at the counter of the Allahabad Bank. The positive statement that the loan was given to him by the assessee and that he took this amount personally to Tumsar travelling in the Calcutta Mail, though retracted, was relied upon by the Income-tax Officer for the conclusion that this amount was lent by the assessee and it was income from undisclosed sources33. From the above discussion it is clear that the findings reached by the Tribunal are wholly vitiated. No judicial tribunal properly instructed could have arrived at those findings. We are therefore constrained to ignore those findings and re-examine the issues arising for decision on the basis of the material on record34. The question then is, whether the department has satisfactorily established that Rana was not the real purchaser of the shares and that he was a mere namelender.We have broadly stated the relevant facts earlier. We will now summarise the facts and circumstances - even at the risk of some repetition - which go to establish that the Rana was a mere namelender.They are :-1. There is no evidence to show that the Ranas financial position was such that he was in a position to purchase the shares in question. It is not shown that he had any bank balance either in this country or in any other country2. The Rana has not cared to appear before the authorities under the Act though several opportunities were afforded to him to do so for explaining the circumstances under which he purchased those shares3. The purchase price of the shares amounting to several lakhs of rupees was not paid by cheque or cheques. The same is said to have been paid in cash. This is a wholly improbable circumstance4. The Rana had not entered into any correspondence with the companies concerned for the purchase of the shares. He had not engaged the services of any brokers for making purchases. It is not shown how the Rana came to know that the companies in question were wanting to sell the shares5. It is not shown why the transaction in the said shares should have taken place in the presence of Wood. Wood had nothing to do with the transactions. Neither the Rana nor the companies which sold the shares had any dealings with the Allahabad Bank at the relevant time. The share scrips were not in the possession of the Allahabad Bank. The money was not paid through the Allahabad Bank. The letters of Wood on which considerable reliance was placed did not bear any office serial number. No copies of those letters were available in the Allahabad Bank. It is not explained how Wood came into the picture6. If Rana was the purchaser of the shares, he should have been in possession of the share scrips. They were his documents of title. We have earlier pointed out that the share scrips were in the possession of Ashoka Marketing Co. It is not explained how those scrips happened to be in the possession of the Ashoka Marketing Co7. Even after the alleged sale of the shares in favour of the Rana, Rana did not take any steps to have the shares registered in his name for nearly 11/2 years. This circumstance again is not explained8. The Rana did not care to collect the huge dividends that were declared in respect of those shares totalling about Rs. 2 lakhs for a year and half9. The Rana never cared to attend any general meeting of the company nor did he appoint any proxy on his behalf10. It was only when the price of those shares went up in the market and that when they had to be sold the Rana is said to have opened an account in the Allahabad Bank in which were credited sum of about Rs. 38 lakhs got by the sale of those shares. Practically all these amounts were said to have been realised by the Rana by issuing bearer cheques in favour of a peon of Ashoka Marketing Co. who had been casually introduced to him. The Rana could not have been too big to go to the bank to collect these huge amounts, if he was the real owner of the money. He is said to have waited in the premises belonging to Sahu Jain Co. and sent these bearer cheques through the said peon. It is further said that with a view to see that the peon did not misappropriate the money. Rana used to send his own driver with him. If that was so, it is not explained why Rana did not give the bearer cheques to his driver himself if the driver was so trustworthy and it is not explained what the Rana did with the money so collectedThe above enumerated circumstances are tell-tale. The only reasonable inference that can be drawn from those circumstances is that the Rana was a mere namelender.The conclusion reached by the Income-tax Officer and the Appellate Assistant Commissioner that the Rana was a mere name-lender is a reasonable conclusion. Neither the Tribunal nor the High Court has given any good reasons for rejecting those conclusions35. The next question is whether the department has established that the Rana was a benamidar for the assessee. As mentioned earlier, it is not sufficient if the department establishes that the Rana was the benamidar for somebody. It must go further and establish that the Rana was the benamidar of the assessee. There are good reasons to come to a conclusion that the Rana was the benamidar of the assessee. There are, as have been noted already :-1. The close association of the assessee with the Rana, which is evident from the record. It was the assessee who introduced the Rana to Nandlal who was a close associate of the assessee and it was Nandlal who introduced the Rana to the Allahabad Bank. Rana did not go to collect the money from the Allahabad Bank, but is said to have stayed in the premises of Sahu Jain Co., a company with which the assessee was closely associated and further a peon who gets the money from the bank was residing in the house of Sahu Jain. 11 Clive Row when the notice under Section 37 of the Act was served on him. According to this peon. A. C. Das, it was Dujaria who asked him to render that service to Rana. According to Dujaria it was the assessee Jain who introduced him to Rana and asked him to assist the Rana. It also appears from the evidence adduced on behalf of the assessee that the huge amount of about Rs. 38 lakhs collected by the Allahabad Bank was realised by the Rana by issuing bearer cheques to the above mentioned peon of Ashoka Marketing Co., an assessees concern. Further, it was the assessee who produced the so-called affidavit of the Rana but at the same time would not produce the Rana for examination for obvious reasons2. The D. J. C. Ltd. and M. C. Ltd., would not have sold suddenly the shares without any previous correspondence or without even informing the companys Secretary or Director, unless of course, there was intercession by some one who had influence over those companies3. There is no admissible evidence to establish that Rana brought a bagful of currency notes and gave it to the companies. Even if the Rana had paid the price in cash to the companies, the companies would have deposited those amounts in some bank. On the other hand, those companies are said to have given the entire price realised by the sale of the shares immediately as a loan to one Durga Prasad on the basis of the two promissory notes. In discussing this aspect we had pointed out the incongruity in the first and the second statement of Durga Prasad to show that the loan of Rs. 10,80,000/- was said to have been given to him by the vendor companies in one lump sum that he carried this huge amount from Calcutta to Nagpur and gave it to his Munim and that he never deposited that amount in any bank. There is also a total absence of any material to show how Durga Prasad had spent these amounts. All these circumstances would clearly indicate that the story is a fictitious one and that the alleged loan to Durga Prasad is a pure fabrication. It is therefore clear that Durga Prasad is no other than a mere puppet of the assessee4. The shares alleged to have been purchased by the Rana were found to be in possession of Ashoka Marketing Co. a concern practically owned by the assessee. Unless the assessee was the purchaser of those shares, the shares could not have been in the possession of the Ashoka Marketing Co. It is reasonable to assume that after the alleged sale, the assessee was in possession of the shares through Ashoka Marketing Company5. After the shares were sold the money was collected and brought from the bank as pointed out above by the peon A. C. Das of the Ashoka Marketing Co. on nine bearer cheques and according to A. C. Das he paid those amounts to the Rana in the premises of the assessee Sahu Jain at 11 Clive Row36. From the circumstances above enumerated, the Income-tax Officer and the Appellate Assistant Commissioner were fully justified in drawing an inference that the Rana was a name lender for the assessee. Neither the Tribunal nor the High Court has given good reasons for displacing the conclusions reached by the Income-tax Officer and the Appellate Assistant Commissioner. They had a duty to examine the reasons given by those authorities before rejecting them.
| 1 | 12,060 |
### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
### Input:
Bank in which were credited sum of about Rs. 38 lakhs got by the sale of those shares. Practically all these amounts were said to have been realised by the Rana by issuing bearer cheques in favour of a peon of Ashoka Marketing Co. who had been casually introduced to him. The Rana could not have been too big to go to the bank to collect these huge amounts, if he was the real owner of the money. He is said to have waited in the premises belonging to Sahu Jain Co. and sent these bearer cheques through the said peon. It is further said that with a view to see that the peon did not misappropriate the money. Rana used to send his own driver with him. If that was so, it is not explained why Rana did not give the bearer cheques to his driver himself if the driver was so trustworthy and it is not explained what the Rana did with the money so collected. The above enumerated circumstances are tell-tale. The only reasonable inference that can be drawn from those circumstances is that the Rana was a mere name lender. The conclusion reached by the Income-tax Officer and the Appellate Assistant Commissioner that the Rana was a mere name-lender is a reasonable conclusion. Neither the Tribunal nor the High Court has given any good reasons for rejecting those conclusions. 35. The next question is whether the department has established that the Rana was a benamidar for the assessee. As mentioned earlier, it is not sufficient if the department establishes that the Rana was the benamidar for somebody. It must go further and establish that the Rana was the benamidar of the assessee. There are good reasons to come to a conclusion that the Rana was the benamidar of the assessee. There are, as have been noted already :-1. The close association of the assessee with the Rana, which is evident from the record. It was the assessee who introduced the Rana to Nandlal who was a close associate of the assessee and it was Nandlal who introduced the Rana to the Allahabad Bank. Rana did not go to collect the money from the Allahabad Bank, but is said to have stayed in the premises of Sahu Jain Co., a company with which the assessee was closely associated and further a peon who gets the money from the bank was residing in the house of Sahu Jain. 11 Clive Row when the notice under Section 37 of the Act was served on him. According to this peon. A. C. Das, it was Dujaria who asked him to render that service to Rana. According to Dujaria it was the assessee Jain who introduced him to Rana and asked him to assist the Rana. It also appears from the evidence adduced on behalf of the assessee that the huge amount of about Rs. 38 lakhs collected by the Allahabad Bank was realised by the Rana by issuing bearer cheques to the above mentioned peon of Ashoka Marketing Co., an assessees concern. Further, it was the assessee who produced the so-called affidavit of the Rana but at the same time would not produce the Rana for examination for obvious reasons. 2. The D. J. C. Ltd. and M. C. Ltd., would not have sold suddenly the shares without any previous correspondence or without even informing the companys Secretary or Director, unless of course, there was intercession by some one who had influence over those companies. 3. There is no admissible evidence to establish that Rana brought a bagful of currency notes and gave it to the companies. Even if the Rana had paid the price in cash to the companies, the companies would have deposited those amounts in some bank. On the other hand, those companies are said to have given the entire price realised by the sale of the shares immediately as a loan to one Durga Prasad on the basis of the two promissory notes. In discussing this aspect we had pointed out the incongruity in the first and the second statement of Durga Prasad to show that the loan of Rs. 10,80,000/- was said to have been given to him by the vendor companies in one lump sum that he carried this huge amount from Calcutta to Nagpur and gave it to his Munim and that he never deposited that amount in any bank. There is also a total absence of any material to show how Durga Prasad had spent these amounts. All these circumstances would clearly indicate that the story is a fictitious one and that the alleged loan to Durga Prasad is a pure fabrication. It is therefore clear that Durga Prasad is no other than a mere puppet of the assessee. 4. The shares alleged to have been purchased by the Rana were found to be in possession of Ashoka Marketing Co. a concern practically owned by the assessee. Unless the assessee was the purchaser of those shares, the shares could not have been in the possession of the Ashoka Marketing Co. It is reasonable to assume that after the alleged sale, the assessee was in possession of the shares through Ashoka Marketing Company. 5. After the shares were sold the money was collected and brought from the bank as pointed out above by the peon A. C. Das of the Ashoka Marketing Co. on nine bearer cheques and according to A. C. Das he paid those amounts to the Rana in the premises of the assessee Sahu Jain at 11 Clive Row. 36. From the circumstances above enumerated, the Income-tax Officer and the Appellate Assistant Commissioner were fully justified in drawing an inference that the Rana was a name lender for the assessee. Neither the Tribunal nor the High Court has given good reasons for displacing the conclusions reached by the Income-tax Officer and the Appellate Assistant Commissioner. They had a duty to examine the reasons given by those authorities before rejecting them.
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649 |
Chinnamarkathian Alias Muthu Gounder and Another Vs. Ayyavoo Alias Periana Gounder and Others
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this appeal. These orders turn out, often enough to be expedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. T hey do not, however, completely, estop a court from taking note of events and circumstances which happen within the time fixed. For example it cannot be said that, if the appellant had started with the full money order to be paid and came well it time but was set upon and robbed by thieves on the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such order are not like the law of the Medes and the Persians."12. The danger inherent in passing conditional orders becomes self-evident because that by itself may result in taking away jurisdiction conferred on the court for just decision of the case The true purport of conditional order is that such ord ers merely create something like a guarantee or sanction for obedience of the courts order but would not take away the Courts jurisdiction to act according to the mandate of the statute or on relevant equitable considerations if the statute does not deny such consideration. In order to avoid subsequent controversy sub- section (4)(b) envisages proceedings in two stages and that by itself inhibits passing of a conditional order. It is, therefore, not possible to accep t the construction canvassed for on behalf of the respondents.13. As analysed the scheme of sub-section (4)(b) of section 3 requires the Revenue Divisional Officer to determine, arrears, ascertain the exact amount payable by the tenant, fix the ti me for payment after taking into consideration the relevant circumstances of the landlord and the cultivating tenant and then stop there. There is no power in the Revenue Divisional Officer at that stage to pass an order for eviction.If the tenant deposits the amount or pays up the rent and repairs the default within the time fixed by the Revenue Divisional Officer, on an application of the tenant pointing out this fact, the original application of the landlord for eviction would have to be dismissed. If on the other hand the landlord points out to the Revenue Divisional Officer that the cultivating tenant has failed to comply with the order made by the Court and if after notice to the tenant and in the absence of a reque st for extension of time which again may be judicially examined, the default becomes wilful or contumacious. It is at that stage and at that stage alone that the Revenue Divisional Officer enjoys jurisdiction to order eviction. Such juris diction improperly exercised at an earlier stage would render the order without jurisdiction. Surprisingly the High Court reached the same conclusion but failed to follow it.14. In all the three cases the Revenue Divisional Officer determined the arr ears of rent and gave six weeks time to pay the same. Within the period of six weeks the cultivating tenants in each case approached the High Court and obtained conditional stay, the condition being to deposit the rent in arrears within the time presc ribed by the High Court and these orders have been complied with. If the Revenue Divisional Officer had not denied to himself the further jurisdiction to examine the situation as it emerged on the date of expiry of the period prescribed by him, it would have been brought to his notice that the eviction was unjustified in view of the orders made by the High Court. But as the order became effective according to the Revenue Divisional Officer on the mere failure to deposit the arrears found due by him, the order of eviction without jurisdiction became effective. The High Court held that there was no order of eviction but affirmed the order of the Revenue Divisional Officer as one for eviction.The question then is: What should be my approach in these appeals ? Frankly speaking, on my finding that the latter part of the Revenue Divisional Officers order that in the event of failure to deposit the amount within the time prescribed eviction wo uld follow, being without jurisdiction, I would be required to remand the matter to the Revenue Divisional Officer to proceed from that stage. However, I cannot overlook the fact that the initial proceedings before the Revenue Divisional O fficer started in 1961. Two decades have rolled by. The ground of eviction was a technical ground of default repaired by the orders of the High Court when the rent found in arrears was deposited. The landlords have been paid, may be not specifically withi n the time prescribed by the Revenue Divisional Officer but within the time prescribed by the High Court. It is not necessary to decide in this case whether the time prescribed by the Revenue Divisional Officer, if challenged in the superior court i.e. the High Court, the High Court would have jurisdiction to prescribe its own time calling upon the tenant to deposit the amount to repair the default. That question be kept open but in the facts of this case the amount having been deposited way back in 1961-62, it would be merely adding to the agony of the parties for a very technical consideration to remit the case to the Revenue Divisional Officer. In the facts of this case it would be an idle formality to remit the case to the Revenue Divisional Officer for the additional reason that he will have to fix a fresh date for deposit of the amount and the amount has already been deposited 19 to 20 years back. Having regard to all the circumstances of the case and the inevitable consequence flowing from the passage of time, I do not consider it just and proper to remit the case to the Revenue Divisional Officer. In my opinion the tenants have qualified for the protection of the Act and they were not liable to be evicted.
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1[ds]It was a beneficient legislation for granting security or tenure to cultivating tenants of agricultural lands. It is a well-settled canon of construction that in construing the provisions of such enactments the court should adopt that construction which advances, fulfils and furthers the object of the Act rather than the one which would defeat the same and render the protection illusory.It is not in dispute that the tenants in each of th ese appeals are cultivating tenants and the lands of which they are tenants are lands covered by the Act. They are sought to be evicted on the only ground that they have committed default in payment of rent payable from year to year for a period o f threefact the High Court itself has taken this very view when it observed that the view taken by Srinivasan, J. was the correct one having regard to the avowed object of the Act, namely, preventing unreasonable eviction and affording protection to the tenants to retain the holdings s o long as interests of the landlord in the matter of the prompt payment of rent are safeguarded. At another stage, the High Court observed that the time that has to be given or allowed to the tenant to deposit the arrears is to be determined by co nsidering what is just and reasonable having regard to the relative circumstances of both the parties and by its very nature this must be elastic and flexible and not fixed or final. In other words, the High Court was of the opinion that the comp osite order is not contemplated by sub-section (4)(b) of section 3.If sub-section (4)(b) of section 3 does not contemplate passing of a composite order, what is the correct procedure that must be followed in a proceeding under that sub-section ? Tha t is self-evident from the language employed in that sub-section. After the application is received and the parties are summoned and representations are heard, the Court must determine whether the cultivating tenant is in arrears of rent. If the answer is in the affirmative, it has to determine the arrears in terms of its money value. Thereafter, the Revenue Divisional Officer must ascertain relative circumstances of the landlord and the tenant and as indicated hereinabove, these circumstances must be relatable to the need of the landlord for prompt payment and the present prevalent circumstances of the tenant relatable to his paying capacity. Thousand and one circumstances can be envisaged which may have a bearing on this aspect. After these circumstances are properly adjudicated and evaluated the Revenue Divisional Officer must fix time within which the tenant should pay the amount and repair thet the High Court itself has taken this very view when it observed that the view taken by Srinivasan, J. was the correct one having regard to the avowed object of the Act, namely, preventing unreasonable eviction and affording protection to the tenants to retain the holdings s o long as interests of the landlord in the matter of the prompt payment of rent are safeguarded. At another stage, the High Court observed that the time that has to be given or allowed to the tenant to deposit the arrears is to be determined by co nsidering what is just and reasonable having regard to the relative circumstances of both the parties and by its very nature this must be elastic and flexible and not fixed or final. In other words, the High Court was of the opinion that the comp osite order is not contemplated by sub-section (4)(b) of section 3.If sub-section (4)(b) of section 3 does not contemplate passing of a composite order, what is the correct procedure that must be followed in a proceeding under that sub-section ? Tha t is self-evident from the language employed in that sub-section. After the application is received and the parties are summoned and representations are heard, the Court must determine whether the cultivating tenant is in arrears of rent. If the answer is in the affirmative, it has to determine the arrears in terms of its money value. Thereafter, the Revenue Divisional Officer must ascertain relative circumstances of the landlord and the tenant and as indicated hereinabove, these circumstances must be relatable to the need of the landlord for prompt payment and the present prevalent circumstances of the tenant relatable to his paying capacity. Thousand and one circumstances can be envisaged which may have a bearing on this aspect. After these circumstances are properly adjudicated and evaluated the Revenue Divisional Officer must fix time within which the tenant should pay the amount and repair thewas seriously contended by Mr. Natesan as to what is there in the scheme of the Act and especially in the language of sub- section (4)(b) which would make it impermissible for the Revenue Divisional Officer simultaneously passing an order determining rent in arrears and directing that i f the tenant fails to pay the amount within the time prescribed by the Court eviction shall follow as a matter of course. If this construction of sub-section (4)(b) as canvassed by Mr. Natesan is adopted the Revenue Divisional Officer would be denying to himself a more beneficial jurisdiction conferred upon him, namely, to extend the time for making the payment if an evaluation of circumstances so placed before him he is satisfied that a further extension is not only just but not to grant it would be harsh and unjust and would be defeating the object for which the Act was enacted. An analogous provision may be noticed, It is a well accepted principle statutorily recognised in section 148 of theCode of Civil Procedure that where a period is fixed or granted by the court for doing any act prescribed or allowed by the Code, Court may in its discretion from time to time enlarge such period even though the period originally fixed or granted may expire. If a Court in exercis e of the jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it. Passing a composite order would be acting in a disregard of the jurisdiction in that while directing time simultaneously the court denies to itself the jurisdiction to extend time. The principle of equity is tha t when some circumstances are to be taken into account for fixing a length of time within which a certain action is to be taken, the Court retains to itself the jurisdiction to re-examine the alteration or modification of circumstances which may necessitated extension of time. If the Court by its own act denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction which in the absence of a negative provision, it undoubtedly enjoys. Conditional orders, w ere held by this Court to be in terrorem, so that dilatory litigants might put themselves in order and avoid delay, but they do not completely estop a court from taking note of events and circumstances which happen within the timeall the three cases the Revenue Divisional Officer determined the arr ears of rent and gave six weeks time to pay the same. Within the period of six weeks the cultivating tenants in each case approached the High Court and obtained conditional stay, the condition being to deposit the rent in arrears within the time presc ribed by the High Court and these orders have been complied with. If the Revenue Divisional Officer had not denied to himself the further jurisdiction to examine the situation as it emerged on the date of expiry of the period prescribed by him, it would have been brought to his notice that the eviction was unjustified in view of the orders made by the High Court. But as the order became effective according to the Revenue Divisional Officer on the mere failure to deposit the arrears found due by him, the order of eviction without jurisdiction became effective. The High Court held that there was no order of eviction but affirmed the order of the Revenue Divisional Officer as one for eviction.The question then is: What should be my approach in these appeals ? Frankly speaking, on my finding that the latter part of the Revenue Divisional Officers order that in the event of failure to deposit the amount within the time prescribed eviction wo uld follow, being without jurisdiction, I would be required to remand the matter to the Revenue Divisional Officer to proceed from that stage. However, I cannot overlook the fact that the initial proceedings before the Revenue Divisional O fficer started in 1961. Two decades have rolled by. The ground of eviction was a technical ground of default repaired by the orders of the High Court when the rent found in arrears was deposited. The landlords have been paid, may be not specifically withi n the time prescribed by the Revenue Divisional Officer but within the time prescribed by the High Court. It is not necessary to decide in this case whether the time prescribed by the Revenue Divisional Officer, if challenged in the superior court i.e. the High Court, the High Court would have jurisdiction to prescribe its own time calling upon the tenant to deposit the amount to repair the default. That question be kept open but in the facts of this case the amount having been deposited way back in 1961-62, it would be merely adding to the agony of the parties for a very technical consideration to remit the case to the Revenue Divisional Officer. In the facts of this case it would be an idle formality to remit the case to the Revenue Divisional Officer for the additional reason that he will have to fix a fresh date for deposit of the amount and the amount has already been deposited 19 to 20 years back. Having regard to all the circumstances of the case and the inevitable consequence flowing from the passage of time, I do not consider it just and proper to remit the case to the Revenue Divisional Officer. In my opinion the tenants have qualified for the protection of the Act and they were not liable to be evicted.
| 1 | 4,869 |
### Instruction:
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this appeal. These orders turn out, often enough to be expedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. T hey do not, however, completely, estop a court from taking note of events and circumstances which happen within the time fixed. For example it cannot be said that, if the appellant had started with the full money order to be paid and came well it time but was set upon and robbed by thieves on the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such order are not like the law of the Medes and the Persians."12. The danger inherent in passing conditional orders becomes self-evident because that by itself may result in taking away jurisdiction conferred on the court for just decision of the case The true purport of conditional order is that such ord ers merely create something like a guarantee or sanction for obedience of the courts order but would not take away the Courts jurisdiction to act according to the mandate of the statute or on relevant equitable considerations if the statute does not deny such consideration. In order to avoid subsequent controversy sub- section (4)(b) envisages proceedings in two stages and that by itself inhibits passing of a conditional order. It is, therefore, not possible to accep t the construction canvassed for on behalf of the respondents.13. As analysed the scheme of sub-section (4)(b) of section 3 requires the Revenue Divisional Officer to determine, arrears, ascertain the exact amount payable by the tenant, fix the ti me for payment after taking into consideration the relevant circumstances of the landlord and the cultivating tenant and then stop there. There is no power in the Revenue Divisional Officer at that stage to pass an order for eviction.If the tenant deposits the amount or pays up the rent and repairs the default within the time fixed by the Revenue Divisional Officer, on an application of the tenant pointing out this fact, the original application of the landlord for eviction would have to be dismissed. If on the other hand the landlord points out to the Revenue Divisional Officer that the cultivating tenant has failed to comply with the order made by the Court and if after notice to the tenant and in the absence of a reque st for extension of time which again may be judicially examined, the default becomes wilful or contumacious. It is at that stage and at that stage alone that the Revenue Divisional Officer enjoys jurisdiction to order eviction. Such juris diction improperly exercised at an earlier stage would render the order without jurisdiction. Surprisingly the High Court reached the same conclusion but failed to follow it.14. In all the three cases the Revenue Divisional Officer determined the arr ears of rent and gave six weeks time to pay the same. Within the period of six weeks the cultivating tenants in each case approached the High Court and obtained conditional stay, the condition being to deposit the rent in arrears within the time presc ribed by the High Court and these orders have been complied with. If the Revenue Divisional Officer had not denied to himself the further jurisdiction to examine the situation as it emerged on the date of expiry of the period prescribed by him, it would have been brought to his notice that the eviction was unjustified in view of the orders made by the High Court. But as the order became effective according to the Revenue Divisional Officer on the mere failure to deposit the arrears found due by him, the order of eviction without jurisdiction became effective. The High Court held that there was no order of eviction but affirmed the order of the Revenue Divisional Officer as one for eviction.The question then is: What should be my approach in these appeals ? Frankly speaking, on my finding that the latter part of the Revenue Divisional Officers order that in the event of failure to deposit the amount within the time prescribed eviction wo uld follow, being without jurisdiction, I would be required to remand the matter to the Revenue Divisional Officer to proceed from that stage. However, I cannot overlook the fact that the initial proceedings before the Revenue Divisional O fficer started in 1961. Two decades have rolled by. The ground of eviction was a technical ground of default repaired by the orders of the High Court when the rent found in arrears was deposited. The landlords have been paid, may be not specifically withi n the time prescribed by the Revenue Divisional Officer but within the time prescribed by the High Court. It is not necessary to decide in this case whether the time prescribed by the Revenue Divisional Officer, if challenged in the superior court i.e. the High Court, the High Court would have jurisdiction to prescribe its own time calling upon the tenant to deposit the amount to repair the default. That question be kept open but in the facts of this case the amount having been deposited way back in 1961-62, it would be merely adding to the agony of the parties for a very technical consideration to remit the case to the Revenue Divisional Officer. In the facts of this case it would be an idle formality to remit the case to the Revenue Divisional Officer for the additional reason that he will have to fix a fresh date for deposit of the amount and the amount has already been deposited 19 to 20 years back. Having regard to all the circumstances of the case and the inevitable consequence flowing from the passage of time, I do not consider it just and proper to remit the case to the Revenue Divisional Officer. In my opinion the tenants have qualified for the protection of the Act and they were not liable to be evicted.
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650 |
P.D. Lakhani Vs. State Of Punjab
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In any event, the Managing Director of Lakhani being not concerned with the lodging of the earlier complaint, the complaint in question was not maintainable against him. 9. Mr. Gupta, learned counsel appearing on behalf of the respondent, on the other hand, urged as the matter is pending before the Trial Judge, this Court, at this stage, should not interfere with the impugned judgment. It was contended that in effect and substance, the complaint was filed by the appellant No.2 only before the Station House Officer which was referred to Senior Superintendent of Police as the question involved was infringement of the laws governing Intellectual Properties. In any event, as the complaint petition having been filed pursuant to the directions of the Senior Superintendent of Police itself, it is valid in law. Section 182 of the Indian Penal Code, indisputably, provides for an offence falling under Chapter X of the Indian Penal Code. Section 195 provides for prosecution for contempt of lawful authority of public servant, for offences against public servant and for offences relating to documents given in evidence. It contains an embargo stating that no court shall take cognizance of an offence punishable, inter alia, under the aforementioned provision except on the complaint in writing by the public servant concerned or by some other public servant to whom he is administratively subordinate. Contempt of a public servant has a definite connotation. Such contempt must be provided for by law. It must be found to be false. The Station House Officer, Jallandhar did not act on the said complaint. He asked the appellant No.2 to bring the same to the notice of the Senior Superintendent Police, Jalandhar, Complaint Branch, which he did. It was, thus, a complaint to a higher authority. 10. The Senior Superintendent of Police only had asked the Superintendent of Police, Detective Branch to enquire into the matter and report within seven days. Shri Gian Singh, pursuant thereto was asked to carry out the necessary search of the premises of the second respondent. 11. The report of compliance by Gian Singh was made to the CIA staff. CIA staff, in turn, placed it before the Senior Superintendent of Police. The proceedings, therefore, were, indisputably, initiated by the Senior Superintendent of Police, Jallandhar and not by the Station House Officer,. 12. The Station House Officer would have jurisdiction to investigate into the matter provided a first information report was lodged by him in terms of the complaint made by the appellant No.2. Whatever action was taken in the matter was pursuant to the order of the Senior Superintendent of Police Jalandhar. The High Court, in our opinion, thus, committed a manifest error in so far as it held that the as the complaint was addressed to the SHO, he was the appropriate authority to lodge a complaint in respect of an offence punishable under Section 182 of the Indian Penal Code. The fact that the search was made pursuant to the directions issued by the Senior Superintendent of Police, Jalandhar is not in dispute. Section 195 contains a bar on the Magistrate to take cognizance of any offence. When a complaint is not made by the appropriate public servant, the Court will have no jurisdiction in respect thereof. Any trial held pursuant thereto would be wholly without jurisdiction. In a case of this nature, representation, if any, for all intent and purport was made before the Senior Superintendent of Police and not before the Station House Officer.13. No complaint, therefore, could be lodged before the learned Magistrate by the Station House Officer. Even assuming that the same was done under the directions of Senior Superintendent of Police, Jallandhar, Section 195, in no uncertain terms, directs filing of an appropriate complaint petition only by the public servant concerned or his superior officer. It, therefore, cannot be done by an inferior officer. It does not provide for delegation of the function of the public servant concerned. We may notice that in terms of sub-section (3) of Section 340 of the Code, a complaint may be signed by such an officer as the High Court may appoint if the complaint is made by the High Court. But in all other cases, the same is to be done by the presiding officer of the court or by such officer of the court as it may authorize in writing in this behalf. Legislature, thus, wherever thought necessary to empower a court or public servant to delegate his power, made provisions therefor. As the statute does not contemplate delegation of his power by the Senior Superintendent of Police, we cannot assume that there exists such a provision. A power to delegate, when a complete bar is created, must be express; it being not an incidental power. 14. In Daulat Ram v. State of Punjab [(1962) 2 SCR 812], Hidayatullah, J. (as the learned Judge then was), held as under: "In our opinion, this is not a due compliance with the provisions of that section. What the section contemplates is that the complaint must be in writing by the public servant concerned and there is no such compliance in this case." The said decision was followed by a Division Bench of this Court in State of U.P. v. Mata Bhikh & Ors. [(1994) 4 SCC 95] , stating: "A cursory reading of Section 195(1)(a) makes out that in case a public servant concerned who has promulgated an order which has not been obeyed or which has been disobeyed, does not prefer to give a complaint or refuses to give a complaint then it is open to the superior public servant to whom the officer who initially passed the order is administratively subordinate to prefer a complaint in respect of the disobedience of the order promulgated by his subordinate. The word subordinate means administratively subordinate, i.e., some other public servant who is his official superior and under whose administrative control he works." The said decisions are squarely applicable to the facts of the present case.
|
1[ds]12. The Station House Officer would have jurisdiction to investigate into the matter provided a first information report was lodged by him in terms of the complaint made by the appellant No.2. Whatever action was taken in the matter was pursuant to the order of the Senior Superintendent of Police Jalandhar. The High Court, in our opinion, thus, committed a manifest error in so far as it held that the as the complaint was addressed to the SHO, he was the appropriate authority to lodge a complaint in respect of an offence punishable under Section 182 of the Indian Penal Code. The fact that the search was made pursuant to the directions issued by the Senior Superintendent of Police, Jalandhar is not in dispute. Section 195 contains a bar on the Magistrate to take cognizance of any offence. When a complaint is not made by the appropriate public servant, the Court will have no jurisdiction in respect thereof. Any trial held pursuant thereto would be wholly without jurisdiction. In a case of this nature, representation, if any, for all intent and purport was made before the Senior Superintendent of Police and not before the Station House Officer.13. No complaint, therefore, could be lodged before the learned Magistrate by the Station House Officer. Even assuming that the same was done under the directions of Senior Superintendent of Police, Jallandhar, Section 195, in no uncertain terms, directs filing of an appropriate complaint petition only by the public servant concerned or his superior officer. It, therefore, cannot be done by an inferior officer. It does not provide for delegation of the function of the public servant concerned. We may notice that in terms of sub-section (3) of Section 340 of the Code, a complaint may be signed by such an officer as the High Court may appoint if the complaint is made by the High Court. But in all other cases, the same is to be done by the presiding officer of the court or by such officer of the court as it may authorize in writing in this behalf. Legislature, thus, wherever thought necessary to empower a court or public servant to delegate his power, made provisions therefor. As the statute does not contemplate delegation of his power by the Senior Superintendent of Police, we cannot assume that there exists such a provision. A power to delegate, when a complete bar is created, must be express; it being not an incidental power.
| 1 | 2,218 |
### Instruction:
Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case.
### Input:
In any event, the Managing Director of Lakhani being not concerned with the lodging of the earlier complaint, the complaint in question was not maintainable against him. 9. Mr. Gupta, learned counsel appearing on behalf of the respondent, on the other hand, urged as the matter is pending before the Trial Judge, this Court, at this stage, should not interfere with the impugned judgment. It was contended that in effect and substance, the complaint was filed by the appellant No.2 only before the Station House Officer which was referred to Senior Superintendent of Police as the question involved was infringement of the laws governing Intellectual Properties. In any event, as the complaint petition having been filed pursuant to the directions of the Senior Superintendent of Police itself, it is valid in law. Section 182 of the Indian Penal Code, indisputably, provides for an offence falling under Chapter X of the Indian Penal Code. Section 195 provides for prosecution for contempt of lawful authority of public servant, for offences against public servant and for offences relating to documents given in evidence. It contains an embargo stating that no court shall take cognizance of an offence punishable, inter alia, under the aforementioned provision except on the complaint in writing by the public servant concerned or by some other public servant to whom he is administratively subordinate. Contempt of a public servant has a definite connotation. Such contempt must be provided for by law. It must be found to be false. The Station House Officer, Jallandhar did not act on the said complaint. He asked the appellant No.2 to bring the same to the notice of the Senior Superintendent Police, Jalandhar, Complaint Branch, which he did. It was, thus, a complaint to a higher authority. 10. The Senior Superintendent of Police only had asked the Superintendent of Police, Detective Branch to enquire into the matter and report within seven days. Shri Gian Singh, pursuant thereto was asked to carry out the necessary search of the premises of the second respondent. 11. The report of compliance by Gian Singh was made to the CIA staff. CIA staff, in turn, placed it before the Senior Superintendent of Police. The proceedings, therefore, were, indisputably, initiated by the Senior Superintendent of Police, Jallandhar and not by the Station House Officer,. 12. The Station House Officer would have jurisdiction to investigate into the matter provided a first information report was lodged by him in terms of the complaint made by the appellant No.2. Whatever action was taken in the matter was pursuant to the order of the Senior Superintendent of Police Jalandhar. The High Court, in our opinion, thus, committed a manifest error in so far as it held that the as the complaint was addressed to the SHO, he was the appropriate authority to lodge a complaint in respect of an offence punishable under Section 182 of the Indian Penal Code. The fact that the search was made pursuant to the directions issued by the Senior Superintendent of Police, Jalandhar is not in dispute. Section 195 contains a bar on the Magistrate to take cognizance of any offence. When a complaint is not made by the appropriate public servant, the Court will have no jurisdiction in respect thereof. Any trial held pursuant thereto would be wholly without jurisdiction. In a case of this nature, representation, if any, for all intent and purport was made before the Senior Superintendent of Police and not before the Station House Officer.13. No complaint, therefore, could be lodged before the learned Magistrate by the Station House Officer. Even assuming that the same was done under the directions of Senior Superintendent of Police, Jallandhar, Section 195, in no uncertain terms, directs filing of an appropriate complaint petition only by the public servant concerned or his superior officer. It, therefore, cannot be done by an inferior officer. It does not provide for delegation of the function of the public servant concerned. We may notice that in terms of sub-section (3) of Section 340 of the Code, a complaint may be signed by such an officer as the High Court may appoint if the complaint is made by the High Court. But in all other cases, the same is to be done by the presiding officer of the court or by such officer of the court as it may authorize in writing in this behalf. Legislature, thus, wherever thought necessary to empower a court or public servant to delegate his power, made provisions therefor. As the statute does not contemplate delegation of his power by the Senior Superintendent of Police, we cannot assume that there exists such a provision. A power to delegate, when a complete bar is created, must be express; it being not an incidental power. 14. In Daulat Ram v. State of Punjab [(1962) 2 SCR 812], Hidayatullah, J. (as the learned Judge then was), held as under: "In our opinion, this is not a due compliance with the provisions of that section. What the section contemplates is that the complaint must be in writing by the public servant concerned and there is no such compliance in this case." The said decision was followed by a Division Bench of this Court in State of U.P. v. Mata Bhikh & Ors. [(1994) 4 SCC 95] , stating: "A cursory reading of Section 195(1)(a) makes out that in case a public servant concerned who has promulgated an order which has not been obeyed or which has been disobeyed, does not prefer to give a complaint or refuses to give a complaint then it is open to the superior public servant to whom the officer who initially passed the order is administratively subordinate to prefer a complaint in respect of the disobedience of the order promulgated by his subordinate. The word subordinate means administratively subordinate, i.e., some other public servant who is his official superior and under whose administrative control he works." The said decisions are squarely applicable to the facts of the present case.
### Response:
1
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651 |
Kewal Krishan Vs. State Of Punjab
|
the reasonableness of the belief of the Customs Officer that the goods were smuggled goods. The question now sought to be raised was not agitated in any of the Courts below. 3. The appellant on February 11, 1958, when he was sitting in a third class compartment of the Amritsar Kalka train standing on Platform No. 5 of the Amritsar Railway Station, was searched by a Customs Official and some bars of gold were found tied round his waist. These gold bars were seized and a recovery memo was prepared. Out of these gold bars four were of base metal and the rest were of pure gold some bearing the stamp of Johnson Mathey and Co. Ltd., 995-10 tolas and 21/2 bars bore marks of N. M. Rothschild and Sons 10 tolas (990-1). No permit from the Reserve Bank to import this gold was produced by the appellant. Under the Foreign Exchange Regulation Act, 1947, the importation of gold without such permit is prohibited and such contravention is punishable under S. 23-A of the said Act read with S. 167(81) of the Sea Customs Act. 4. The appellant was prosecuted under S. 23A of the Foreign Exchange Regulation Act and S. 167 (81) of the Sea Customs Act and his defence was that he was not in possession of the gold bars which were taken from an attache case left by a stranger under the seat where he (the appellant) was sitting. The Additional District Magistrate held the offence to be proved and convicted the appellant of the offence and sentenced him to one years rigorous imprisonment. An appeal to the Sessions Judge resulted in the reduction of the sentence to 8 months rigorous imprisonment. On Revision to the High Court the sentence was reduced to six months rigorous imprisonment. The appellant has come in appeal by special leave. 5. The trial Court accepted the testimony of the Customs Officials and held that the defence of the appellant was false and that gold worth about Rs. 14,000 was found his possession. The learned Sessions Judge in appeal also accepted the testimony of the Customs Officials and held the defence to be false and came to the conclusion that the gold was found in possession of the appellant. In the High Court the same plea was taken and was rejected. 6. For the first time in this Court it is contended that before the presumption under S. 178A can be made applicable, it must be proved by the prosecution that the goods were of foreign origin, i.e., had been imported from abroad and only then does the presumption under S. 178-A arise which relates only to the question of Customs duty having been paid. In other words the contention comes to this that the prosecution must first prove that the goods in dispute in a particular case have been imported from a foreign country and once that is proved the onus then will be on the person in whose possession the goods are found that he had paid the Customs duty. Apart from the fact that this question has never been raised, that its not the effect of S. 178A of the Sea customs Act which provides:-"178A. (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. (2) This section shall apply to gold, gold manufactures, diamonds and other precious stones, cigarettes and cosmetics and any other goods which the Central Government may, by notification in the Official Gazette, specify in this behalf. (3) Every notification issued under sub-s. (2) shall be laid before both Houses of Parliament as soon as may be after it is issued." Two Customs Officers appeared as witnesses, Inspector Satnam Singh and Deputy Superintendent A. N. Kapur, the former is an Inspector of Land Customs and the latter a Deputy Superintendent of Customs. There is nothing to indicate in their cross-examination that the officers did not have a reasonable belief that the goods were smuggled goods and the question that the officers did not have reasonable belief is not suggested either from the cross-examination of these witnesses or from the findings of the Courts below. Even in his statement of case it is contended that the mere existence of stamp of foreign companies on gold does not necessarily prove that the gold is of foreign origin. It might be put on spurious gold which may be of Indian origin. In our opinion apart from the fact that this question has not been raised, it is quite clear that when S. 178A of the Sea Customs Act provides that when the goods are seized in the reasonable belief that they are smuggled goods then the burden of proving that they are not smuggled goods is on the person from whose possession the goods are seized. The onus is on him to show that the goods are not smuggled, that is, not of foreign origin on which duty is not paid. The onus is not on the prosecution to show that the goods are not of Indian origin. That appears to be the view taken in 1962-1 SCJ 68 . (AIR 1962 SC 316 ), where at p. 93 (of SCJ): (at p. 338 of AIR), the learned Judges observed: We are, therefore, of opinion (1) that S. 178A was constitutionally valid, (2) that the rule as to the burden of proof enacted by that section applies to a contravention of notification under S. 8 (1) of the Foreign Exchange Regulation Act 1947 by virtue of its being deemed to be a contravention of a notification under S. 19 of the Sea Customs Act, (3) that the preliminary requirement of S. 178A that the officer seizing should entertain "a reasonable belief that the goods seized were smuggled" was satisfied in the present case."
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0[ds]There is nothing to indicate in their cross-examination that the officers did not have a reasonable belief that the goods were smuggled goods and the question that the officers did not have reasonable belief is not suggested either from the cross-examination of these witnesses or from the findings of the Courts below. Even in his statement of case it is contended that the mere existence of stamp of foreign companies on gold does not necessarily prove that the gold is of foreign origin. It might be put on spurious gold which may be of Indian origin. In our opinion apart from the fact that this question has not been raised, it is quite clear that when S. 178A of the Sea Customs Act provides that when the goods are seized in the reasonable belief that they are smuggled goods then the burden of proving that they are not smuggled goods is on the person from whose possession the goods are seized. The onus is on him to show that the goods are not smuggled, that is, not of foreign origin on which duty is not paid. The onus is not on the prosecution to show that the goods are not of Indian origin. That appears to be the view taken in 1962-1 SCJ 68 . (AIR 1962 SC 316 ), where at p. 93 (of SCJ): (at p. 338 of AIR), the learned Judges observed:We are, therefore, of opinion (1) that S. 178A was constitutionally valid, (2) that the rule as to the burden of proof enacted by that section applies to a contravention of notification under S. 8 (1) of the Foreign Exchange Regulation Act 1947 by virtue of its being deemed to be a contravention of a notification under S. 19 of the Sea Customs Act, (3) that the preliminary requirement of S. 178A that the officer seizing should entertain "a reasonable belief that the goods seized were smuggled" was satisfied in the present case."
| 0 | 1,244 |
### Instruction:
Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case.
### Input:
the reasonableness of the belief of the Customs Officer that the goods were smuggled goods. The question now sought to be raised was not agitated in any of the Courts below. 3. The appellant on February 11, 1958, when he was sitting in a third class compartment of the Amritsar Kalka train standing on Platform No. 5 of the Amritsar Railway Station, was searched by a Customs Official and some bars of gold were found tied round his waist. These gold bars were seized and a recovery memo was prepared. Out of these gold bars four were of base metal and the rest were of pure gold some bearing the stamp of Johnson Mathey and Co. Ltd., 995-10 tolas and 21/2 bars bore marks of N. M. Rothschild and Sons 10 tolas (990-1). No permit from the Reserve Bank to import this gold was produced by the appellant. Under the Foreign Exchange Regulation Act, 1947, the importation of gold without such permit is prohibited and such contravention is punishable under S. 23-A of the said Act read with S. 167(81) of the Sea Customs Act. 4. The appellant was prosecuted under S. 23A of the Foreign Exchange Regulation Act and S. 167 (81) of the Sea Customs Act and his defence was that he was not in possession of the gold bars which were taken from an attache case left by a stranger under the seat where he (the appellant) was sitting. The Additional District Magistrate held the offence to be proved and convicted the appellant of the offence and sentenced him to one years rigorous imprisonment. An appeal to the Sessions Judge resulted in the reduction of the sentence to 8 months rigorous imprisonment. On Revision to the High Court the sentence was reduced to six months rigorous imprisonment. The appellant has come in appeal by special leave. 5. The trial Court accepted the testimony of the Customs Officials and held that the defence of the appellant was false and that gold worth about Rs. 14,000 was found his possession. The learned Sessions Judge in appeal also accepted the testimony of the Customs Officials and held the defence to be false and came to the conclusion that the gold was found in possession of the appellant. In the High Court the same plea was taken and was rejected. 6. For the first time in this Court it is contended that before the presumption under S. 178A can be made applicable, it must be proved by the prosecution that the goods were of foreign origin, i.e., had been imported from abroad and only then does the presumption under S. 178-A arise which relates only to the question of Customs duty having been paid. In other words the contention comes to this that the prosecution must first prove that the goods in dispute in a particular case have been imported from a foreign country and once that is proved the onus then will be on the person in whose possession the goods are found that he had paid the Customs duty. Apart from the fact that this question has never been raised, that its not the effect of S. 178A of the Sea customs Act which provides:-"178A. (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. (2) This section shall apply to gold, gold manufactures, diamonds and other precious stones, cigarettes and cosmetics and any other goods which the Central Government may, by notification in the Official Gazette, specify in this behalf. (3) Every notification issued under sub-s. (2) shall be laid before both Houses of Parliament as soon as may be after it is issued." Two Customs Officers appeared as witnesses, Inspector Satnam Singh and Deputy Superintendent A. N. Kapur, the former is an Inspector of Land Customs and the latter a Deputy Superintendent of Customs. There is nothing to indicate in their cross-examination that the officers did not have a reasonable belief that the goods were smuggled goods and the question that the officers did not have reasonable belief is not suggested either from the cross-examination of these witnesses or from the findings of the Courts below. Even in his statement of case it is contended that the mere existence of stamp of foreign companies on gold does not necessarily prove that the gold is of foreign origin. It might be put on spurious gold which may be of Indian origin. In our opinion apart from the fact that this question has not been raised, it is quite clear that when S. 178A of the Sea Customs Act provides that when the goods are seized in the reasonable belief that they are smuggled goods then the burden of proving that they are not smuggled goods is on the person from whose possession the goods are seized. The onus is on him to show that the goods are not smuggled, that is, not of foreign origin on which duty is not paid. The onus is not on the prosecution to show that the goods are not of Indian origin. That appears to be the view taken in 1962-1 SCJ 68 . (AIR 1962 SC 316 ), where at p. 93 (of SCJ): (at p. 338 of AIR), the learned Judges observed: We are, therefore, of opinion (1) that S. 178A was constitutionally valid, (2) that the rule as to the burden of proof enacted by that section applies to a contravention of notification under S. 8 (1) of the Foreign Exchange Regulation Act 1947 by virtue of its being deemed to be a contravention of a notification under S. 19 of the Sea Customs Act, (3) that the preliminary requirement of S. 178A that the officer seizing should entertain "a reasonable belief that the goods seized were smuggled" was satisfied in the present case."
### Response:
0
|
652 |
Cipla Limited Vs. Union of India
|
Supreme Court is pending final disposal. Shri Korde, learned counsel appearing on behalf of the petitioners, submitted that in the present case, even accepting the validity of the explanation, the department is in error assuming that the benefit of exemption notification is not available to the company in view of the explanation. The company had entered into correspondence with the Assistant Collector of Central Excise, bombay claiming benefit of exemption notification and the department declines to accept the claim. Ultimately, while approving the classification list filed by the company, the Assistant collector of Central Excise by order dated March 17,1982 held that the company is not entitled to exemption under the notification dated April 1,1977. The company therefore preferred the present petition to challenge the order of the Assistant Collector and denial of benefit of exemption notification.( 4 ) IN answering to the petition, Shri Sadanand A. Marballi, Assistant Collector, Central Excise has filed return sworn on January 23,1987 and claimed that the company is not entitled to the benefit of exemption notification in view of the explanation. In view of the rival contentions, a short question which falls for determination is whether the benefit can be denied to the company on the ground that the company is a manufacturer which holds share in the capital of foreign company and part of the capital of the petitioner company is held by a foreigner. Before examining the factual aspect of the matter, it is necessary to set out that the exemption notification was issued by the Central Government in pursuance of formulating drug policy and with the desire that the indigenous pharmaceutical company would create and reduce the predominance of corporations having foreign interest in the pharmaceutical industry in India. To achieve this object, the exemption notification deprives the manufacturing company which holds share in the capital of any foreign company or the part of the capital of the manufacturer is held by a foreigner. It is not in dispute that the petitioner company which was incorporated on August 17,1935 is purely an Indian company and none of the foreign company has any interest in its share capital. ( 5 ) SHRI Deodhar, learned counsel appearing on behalf of the department, submitted that the petitioner company is not entitled to advantage of exemption notification because the petitioner company holds share in the capital of foreign company. It is not in dispute that the petitioner company in pursuance of encouragement given by the Central Government has started a joint venture in Malaysia with a total investment of Rs. 2,55,2100/ -. The joint venture or collaboration was with the company registered in Malaysia known as Barket Pharma Sandirian Gerhad. The petitioner company held certain shares in the collaborators company. It is not in dispute that the collaboration agreement came to an end in March 1981. We are unable to accede to the submission of Shri Deodhar that in view of the collaboration agreement which the petitioner company had entered with the Malaysian company in pursuance of the encouragement given by the Central Government, the benefit of exemption notification should be denied under the explanation (a) (i) on the ground that the petitioner company held shares in the capital of the foreign company.( 6 ) SHRI Deodhar then submitted that in any event, the advantage of exemption notification is not available because the part of the capital of the petitioner company is held by a foreigner. The factual data in this respect is set out in the annexure to affidavit dated June 16,1993 sworn by P. Venkitasubramani, the Company Secretary. The perusal of the annexure indicates that on january 1,1980 the issued capital of the petitioner company was to the extent of Rs. 18,77,300/-equity and Rs. 6,00,000/- preference shares. Out of this, the capital of 628 equity and 137 preference shares of value of Rs. 76,500/- vested in the custodian of enemy property of India under the provisions of Evacuee Property Act. The property of the holding vested in the custodian was only 3. 09%. One Shri J. A. Parkar, residing at Singapore and a British national had expired and at time of demise, was holder of 14 equity shares of value of Rs. 1,400/ -. The legal heirs of Shri Parkar did not seek transfer of shares. Shri Deodhar submitted that as 3. 09% of issued capital was held by custodian and 0. 05% by Shri Parkar, a British national, it must be concluded that the part of the capital of petitioner company was held by a foreigner. We are unable to accede to the submission of the learned counsel. The vested interest in favour of custodian under the Evacuee Property Act was by operation of law and merely because the holders of equity and preference shares holding 3. 09% of the issued capital had left the country after partition in the year 1948 that cannot lead to the conclusion that the petitioner company is not entitled to the benefit of exemption notification. It is incorrect on the part of the department to overlook the object of issuance of the notification and deny the advantage on such technical grounds. Same is the case in respect of 14 equity shares of face value of Rs. 100/- each held by a British national prior to his demise. In our judgment, the percentage of issued capital held by the custodian and Shri Parkar is negligible that the denial of advantage of exemption notification would defeat the object with which the Government issued the notification. The object of encouraging indigenous industries in respect of manufacture of patent and proprietary medicines would stand defeated if advantage of exemption notification is denied to the petitioner company on the facts and circumstances of the case. In our judgment, the Assistant Collector was in error in passing the impugned order dated March 17,1982, copy of which is annexed at Exh n to the petition. The company is entitled to advantage of the benefit of exemption notification which is still in operation.
|
1[ds]It is not in dispute that the petitioner company in pursuance of encouragement given by the Central Government has started a joint venture in Malaysia with a total investment of Rs.. The joint venture or collaboration was with the company registered in Malaysia known as Barket Pharma Sandirian Gerhad. The petitioner company held certain shares in the collaborators company. It is not in dispute that the collaboration agreement came to an end in March 1981. We are unable to accede to the submission of Shri Deodhar that in view of the collaboration agreement which the petitioner company had entered with the Malaysian company in pursuance of the encouragement given by the Central Government, the benefit of exemption notification should be denied under the explanation (a) (i) on the ground that the petitioner company held shares in the capital of the foreignare unable to accede to the submission of the learned counsel. The vested interest in favour of custodian under the Evacuee Property Act was by operation of law and merely because the holders of equity and preference shares holding 3. 09% of the issued capital had left the country after partition in the year 1948 that cannot lead to the conclusion that the petitioner company is not entitled to the benefit of exemption notification. It is incorrect on the part of the department to overlook the object of issuance of the notification and deny the advantage on such technical grounds. Same is the case in respect of 14 equity shares of face value of Rs. 100/each held by a British national prior to his demise. In our judgment, the percentage of issued capital held by the custodian and Shri Parkar is negligible that the denial of advantage of exemption notification would defeat the object with which the Government issued the notification. The object of encouraging indigenous industries in respect of manufacture of patent and proprietary medicines would stand defeated if advantage of exemption notification is denied to the petitioner company on the facts and circumstances of the case. In our judgment, the Assistant Collector was in error in passing the impugned order dated March 17,1982, copy of which is annexed at Exh n to the petition. The company is entitled to advantage of the benefit of exemption notification which is still in operation.
| 1 | 1,696 |
### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
Supreme Court is pending final disposal. Shri Korde, learned counsel appearing on behalf of the petitioners, submitted that in the present case, even accepting the validity of the explanation, the department is in error assuming that the benefit of exemption notification is not available to the company in view of the explanation. The company had entered into correspondence with the Assistant Collector of Central Excise, bombay claiming benefit of exemption notification and the department declines to accept the claim. Ultimately, while approving the classification list filed by the company, the Assistant collector of Central Excise by order dated March 17,1982 held that the company is not entitled to exemption under the notification dated April 1,1977. The company therefore preferred the present petition to challenge the order of the Assistant Collector and denial of benefit of exemption notification.( 4 ) IN answering to the petition, Shri Sadanand A. Marballi, Assistant Collector, Central Excise has filed return sworn on January 23,1987 and claimed that the company is not entitled to the benefit of exemption notification in view of the explanation. In view of the rival contentions, a short question which falls for determination is whether the benefit can be denied to the company on the ground that the company is a manufacturer which holds share in the capital of foreign company and part of the capital of the petitioner company is held by a foreigner. Before examining the factual aspect of the matter, it is necessary to set out that the exemption notification was issued by the Central Government in pursuance of formulating drug policy and with the desire that the indigenous pharmaceutical company would create and reduce the predominance of corporations having foreign interest in the pharmaceutical industry in India. To achieve this object, the exemption notification deprives the manufacturing company which holds share in the capital of any foreign company or the part of the capital of the manufacturer is held by a foreigner. It is not in dispute that the petitioner company which was incorporated on August 17,1935 is purely an Indian company and none of the foreign company has any interest in its share capital. ( 5 ) SHRI Deodhar, learned counsel appearing on behalf of the department, submitted that the petitioner company is not entitled to advantage of exemption notification because the petitioner company holds share in the capital of foreign company. It is not in dispute that the petitioner company in pursuance of encouragement given by the Central Government has started a joint venture in Malaysia with a total investment of Rs. 2,55,2100/ -. The joint venture or collaboration was with the company registered in Malaysia known as Barket Pharma Sandirian Gerhad. The petitioner company held certain shares in the collaborators company. It is not in dispute that the collaboration agreement came to an end in March 1981. We are unable to accede to the submission of Shri Deodhar that in view of the collaboration agreement which the petitioner company had entered with the Malaysian company in pursuance of the encouragement given by the Central Government, the benefit of exemption notification should be denied under the explanation (a) (i) on the ground that the petitioner company held shares in the capital of the foreign company.( 6 ) SHRI Deodhar then submitted that in any event, the advantage of exemption notification is not available because the part of the capital of the petitioner company is held by a foreigner. The factual data in this respect is set out in the annexure to affidavit dated June 16,1993 sworn by P. Venkitasubramani, the Company Secretary. The perusal of the annexure indicates that on january 1,1980 the issued capital of the petitioner company was to the extent of Rs. 18,77,300/-equity and Rs. 6,00,000/- preference shares. Out of this, the capital of 628 equity and 137 preference shares of value of Rs. 76,500/- vested in the custodian of enemy property of India under the provisions of Evacuee Property Act. The property of the holding vested in the custodian was only 3. 09%. One Shri J. A. Parkar, residing at Singapore and a British national had expired and at time of demise, was holder of 14 equity shares of value of Rs. 1,400/ -. The legal heirs of Shri Parkar did not seek transfer of shares. Shri Deodhar submitted that as 3. 09% of issued capital was held by custodian and 0. 05% by Shri Parkar, a British national, it must be concluded that the part of the capital of petitioner company was held by a foreigner. We are unable to accede to the submission of the learned counsel. The vested interest in favour of custodian under the Evacuee Property Act was by operation of law and merely because the holders of equity and preference shares holding 3. 09% of the issued capital had left the country after partition in the year 1948 that cannot lead to the conclusion that the petitioner company is not entitled to the benefit of exemption notification. It is incorrect on the part of the department to overlook the object of issuance of the notification and deny the advantage on such technical grounds. Same is the case in respect of 14 equity shares of face value of Rs. 100/- each held by a British national prior to his demise. In our judgment, the percentage of issued capital held by the custodian and Shri Parkar is negligible that the denial of advantage of exemption notification would defeat the object with which the Government issued the notification. The object of encouraging indigenous industries in respect of manufacture of patent and proprietary medicines would stand defeated if advantage of exemption notification is denied to the petitioner company on the facts and circumstances of the case. In our judgment, the Assistant Collector was in error in passing the impugned order dated March 17,1982, copy of which is annexed at Exh n to the petition. The company is entitled to advantage of the benefit of exemption notification which is still in operation.
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653 |
Sri Sivalaya Advances and Ors Vs. Tax Recovery Officer - 2, Income Tax Offices, Madurai
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the petitioners is formidable, on a closer scrutiny, the legal position is totally otherwise. As per Rule 11(3) of the second schedule, the objector or claimant must adduce evidence to show that in the case of immovable property on the date of the service of the notice issued under this schedule to pay arrears, he had some interest in or was possessed of the property in question. The notice referred to in Rule 11(3)(a) is obviously the notice under Rule 2. It cannot be disputed that on the said date the present writ petitioners did not have any interest in the property in question and they were also not in possession of it. 15. Rule 11 (3) of the Second Schedule to the Income Tax Act deals with two categories. One is immovable property and the other is movable property. Rule 11(3)(a) pertains to immovable property while Rule 11(3)(b) relates to movable property. In the case of movable property, the claimant or objector must adduce evidence to show that on the date of attachment, he had some interest in or was possessed of the property in question. On the other hand, in the case of immovable property, the claimant or objector must adduce evidence to show that at the date of service of the notice issued under this schedule to pay the arrears, he had some interest in or was possessed of the property in question. Thus, there is a significant distinction between the language used in the case of immovable property on the one hand and movable property on the other. In the case of movable property, the relevant date is the date of attachment. But, in the case of immovable property, the material date is the date of service of Rule 2 Notice. This Court is of the view that failure to note this difference in the language has led to conceptual confusion vitiating the entire process of reasoning. 16. More than anything else, as rightly pointed out by the learned standing counsel for the respondent Department, any attachment of an immovable property made under the second schedule would relate back to and take effect from the date on which the notice to pay the arrears issued under II schedule was served on the defaulter. This legal effect of Rule 51 of second schedule cannot be overcome. In this case, this Court, therefore, comes to the conclusion that the attachment made subsequent to the purchase by the writ petitioners would relate back to and take effect from 05.01.2013 onwards. 17. It is true that as strongly contended by the learned counsel for the petitioners, if two interpretations are possible, the one that is beneficial to the assessee must be preferred. But, in this case, this Court has absolutely no doubt that on a plain reading of the relevant provisions, only one interpretation is possible and that one is in favour of the Revenue. 18. The learned counsel for the petitioners would submit that Rule 11(3)(a) of the second schedule cannot have an over-riding effect over the proviso to Section 281 of the Income Tax Act. But, as held by the learned single Judge of this Court in 1998-2-L.W.288 (cited supra), the Section 281 and Rule 11 of the second schedule operate distinctly and independent of each other. 19. The learned counsel appearing for the petitioners would further contend that Rule 16(2) of second schedule clearly states that where the attachment was made under the schedule, any alienation that takes place thereafter alone shall be void. But then Rule 16(2) cannot be read in isolation. It is not a standalone provision. It must be read together and in conjunction with Rule 51. Hence, the submission of the learned counsel appearing for the petitioners cannot be accepted. 20. The learned counsel appearing for the petitioners also emphasised that this Court should defer to the decision rendered by the Division Bench of the Gujarat High Court. But this Court is unable to agree with the said submission. It is true that the Division Bench of this Court in the decision reported in [1986] 159 ITR 646 (Mad) observed that it is an acceptable principle in the matter of construction of an Indian statute as far as possible that there must be uniformity of construction and if the provision of law which falls for consideration before the Court has already been construed by another High Court, normally that construction should be accepted. But then the Honourable Division Bench also added a caveat that if there are compelling reasons to depart from the view taken by the other High Court, the said construction need not be accepted. This Court is of the considered opinion that there are compelling reasons to depart from the view taken by the Division Bench of the Gujarat High Court. Again as already pointed out, this Court is treading the path taken by the Honble Division Bench of the Punjab and Haryana High Court. 21. Yet the orders impugned in these writ petitions cannot sustained as such. The Honble Supreme Court in (1998) 6 SCC 658 has held that it is the function of the civil Court to declare a transaction to be null and void and that the Tax Recovery Officer cannot exercise the said function. Therefore, the respondent clearly erred in declaring the transactions to which the petitioners are parties as null and void. Therefore, the orders impugned in these writ petitions stand quashed to that extent. It would certainly be open to the petitioners herein to avail the remedy set out in Rule 11(6) of the second schedule of the Income Tax Act. If the respondent authority wants to have the transactions nullified, it is the respondent who must go to the civil Court to seek declaration to that effect. If the writ petitioners want the attachment to be lifted, it is for them to move the civil Court and obtain relief as provided in Rule 11(6) of the second schedule of the Income Tax Act.
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1[ds]7. This Court carefully considered the rival contentions. Two facts are not in dispute. The vendor of the writ petitioners herein is a defaulter-assessee and that he alienated the subject properties only after receipt of notice under Rule 2 of the Second Schedule to the Income Tax Act. Secondly, the orders of attachment were issued by the respondent only after such purchase by the writ petitioners hereinGoing by the plain language of the said section, it is clear that the main provision is concerned only with those transactions executed by the assessee during the pendency of any proceedings under the Income Tax Act or after the completion thereof, but before the service of notice under Rule 2 of the second schedule. In this case, it is evident from the face of the record and it is again not in dispute that notice under Rule 2 of second schedule was served on the defaulter on 05.01.2013 and that the sale transactions executed by the said defaulter-assessee took place thereafter. Therefore, this Court is of the view that it would not be open to the purchasers to claim the benefit of the proviso to Section 281 (1) of the Act13. In this case, the property belonged to the defaulter-assessee. He had been served with notice under Rule 2. The moment such a notice was served on the defaulter-assessee, by virtue of Rule 16(1) of the second schedule, he became incompetent to deal with the property. In Rule 16(1), it is expressly stated that the defaulter assessee shall not be competent to deal with the property. If the vendor was not competent to deal with the property, he could not have passed any valid or legal title to the purchaser. Thus, the issue has to be approached through the prism of Section 11 of the Contract Act, 1872Though on the face of it the submission of the learned counsel appearing for the petitioners is formidable, on a closer scrutiny, the legal position is totally otherwise. As per Rule 11(3) of the second schedule, the objector or claimant must adduce evidence to show that in the case of immovable property on the date of the service of the notice issued under this schedule to pay arrears, he had some interest in or was possessed of the property in question. The notice referred to in Rule 11(3)(a) is obviously the notice under Rule 2. It cannot be disputed that on the said date the present writ petitioners did not have any interest in the property in question and they were also not in possession of it15. Rule 11 (3) of the Second Schedule to the Income Tax Act deals with two categories. One is immovable property and the other is movable property. Rule 11(3)(a) pertains to immovable property while Rule 11(3)(b) relates to movable property. In the case of movable property, the claimant or objector must adduce evidence to show that on the date of attachment, he had some interest in or was possessed of the property in question. On the other hand, in the case of immovable property, the claimant or objector must adduce evidence to show that at the date of service of the notice issued under this schedule to pay the arrears, he had some interest in or was possessed of the property in question. Thus, there is a significant distinction between the language used in the case of immovable property on the one hand and movable property on the other. In the case of movable property, the relevant date is the date of attachment. But, in the case of immovable property, the material date is the date of service of Rule 2 Notice. This Court is of the view that failure to note this difference in the language has led to conceptual confusion vitiating the entire process of reasoning16. More than anything else, as rightly pointed out by the learned standing counsel for the respondent Department, any attachment of an immovable property made under the second schedule would relate back to and take effect from the date on which the notice to pay the arrears issued under II schedule was served on the defaulter. This legal effect of Rule 51 of second schedule cannot be overcome. In this case, this Court, therefore, comes to the conclusion that the attachment made subsequent to the purchase by the writ petitioners would relate back to and take effect from 05.01.2013 onwards17. It is true that as stronglycontended by the learned counsel for the petitioners, if two interpretations are possible, the one that is beneficial to the assessee must be. But, in this case, this Court has absolutely no doubt that on a plain reading of the relevant provisions, only one interpretation is possible and that one is in favour of the RevenueBut this Court is unable to agree with the said submission. It is true that the Division Bench of this Court in the decision reported in [1986] 159 ITR 646 (Mad) observed that it is an acceptable principle in the matter of construction of an Indian statute as far as possible that there must be uniformity of construction and if the provision of law which falls for consideration before the Court has already been construed by another High Court, normally that construction should be accepted. But then the Honourable Division Bench also added a caveat that if there are compelling reasons to depart from the view taken by the other High Court, the said construction need not be accepted. This Court is of the considered opinion that there are compelling reasons to depart from the view taken by the Division Bench of the Gujarat High Court. Again as already pointed out, this Court is treading the path taken by the Honble Division Bench of the Punjab and Haryana High Court21. Yet the orders impugned in these writ petitions cannot sustained as such. The Honble Supreme Court in (1998) 6 SCC 658 has held that it is the function of the civil Court to declare a transaction to be null and void and that the Tax Recovery Officer cannot exercise the said function. Therefore, the respondent clearly erred in declaring the transactions to which the petitioners are parties as null and void. Therefore, the orders impugned in these writ petitions stand quashed to that extent. It would certainly be open to the petitioners herein to avail the remedy set out in Rule 11(6) of the second schedule of the Income Tax Act. If the respondent authority wants to have the transactions nullified, it is the respondent who must go to the civil Court to seek declaration to that effect. If the writ petitioners want the attachment to be lifted, it is for them to move the civil Court and obtain relief as provided in Rule 11(6) of the second schedule of the Income Tax Act.
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### Instruction:
From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant.
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the petitioners is formidable, on a closer scrutiny, the legal position is totally otherwise. As per Rule 11(3) of the second schedule, the objector or claimant must adduce evidence to show that in the case of immovable property on the date of the service of the notice issued under this schedule to pay arrears, he had some interest in or was possessed of the property in question. The notice referred to in Rule 11(3)(a) is obviously the notice under Rule 2. It cannot be disputed that on the said date the present writ petitioners did not have any interest in the property in question and they were also not in possession of it. 15. Rule 11 (3) of the Second Schedule to the Income Tax Act deals with two categories. One is immovable property and the other is movable property. Rule 11(3)(a) pertains to immovable property while Rule 11(3)(b) relates to movable property. In the case of movable property, the claimant or objector must adduce evidence to show that on the date of attachment, he had some interest in or was possessed of the property in question. On the other hand, in the case of immovable property, the claimant or objector must adduce evidence to show that at the date of service of the notice issued under this schedule to pay the arrears, he had some interest in or was possessed of the property in question. Thus, there is a significant distinction between the language used in the case of immovable property on the one hand and movable property on the other. In the case of movable property, the relevant date is the date of attachment. But, in the case of immovable property, the material date is the date of service of Rule 2 Notice. This Court is of the view that failure to note this difference in the language has led to conceptual confusion vitiating the entire process of reasoning. 16. More than anything else, as rightly pointed out by the learned standing counsel for the respondent Department, any attachment of an immovable property made under the second schedule would relate back to and take effect from the date on which the notice to pay the arrears issued under II schedule was served on the defaulter. This legal effect of Rule 51 of second schedule cannot be overcome. In this case, this Court, therefore, comes to the conclusion that the attachment made subsequent to the purchase by the writ petitioners would relate back to and take effect from 05.01.2013 onwards. 17. It is true that as strongly contended by the learned counsel for the petitioners, if two interpretations are possible, the one that is beneficial to the assessee must be preferred. But, in this case, this Court has absolutely no doubt that on a plain reading of the relevant provisions, only one interpretation is possible and that one is in favour of the Revenue. 18. The learned counsel for the petitioners would submit that Rule 11(3)(a) of the second schedule cannot have an over-riding effect over the proviso to Section 281 of the Income Tax Act. But, as held by the learned single Judge of this Court in 1998-2-L.W.288 (cited supra), the Section 281 and Rule 11 of the second schedule operate distinctly and independent of each other. 19. The learned counsel appearing for the petitioners would further contend that Rule 16(2) of second schedule clearly states that where the attachment was made under the schedule, any alienation that takes place thereafter alone shall be void. But then Rule 16(2) cannot be read in isolation. It is not a standalone provision. It must be read together and in conjunction with Rule 51. Hence, the submission of the learned counsel appearing for the petitioners cannot be accepted. 20. The learned counsel appearing for the petitioners also emphasised that this Court should defer to the decision rendered by the Division Bench of the Gujarat High Court. But this Court is unable to agree with the said submission. It is true that the Division Bench of this Court in the decision reported in [1986] 159 ITR 646 (Mad) observed that it is an acceptable principle in the matter of construction of an Indian statute as far as possible that there must be uniformity of construction and if the provision of law which falls for consideration before the Court has already been construed by another High Court, normally that construction should be accepted. But then the Honourable Division Bench also added a caveat that if there are compelling reasons to depart from the view taken by the other High Court, the said construction need not be accepted. This Court is of the considered opinion that there are compelling reasons to depart from the view taken by the Division Bench of the Gujarat High Court. Again as already pointed out, this Court is treading the path taken by the Honble Division Bench of the Punjab and Haryana High Court. 21. Yet the orders impugned in these writ petitions cannot sustained as such. The Honble Supreme Court in (1998) 6 SCC 658 has held that it is the function of the civil Court to declare a transaction to be null and void and that the Tax Recovery Officer cannot exercise the said function. Therefore, the respondent clearly erred in declaring the transactions to which the petitioners are parties as null and void. Therefore, the orders impugned in these writ petitions stand quashed to that extent. It would certainly be open to the petitioners herein to avail the remedy set out in Rule 11(6) of the second schedule of the Income Tax Act. If the respondent authority wants to have the transactions nullified, it is the respondent who must go to the civil Court to seek declaration to that effect. If the writ petitioners want the attachment to be lifted, it is for them to move the civil Court and obtain relief as provided in Rule 11(6) of the second schedule of the Income Tax Act.
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654 |
Collector of Bombay Vs. Burjor Hormusji Poonegar & Another
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inasmuch the Collector had demanded the payment of assessment with retrospective effect. In our opinion, such a contention could not possibly be raised at all, because fixing and levying assessment is one thing and recovery of assessment is another. In the present case, the notices issued by the Collector to the respondents being 11 in number were all dated 29th June, 1943, and the tenor of all these notices was the same, except for the survey number and the amount of assessment. The form of these notices is as follows:-Re :- Assessment of old B. B. and C. I. Railway land at Sleater Road bearing C. S. No. ................. of Tardeo Dn. Plot No. ............Sir,With reference to the above, I have the honour to state that Government has been pleased to sanction the assessment of Rs. ............ p. a. on the land bearing C. S. No. ........................ of Tardeo Division with a guarantee period of 50 years from 1st April, 1938. I have therefore, assessed the above land accordingly.2. I now request you to pay into this office the assessment for five years (i.e., from 1st April, 1938 to 31st March, 1943) already due, at an early date.Your obedient servant,Collector of Bombay.It will appear from the form of this notice that it was addressed to the respondents under Section 9 of the Bombay City Land Revenue Act, 1876, for the purpose of intimating to them the amount of assessment that the Collector had fixed. Section 9 however, does not contemplate any notice of demand for payment of land revenue. That section only deals with the settlement of land revenue with the superior holder of the land, in the sense that the Collector has only to give an intimation of the assessment fixed by him in respect of any particular land to the superior holder thereof, so that the assessment may be binding on him. The second paragraph of the notice, however, refers to the demand for payment for the past five years. This may be regarded as a notice under Section 10 of the Act, the second paragraph whereof deals with a notice of demand for arrears of land revenue. In our opinion the notice with regard to fixing of land revenue is clearly severable from the notice demanding payment thereof for the past five years. So far as the latter notice is concerned, it might well be ignored by the respondents. But just because the respondents, were not liable to pay the assessment for the years 1938 to 1943, it would not mean that the assessment fixed by the Collector and intimated to the respondents by the first paragraph of the notice was invalid. The first paragraph of the notice undoubtedly intimates to the respondents the amount of assessment fixed by the Collector as from 1938 for a period of 50 years. That by itself, however, would not invalidate the assessment as such in so far as it was leviable as from the date of the notice. The period of 50 years, instead of being counted from 1938, would be calculated from the date of the notice; and the learned Advocate-General fairly conceded that that would be so. It may be noted that the statute does not require that the assessment should be fixed for any particular number of years. But we were told that it was just a matter of Government policy that the assessment should be fixed for a certain number of years, so that the holders of lands may have fixity of tenure for that period of year without any apprehension of the assessment being enhanced in the meantime. In these circumstances, we are not inclined to agree with the learned Revenue Judge that just because the Collector fixed the assessment with retrospective effect and demanded payment thereof from 1938, the entire assessment was invalid and ineffective or that the notices given by the Collector intimating to the respondents the amount of assessment that he had fixed were wholly invalid. On the contrary, in our opinion, the notices are, invalid only in so far as they demand payment of assessment for the period prior to the date thereof; for their future operation, they are perfectly valid. It may further be noted that if any payment has been made by the respondents in respect of any period prior to the date of the notices, the recovery of such assessment by the Government would be illegal and the amount so received by the Government would be liable to be refunded to the respondents. This position is made clear in a recent decision of the Supreme Court in Sales Tax Officer Banaras v. Kanhaiya Lal, AIR 1959 SC 135 in which it was observed that where it was once established that the payment, even though it be of a tax, had been made by the party labouring under a mistake of law, the party was entitled to recover the same and the party receiving the same was bound to repay or return it. No distinction could be made in respect of a tax liability on a plain reading of the terms of Section 72 of the Contract Act. To hold that a tax paid by mistake of law could not be recovered under Section 72 would be not to interpret the law but to make a law by adding some such words as "otherwise than by way of taxes" after the word "paid. Accordingly, the utmost that could be said about the validity or otherwise of the notices in question would be that the assessment fixed by the Collector was not invalid but that inasmuch as he had no right to demand payment of such assessment for any period prior to the date of the notice, the recovery made by him of any assessment for such period would be illegal and he would be liable to return the amount so recovered to the respondents. Except to this extent, the notices would, in our opinion, be perfectly valid and operative.
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1[ds]45. It may be observed that some of the issues which were raised by the learned Revenue Judge in this case were almost identical with those raised and decided by the Supreme Court in Mistris Case, ((S) AIR 1955 SC 298 ). It was accordingly held by the learned Revenue Judge in this case, in our opinion quite rightly, that the respondents had not established a right in limitation of the right of the Government to assess, not had they established a specific limit to the Governments right to assess the lands in question within the meaning of Section 8 of the Bombay City Land Revenue Act, 1876. The questions that were hotly discussed before the learned Revenue Judge, however, were firstly, as to whether the respondents were not "Superior Holders" within the meaning of Section 3(4) of the Bombay City Land Revenue Act, 1876 and, therefore Sections 8 and 9 of the said Act were not applicable to them, and secondly, whether the notices issued by the appellant being retrospective were invalid and the assessments founded thereon were accordingly also invalid.In our opinion, the learned Revenue Judge should not have allowed this application for amendment of the plaint. It is obvious that the reliefs that the respondents had sought in the plaint as originally filed were based upon the footing that they were "Superior Holders". The same reliefs are now, sought to be obtained on the footing that they were not "Superior Holders". As the Supreme Court has pointed out, these pleas are obviously inconsistent with each other and we do not accept Mr. Madons contention that the plaintiff is always entitled to ask for any relief in any suit on thoroughly inconsistent pleas. (Vide Ma Shwe Mya v. Maung Mo Hnaung, 48 Ind App 214 : (AIR 1922 PC 249). On the mere ground, therefore, that the plea that was sought to be raised by the respondents by their amendment application was wholly inconsistent with the pleas already raised by them in the plaint as originally filed, the learned Revenue Judge, in our opinion, should have disallowed the respondents application for amendment. Secondly, it is obvious that the Government would be put to a very serious loss of revenue in the event of the respondents succeeding on this new plea. It would be losing the revenue for all the years at any rate from 1943 onwards up to the time they are compelled to amend the Bombay City Land Revenue Act so as to enable them to levy assessment upon these lands. If the amendment application had been made earlier, soon after the suit was filed, the learned Revenue Judge could have taken, up this case as well for disposal and in that event the suit could have been finally disposed of even by the Supreme Court in appeal just about the time when Mistris case, ((S) AIR 1955 SC 208) was decided. If the respondents on this plea had succeeded before the Supreme Court the Government would have seen their way to amend the Bombay City Land Revenue Act, 1876, suitably by about 1955 or 1956. In that case as also in the case of respondents losing on that plea, although the Government would have lost its revenue for about 12 or 13 years, they would not have lost the same for the subsequent years. For this reason also, the learned Judge should have disallowed the respondents application for amendment. On the ground of delay also, we are of the opinion that the learned Revenue Judge should have disallowed the respondents application for amendment. Unless the respondents thought that their suit would be decided in the same way as Mistris suit, there was no reason for them to wait for the disposal of their suit until Mistris case, ((S) AIR 1955 SC 298 ) was decided by the Supreme Court in 1955. If at all they wanted to raise a plea, which they sought to raise by the amendment application, we do not think they should have really waited until the decision of the Supreme Court in Mistris case, ((S) AIR 1955 SC 298 ) because, they knew very well that Mistris case, ((S) AIR 1955 SC 298 ) did not involve the question as to whether Mistri and others who had purchased the land from Government, just as the respondents had done in this case, were or were not "Superior Holders" within the meaning of Section 3(4) of the Bombay City Land Revenue Act, 1876. They should have really raised this plea by amending the plaint within a reasonable time after the filing of the suit. Besides, the Bombay City Land Revenue Act, 1876, by Section 17 requires such a suit to be filed within 30 days from the date when the decision of the Collector was made known to the respondents. This provision clearly shows the anxiety of the Legislature that revenue matters should be disposed of as expeditiously as possible. With the new plea that was allowed to be introduced by the amendment of the plaint, the suit can be said to have been filed more than 12 years after the assessment was fixed and accordingly, the very purpose for which Section 17 of that Act was designed can well be said to have been set at nought. Besides, it seems to us that in view of Section 17 of the said Act, the suit was clearly barred by time at the date of the application for amendment of the plaint. We, therefore, hold that the respondents application for amendment of the plaint in this case should not have been allowed by the learned Revenue Judge.51. Inasmuch as, however, the learneddid not content himself with his arguments only on this question of amendment, and invited us to give our decision also on the questions that were raised by the amended plaint, we do not think that we should dispose of this appeal only on thatwill appear from these provisions that all that belonged to the East India Company at the date of that Act was ordained to be held by that Company not for its own benefit, advantage or use but in trust for His Majesty, His Heirs and Successors for the service of the Government of India. The Port and Island of Bombay was one of the territories then in possession and under the Government of the East India Company and, as has been already observed, the kind of estate that the Company had in the Port and Island of Bombay was only an estate in fee simple. By virtue of these provisions, this estate in fee simple only was ordained to be held by the Company in trust for His Majesty, His Heirs and Successors for the service of the Government of India. It was not as if the estate which belonged to the East India Company was resumed by the Crown and the East India Company was thereafter ordained to hold in trust the Port and Island of Bombay for and on behalf of the Crown for the service of the Government of India. Accordingly, in our opinion, there was no merger of the interests of the Crown with those of the East India Company in the Port and Island of Bombay, under the Act of 1833 as contended for by Mr.again, it will be observed, all that had belonged to and was in the possession of the East India Company became vested in Her Majesty to be applied and disposed of for the purposes of the Government of India. There is, however, no specific provision anywhere in this Act to the effect that the paramount interest of the Crown in the Port and Island of Bombay had merged with the interest of the East India Company therein, for being applied and disposed of for the purposes of the Government of India. Section 2 of that Act, however which has been quoted above, uses the word "India" and that would presumably include all the territories which constituted India as belonging to Her Majesty. For the purposes of the Government of India, it can well be said that thein regard to the Port and Island of Bombay which continued to remain in the Crown until the Act of 1858, merged with the interest of the East India Company therein and the Port and Island of Bombay formed one of the territories of India, which was thereafter to be governed by and in the name of Her Majesty. In our opinion, therefore, the Socage tenure on which the Port and Island of Bombay was granted to the London Company by the Charter of 1668 came to an end in 1858 and there was no question of anyin respect thereof continuing in the Crown thereafter. If we are right in this conclusion, we must negative the learned Advocate Generals contention that theover the Port and Island of Bombay continued in the Crown until by implication it devolved on the province of Bombay under the Government of India Act of 1935. The learned Advocate General conceded that there was no provision in the Act of 1935 transferring theof the Crown to the Provincial Government. According to him, however, the transfer of power to legislate about land and land revenue to the Province of Bombay contemplated by the Government of India Act of 1935, implied the transfer ofover the Port and Island of Bombay to the Provincial Government. He urged that as a matter of fact, as far back as 1861, the India Councils Act, 1861, which empowered the Government of India to make laws inter alia for land and land revenue, implied the transfer ofover the Port and Island of Bombay to the Government of Bombay. We are afraid however, we cannot accept this contention of the learned Advocate General. The transfer of power to legislate about land and land revenue, in our opinion, has no concern with theof the Crown in respect of any of the territories of India. Besides, there was nothing like Province of Bombay in 1861 when the India Councils Act was passed, nor was there any thing like the Province of Bombay when the Bombay City Land Revenue Act of 1876 was passed. It was conceded at the Bar that until the Government of India Act of 1935 came into force the Government of India was unitary and all the laws of the land were passed by the Government of India. Section 36 of the India Councils Act of 1861 empowered the Indian Government to make laws inter alia with reference to lands and land revenue, and it appears that it was by virtue of this power that the Bombay City Land Revenue Act of 1876 and the Bombay Land Revenue Code of 1879 were passed. We, therefore, hold that since the Act of 1858 to which we have referred, the entire interest of the Crown in the Port and Island of Bombay was held by the Government of India and that, there was no question ofdevolving upon the Provincial Government either under the India Councils Act, 1861, or under the Government of India Act of 1935.61. It may be observed that the question as regards the Socage tenure with reference to the Port and Island of Bombay was raised by the learned Advocate General for the purpose of showing that the lands held by the respondents in this case were really held by them under the Provincial Government inasmuch as theof the Crown in respect of the territories within the Port and Island of Bombay had devolved upon the Provincial Government at any rate on the passing of the Government of India Act of 1935. This argument was adopted by the learned Advocate General on the footing that the expression "a person having the highest title under the Provincial Government" as used in Section 3(4) of the Bombay City Land Revenue Act, 1876, was capable of being literally construed to mean that such person derived his title from and held it under the Provincial Government. As we have held, however, that there was no kind of subsistingas existed between the Crown and the East India Company after the Act of 1858, there was nothing to devolve upon the Provincial Government when the Government of India Act, 1935, was passed and, therefore, on the literal construction of the expression "a person having the highest title under the Provincial Government" as used in Section 3(4) of the Bombay City Land Revenue Act, 1876, it could not be said that the respondents held the lands in the suit under the Provincial Government.62. Assuming, however, that there was any such kind ofsubsisting in the Crown over the territories situated within the Port and Island of Bombay, until the Government of India Act, 1935, was passed, in the absence of any specific provision in that Act transferring thisto the Provincial Government, the Provincial Government could not be said to be the overlord of the lands in suit, so that the respondents could be said to hold the same "under the Provincial Government". Thein that event would continue to remain in the Crown and the utmost that may be said would be that the respondents held the lands only under the Crown.63. The position in this behalf would not, in our opinion be any different if the Central Government had in them the lordship as distinct fromover the lands in suit, as was alternatively contended by the learned Advocate General, in consequence of an estate in fee simple, which is the highest estate known to English law, having been created in favour of the respondents in respect of those lands by the conveyance dated 15th March 1938. There being admittedly no provision in the Government of India, Act, 1935, for transfer of such lordship to the Provincial Government, the respondents cannot be said to hold those lands "under the Provincialthere is no doubt that one of the prerogatives of the Crown is that it is the owner of the soil in respect of all the lands situated within its territories, and that the subjects can only have an estate in the lands and can never claim to be the absolute owners thereof. The other prerogative of the Crown is to assess lands in the hands of its subjects obviously because the Crown would not be able to run the Government of its territories except with the help of the land revenue that it might collect from its subjects.It was not disputed at the Bar that the lands in suit were originally granted on foras tenure. By the Foras Act No. VI of 1851 the rights of the East India Company in all such lands were extinguished in favour of the persons who held the same as the immediateto the company save and except the rents that were severally payable in respect of such lands which were to continue to be payable and recoverable by distress or by any means by which land revenue in Bombay was then, recoverable under any Act or regulation and all rights of forfeiture and escheat for want of heirs or representatives, or on account of felonies committed, or otherwise. It will thus be seen that the lordship which was granted to the East India Company by the Crown over the Port and Island of Bombay was considerably curtailed in favour of the occupants of these lands situated in the Port and Island of Bombay and that the only rights which remained in the East India Company were those relating, to the recovery of the rent, escheat and forfeiture. It may be noted that this Act was apparently passed with a view to securing permanency of tenure to the occupants of the foras lands. By the Act of 1858, as already observed above, these rights of the East India Company were transferred to Her Majesty to be utilised for the purposes of the Government of India and theof the Crown in respect of these lands thereby became merged with the lordship of the East India Company and the only outstanding interests in those lands were those which had remained with the occupants of those lands. The lands in suit as well as several other lands belonging to the same tenure were, however, acquired by the Government for the use of B. B. and C. I. Railway during the periodWhatever rights the occupants of these lands had therein were thereupon extinguished and the Government which was then being carried on in the name of Her Majesty became the absolute owner of all those lands. The Supreme Court in Mistris case ((S) AIR 1955 SC 298 ) has pointed out that on the acquisition of these lands the provisions of Foras Act ceased to apply and there was no rent to be paid to the Government in respect of those lands, because the Government itself had acquired those lands. Besides, the Foras Act of 1851 was itself repealed in 1870. There was, of course, a provision made in the Repealing Act that whatever rights the Government of India, which had stepped into the shoes of the East India Company, had in respect of the lands governed by the Foras Act of 1851 were preserved and one of such rights was to recover the rents which were being paid to the East India Company and later to the Government of India in respect thereof. But this saving provision of the Repealing Act only applied to those lands which were not acquired by the Government (under the Land Acquisition Act. Inasmuch as, however, the lands in the suit were acquired by the Government for the use of the B. B. and C. I. Railway as stated above, the provision of the Repealing Act relating to the saving of the rights of the Crown did not apply to them, nor would that provision be revived in the event of the Government transferring any of those lands to any member of the public even by an outright sale. The Supreme Court has made this position abundantly clear in its judgment in Mistris case ((S) AIR 1955 SCare afraid, we cannot accept this contention. The prerogative right of the Crown to assess the lands within its territory was distributed between the Federal Government and the Provinces according as the lands were situated within the territories of the Federation or of Provinces. The Provincial Government accordingly had full and absolute power, in our opinion, to assess lands within its own territory even if such lands were held by His Majesty for Federal purposes. The wording of Section 154 in our judgment makes this position quite clear and it was not as if the provision was made as matter of any abundant caution as urged by the learned Counsel for the respondents. This position seems to have been made much clear by the proviso to Section 154 which says that if any property so vested in His Majesty was liable to any tax immediately before the commencement of Part III of that Act, it shall continue to be liable to such tax so long as that tax continued until any Dominion law provided to the contrary. The argument advanced by Mr. Madon that the property vested in His Majesty for the purposes of the Federation was always exempt from the Provincial tax, does not, therefore, appear to beobservations make it clear that the Provincial Legislature is supreme in its power to legislate in respect of any property situated within its territories irrespective of whether such property belongs to private individuals or is held by His Majesty for the purposes of the Federation. In case of property vested in or in the possession ofHis Majesty for the purposes of the Federation but situated in a province, it is only the Federal law which can provide exemption or protection from the operation of any Provincial legislation with respect thereto. But for such law, such property would be treated for the purposes of the Provincial legislation as if it was the property of a private individual in the same way as a property vested in His Majesty for the purposes of a province but situated outside the province would be regarded as if it was owned by a privateit seems to be clear that the provisions of Section 154 of the Government of India Act were not enacted as a matter of abundant caution as contended by Mr. Madon, the learned Counsel for the respondents. The provisions were necessary to be made in order to protect the property vested in His Majesty for the purposes of the Federation but situated in a Province from any taxing Statute that might be passed by the Provincial Legislature. As a matter of fact, in our opinion, Section 154 of the Government of India Act, 1935, plainly recognises the right of the Provincial Government to tax all lands situated within its territory through appropriate legislation corresponding to the prerogative right of the Crown to levy assessment upon lands situated within its territories. Accordingly, so long as the lands in suit were held by the Central Government after the Government of India Act, 1935, came into force, the Provincial Government could claim the same prerogative right of the Crown over these lands for the purposes of any land revenue that might be imposed by the Provincial Government upon thesewe remember that the lands in the City of Bombay were originally granted by the Portuguese Government and recognised by the London Company and its successor the East India Company, and the East India Company itself had granted some other lands including those reclaimed from the sea to different persons on different tenures, such as pension and tax and Foras tenures, and that the occupants of lands despite the abolition of the tenures on which they were held continued to be liable to pay the same amount of rent or assessment to the Government as they were liable to pay under the terms of their respective tenure by reason of a saving provision made in the Statute abolishing the tenures, the reason underlying the last paragraph of Section 8, as quoted, would be better appreciated. It is an admitted fact that the lands in question, along with several others, were originally granted to the occupants on Foras tenure in consideration of certain amount of rent. Although the Foras Act, 1851, which extinguished thereversion of the East India Company in these lands except, of course, their right to the rents, escheat and forfeiture, as already observed in the earlier part of the judgment was abolished in 1870, the right of the Government to recover these rents as well as the liability of the occupants to pay those rents were preserved. In case of such lands, the occupants could plead and establish a limitation upon the right of the Provincial Government to levy assessment on the lands in their possession and urge that the Provincial Government was not entitled to levy any assessment higher than what they were already paying prior to the Act of 1935 or even prior to the abolition of Foras Act of 1851, in 1870 to the then Government. But where the lands, though originally granted on Foras tenure, ceased to be governed by that tenure by reason of the acquisition thereof by the Government, as in the present case, neither the Central Government nor any person deriving title thereto from the Central Government could contend that there was any limitation upon the right of the Provincial Government to levy assessment upon those lands. On a true construction of Section 8 of the Bombay City Land Revenue Act, 1876, therefore, we hold that the Collector has the power and duty to levy assessment for land revenue upon all the lands situated in the City of Bombay without reference to any superior holder, subject of course, to the right on the part of any superior holder in limitation of the right of the Provincial Government to assess in consequence of a specific limit to assessment having been established andmay, however, be observed that the same section further provides that in any case wherein the superior holder or the person in possession cannot be readily ascertained, the Collector shall give notice calling on all persons claiming the right of a superior holder in or over the said land or a right to the possession thereof to intimate such claim to the Collector at the Collectors office. It also provides that if no person asserts such right by intimation to the Collector at the Collectors office withindays from the date of such notice, the Collector may assess such land at his discretion and the superior holder and every person then or thereafter in possession of the land shall be liable accordingly. These provisions, in our opinion, show that the liability to assessment is attached to the land and the section only provides how the assessment is to be settled and recovered.In our opinion, the contention raised on behalf of the respondents that the Provincial Government had limited its rights to levy assessment from such superior holder, who held the highest title (to land) derived from the Provincial Government is not worthy of acceptance. As we have already held above, on a true construction of Section 8 of the Bombay City Land Revenue Act, 1876, the Collector has the power and duty to levy assessment for land revenue upon all the lands situated in the City of Bombay without reference to any superior holder, subject, of course, to the right of any superior holder in limitation of the right of the Provincial Government in consequence of a specific limit of assessment having been established and preserved. Further, the section postulates the existence of a superior holder in respect of every land liable to be assessed by the Collector, and it is the superior holder alone who is entitled to plead and establish a limitation of the right of the Provincial Government to assess either wholly or in part, in consequence of a specific limit to assessment preserved to him by some Statute or terms of the grant. It must be noted that no Provincial Government with autonomy of its own existed at the time when the Bombay City Land Revenue Act, 1876, was put on the Statute Book and, therefore, there was no question of the Provincial Government granting any lands in the City of Bombay to the subjects on any tenure or otherwise, nor was there any question of the Government of that day granting any such lands to the subjects on any tenure or otherwise. The lands in the City of Bombay were already granted to the subjects on different tenures, first by the Portuguese Government and later by the London Company and its successor the East India Company, and yet the expression "superior holder" was defined in Section 3(4) of the Bombay City Land Revenue Act as "a person having the highest title under the Government to any land in the City of Bombay". Accordingly, in order to give effect to the object and provisions of that Act and not to render then, nugatory, it must be held that the "superior holder" contemplated by that Act does not mean a person having the highest title (to land) derived from the Government or the Provincial Government, as if it was the owner of the land in fact and in law, and had granted it to some person on some tenure. It must, in our opinion, mean a person having the highest title to land among several claimants thereto, and for the purpose of payment of land revenue in respect of such land such person would hold the land "under the Government" or "under the Provincial Government" by virtue of its prerogative right to be the owner of all lands within itsthe light of these observations, it would be clear that so far as the assessment of any land in the City of Bombay to land revenue is concerned, a "superior holder" having the highest title thereto would be holding it from or under the Provincial Government and it is not necessary that such "superior holder" must derive his highest title to the land from the Provincial Government on the basis of some tenure granted by the latter, before he can be made liable to the payment of land revenue in respect of suchare afraid, we cannot accept thiswill appear from this definition that the emphasis is not on the person from whom such land revenue is claimable but on the land or interest in or right exercisable over land held by or vested in someare afraid, there is no substance in this contention. The words "legally claimable" only refer to the method by which the assessment is fixed and claimed from the "superior holder". They do not, in our opinion, mean that it would be legally claimable only where the "superior holder" derived his title to land from the Provincialour opinion, this construction of the expression, "Under the Provincial Government" is repugnant to the object and spirit of the Act itself. It is also repugnant to the expression "highest title" used in the definition ofthat event it is difficult to conceive the propriety of the expression "highest title" as used in the definition ofThe expression "highest title", in our opinion, connotes a competition between several types of title or interest created in respect of the same land. As already observed above, it was conceded by Mr. Gupte that the Provincial Government could not possibly create more than one right in respect of the same land. How then is the expression "highest title" to be explained It can only be explained on the footing that several kinds of estates may simultaneously exist in the same land and the "superior holder in respect of such land would be the person having the highest estate in thatit is true that the English law of property does not apply to this country ever since the enactment of the Transfer of Property Act in 1882, we do have different kinds of transfers of property with different kinds of rights accruing therefrom. Thus, A the owner of land may lease it out to B for a period of 99 years. He may also create a mortgage of that property in favour of C. It is open to him to create also a life estate in favour of D, and so on.All these different rights, as admitted by Mr. Gupte, could not possibly be created by the Provincial Government but they could only be created by a person who is the owner of that property and it is only when such rights are created in respect of the same land that the question of a person having the highest title to the land would arise for the purposes of land revenue.Accordingly, we are of the view that the contention raised by Mr. Gupte that there must be a subsisting relationship between the Provincial Government and the holder of the land and that some interest must continue to subsist in the Provincial Government in the land in order that the holder may be called "a superior holder having the highest title under the Provincial Government is not justified. As rightly contended by the learnedthe words "under the Provincial Government" were used in Section 3(4) of the Bombay City Land Revenue Act to emphasise the basic theory that all land within the Province belonged to the Provincialwas in the light of this principle that we have already observed in the earlier part of the judgment that the purpose of the Bombay City Land Revenue Act, 1876, would be completely frustrated if the assessment is to be levied only upon those lands in the City of Bombay to which title is directly derived from the Provincial Government, as in the case of a lease or as where it is granted, on somesection is followed by a proviso with which we are not concerned in this case. Item 21 referred to above enumerates the subjects in respect of which the Provincial Legislature has been empowered to legislate and one of these subjects is treasureour opinion, Section 174 referred to above does support the proposition that the Crown is not always one and indivisible, and that its powers and prerogatives could be distributed amongst several Government authorities. That section provides for the distribution of the Crowns prerogative of escheat both to the Dominion Government and the Provincial Government according as the property accruing by escheat or lapse or as bona vacantia for want of rightful owner was situated outside the Provinces or in ahave already held, and it was conceded by the learnedthat there was no provision in the Government of India Act, 1935, by which in case the English Law applied to the transaction in question the reversion that remained in the Central Government was transferred to the Provincial Government. We must, however, deal with the contention raised by Mr.Gupte, though contrary to his own pleading, that the Central Government up to the date of the conveyance in favour of the respondents was the absolute owner of the lands in suit in consequence of the merger of all the outstanding interests therein as far back as inn they were acquired for the purposes of the B. B. and C. I. Railway and this absolute ownership was transferred by the Central Government to the respondents by the conveyance of 1938 some time after the Government of India Act, 1935, had come intoour opinion, however, there is a clear fallacy in this contention. On 1st April, 1937, on which date the Government of India Act, 1935, came into force, the prerogative right of the sovereign over all the lands situated within a Province was transferred to the Provincial Government and, therefore, the Central Government began to hold the lands in question under the Provincial Government and that such lands became immediately liable to pay land revenue to the Provincial Government under the provisions of the Bombay City Land Revenue Act, 1876. Section 154 of the Government of India Act, however, specifically provided for an exemption of these lands from all taxes that might be imposed by any authority within a province and, therefore, the Central Government, though holding the lands under the Provincial Government as superior holders thereof within the meaning of Section 3(4) of the Bombay City Land Revenue Act, 1876, was not liable to pay any land revenue to the Provincial Government. The moment, however, these lands were acquired by the respondents under the conveyance executed by the Central Government in their favour in 1938, the lands were no longer exempt from payment of land revenue to the Provincial Government and the respondents, stepping as they did into the shoes of the Central Government as superior holders in respect of these lands, became liable to pay land revenue in respect of these lands to the Provincial Government. As Chandavarkar, J., observed in Vinayak s case, ILR 26 Bom 339 at p. 350 when the respondents acquired the lands from the Central Government they acquired them subject to the paramount right of the Provincial Government to assess them for the purposes of land revenue from time to time according to the exigencies of administration. It is undoubtedly true that in case of an outright sale of land a purchaser cannot be said to hold it under the vendor. The question in this case, however, is not whether the respondents held the lands under the Central Government as their vendor. Thequestion is whether they held the lands under the Provincial Government which had nothing whatever to do with the sale of the lands by the Central Government in theirwe have already observed, on the creation of autonomous Provinces in British India by the Government of India Act, 1935, sovereignty of the Crown over the territories constituting such provinces was transferred to the Provincial Governments and all lands situated within the territories of the Province began to be held by the respective owners thereof under the Provincial Government concerned. Even on the assumption that the English Law of Property applied to these lands after the commencement of the Government of India Act 1935, the Provincial Government being the Lord Paramount in respect of all the lands situated within its territories, the Central Government held the lands in suit on an etsate in fee simple and such an estate being freely transferable under the English Law, all that was possessed by the Central Government in these lands was transferred to the respondents by the conveyance executed by the Central Government in their favour in 1938 and the respondents, too, accordingly held the lands on an estate in fee simple under the Provincial Government. In either event, the respondents could not escape being held liable as superior holders having the highest title to the lands in question under the Provincial Government to pay land revenue in respect of these lands.81. We accordingly hold that the learned Revenue Judge, was in error in holding that the respondents were not "superior holders" within the meaning of the Bombay City Land Revenue Act, 1876,in respect of the lands purchased by them from the Central Government in 1938 and that, therefore, the Collector was not entitled to fix and levy any assessment upon those lands. In our opinion, the respondents are superior holders within the meaning of the Act and as such they are liable to pay land revenue to the Provincial Government in respect of the land held by them.82. It may be noted that in view of the decision of the Supreme Court in Mistris case, ((S) AIR 1955 SC 298 ) the respondents did not contend before us or before the learned Revenue Judge that they as "superior holders" had any right in limitation of the right of the Government to assess, as pleaded by them in their plaint. As already observed in an earlier part of the judgment, the conveyance in Mistris case, was in terms similar to those of the conveyance in favour of the respondents in this case; and it was urged on behalf of the plaintiff in that case that they had a right in limitation of the right of the Provincial Government to assess the lands in their possession because the Central Government, from which they had purchased the land was exempt from paying any land revenue to the Provincial Government in respect of those lands and accordingly, they themselves were also exempt from the payment of such revenue; and, alternatively, they were liable to pay only such assessment to the Provincial Government as was being paid to the East India Company and later to the Government of India by then holders of those lands under the terms of the Foras tenure prior to the acquisition thereof by the Central Government infor the purposes of B. B. and C. I. Railway. Both these contentions, though upheld by the learned Revenue Judge and the High Court on appeal, were rejected by the Supreme Court, and it was held that where there was an absolute sale by the Crown it did not necessarily import that the land was conveyedand that the Foras tenure became extinguished when the lands were acquired under the Land Acquisition proceedings and was incapable of coming back to life when the lands were sold to the respondents, and accordingly, the respondents could not claim a right to pay assessment only at the rate at which it was payable under the Foras Act. The contentions raised by the respondents in this case in their plaint were the same as were raised by the plaintiffs in Mistris case, ((S) AIR 1955 SC 298 ) as aforesaid; and it was in the fitness of things that the respondents in this case were advised not to raise those contentions before us in thiswould thus appear that all that was held on the question of the Collectors right to recover enhanced assessment retrospectively was that, in the absence of anything in the terms of the Government Resolution to show any intention to give retrospective effect to the new assessment, the Collector could not call upon the plaintiff to pay the assessment for the two preceding years and that, therefore, the plaintiff was entitled to the return of the excess amount that he had claimed. It is true that it was not contended by the plaintiff in that case that the notice fixing and levying enhanced assessment in that case retrospectively was wholly bad by reason of its being retrospective in operation and that what the plaintiff had claimed was the excess amount that he had paid for the two years. Nevertheless, it is clear from the decision of that case that wherever an assessment is made with retrospective effect the assessee would not be liable to pay the assessment for the years prior to the date of the notice; but that in itself would not be an adequate ground to render the whole notice invalid. The assessment fixed by the Collector would certainly be valid as from the date on which it was fixed with prospective operation. The learned Revenue Judge, however, felt the difficulty in taking this view of the notices in the present case, because if the Collector made an assessment in 1943 and calculated the value of the land (say Rs. 40 per square yard) but made the assessment retrospective from 1938, then one did not know whether he considered Rs. 40 per square yard to be a reasonable price in 1938 or 1943. It was mainly upon this consideration that the learned Revenue Judge felt inclined to hold that the notices were not good enough even for their prospective operation and they were wholly void. In our opinion, the learned Revenue Judge fell into an error in relying upon the aforesaid consideration for the purpose of discarding the notices as wholly invalid. It is certainly true that the prices of land in 1938 in the City of Bombay were very much lower than those in 1943 when the Second World War was on. Nevertheless, no injustice would result to the respondents so long as they were liable to pay the assessment as from the date of the notices. If the Collector had fixed the assessment on the basis of the value of the lands in 1938, the respondents would be paying very much less as and by way of land revenue than what would have been legitimately due from them on the basis of the value in 1943. If the Collector had taken the value of the land in 1943, the respondents, would not be liable to pay the assessment fixed on such value for any period prior to the date of the notice and they would be paying just the amount of revenue which would be legitimately due from them on the basis of the value of the land in 1943. In our opinion, therefore, the learned Revenue Judge was not right in holding that the notices (Exhibit K) in the case could not be operative evenmay be observed that in this case also it was not contended by the plaintiff that the notice fixing and levying the assessment was wholly void inasmuch the Collector had demanded the payment of assessment with retrospective effect. In our opinion, such a contention could not possibly be raised at all, because fixing and levying assessment is one thing and recovery of assessment is another. In the present case, the notices issued by the Collector to the respondents being 11 in number were all dated 29th June, 1943, and the tenor of all these notices was the same, except for the survey number and the amount ofwill appear from the form of this notice that it was addressed to the respondents under Section 9 of the Bombay City Land Revenue Act, 1876, for the purpose of intimating to them the amount of assessment that the Collector had fixed. Section 9 however, does not contemplate any notice of demand for payment of land revenue. That section only deals with the settlement of land revenue with the superior holder of the land, in the sense that the Collector has only to give an intimation of the assessment fixed by him in respect of any particular land to the superior holder thereof, so that the assessment may be binding on him. The second paragraph of the notice, however, refers to the demand for payment for the past five years. This may be regarded as a notice under Section 10 of the Act, the second paragraph whereof deals with a notice of demand for arrears of land revenue. In our opinion the notice with regard to fixing of land revenue is clearly severable from the notice demanding payment thereof for the past five years. So far as the latter notice is concerned, it might well be ignored by the respondents. But just because the respondents, were not liable to pay the assessment for the years 1938 to 1943, it would not mean that the assessment fixed by the Collector and intimated to the respondents by the first paragraph of the notice was invalid. The first paragraph of the notice undoubtedly intimates to the respondents the amount of assessment fixed by the Collector as from 1938 for a period of 50 years. That by itself, however, would not invalidate the assessment as such in so far as it was leviable as from the date of the notice. The period of 50 years, instead of being counted from 1938, would be calculated from the date of the notice; and the learnedfairly conceded that that would be so. It may be noted that the statute does not require that the assessment should be fixed for any particular number of years. But we were told that it was just a matter of Government policy that the assessment should be fixed for a certain number of years, so that the holders of lands may have fixity of tenure for that period of year without any apprehension of the assessment being enhanced in the meantime. In these circumstances, we are not inclined to agree with the learned Revenue Judge that just because the Collector fixed the assessment with retrospective effect and demanded payment thereof from 1938, the entire assessment was invalid and ineffective or that the notices given by the Collector intimating to the respondents the amount of assessment that he had fixed were wholly invalid. On the contrary, in our opinion, the notices are, invalid only in so far as they demand payment of assessment for the period prior to the date thereof; for their future operation, they are perfectly valid. It may further be noted that if any payment has been made by the respondents in respect of any period prior to the date of the notices, the recovery of such assessment by the Government would be illegal and the amount so received by the Government would be liable to be refunded to the respondents. This position is made clear in a recent decision of the Supreme Court in Sales Tax Officer Banaras v. Kanhaiya Lal, AIR 1959 SC 135 in which it was observed that where it was once established that the payment, even though it be of a tax, had been made by the party labouring under a mistake of law, the party was entitled to recover the same and the party receiving the same was bound to repay or return it. No distinction could be made in respect of a tax liability on a plain reading of the terms of Section 72 of the Contract Act. To hold that a tax paid by mistake of law could not be recovered under Section 72 would be not to interpret the law but to make a law by adding some such words as "otherwise than by way of taxes" after the word "paid. Accordingly, the utmost that could be said about the validity or otherwise of the notices in question would be that the assessment fixed by the Collector was not invalid but that inasmuch as he had no right to demand payment of such assessment for any period prior to the date of the notice, the recovery made by him of any assessment for such period would be illegal and he would be liable to return the amount so recovered to the respondents. Except to this extent, the notices would, in our opinion, be perfectly valid and operative.
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inasmuch the Collector had demanded the payment of assessment with retrospective effect. In our opinion, such a contention could not possibly be raised at all, because fixing and levying assessment is one thing and recovery of assessment is another. In the present case, the notices issued by the Collector to the respondents being 11 in number were all dated 29th June, 1943, and the tenor of all these notices was the same, except for the survey number and the amount of assessment. The form of these notices is as follows:-Re :- Assessment of old B. B. and C. I. Railway land at Sleater Road bearing C. S. No. ................. of Tardeo Dn. Plot No. ............Sir,With reference to the above, I have the honour to state that Government has been pleased to sanction the assessment of Rs. ............ p. a. on the land bearing C. S. No. ........................ of Tardeo Division with a guarantee period of 50 years from 1st April, 1938. I have therefore, assessed the above land accordingly.2. I now request you to pay into this office the assessment for five years (i.e., from 1st April, 1938 to 31st March, 1943) already due, at an early date.Your obedient servant,Collector of Bombay.It will appear from the form of this notice that it was addressed to the respondents under Section 9 of the Bombay City Land Revenue Act, 1876, for the purpose of intimating to them the amount of assessment that the Collector had fixed. Section 9 however, does not contemplate any notice of demand for payment of land revenue. That section only deals with the settlement of land revenue with the superior holder of the land, in the sense that the Collector has only to give an intimation of the assessment fixed by him in respect of any particular land to the superior holder thereof, so that the assessment may be binding on him. The second paragraph of the notice, however, refers to the demand for payment for the past five years. This may be regarded as a notice under Section 10 of the Act, the second paragraph whereof deals with a notice of demand for arrears of land revenue. In our opinion the notice with regard to fixing of land revenue is clearly severable from the notice demanding payment thereof for the past five years. So far as the latter notice is concerned, it might well be ignored by the respondents. But just because the respondents, were not liable to pay the assessment for the years 1938 to 1943, it would not mean that the assessment fixed by the Collector and intimated to the respondents by the first paragraph of the notice was invalid. The first paragraph of the notice undoubtedly intimates to the respondents the amount of assessment fixed by the Collector as from 1938 for a period of 50 years. That by itself, however, would not invalidate the assessment as such in so far as it was leviable as from the date of the notice. The period of 50 years, instead of being counted from 1938, would be calculated from the date of the notice; and the learned Advocate-General fairly conceded that that would be so. It may be noted that the statute does not require that the assessment should be fixed for any particular number of years. But we were told that it was just a matter of Government policy that the assessment should be fixed for a certain number of years, so that the holders of lands may have fixity of tenure for that period of year without any apprehension of the assessment being enhanced in the meantime. In these circumstances, we are not inclined to agree with the learned Revenue Judge that just because the Collector fixed the assessment with retrospective effect and demanded payment thereof from 1938, the entire assessment was invalid and ineffective or that the notices given by the Collector intimating to the respondents the amount of assessment that he had fixed were wholly invalid. On the contrary, in our opinion, the notices are, invalid only in so far as they demand payment of assessment for the period prior to the date thereof; for their future operation, they are perfectly valid. It may further be noted that if any payment has been made by the respondents in respect of any period prior to the date of the notices, the recovery of such assessment by the Government would be illegal and the amount so received by the Government would be liable to be refunded to the respondents. This position is made clear in a recent decision of the Supreme Court in Sales Tax Officer Banaras v. Kanhaiya Lal, AIR 1959 SC 135 in which it was observed that where it was once established that the payment, even though it be of a tax, had been made by the party labouring under a mistake of law, the party was entitled to recover the same and the party receiving the same was bound to repay or return it. No distinction could be made in respect of a tax liability on a plain reading of the terms of Section 72 of the Contract Act. To hold that a tax paid by mistake of law could not be recovered under Section 72 would be not to interpret the law but to make a law by adding some such words as "otherwise than by way of taxes" after the word "paid. Accordingly, the utmost that could be said about the validity or otherwise of the notices in question would be that the assessment fixed by the Collector was not invalid but that inasmuch as he had no right to demand payment of such assessment for any period prior to the date of the notice, the recovery made by him of any assessment for such period would be illegal and he would be liable to return the amount so recovered to the respondents. Except to this extent, the notices would, in our opinion, be perfectly valid and operative.
### Response:
1
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655 |
RAM PAL SINGH Vs. THE STATE OF UTTAR PRADESH
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Kshettra Panchayat and if their votes are disregarded, the No Confidence Motion would fail. The Allahabad High Court rejected the contention following the decisions mentioned above. 32. Learned counsel for the petitioner sought to make a distinction between the performance of legislative functions and non-legislative functions of an elected member of the Kshettra Panchayat. It was submitted that the Kshettra Panchayat does not have any legislative functions and its duties and responsibilities are circumscribed by Chapter IX of the Constitution. The submission of learned counsel may not be strictly correct since the Panchayat can be empowered by the State Legislature to levy, collect and appropriate taxes, duties, tolls and fees. However, without going into this issue, the broad intent of the decision of the Calcutta High Court, the Allahabad High Court as well as this Court is that if an elected member does not take the oath of office, he or she cannot participate in the proceedings of the Kshettra Panchayat, unless there is something to the contrary in a statute, which is not the case here. Consequently, there is no prohibition against an elected member from being a signatory to a No Confidence Motion. It is quite possible that in the absence of the signatory to the No Confidence Motion – an elected member – the No Confidence Motion might get defeated in the Panchayat due to his or her inability to vote, but that is not relevant for our purposes. Sanctity of oath of office 33. The case law that has emerged over the years suggests that subscribing to the oath of office is not being taken very seriously. It must be appreciated that taking the oath of office is not a mere ritual but there is a degree of seriousness and sanctity attached to it. Different laws provide different consequences (some quite mild) for not taking the oath of office. We have already referred to the Adhiniyam and the Rules. We are of opinion that since subscribing to the oath of office is a solemn occasion, failure to do so ought to result in serious consequences, such as the seat being declared vacant after a specified time. In fact, Section 40 of the Tamil Nadu Panchayat Act, 1994 provides in Section 40 as follows: 40. Oath or affirmation to be made by members - (1) Notwithstanding anything contained in the Oaths Act, 1969 (Central Act X of 1969), every person who is elected to be a member or who becomes a member shall, before taking his seat, make, at a meeting of the Panchayat an oath or affirmation in the following form, namely:- I, A.B, having been elected a member/having become a member of this Village Panchayat/Panchayat Union Council/District Panchayat do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter. (2) Any person who, having been elected to be a member or who, having become a member, fails to make within three months of the date on which his term of office commences or at one of the first three meetings held after the said date, whichever is later, the oath or affirmation laid down in sub-section (1), shall cease to hold his office and his seat shall be deemed to have become vacant. (3) Any person who has been elected to be a member or who has become a member shall not take his seat at meeting of the Panchayat or do any act as such member unless he has made the oath or affirmation as laid down in sub-section (1). (4) Notwithstanding anything contained in sub-section (3), the President or the Chairman of a Panchayat or the member of a Committee constituted under this Act, who has not made the oath or affirmation as a member, shall be entitled to act as such President, Chairman or member provided he makes the oath or affirmation and takes his seat at the first meeting of the Panchayat which he attends within two months after he is elected or appointed as, or becomes entitled to exercise the functions of the President, Chairman or member, as the case may be. 34. We are of the view that elected representatives be visited with serious consequences for not taking the oath of office within a specified time, mainly because even the Constitution attaches a great degree of solemnity to the oath of office. For example, Article 60 of the Constitution provides that before entering upon his office, the President shall make and subscribe the oath or affirmation. Similarly, Article 69 of the Constitution requires the Vice President to make and subscribe the oath or affirmation before entering upon his office. 35. Article 84 of the Constitution requires that a person shall not be qualified to be chosen to fill a seat in Parliament unless he makes and subscribes the oath or affirmation according to the forms set out for the purpose in the Third Schedule. We have already referred to the oath or affirmation by a member of the Legislative Assembly or the Legislative Council as required by Article 188 of the Constitution. If the Constitution has attached importance to the oath of office, why cannot legislations provide something similar to what Tamil Nadu has? 36. Additionally, it should be appreciated that apart from requiring elected representatives of a Panchayat attaching seriousness to taking the oath of office, an unimpeachable record of the elected representatives taking the oath of office should be maintained by the concerned officials of the State Government. Unless the sanctity of the oath of office is appreciated and appropriate documentation kept, we will continue to be faced with situations such as the present where a dispute is raised whether an elected member of a body has taken the oath of office. Such controversies are completely avoidable. Conclusion
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0[ds]10. In view of this serious factual controversy, we are of opinion that it would be appropriate to rely on the counter affidavit filed by the State. It is stated in the counter affidavit that in a communication of 12th January, 2018 issued by the office of the Block Development Officer, it is stated that all 63 members of the Kshettra Panchayat had taken the oath of office on 18th March, 201620. We find a fallacy and a dichotomy in the submission of learned counsel for the petitioner with regard to the status of elected members of the Kshettra Panchayat who have allegedly not taken the oath of office24. To get over this fallacy and dichotomy, it was submitted by learned counsel for the petitioner that it would be strange and illogical that the 13 elected members could sign the No Confidence Motion even though they had not taken the oath of office but they could not actually vote in the Panchayat because they were not entitled to a seat in the Panchayat, not having taken the oath of office.While this may appear to be illogical and irrational, there is no challenge to the provisions of the Adhiniyam and we must proceed on the basis that if the requisition for the No Confidence Motion was numerically valid, the discussion on that would take place in the Panchayat and the requisition would meet its appropriate fate. We, therefore, reject this contention of the learned counsel for the petitionerof the Kshettra Panchayat who were alleged not to have taken oath of office on 18th March, 2018. Consequently, the No Confidence Motion against the petitioner was a numerically valid requisition having been signed by more than 50% of the elected members of the Kshettra Panchayat26. The legal position having been settled for over 100 years, we see no dire necessity or any necessity at all ofg the law laid downIn this case a somewhat similar situation as in the present proceedings before us had arisen. A No Confidence Motion was signed and carried against the Block Pramukh. Challenging this, the submission of the Block Pramukh was that 11 elected members of the Kshettra Panchayat had not subscribed to the oath of office after being elected. Therefore, they were ineligible to participate in the meeting convened for the No Confidence Motion and to cast their vote. It was contented that these 11 elected members could not be treated as members of the Kshettra Panchayat and if their votes are disregarded, the No Confidence Motion would fail. The Allahabad High Court rejected the contention following the decisions mentioned above32. Learned counsel for the petitioner sought to make a distinction between the performance of legislative functions ande functions of an elected member of the Kshettra Panchayat. It was submitted that the Kshettra Panchayat does not have any legislative functions and its duties and responsibilities are circumscribed by Chapter IX of the Constitution. The submission of learned counsel may not be strictly correct since the Panchayat can be empowered by the State Legislature to levy, collect and appropriate taxes, duties, tolls and fees. However, without going into this issue, the broad intent of the decision of the Calcutta High Court, the Allahabad High Court as well as this Courtis that if an elected member does not take the oath of office, he or she cannot participate in the proceedings of the Kshettra Panchayat, unless there is something to the contrary in a statute, which is not the case here. Consequently, there is no prohibition against an elected member from being a signatory to a No Confidence Motion. It is quite possible that in the absence of the signatory to the No Confidence Motion – an elected member – the No Confidence Motion might get defeated in the Panchayat due to his or her inability to vote, but that is not relevant for our purposesSanctity of oath of office33. The case law that has emerged over the years suggests that subscribing to the oath of office is not being taken very seriously. It must be appreciated that taking the oath of office is not a mere ritual but there is a degree of seriousness and sanctity attached to it. Different laws provide different consequences (some quite mild) for not taking the oath of office. We have already referred to the Adhiniyam and the Rules. We are of opinion that since subscribing to the oath of office is a solemn occasion, failure to do so ought to result in serious consequences, such as the seat being declared vacant after a specified time. In fact, Section 40 of the Tamil Nadu Panchayat Act, 1994 provides in Section 40 as follows:40. Oath or affirmation to be made by memberser or who becomes a member shall, before taking his seat, make, at a meeting of the Panchayat an oath or affirmation in the following form, namely:I, A.B, having been elected a member/having become a member of this Village Panchayat/Panchayat Union Council/District Panchayat do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter.(2) Any person who, having been elected to be a member or who, having become a member, fails to make within three months of the date on which his term of office commences or at one of the first three meetings held after the said date, whichever is later, the oath or affirmation laid down inn (1), shall cease to hold his office and his seat shall be deemed to have become vacant.(3) Any person who has been elected to be a member or who has become a member shall not take his seat at meeting of the Panchayat or do any act as such member unless he has made the oath or affirmation as laid down in(4) Notwithstanding anything contained inn (3), the President or the Chairman of a Panchayat or the member of a Committee constituted under this Act, who has not made the oath or affirmation as a member, shall be entitled to act as such President, Chairman or member provided he makes the oath or affirmation and takes his seat at the first meeting of the Panchayat which he attends within two months after he is elected or appointed as, or becomes entitled to exercise the functions of the President, Chairman or member, as the case may besolemnity to the oath of office. For example, Article 60 of the Constitution provides that before entering upon his office, the President shall make and subscribe the oath or affirmation. Similarly, Article 69 of the Constitution requires the Vice President to make and subscribe the oath or affirmation before entering upon his office35. Article 84 of the Constitution requires that a person shall not be qualified to be chosen to fill a seat in Parliament unless he makes and subscribes the oath or affirmation according to the forms set out for the purpose in the Third Schedule. We have already referred to the oath or affirmation by a member of the Legislative Assembly or the Legislative Council as required by Article 188 of the Constitution. If the Constitution has attached importance to the oath of office, why cannot legislations provide something similar to what Tamil Nadu has?
| 0 | 5,046 |
### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
Kshettra Panchayat and if their votes are disregarded, the No Confidence Motion would fail. The Allahabad High Court rejected the contention following the decisions mentioned above. 32. Learned counsel for the petitioner sought to make a distinction between the performance of legislative functions and non-legislative functions of an elected member of the Kshettra Panchayat. It was submitted that the Kshettra Panchayat does not have any legislative functions and its duties and responsibilities are circumscribed by Chapter IX of the Constitution. The submission of learned counsel may not be strictly correct since the Panchayat can be empowered by the State Legislature to levy, collect and appropriate taxes, duties, tolls and fees. However, without going into this issue, the broad intent of the decision of the Calcutta High Court, the Allahabad High Court as well as this Court is that if an elected member does not take the oath of office, he or she cannot participate in the proceedings of the Kshettra Panchayat, unless there is something to the contrary in a statute, which is not the case here. Consequently, there is no prohibition against an elected member from being a signatory to a No Confidence Motion. It is quite possible that in the absence of the signatory to the No Confidence Motion – an elected member – the No Confidence Motion might get defeated in the Panchayat due to his or her inability to vote, but that is not relevant for our purposes. Sanctity of oath of office 33. The case law that has emerged over the years suggests that subscribing to the oath of office is not being taken very seriously. It must be appreciated that taking the oath of office is not a mere ritual but there is a degree of seriousness and sanctity attached to it. Different laws provide different consequences (some quite mild) for not taking the oath of office. We have already referred to the Adhiniyam and the Rules. We are of opinion that since subscribing to the oath of office is a solemn occasion, failure to do so ought to result in serious consequences, such as the seat being declared vacant after a specified time. In fact, Section 40 of the Tamil Nadu Panchayat Act, 1994 provides in Section 40 as follows: 40. Oath or affirmation to be made by members - (1) Notwithstanding anything contained in the Oaths Act, 1969 (Central Act X of 1969), every person who is elected to be a member or who becomes a member shall, before taking his seat, make, at a meeting of the Panchayat an oath or affirmation in the following form, namely:- I, A.B, having been elected a member/having become a member of this Village Panchayat/Panchayat Union Council/District Panchayat do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter. (2) Any person who, having been elected to be a member or who, having become a member, fails to make within three months of the date on which his term of office commences or at one of the first three meetings held after the said date, whichever is later, the oath or affirmation laid down in sub-section (1), shall cease to hold his office and his seat shall be deemed to have become vacant. (3) Any person who has been elected to be a member or who has become a member shall not take his seat at meeting of the Panchayat or do any act as such member unless he has made the oath or affirmation as laid down in sub-section (1). (4) Notwithstanding anything contained in sub-section (3), the President or the Chairman of a Panchayat or the member of a Committee constituted under this Act, who has not made the oath or affirmation as a member, shall be entitled to act as such President, Chairman or member provided he makes the oath or affirmation and takes his seat at the first meeting of the Panchayat which he attends within two months after he is elected or appointed as, or becomes entitled to exercise the functions of the President, Chairman or member, as the case may be. 34. We are of the view that elected representatives be visited with serious consequences for not taking the oath of office within a specified time, mainly because even the Constitution attaches a great degree of solemnity to the oath of office. For example, Article 60 of the Constitution provides that before entering upon his office, the President shall make and subscribe the oath or affirmation. Similarly, Article 69 of the Constitution requires the Vice President to make and subscribe the oath or affirmation before entering upon his office. 35. Article 84 of the Constitution requires that a person shall not be qualified to be chosen to fill a seat in Parliament unless he makes and subscribes the oath or affirmation according to the forms set out for the purpose in the Third Schedule. We have already referred to the oath or affirmation by a member of the Legislative Assembly or the Legislative Council as required by Article 188 of the Constitution. If the Constitution has attached importance to the oath of office, why cannot legislations provide something similar to what Tamil Nadu has? 36. Additionally, it should be appreciated that apart from requiring elected representatives of a Panchayat attaching seriousness to taking the oath of office, an unimpeachable record of the elected representatives taking the oath of office should be maintained by the concerned officials of the State Government. Unless the sanctity of the oath of office is appreciated and appropriate documentation kept, we will continue to be faced with situations such as the present where a dispute is raised whether an elected member of a body has taken the oath of office. Such controversies are completely avoidable. Conclusion
### Response:
0
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656 |
K. R. Chinna Krishna Chettiar Vs. Sri Ambal & Co., Madras & Anr
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Ambal" form part of trade mark No. 126808 and are the whole of trade mark No.146291. There can be no doubt that the word "Ambal" is an essential feature of the trade marks. The common "Sri" is the subsidiary part. Of the two words "Ambal" is the more distinctive and fixes itself in the recollection of an average buyer with imperfect recollection.9. The vital question in issue is whether, if the appellants mark is used in a normal and fair manner in connection with the snuff and if similarly fair and normal user is assumed of the existing registered marks will there be such a likelihood of deception that the mark ought not to be allowed to be registered? (See In the matter of Broadheads Application for registration of a trade mar, 1950-67 RPC 209). It is for the Court to decide the question on a comparison of the competing marks as a whole and their distinctive and essential features. We have no doubt in our mind that if the proposed mark is used in a normal and fair manner the mark would come to be known by its distinguishing feature "Andal. There is a striking similarity and affinity of sound between the words "Andal" and "Ambal". Giving due weight to the judgment of the Registrar and bearing in mind the conclusions of the learned Single Judge and the Divisional Bench, we are satisfied that there is a real danger of confusion between the two marks.10.There is no evidence of actual confusion, but that might be due to the fact that the appellants trade is not of long standing. There is no visual resemblance between the two marks, but ocular comparison is not always the decisive test. The resemblance between the two marks must be considered with reference to the ear as well as the eye. There is a close affinity of sound between Ambal and Andal.11. In the case of Coca-Cola Co. of Canada v. Pepsi Cola Co. of Canada Ltd., 1942-59 RPC 127, it was found that cola was in common use in Canada for naming the beverages. The distinguishing feature of the mark cocacola was coca and not cola. For the same reason the distinguishing feature of the mark Pepsi Cola was Pepsi and not cola. It was not likely that any one would confuse the word Pepsi with coca. In the present case the word "Sri" may be regarded as in common use. The distinguishing feature of the respondents mark is Ambal while that of the appellants mark is Andal. The two words are deceptively similar in sound.12. The name Andal does not cease to be deceptively similar because it is used in conjunction with a pictorial device. The case of Decordova v. Vick Chemical Coy., 1951-68 RPC 103 is instructive. From the Appendix printed at page 270 of the same volume it appears that Vick Chemical Coy, were the proprietors of the registered trade mark consisting of the word "Vaporub" and another registered trade mark consisting of a design of which the words "Vicks Vaporub Salve" formed a part. The appendix at page 226 shows that the defendants advertised their ointment as "Karsote Vapour Rub". It was held that the defendants had infringed the registered marks. Lord Radcliffe said:".....a mark is infringed by another trader if, even without using the whole of it upon or in connection with his goods, he uses one or more of its essential features".13. Mr. Sen stressed the point that the words Ambal and Andal had distinct meaning. Ambal is the consort of Lord Siva and Andal is the consort of Ranganatha. He said that in view of the distinct ideas conveyed by the two words a mere accidental phonetic resemblance could not lead to confusion. In this connection he relied on Venkateswarans Law of Trade and Merchandise Marks, 1963 Ed., page 214, Kerlys Law of Trade Marks and Trade Names, 9th Ed., page 465, Article 852 and the decision, Application by Thomas A. Smith Ltd., to Register a trade mark, 1913-30 RPC 363. In that case Neville, J., held that the words "limit" and "summit" were words in common use, each conveying a distinctly definite idea that there was no possibility of any one being deceived by the two marks; and there was no ground for refusing registration. Mr. Sens argument loses sight of the realities of the case.The Hindu in the south of India may be well aware that the words Ambal and Andal represent the names of two distinct Goddesses. But the respondents customers are not confined to Hindus alone. Many of their customers are Christians, Parsees, Muslims and persons of other religious denominations. Moreover, their business is not confined to south of India. The customers who are not Hindus or who do not belong to the south of India may not know the difference between the words Andal and Ambal. The words have no direct reference to the character and quality of snuff. The customers who use the respondents goods will have a recollection that they are known by the word Ambal. They may also have a vague recollection of the portrait of a benign Goddess used in connection with the mark. They are not likely to remember the fine distinctions between a Vaishnavite Goddess and a Shivaite deity.14. We think the judgment appealed from is right and should be affirmed. We are informed that the appellant filed another application No. 212575 seeking registration of labels of which the expression "Radhas Sri Andal Madras Snuff" forms a part. The learned Registrar has disposed of the application in favour of the appellant. But we understand that an appeal is pending in the High Court. It was argued that there was no phonetic similarly between Sri Ambal and Radhas Sri Andal and the use of the expression Radhas Sri Andal was not likely to lead to confusion. The Divisional Bench found force in this argument. But as the matter is sub judice we express no opinion on it.
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0[ds]7. The Registrar was of the view that the appellants mark was not deceptively similar to the respondents trade marks. He has expert knowledge of such matters and his decision should not be lightly disturbed. But both the Courts have found that he was clearly wrong and held that there is a deceptive similarity between the two marks. In an appeal under Article 136 of the Constitution the onus is upon the appellant to show that the concurrent finding of the Courts below is erroneous. The appellant must satisfy that Court that the conditions of Section 12 (1) have been satisfied. If those conditions are not satisfied his mark cannot be registered.8. Now the words "Sri Ambal" form part of trade mark No. 126808 and are the whole of trade mark No.146291. There can be no doubt that the word "Ambal" is an essential feature of the trade marks. The common "Sri" is the subsidiary part. Of the two words "Ambal" is the more distinctive and fixes itself in the recollection of an average buyer with imperfectis for the Court to decide the question on a comparison of the competing marks as a whole and their distinctive and essential features. We have no doubt in our mind that if the proposed mark is used in a normal and fair manner the mark would come to be known by its distinguishing feature "Andal. There is a striking similarity and affinity of sound between the words "Andal" and "Ambal". Giving due weight to the judgment of the Registrar and bearing in mind the conclusions of the learned Single Judge and the Divisional Bench, we are satisfied that there is a real danger of confusion between the two marks.10.There is no evidence of actual confusion, but that might be due to the fact that the appellants trade is not of long standing. There is no visual resemblance between the two marks, but ocular comparison is not always the decisive test. The resemblance between the two marks must be considered with reference to the ear as well as the eye. There is a close affinity of sound between Ambal and Andal.11. In the case of Coca-Cola Co. of Canada v. Pepsi Cola Co. of Canada Ltd., 1942-59 RPC 127, it was found that cola was in common use in Canada for naming the beverages. The distinguishing feature of the mark cocacola was coca and not cola. For the same reason the distinguishing feature of the mark Pepsi Cola was Pepsi and not cola. It was not likely that any one would confuse the word Pepsi with coca. In the present case the word "Sri" may be regarded as in common use. The distinguishing feature of the respondents mark is Ambal while that of the appellants mark is Andal. The two words are deceptively similar in sound.12. The name Andal does not cease to be deceptively similar because it is used in conjunction with a pictorial device.Sens argument loses sight of the realities of the case.The Hindu in the south of India may be well aware that the words Ambal and Andal represent the names of two distinct Goddesses. But the respondents customers are not confined to Hindus alone. Many of their customers are Christians, Parsees, Muslims and persons of other religious denominations. Moreover, their business is not confined to south of India. The customers who are not Hindus or who do not belong to the south of India may not know the difference between the words Andal and Ambal. The words have no direct reference to the character and quality of snuff. The customers who use the respondents goods will have a recollection that they are known by the word Ambal. They may also have a vague recollection of the portrait of a benign Goddess used in connection with the mark. They are not likely to remember the fine distinctions between a Vaishnavite Goddess and a Shivaite deity.14. We think the judgment appealed from is right and should be affirmed. We are informed that the appellant filed another application No. 212575 seeking registration of labels of which the expression "Radhas Sri Andal Madras Snuff" forms a part. The learned Registrar has disposed of the application in favour of the appellant. But we understand that an appeal is pending in the High Court. It was argued that there was no phonetic similarly between Sri Ambal and Radhas Sri Andal and the use of the expression Radhas Sri Andal was not likely to lead to confusion. The Divisional Bench found force in this argument. But as the matter is sub judice we express no opinion on it.
| 0 | 2,117 |
### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
Ambal" form part of trade mark No. 126808 and are the whole of trade mark No.146291. There can be no doubt that the word "Ambal" is an essential feature of the trade marks. The common "Sri" is the subsidiary part. Of the two words "Ambal" is the more distinctive and fixes itself in the recollection of an average buyer with imperfect recollection.9. The vital question in issue is whether, if the appellants mark is used in a normal and fair manner in connection with the snuff and if similarly fair and normal user is assumed of the existing registered marks will there be such a likelihood of deception that the mark ought not to be allowed to be registered? (See In the matter of Broadheads Application for registration of a trade mar, 1950-67 RPC 209). It is for the Court to decide the question on a comparison of the competing marks as a whole and their distinctive and essential features. We have no doubt in our mind that if the proposed mark is used in a normal and fair manner the mark would come to be known by its distinguishing feature "Andal. There is a striking similarity and affinity of sound between the words "Andal" and "Ambal". Giving due weight to the judgment of the Registrar and bearing in mind the conclusions of the learned Single Judge and the Divisional Bench, we are satisfied that there is a real danger of confusion between the two marks.10.There is no evidence of actual confusion, but that might be due to the fact that the appellants trade is not of long standing. There is no visual resemblance between the two marks, but ocular comparison is not always the decisive test. The resemblance between the two marks must be considered with reference to the ear as well as the eye. There is a close affinity of sound between Ambal and Andal.11. In the case of Coca-Cola Co. of Canada v. Pepsi Cola Co. of Canada Ltd., 1942-59 RPC 127, it was found that cola was in common use in Canada for naming the beverages. The distinguishing feature of the mark cocacola was coca and not cola. For the same reason the distinguishing feature of the mark Pepsi Cola was Pepsi and not cola. It was not likely that any one would confuse the word Pepsi with coca. In the present case the word "Sri" may be regarded as in common use. The distinguishing feature of the respondents mark is Ambal while that of the appellants mark is Andal. The two words are deceptively similar in sound.12. The name Andal does not cease to be deceptively similar because it is used in conjunction with a pictorial device. The case of Decordova v. Vick Chemical Coy., 1951-68 RPC 103 is instructive. From the Appendix printed at page 270 of the same volume it appears that Vick Chemical Coy, were the proprietors of the registered trade mark consisting of the word "Vaporub" and another registered trade mark consisting of a design of which the words "Vicks Vaporub Salve" formed a part. The appendix at page 226 shows that the defendants advertised their ointment as "Karsote Vapour Rub". It was held that the defendants had infringed the registered marks. Lord Radcliffe said:".....a mark is infringed by another trader if, even without using the whole of it upon or in connection with his goods, he uses one or more of its essential features".13. Mr. Sen stressed the point that the words Ambal and Andal had distinct meaning. Ambal is the consort of Lord Siva and Andal is the consort of Ranganatha. He said that in view of the distinct ideas conveyed by the two words a mere accidental phonetic resemblance could not lead to confusion. In this connection he relied on Venkateswarans Law of Trade and Merchandise Marks, 1963 Ed., page 214, Kerlys Law of Trade Marks and Trade Names, 9th Ed., page 465, Article 852 and the decision, Application by Thomas A. Smith Ltd., to Register a trade mark, 1913-30 RPC 363. In that case Neville, J., held that the words "limit" and "summit" were words in common use, each conveying a distinctly definite idea that there was no possibility of any one being deceived by the two marks; and there was no ground for refusing registration. Mr. Sens argument loses sight of the realities of the case.The Hindu in the south of India may be well aware that the words Ambal and Andal represent the names of two distinct Goddesses. But the respondents customers are not confined to Hindus alone. Many of their customers are Christians, Parsees, Muslims and persons of other religious denominations. Moreover, their business is not confined to south of India. The customers who are not Hindus or who do not belong to the south of India may not know the difference between the words Andal and Ambal. The words have no direct reference to the character and quality of snuff. The customers who use the respondents goods will have a recollection that they are known by the word Ambal. They may also have a vague recollection of the portrait of a benign Goddess used in connection with the mark. They are not likely to remember the fine distinctions between a Vaishnavite Goddess and a Shivaite deity.14. We think the judgment appealed from is right and should be affirmed. We are informed that the appellant filed another application No. 212575 seeking registration of labels of which the expression "Radhas Sri Andal Madras Snuff" forms a part. The learned Registrar has disposed of the application in favour of the appellant. But we understand that an appeal is pending in the High Court. It was argued that there was no phonetic similarly between Sri Ambal and Radhas Sri Andal and the use of the expression Radhas Sri Andal was not likely to lead to confusion. The Divisional Bench found force in this argument. But as the matter is sub judice we express no opinion on it.
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657 |
State Of Kerala Vs. P. P. Hassan Koya
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S. 11 of the Land Acquisition Act, the Collector is required to enquire into the objections raised by the persons interested in the land and into the value of the lard at the date of the publication of the notification under S. 4, sub-s. (1), and into the respective interests of the persons claiming the compensation, and then to make an award determining-(i) the true area of the land; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the compensation among all the persons known or believed to be interested in the land, whether or not they have respectively appeared before him. By the compulsory acquisition of land, all outstanding interests not vested in the Government are extinguished.It is therefore the duty of the Land Acquisition Officer to determine in the first instance compensation which is to be paid for extinction of those interests, and then to apportion the compensation among the persons known or believed to be interested in the land. The Subordinate Judge had also, when a reference was made to him to assess the value of the unit and then to apportion the compensation among persons entitled thereto. The rule could not be departed from merely because the Receiver in whom the Jenmi rights in T. S. No. 298/2 were vested failed to raise an objection to the quantum of compensation awarded to him. Again the respondent was the holder of kanam rights in the land, and the buildings on the land belonged to him.The respondent being Kanamdar, he had an interest in T. S. No. 298/2, and as Kanamdar the respondent was entitled to apportionment of compensation even in respect of the land. 5. We agree with the Trial Court and the High Court that the method adopted by the Land Acquisition Officer for determining compensation payable for extinction of the interest of the holder of the land and of the buildings separately was unwarranted. In determining compensation payable in respect of land with buildings, compensation cannot be determined by ascertaining the value of the land and the "break-up value" of the building separately. The land and the building constitute one unit, and the value of the entire unit must be determined with all its advantages and its potentialities. Under S. 23 of the Land Acquisition Act compensation has to be determined by taking into consideration the market value of the land at the date of the publication of the notification under S. 4 (1) and the damage, if any, sustained by the persons interested under any of the heads mentioned in secondly to sixthly in S. 23 (1) of the Land Acquisition Act. 6. As observed by the Judicial Committee in Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam, 66 Ind App 104 at p. 114 = (AIR 1939 PC 98 at p. 102) :"There is not in general any market for land in the sense in which one speaks of a market for shares or a market for sugar or any like commodity. The value of any such article at any particular time can readily be ascertained by the prices being obtained for similar articles in the market. In the case of land, its value in general can also be measured by a consideration "of the prices that have obtained in the past for land of similar quality and in similar positions," and this is what must be meant in general by the market value in Section23." An instance of a sale which is proximate in time to the date of the notification under Section 4 (1) of the Land Acquisition Act in respect of land similarly situate and with similar advantages and which is proved to be a transaction between a willing vendor and a willing purchaser would form a reliable guide for determining the market value. The value which a willing vendor might reasonably expect to receive from a willing purchaser in respect of a house generally depends upon a variety of circumstances including the nature of the construction, its age, situation, the amenities available its special advantages and a host of other circumstances. When the property sold is land with building, it is often difficult to secure reliable evidence of instances of sale of similar lands sale buildings proximate in time to the date of the notification under Section 4. Therefore the method which is generally resorted to in determining the value of the land with buildings especially those used for business purposes, is the method of capitalization of return actually received or which might reasonably be received from the land and the buildings. 7. That method was rightly adopted by the Trial Court and the High Court. The unit under acquisition is used for business purposes and has a prominent situation in the town of Calicut. There was clear evidence about the rental of the building, and the Trial Court proceeded to capitalize the net annual rental, having regard to the rate of return of 3 1/2 per cent. from gilt-edged securities, by multiplying, it by 35 times. The High Court has slightly reduced the multiple. 8. It cannot be laid down as a general rule applicable to all situations and circumstances that a multiple approximately equal to the return from gilt-edged securities prevailing at the relevant time forms an adequate basis for finding out the market value of the land. But in this case the Trial Court and the High Court were of the view that a multiple based on a return from the gilt - edged securities was the approximate multiple for determining the value of the property under acquisition, and no ground has been suggested for not accepting the basis and the rate of capitalization adopted by them.It is relevant to note that the same multiple which has been adopted in other cases relating to lands and buildings acquired under the same notification under which the land of the respondent was acquired has not been challenged by the State.
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0[ds]In our judgment, there is no force in either of the contentions. When land - which expression includes by S. 3 (a) of the Act benefits to arise out of land and things attached to the earth or fastened to anything attached to the earth - is notified for acquisition, it is notified as a single unit whatever may be the interests which the owners thereof may have therein. The purpose of acquisition is to acquire all interests which clog the right of the Government to full ownership of the land, i. e. when land is notified for acquisition, the Government expresses its desire to acquire all outstanding interests collectively. That is clear from the scheme of the Land Acquisition Act.Under S. 11 of the Land Acquisition Act, the Collector is required to enquire into the objections raised by the persons interested in the land and into the value of the lard at the date of the publication of the notification under S. 4, sub-s. (1), and into the respective interests of the persons claiming the compensation, and then to make an award determining-(i) the true area of the land; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the compensation among all the persons known or believed to be interested in the land, whether or not they have respectively appeared before him. By the compulsory acquisition of land, all outstanding interests not vested in the Government are extinguished.It is therefore the duty of the Land Acquisition Officer to determine in the first instance compensation which is to be paid for extinction of those interests, and then to apportion the compensation among the persons known or believed to be interested in the land. The Subordinate Judge had also, when a reference was made to him to assess the value of the unit and then to apportion the compensation among persons entitled thereto. The rule could not be departed from merely because the Receiver in whom the Jenmi rights in T. S. No. 298/2 were vested failed to raise an objection to the quantum of compensation awarded to him. Again the respondent was the holder of kanam rights in the land, and the buildings on the land belonged to him.The respondent being Kanamdar, he had an interest in T. S. No. 298/2, and as Kanamdar the respondent was entitled to apportionment of compensation even in respect of the land5. We agree with the Trial Court and the High Court that the method adopted by the Land Acquisition Officer for determining compensation payable for extinction of the interest of the holder of the land and of the buildings separately was unwarranted. In determining compensation payable in respect of land with buildings, compensation cannot be determined by ascertaining the value of the land and the "break-up value" of the building separately. The land and the building constitute one unit, and the value of the entire unit must be determined with all its advantages and its potentialities. Under S. 23 of the Land Acquisition Act compensation has to be determined by taking into consideration the market value of the land at the date of the publication of the notification under S. 4 (1) and the damage, if any, sustained by the persons interested under any of the heads mentioned in secondly to sixthly in S. 23 (1) of the Land Acquisition Act7. That method was rightly adopted by the Trial Court and the High Court. The unit under acquisition is used for business purposes and has a prominent situation in the town of Calicut. There was clear evidence about the rental of the building, and the Trial Court proceeded to capitalize the net annual rental, having regard to the rate of return of 3 1/2 per cent. from gilt-edged securities, by multiplying, it by 35 times. The High Court has slightly reduced the multiple8. It cannot be laid down as a general rule applicable to all situations and circumstances that a multiple approximately equal to the return from gilt-edged securities prevailing at the relevant time forms an adequate basis for finding out the market value of the land. But in this case the Trial Court and the High Court were of the view that a multiple based on a return from the gilt - edged securities was the approximate multiple for determining the value of the property under acquisition, and no ground has been suggested for not accepting the basis and the rate of capitalization adopted by them.It is relevant to note that the same multiple which has been adopted in other cases relating to lands and buildings acquired under the same notification under which the land of the respondent was acquired has not been challenged by the State.
| 0 | 1,744 |
### 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:
S. 11 of the Land Acquisition Act, the Collector is required to enquire into the objections raised by the persons interested in the land and into the value of the lard at the date of the publication of the notification under S. 4, sub-s. (1), and into the respective interests of the persons claiming the compensation, and then to make an award determining-(i) the true area of the land; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the compensation among all the persons known or believed to be interested in the land, whether or not they have respectively appeared before him. By the compulsory acquisition of land, all outstanding interests not vested in the Government are extinguished.It is therefore the duty of the Land Acquisition Officer to determine in the first instance compensation which is to be paid for extinction of those interests, and then to apportion the compensation among the persons known or believed to be interested in the land. The Subordinate Judge had also, when a reference was made to him to assess the value of the unit and then to apportion the compensation among persons entitled thereto. The rule could not be departed from merely because the Receiver in whom the Jenmi rights in T. S. No. 298/2 were vested failed to raise an objection to the quantum of compensation awarded to him. Again the respondent was the holder of kanam rights in the land, and the buildings on the land belonged to him.The respondent being Kanamdar, he had an interest in T. S. No. 298/2, and as Kanamdar the respondent was entitled to apportionment of compensation even in respect of the land. 5. We agree with the Trial Court and the High Court that the method adopted by the Land Acquisition Officer for determining compensation payable for extinction of the interest of the holder of the land and of the buildings separately was unwarranted. In determining compensation payable in respect of land with buildings, compensation cannot be determined by ascertaining the value of the land and the "break-up value" of the building separately. The land and the building constitute one unit, and the value of the entire unit must be determined with all its advantages and its potentialities. Under S. 23 of the Land Acquisition Act compensation has to be determined by taking into consideration the market value of the land at the date of the publication of the notification under S. 4 (1) and the damage, if any, sustained by the persons interested under any of the heads mentioned in secondly to sixthly in S. 23 (1) of the Land Acquisition Act. 6. As observed by the Judicial Committee in Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam, 66 Ind App 104 at p. 114 = (AIR 1939 PC 98 at p. 102) :"There is not in general any market for land in the sense in which one speaks of a market for shares or a market for sugar or any like commodity. The value of any such article at any particular time can readily be ascertained by the prices being obtained for similar articles in the market. In the case of land, its value in general can also be measured by a consideration "of the prices that have obtained in the past for land of similar quality and in similar positions," and this is what must be meant in general by the market value in Section23." An instance of a sale which is proximate in time to the date of the notification under Section 4 (1) of the Land Acquisition Act in respect of land similarly situate and with similar advantages and which is proved to be a transaction between a willing vendor and a willing purchaser would form a reliable guide for determining the market value. The value which a willing vendor might reasonably expect to receive from a willing purchaser in respect of a house generally depends upon a variety of circumstances including the nature of the construction, its age, situation, the amenities available its special advantages and a host of other circumstances. When the property sold is land with building, it is often difficult to secure reliable evidence of instances of sale of similar lands sale buildings proximate in time to the date of the notification under Section 4. Therefore the method which is generally resorted to in determining the value of the land with buildings especially those used for business purposes, is the method of capitalization of return actually received or which might reasonably be received from the land and the buildings. 7. That method was rightly adopted by the Trial Court and the High Court. The unit under acquisition is used for business purposes and has a prominent situation in the town of Calicut. There was clear evidence about the rental of the building, and the Trial Court proceeded to capitalize the net annual rental, having regard to the rate of return of 3 1/2 per cent. from gilt-edged securities, by multiplying, it by 35 times. The High Court has slightly reduced the multiple. 8. It cannot be laid down as a general rule applicable to all situations and circumstances that a multiple approximately equal to the return from gilt-edged securities prevailing at the relevant time forms an adequate basis for finding out the market value of the land. But in this case the Trial Court and the High Court were of the view that a multiple based on a return from the gilt - edged securities was the approximate multiple for determining the value of the property under acquisition, and no ground has been suggested for not accepting the basis and the rate of capitalization adopted by them.It is relevant to note that the same multiple which has been adopted in other cases relating to lands and buildings acquired under the same notification under which the land of the respondent was acquired has not been challenged by the State.
### Response:
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658 |
Indowind Energy Ltd Vs. Wescare (I) Ltd. & Another
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facie a party to the arbitration agreement and that a party is prima facie bound by it. It is not as if the Chief Justice or his Designate will subsequently be passing any other final decision as to who are the parties to the arbitration agreement. Once a decision is rendered by the Chief Justice or his Designate under section 11 of the Act, holding that there is an arbitration agreement between the parties, it will not be permissible for the arbitrator to consider or examine the same issue and record a finding contrary to the finding recorded by the court. This is categorically laid down by the Constitution Bench in SBP. Therefore the prima facie finding by the learned Chief Justice that Indowind is a party to the arbitration agreement is not what is contemplated by the Act.21 It is no doubt true that if Indowind had acknowledged or confirmed in any correspondence or other agreement or document, that it is a party to the arbitration agreement dated 24.2.2006 or that it is bound by the arbitration agreement contained therein, it could have been possible to say that Indowind is a party to the arbitration agreement. But that would not be under section 7(4)(a) but under section 7(4)(b) or section 7(5). Be that as it may. That is not the case of Wescare. In fact, the delivery notes/invoices issued by Wescare do not refer to the agreement dated 24.2.2006. Nor does any letter or correspondence sent by Indowind refers to the agreement dated 24.2.2006, either as an agreement executed by it or as an agreement binding on it. We may now refer to the several documents referred to and relied on by Wescare.22. The first is in regard to the sale of WEGs by Wescare to Indowind. The letter dated 15.3.2006 enclosing the invoice, the delivery notes dated 15.3.2006 given by Wescare to Indowind, the confirmation dated 15.3.2006 by Wescare to Indowind relating to the sale of WEGs, relied on by Wescare, very significantly do not refer to the agreement dated 24.2.2006. They are straight and simple delivery notes and an invoice in regard to the sale of goods. They can be independent transactions which do not depend on or relate to the agreement dated 24.2.2006. If they were with reference to the agreement dated 24.2.2006, it is strange that Wescare did not choose to refer to the said agreement in any of these documents.23. Strong reliance is placed on the Red Herring Prospectus issued by the Indowind in connection with the public issue of its shares. We extract below the relied upon portions of the prospectus : "30. We have agreed to takeover the assets of Wescare (India) Limited, subject to approval of owners of assets and statutory formalities, but only a portion of acquisition has been completed. Our Company agreed to takeover wind mills along with land, infrastructure and spares from Wescare India Limited. But due to non receipt of approvals from the lenders/lessors, only a part of the total being 6.49 MW has been acquired by us. The Company is not certain of completing the remaining acquisition. We had paid the total amount for 39 windmills, however only 28 windmills were delivered to us representing nearly 72% of the total money paid by us. 31. One of our Promoters, Subuthi Finance Limited, has entered into an agreement dated February 24, 2006 with Wescare (India) Limited for the acquiring wind mills and other assets in the name of its nominee viz. Indowind Energy Limited for a consideration aggregating approximately Rs.9819 lacs. The consideration for the above was to be partly settled in partly in cash (Rs.2419 lacs) and partly by way of shares (74 lacs) of Indowind Energy Limited. Wescare (India) Limited has filed the following applications before the Honble High Court of Madras under Section 9 of the Arbitration and Conciliation Act, 1996 : S.No. Application No. Applicant Respondents 1 O.A.No.641 of 2007 Wescare India (i) Subuthi Finance Limited Limited (ii) Indowind Energy Limited 2 O.A.No.642 of 2007 -same as above- -same as above- 3 Appl. No.3808 of 2007 -same as above- -same as above- 4 Appl. No.3808 of 2007 -same as above- -same as above- All above applications are pending before the Honble High Court of Madras. For further details of the same, please refer section titled "Outstanding Litigations and Material Developments" on page 190 of this Red Herring Prospectus." Para 30 of the Prospectus merely refers to Indowind agreeing to take over the wind mills along with land, infrastructure and spares from Wescare. It does not refer to the agreement dated 24.2.2006 nor does it state that the takeover of the wind mills etc., was in pursuance of the agreement dated 24.2.2006. Para 31 of the Prospectus specifically states that Subuthi had entered into an agreement dated 24.2.2006 with Wescare to acquire WEGs and other assets in the name of its nominee Indowind. This has never been disputed by anyone. But what is significant is that there is no acknowledgement or statement that the said agreement was authorized to be entered on its behalf by Indowind or Indowind had ratified or approved the said agreement. Para 31 also refers to the applications under section 9 filed by Wescare and the interlocutory applications filed in such applications. But then that also does not help as in fact in the said application under section 9 the High Court has held that Indowind is not a party to the agreement dated 24.2.2006 and therefore not a party to an arbitration agreement.24. Wescare relied upon two decisions of the US Court of Appeals to contend that a person to be bound by an arbitration agreement need not personally sign the written arbitration agreement. [FISSER v. International Bank - 282 F.2d 231 (1960) and J.J.Ryan & Sons, Inc. v. Rhone Poulene Textile, S.A. - 863 F.2d 315]. These decisions are of no assistance as they do not relate to a provision similar to section 7 of the Indian Act.
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1[ds]The examination cannot extend to examining the agreement to ascertain the rights and obligations regarding performance of such contract between the parties. This Court in SBP & Co. v. Patel Engineering Limited [2005 (8) SCC 618 ] and in National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd. [2009 (1) SCC 267 ] has held that when an application is filed under section 11, the Chief Justice or his Designate is required to decide only two issues, that is whether the party making the application has approached the appropriate court and whether there is an arbitration agreement and whether the party who has applied under section 11 of the Act, is a party to such agreement. Therefore, the Chief Justice exercising jurisdiction under section 11 of the Act has to only consider whether there is an arbitration agreement between the petitioner and the respondent/s in the application under section 11 of the Act. Any wider examination in such a summary proceeding will not be warranted.20. In so far as the issue of existence of arbitration agreement between the parties, the learned Chief Justice or his Designate is required to decide the issue finally and it is not permissible in a proceeding under section 11 to merely hold that a party is prima facie a party to the arbitration agreement and that a party is prima facie bound by it. It is not as if the Chief Justice or his Designate will subsequently be passing any other final decision as to who are the parties to the arbitration agreement. Once a decision is rendered by the Chief Justice or his Designate under section 11 of the Act, holding that there is an arbitration agreement between the parties, it will not be permissible for the arbitrator to consider or examine the same issue and record a finding contrary to the finding recorded by the court. This is categorically laid down by the Constitution Bench in SBP. Therefore the prima facie finding by the learned Chief Justice that Indowind is a party to the arbitration agreement is not what is contemplated by the Act.21 It is no doubt true that if Indowind had acknowledged or confirmed in any correspondence or other agreement or document, that it is a party to the arbitration agreement dated 24.2.2006 or that it is bound by the arbitration agreement contained therein, it could have been possible to say that Indowind is a party to the arbitration agreement. But that would not be under section 7(4)(a) but under section 7(4)(b) or section 7(5). Be that as it may. That is not the case of Wescare. In fact, the delivery notes/invoices issued by Wescare do not refer to the agreement dated 24.2.2006. Nor does any letter or correspondence sent by Indowind refers to the agreement dated 24.2.2006, either as an agreement executed by it or as an agreement binding on it. We may now refer to the several documents referred to and relied on by Wescare.22. The first is in regard to the sale of WEGs by Wescare to Indowind. The letter dated 15.3.2006 enclosing the invoice, the delivery notes dated 15.3.2006 given by Wescare to Indowind, the confirmation dated 15.3.2006 by Wescare to Indowind relating to the sale of WEGs, relied on by Wescare, very significantly do not refer to the agreement dated 24.2.2006. They are straight and simple delivery notes and an invoice in regard to the sale of goods. They can be independent transactions which do not depend on or relate to the agreement dated 24.2.2006. If they were with reference to the agreement dated 24.2.2006, it is strange that Wescare did not choose to refer to the said agreement in any of these documents.23. Strong reliance is placed on the Red Herring Prospectus issued by the Indowind in connection with the public issue of its30 of the Prospectus merely refers to Indowind agreeing to take over the wind mills along with land, infrastructure and spares from Wescare. It does not refer to the agreement dated 24.2.2006 nor does it state that the takeover of the wind mills etc., was in pursuance of the agreement dated 24.2.2006. Para 31 of the Prospectus specifically states that Subuthi had entered into an agreement dated 24.2.2006 with Wescare to acquire WEGs and other assets in the name of its nominee Indowind. This has never been disputed by anyone. But what is significant is that there is no acknowledgement or statement that the said agreement was authorized to be entered on its behalf by Indowind or Indowind had ratified or approved the said agreement. Para 31 also refers to the applications under section 9 filed by Wescare and the interlocutory applications filed in such applications. But then that also does not help as in fact in the said application under section 9 the High Court has held that Indowind is not a party to the agreement dated 24.2.2006 and therefore not a party to an arbitration agreement.24. Wescare relied upon two decisions of the US Court of Appeals to contend that a person to be bound by an arbitration agreement need not personally sign the written arbitration agreement. [FISSER v. International Bank282 F.2d 231 (1960) and J.J.Ryan & Sons, Inc. v. Rhone Poulene Textile, S.A.863 F.2d 315]. These decisions are of no assistance as they do not relate to a provision similar to section 7 of the Indian Act.
| 1 | 7,235 |
### 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:
facie a party to the arbitration agreement and that a party is prima facie bound by it. It is not as if the Chief Justice or his Designate will subsequently be passing any other final decision as to who are the parties to the arbitration agreement. Once a decision is rendered by the Chief Justice or his Designate under section 11 of the Act, holding that there is an arbitration agreement between the parties, it will not be permissible for the arbitrator to consider or examine the same issue and record a finding contrary to the finding recorded by the court. This is categorically laid down by the Constitution Bench in SBP. Therefore the prima facie finding by the learned Chief Justice that Indowind is a party to the arbitration agreement is not what is contemplated by the Act.21 It is no doubt true that if Indowind had acknowledged or confirmed in any correspondence or other agreement or document, that it is a party to the arbitration agreement dated 24.2.2006 or that it is bound by the arbitration agreement contained therein, it could have been possible to say that Indowind is a party to the arbitration agreement. But that would not be under section 7(4)(a) but under section 7(4)(b) or section 7(5). Be that as it may. That is not the case of Wescare. In fact, the delivery notes/invoices issued by Wescare do not refer to the agreement dated 24.2.2006. Nor does any letter or correspondence sent by Indowind refers to the agreement dated 24.2.2006, either as an agreement executed by it or as an agreement binding on it. We may now refer to the several documents referred to and relied on by Wescare.22. The first is in regard to the sale of WEGs by Wescare to Indowind. The letter dated 15.3.2006 enclosing the invoice, the delivery notes dated 15.3.2006 given by Wescare to Indowind, the confirmation dated 15.3.2006 by Wescare to Indowind relating to the sale of WEGs, relied on by Wescare, very significantly do not refer to the agreement dated 24.2.2006. They are straight and simple delivery notes and an invoice in regard to the sale of goods. They can be independent transactions which do not depend on or relate to the agreement dated 24.2.2006. If they were with reference to the agreement dated 24.2.2006, it is strange that Wescare did not choose to refer to the said agreement in any of these documents.23. Strong reliance is placed on the Red Herring Prospectus issued by the Indowind in connection with the public issue of its shares. We extract below the relied upon portions of the prospectus : "30. We have agreed to takeover the assets of Wescare (India) Limited, subject to approval of owners of assets and statutory formalities, but only a portion of acquisition has been completed. Our Company agreed to takeover wind mills along with land, infrastructure and spares from Wescare India Limited. But due to non receipt of approvals from the lenders/lessors, only a part of the total being 6.49 MW has been acquired by us. The Company is not certain of completing the remaining acquisition. We had paid the total amount for 39 windmills, however only 28 windmills were delivered to us representing nearly 72% of the total money paid by us. 31. One of our Promoters, Subuthi Finance Limited, has entered into an agreement dated February 24, 2006 with Wescare (India) Limited for the acquiring wind mills and other assets in the name of its nominee viz. Indowind Energy Limited for a consideration aggregating approximately Rs.9819 lacs. The consideration for the above was to be partly settled in partly in cash (Rs.2419 lacs) and partly by way of shares (74 lacs) of Indowind Energy Limited. Wescare (India) Limited has filed the following applications before the Honble High Court of Madras under Section 9 of the Arbitration and Conciliation Act, 1996 : S.No. Application No. Applicant Respondents 1 O.A.No.641 of 2007 Wescare India (i) Subuthi Finance Limited Limited (ii) Indowind Energy Limited 2 O.A.No.642 of 2007 -same as above- -same as above- 3 Appl. No.3808 of 2007 -same as above- -same as above- 4 Appl. No.3808 of 2007 -same as above- -same as above- All above applications are pending before the Honble High Court of Madras. For further details of the same, please refer section titled "Outstanding Litigations and Material Developments" on page 190 of this Red Herring Prospectus." Para 30 of the Prospectus merely refers to Indowind agreeing to take over the wind mills along with land, infrastructure and spares from Wescare. It does not refer to the agreement dated 24.2.2006 nor does it state that the takeover of the wind mills etc., was in pursuance of the agreement dated 24.2.2006. Para 31 of the Prospectus specifically states that Subuthi had entered into an agreement dated 24.2.2006 with Wescare to acquire WEGs and other assets in the name of its nominee Indowind. This has never been disputed by anyone. But what is significant is that there is no acknowledgement or statement that the said agreement was authorized to be entered on its behalf by Indowind or Indowind had ratified or approved the said agreement. Para 31 also refers to the applications under section 9 filed by Wescare and the interlocutory applications filed in such applications. But then that also does not help as in fact in the said application under section 9 the High Court has held that Indowind is not a party to the agreement dated 24.2.2006 and therefore not a party to an arbitration agreement.24. Wescare relied upon two decisions of the US Court of Appeals to contend that a person to be bound by an arbitration agreement need not personally sign the written arbitration agreement. [FISSER v. International Bank - 282 F.2d 231 (1960) and J.J.Ryan & Sons, Inc. v. Rhone Poulene Textile, S.A. - 863 F.2d 315]. These decisions are of no assistance as they do not relate to a provision similar to section 7 of the Indian Act.
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D.C.M. Chemical Works Vs. Its Workmen
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went wrong In not giving due weight to the historical reasons for the rates prevailing In the power-house. Further we are of opinion that the Increase is not sustainable on its own merits on the ground of the financial capacity of the concern, which the tribunal Itself found was not sound, as the concern had been running at loss practically since It came into existence except for two years. The contention therefore on behalf of the appellant on this head must be accepted and the order of the tribunal Increasing the dearness allowance set aside.9. Re. (ii) : As to uniforms, we see no reason to differ from the view taken by the tribunal. The reasons given by the tribunal for ordering that uniforms should be given to certain category of workmen are in our opinion sound. But the tribunal has made a mistake when It went on to order that protective equipment should also be given In addition to uniforms, to the persons found entitled to uniforms according to the directions of the tribunal. The tribunal seems to have over-looked the difference between uniforms and protective equipment, which Is provided in the Delhi Factory Rules. So far as protective equipment is concerned, it is given for certain specific purposes to be found in the rules and has no connection with uniforms which employers are ordered to supply to their workmen, for reasons entirely different. We are, therefore, of opinion that the direction of the tribunal that protective equipment should also be supplied to Persons found entitled to uniforms under its order, is not correct and should be set aside. So far as protective equipment to concerned, It will only be supplied to those who are entitled to It under the Delhi Factory Rules and not necessarily to all to whom uniform may have to be supplied under the orders of the tribunal. We order accordingly.Re. (iii) : As to acid and gas allowance, the tribunal has ordered the payment of Rs. 3 per month to certain categories of workmen. It appears that originally the appellant used to pay Re. 5 as acid and gas allowance In the nitric acid gas plant and Re. 3 In the contact plant. Later, however, this gas allowance was merged in pay. But It appears that gas allowance is still being paid to the workmen In the nitric acid gas plant. It is contended on behalf of the appellant that this was because the gas allowance in the case of these workmen was not merged In pay. There is, however, nothing on the record to prove this. As the record stands, we have no reason to hold that the gas allowance which was originally paid to the workmen of the nitric acid gas plant was not merged In their pay. On the whole, therefore, the reasons given by the tribunal for making the allowance of Rs. 3 to those workmen who are engaged In the manufacture of chlorine, sulphuric acid, caustic soda and hydrochloric acid appear to us to be sound and we are no reason to interfere with that part of the award.10. Re. (iv) : So far as leave facilities are concerned, the tribunal has awarded that privilege leave should be granted as provided under the Factories Act. It has farther provided that casual-cum-sick leave should be granted for twelve days In the year. We do not think that this award is in any way unreasonable. The tribunal has, however, gone on to deal with festival holidays, and that in our opinion, the tribunal had no jurisdiction to do. The reference was in these terms :"Whether leave facilities should be increased, and if so, to what extent ?"11. There was no reference with respect to holidays. The tribunal has, however, taken the view that holidays are covered within the words "leave facilities" used in the order of reference. We are of opinion that this view is incorrect. Holidays are entirely different from leave facilities. On a holiday the entire business to closed and no one works while leave facilities deal with leave for Individual workers while that business as a whole is running. We may, in this connexion, refer to item 4 of Sch. III to the Industrial Disputes Act (14 of 1947), which to In these terms, "Leave with wages and holidays." This shows that holidays stand on a different footing altogether from leave with wages and a reference with respect to leave facilities cannot include a consideration of holidays. The tribunals order with respect to holidays is set aside.Re. (v) : Lastly we come to the gratuity scheme sanctioned by the tribunal. It is true that in this concern there is already a provident fund schemes in force. But it to now well settled that both gratuity as well as provident fund schemes can be framed in the same concern if its financial position allows it. It is true that the financial position of the chemical works has not been round to be good and stable enough to warrant an incremental wage structure; but gratuity is a long-term provision and there is no reason to suppose that in the long run the appellant will not be in a flourishing Condition. As to the burden of the scheme, we do not think that, looking at it from a practical point of view and taking into account the fact that there are about 800 workmen in all in the concern, the burden per year would be very high, considering that the number of retirements is between three to four per centum of the total strength. Further, we find that in this very concern there is a gratuity scheme for clerks who number between 100 and 200 and are part of the labour force. We can see under the circumstances no reason why a similar gratuity scheme should not be framed for the rest of the workmen. We, therefore, see no reason to interfere with the order of the tribunal in this respect.12.
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1[ds]. There is, however, in our opinion, a very cogent reply to these features pointed out on behalf of the respondents, and that is, that the company is a single limited concern owning and controlling various industrial units of different kinds under it and therefore under the company law as the company is one legal entity, these features are bound to be common and may not be enough to lead to the conclusion that the various undertakings carried on by the company are one integrated whole and therefore when wage structure, etc., has to be fixed in any particular unit, the overall position of the company as a whole must be taken into account.On the other hand, there are certain features which have been pointed out by the tribunal and which are not in dispute which go to show that the company has been treating its various units as independent concerns in actual practice. Each unit has separate books of account and separate profit and loss account showing how each particular business is faring. Each unit has separate muster-rolls for its employees and transfers from one unit to the other, even where such transfers are possible considering the utterly different kinds of businesses that the company is carrying on, usually take place with the consent of the employees concerned. Further each unit has got its own separate wages and separate dearness allowance and other different allowances and bonus is also paid differently in each concern. Further, even where sales take place from one unit to another, they take place at market-rate and not at cost price and are adjusted on this basis in the books of account. Lastly, though there is a common board of directors and a common managing agency of the company, each unit has its own separate management as it is bound to be for the business carried on by different units is in many cases utterlywould, therefore, in our opinion be not right to emphasize these common features and to hold on their basis only that the various businesses carried on by the company have to be treated as one integrated whole for the purposes of wage structure, etc. The outstanding fact in the present case is that though a large number of businesses is being carried on by the company, their nature in many cases is utterly different and one has, generally speaking, nothing to do with the other. The three main lines of business which the company is carrying on are sugar, textiles and chemicals. It is obvious that there is nothing common between these three different lines of business and there can be no question of one depending upon the other and there cannot be functional integrality generally speaking between these three lines of business. There might be some connexion between the chemical works and the textile mills of the company inasmuch as come of the chemicals might be used in the textile mills; but the evidence shows that a very small proportion of the chemicals produced in the chemical works is used in the textile mills and that most of the production is sold in the open market. It cannot therefore be said that the chemical works as it now exists is there for the purposes of the textile mills and is thus integrated with the textile mills. Even in the matter of employment, the evidence is that there is separate recruitment of labour for the different units and each unit has separate muster-rolls of employees and this is quite natural considering that different skill lie required for the three lines of business carried on by the company. It cannot also be said that there is any essential dependence of the chemical works on the textile units or that one cannot be operated without the other. Further the way in which the company has been dealing with different units in the past also shows that they have been treated as independent units. Each unit has its own separate labour union and separate agreements are entered into between the company and its unions with respect to the conditions of service which are also different for different units. Even in the matter of bonus there are differences between the different units and these differences sometimes arose out of the different agreements between the various units and their unions. It appears that even in the case of units carrying on the same business, as for example, textile, the workmen themselves contended in an earlier adjudication that the Delhi Cloth Mills and the Swatantra Bharat Mills were two distinct and separate units of the company. In any case whatever may be said as to the units in the same line of business, it is in our opinion perfectly clear that there is no nexus of integration between different lines of business carried on by the company on the facts which have been proved in this case. We are of opinion therefore that the ratio of the decision in the Fine Knitting Co. case [1962 - I L.L.J. 275] (supra) applies to the facts of this case and it must be hold that the chemical works is an independent unit and therefore in fixing the wage structure, etc., we have to look to the position of the chemical works only and cannot integrate it with other units and consider its wage structure, etc., on the basis of such integration.It is in the background of the above finding, namely, that the chemical works is an independent unit that we now come to the specific points raised in the two appeals. We shall first take the appeal by theagree however with the tribunal that in spite of the possibility that in time to come the chemical works might acquire stability and prove a source of increasing profit to the company, the fact remains that up to now the chemical works has been running at a loss except for two years and one cannot be certain that it will start earning profits soon. In these circumstances it seems to us that the tribunal was justified in not framing an incremental scale of wages at the present juncture as that would put a heavy strain on the finances of the chemical works which has yet to attain financial stability. At the present moment the losses incurred in this unit have to be met from the profits earned in other units of the company and in this situation we do not think that the tribunal was wrong in refusing to frame incremental scales.It is, however, urged on behalf of the respondents that if in the course of the last twenty years, the capital invested in the chemical works ham increased tremendously as compared to the modest amount with which it was started in 1942 and if the company can find capital for the purpose of expansion, it should be able to pay incremental scales of wages by dipping into the same source from which it has been able to find capital. In effect this argument means that even though the concern may be making losses year after year, it should find money for paying the labour force higher wages in spite of the circumstance that that may load it into incurring further losses. The argument seems to be that even though there may be losses, the concern must pay higher wages to the workmen and if necessary pay them out of what may be called capital. Now this argument would, in our opinion, be unanswerable if the claim was for what is called minimum wage-SeeCrown Aluminium Works v. Their workmen [1958 - I L.L.J.If the wages paid by the appellant in the present case were below the minimum wage, the tribunal would certainly be justified in ordering it to pay the minimum wage, for no industry can have a right to exist if it cannot pay wages at the bare subsistencetherefore agree with the tribunal that in the circumstances no case has been made for fixing an incremental scale of wages at the present juncture. The contention on this head must therefore be rejected.Re. (ii) : As to the canteen workmen, it appears that the canteen to run by the appellant departmentally on a no-profit-no-loss basis. The workmen employed in the canteen are the workmen of the appellant and their number is sixteen or seventeen. The minimum basic wage for unskilled workmen in this concern at the relevant time was Rs. 38 plus Rs. 55, i.e., Rs. 93; but the workmen in the canteen get consolidated wages and all of them (except one) get much less than the minimum, the figures varying from Rs. 50 to Rs. 78. The tribunal has held that there is no reason why the conditions of service of the workmen in the canteen should not be brought on a par with the conditions of service of the rest of the workmen. It, therefore, ordered that the workmen in the canteen would be entitled to the same facilities relating to leave, provident fund, bonus, and gratuity, etc., as are available to the other workmen in the chemical works; but so far as wages and dearness allowance are concerned, it has not given them even the minimum as indicated above. The case of the appellant was that even if the minimum was paid to the workmen in the canteen, the Price of the various foodstuffs supplied by the canteen to the workmen would go up substantially and it was on that ground that the appellant resisted the increase in the wages of those workmen in the canteen who are getting leas than the minimum of Rs. 93. The tribunal has held-and we think rightly-that the fact that the bettering of the conditions of service of the workmen in the canteen may load to a rise in the price of things sold there, is no reason for refusing the demand of the workmen; but it has not carried into effect fully the implications of this observation. It has ordered that same conditions as to leave facilities, etc., should be extended to the canteen workmen but has stopped short of giving them the same wages and dearness allowance. The reason why the tribunal did not give the workmen the same wages and dearness allowance is that there was no satisfactory material before it to permit it to fix wages and dearness allowance for the workmen in the canteen. We are of opinion that there is no reason why the tribunal should not have at least granted the minimum which is paid to the other workmen in the concern to those workmen in the canteen who are getting lose than the minimum. We can see no reason for not giving them also the minimum wages as indicated above. This will certainly result in bringing the fifteen workmen who are getting between Rs. 50 and Rs. 78 per mensem as consolidated wages into an equal position, for each will then get the minimum, namely, Rs. 38 plus Rs. 55 and may remove part of the discontent. In the circumstances that is all that can be done in the absence of the material to which the tribunal has referred. Therefore, the wages of those fifteen workmen who are getting less than the minimum should be brought to the same level. There is no reason why they should not get such benefits as may be due to them, by their wages being brought to the same minimum as the wages of the other workmen in the concern. We, therefore, disagree with the tribunal with respect to the workmen employed in the canteen and order that the wages of those workmen who are getting less than the minimum paid to the other workmen in the concern should be brought to the same minimum level. The rest of the award on this head will stand. The minimum wages as above will be paid from the date the tribunal has ordered its award to come into force. Re. (iii) : The claim of the workmen in this connexion was that there were three hundred workmen employed in the civil engineering department and that they should be made permanent. The tribunal, however, rejected this contention and pointed out that most of the workmen were temporarily engaged to carry on construction work which was of a temporary nature and therefore they could not be made permanent simply because the construction had lasted for more than a year. This view of the tribunal is in our view correct in so far as the claim put forward with respect to all the three hundred workmen was concerned. It appears, however, that at the time when the tribunal recorded evidence, the large majority of these three hundred workmen had been discharged because they were no longer required and only about 65 remained in service. It appears from the evidence of the joint works manager that a skeleton staff on the civil engineering side is kept for maintenance of buildings and this skeleton staff is of a more or less permanent nature. The argument therefore before us is that at any rate this skeleton staff should be made permanent. It was, however, urged on behalf of the appellant that this was not the way in which the matter was put before the tribunal. The position now is however clear that a skeleton staff is kept on a permanent basis for the civil engineering department and it seems to us fair that the appellant should be directed to make this skeleton staff permanent and give them the same facilities and wages, etc., as are given to the other workmen. We, therefore, direct that the appellant shall make such of the skeleton staff as is maintained for civil engineering purpose permanent and give them the same conditions of service including the same minimum wages, etc., as to the rest of the workmen. It is however left to the discretion of the appellant to determine what should be the strength of this staff and which persons should be retained as permanent employees. We say this because the matter was not gone into from this point of view before the tribunal and we have no material on which we ourselves can determine the strength of the skeleton staff and the persons who should be made permanent on that account. This direction will be given effort to within three months of this judgment.Re. (iv) : The workmen have been given 2 1/2 months basic wages as bonus for the years in dispute, namely, 1953-54 and 1954-55. They have claimed additional bonus. It is, however, conceded fairly on behalf of the respondents that if the chemical works to treated as an independent unit, their case for additional bonus on the basis of the Full Bench formula cannot succeed. The demand for additional bonus was rightly rejected by the tribunal, considering the chemical works as an independent unit. We may add that this case to distinguishable from the case of South India Millowners Association [1962 - I L.L.J. 223] (supra), for here the two lines of business are distinct and have nothing to do with eachare of opinion that the Increase is not sustainable on its own merits on the ground of the financial capacity of the concern, which the tribunal Itself found was not sound, as the concern had been running at loss practically since It came into existence except for two years. The contention therefore on behalf of the appellant on this head must be accepted and the order of the tribunal Increasing the dearness allowance setis, however, nothing on the record to prove this. As the record stands, we have no reason to hold that the gas allowance which was originally paid to the workmen of the nitric acid gas plant was not merged In their pay. On the whole, therefore, the reasons given by the tribunal for making the allowance of Rs. 3 to those workmen who are engaged In the manufacture of chlorine, sulphuric acid, caustic soda and hydrochloric acid appear to us to be sound and we are no reason to interfere with that part of theis true that in this concern there is already a provident fund schemes in force. But it to now well settled that both gratuity as well as provident fund schemes can be framed in the same concern if its financial position allows it. It is true that the financial position of the chemical works has not been round to be good and stable enough to warrant an incremental wage structure; but gratuity is a long-term provision and there is no reason to suppose that in the long run the appellant will not be in a flourishing Condition. As to the burden of the scheme, we do not think that, looking at it from a practical point of view and taking into account the fact that there are about 800 workmen in all in the concern, the burden per year would be very high, considering that the number of retirements is between three to four per centum of the total strength. Further, we find that in this very concern there is a gratuity scheme for clerks who number between 100 and 200 and are part of the labour force. We can see under the circumstances no reason why a similar gratuity scheme should not be framed for the rest of the workmen. We, therefore, see no reason to interfere with the order of the tribunal in this respect.
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Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal?
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went wrong In not giving due weight to the historical reasons for the rates prevailing In the power-house. Further we are of opinion that the Increase is not sustainable on its own merits on the ground of the financial capacity of the concern, which the tribunal Itself found was not sound, as the concern had been running at loss practically since It came into existence except for two years. The contention therefore on behalf of the appellant on this head must be accepted and the order of the tribunal Increasing the dearness allowance set aside.9. Re. (ii) : As to uniforms, we see no reason to differ from the view taken by the tribunal. The reasons given by the tribunal for ordering that uniforms should be given to certain category of workmen are in our opinion sound. But the tribunal has made a mistake when It went on to order that protective equipment should also be given In addition to uniforms, to the persons found entitled to uniforms according to the directions of the tribunal. The tribunal seems to have over-looked the difference between uniforms and protective equipment, which Is provided in the Delhi Factory Rules. So far as protective equipment is concerned, it is given for certain specific purposes to be found in the rules and has no connection with uniforms which employers are ordered to supply to their workmen, for reasons entirely different. We are, therefore, of opinion that the direction of the tribunal that protective equipment should also be supplied to Persons found entitled to uniforms under its order, is not correct and should be set aside. So far as protective equipment to concerned, It will only be supplied to those who are entitled to It under the Delhi Factory Rules and not necessarily to all to whom uniform may have to be supplied under the orders of the tribunal. We order accordingly.Re. (iii) : As to acid and gas allowance, the tribunal has ordered the payment of Rs. 3 per month to certain categories of workmen. It appears that originally the appellant used to pay Re. 5 as acid and gas allowance In the nitric acid gas plant and Re. 3 In the contact plant. Later, however, this gas allowance was merged in pay. But It appears that gas allowance is still being paid to the workmen In the nitric acid gas plant. It is contended on behalf of the appellant that this was because the gas allowance in the case of these workmen was not merged In pay. There is, however, nothing on the record to prove this. As the record stands, we have no reason to hold that the gas allowance which was originally paid to the workmen of the nitric acid gas plant was not merged In their pay. On the whole, therefore, the reasons given by the tribunal for making the allowance of Rs. 3 to those workmen who are engaged In the manufacture of chlorine, sulphuric acid, caustic soda and hydrochloric acid appear to us to be sound and we are no reason to interfere with that part of the award.10. Re. (iv) : So far as leave facilities are concerned, the tribunal has awarded that privilege leave should be granted as provided under the Factories Act. It has farther provided that casual-cum-sick leave should be granted for twelve days In the year. We do not think that this award is in any way unreasonable. The tribunal has, however, gone on to deal with festival holidays, and that in our opinion, the tribunal had no jurisdiction to do. The reference was in these terms :"Whether leave facilities should be increased, and if so, to what extent ?"11. There was no reference with respect to holidays. The tribunal has, however, taken the view that holidays are covered within the words "leave facilities" used in the order of reference. We are of opinion that this view is incorrect. Holidays are entirely different from leave facilities. On a holiday the entire business to closed and no one works while leave facilities deal with leave for Individual workers while that business as a whole is running. We may, in this connexion, refer to item 4 of Sch. III to the Industrial Disputes Act (14 of 1947), which to In these terms, "Leave with wages and holidays." This shows that holidays stand on a different footing altogether from leave with wages and a reference with respect to leave facilities cannot include a consideration of holidays. The tribunals order with respect to holidays is set aside.Re. (v) : Lastly we come to the gratuity scheme sanctioned by the tribunal. It is true that in this concern there is already a provident fund schemes in force. But it to now well settled that both gratuity as well as provident fund schemes can be framed in the same concern if its financial position allows it. It is true that the financial position of the chemical works has not been round to be good and stable enough to warrant an incremental wage structure; but gratuity is a long-term provision and there is no reason to suppose that in the long run the appellant will not be in a flourishing Condition. As to the burden of the scheme, we do not think that, looking at it from a practical point of view and taking into account the fact that there are about 800 workmen in all in the concern, the burden per year would be very high, considering that the number of retirements is between three to four per centum of the total strength. Further, we find that in this very concern there is a gratuity scheme for clerks who number between 100 and 200 and are part of the labour force. We can see under the circumstances no reason why a similar gratuity scheme should not be framed for the rest of the workmen. We, therefore, see no reason to interfere with the order of the tribunal in this respect.12.
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Mohd. Ibrahim Khan Others Vs. State of Madhya Pradesh and Others
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cinema licence akin to quasi-permanent cinema licence has been received and that any one who desires that no-objection certificate should not he given may file his objections. After considering those objections no-objection certificate was granted by order dated 10th February G. 1976. No exception appears to have been taken to this order granting no-objection certificate. English rendering of the order raised some doubt whether a no-objection certificate was granted or a quasi-permanent cinema licence was granted. Original file was called. Simultaneously, a certified copy of the original order in Hindi was shown to us at the hearing of the appeal which clearly H. shows that a no- objection certificate was granted limited to the duration of six months. Thereafter a quasi-permanent cinema licence was granted. This licence was renewed twice over up to and inclusive of 30th September 1976. Subsequently by the impugned order dated 29th June 1977 this licence was not renewed. Let it again be made clear that the application was for a quasi-permanent cinema licence. This order refusing to renew quasi-permanent cinema licence was challenged by the third respondent before the State Government and which appeal was allowed giving rise to the petition by the appellants.When an application for no-objection certificate is made, objections have to be invited in the prescribed manner. There can conceivably be hundreds of objections. There is no question of then giving a personal hearing to each objector. If after taking into consideration the objections. a no-objection certificate is granted, there ends the matter subject, of course, to any properly constituted legal proceedings, conceivably a writ petition under Article 226. But sub-s. (3 ) of s. 5 of the Act is unambiguous when it provides for an appeal only at the instance of a person aggrieved by the decision of the licensing authority refusing licence. A fortiori, every objector to renewal is not entitled to file an appeal if licence is granted rejecting his objections. Nor in an appeal by the aggrieved person within the meaning of s. 5(3) every objector to the grant of no-objection certificate is entitled to be joined as a party respondent or that each objector is entitled to notice of hearing of the appeal. however, the grievance of the appellants it without merits because initially when no-objection certificate was applied for they did not object and one who has not objected cannot subsequently make a grievance [see Jashbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed &others(1)].9. The second fallacy is that rules 3 to 6 envisage an advertisement of an application for a no-objection certificate and inviting objections hereto and disposal of such an application. There is, however, nothing in the Act or the rules which requires the licensing authority to invite objections before grant of a quasi-permanent cinema licence. The right to object is at the initial stage when a no-objection certificate is applied for by the intending applicant for such a certificate. But there is no provision for inviting objections when the application is for a permanent or quasi-permanent cinema licence or a touring cinema licence. There is no provision in the Act or Rules which requires advertisement of such an application inviting objections and consideration of the objections before grant of a cinema licence. In A this case the application which was turned down by the Distt. Magistrate was one for renewal of a quasi-permanent cinema licence. The application for a no- objection certificate and granting of the same had passed muster long before on 10th February 1976 and appellants had n ot raised any objection to the grant of no-objection certificate. When the present appellants objected to the renewal of a quasi-permanent cinema licence it was not the stage for grant of a no-objection certificate but it was the stage of renewal of quasi-permanent licence subsequent to the stage of granting of a no-objection certificate, when there was no statutory obligation on the licensing authority to invite objections nor were the appellants entitled to file objections and nor were they entitled to be heard. A right to notice by reason of any rule of natural justice, which a party may establish, must depend for its existence upon proof of an interest which is bound to be injured by not hearing the party claiming to be entitled to a notice and to be heard before an order is passed. If the duty to give notice and to hear the party is not mandatory, the actual order passed on a matter must be shown to have injuriously affected the interest of the party which was given no notice of the matter [see Cosmosteels Private Ltd. v. Jairam Das Gupta &Ors. There was no statutory or mandatory duty to hear the appellants. There fore, there is no substance in the grievance that before granting renewal of such licence the State Government in the appeal filed by the third respondent had not heard them and that such a decision was rendered in violation of the principles of natural justice.Mr. Sanghi, learned counsel for the respondents, wanted to contend that the appellants are not acting bona fide in vindication of their own rights but they are a fence or a cloak for the owners of Paras Cinema, the holders of permanent cinema licence in the locality, and the appellants thus being proxies for such a trade rival, they have no locus standi to file the objections. Mr. Sanghi heavily drew upon the observations of this Court in Jashbhai Motibhai Desais case (supra) to make good the submission. Undoubtedly, in the aforementioned case this Court in terms held that a rival in cinema business has no locus standi to question the validity of the order under which the other person has been granted a cinema licence, but as the only contention raised on behalf o f the appellants does not commend to us and, therefore, the appeal is likely to fail on that ground alone, it is not necessary to explore this contention advanced on behalf of the respondents.10.
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0[ds]If after taking into consideration the objections. acertificate is granted, there ends the matter subject, of course, to any properly constituted legal proceedings, conceivably a writ petitions. (3 ) of s. 5 of the Act is unambiguous when it provides for an appeal only at the instance of a person aggrieved by the decision of the licensing authority refusing licence. A fortiori, every objector to renewal is not entitled to file an appeal if licence is granted rejecting his objections. Nor in an appeal by the aggrieved person within the meaning of s. 5(3) every objector to the grant ofcertificate is entitled to be joined as a party respondent or that each objector is entitled to notice of hearing of the appeal. however, the grievance of the appellants it without merits because initially whencertificate was applied for they did not object and one who has not objected cannot subsequently make a grievance [see Jashbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmedsecond fallacy is that rules 3 to 6 envisage an advertisement of an application for acertificate and inviting objections hereto and disposal of such an application. There is, however, nothing in the Act or the rules which requires the licensing authority to invite objections before grant of acinema licence. The right to object is at the initial stage when acertificate is applied for by the intending applicant for such a certificate. But there is no provision for inviting objections when the application is for a permanent orcinema licence or a touring cinema licence. There is no provision in the Act or Rules which requires advertisement of such an application inviting objections and consideration of the objections before grant of a cinema licence. In A this case the application which was turned down by the Distt. Magistrate was one for renewal of acinema licence. The application for a noobjection certificate and granting of the same had passed muster long before on 10th February 1976 and appellants had n ot raised any objection to the grant ofcertificate. When the present appellants objected to the renewal of acinema licence it was not the stage for grant of acertificate but it was the stage of renewal oflicence subsequent to the stage of granting of acertificate, when there was no statutory obligation on the licensing authority to invite objections nor were the appellants entitled to file objections and nor were they entitled to be heard. A right to notice by reason of any rule of natural justice, which a party may establish, must depend for its existence upon proof of an interest which is bound to be injured by not hearing the party claiming to be entitled to a notice and to be heard before an order is passed. If the duty to give notice and to hear the party is not mandatory, the actual order passed on a matter must be shown to have injuriously affected the interest of the party which was given no notice of the matter [see Cosmosteels Private Ltd. v. Jairam Das Gupta &Ors. There was no statutory or mandatory duty to hear the appellants. There fore, there is no substance in the grievance that before granting renewal of such licence the State Government in the appeal filed by the third respondent had not heard them and that such a decision was rendered in violation of the principles of naturalin the aforementioned case this Court in terms held that a rival in cinema business has no locus standi to question the validity of the order under which the other person has been granted a cinema licence, but as the only contention raised on behalf o f the appellants does not commend to us and, therefore, the appeal is likely to fail on that ground alone, it is not necessary to explore this contention advanced on behalf of the respondents.
| 0 | 3,477 |
### 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:
cinema licence akin to quasi-permanent cinema licence has been received and that any one who desires that no-objection certificate should not he given may file his objections. After considering those objections no-objection certificate was granted by order dated 10th February G. 1976. No exception appears to have been taken to this order granting no-objection certificate. English rendering of the order raised some doubt whether a no-objection certificate was granted or a quasi-permanent cinema licence was granted. Original file was called. Simultaneously, a certified copy of the original order in Hindi was shown to us at the hearing of the appeal which clearly H. shows that a no- objection certificate was granted limited to the duration of six months. Thereafter a quasi-permanent cinema licence was granted. This licence was renewed twice over up to and inclusive of 30th September 1976. Subsequently by the impugned order dated 29th June 1977 this licence was not renewed. Let it again be made clear that the application was for a quasi-permanent cinema licence. This order refusing to renew quasi-permanent cinema licence was challenged by the third respondent before the State Government and which appeal was allowed giving rise to the petition by the appellants.When an application for no-objection certificate is made, objections have to be invited in the prescribed manner. There can conceivably be hundreds of objections. There is no question of then giving a personal hearing to each objector. If after taking into consideration the objections. a no-objection certificate is granted, there ends the matter subject, of course, to any properly constituted legal proceedings, conceivably a writ petition under Article 226. But sub-s. (3 ) of s. 5 of the Act is unambiguous when it provides for an appeal only at the instance of a person aggrieved by the decision of the licensing authority refusing licence. A fortiori, every objector to renewal is not entitled to file an appeal if licence is granted rejecting his objections. Nor in an appeal by the aggrieved person within the meaning of s. 5(3) every objector to the grant of no-objection certificate is entitled to be joined as a party respondent or that each objector is entitled to notice of hearing of the appeal. however, the grievance of the appellants it without merits because initially when no-objection certificate was applied for they did not object and one who has not objected cannot subsequently make a grievance [see Jashbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed &others(1)].9. The second fallacy is that rules 3 to 6 envisage an advertisement of an application for a no-objection certificate and inviting objections hereto and disposal of such an application. There is, however, nothing in the Act or the rules which requires the licensing authority to invite objections before grant of a quasi-permanent cinema licence. The right to object is at the initial stage when a no-objection certificate is applied for by the intending applicant for such a certificate. But there is no provision for inviting objections when the application is for a permanent or quasi-permanent cinema licence or a touring cinema licence. There is no provision in the Act or Rules which requires advertisement of such an application inviting objections and consideration of the objections before grant of a cinema licence. In A this case the application which was turned down by the Distt. Magistrate was one for renewal of a quasi-permanent cinema licence. The application for a no- objection certificate and granting of the same had passed muster long before on 10th February 1976 and appellants had n ot raised any objection to the grant of no-objection certificate. When the present appellants objected to the renewal of a quasi-permanent cinema licence it was not the stage for grant of a no-objection certificate but it was the stage of renewal of quasi-permanent licence subsequent to the stage of granting of a no-objection certificate, when there was no statutory obligation on the licensing authority to invite objections nor were the appellants entitled to file objections and nor were they entitled to be heard. A right to notice by reason of any rule of natural justice, which a party may establish, must depend for its existence upon proof of an interest which is bound to be injured by not hearing the party claiming to be entitled to a notice and to be heard before an order is passed. If the duty to give notice and to hear the party is not mandatory, the actual order passed on a matter must be shown to have injuriously affected the interest of the party which was given no notice of the matter [see Cosmosteels Private Ltd. v. Jairam Das Gupta &Ors. There was no statutory or mandatory duty to hear the appellants. There fore, there is no substance in the grievance that before granting renewal of such licence the State Government in the appeal filed by the third respondent had not heard them and that such a decision was rendered in violation of the principles of natural justice.Mr. Sanghi, learned counsel for the respondents, wanted to contend that the appellants are not acting bona fide in vindication of their own rights but they are a fence or a cloak for the owners of Paras Cinema, the holders of permanent cinema licence in the locality, and the appellants thus being proxies for such a trade rival, they have no locus standi to file the objections. Mr. Sanghi heavily drew upon the observations of this Court in Jashbhai Motibhai Desais case (supra) to make good the submission. Undoubtedly, in the aforementioned case this Court in terms held that a rival in cinema business has no locus standi to question the validity of the order under which the other person has been granted a cinema licence, but as the only contention raised on behalf o f the appellants does not commend to us and, therefore, the appeal is likely to fail on that ground alone, it is not necessary to explore this contention advanced on behalf of the respondents.10.
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661 |
RADHAMMA Vs. H.N. MUDDUKRISHNA
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Court that the finding which has been recorded in reference to execution of the Will of the testator Exhibit-D2 dated 16.6.1962 appears to be suspicious for the reasons that the testator Patel Hanume Gowda died on 6.2.1965 and the registered Will Exhibit-D2 dated 16.6.1962 has not seen the light of the day until filing of the suit by the present appellants/plaintiffs on 16.1.1976 and the testator was unwell during the period the Exhibit-D2 was scribed and further submitted that there appears no reason/justification for the testator to have a complete exclusion of one branch of the family i.e. the daughter from his second marriage from the schedule of properties of the testator falling in schedule ‘A? to ‘H? which indisputedly was either the joint family property or the self-acquired property of the testator.3. Learned counsel for the appellants further submits that even if the testator could have bequeathed his share in the undivided joint family properties through a registered Will dated 16.6.1962 still the independent share of the appellants/plaintiffs as a member of the family in the joint family properties could not have been divested and that is an apparent error which has been committed by the High Court and needs interference of this Court.4. None appeared for the respondents despite service.5. We have heard the Counsel for the appellants and with his assistance perused the record and we find no error in the concurrent finding of fact as recorded by the learned trial Court and affirmed by the High Court holding the properties schedule ‘A? to ‘E? belong to joint family properties and property ‘F? & ‘G? are self-acquired properties of the testator and property schedule ‘H? was exclusively of Smt. K.C. Saroja. The suspicious circumstances highlighted by the appellants with reference to the Will Exhibit-D2 dated 16-6-1962, a concurrent finding of fact has been recorded holding that the defendants were able to establish due execution of the Will as required under Section 68 of the Evidence Act and we find no reason to disturb the same.6. The submission of the learned counsel in reference to 1/10 th share of the appellants/plaintiffs in the undivided share of the testator in joint family properties identified as schedule ‘A? to ‘E?, we are unable to accept the contention for the reason that the Will Exhibit D-2 was executed on 16.6.1962 and the testator died on 6.2.1965, subsequent to the coming into force of the Act, 1956. It is true that prior to coming into force of the Hindu Succession Act, no coparcener could dispose of whole or any portion of his undivided coparcenary interest by Will but by virtue of Section 30 of the Act read with explanation, a coparcener derives his right to dispose of his undivided share in Mitakshara joint family property by Will or any testamentary disposition i.e. by virtue of law. The said provision reads thus:-?Testamentary succession30.(1) Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus. Explanation: The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this sub-section.(2) For the removal of doubts it is hereby declared that nothing contained in sub-section (1) shall affect the right to maintenance of any heir specified in the Schedule by reason only of the fact that under a will or other testamentary disposition made by the deceased the heir has been deprived of a share in the property to which he or she would have been entitled under this Act if the deceased had died intestate.?7. Section 30 of the Act, the extract of which has been referred to above, permits the disposition by way of Will of a male Hindu in a Mitakshara coparcenary property. The significant fact which may be noticed is that while the legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by way of a Will of a male Hindu in a Mitakshara coparcenary property. Therefore, the law insofar as it applies to joint family property governed by the Mitakshara school, prior to the amendment of 2005, when a male Hindu dies after the commencement of the Hindu Succession Act, 1956 leaving at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary. An exception is contained in the explanation to Section 30 of the Act making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property can be disposed of by him by Will or any other testamentary disposition and in the given facts and circumstances, the testator Patel Hanume Gowda was indeed qualified to execute a Will bequeathing his undivided share in the joint family properties by a Will Exhibit D-2 dated 16.6.1962.8. The submission of the learned counsel for the appellants in claiming independent share as a member of the family in the joint family properties is without substance for the reason that the appellants have no independent share in the joint family properties and their share could be devolved in the undivided share of the testator in the joint family properties and since the testator has bequeathed his share/his undivided coparcenary interest by Will dated 16.6.1962, no further independent share could be claimed by the appellants in the ancestral properties as a member of the family as prayed for.
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0[ds]4. None appeared for the respondents despite service.5. We have heard the Counsel for the appellants and with his assistance perused the record and we find no error in the concurrent finding of fact as recorded by the learned trial Court and affirmed by the High Court holding the properties schedule ‘A? to ‘E? belong to joint family properties and property ‘F? & ‘G? are self-acquired properties of the testator and property schedule ‘H? was exclusively of Smt. K.C. Saroja. The suspicious circumstances highlighted by the appellants with reference to the Will Exhibit-D2 dated 16-6-1962, a concurrent finding of fact has been recorded holding that the defendants were able to establish due execution of the Will as required under Section 68 of the Evidence Act and we find no reason to disturb the same.6. The submission of the learned counsel in reference to 1/10 th share of the appellants/plaintiffs in the undivided share of the testator in joint family properties identified as schedule ‘A? to ‘E?, we are unable to accept the contention for the reason that the Will Exhibit D-2 was executed on 16.6.1962 and the testator died on 6.2.1965, subsequent to the coming into force of the Act, 1956. It is true that prior to coming into force of the Hindu Succession Act, no coparcener could dispose of whole or any portion of his undivided coparcenary interest by Will but by virtue of Section 30 of the Act read with explanation, a coparcener derives his right to dispose of his undivided share in Mitakshara joint family property by Will or any testamentary disposition i.e. by virtue of law.The submission of the learned counsel for the appellants in claiming independent share as a member of the family in the joint family properties is without substance for the reason that the appellants have no independent share in the joint family properties and their share could be devolved in the undivided share of the testator in the joint family properties and since the testator has bequeathed his share/his undivided coparcenary interest by Will dated 16.6.1962, no further independent share could be claimed by the appellants in the ancestral properties as a member of the family as prayed for.
| 0 | 1,480 |
### Instruction:
Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
### Input:
Court that the finding which has been recorded in reference to execution of the Will of the testator Exhibit-D2 dated 16.6.1962 appears to be suspicious for the reasons that the testator Patel Hanume Gowda died on 6.2.1965 and the registered Will Exhibit-D2 dated 16.6.1962 has not seen the light of the day until filing of the suit by the present appellants/plaintiffs on 16.1.1976 and the testator was unwell during the period the Exhibit-D2 was scribed and further submitted that there appears no reason/justification for the testator to have a complete exclusion of one branch of the family i.e. the daughter from his second marriage from the schedule of properties of the testator falling in schedule ‘A? to ‘H? which indisputedly was either the joint family property or the self-acquired property of the testator.3. Learned counsel for the appellants further submits that even if the testator could have bequeathed his share in the undivided joint family properties through a registered Will dated 16.6.1962 still the independent share of the appellants/plaintiffs as a member of the family in the joint family properties could not have been divested and that is an apparent error which has been committed by the High Court and needs interference of this Court.4. None appeared for the respondents despite service.5. We have heard the Counsel for the appellants and with his assistance perused the record and we find no error in the concurrent finding of fact as recorded by the learned trial Court and affirmed by the High Court holding the properties schedule ‘A? to ‘E? belong to joint family properties and property ‘F? & ‘G? are self-acquired properties of the testator and property schedule ‘H? was exclusively of Smt. K.C. Saroja. The suspicious circumstances highlighted by the appellants with reference to the Will Exhibit-D2 dated 16-6-1962, a concurrent finding of fact has been recorded holding that the defendants were able to establish due execution of the Will as required under Section 68 of the Evidence Act and we find no reason to disturb the same.6. The submission of the learned counsel in reference to 1/10 th share of the appellants/plaintiffs in the undivided share of the testator in joint family properties identified as schedule ‘A? to ‘E?, we are unable to accept the contention for the reason that the Will Exhibit D-2 was executed on 16.6.1962 and the testator died on 6.2.1965, subsequent to the coming into force of the Act, 1956. It is true that prior to coming into force of the Hindu Succession Act, no coparcener could dispose of whole or any portion of his undivided coparcenary interest by Will but by virtue of Section 30 of the Act read with explanation, a coparcener derives his right to dispose of his undivided share in Mitakshara joint family property by Will or any testamentary disposition i.e. by virtue of law. The said provision reads thus:-?Testamentary succession30.(1) Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus. Explanation: The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this sub-section.(2) For the removal of doubts it is hereby declared that nothing contained in sub-section (1) shall affect the right to maintenance of any heir specified in the Schedule by reason only of the fact that under a will or other testamentary disposition made by the deceased the heir has been deprived of a share in the property to which he or she would have been entitled under this Act if the deceased had died intestate.?7. Section 30 of the Act, the extract of which has been referred to above, permits the disposition by way of Will of a male Hindu in a Mitakshara coparcenary property. The significant fact which may be noticed is that while the legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by way of a Will of a male Hindu in a Mitakshara coparcenary property. Therefore, the law insofar as it applies to joint family property governed by the Mitakshara school, prior to the amendment of 2005, when a male Hindu dies after the commencement of the Hindu Succession Act, 1956 leaving at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary. An exception is contained in the explanation to Section 30 of the Act making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property can be disposed of by him by Will or any other testamentary disposition and in the given facts and circumstances, the testator Patel Hanume Gowda was indeed qualified to execute a Will bequeathing his undivided share in the joint family properties by a Will Exhibit D-2 dated 16.6.1962.8. The submission of the learned counsel for the appellants in claiming independent share as a member of the family in the joint family properties is without substance for the reason that the appellants have no independent share in the joint family properties and their share could be devolved in the undivided share of the testator in the joint family properties and since the testator has bequeathed his share/his undivided coparcenary interest by Will dated 16.6.1962, no further independent share could be claimed by the appellants in the ancestral properties as a member of the family as prayed for.
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662 |
Commissioner of Agricultural Income Tax, Hyderabad Vs. Rajan Ratan Gopal
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is more comprehensive than the word "individual". But the meaning given to that expression as a unit of assessment under the Indian Income-tax Act by the court will equally apply to the expression "association of individuals" under the Hyderabad Agricultural Income-tax Act. This court in Commissioner of Income-tax v. Indira Balkrishna construed the said expression used in the Indian Income-tax Act and held that it did not apply to co-widows of a Hindu in the circumstances of that case. There three co-widows succeeded as co-heirs to the estate of their deceased husband and took a joint tenancy with the right of survivorship and equal beneficial enjoyment. They were entitled as between themselves to an equal share of the income. Either of them could not enforce an absolute partition, though for the purpose of convenience of enjoyment they could divide the property and enjoy their respective shares of the income therefrom. The question arose whether they should be assessed as individuals or as an association of persons. Das J. speaking for the court, accepted the following test to ascertain whether two or more persons constituted an "association of individuals" within the meaning of the Income-tax Act: "An association of persons must be one in which two or more persons join in a common purpose or common action, and as the words occur in a section which imposes a tax on income, the association must be one the object of which is to produce income, profits or gains."5. The learned judge then gives the caution that there is no formula of universal application and that the question must depend on the particular facts and circumstances of each case. On the facts found in that case, the court held that the widows were only co-heirs of the estate of the deceased husband and that they could not be assessed as an association of persons within the meaning of section 3 of the Indian Income-tax Act. This court again in Mohamed Noorullah v. Commissioner of Income-tax considered the question in the context of an income realized by receivers appointed by consent of the heirs to run the business of the deceased, Khan Sahib Mohamed Oomer Sahib. Kapur J., speaking for the court, laid down the same test accepted by this court in the earlier judgment and held that on the facts of that case the co-heirs, who carried on the business by consent as one unit, formed an association of persons within the meaning of section 3 of the Indian Income-tax Act, for the purpose of producing income, profits or gains. The said decisions laid down the test that, to constitute an association of individuals two or more individuals should have joined in the promotion of a joint enterprise with the object of producing income, profits or gains.6. In the present case, the said test is not satisfied. The four nephews of Raja Khaja Pershad succeeded to the estate as co-sharers and each one of them was entitled to 1/4 share of the income from the estate. They did not form a unit for the promotion of any joint enterprise to earn income, profits or gains. The collection of the entire income from the estate by one of the sharers or even by a common employee will not make that income an income from a joint venture. Each of the sharers gets his income as an individual and not as an association of individuals. In this view, the High Court was right in answering the first question in favour of the respondentThere are no merits in the second contention either. The question is whether the assessee is entitled to a deduction under section 6(e) of the Act in respect of the expenditure incurred by him for the maintenance of the palace and other buildings of the estate. Learned Additional Solicitor-General contends that by reason of section 51 of the Act the respondent would not be entitled to any deduction under section 6(e) of the Act. It is not clear from the record when the assessment was completed. We shall assume that it was completed before April 1, 1950. Section 51(3) of the Act reads : "Where the assessment of the income-tax payable by an assessee for the year 1359F. under the said Act has not been completed before the 1st day of April, 1950, the tax so payable shall be assessed in accordance with the provisions of the said Act on the assessees agricultural income as defined in this Act of the previous year as determined under the said Act, and appeals from, and all other proceedings arising out of the assessment shall be regulated by this Act."7. This section cannot have any application for the assessment in question, for it was completed before April 1, 1950. The assessment has to be made under the Act and the respondent would be entitled to deductions under section 6(e) of the Act.That apart, even if the assessment was not completed before April 1, 1950, the respondent would not be in a worse position, for there is a corresponding provision in the Hyderabad Income-tax Act, 1357F., which entitles the respondent to the said deduction. Section 14(5)(a) of the said Act allowed the following deduction from the income"all such expenditure, not being in the nature of capital, private or personal expenditure, incurred by the assessee in connection with land or its inhabitants for administration or on works of general improvement and benefit."This court in construing the said provisions held that the expenditure incurred in connection with the land and its administration was deductible under the said provision : see Rajah S. V. Jagannath Rao v. Commissioner of Income-tax. Whether section 6(e) of the Act applies or section 14(5)(a) of the Hyderabad Income-tax Act, 1357F., applies, the respondent would be entitled to a deduction from his income of the expenditure incurred by him for the maintenance of the palace and other buildings of the estate. The answer given by the High Court to the second question is also correct.
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0[ds]A combined reading of these two provisions indicates that assessment can be made on an individual or an6. In the present case, the said test is not satisfied. The four nephews of Raja Khaja Pershad succeeded to the estate asand each one of them was entitled to 1/4 share of the income from the estate. They did not form a unit for the promotion of any joint enterprise to earn income, profits or gains. The collection of the entire income from the estate by one of the sharers or even by a common employee will not make that income an income from a joint venture. Each of the sharers gets his income as an individual and not as anIn this view, the High Court was right in answering the first question in favour of the respondentThere are no merits in the second contentionis not clear from the record when the assessment was completed. We shall assume that it was completed before April 1, 1950. Section 51(3) of the Act reads : "Where the assessment of thepayable by an assessee for the year 1359F. under the said Act has not been completed before the 1st day of April, 1950, the tax so payable shall be assessed in accordance with the provisions of the said Act on the assessees agricultural income as defined in this Act of the previous year as determined under the said Act, and appeals from, and all other proceedings arising out of the assessment shall be regulated by this Act."7. This section cannot have any application for the assessment in question, for it was completed before April 1, 1950. The assessment has to be made under the Act and the respondent would be entitled to deductions under section 6(e) of the Act.That apart, even if the assessment was not completed before April 1, 1950, the respondent would not be in a worse position, for there is a corresponding provision in the HyderabadAct, 1357F., which entitles the respondent to the said deduction. Section 14(5)(a) of the said Act allowed the following deduction from the income"all such expenditure, not being in the nature of capital, private or personal expenditure, incurred by the assessee in connection with land or its inhabitants for administration or on works of general improvement and benefit."This court in construing the said provisions held that the expenditure incurred in connection with the land and its administration was deductible under the said provision : see Rajah S. V. Jagannath Rao v. Commissioner ofWhether section 6(e) of the Act applies or section 14(5)(a) of the HyderabadAct, 1357F., applies, the respondent would be entitled to a deduction from his income of the expenditure incurred by him for the maintenance of the palace and other buildings of the estate. The answer given by the High Court to the second question is also correct.
| 0 | 2,340 |
### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
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is more comprehensive than the word "individual". But the meaning given to that expression as a unit of assessment under the Indian Income-tax Act by the court will equally apply to the expression "association of individuals" under the Hyderabad Agricultural Income-tax Act. This court in Commissioner of Income-tax v. Indira Balkrishna construed the said expression used in the Indian Income-tax Act and held that it did not apply to co-widows of a Hindu in the circumstances of that case. There three co-widows succeeded as co-heirs to the estate of their deceased husband and took a joint tenancy with the right of survivorship and equal beneficial enjoyment. They were entitled as between themselves to an equal share of the income. Either of them could not enforce an absolute partition, though for the purpose of convenience of enjoyment they could divide the property and enjoy their respective shares of the income therefrom. The question arose whether they should be assessed as individuals or as an association of persons. Das J. speaking for the court, accepted the following test to ascertain whether two or more persons constituted an "association of individuals" within the meaning of the Income-tax Act: "An association of persons must be one in which two or more persons join in a common purpose or common action, and as the words occur in a section which imposes a tax on income, the association must be one the object of which is to produce income, profits or gains."5. The learned judge then gives the caution that there is no formula of universal application and that the question must depend on the particular facts and circumstances of each case. On the facts found in that case, the court held that the widows were only co-heirs of the estate of the deceased husband and that they could not be assessed as an association of persons within the meaning of section 3 of the Indian Income-tax Act. This court again in Mohamed Noorullah v. Commissioner of Income-tax considered the question in the context of an income realized by receivers appointed by consent of the heirs to run the business of the deceased, Khan Sahib Mohamed Oomer Sahib. Kapur J., speaking for the court, laid down the same test accepted by this court in the earlier judgment and held that on the facts of that case the co-heirs, who carried on the business by consent as one unit, formed an association of persons within the meaning of section 3 of the Indian Income-tax Act, for the purpose of producing income, profits or gains. The said decisions laid down the test that, to constitute an association of individuals two or more individuals should have joined in the promotion of a joint enterprise with the object of producing income, profits or gains.6. In the present case, the said test is not satisfied. The four nephews of Raja Khaja Pershad succeeded to the estate as co-sharers and each one of them was entitled to 1/4 share of the income from the estate. They did not form a unit for the promotion of any joint enterprise to earn income, profits or gains. The collection of the entire income from the estate by one of the sharers or even by a common employee will not make that income an income from a joint venture. Each of the sharers gets his income as an individual and not as an association of individuals. In this view, the High Court was right in answering the first question in favour of the respondentThere are no merits in the second contention either. The question is whether the assessee is entitled to a deduction under section 6(e) of the Act in respect of the expenditure incurred by him for the maintenance of the palace and other buildings of the estate. Learned Additional Solicitor-General contends that by reason of section 51 of the Act the respondent would not be entitled to any deduction under section 6(e) of the Act. It is not clear from the record when the assessment was completed. We shall assume that it was completed before April 1, 1950. Section 51(3) of the Act reads : "Where the assessment of the income-tax payable by an assessee for the year 1359F. under the said Act has not been completed before the 1st day of April, 1950, the tax so payable shall be assessed in accordance with the provisions of the said Act on the assessees agricultural income as defined in this Act of the previous year as determined under the said Act, and appeals from, and all other proceedings arising out of the assessment shall be regulated by this Act."7. This section cannot have any application for the assessment in question, for it was completed before April 1, 1950. The assessment has to be made under the Act and the respondent would be entitled to deductions under section 6(e) of the Act.That apart, even if the assessment was not completed before April 1, 1950, the respondent would not be in a worse position, for there is a corresponding provision in the Hyderabad Income-tax Act, 1357F., which entitles the respondent to the said deduction. Section 14(5)(a) of the said Act allowed the following deduction from the income"all such expenditure, not being in the nature of capital, private or personal expenditure, incurred by the assessee in connection with land or its inhabitants for administration or on works of general improvement and benefit."This court in construing the said provisions held that the expenditure incurred in connection with the land and its administration was deductible under the said provision : see Rajah S. V. Jagannath Rao v. Commissioner of Income-tax. Whether section 6(e) of the Act applies or section 14(5)(a) of the Hyderabad Income-tax Act, 1357F., applies, the respondent would be entitled to a deduction from his income of the expenditure incurred by him for the maintenance of the palace and other buildings of the estate. The answer given by the High Court to the second question is also correct.
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663 |
Ananda Poojary Vs. State Of Karnataka
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the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The place and the maner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct – a feature which the two Courts have overlooked. We are of the opinion that this is a case where the evidence has to be looked into with a view to finding out whether the prosecution case can at all be accepted. The restriction on appreciation of evidence in an appeal by special leave is a self-imposed one and is not a jurisdictional bar. While we reiterate that ordinarily this Court would refrain from re-examining the evidence, in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self-imposed restriction.XX XX XX13. We are prepared to agree with Counsel for the State of Rajasthan that ordinarily a case of this type is difficult to prove and the law is settled that even the uncorroborated testimony of trap witnesses can be acted upon as indicated by this Court in the case of Prakash Chand v. State (Delhi Administration), 1979 Cri.L.J. 329 and Kishan Chand Mangal v. State of Rajasthan, (1983) 1 SCR 569 , but in the present case the evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced, the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. In these circumstances we are of the view that sufficient material has been brought out to merit interference in this appeal. We allow the appeal, set aside the conviction of the appellant and acquit him. He is discharge from his bail bond.” 32. Yet again in Suryamoorthi & Anr. v. Govindaswamy & Ors., (1989) 3 SCC 24 , the Court observed that discretion conferred by Article 136 of the Constitution is wide enough to permit this Court to interfere even on facts in suitable cases if the approach of the courts below had resulted in grave miscarriage of justice. “13. The learned counsel for the accused submitted that we should not disturb the concurrent findings of fact recorded by both the Courts. We are conscious of the fact that ordinarily this Court exercising jurisdiction under Article 136 of the Constitution is slow in substituting its findings of fact in place of those recorded by the courts below. However, this does not mean that this Court has no power to do so. The discretion conferred by Article 136 of the Constitution is wide enough to permit this Court to interfere even on facts in suitable cases if the approach of the courts below has resulted in grave miscarriage of justice. By way of self-imposed discipline, this Court does not ordinarily reappreciate or reassess the evidence unless it is of opinion that the approach of the courts below has resulted in failure of justice necessitating correction. If the courts below have misread the evidence resulting in miscarriage of justice it becomes the duty of this Court to interfere in the interest of administration of justice. In our view, the present is one such case which calls for interference. The approach of the courts below in doubting the capacity of PWs 1 and 2 to possess Rs.73,600/- and requiring them to prove how PW 2 had over a period of 10 years saved the said amount notwithstanding the find of Rs.33,600/-, was wrong and resulted in an erroneous conclusion.” 33. Legal position, explaining the contours and width of power under Article 136 of the Constitution was narrated in detail in Mahesh Dattatray Thirthkar v. State of Maharashtra, (2009) 11 SCC 141. After taking note of earlier precedents explaining the scope of Article 136 of the Constitution, position was summarised in para 22 and we reproduce the same: “22. From a close examination of the principles laid down by this Court in the aforesaid series of decisions as referred to herein above on the question of exercising power to interfere with findings of fact by this Court under Article 136 of the Constitution, the following principles, therefore, emerge: * The powers of this Court under Article 136 of the Constitution of India are very wide. * It is open to this Court to interfere with the findings of fact given by the High Court if the High Court has acted perversely or otherwise improperly. * When the evidence adduced by the parties in support of their respective cases fell short of reliability and acceptability and as such it is highly unsafe and improper to act upon it. * The appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record. * The appreciation of evidence and finding results in serious miscarriage of justice or manifest illegality. * Where findings of subordinate courts are shown to be “perverse or based on no evidence or irrelevant evidence or there are material irregularities affecting the said findings or where the court feels that justice has failed and the findings are likely to result in unduly excessive hardship. * When the High Court has redetermined a fact in issue in a civil appeal, and erred in drawing interferences based on presumptions. * The judgment was not a proper judgment of reversal. 34.
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1[ds]There is one more very crucial and critical circumstance which needs to be highlighted at this stage. Death took place on 1st March, 2006; UBR was registered only on 4th March, 2006 and postmortem conducted on 5th March, 2006. On that basis, FIR was registered on 7th March, 2006 wherein it was stated that the murder was committed by unknown persons. It shows that till that time, the appellant was not the suspect at all. Why and under what circumstances he came under cloud and roped in as an accused person, would be dealt with us a little later at an appropriate stage. For now, we revert back to the postmortem report. PW-1 is the doctor who conducted the postmortem and gave his report (Ex.P-1) in which he has stated that after the postmortem examination, he gave the tentative cause of death as cerebral and pulmonary oedema secondary to smothering. This opinion of his, which is only tentative, is based on his examination of the body whereby he observed certain external injuries. In his cross-examination, he categorically admitted that the type of contusion found on the body could be caused if that portion came in contact with rough and hard surface. He also admitted in the cross-examination that presence of alcohol was found in the dead body. Therefore, possibility cannot be ruled out that after consuming the alcohol, Dorathi might have fallen and hit herself on a rough and hard surface. This vital portion of the testimony of the doctor is not even adverted to and conveniently omitted from the discussion. It would be also relevant to point out at this stage even PW-2 namely Dr. Chandrashekhar under whose regular treatment the deceased was, had stated that the deceased had come to his hospital for treatment on 05.11.2005, 08.11.2005 and 25.11.2005. He also categorically mentioned that at that time, she was treated for hypertension and depression. He also mentioned that she was an alcoholic and he had advised her to quit drinking. Even this part of testimony of PW-2 is overlooked by the courts below.21. In the aforesaid scenario, it cannot be said with certainty as to whether Dorathi died of smothering or being a heart patient, the actual cause of death was cardiac arrest. In such circumstances, when there was a possibility of both the causes of death, in the absence of clear certainty about the cause, we are of the opinion that High Court committed an error in not giving benefit of doubt to the accusedfind that very curious aspect is attributed as a motive on the part of the appellant. It is stated that in the Will, a condition was put that the appellant will succeed to the estate of Dorathi only if he marries a Christian lady and the appellant who was Hindu by religion did not want to marry a Christian girl. This gives rise to an important poser: whether killing of Dorathi would have solved this dilemma of the appellant, if at all such dilemma was there. Answer is to be emphatic NO. Death of Dorathi, natural or unnatural, would have the only consequence of bringing the Will as operational. That would not and could not wipe off the aforesaid condition stated in the Will. Therefore, it can hardly be treated as a motive on the part of the appellant to kill Dorathi. On the other hand, having regard to very cordial and lovable relationship between the appellant and Dorathi which was as pious as mother and son, it was very unlikely that appellant would kill Dorathi even when Dorathi had already Willed away her properties in favour of the appellant. One has to keep in mind another important aspect namely Dorathi was of advanced age and was suffering from hypertension, depression and other old age related ailments. Therefore, no purpose could have been achieved by killing such a helpless lady, a littlealleged recoveries are nothing but make belief. We get an uncanny feeling that this aspect is introduced just to make the appellant a suspect and thereafter to rope him in a case of murder. It is a matter of record that Will, documents relating to investments and jewellery were handed over to the appellant and, therefore, they were in his rightful possession. He had not taken away and kept these things at any other place. The so called recovery is from the house itself. It is from the service station, which is situated in the same house where all lived. Therefore, this could not have been a circumstance from which an adverse inference is drawn. We hardly see this to be valid reason to suspect thearguments, we put a query to the learned counsel for the parties as we were curious about the properties of the deceased which she had bequeathed to the appellant. A very disturbing, but crucial, aspect emerged from the answer given by the parties which was that these assets were disposed of by PW-3 and his brother when the trial of the case is still on and the verdict of guilt had not been pronounced by the Session Judge. This speaks volume about many possibilities and bolsters our conclusion that the appellant is an innocent person who has been roped in, in a false case with a view to rob him of the properties and assets which Dorathi had Willed to the appellant out of her love and affection, to the exclusion of all others including PW-3 and his brother who is a resident ofalso inquired about the whereabouts of Rudolph, mentally challenged brother of Dorathi. The answer was equally startling. We were informed that within few months of Dorathis death, he also died. Obviously, with the appellant in jail, there was nobody to look after and take care of Rudolph. His foster brother Anthony Kutinho (PW-3) and other brother Simon Kutinho (resident of America) did not care to look after him, after the arrest of theare conscious of the fact that with the aforesaid analysis of the evidence, we have interfered with the findings of the courts below. However, having regard to the seriousness of the nature of imputation, viz. that of murder, coupled with the fact that findings of the courts below are the result of ignoring vital material and unsustainable inferences, such an exercise is permissible under the law.
| 1 | 7,351 |
### Instruction:
Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
### Input:
the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The place and the maner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct – a feature which the two Courts have overlooked. We are of the opinion that this is a case where the evidence has to be looked into with a view to finding out whether the prosecution case can at all be accepted. The restriction on appreciation of evidence in an appeal by special leave is a self-imposed one and is not a jurisdictional bar. While we reiterate that ordinarily this Court would refrain from re-examining the evidence, in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self-imposed restriction.XX XX XX13. We are prepared to agree with Counsel for the State of Rajasthan that ordinarily a case of this type is difficult to prove and the law is settled that even the uncorroborated testimony of trap witnesses can be acted upon as indicated by this Court in the case of Prakash Chand v. State (Delhi Administration), 1979 Cri.L.J. 329 and Kishan Chand Mangal v. State of Rajasthan, (1983) 1 SCR 569 , but in the present case the evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced, the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. In these circumstances we are of the view that sufficient material has been brought out to merit interference in this appeal. We allow the appeal, set aside the conviction of the appellant and acquit him. He is discharge from his bail bond.” 32. Yet again in Suryamoorthi & Anr. v. Govindaswamy & Ors., (1989) 3 SCC 24 , the Court observed that discretion conferred by Article 136 of the Constitution is wide enough to permit this Court to interfere even on facts in suitable cases if the approach of the courts below had resulted in grave miscarriage of justice. “13. The learned counsel for the accused submitted that we should not disturb the concurrent findings of fact recorded by both the Courts. We are conscious of the fact that ordinarily this Court exercising jurisdiction under Article 136 of the Constitution is slow in substituting its findings of fact in place of those recorded by the courts below. However, this does not mean that this Court has no power to do so. The discretion conferred by Article 136 of the Constitution is wide enough to permit this Court to interfere even on facts in suitable cases if the approach of the courts below has resulted in grave miscarriage of justice. By way of self-imposed discipline, this Court does not ordinarily reappreciate or reassess the evidence unless it is of opinion that the approach of the courts below has resulted in failure of justice necessitating correction. If the courts below have misread the evidence resulting in miscarriage of justice it becomes the duty of this Court to interfere in the interest of administration of justice. In our view, the present is one such case which calls for interference. The approach of the courts below in doubting the capacity of PWs 1 and 2 to possess Rs.73,600/- and requiring them to prove how PW 2 had over a period of 10 years saved the said amount notwithstanding the find of Rs.33,600/-, was wrong and resulted in an erroneous conclusion.” 33. Legal position, explaining the contours and width of power under Article 136 of the Constitution was narrated in detail in Mahesh Dattatray Thirthkar v. State of Maharashtra, (2009) 11 SCC 141. After taking note of earlier precedents explaining the scope of Article 136 of the Constitution, position was summarised in para 22 and we reproduce the same: “22. From a close examination of the principles laid down by this Court in the aforesaid series of decisions as referred to herein above on the question of exercising power to interfere with findings of fact by this Court under Article 136 of the Constitution, the following principles, therefore, emerge: * The powers of this Court under Article 136 of the Constitution of India are very wide. * It is open to this Court to interfere with the findings of fact given by the High Court if the High Court has acted perversely or otherwise improperly. * When the evidence adduced by the parties in support of their respective cases fell short of reliability and acceptability and as such it is highly unsafe and improper to act upon it. * The appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record. * The appreciation of evidence and finding results in serious miscarriage of justice or manifest illegality. * Where findings of subordinate courts are shown to be “perverse or based on no evidence or irrelevant evidence or there are material irregularities affecting the said findings or where the court feels that justice has failed and the findings are likely to result in unduly excessive hardship. * When the High Court has redetermined a fact in issue in a civil appeal, and erred in drawing interferences based on presumptions. * The judgment was not a proper judgment of reversal. 34.
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664 |
M.K. Brothers Ltd Vs. Commissioner of Income Tax, Kanpur
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deciding this matter against the appellant. There is, in our opinion, no force in this contention and we agree with Mr. Ram Chandran, learned counsel for the respondent, that the judgment of the High Court should be upheld. It would appear from the resume of facts given above that in March 1955 an amount of Rs. 8,39,350/15/6 was due to BIC from the firm Sharma and Co. who was the previous sole selling agent of the Kanpur Cotton Mills. As a result of agreement between the appellant, BIC and Sharma and Co. the appellant undertook to discharge the liability of Sharma and Co. in lieu of being appointed the sole selling agent of the Kanpur Cotton Mills in place of Sharma and Co. It can, therefore, be said that the appellant got the sole selling agency of the Kanpur Cotton Mills in consideration of its agreeing to pay Rs. 8,39,350/15/6 which was the amount due from Sharma and Co. to BIC. It is not disputed by Mr. Maheshwari that if the amount of Rs. 8,39,350/15/6 had been paid by the appellant in lump sum in consideration of its being appointed the sole selling agent of the Kanpur Cotton Mills, the payment would have constituted capital expenditure as it was an amount paid for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business. The fact that the amount was paid not in lump sum but was paid in instalments through deductions out of the commission due to the appellant would not, in our opinion, make any difference. The answer to the question as to whether the money paid is a revenue expenditure or capital expenditure depends not so much upon the fact as to whether the amount paid is large or small or whether it has been paid in lump sum or by installments, as it does upon the purpose for which the payment has been made and expenditure incurred. It is the real nature and quality of the payment and not the quantum or manner of the payment which would prove decisive. If the object of making the payment is to acquire a capital asset, the payment would partake of the character of a capital payment even though it is made not in lump sum but by installments over a period of time.On the contrary, payment made in the course of and for the purpose of carrying on business or trading activity would be revenue expenditure even though the payment is of a large amount and has not to be made periodically. As observed by this Court in the case of Assam Bengal Cement Co. Ltd. v. Commr. of Income Tax, West Bengal, (1955) 27 ITR 34 at p. 45 (SC), if the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other other hand it is made not for the purpose of bringing into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure. The source or the manner of the payment would then be of no consequence. We may also in this connection refer to the following observations of this Court in the case of P. H. Divecha (Deceased) and After Him His Legal Representatives v. Commr. of Income Tax, Bombay City I (1963) 489 ITR 222 = (AIR 1964 SC 758 ) :"It may also be stated as a general rule that the fact that the amount involved was large or that it was periodic in character have no decisive bearing upon the matter. A payment may even be described as "pay", "remuneration", etc., but that does not determine its quality, though the name by which it has been called may be relevant in determining its true nature because this gives an indication of how the person who paid the money and the person who received it viewed it in the first instance. The periodicity of the payment does not make the payment a recurring income because periodicity may be the result of convenience and not necessarily the result of the establishment of a source expected to be productive over a certain period. These general principles have been settled firmly by this Court in a large number of cases."5. Although the above observations were made in the contest of periodic receipts, they have a direct bearing even on cases relating to periodic payments.6. Mr. Maheshwari has referred to clause 13 of the indenture reproduced above and has contended that the appellant could make no claim to the amount of Rs. 43,333 which had been retained by BIC. This fact, in our opinion, would make no material difference so far as the true nature of that amount was concerned. The amount was deducted by BIC in pursuance of the agreement entered into by the appellant with BIC and Sharma and Co., according to which the appellant had to pay that amount in the form of deduction out of its commission in consideration of being appointed the sole selling agents of the Kanpur Cotton Mills. The present is a case relating to the application of income to discharge a liability incurred not in the course of running the business but a liability undertaken for the purpose of acquiring the sole selling agency right which was indisputably an asset of capital nature.
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0[ds]4. In appeal Mr. Maheshwari on behalf of the appellant has argued that the amount of Rs. 43,333 was a permissible deduction and the High Court was in error in deciding this matter against the appellant.There is, in our opinion, no force in this contention and we agree with Mr. Ram Chandran, learned counsel for the respondent, that the judgment of the High Court should be upheld. It would appear from the resume of facts given above that in March 1955 an amount of Rs. 8,39,350/15/6 was due to BIC from the firm Sharma and Co. who was the previous sole selling agent of the Kanpur Cotton Mills. As a result of agreement between the appellant, BIC and Sharma and Co. the appellant undertook to discharge the liability of Sharma and Co. in lieu of being appointed the sole selling agent of the Kanpur Cotton Mills in place of Sharma and Co. It can, therefore, be said that the appellant got the sole selling agency of the Kanpur Cotton Mills in consideration of its agreeing to pay Rs. 8,39,350/15/6 which was the amount due from Sharma and Co. to BIC. It is not disputed by Mr. Maheshwari that if the amount of Rs. 8,39,350/15/6 had been paid by the appellant in lump sum in consideration of its being appointed the sole selling agent of the Kanpur Cotton Mills, the payment would have constituted capital expenditure as it was an amount paid for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business. The fact that the amount was paid not in lump sum but was paid in instalments through deductions out of the commission due to the appellant would not, in our opinion, make any difference. The answer to the question as to whether the money paid is a revenue expenditure or capital expenditure depends not so much upon the fact as to whether the amount paid is large or small or whether it has been paid in lump sum or by installments, as it does upon the purpose for which the payment has been made and expenditure incurred. It is the real nature and quality of the payment and not the quantum or manner of the payment which would prove decisive. If the object of making the payment is to acquire a capital asset, the payment would partake of the character of a capital payment even though it is made not in lump sum but by installments over a period of time.On the contrary, payment made in the course of and for the purpose of carrying on business or trading activity would be revenue expenditure even though the payment is of a large amount and has not to be mademay also in this connection refer to the following observations of this Court in the case of P. H. Divecha (Deceased) and After Him His Legal Representatives v. Commr. of Income Tax, Bombay City I (1963) 489 ITR 222 = (AIR 1964 SC 758 ) :"It may also be stated as a general rule that the fact that the amount involved was large or that it was periodic in character have no decisive bearing upon the matter. A payment may even be described as "pay", "remuneration", etc., but that does not determine its quality, though the name by which it has been called may be relevant in determining its true nature because this gives an indication of how the person who paid the money and the person who received it viewed it in the first instance. The periodicity of the payment does not make the payment a recurring income because periodicity may be the result of convenience and not necessarily the result of the establishment of a source expected to be productive over a certain period. These general principles have been settled firmly by this Court in a large number of cases."5. Although the above observations were made in the contest of periodic receipts, they have a direct bearing even on cases relating to periodic payments.6.Mr. Maheshwari has referred to clause 13 of the indenture reproduced above and has contended that the appellant could make no claim to the amount of Rs. 43,333 which had been retained by BIC.This fact, in our opinion, would make no material difference so far as the true nature of that amount was concerned. The amount was deducted by BIC in pursuance of the agreement entered into by the appellant with BIC and Sharma and Co., according to which the appellant had to pay that amount in the form of deduction out of its commission in consideration of being appointed the sole selling agents of the Kanpur Cotton Mills. The present is a case relating to the application of income to discharge a liability incurred not in the course of running the business but a liability undertaken for the purpose of acquiring the sole selling agency right which was indisputably an asset of capital nature.
| 0 | 2,394 |
### 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:
deciding this matter against the appellant. There is, in our opinion, no force in this contention and we agree with Mr. Ram Chandran, learned counsel for the respondent, that the judgment of the High Court should be upheld. It would appear from the resume of facts given above that in March 1955 an amount of Rs. 8,39,350/15/6 was due to BIC from the firm Sharma and Co. who was the previous sole selling agent of the Kanpur Cotton Mills. As a result of agreement between the appellant, BIC and Sharma and Co. the appellant undertook to discharge the liability of Sharma and Co. in lieu of being appointed the sole selling agent of the Kanpur Cotton Mills in place of Sharma and Co. It can, therefore, be said that the appellant got the sole selling agency of the Kanpur Cotton Mills in consideration of its agreeing to pay Rs. 8,39,350/15/6 which was the amount due from Sharma and Co. to BIC. It is not disputed by Mr. Maheshwari that if the amount of Rs. 8,39,350/15/6 had been paid by the appellant in lump sum in consideration of its being appointed the sole selling agent of the Kanpur Cotton Mills, the payment would have constituted capital expenditure as it was an amount paid for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business. The fact that the amount was paid not in lump sum but was paid in instalments through deductions out of the commission due to the appellant would not, in our opinion, make any difference. The answer to the question as to whether the money paid is a revenue expenditure or capital expenditure depends not so much upon the fact as to whether the amount paid is large or small or whether it has been paid in lump sum or by installments, as it does upon the purpose for which the payment has been made and expenditure incurred. It is the real nature and quality of the payment and not the quantum or manner of the payment which would prove decisive. If the object of making the payment is to acquire a capital asset, the payment would partake of the character of a capital payment even though it is made not in lump sum but by installments over a period of time.On the contrary, payment made in the course of and for the purpose of carrying on business or trading activity would be revenue expenditure even though the payment is of a large amount and has not to be made periodically. As observed by this Court in the case of Assam Bengal Cement Co. Ltd. v. Commr. of Income Tax, West Bengal, (1955) 27 ITR 34 at p. 45 (SC), if the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other other hand it is made not for the purpose of bringing into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure. The source or the manner of the payment would then be of no consequence. We may also in this connection refer to the following observations of this Court in the case of P. H. Divecha (Deceased) and After Him His Legal Representatives v. Commr. of Income Tax, Bombay City I (1963) 489 ITR 222 = (AIR 1964 SC 758 ) :"It may also be stated as a general rule that the fact that the amount involved was large or that it was periodic in character have no decisive bearing upon the matter. A payment may even be described as "pay", "remuneration", etc., but that does not determine its quality, though the name by which it has been called may be relevant in determining its true nature because this gives an indication of how the person who paid the money and the person who received it viewed it in the first instance. The periodicity of the payment does not make the payment a recurring income because periodicity may be the result of convenience and not necessarily the result of the establishment of a source expected to be productive over a certain period. These general principles have been settled firmly by this Court in a large number of cases."5. Although the above observations were made in the contest of periodic receipts, they have a direct bearing even on cases relating to periodic payments.6. Mr. Maheshwari has referred to clause 13 of the indenture reproduced above and has contended that the appellant could make no claim to the amount of Rs. 43,333 which had been retained by BIC. This fact, in our opinion, would make no material difference so far as the true nature of that amount was concerned. The amount was deducted by BIC in pursuance of the agreement entered into by the appellant with BIC and Sharma and Co., according to which the appellant had to pay that amount in the form of deduction out of its commission in consideration of being appointed the sole selling agents of the Kanpur Cotton Mills. The present is a case relating to the application of income to discharge a liability incurred not in the course of running the business but a liability undertaken for the purpose of acquiring the sole selling agency right which was indisputably an asset of capital nature.
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665 |
COMMISSIONER OF CENTRAL EXCISE, ALLAHABAD Vs. M/S J.R. ORGANICS LTD
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1. Delay condoned. Appeal admitted.2. This appeal takes exception to the final Order No. 71005 of 2018 dated 20.02.2019 in appeal NO. E/1686/2008-EX (DB) passed by the CESTAT, Regional Bench, Allahabad, whereby the show cause notice issued by the Central Excise Commissionerate dated 08.11.2017 came to be quashed on the solitary ground that the same was vague having failed to specifically mention that the respondent valued their goods, transferred to other units, at a value lesser than the value as per CAS-4 Standards.3. We have heard counsel for the parties. In our opinion, the show cause notice opens with the statement which adverts to breach of cost accounting standards in the following words:?Whereas M/s. J.R. Organics Ltd. Captainganj distillery, Captaingaj have contravened the provisions of Section 4 of the Central Excise Act, 1944 (here-inafter referred to as ‘the said Act?) read with Rule 4, 6 and 11 of the Central Excise Rules,2002 in as much as they have (Indulged in evasion of Central Excise duty by suppressing their assessable value and during the period April 2003 to March 2006 they have evaded Central Excise Duty to the tune of Rs. 1,43,34,224=00 by way of not paying the duty on the specific values arrived at by their Cost Accountant based on cost accounting standards and in terms of Section 4 of Central Excise Act, 1944 read with Rule 8 and Rule 9 of Central Excise Valuation Rules 2000.? 4. In any case, the respondent understood the purport of the show cause notice and had also submitted representation on the premise that the value of their goods in question was not lesser than the value as per CAS-4 Standards. That is the core issue to be considered by the Tribunal.5. We hold that the Appellate Tribunal has misread the subject show cause notice. Hence, the conclusion reached on such erroneous basis cannot be sustained. The matter will now proceed before the Tribunal for consideration afresh on its own merits in accordance with law. Needless to observe that all consequential steps taken on the basis of the stated show cause notice will be subject to the final view taken by the Tribunal in the remanded proceedings.
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1[ds]3. We have heard counsel for the parties. In our opinion, the show cause notice opens with the statement which adverts to breach of cost accounting standards in the following words:?Whereas M/s. J.R. Organics Ltd. Captainganj distillery, Captaingaj have contravened the provisions of Section 4 of the Central Excise Act, 1944 (here-inafter referred to as ‘the said Act?) read with Rule 4, 6 and 11 of the Central Excise Rules,2002 in as much as they have (Indulged in evasion of Central Excise duty by suppressing their assessable value and during the period April 2003 to March 2006 they have evaded Central Excise Duty to the tune of Rs. 1,43,34,224=00 by way of not paying the duty on the specific values arrived at by their Cost Accountant based on cost accounting standards and in terms of Section 4 of Central Excise Act, 1944 read with Rule 8 and Rule 9 of Central Excise Valuation Rules 2000.?4. In any case, the respondent understood the purport of the show cause notice and had also submitted representation on the premise that the value of their goods in question was not lesser than the value as per CAS-4 Standards. That is the core issue to be considered by the Tribunal5. We hold that the Appellate Tribunal has misread the subject show cause notice. Hence, the conclusion reached on such erroneous basis cannot be sustained. The matter will now proceed before the Tribunal for consideration afresh on its own merits in accordance with law. Needless to observe that all consequential steps taken on the basis of the stated show cause notice will be subject to the final view taken by the Tribunal in the remanded proceedings.
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### 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:
1. Delay condoned. Appeal admitted.2. This appeal takes exception to the final Order No. 71005 of 2018 dated 20.02.2019 in appeal NO. E/1686/2008-EX (DB) passed by the CESTAT, Regional Bench, Allahabad, whereby the show cause notice issued by the Central Excise Commissionerate dated 08.11.2017 came to be quashed on the solitary ground that the same was vague having failed to specifically mention that the respondent valued their goods, transferred to other units, at a value lesser than the value as per CAS-4 Standards.3. We have heard counsel for the parties. In our opinion, the show cause notice opens with the statement which adverts to breach of cost accounting standards in the following words:?Whereas M/s. J.R. Organics Ltd. Captainganj distillery, Captaingaj have contravened the provisions of Section 4 of the Central Excise Act, 1944 (here-inafter referred to as ‘the said Act?) read with Rule 4, 6 and 11 of the Central Excise Rules,2002 in as much as they have (Indulged in evasion of Central Excise duty by suppressing their assessable value and during the period April 2003 to March 2006 they have evaded Central Excise Duty to the tune of Rs. 1,43,34,224=00 by way of not paying the duty on the specific values arrived at by their Cost Accountant based on cost accounting standards and in terms of Section 4 of Central Excise Act, 1944 read with Rule 8 and Rule 9 of Central Excise Valuation Rules 2000.? 4. In any case, the respondent understood the purport of the show cause notice and had also submitted representation on the premise that the value of their goods in question was not lesser than the value as per CAS-4 Standards. That is the core issue to be considered by the Tribunal.5. We hold that the Appellate Tribunal has misread the subject show cause notice. Hence, the conclusion reached on such erroneous basis cannot be sustained. The matter will now proceed before the Tribunal for consideration afresh on its own merits in accordance with law. Needless to observe that all consequential steps taken on the basis of the stated show cause notice will be subject to the final view taken by the Tribunal in the remanded proceedings.
### Response:
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666 |
THE VICE CHAIRMAN DELHI DEVELOPMENT AUTHORITY Vs. NARENDER KUMAR & ORS
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benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon [ (1968) 1 SCR 185 ] B.S. Vedera [ (1968) 3 SCR 575 ] and Raman Lal Keshav Lal Soni [(1983) 2 SCR 287] . 34. In the present context, none of the employees actually earned a second financial up-gradation. They undoubtedly became eligible for consideration. However, the eligibility ipso facto could not, having regard to the terms of the ACP scheme translate into an entitlement. The eligibility was, to put it differently, an expectation. To be entitled to the benefits, the public employer (here DDA) had to necessarily review and consider the employees records, to examine whether they fulfilled the eligibility conditions and, based on such review individual orders had to be made by DDA. In other words, second ACP up-gradation was not automatic but dependant on external factors. Furthermore, as held by this Court in M.V. Mohanan Nair (supra), MACP benefits are only an incentive meant to relieve stagnation – framed under the executive policy. Its continued existence cannot be termed as an enforceable right. 35. Such expectation is akin to a candidate being declared successful in a recruitment process and whose name is published in the select list. That, such candidate has no vested right to insist that the public employer must issue an employment letter, has been held by a Constitution Bench Judgment of this Court in Shankarsan Dash vs Union Of India (1991) 3 SCC 47 . Therefore, it is held that employees contention that they acquire a vested right in securing the second ACP benefit is insubstantial. 36. The employees in this case approached the High Court, complaining that their vested right, which was the assumed entitlement to be given by second ACP, was taken away by the MACP, introduced with effect from 01-09-2008, by an order dated 19-05-2009. No doubt, the MACP scheme is an executive order. Usually, such orders are expressed to be prospective. However, the executive has the option of giving effect to such an order, from an anterior date; especially if it confers some advantages or benefits to a sizeable section of its employees, as in this case. The nature of benefits- as emphasized by this court earlier, were by way of incentives. They are not embodied under rules. In such circumstances, a set of employees, who might have benefitted from the then prevailing regime or policy, cannot in the absence of strong and unequivocal indications in the later policy (which might be given effect to from an anterior date, like in this case), insist that they have a right to be given the benefits under the superseded policy. It is noteworthy that a larger section of employees would benefit from the MACP benefits, because they are to be given after 10-, 20- and 30-years service (as compared with two benefits, falling due after 12 and 24 years of service) and further that such benefits under MACP scheme are subjected to less rigorous eligibility requirements, than under the ACP scheme. 37. The myriad intricate details which the executive has to consider, while framing a scheme applicable generally, to a large section of the employees, may not always admit of one, or one set of solutions. To insist that a particular kind of benefit, hitherto applicable, should be continued for a set of employees, while the others should be governed by another, new set or scheme, would be imposing a significant burden on the administration, apart from swelling financial costs as well as administrative energies. Such directions would result in creating different time warps, rendering efficient administration of personnel policies impracticable. Sans palpable or facial arbitrariness, the courts should be circumspect in adding conditions, or tampering with such arrangements. In Ajoy Kumar Banerjee v Union of India (1984) 3 SCR 252 a five judge Bench of this court had emphasized this aspect in the following terms: 46…. The legislature however is free to recognise the degree of harm or evil and to make provisions for the same. Making dissimilar provisions for one group of public sector undertakings does not per se make a law discriminatory as such. It is well-settled that courts will not sit as super- legislature and strike down a particular classification on the ground that any under-inclusion, namely, that some others have been left untouched so long as there is no violation of constitutional restraints…… The same principle was reiterated by this Court in the case of State of Gujarat v. Shri Ambica Mills Ltd., Ahmedabad [1974 (3) SCR 760 ]. In that case, this Court was of the view that in the matter of economic legislation or reform, a provision would not be struck down on the vice of under-inclusion, inter alia, for the reason that the legislature could not be required to impose upon administrative agencies task which could not be carried out or which must be carried out on a large scale at a single stroke. It was further reiterated that piece meal approach to a general problem permitted by under-inclusive classifications, is sometimes justified when it is considered that legislatures deal with such problems usually on an experimental basis. It is impossible to tell how successful a particular approach might be, what dislocation might occur, and what situation might develop and what new evil might be generated in the attempt. Administrative expedients must be forged and tested. Legislators recognizing these factors might wish to proceed cautiously, and courts must allow them to do so…. This court is of the opinion that the same considerations apply in the present case. That, some employees could have benefitted more under the ACP benefits, if the MACP scheme had not been introduced from an earlier date, is no ground to hold so and compel an executive agency to grant the claimed benefits.
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1[ds]In that decision, the question which arose for consideration was the correct date from which the MACP up- gradation scheme, was applicable to employees (below the rank of officer). This court held that the scheme had to be applied from 01.01.2006, and not the date designated by the concerned order (01.09.2008). The Armed Forces Tribunal (AFT) held that ACP benefits granted to employees is part of the pay structure which not only affects pay but also pension. ACP then ruled that it is not an allowance but a part of pay relied on a Government Resolution to hold that the MACP scheme was payable w.e.f. 01.01.2006. This Court in Balbir Singh Turn (supra) upheld that finding recorded by the AFT. Instructions issued on 30-5-2011 were found to be contrary to the Resolution dated 30-8-2008 as, according to the resolution 1-1-2006 was the effective date for implementation of MACPS in matters relating to pay and dearness allowance. There is no such parallel, in the facts of this case.25. In M.V. Mohanan Nair (supra) a three judge Bench of this court held, in the context of a dispute, which asserted that MACP benefits would result in regular promotional advancement, that:The change in policy brought about by supersession of ACP Scheme with the MACP Scheme is after consideration of all the disparities and the representations of the employees. The Sixth Central Pay Commission is an expert body which has comprehensively examined all the issues and the representations as also the issue of stagnation and at the same time to promote efficiency in the functioning of the departments. MACP Scheme has been introduced on the recommendation of the Sixth Central Pay Commission which has been accepted by the Government of India. After accepting the recommendation of the Sixth Central Pay Commission, the ACP Scheme was withdrawn and the same was superseded by the MACP Scheme with effect from 01.09.2008. This is not some random exercise which is unilaterally done by the Government, rather, it is based on the opinion of the expert body – Sixth Central Pay Commission which has examined all the issues, various representations and disparities. Before making the recommendation for the Pay Scale/Revised Pay Scale, the Pay Commission takes into consideration the existing pay structure, the representations of the government servants and various other factors after which the recommendations are made. When the expert body like Pay Commission has comprehensively examined all the issues and representations and also took note of inter-departmental disparities owing to varying promotional hierarchies, the court should not interfere with the recommendations of the expert body. When the government has accepted the recommendation of the Pay Commission and has also implemented those, any interference by the court would have a serious impact on the public exchequer.26. This court, in R.K. Sharma & Ors. (2021) 5 SCC 579, commented on the effect of M.V. Mohanan Nair (supra) on the MACP scheme, especially the date from which it was operative. It was held that:The judgment in M.V. Mohanan Nair clinches the issue. Benefits flowing from ACP and MACP Schemes are incentives and are not part of pay. The Resolution dated 29-8-2008 is made effective from 1-9-2008 for implementation of allowances other than pay and DA which includes financial upgradation under ACP and MACP Schemes. Therefore, the respondents and other similarly situated officers are not entitled to seek implementation of the benefits of MACPS with effect from 1-1-2006 according to the Resolution dated 29-8-2008. Moreover, the implementation of MACPS by granting financial upgradation only to the next grade pay in the pay band and not granting pay of the next promotional post with effect from 1-1-2006 would be detrimental to a large number of employees, particularly those who have retired.27. It is therefore, quite clear that both Mohanan Nair(supra) and R.K. Sharma(supra), examined the MACP scheme; the latter, especially, ruled that the scheme was operable from 01-09-2008, and that the respondents officers are not entitled to seek implementation of the benefits of MACPS with effect from 1-1-2006 according to the Resolution dated 29-8-2008. Having regard to this clearly enunciated principle, which, in this courts opinion, stems from a correct reading of the scheme, the reasoning of the High Court, that the MACP scheme is operative not from 01-09-2008, but from 01-01-2006, is untenable. The mere circumstance that the resolution of the Government which led to adoption of the MACP also contained the effective date for implementation of the pay-benefits of the Pay Commission recommendations, did not obliterate the fact that the date from which the scheme was to be made effective, was another one.28. The submissions of the DDA, that the executive agencys considerations, while extending a benefit or new regime such as the promotion or career advancement program, is to be effective, involves decision making that is complex and nuanced, is justified. The date of operation of new pay scales cannot be per se the same when the operation of another scheme (which may also involve pay benefits) need not be the same. The shifting of dates (once settled by the executive after due deliberations) may seemingly have no consequences, but inevitably would have radical financial implications. Given these factors, it has been held, in previous decisions [Govt of AP v N. Subbarayadu 2008 (14) SCC 702 ; Ami Lal Bhat v State of Rajasthan (1997) 6 SCC 614 ; State of Bihar v. Ramjee Prasad (1990) 3 SCC 368 ; Union of India v. Sudhir Kumar Jaiswal (1994) 4 SCC 212 Union of India v. Shivbachan Rai (2001) 9 SCC 356 and Council of Scientific & Industrial Research v. Ramesh Chandra Agrawal (2009) 3 SCC 35] that courts should in the absence of any facially compelling reason disclosing arbitrariness desist from stepping into the arena of decision making, and avoid directing their re- formulation or even requiring such schemes to be administered from any anterior period.29. The other reason why the High Court went wrong, in holding what it did, is that DDA is an autonomous – a statutory – organization. No doubt, it largely follows the Central Governments policies, in respect of pay and allowances, and other benefits for its employees. However, any revision of pay-structure or revision in other terms and conditions, of Central Government personnel cannot and do not automatically apply to the DDA; it has to consider the new or fresh scheme formulated by the Central Government, and adopt it, if necessary, after appropriate adaptation, to suit its needs. Therefore, the Central Governments MACP scheme did not apply to it automatically. The DDA decided to apply it, through an office order dated 06.10.2009 (Establishment Order, dated 6 October, 2009). The High Court has overlooked this aspect, and apparently assumed that the MACP scheme applied automatically, upon its adoption by the Central Government, to the DDA.31. Para 9 recognises the fact that if there is any ambiguity in the interpretation of the MACP scheme it would be resolved by the Department of Personnel and Training. It also clarifies in the last sentence that financial up- gradation would be granted till 31.08.2008 (given that the MACP scheme itself became operative on 01.09.2008), although the office memorandum was issued on 19.05.2009. In the opinion of this Court the undue influence placed upon the last sentence cannot be met much of by the employees given that the ACP scheme itself ended on 31.08.2008. This provision (i.e. Para 9) was made to cater to the situations where the grant of ACP benefits was under process, this would mean both types of benefits i.e. the first and the second up-gradation. Doubtlessly, the first up-gradation under the ACP scheme was to be granted after 12 years. If Para 9 were to be considered in the context of the first up- gradation it is a clarification to the effect that the individual concerned who has crossed 12 years service (and therefore became eligible and whose case is under active consideration) would get the ACP benefits. However, this provision cannot be understood as an independent transitional provision, enabling all employees awaiting the up-gradation to insist that the benefit of the ACP scheme should indefinitely continue despite its ceasing to exist after 31.08.2008.33. The concept of vested right has arisen for consideration before this court in several contexts especially with respect to alteration of service condition of public employees. That the Central Government in the exercise of its legislative powers conferred under provision of Article 309 of the Constitution can frame rules which has the force of law has been settled several decades ago. This court has also held that such rules can be made to operate from anterior date by giving retrospective effect to them. The determination of an anterior date for the operation of a rule which has the effect of nullifying or refacing intervening events or invalidating benefits which had been granted to public employees was held to be unconstitutional in State of Gujarat vs Raman Lal Keshav Lal Soni (1983) 2 SCR 287. Several previous judgments of this Court dealing with the question that what is accrued or vested right were considered in Chairman, Railway Board v. C.R. Rangadhamaiah 1997 Supp (3) SCR 63 wherein the impugned rule in question sought to disturb the method of calculating the last pay drawn for the purposes of pension and related allowances. This impacted the pension disbursement of a large number of employees who had retired much earlier. The court observed that the amendments applied to employees who had already retired and were no longer in service on the date the impugned notifications were issued, and adversely impacted the pension they were drawing. In such context the court held as impermissible, those benefits which accrued or in other words had been actually enjoyed and were taken away by the devise of giving retrospective effect to the rule. The court observed as follows:22. In State of Gujarat v. Raman Lal Keshav Lal Soni [(1983) 2 SCC 33] decided by a Constitution Bench of the Court, the question was whether the status of ex-ministerial employees who had been allocated to the Panchayat service as Secretaries, Officers and Servants of Gram and Nagar Panchayats under the Gujarat Panchayat Act, 1961 as government servants could be extinguished by making retrospective amendment of the said Act in 1978. Striking down the said amendment on the ground that it offended Articles 311 and 14 of the Constitution, this Court said:52. … The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the dos and donts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with todays rights and not yesterdays. A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history.23. The said decision in Raman Lal Keshav Lal Soni (1983) 2 SCR 287 of the Constitution Bench of this Court has been followed by various Division Benches of this Court. ( K.C. Arora v. State of Haryana (1984) 3 SCR 623 ; T.R. Kapur v. State of Haryana [ (1987) 1 SCR 584 ]; P.D. Aggarwal v. State of U.P. [(1987) 3 SCR 427] ; K. Narayanan v. State of Karnataka [1994 Supp (1) SCC 44] ; Union of India v. Tushar Ranjan Mohanty [(1994) 5 SCC 450] and K. Ravindranath Pai v. State of Karnataka [1995 Supp (2) SCC 246).24. In many of these decisions the expressions vested rights or accrued rights have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon [ (1968) 1 SCR 185 ] B.S. Vedera [ (1968) 3 SCR 575 ] and Raman Lal Keshav Lal Soni [(1983) 2 SCR 287] .34. In the present context, none of the employees actually earned a second financial up-gradation. They undoubtedly became eligible for consideration. However, the eligibility ipso facto could not, having regard to the terms of the ACP scheme translate into an entitlement. The eligibility was, to put it differently, an expectation. To be entitled to the benefits, the public employer (here DDA) had to necessarily review and consider the employees records, to examine whether they fulfilled the eligibility conditions and, based on such review individual orders had to be made by DDA. In other words, second ACP up-gradation was not automatic but dependant on external factors. Furthermore, as held by this Court in M.V. Mohanan Nair (supra), MACP benefits are only an incentive meant to relieve stagnation – framed under the executive policy. Its continued existence cannot be termed as an enforceable right.36. The employees in this case approached the High Court, complaining that their vested right, which was the assumed entitlement to be given by second ACP, was taken away by the MACP, introduced with effect from 01-09-2008, by an order dated 19-05-2009. No doubt, the MACP scheme is an executive order. Usually, such orders are expressed to be prospective. However, the executive has the option of giving effect to such an order, from an anterior date; especially if it confers some advantages or benefits to a sizeable section of its employees, as in this case. The nature of benefits- as emphasized by this court earlier, were by way of incentives. They are not embodied under rules. In such circumstances, a set of employees, who might have benefitted from the then prevailing regime or policy, cannot in the absence of strong and unequivocal indications in the later policy (which might be given effect to from an anterior date, like in this case), insist that they have a right to be given the benefits under the superseded policy. It is noteworthy that a larger section of employees would benefit from the MACP benefits, because they are to be given after 10-, 20- and 30-years service (as compared with two benefits, falling due after 12 and 24 years of service) and further that such benefits under MACP scheme are subjected to less rigorous eligibility requirements, than under the ACP scheme.37. The myriad intricate details which the executive has to consider, while framing a scheme applicable generally, to a large section of the employees, may not always admit of one, or one set of solutions. To insist that a particular kind of benefit, hitherto applicable, should be continued for a set of employees, while the others should be governed by another, new set or scheme, would be imposing a significant burden on the administration, apart from swelling financial costs as well as administrative energies. Such directions would result in creating different time warps, rendering efficient administration of personnel policies impracticable. Sans palpable or facial arbitrariness, the courts should be circumspect in adding conditions, or tampering with such arrangements. In Ajoy Kumar Banerjee v Union of India (1984) 3 SCR 252 a five judge Bench of this court had emphasized this aspect in the following terms:46…. The legislature however is free to recognise the degree of harm or evil and to make provisions for the same. Making dissimilar provisions for one group of public sector undertakings does not per se make a law discriminatory as such. It is well-settled that courts will not sit as super- legislature and strike down a particular classification on the ground that any under-inclusion, namely, that some others have been left untouched so long as there is no violation of constitutional restraints…… The same principle was reiterated by this Court in the case of State of Gujarat v. Shri Ambica Mills Ltd., Ahmedabad [1974 (3) SCR 760 ]. In that case, this Court was of the view that in the matter of economic legislation or reform, a provision would not be struck down on the vice of under-inclusion, inter alia, for the reason that the legislature could not be required to impose upon administrative agencies task which could not be carried out or which must be carried out on a large scale at a single stroke. It was further reiterated that piece meal approach to a general problem permitted by under-inclusive classifications, is sometimes justified when it is considered that legislatures deal with such problems usually on an experimental basis. It is impossible to tell how successful a particular approach might be, what dislocation might occur, and what situation might develop and what new evil might be generated in the attempt. Administrative expedients must be forged and tested. Legislators recognizing these factors might wish to proceed cautiously, and courts must allow them to do so….This court is of the opinion that the same considerations apply in the present case. That, some employees could have benefitted more under the ACP benefits, if the MACP scheme had not been introduced from an earlier date, is no ground to hold so and compel an executive agency to grant the claimed benefits.
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### 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:
benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon [ (1968) 1 SCR 185 ] B.S. Vedera [ (1968) 3 SCR 575 ] and Raman Lal Keshav Lal Soni [(1983) 2 SCR 287] . 34. In the present context, none of the employees actually earned a second financial up-gradation. They undoubtedly became eligible for consideration. However, the eligibility ipso facto could not, having regard to the terms of the ACP scheme translate into an entitlement. The eligibility was, to put it differently, an expectation. To be entitled to the benefits, the public employer (here DDA) had to necessarily review and consider the employees records, to examine whether they fulfilled the eligibility conditions and, based on such review individual orders had to be made by DDA. In other words, second ACP up-gradation was not automatic but dependant on external factors. Furthermore, as held by this Court in M.V. Mohanan Nair (supra), MACP benefits are only an incentive meant to relieve stagnation – framed under the executive policy. Its continued existence cannot be termed as an enforceable right. 35. Such expectation is akin to a candidate being declared successful in a recruitment process and whose name is published in the select list. That, such candidate has no vested right to insist that the public employer must issue an employment letter, has been held by a Constitution Bench Judgment of this Court in Shankarsan Dash vs Union Of India (1991) 3 SCC 47 . Therefore, it is held that employees contention that they acquire a vested right in securing the second ACP benefit is insubstantial. 36. The employees in this case approached the High Court, complaining that their vested right, which was the assumed entitlement to be given by second ACP, was taken away by the MACP, introduced with effect from 01-09-2008, by an order dated 19-05-2009. No doubt, the MACP scheme is an executive order. Usually, such orders are expressed to be prospective. However, the executive has the option of giving effect to such an order, from an anterior date; especially if it confers some advantages or benefits to a sizeable section of its employees, as in this case. The nature of benefits- as emphasized by this court earlier, were by way of incentives. They are not embodied under rules. In such circumstances, a set of employees, who might have benefitted from the then prevailing regime or policy, cannot in the absence of strong and unequivocal indications in the later policy (which might be given effect to from an anterior date, like in this case), insist that they have a right to be given the benefits under the superseded policy. It is noteworthy that a larger section of employees would benefit from the MACP benefits, because they are to be given after 10-, 20- and 30-years service (as compared with two benefits, falling due after 12 and 24 years of service) and further that such benefits under MACP scheme are subjected to less rigorous eligibility requirements, than under the ACP scheme. 37. The myriad intricate details which the executive has to consider, while framing a scheme applicable generally, to a large section of the employees, may not always admit of one, or one set of solutions. To insist that a particular kind of benefit, hitherto applicable, should be continued for a set of employees, while the others should be governed by another, new set or scheme, would be imposing a significant burden on the administration, apart from swelling financial costs as well as administrative energies. Such directions would result in creating different time warps, rendering efficient administration of personnel policies impracticable. Sans palpable or facial arbitrariness, the courts should be circumspect in adding conditions, or tampering with such arrangements. In Ajoy Kumar Banerjee v Union of India (1984) 3 SCR 252 a five judge Bench of this court had emphasized this aspect in the following terms: 46…. The legislature however is free to recognise the degree of harm or evil and to make provisions for the same. Making dissimilar provisions for one group of public sector undertakings does not per se make a law discriminatory as such. It is well-settled that courts will not sit as super- legislature and strike down a particular classification on the ground that any under-inclusion, namely, that some others have been left untouched so long as there is no violation of constitutional restraints…… The same principle was reiterated by this Court in the case of State of Gujarat v. Shri Ambica Mills Ltd., Ahmedabad [1974 (3) SCR 760 ]. In that case, this Court was of the view that in the matter of economic legislation or reform, a provision would not be struck down on the vice of under-inclusion, inter alia, for the reason that the legislature could not be required to impose upon administrative agencies task which could not be carried out or which must be carried out on a large scale at a single stroke. It was further reiterated that piece meal approach to a general problem permitted by under-inclusive classifications, is sometimes justified when it is considered that legislatures deal with such problems usually on an experimental basis. It is impossible to tell how successful a particular approach might be, what dislocation might occur, and what situation might develop and what new evil might be generated in the attempt. Administrative expedients must be forged and tested. Legislators recognizing these factors might wish to proceed cautiously, and courts must allow them to do so…. This court is of the opinion that the same considerations apply in the present case. That, some employees could have benefitted more under the ACP benefits, if the MACP scheme had not been introduced from an earlier date, is no ground to hold so and compel an executive agency to grant the claimed benefits.
### Response:
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Hero Cycles (P) Ltd Vs. Commissioner of Income Tax (Central), Ludhiana
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6. The Department/ Revenue challenged the order of the CIT(Appeal) before the Income Tax Appellate Tribunal (hereinafter referred to as ITAT). The ITAT upheld the aforesaid view of the CIT(Appeal) and thus, dismissed the appeal preferred by the Revenue. Further appeal of the Revenue before the High Court filed under Section 260A of the Income Tax Act, however, has been allowed by the High Court vide impugned judgment dated 06.12.2006. Challenging that judgment, special leave petition was filed in which leave was granted and that is how the present appeal comes up for hearing. 7. A perusal of the order passed by the High Court would reveal that the High Court has not at all discussed the aforesaid facts which were established on record pertaining to the interest free advance given to M/s. Hero Fibres Limited as well as loans given to its own Directors at interest at the rate of 10 per cent. 8. On the other hand, the High Court has simply quoted from its own judgment in the case of Commissioner of Income Tax-I, Ludhiana v. M/s. Abhishek Industries Limited, Ludhiana [ITA No. 110/2005 decided on 04.08.2006]. On that basis, it has held that when loans were taken from the banks at which interest was paid for the purposes of business, the interest thereon could not be claimed as business expenditure. 9. We are of the opinion that such an approach is clearly faulty in law and cannot be countenanced. 10. Insofar as loans to the sister concern / subsidiary company are concerned, law in this behalf is recapitulated by this Court in the case of S.A. Builders Ltd. v. Commissioner of Income Tax (Appeals) and Another [2007 (288) ITR 1 (SC)]. After taking note of and discussing on the scope of commercial expediency, the Court summed up the legal position in the following manner: - ?26. The expression ?commercial expediency? is an expression of wide import and includes such expenditure as a prudent businessman incurs for the purpose of business. The expenditure may not have been incurred under any legal obligation, but yet it is allowable as a business expenditure if it was incurred on grounds of commercial expediency. 27. No doubt, as held in Madhav Prasad Jatia v. CIT [1979 (118) ITR 200 (SC)], if the borrowed amount was donated for some sentimental or personal reasons and not on the ground of commercial expediency, the interest thereon could not have been allowed under section 36(1)(iii) of the Act. In Madhav Prasads case [1979 (118) ITR 200 (SC)], the borrowed amount was donated to a college with a view to commemorate the memory of the assessees deceased husband after whom the college was to be named, it was held by this court that the interest on the borrowed fund in such a case could not be allowed, as it could not be said that it was for commercial expediency. 28. Thus, the ratio of Madhav Prasad Jatias case [1979 (118) ITR 200 (SC)] is that the borrowed fund advanced to a third party should be for commercial expediency if it is sought to be allowed under section 36(1)(iii) of the Act. 29. In the present case, neither the High Court nor the Tribunal nor other authorities have examined whether the amount advanced to the sister concern was by way of commercial expediency. 30. It has been repeatedly held by this court that the expression ?for the purpose of business? is wider in scope than the expression ?for the purpose of earning profits? vide CIT v. Malayalam Plantations Ltd. [1964 53 ITR 140 (SC), CIT v. Birla Cotton Spinning and Weaving Mills Ltd. [1971 82 ITR 166 (SC)], etc.? 11. In the process, the Court also agreed that the view taken by the Delhi High Court in CIT v. Dalmia Cement (B.) Ltd. [2002 (254) ITR 377 ] wherein the High Court had held that once it is established that there is nexus between the expenditure and the purpose of business (which need not necessarily be the business of the assessee itself), the Revenue cannot justifiably claim to put itself in the arm-chair of the businessman or in the position of the Board of Directors and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. It further held that no businessman can be compelled to maximize his profit and that the income tax authorities must put themselves in the shoes of the assessee and see how a prudent businessman would act. The authorities must not look at the matter from their own view point but that of a prudent businessman. 12. Applying the aforesaid ratio to the facts of this case as already noted above, it is manifest that the advance to M/s. Hero Fibres Limited became imperative as a business expediency in view of the undertaking given to the financial institutions by the assessee to the effect that it would provide additional margin to M/s. Hero Fibres Limited to meet the working capital for meeting any cash loses. It would also be significant to mention at this stage that, subsequently, the assessee company had off-loaded its share holding in the said M/s. Hero Fibres Limited to various companies of Oswal Group and at that time, the assessee company not only refunded back the entire loan given to M/s. Hero Fibres Limited by the assessee but this was refunded with interest. In the year in which the aforesaid interest was received, same was shown as income and offered for tax. 13. Insofar as the loans to Directors are concerned, it could not be disputed by the Revenue that the assessee had a credit balance in the Bank account when the said advance of Rs. 34 lakhs was given. Remarkably, as observed by the CIT (Appeal) in his order, the company had reserve/surplus to the tune of almost 15 crores and, therefore, the assessee company could in any case, utilise those funds for giving advance to its Directors. 14.
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1[ds]We may note here that the assessee had claimed deduction of interest in the sum of Rs.20,53,120/-. The Assessing Officer, after recording the aforesaid reasons, did not allow the deduction of the entire amount and re-calculated the figures, thereby disallowed the aforesaid claim to the extent of Rs.16,39,010/-Insofar as loans to the sister concern / subsidiary company are concerned, law in this behalf is recapitulated by this Court in the case of S.A. Builders Ltd. v. Commissioner of Income Tax (Appeals) and Another [2007 (288) ITR 1 (SC)]. After taking note of and discussing on the scope of commercial expediency, the Court summed up the legal position in the following manner: -?26. The expression ?commercial expediency? is an expression of wide import and includes such expenditure as a prudent businessman incurs for the purpose of business. The expenditure may not have been incurred under any legal obligation, but yet it is allowable as a business expenditure if it was incurred on grounds of commercial expediency27. No doubt, as held in Madhav Prasad Jatia v. CIT [1979 (118) ITR 200 (SC)], if the borrowed amount was donated for some sentimental or personal reasons and not on the ground of commercial expediency, the interest thereon could not have been allowed under section 36(1)(iii) of the Act. In Madhav Prasads case [1979 (118) ITR 200 (SC)], the borrowed amount was donated to a college with a view to commemorate the memory of the assessees deceased husband after whom the college was to be named, it was held by this court that the interest on the borrowed fund in such a case could not be allowed, as it could not be said that it was for commercial expediency28. Thus, the ratio of Madhav Prasad Jatias case [1979 (118) ITR 200 (SC)] is that the borrowed fund advanced to a third party should be for commercial expediency if it is sought to be allowed under section 36(1)(iii) of the Act29. In the present case, neither the High Court nor the Tribunal nor other authorities have examined whether the amount advanced to the sister concern was by way of commercial expediency30. It has been repeatedly held by this court that the expression ?for the purpose of business? is wider in scope than the expression ?for the purpose of earning profits? vide CIT v. Malayalam Plantations Ltd. [1964 53 ITR 140 (SC), CIT v. Birla Cotton Spinning and Weaving Mills Ltd. [1971 82 ITR 166 (SC)], etc.?In the process, the Court also agreed that the view taken by the Delhi High Court in CIT v. Dalmia Cement (B.) Ltd. [2002 (254) ITR 377 ] wherein the High Court had held that once it is established that there is nexus between the expenditure and the purpose of business (which need not necessarily be the business of the assessee itself), the Revenue cannot justifiably claim to put itself in the arm-chair of the businessman or in the position of the Board of Directors and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. It further held that no businessman can be compelled to maximize his profit and that the income tax authorities must put themselves in the shoes of the assessee and see how a prudent businessman would act. The authorities must not look at the matter from their own view point but that of a prudent businessmanApplying the aforesaid ratio to the facts of this case as already noted above, it is manifest that the advance to M/s. Hero Fibres Limited became imperative as a business expediency in view of the undertaking given to the financial institutions by the assessee to the effect that it would provide additional margin to M/s. Hero Fibres Limited to meet the working capital for meeting any cash loses. It would also be significant to mention at this stage that, subsequently, the assessee company had off-loaded its share holding in the said M/s. Hero Fibres Limited to various companies of Oswal Group and at that time, the assessee company not only refunded back the entire loan given to M/s. Hero Fibres Limited by the assessee but this was refunded with interest. In the year in which the aforesaid interest was received, same was shown as income and offered for tax
| 1 | 2,075 |
### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
### Input:
6. The Department/ Revenue challenged the order of the CIT(Appeal) before the Income Tax Appellate Tribunal (hereinafter referred to as ITAT). The ITAT upheld the aforesaid view of the CIT(Appeal) and thus, dismissed the appeal preferred by the Revenue. Further appeal of the Revenue before the High Court filed under Section 260A of the Income Tax Act, however, has been allowed by the High Court vide impugned judgment dated 06.12.2006. Challenging that judgment, special leave petition was filed in which leave was granted and that is how the present appeal comes up for hearing. 7. A perusal of the order passed by the High Court would reveal that the High Court has not at all discussed the aforesaid facts which were established on record pertaining to the interest free advance given to M/s. Hero Fibres Limited as well as loans given to its own Directors at interest at the rate of 10 per cent. 8. On the other hand, the High Court has simply quoted from its own judgment in the case of Commissioner of Income Tax-I, Ludhiana v. M/s. Abhishek Industries Limited, Ludhiana [ITA No. 110/2005 decided on 04.08.2006]. On that basis, it has held that when loans were taken from the banks at which interest was paid for the purposes of business, the interest thereon could not be claimed as business expenditure. 9. We are of the opinion that such an approach is clearly faulty in law and cannot be countenanced. 10. Insofar as loans to the sister concern / subsidiary company are concerned, law in this behalf is recapitulated by this Court in the case of S.A. Builders Ltd. v. Commissioner of Income Tax (Appeals) and Another [2007 (288) ITR 1 (SC)]. After taking note of and discussing on the scope of commercial expediency, the Court summed up the legal position in the following manner: - ?26. The expression ?commercial expediency? is an expression of wide import and includes such expenditure as a prudent businessman incurs for the purpose of business. The expenditure may not have been incurred under any legal obligation, but yet it is allowable as a business expenditure if it was incurred on grounds of commercial expediency. 27. No doubt, as held in Madhav Prasad Jatia v. CIT [1979 (118) ITR 200 (SC)], if the borrowed amount was donated for some sentimental or personal reasons and not on the ground of commercial expediency, the interest thereon could not have been allowed under section 36(1)(iii) of the Act. In Madhav Prasads case [1979 (118) ITR 200 (SC)], the borrowed amount was donated to a college with a view to commemorate the memory of the assessees deceased husband after whom the college was to be named, it was held by this court that the interest on the borrowed fund in such a case could not be allowed, as it could not be said that it was for commercial expediency. 28. Thus, the ratio of Madhav Prasad Jatias case [1979 (118) ITR 200 (SC)] is that the borrowed fund advanced to a third party should be for commercial expediency if it is sought to be allowed under section 36(1)(iii) of the Act. 29. In the present case, neither the High Court nor the Tribunal nor other authorities have examined whether the amount advanced to the sister concern was by way of commercial expediency. 30. It has been repeatedly held by this court that the expression ?for the purpose of business? is wider in scope than the expression ?for the purpose of earning profits? vide CIT v. Malayalam Plantations Ltd. [1964 53 ITR 140 (SC), CIT v. Birla Cotton Spinning and Weaving Mills Ltd. [1971 82 ITR 166 (SC)], etc.? 11. In the process, the Court also agreed that the view taken by the Delhi High Court in CIT v. Dalmia Cement (B.) Ltd. [2002 (254) ITR 377 ] wherein the High Court had held that once it is established that there is nexus between the expenditure and the purpose of business (which need not necessarily be the business of the assessee itself), the Revenue cannot justifiably claim to put itself in the arm-chair of the businessman or in the position of the Board of Directors and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. It further held that no businessman can be compelled to maximize his profit and that the income tax authorities must put themselves in the shoes of the assessee and see how a prudent businessman would act. The authorities must not look at the matter from their own view point but that of a prudent businessman. 12. Applying the aforesaid ratio to the facts of this case as already noted above, it is manifest that the advance to M/s. Hero Fibres Limited became imperative as a business expediency in view of the undertaking given to the financial institutions by the assessee to the effect that it would provide additional margin to M/s. Hero Fibres Limited to meet the working capital for meeting any cash loses. It would also be significant to mention at this stage that, subsequently, the assessee company had off-loaded its share holding in the said M/s. Hero Fibres Limited to various companies of Oswal Group and at that time, the assessee company not only refunded back the entire loan given to M/s. Hero Fibres Limited by the assessee but this was refunded with interest. In the year in which the aforesaid interest was received, same was shown as income and offered for tax. 13. Insofar as the loans to Directors are concerned, it could not be disputed by the Revenue that the assessee had a credit balance in the Bank account when the said advance of Rs. 34 lakhs was given. Remarkably, as observed by the CIT (Appeal) in his order, the company had reserve/surplus to the tune of almost 15 crores and, therefore, the assessee company could in any case, utilise those funds for giving advance to its Directors. 14.
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668 |
Devinder Singh Vs. State Of Punjab
|
view that enquiry by Rule 4 must precede the issuance of notification under Section 4(1) of the Act. Furthermore as indicated before certain matters which are required to be done under Rule 4 can not be done because the officer or the person authorised by him would have no authority unless notification under Section 4 is issued.” 42. Repelling a contention that the provisions of Sections 6 to 37 are not required to be complied with in view of Section 39 thereof, it was held: “This Section, in our opinion, has no relevance for determining whether to be a proper acquisition, enquiry contemplated under Rule 4 must precede issuance of the notification under Section 4 of the Act.” 43. The lands in question are recorded as Shahi lands. It is not in dispute that they are agricultural lands. The Act contemplates that such lands may not be acquired. 44. We may notice that in Collector (District Magistrate) Allahabad and Another etc. v. Raja Ram Jaiswal etc., (1985) 3 SCC 1 ] this Court held that such a contention requires an in depth study, stating: “27. The validity of the impugned notification was also challenged on the ground that even though the acquisition is for the Sammelan, a company, the notification was issued without first complying with the provisions of Rule 4 of the Land Acquisition (Companies) Rules, 1963. The High Court has negatived this challenge. We must frankly confess that the contention canvassed by Mr. Nariman in this behalf would necessitate an indepth examination of the contention. However, we consider it unnecessary in this case to undertake this exercise because the judgment of the High Court is being upheld for the additional reason that the acquisition in this case was mala fide. Therefore, we do not propose to examine the contention under this head.” It is, on that premise, we have undertaken some study in this behalf. 45. The decision of this Court in Somawanti (supra) holding that the stage at which Rule 4 is required to be complied with is not the stage prior to issuance of a notification under Section 4 of the Act, but declaration under Section 6 does not appear to be correct from the decisions of this Court in Patel Chaturbhai Narsibhai (supra) and Wahab Uddin (supra), the earlier binding precedent, with utmost respect, having not been taken into consideration in its entirety. 46. In Abdul Husein Tayabali & Others v. State of Gujarat & Others 1968 (1) SCR 597 ], this Court observed: “Next it was urged that the inquiry under Rule 4 has to be held after the notification under section 4 is issued and not before and therefore the inquiry held by Master was not valid. We do not find anything in Rule 4 or in any other Rule to warrant such a proposition. The inquiry, the report to be made consequent upon such inquiry, obtaining the opinion of the Land Acquisition Committee, all these are intended to enable the Government to come to a tentative conclusion that the lands in question are or are likely to be needed for a public purpose and to issue thereafter section 4 notification”. 47. In Srinivasa Cooperative House Building Society Ltd. v. Madam Gurumurthy Sastry and Others [(1994) 4 SCC 675] , noticing Somavanti (supra) wherein it was held that the manufacturing of the articles was for the benefit of the community and to save substantive part of foreign exchange and staff quarters to workmen, it was held: “On the other hand, in the case of an acquisition for a company, the compensation has to be paid by the company. In such a case there can be an agreement under Section 41 for transfer of the land acquired by the Government to the company on payment of the cost of acquisition, as also other matters. The agreement contemplated by Section 41 is to be entered into between the company and the appropriate Government only after the latter is satisfied about the purpose of the proposed acquisition, and subject to the condition precedent that the previous consent of the appropriate Government has been given to the acquisition. Section 6 is in terms, made subject to the provisions of Part VII of the Act. The declaration for acquisition for a company shall not be made unless the compensation to be awarded for the property is to be paid by a company. In the case of an acquisition for a company simipliciter, the declaration cannot be made without satisfying the requirements of Part VII. But that does not necessarily mean that an acquisition for a company for a public purpose cannot be made otherwise than under the provisions of Part VII, if the cost or a portion of the cost of the acquisition is to come out of public funds. In other words, the essential condition for acquisition is for a public purpose and that the cost of acquisition should be borne, wholly or in part, out of public funds. Hence an acquisition for a company may also be made for a public purpose, within the meaning of the Act, if a part or the whole of the cost of acquisition is met by public funds. If, on the other hand, the acquisition, for a company is to be made at the cost entirely of the company itself, such an acquisition comes under the provisions of Part VII.” 48. The approach of the High Court in this behalf, in our opinion, is totally erroneous. A provision of a statute is either mandatory or directory. Even if a provision is directory, the same should be substantially complied with. It cannot be ignored in its entirety only because the provision is held to be directory and not an imperative one. 49. In this case admittedly there has been no compliance of Rule 4. If Rule 4 has not been complied with, the exercise of jurisdiction under Part VII must be held to have been erroneous.50. For the reasons aforementioned, the
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1[ds]The approach of the High Court in this behalf, in our opinion, is totally erroneous. A provision of a statute is either mandatory or directory. Even if a provision is directory, the same should be substantially complied with. It cannot be ignored in its entirety only because the provision is held to be directory and not an imperativethis case admittedly there has been no compliance of Rule 4. If Rule 4 has not been complied with, the exercise of jurisdiction under Part VII must be held to have been erroneous.
| 1 | 9,004 |
### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
view that enquiry by Rule 4 must precede the issuance of notification under Section 4(1) of the Act. Furthermore as indicated before certain matters which are required to be done under Rule 4 can not be done because the officer or the person authorised by him would have no authority unless notification under Section 4 is issued.” 42. Repelling a contention that the provisions of Sections 6 to 37 are not required to be complied with in view of Section 39 thereof, it was held: “This Section, in our opinion, has no relevance for determining whether to be a proper acquisition, enquiry contemplated under Rule 4 must precede issuance of the notification under Section 4 of the Act.” 43. The lands in question are recorded as Shahi lands. It is not in dispute that they are agricultural lands. The Act contemplates that such lands may not be acquired. 44. We may notice that in Collector (District Magistrate) Allahabad and Another etc. v. Raja Ram Jaiswal etc., (1985) 3 SCC 1 ] this Court held that such a contention requires an in depth study, stating: “27. The validity of the impugned notification was also challenged on the ground that even though the acquisition is for the Sammelan, a company, the notification was issued without first complying with the provisions of Rule 4 of the Land Acquisition (Companies) Rules, 1963. The High Court has negatived this challenge. We must frankly confess that the contention canvassed by Mr. Nariman in this behalf would necessitate an indepth examination of the contention. However, we consider it unnecessary in this case to undertake this exercise because the judgment of the High Court is being upheld for the additional reason that the acquisition in this case was mala fide. Therefore, we do not propose to examine the contention under this head.” It is, on that premise, we have undertaken some study in this behalf. 45. The decision of this Court in Somawanti (supra) holding that the stage at which Rule 4 is required to be complied with is not the stage prior to issuance of a notification under Section 4 of the Act, but declaration under Section 6 does not appear to be correct from the decisions of this Court in Patel Chaturbhai Narsibhai (supra) and Wahab Uddin (supra), the earlier binding precedent, with utmost respect, having not been taken into consideration in its entirety. 46. In Abdul Husein Tayabali & Others v. State of Gujarat & Others 1968 (1) SCR 597 ], this Court observed: “Next it was urged that the inquiry under Rule 4 has to be held after the notification under section 4 is issued and not before and therefore the inquiry held by Master was not valid. We do not find anything in Rule 4 or in any other Rule to warrant such a proposition. The inquiry, the report to be made consequent upon such inquiry, obtaining the opinion of the Land Acquisition Committee, all these are intended to enable the Government to come to a tentative conclusion that the lands in question are or are likely to be needed for a public purpose and to issue thereafter section 4 notification”. 47. In Srinivasa Cooperative House Building Society Ltd. v. Madam Gurumurthy Sastry and Others [(1994) 4 SCC 675] , noticing Somavanti (supra) wherein it was held that the manufacturing of the articles was for the benefit of the community and to save substantive part of foreign exchange and staff quarters to workmen, it was held: “On the other hand, in the case of an acquisition for a company, the compensation has to be paid by the company. In such a case there can be an agreement under Section 41 for transfer of the land acquired by the Government to the company on payment of the cost of acquisition, as also other matters. The agreement contemplated by Section 41 is to be entered into between the company and the appropriate Government only after the latter is satisfied about the purpose of the proposed acquisition, and subject to the condition precedent that the previous consent of the appropriate Government has been given to the acquisition. Section 6 is in terms, made subject to the provisions of Part VII of the Act. The declaration for acquisition for a company shall not be made unless the compensation to be awarded for the property is to be paid by a company. In the case of an acquisition for a company simipliciter, the declaration cannot be made without satisfying the requirements of Part VII. But that does not necessarily mean that an acquisition for a company for a public purpose cannot be made otherwise than under the provisions of Part VII, if the cost or a portion of the cost of the acquisition is to come out of public funds. In other words, the essential condition for acquisition is for a public purpose and that the cost of acquisition should be borne, wholly or in part, out of public funds. Hence an acquisition for a company may also be made for a public purpose, within the meaning of the Act, if a part or the whole of the cost of acquisition is met by public funds. If, on the other hand, the acquisition, for a company is to be made at the cost entirely of the company itself, such an acquisition comes under the provisions of Part VII.” 48. The approach of the High Court in this behalf, in our opinion, is totally erroneous. A provision of a statute is either mandatory or directory. Even if a provision is directory, the same should be substantially complied with. It cannot be ignored in its entirety only because the provision is held to be directory and not an imperative one. 49. In this case admittedly there has been no compliance of Rule 4. If Rule 4 has not been complied with, the exercise of jurisdiction under Part VII must be held to have been erroneous.50. For the reasons aforementioned, the
### Response:
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669 |
Madhya Pradesh Industries Ltd Vs. The Income-Tax Officer, Nagpur
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an assessee to disclose fully and truly all material facts necessary for his assessment for that year. Both these conditions are conditions precedent to be satisfied before the Income-tax Officer could have jurisdiction to issue a notice for the assessment or re-assessment beyond the period of four years but within the period of eight years, from the end of the year in question.Proceeding further the learned Judge observed:"The position therefore is that if there were in fact some reasonable grounds for thinking that there had been any nondisclosure as regards any primary fact, which could have a material bearing on the question of under-assessment that would be sufficient to give jurisdiction to the Income-tax Officer to issue the notices under Section 34. Whether these grounds were adequate or not for arriving at the conclusion that there was a non-disclosure of material facts would not be open for the Courts investigation. In other words, all that is necessary to give this special jurisdiction is that the Income-tax Officer had when he assumed jurisdiction some prima facie grounds for thinking that there had been some non-disclosure of material facts.12. Shah, J., (one of us) in his dissenting judgment has observed that the expression has reason to believe in Section 34 (1) (a) of the Indian Income-tax Act does not mean a purely subjective satisfaction of the Income-tax Officer but predicates the existence of reasons on which such belief has to be founded. That belief, therefore, cannot be founded on mere suspicion and must be based on evidence and any question as to the adequacy of such evidence is wholly immaterial at that stage. He further observed that where the existence of reasonable belief that there had been under-assessment due to non-disclosure by the assessee, which is a condition precedent to exercise of the power under Sec. 34 (1) (a) is asserted by the assessing authority and the record prima facie supports its existence, any enquiry as to whether the authority could reasonably hold the belief that the under-assessment was due to non-disclosure by the assessee of material facts necessary for the assessment must, be barred.13. In S. Narayanappa v. Commr. of Income-tax, Bangalore, (1967) 63 ITR 219 = (AIR 1967 SC 523 ) this Court held that the two conditions must be satisfied in order to confer jurisdiction on the Officer to issue the notice under Section 34 of the Income-tax Act in respect of assessments beyond the period of four years, but within a period of eight years, from the end of the relevant year, viz., (I) the Income-tax Officer must have reason to believe that income, profits or gains chargeable to income-tax had been under-assessed and (ii) he must have reason to believe that such under-assessment had occurred by reasons of either (a) omission or failure on the part of the assessee to make a return of his income under Section 22 or (b) omission or failure on the part of the assessee to disclose fully and truly all the material facts necessary for his assessment for that year. Both these conditions are conditions precedent to be satisfied before the Income-tax Officer acquires jurisdiction to issue a notice under the section. If there are in fact some reasonable grounds for the Income-tax Officer to believe that there had been any non-disclosure as regards any fact, which could have a material bearing on the question of under-assessment, that would be sufficient to give jurisdiction to the Income-tax Officer to issue the notice under Section 34. Whether these grounds are adequate or not is not a matter for the Court to investigate. In other words, the sufficiency of the grounds which induced the Income-tax Officer to act is not a justiciable issue. It is of course open for the assessee to contend that the Income-tax Officer did not hold the belief that there had been such non-disclosure. In other words, the existence of the belief can be challenged by the assessee but not the sufficiency of the reasons for the belief. Therein it was observed that the expression reason to believe in Section 34 does not mean purely subjective satisfaction on the part of the Income-tax Officer. The belief must be held in good faith: it cannot be merely a pretence. It is open to the Court to examine whether the reasons for the belief have a rational connection or a relevant bearing to the formation of that belief are not extraneous or irrelevant to the purpose of the section. To this limited extent, the action of the Income-tax Officer in starting proceedings under Section 34 of the Act is open to challenge in a Court of law.14. The same view was again expressed by this Court in Kantamani Venkata Narayana and Sons v. First Venkata Narayana and Sons v. First Additional Income-tax Officer, Rajahmundry, (1967) 63 ITR 638 = (AIR 1967 SC 587 ).15.In the cases, the company in its writ petitions had repudiated the assertion of the Income-tax Officer that he had reason to believe that due to the omission or failure on the part of the company to give material facts, some income had escaped assessment. Under those circumstances one would have expected the officer who issued the notices under Section 34 (1)( (A) to file an affidavit setting out the circumstances under which he formed the necessary belief. We were told that one Mr. Pandey had issued the notices in question .That officer had not filed any affidavit in these proceedings. The proceedings recorded by him before issuing the notices have not been produced nor his report to the Commissioner or even the Commissioners sanction has not been produced. Hence it is not possible to hold that the Income-tax Officer had any reason to form the belief in question or the reasons before him were relevant for the purpose. We have no basis before us to hold that the Income-tax Officer had jurisdiction to issue the impugned notices. Hence the proceedings taken by him have to be quashed.
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1[ds]15.In the cases, the company in its writ petitions had repudiated the assertion of the Income-tax Officer that he had reason to believe that due to the omission or failure on the part of the company to give material facts, some income had escaped assessment. Under those circumstances one would have expected the officer who issued the notices under Section 34 (1)( (A) to file an affidavit setting out the circumstances under which he formed the necessary belief. We were told that one Mr. Pandey had issued the notices in question .That officer had not filed any affidavit in these proceedings. The proceedings recorded by him before issuing the notices have not been produced nor his report to the Commissioner or even the Commissioners sanction has not been produced. Hence it is not possible to hold that the Income-tax Officer had any reason to form the belief in question or the reasons before him were relevant for the purpose. We have no basis before us to hold that the Income-tax Officer had jurisdiction to issue the impugned notices. Hence the proceedings taken by him have to be quashed.
| 1 | 3,403 |
### Instruction:
Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0).
### Input:
an assessee to disclose fully and truly all material facts necessary for his assessment for that year. Both these conditions are conditions precedent to be satisfied before the Income-tax Officer could have jurisdiction to issue a notice for the assessment or re-assessment beyond the period of four years but within the period of eight years, from the end of the year in question.Proceeding further the learned Judge observed:"The position therefore is that if there were in fact some reasonable grounds for thinking that there had been any nondisclosure as regards any primary fact, which could have a material bearing on the question of under-assessment that would be sufficient to give jurisdiction to the Income-tax Officer to issue the notices under Section 34. Whether these grounds were adequate or not for arriving at the conclusion that there was a non-disclosure of material facts would not be open for the Courts investigation. In other words, all that is necessary to give this special jurisdiction is that the Income-tax Officer had when he assumed jurisdiction some prima facie grounds for thinking that there had been some non-disclosure of material facts.12. Shah, J., (one of us) in his dissenting judgment has observed that the expression has reason to believe in Section 34 (1) (a) of the Indian Income-tax Act does not mean a purely subjective satisfaction of the Income-tax Officer but predicates the existence of reasons on which such belief has to be founded. That belief, therefore, cannot be founded on mere suspicion and must be based on evidence and any question as to the adequacy of such evidence is wholly immaterial at that stage. He further observed that where the existence of reasonable belief that there had been under-assessment due to non-disclosure by the assessee, which is a condition precedent to exercise of the power under Sec. 34 (1) (a) is asserted by the assessing authority and the record prima facie supports its existence, any enquiry as to whether the authority could reasonably hold the belief that the under-assessment was due to non-disclosure by the assessee of material facts necessary for the assessment must, be barred.13. In S. Narayanappa v. Commr. of Income-tax, Bangalore, (1967) 63 ITR 219 = (AIR 1967 SC 523 ) this Court held that the two conditions must be satisfied in order to confer jurisdiction on the Officer to issue the notice under Section 34 of the Income-tax Act in respect of assessments beyond the period of four years, but within a period of eight years, from the end of the relevant year, viz., (I) the Income-tax Officer must have reason to believe that income, profits or gains chargeable to income-tax had been under-assessed and (ii) he must have reason to believe that such under-assessment had occurred by reasons of either (a) omission or failure on the part of the assessee to make a return of his income under Section 22 or (b) omission or failure on the part of the assessee to disclose fully and truly all the material facts necessary for his assessment for that year. Both these conditions are conditions precedent to be satisfied before the Income-tax Officer acquires jurisdiction to issue a notice under the section. If there are in fact some reasonable grounds for the Income-tax Officer to believe that there had been any non-disclosure as regards any fact, which could have a material bearing on the question of under-assessment, that would be sufficient to give jurisdiction to the Income-tax Officer to issue the notice under Section 34. Whether these grounds are adequate or not is not a matter for the Court to investigate. In other words, the sufficiency of the grounds which induced the Income-tax Officer to act is not a justiciable issue. It is of course open for the assessee to contend that the Income-tax Officer did not hold the belief that there had been such non-disclosure. In other words, the existence of the belief can be challenged by the assessee but not the sufficiency of the reasons for the belief. Therein it was observed that the expression reason to believe in Section 34 does not mean purely subjective satisfaction on the part of the Income-tax Officer. The belief must be held in good faith: it cannot be merely a pretence. It is open to the Court to examine whether the reasons for the belief have a rational connection or a relevant bearing to the formation of that belief are not extraneous or irrelevant to the purpose of the section. To this limited extent, the action of the Income-tax Officer in starting proceedings under Section 34 of the Act is open to challenge in a Court of law.14. The same view was again expressed by this Court in Kantamani Venkata Narayana and Sons v. First Venkata Narayana and Sons v. First Additional Income-tax Officer, Rajahmundry, (1967) 63 ITR 638 = (AIR 1967 SC 587 ).15.In the cases, the company in its writ petitions had repudiated the assertion of the Income-tax Officer that he had reason to believe that due to the omission or failure on the part of the company to give material facts, some income had escaped assessment. Under those circumstances one would have expected the officer who issued the notices under Section 34 (1)( (A) to file an affidavit setting out the circumstances under which he formed the necessary belief. We were told that one Mr. Pandey had issued the notices in question .That officer had not filed any affidavit in these proceedings. The proceedings recorded by him before issuing the notices have not been produced nor his report to the Commissioner or even the Commissioners sanction has not been produced. Hence it is not possible to hold that the Income-tax Officer had any reason to form the belief in question or the reasons before him were relevant for the purpose. We have no basis before us to hold that the Income-tax Officer had jurisdiction to issue the impugned notices. Hence the proceedings taken by him have to be quashed.
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670 |
NATIONAL INSTITUTE OF TECHNOLOGY & ANOTHER Vs. OM PRAKASH RAHI & OTHERS
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followed, neither selection committee was constituted nor their suitability was adjudged and also there is no approval of the Board of Governors which is the requirement of law under the Act 2007. 24. The Director who is not even the authority competent under the provisions of the Act, 2007 straightaway, on its own discretion, without following the procedure prescribed by law, passed orders in favour of each of the respondent teachers on mere completion of three years service in the AGP Rs.8000 and placed them in the higher pay band of Rs.37400--67000 with AGP Rs.9000 and re- designation of Associate Professor. One of the specimens (copy of the order passed by the Director), has been reproduced hereinabove, which in itself, depicts that the Director, who is not the authority competent under the Act, 2007 passed orders without due compliance of the procedure prescribed under the Office Memorandum dated 14th March, 2012 and that was the reason for which MHRD declined to approve such appointments by its communication dated 12th February 2018. 25. The statute was later enacted vide notification dated 23rd April, 2009 in exercise of powers under sub--section (1) of Section 26 of the Act 2007. Under Section 13(1)(d), the Board is the appointing authority for the academic staff in the post of Lecturer or above. At the same time, the Central Government, with the prior approval of the visitor, in exercise of power under sub--section (1) of Section 26 of the Act 2007, framed the first statute for NITs and Director, as an Officer of the Institute, has been empowered under clause 17 of the statute to employ teaching supporting staff and discharge all other administrative functions delegated by the authority. 26. Indisputedly, under the present scheme of the Act 2007, the first statute came to be introduced by notification dated 23rd April, 2009 followed by later amendments made vide notification dated 21st July, 2017. The power for appointment of teacher is vested only with the Board of Governors obviously on the recommendations made by the selection committee. In the present scheme of the Act, 2007 of which a reference has been made, the orders passed by the Director of placing the higher pay band of Rs. 37400--67000 with AGP Rs.9000 and re--designated as Associate Professor to each of the respondent teachers cannot be said to be in accordance with the procedure prescribed for CAS in terms of the guidelines issued by MHRD dated 14th March, 2012 and 18th March, 2013 having not been followed by the Officer of the institution, i.e. Director, in passing orders which were impugned before the High Court that indeed cannot be approved by this Court. 27. The Division Bench of the High Court has proceeded on the premise that after the Act, 2007 has come into force, MHRD is not competent to issue circulars/guidelines of which a reference has been made dated 14th March, 2012 and 18th March 2013, which is completely misplaced for the reason that after the Act, 2007 came into force, the appellant--institution was taken over by the Central Government and being fully funded institution by the Central Government, the CAS was introduced by MHRD only for accelerated promotion and was not in contradistinction to the scheme for appointment available to the teachers under the provisions of the Act 2007. At the same time, the respondent teachers were granted the benefit of AGP Rs.8000 under the same guidelines issued by the MHRD dated 14th March, 2012 and 18th March, 2013 that too on the recommendations of the selection committee and with the approval of the Board of Governors of NIT, Hamirpur, in the given facts and circumstances, to hold that the benefits once availed under the guidelines dated 14th March, 2012 and 18th March, 2013 by the respondent teachers while seeking revision of AGP Rs.8000, the very scheme will not be applicable while considering for AGP Rs.9000 and for re--designation as Associate Professor is otherwise not sustainable in law. 28. The Division Bench has further committed an error in recording a finding that since the statute pursuant to which the eligibility conditions for appointment have been introduced by notification dated 21st July, 2017 is prospective in character and earlier appointments made thereto have to be in terms of the guidelines issued by MHRD dated 31st December 2008 for the reason that the guidelines issued by the MHRD dated 31st December, 2008 are not applicable so far as the NITs are concerned and this fact was clarified by the MHRD in its later guidelines dated 18th August, 2009 followed by 14th March, 2012 and this fact has been completely overlooked by the Division Bench while placing reliance on the guidelines dated 31st December, 2008. 29. We would like to observe that the guidelines issued by the MHRD from time to time for revision of pay structure and re- designation of the teachers in NITs are in the form of accelerated promotions, remain co--terminus with the person and are not related to post based promotions under the relevant recruitment rules, however, such scheme is not available under the Act, 2007 and after the amendment notification dated 21st July, 2017, Schedule E has been appended in exercise of power under the clause 23(5)(a) of the statute laying down the qualifications and other terms and conditions of appointment of academic staff to be made through open advertisement on the recommendations of the selection committee until exempted under the scheme of these rules. 30. To clarify it further, CAS scheme by its very nomenclature called Career Advancement Scheme introduced for teachers like Assured Career Progression Scheme (ACP), later called MACP for Central Government employees to overcome the problem of stagnation and hardship faced due to lack of adequate promotion avenues, it nowhere tinker with the conditions of eligibility for appointment to the cadre posts included in schedule E annexed to the statute pursuant to which qualifications and other terms and conditions of appointment of academic staff are included vide notification dated 21st July 2017.
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1[ds]21. It will be relevant to note that eligibility has been prescribed under the relevant directives issued by MHRD dated 18th August, 2009 followed by 14th March, 2012 with a clear stipulation that financial upgradation in terms of 6th Central Pay Commission shall be extended co--terminus to the teacher, after going through the formal selection process, in terms of the formation of the selection committee provided under the Act, 2007 and the statutes of NITs to examine the candidature and ensure overall suitability of the teacher on fulfilment of the relevant conditions for grant of upgradation of pay/higher AGP/re-designation, as the case may be.22. It is not disputed that each of the respondent teachers was granted financial benefit of the AGP Rs.8000 in terms of MHRD guidelines dated 14th March, 2012 followed by 18th March, 2013 based on the recommendations of the selection committee constituted followed with interview and approval of Board of Governors to the post of Lecturer(Selection Grade) vide Office order dated 25th June, 2013 and 12th November, 2013 in the pay scale of Rs. 12000-18300(corresponding to AGP Rs.8000 in 6th Central Pay Commission).23. But while placing in the higher pay band of Rs. 37400--67000 with AGP Rs.9000 and re--designation as Associate Professor, no procedure was followed, neither selection committee was constituted nor their suitability was adjudged and also there is no approval of the Board of Governors which is the requirement of law under the Act 2007.24. The Director who is not even the authority competent under the provisions of the Act, 2007 straightaway, on its own discretion, without following the procedure prescribed by law, passed orders in favour of each of the respondent teachers on mere completion of three years service in the AGP Rs.8000 and placed them in the higher pay band of Rs.37400--67000 with AGP Rs.9000 and re- designation of Associate Professor. One of the specimens (copy of the order passed by the Director), has been reproduced hereinabove, which in itself, depicts that the Director, who is not the authority competent under the Act, 2007 passed orders without due compliance of the procedure prescribed under the Office Memorandum dated 14th March, 2012 and that was the reason for which MHRD declined to approve such appointments by its communication dated 12th February 2018.26. Indisputedly, under the present scheme of the Act 2007, the first statute came to be introduced by notification dated 23rd April, 2009 followed by later amendments made vide notification dated 21st July, 2017. The power for appointment of teacher is vested only with the Board of Governors obviously on the recommendations made by the selection committee. In the present scheme of the Act, 2007 of which a reference has been made, the orders passed by the Director of placing the higher pay band of Rs. 37400--67000 with AGP Rs.9000 and re--designated as Associate Professor to each of the respondent teachers cannot be said to be in accordance with the procedure prescribed for CAS in terms of the guidelines issued by MHRD dated 14th March, 2012 and 18th March, 2013 having not been followed by the Officer of the institution, i.e. Director, in passing orders which were impugned before the High Court that indeed cannot be approved by this Court.27. The Division Bench of the High Court has proceeded on the premise that after the Act, 2007 has come into force, MHRD is not competent to issue circulars/guidelines of which a reference has been made dated 14th March, 2012 and 18th March 2013, which is completely misplaced for the reason that after the Act, 2007 came into force, the appellant--institution was taken over by the Central Government and being fully funded institution by the Central Government, the CAS was introduced by MHRD only for accelerated promotion and was not in contradistinction to the scheme for appointment available to the teachers under the provisions of the Act 2007. At the same time, the respondent teachers were granted the benefit of AGP Rs.8000 under the same guidelines issued by the MHRD dated 14th March, 2012 and 18th March, 2013 that too on the recommendations of the selection committee and with the approval of the Board of Governors of NIT, Hamirpur, in the given facts and circumstances, to hold that the benefits once availed under the guidelines dated 14th March, 2012 and 18th March, 2013 by the respondent teachers while seeking revision of AGP Rs.8000, the very scheme will not be applicable while considering for AGP Rs.9000 and for re--designation as Associate Professor is otherwise not sustainable in law.28. The Division Bench has further committed an error in recording a finding that since the statute pursuant to which the eligibility conditions for appointment have been introduced by notification dated 21st July, 2017 is prospective in character and earlier appointments made thereto have to be in terms of the guidelines issued by MHRD dated 31st December 2008 for the reason that the guidelines issued by the MHRD dated 31st December, 2008 are not applicable so far as the NITs are concerned and this fact was clarified by the MHRD in its later guidelines dated 18th August, 2009 followed by 14th March, 2012 and this fact has been completely overlooked by the Division Bench while placing reliance on the guidelines dated 31st December, 2008.29. We would like to observe that the guidelines issued by the MHRD from time to time for revision of pay structure and re- designation of the teachers in NITs are in the form of accelerated promotions, remain co--terminus with the person and are not related to post based promotions under the relevant recruitment rules, however, such scheme is not available under the Act, 2007 and after the amendment notification dated 21st July, 2017, Schedule E has been appended in exercise of power under the clause 23(5)(a) of the statute laying down the qualifications and other terms and conditions of appointment of academic staff to be made through open advertisement on the recommendations of the selection committee until exempted under the scheme of these rules.30. To clarify it further, CAS scheme by its very nomenclature called Career Advancement Scheme introduced for teachers like Assured Career Progression Scheme (ACP), later called MACP for Central Government employees to overcome the problem of stagnation and hardship faced due to lack of adequate promotion avenues, it nowhere tinker with the conditions of eligibility for appointment to the cadre posts included in schedule E annexed to the statute pursuant to which qualifications and other terms and conditions of appointment of academic staff are included vide notification dated 21st July 2017.
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### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
followed, neither selection committee was constituted nor their suitability was adjudged and also there is no approval of the Board of Governors which is the requirement of law under the Act 2007. 24. The Director who is not even the authority competent under the provisions of the Act, 2007 straightaway, on its own discretion, without following the procedure prescribed by law, passed orders in favour of each of the respondent teachers on mere completion of three years service in the AGP Rs.8000 and placed them in the higher pay band of Rs.37400--67000 with AGP Rs.9000 and re- designation of Associate Professor. One of the specimens (copy of the order passed by the Director), has been reproduced hereinabove, which in itself, depicts that the Director, who is not the authority competent under the Act, 2007 passed orders without due compliance of the procedure prescribed under the Office Memorandum dated 14th March, 2012 and that was the reason for which MHRD declined to approve such appointments by its communication dated 12th February 2018. 25. The statute was later enacted vide notification dated 23rd April, 2009 in exercise of powers under sub--section (1) of Section 26 of the Act 2007. Under Section 13(1)(d), the Board is the appointing authority for the academic staff in the post of Lecturer or above. At the same time, the Central Government, with the prior approval of the visitor, in exercise of power under sub--section (1) of Section 26 of the Act 2007, framed the first statute for NITs and Director, as an Officer of the Institute, has been empowered under clause 17 of the statute to employ teaching supporting staff and discharge all other administrative functions delegated by the authority. 26. Indisputedly, under the present scheme of the Act 2007, the first statute came to be introduced by notification dated 23rd April, 2009 followed by later amendments made vide notification dated 21st July, 2017. The power for appointment of teacher is vested only with the Board of Governors obviously on the recommendations made by the selection committee. In the present scheme of the Act, 2007 of which a reference has been made, the orders passed by the Director of placing the higher pay band of Rs. 37400--67000 with AGP Rs.9000 and re--designated as Associate Professor to each of the respondent teachers cannot be said to be in accordance with the procedure prescribed for CAS in terms of the guidelines issued by MHRD dated 14th March, 2012 and 18th March, 2013 having not been followed by the Officer of the institution, i.e. Director, in passing orders which were impugned before the High Court that indeed cannot be approved by this Court. 27. The Division Bench of the High Court has proceeded on the premise that after the Act, 2007 has come into force, MHRD is not competent to issue circulars/guidelines of which a reference has been made dated 14th March, 2012 and 18th March 2013, which is completely misplaced for the reason that after the Act, 2007 came into force, the appellant--institution was taken over by the Central Government and being fully funded institution by the Central Government, the CAS was introduced by MHRD only for accelerated promotion and was not in contradistinction to the scheme for appointment available to the teachers under the provisions of the Act 2007. At the same time, the respondent teachers were granted the benefit of AGP Rs.8000 under the same guidelines issued by the MHRD dated 14th March, 2012 and 18th March, 2013 that too on the recommendations of the selection committee and with the approval of the Board of Governors of NIT, Hamirpur, in the given facts and circumstances, to hold that the benefits once availed under the guidelines dated 14th March, 2012 and 18th March, 2013 by the respondent teachers while seeking revision of AGP Rs.8000, the very scheme will not be applicable while considering for AGP Rs.9000 and for re--designation as Associate Professor is otherwise not sustainable in law. 28. The Division Bench has further committed an error in recording a finding that since the statute pursuant to which the eligibility conditions for appointment have been introduced by notification dated 21st July, 2017 is prospective in character and earlier appointments made thereto have to be in terms of the guidelines issued by MHRD dated 31st December 2008 for the reason that the guidelines issued by the MHRD dated 31st December, 2008 are not applicable so far as the NITs are concerned and this fact was clarified by the MHRD in its later guidelines dated 18th August, 2009 followed by 14th March, 2012 and this fact has been completely overlooked by the Division Bench while placing reliance on the guidelines dated 31st December, 2008. 29. We would like to observe that the guidelines issued by the MHRD from time to time for revision of pay structure and re- designation of the teachers in NITs are in the form of accelerated promotions, remain co--terminus with the person and are not related to post based promotions under the relevant recruitment rules, however, such scheme is not available under the Act, 2007 and after the amendment notification dated 21st July, 2017, Schedule E has been appended in exercise of power under the clause 23(5)(a) of the statute laying down the qualifications and other terms and conditions of appointment of academic staff to be made through open advertisement on the recommendations of the selection committee until exempted under the scheme of these rules. 30. To clarify it further, CAS scheme by its very nomenclature called Career Advancement Scheme introduced for teachers like Assured Career Progression Scheme (ACP), later called MACP for Central Government employees to overcome the problem of stagnation and hardship faced due to lack of adequate promotion avenues, it nowhere tinker with the conditions of eligibility for appointment to the cadre posts included in schedule E annexed to the statute pursuant to which qualifications and other terms and conditions of appointment of academic staff are included vide notification dated 21st July 2017.
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671 |
Hindustan Lever Ltd., Bombay Vs. The Monopolies & Restrictive Trade Practices
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of reason applicable to a case like the one before us may be simply stated as follows : Firstly, the meaning of the impugned clause or clauses in an agreement said to offend the law must be determined according to law; secondly, the possible effects of such a clause upon competition in the trade to be regulated must be determined. We think that the Commission had rightly applied these rules and found the clauses to be capable of misuse. We think that this was enough to vitiate the impugned clauses. 17. We would like to make it clear that we are really concerned only with the law as we find it in our own statute and can only examine evidence in the light of our own law of evidence. We think that the confusion which may be created by using terms-such as " per se " rule-which could perhaps be more usefully applied to indicate doctrines or to describe practices developed under very different sets of circumstances in other countries with statutory provisions couched in language which differs from that before us, should be avoided as far as possible.Secondly, it was submitted that we should look at evidence of what takes place in the trade under consideration rather than clauses 5 and 9 of the agreement we have considered. We have already indicated the correct procedure in such cases as the one before us. Indeed, we think that a consideration of extraneous evidence is not required at all when the practice complained of is the introduction of clauses conferring wide powers which may be used to impose restrictions contrary to the Act. In such a case, the introduction of clauses constitutes the restrictive practice. Hence, their interpretation is all that we are really concerned with here in accordance with our law. Evidence of what is actually practised could only be relevant for purposes other than a determination of the meaning and the effect which follows logically or reasonably from such determination. 18. Thirdly, it was submitted that, in holding clause 9 to be invalid, the purpose of "equitable distribution ", which imposes a limit on the powers of the company, was overlooked by the Commission. For the reasons already given, we do not think that this supposed limitation reasonably restricts the companys power to decide what to distribute. The company is left entirely to itself to decide what is " equitable distribution ". An interpretation of a document, according to well-established rules, cannot be dispensed with by labelling it as an application of a " per se " doctrine. We think that the clause, as it stands, confers too wide a power and has to be struck down wholly as unreasonable on that ground. 19. Fourthly, our attention was sought to be drawn to the absence of evidence of distortion of competition and the presence of evidence that competition prevails in the market despite these clauses. We have already held such oral evidence to be really unnecessary for judging the possible effects of the clauses. The probability of the effect is only part of the rule of reason to be applied where extraneous evidence is admissible. In the instant case we are only, as already indicated above, concerned with a reasonable and natural interpretation of the clauses of the agreement and their reasonably possible effects.Fifthly, it was submitted that there was clear evidence of public benefit from an equitable distribution in actual practice so that the requirements of a " gate-way " under section 38 were satisfied. We cannot assume public benefit from a mere declaration of intention to exercise a power so as to benefit the public. We are not satisfied, on the evidence actually adduced and placed before us, that this power was necessary so as to benefit the public. 20. Furthermore, we cannot reassess evidence. Actual benefit to the public is a question of fact on which findings cannot be reopened unless some error of law is revealed. No error of law in assessing evidence is disclosed. This is an additional reason for not disturbing the findings of fact recorded by the Commission. 21. Sixthly, it was submitted that the Commission had ignored the last sentence of clause 9 in interpreting it. We have, however, considered it and find that, far from making clause 9 more acceptable and reasonable, the last part of it makes it more objectionable and unreasonable inasmuch as it enhances the powers of the company. 22. Learned counsel for the appellant-company has pointed out that the order of the Commission was to come into force from July 1, 1976, so that the appellant-company had nearly four months to rewrite the agreements which are over four thousand in number. He prays for extension of time for six months from today for executing fresh agreements. It is not really necessary for us to fix any particular time within which the company will print or get new agreements executed on freshly printed forms in accordance with law. That is a matter for parties themselves to each agreement to decide and work out. All that we need make clear is that all agreements which are operative and binding between parties will be so interpreted now as if clause 9 was not there at all and clause 5 was there only in the modified form which omits the last sentence from clause 5 as it originally stood. However, if the company wants to complete any formalities for bringing each individual agreement into line with the law as declared by this court it may do so ; and, it will file, within six months from today an affidavit showing that it has done this. The requirement to file such an affidavit showing compliance will ensure that the company has taken due steps to inform each stockist of the correct legal position. The time given for doing this will not, however, authorise it to act under those parts of the agreement which this court has declared to be illegal. 23.
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0[ds]We do not think that we can isolate the terms of a contract from the actual practice of the company. It is not the case of the company anywhere that the clauses in its agreement with its stockists are to be treated as dead-letter. Its case is that they do not operate as restrictions. The introduction of such clauses in so many agreements meant to regulate relations, either between a principal and an agent or the seller and the stockist who acquires complete proprietary rights in the stock of goods purchased, is itself a trade practiceIt is true that the practice of imposing restrictions under such clauses is one thing and the practice of introducing such clauses is quite another thing. Both may constitute separate practices. Nevertheless, the introduction of such clauses into an agreement between the manufacturer and the seller who purchases and stocks his goods is in itself something practised. It is immaterial that the use of powers under such clauses may constitute another set of practices which depend upon the existence of such clauses as sources or springsIt would be specious reasoning, in such a case, to separate the clauses in the agreement from action under the agreement and then to urge that, as evidence of action under the clauses is meagre or even absent, the clauses are innocuous and should not be modified or struck down because we are only concerned with what is actually being practised under them or with the use that is being made of such clauses and not with what is permissible or possible under the clauses of the agreement of the kind before us. This argument seems to us to overlook the definition of " restrictive trade practice " contained in section 2(o) of the ActIt is clear from a bare perusal of the above-mentioned definition that it is not only the actual practice of a restriction under a clause which is struck by the provisions of the Act, but also a " trade practice " which " may have " the effect of restrictions falling within the mischief provided for. In other words, if the introduction of the clause in itself is a trade practice and could be used to prevent, distort or restrict competition " in any manner " it may be struck downThis definition is wide enough to include any " trade practice " if it is in relation to the carrying on of a trade. It cannot be argued that the introduction of the clauses complained of does not amount to an action which relates to the carrying on of a trade. If the result of that action or what could reasonably flow from it is to restrict trade in the manner indicated, it will, undoubtedly, be struck by the provisions of the ActThe facts of the case before us are entirely different. We are concerned here with a manufacturer of mixed consumer goods of different varieties. The appellant-company produces dehydrogenated oil (known in the market as " Vanaspati "), toilet preparations of various kinds such as soaps, shaving creams, toothpastes and baby milk powder, and animal feeds. The soaps manufactured by it are undoubtedly the main type of goods supplied. But, it manufactures other types of goods too. It can, therefore, compel stockists to buy them, whether stockists want these other goods or not, if the terms of the agreement are to be held to be binding and enforceable. The manufacturer is under no obligation to render any service in relation to maintenance of the goods supplied. The whole trade is completely unlike that of manufacture and sale of motor trucks for which the stockists, selling to the actual consumers, had to, as already pointed out, also have the services of the manufacturers trained personnel for the purposes of maintenance and repair of the vehicles supplied. It would amount to an application of the law in a thoroughly doctrinaire fashion if we were to deduce some general principles, from the very different facts of the Telcos case [1977] 47 Comp Cas 520 (SC) and attempt to apply them to those of the case now before usThus, the contention advanced on behalf of the appellant against a doctrinaire approach in such cases really weighs against the appellant-company. In the case before us, the problem is entirely different. This is not a case in which certain terms of the agreement require to be explained by the facts to which they were meant to be applied. It is a clear case in which the meanings of the clauses are decisiveNo oral evidence could be led to deduce their meaning or to vary it in view of the provisions of sections 91 and 92 of the Evidence Act, the principles of which were, we think, rightly applied by the CommissionThe principle embodied in section 92(6) of the Evidence Act, which was applicable in Telcos case [1977] 47 Comp Cas 520 (SC) is not, for the reasons given above, applicable in the case now before us. Indeed, no attempt has been made by reference to any case law apart from the Telcos case [1977] 47 Comp Cas 520 (SC), which we have distinguished above, to show that extraneous evidence could have been led here in order to apply section 92, proviso (6), of the Evidence Act. In the Telcos case [1977] 47 Comp Cas 520 (SC), this provision was not directly referred to, but, we think, that it could have been applied there. Thus, we think that the basic difficulty, placed before us by learned counsel for the appellant, in the way of examining the plain meaning and effect of clauses 5 and 9 of the distribution stockists agreement does not exist at all in the case now under consideration. We must, therefore, proceed to examine the meanings of these clauses from the point of view of what could be done by the company under them. If what may be done under these clauses could be a restrictive practice, as defined by the Act, it was enough to vitiate them. A clause having been introduced in an agreement entered into, as a part of the settled practice of the company, could be struck by the provisions of section 2(o) of the Act, set out above, quite apart from what is actually done under it. We do not think that any other question is really relevant or need be considered by us at all in such a case. It is not a case in which we could be taken through the oral evidence, as has been attempted to be done, because that is shut out by an application of the provisions of sections 91 and 92 of the Evidence Act if all we need do is to interpret the agreement. We are unable to see why those provisions do not apply here.Not much argument appears to us to be needed to demonstrate that the last sentence in paragraph 5 of the above mentioned clause places the redistribution stockist at the mercy of the company which can dictate to him what amounts of various commodities he " shall purchase and accept from the company " in the form of a total lot supplied to him. The company need only send to the redistribution stockists what it " shall at its discretion send to the redistribution stockists for fulfilling its obligations under this agreement ".The Commission rightly points out that, among agreements the registration of which is compulsory according to the provisions of Chapter V of the Act, under section 33(1)(b) is " any agreement requiring a purchaser of goods, as a condition of such purchase to purchase some other goods ". The last part of clause 5, as we have observed, clearly makes it necessary for the stockist to purchase such goods and in such combination as the company may decide. Hence, it would be struck by section 33(1)(b) of the Act. It has not been shown to have been registered under the ActIf that was so clear, there was no reason why the company should have attempted to clarify by means of its circulars what, according to it, the stockist is free to do under the agreement. Even if the practice of the company by issuing circulars is established, it does not justify the retention of clause 5 in a form which can be used to compel stockists to act on the companys behests, whether reasonable or not. On the other hand, it justifies its clarification by an alteration of it in the manner directed by the Commission so as to make the clause covering price regulation also very clear. The order of the Commission modifying clause 5 only makes the position crystal clear. Inasmuch as clause 5, even before deletion of the last sentence of it by the Commission, expressly gives the stockist the discretion to sell at lower than maximum resale prices stipulated, the agreement was not struck by section 33(1)(b) of the Act. But the deletion of the last sentence was essential to prevent possible misuse of the companys powers, by resort to it, so as to even regulate prices contrary to express provisions found earlier in the clause.Turning now to clause 9 of the agreement, we think that the Commission was right in rejecting the argument that evidence led on behalf of the company was enough to establish that clause 9 fell within one of the de " gateways " provided by section 38 of the Act. A power to impose restrictions falling under this provision had to be justified by the company by actual proof of a public interest which could not be better served without it. The submission that section 38 could be applied here amounts at least to a concession that a clause conferring such wide power upon the manufacturer may be so used as to amount to a restrictive practice. It is the practice of putting in such a clause which has to be justifiedWe are primarily concerned in this case, as we have repeatedly emphasized, with the clear meanings of the two clauses.As the Commission pointed out, it is immaterial that a purchaser from outside may be able to get round clause 9 by purchasing across the counter from the stockist inside a town. The clause itself, however, gives to the company an unreasonably wide power of deciding what is actually fair and equitable distribution. The Commission very rightly points out that this is more properly a part of the duty of governmental authorities which may be entrusted with powers of rationing such consumers goods if this is found to be necessary in public interest. However, before any question of reasonableness of a power to ration any goods is entrusted by any method to any person or authority those goods must be shown to be scarce or in short supply. That was the position in the Telcos case [1977] 47 Comp Cas 520 (SC). Evidence establishing such a need has not been shown to exist. And, in any case, it has to be a very exceptional set of facts indeed which could justify lodging of such a power in the manufacturer. The Commission has dealt with a good deal of evidence to justify its conclusion that the need to justify the lodging of such a power in the company has not been established. We see no reason to disturb itUnder the provisions of section 55 of the Act, an appeal lies to this court only on one of the grounds mentioned in section 100 of the Code of Civil Procedure. It is, therefore, necessary in all such cases for counsel to clearly formulate and direct our attention to only questions of law which arise so that these may be decided. It is not permissible to go over the whole range of evidence led as was attempted before usWe find no objection whatsoever in adopting the rule indicated above in cases to which it appliesWe are unable to see how any law laid down in American decisions, dealing with Anti-trust laws, or in English cases, dealing with agreements in restraint of trade, lay down rules of reason at variance with the ones we are applying here. The rules of reason applicable to a case like the one before us may be simply statedas follows :Firstly, the meaning of the impugned clause or clauses in an agreement said to offend the law must be determined according to law; secondly, the possible effects of such a clause upon competition in the trade to be regulated must be determined. We think that the Commission had rightly applied these rules and found the clauses to be capable of misuse. We think that this was enough to vitiate the impugned clausesWe would like to make it clear that we are really concerned only with the law as we find it in our own statute and can only examine evidence in the light of our own law of evidence. We think that the confusion which may be created by using terms-such as " per se " rule-which could perhaps be more usefully applied to indicate doctrines or to describe practices developed under very different sets of circumstances in other countries with statutory provisions couched in language which differs from that before us, should be avoided as far as, it was submitted that we should look at evidence of what takes place in the trade under consideration rather than clauses 5 and 9 of the agreement we haveconsidered.We have already indicated the correct procedure in such cases as the one before us. Indeed, we think that a consideration of extraneous evidence is not required at all when the practice complained of is the introduction of clauses conferring wide powers which may be used to impose restrictions contrary to the Act. In such a case, the introduction of clauses constitutes the restrictive practice. Hence, their interpretation is all that we are really concerned with here in accordance with our law. Evidence of what is actually practised could only be relevant for purposes other than a determination of the meaning and the effect which follows logically or reasonably from such determinationThirdly, it was submitted that, in holding clause 9 to be invalid, the purpose of "equitable distribution ", which imposes a limit on the powers of the company, was overlooked by theCommission.For the reasons already given, we do not think that this supposed limitation reasonably restricts the companys power to decide what to distribute. The company is left entirely to itself to decide what is " equitable distribution ". An interpretation of a document, according to well-established rules, cannot be dispensed with by labelling it as an application of a " per se " doctrine. We think that the clause, as it stands, confers too wide a power and has to be struck down wholly as unreasonable on that groundFourthly, our attention was sought to be drawn to the absence of evidence of distortion of competition and the presence of evidence that competition prevails in the market despite theseclauses.We have already held such oral evidence to be really unnecessary for judging the possible effects of theclauses.The probability of the effect is only part of the rule of reason to be applied where extraneous evidence is admissible. In the instant case we are only, as already indicated above, concerned with a reasonable and natural interpretation of the clauses of the agreement and their reasonably possible, it was submitted that there was clear evidence of public benefit from an equitable distribution in actual practice so that the requirements of a "gate-way " under section 38were. We cannot assume public benefit from a mere declaration of intention to exercise a power so as to benefit the public. We are not satisfied, on the evidence actually adduced and placed before us, that this power was necessary so as to benefit the publicSixthly, it was submitted that the Commission had ignored the last sentence of clause 9 in interpretingit. Wehave, however, considered it and find that, far from making clause 9 more acceptable and reasonable, the last part of it makes it more objectionable and unreasonable inasmuch as it enhances the powers of the companyIt is not really necessary for us to fix any particular time within which the company will print or get new agreements executed on freshly printed forms in accordance with law. That is a matter for parties themselves to each agreement to decide and work out. All that we need make clear is that all agreements which are operative and binding between parties will be so interpreted now as if clause 9 was not there at all and clause 5 was there only in the modified form which omits the last sentence from clause 5 as it originally stood. However, if the company wants to complete any formalities for bringing each individual agreement into line with the law as declared by this court it may do so ; and, it will file, within six months from today an affidavit showing that it has done this. The requirement to file such an affidavit showing compliance will ensure that the company has taken due steps to inform each stockist of the correct legal position. The time given for doing this will not, however, authorise it to act under those parts of the agreement which this court has declared to be illegalWe have already indicated the correct procedure in such cases as the one before us. Indeed, we think that a consideration of extraneous evidence is not required at all when the practice complained of is the introduction of clauses conferring wide powers which may be used to impose restrictions contrary to the Act. In such a case, the introduction of clauses constitutes the restrictive practice. Hence, their interpretation is all that we are really concerned with here in accordance with our law. Evidence of what is actually practised could only be relevant for purposes other than a determination of the meaning and the effect which follows logically or reasonably from such determinationFor the reasons already given, we do not think that this supposed limitation reasonably restricts the companys power to decide what to distribute. The company is left entirely to itself to decide what is " equitable distribution ". An interpretation of a document, according tod rules, cannot be dispensed with by labelling it as an application of a " per se " doctrine. We think that the clause, as it stands, confers too wide a power and has to be struck down wholly as unreasonable on that groundWe have already held such oral evidence to be really unnecessary for judging the possible effects of theclauses.We cannot assume public benefit from a mere declaration of intention to exercise a power so as to benefit the public. We are not satisfied, on the evidence actually adduced and placed before us, that this power was necessary so as to benefit the publichave, however, considered it and find that, far from making clause 9 more acceptable and reasonable, the last part of it makes it more objectionable and unreasonable inasmuch as it enhances the powers of the companyIt is not really necessary for us to fix any particular time within which the company will print or get new agreements executed on freshly printed forms in accordance with law. That is a matter for parties themselves to each agreement to decide and work out. All that we need make clear is that all agreements which are operative and binding between parties will be so interpreted now as if clause 9 was not there at all and clause 5 was there only in the modified form which omits the last sentence from clause 5 as it originally stood. However, if the company wants to complete any formalities for bringing each individual agreement into line with the law as declared by this court it may do so ; and, it will file, within six months from today an affidavit showing that it has done this. The requirement to file such an affidavit showing compliance will ensure that the company has taken due steps to inform each stockist of the correct legal position. The time given for doing this will not, however, authorise it to act under those parts of the agreement which this court has declared to be
| 0 | 7,492 |
### Instruction:
Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
### Input:
of reason applicable to a case like the one before us may be simply stated as follows : Firstly, the meaning of the impugned clause or clauses in an agreement said to offend the law must be determined according to law; secondly, the possible effects of such a clause upon competition in the trade to be regulated must be determined. We think that the Commission had rightly applied these rules and found the clauses to be capable of misuse. We think that this was enough to vitiate the impugned clauses. 17. We would like to make it clear that we are really concerned only with the law as we find it in our own statute and can only examine evidence in the light of our own law of evidence. We think that the confusion which may be created by using terms-such as " per se " rule-which could perhaps be more usefully applied to indicate doctrines or to describe practices developed under very different sets of circumstances in other countries with statutory provisions couched in language which differs from that before us, should be avoided as far as possible.Secondly, it was submitted that we should look at evidence of what takes place in the trade under consideration rather than clauses 5 and 9 of the agreement we have considered. We have already indicated the correct procedure in such cases as the one before us. Indeed, we think that a consideration of extraneous evidence is not required at all when the practice complained of is the introduction of clauses conferring wide powers which may be used to impose restrictions contrary to the Act. In such a case, the introduction of clauses constitutes the restrictive practice. Hence, their interpretation is all that we are really concerned with here in accordance with our law. Evidence of what is actually practised could only be relevant for purposes other than a determination of the meaning and the effect which follows logically or reasonably from such determination. 18. Thirdly, it was submitted that, in holding clause 9 to be invalid, the purpose of "equitable distribution ", which imposes a limit on the powers of the company, was overlooked by the Commission. For the reasons already given, we do not think that this supposed limitation reasonably restricts the companys power to decide what to distribute. The company is left entirely to itself to decide what is " equitable distribution ". An interpretation of a document, according to well-established rules, cannot be dispensed with by labelling it as an application of a " per se " doctrine. We think that the clause, as it stands, confers too wide a power and has to be struck down wholly as unreasonable on that ground. 19. Fourthly, our attention was sought to be drawn to the absence of evidence of distortion of competition and the presence of evidence that competition prevails in the market despite these clauses. We have already held such oral evidence to be really unnecessary for judging the possible effects of the clauses. The probability of the effect is only part of the rule of reason to be applied where extraneous evidence is admissible. In the instant case we are only, as already indicated above, concerned with a reasonable and natural interpretation of the clauses of the agreement and their reasonably possible effects.Fifthly, it was submitted that there was clear evidence of public benefit from an equitable distribution in actual practice so that the requirements of a " gate-way " under section 38 were satisfied. We cannot assume public benefit from a mere declaration of intention to exercise a power so as to benefit the public. We are not satisfied, on the evidence actually adduced and placed before us, that this power was necessary so as to benefit the public. 20. Furthermore, we cannot reassess evidence. Actual benefit to the public is a question of fact on which findings cannot be reopened unless some error of law is revealed. No error of law in assessing evidence is disclosed. This is an additional reason for not disturbing the findings of fact recorded by the Commission. 21. Sixthly, it was submitted that the Commission had ignored the last sentence of clause 9 in interpreting it. We have, however, considered it and find that, far from making clause 9 more acceptable and reasonable, the last part of it makes it more objectionable and unreasonable inasmuch as it enhances the powers of the company. 22. Learned counsel for the appellant-company has pointed out that the order of the Commission was to come into force from July 1, 1976, so that the appellant-company had nearly four months to rewrite the agreements which are over four thousand in number. He prays for extension of time for six months from today for executing fresh agreements. It is not really necessary for us to fix any particular time within which the company will print or get new agreements executed on freshly printed forms in accordance with law. That is a matter for parties themselves to each agreement to decide and work out. All that we need make clear is that all agreements which are operative and binding between parties will be so interpreted now as if clause 9 was not there at all and clause 5 was there only in the modified form which omits the last sentence from clause 5 as it originally stood. However, if the company wants to complete any formalities for bringing each individual agreement into line with the law as declared by this court it may do so ; and, it will file, within six months from today an affidavit showing that it has done this. The requirement to file such an affidavit showing compliance will ensure that the company has taken due steps to inform each stockist of the correct legal position. The time given for doing this will not, however, authorise it to act under those parts of the agreement which this court has declared to be illegal. 23.
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0
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672 |
M/s. CRRC Corporation Ltd Vs. Metro Link Express for Gandhinagar & Ahmedabad (Mega) Company Ltd
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owned subsidiaries as a composite unit, so much so that the experience of any one of its constituent 100% wholly owned subsidiaries would be construable as its experience. It was proclaimed that the petitioner (respondent no.2 therein) was a Government Company and the owner of its subsidiary companies and that the concept of "government own entity" could not be given a narrow construction so as to exclude its subsidiaries with their experience and that there was no necessity for the formation of a joint venture and consortium for the Government own entity to avail the benefit of the experience of its subsidiary companies. That the acceptance of the petitioner (respondent no.2) therein in the context of the work awarded to it was in accord with public interest, having regard to the overall commercial concept and the demand of expertise, was underlined as well. Noticeably, the process of merger of M/s. CNR Corporation and M/s. CSR Corporation and the integration thereof along with their subsidiaries to metamorphosise into the appellant-corporation is borne out by the coeval records.37. In that view of the matter, the status and the entitlements of the appellant-corporation, as already adjudicated in Consortium of Titagarh Firema Adler SPA (supra), as a single entity bidder in the present tender process would also by the yardstick of simple logic and analogy be available to it. Absence of the words "government owned entity" in clause 4.1, presently under consideration, is of no consequence. The plea of the respondent that the tender conditions involved demand a different perspective in the overall conceptual framework thereof, lacks persuasion. Significantly, in clause 4.1 involved in Consortium of Titagarh Firema Adler SPA (supra), "government owned entity" had been contemplated as one of the bidders in contradistinction to "private entity" and "any combination of such entities" in the form of a joint venture (J.V)..... The expression used in the present clause being "single entity", understandably, it is inclusive of a private as well as a government owned entity. The unit envisaged as a single entity is thus independent of any combination or formation in the form of a J.V. or a Consortium and thus is visualised to be one integral and composite whole. In such a logical premise, a government owned company with its 100% wholly owned subsidiaries has to be comprehended as a single entity, eligible to bid in terms of clause 4.1 of the tender conditions and is to be regarded as single, coherent and homogeneous existence and not a disjointed formation.38. The queries and the clarifications, relatable to the discord, as presented, also in our discernment, do not substantiate the plea of MEGA in any manner whatsoever. The foundation of its rejection of the appellants bid is the clarification to the query mainly at serial No. 50. It is patent therefrom that it was in response to a query made by a subsidiary company to allow for its benefit, the experience of the parent company/group companies to meet the qualification requirement with regard thereto. It was in that context that the clarification furnished was that the subsidiary company/group companies may bid together with the parent company as J.V./Consortium member, for parent/group companys experience to be taken into account. This clarification was extended and applied vis-a-vis the appellant qua clauses Nos. 2.4.1, 2.4.2(a), 2.4.2(b) and 2.4.2.(c) to disqualify it on the ground that on stand alone basis, it was deficient in the experience prescribed and that it could not have availed of the experience of its subsidiaries companies. As rightly contended on behalf of the appellant, we are of the view that this clarification has no application to its case and, therefore, the decision to disqualify it on this ground is apparently arbitrary, discriminatory, unreasonable, illogical and non-transparent, thus rendering the same irreversibly illegal, unjust and unfair. The improvement endeavoured by the respondent in its reply affidavit is belied by the records and is unacceptable. No other view or elucidation of the relevant clauses of the tender conditions is at all possible. The interpretation offered by the respondent and endorsed by the High Court in the contextual framework is thus patently impermissible and absurd.39. Not only the appellant as the record testifies had offered its responses to the clarifications sought for, its status as a government owned corporation, by no means, has been disputed by MEGA. Further, in the face of its demonstrated structural integrity and functional unity qua its subsidiaries with all consequential legal implications, the apprehension of MEGA that the subsidiary companies of the appellant, if necessity so arises, would not be available for the execution of the project, not being a party to the contract, to say the least, is speculative, unfounded, farfetched and wanting in reason and rationale. Whether the subsidiary companies of the appellant would be responsible for the execution of the work is evinced by the formational specifics and functional dynamics of the appellant and its wholly owned subsidiary companies, as noticed in Consortium of Titagarh Firema Adler SPA (supra) in the affirmative and does not call for further dilation. In the face of a forensic analysis of the decisions cited at the Bar in the above adjudication, it is inessential as well to retraverse the same.40. In the wake up of above determination, the impugned disqualification of the appellant on the ground of deficiency, in experience in terms of clause 2.4, is unsustainable in law and on facts being grossly illegal, arbitrary and perverse. As a corollary, the judgment and order of the High Court in challenge is also set-aside. The tender process in view of the above conclusion, would be furthered hereinafter as per the terms and conditions thereof and in accordance with law and taken to its logical end as expeditiously as possible. We make it clear that the present adjudication is confined only to the issue of disqualification of the appellant on the ground of experience on the touchstone of clause 2.4 of the "Eligibility and Qualification Criteria" of "Tender Document" and no other aspect.
|
1[ds]34. A plain reading of clause 4.1 reveals that a bidder can be a single entity or a combination of such entities in the form of a J.V. or a Consortium under an existing agreement or with the intent to enter into such an agreement supported by a letter of intent. Thus a single entity has been construed to be a valid bidder for all intents and purposes.35. Having regard to the magnitude of the project as well as the experience and expertise essential for the quality execution thereof, there seems to be no justification to infer, at the first place, to exclude a government owned entity with its 100% wholly owned subsidiaries to be ineligible to participate in the process. A single entity, in our comprehension, would assuredly include such a government owned entity along with its 100% wholly owned subsidiaries. This is more so on the touchstone of otherwise imperative facilitation of a broad based participation of entities with competing worth and capabilities, in the overall interest of the timely and quality execution of a public project.36. As recorded in Consortium of Titagarh Firema Adler SPA (supra), theis a government owned entity with 100% wholly owned subsidiaries as a composite unit, so much so that the experience of any one of its constituent 100% wholly owned subsidiaries would be construable as its experience. It was proclaimed that the petitioner (respondent no.2 therein) was a Government Company and the owner of its subsidiary companies and that the concept of "government own entity" could not be given a narrow construction so as to exclude its subsidiaries with their experience and that there was no necessity for the formation of a joint venture and consortium for the Government own entity to avail the benefit of the experience of its subsidiary companies. That the acceptance of the petitioner (respondent no.2) therein in the context of the work awarded to it was in accord with public interest, having regard to the overall commercial concept and the demand of expertise, was underlined as well. Noticeably, the process of merger of M/s. CNR Corporation and M/s. CSR Corporation and the integration thereof along with their subsidiaries to metamorphosise into theis borne out by the coeval records.37. In that view of the matter, the status and the entitlements of theas already adjudicated in Consortium of Titagarh Firema Adler SPA (supra), as a single entity bidder in the present tender process would also by the yardstick of simple logic and analogy be available to it. Absence of the words "government owned entity" in clause 4.1, presently under consideration, is of no consequence. The plea of the respondent that the tender conditions involved demand a different perspective in the overall conceptual framework thereof, lacks persuasion. Significantly, in clause 4.1 involved in Consortium of Titagarh Firema Adler SPA (supra), "government owned entity" had been contemplated as one of the bidders in contradistinction to "private entity" and "any combination of such entities" in the form of a joint venture (J.V)..... The expression used in the present clause being "single entity", understandably, it is inclusive of a private as well as a government owned entity. The unit envisaged as a single entity is thus independent of any combination or formation in the form of a J.V. or a Consortium and thus is visualised to be one integral and composite whole. In such a logical premise, a government owned company with its 100% wholly owned subsidiaries has to be comprehended as a single entity, eligible to bid in terms of clause 4.1 of the tender conditions and is to be regarded as single, coherent and homogeneous existence and not a disjointed formation.38. The queries and the clarifications, relatable to the discord, as presented, also in our discernment, do not substantiate the plea of MEGA in any manner whatsoever. The foundation of its rejection of the appellants bid is the clarification to the query mainly at serial No. 50. It is patent therefrom that it was in response to a query made by a subsidiary company to allow for its benefit, the experience of the parent company/group companies to meet the qualification requirement with regard thereto. It was in that context that the clarification furnished was that the subsidiary company/group companies may bid together with the parent company as J.V./Consortium member, for parent/group companys experience to be taken into account. This clarification was extended and appliedthe appellant qua clauses Nos. 2.4.1, 2.4.2(a), 2.4.2(b) and 2.4.2.(c) to disqualify it on the ground that on stand alone basis, it was deficient in the experience prescribed and that it could not have availed of the experience of its subsidiaries companies. As rightly contended on behalf of the appellant, we are of the view that this clarification has no application to its case and, therefore, the decision to disqualify it on this ground is apparently arbitrary, discriminatory, unreasonable, illogical andthus rendering the same irreversibly illegal, unjust and unfair. The improvement endeavoured by the respondent in its reply affidavit is belied by the records and is unacceptable. No other view or elucidation of the relevant clauses of the tender conditions is at all possible. The interpretation offered by the respondent and endorsed by the High Court in the contextual framework is thus patently impermissible and absurd.39. Not only the appellant as the record testifies had offered its responses to the clarifications sought for, its status as a government owned corporation, by no means, has been disputed by MEGA. Further, in the face of its demonstrated structural integrity and functional unity qua its subsidiaries with all consequential legal implications, the apprehension of MEGA that the subsidiary companies of the appellant, if necessity so arises, would not be available for the execution of the project, not being a party to the contract, to say the least, is speculative, unfounded, farfetched and wanting in reason and rationale. Whether the subsidiary companies of the appellant would be responsible for the execution of the work is evinced by the formational specifics and functional dynamics of the appellant and its wholly owned subsidiary companies, as noticed in Consortium of Titagarh Firema Adler SPA (supra) in the affirmative and does not call for further dilation. In the face of a forensic analysis of the decisions cited at the Bar in the above adjudication, it is inessential as well to retraverse the same.40. In the wake up of above determination, the impugned disqualification of the appellant on the ground of deficiency, in experience in terms of clause 2.4, is unsustainable in law and on facts being grossly illegal, arbitrary and perverse. As a corollary, the judgment and order of the High Court in challenge is alsoThe tender process in view of the above conclusion, would be furthered hereinafter as per the terms and conditions thereof and in accordance with law and taken to its logical end as expeditiously as possible. We make it clear that the present adjudication is confined only to the issue of disqualification of the appellant on the ground of experience on the touchstone of clause 2.4 of the "Eligibility and Qualification Criteria" of "Tender Document" and no other aspect.
| 1 | 9,260 |
### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
owned subsidiaries as a composite unit, so much so that the experience of any one of its constituent 100% wholly owned subsidiaries would be construable as its experience. It was proclaimed that the petitioner (respondent no.2 therein) was a Government Company and the owner of its subsidiary companies and that the concept of "government own entity" could not be given a narrow construction so as to exclude its subsidiaries with their experience and that there was no necessity for the formation of a joint venture and consortium for the Government own entity to avail the benefit of the experience of its subsidiary companies. That the acceptance of the petitioner (respondent no.2) therein in the context of the work awarded to it was in accord with public interest, having regard to the overall commercial concept and the demand of expertise, was underlined as well. Noticeably, the process of merger of M/s. CNR Corporation and M/s. CSR Corporation and the integration thereof along with their subsidiaries to metamorphosise into the appellant-corporation is borne out by the coeval records.37. In that view of the matter, the status and the entitlements of the appellant-corporation, as already adjudicated in Consortium of Titagarh Firema Adler SPA (supra), as a single entity bidder in the present tender process would also by the yardstick of simple logic and analogy be available to it. Absence of the words "government owned entity" in clause 4.1, presently under consideration, is of no consequence. The plea of the respondent that the tender conditions involved demand a different perspective in the overall conceptual framework thereof, lacks persuasion. Significantly, in clause 4.1 involved in Consortium of Titagarh Firema Adler SPA (supra), "government owned entity" had been contemplated as one of the bidders in contradistinction to "private entity" and "any combination of such entities" in the form of a joint venture (J.V)..... The expression used in the present clause being "single entity", understandably, it is inclusive of a private as well as a government owned entity. The unit envisaged as a single entity is thus independent of any combination or formation in the form of a J.V. or a Consortium and thus is visualised to be one integral and composite whole. In such a logical premise, a government owned company with its 100% wholly owned subsidiaries has to be comprehended as a single entity, eligible to bid in terms of clause 4.1 of the tender conditions and is to be regarded as single, coherent and homogeneous existence and not a disjointed formation.38. The queries and the clarifications, relatable to the discord, as presented, also in our discernment, do not substantiate the plea of MEGA in any manner whatsoever. The foundation of its rejection of the appellants bid is the clarification to the query mainly at serial No. 50. It is patent therefrom that it was in response to a query made by a subsidiary company to allow for its benefit, the experience of the parent company/group companies to meet the qualification requirement with regard thereto. It was in that context that the clarification furnished was that the subsidiary company/group companies may bid together with the parent company as J.V./Consortium member, for parent/group companys experience to be taken into account. This clarification was extended and applied vis-a-vis the appellant qua clauses Nos. 2.4.1, 2.4.2(a), 2.4.2(b) and 2.4.2.(c) to disqualify it on the ground that on stand alone basis, it was deficient in the experience prescribed and that it could not have availed of the experience of its subsidiaries companies. As rightly contended on behalf of the appellant, we are of the view that this clarification has no application to its case and, therefore, the decision to disqualify it on this ground is apparently arbitrary, discriminatory, unreasonable, illogical and non-transparent, thus rendering the same irreversibly illegal, unjust and unfair. The improvement endeavoured by the respondent in its reply affidavit is belied by the records and is unacceptable. No other view or elucidation of the relevant clauses of the tender conditions is at all possible. The interpretation offered by the respondent and endorsed by the High Court in the contextual framework is thus patently impermissible and absurd.39. Not only the appellant as the record testifies had offered its responses to the clarifications sought for, its status as a government owned corporation, by no means, has been disputed by MEGA. Further, in the face of its demonstrated structural integrity and functional unity qua its subsidiaries with all consequential legal implications, the apprehension of MEGA that the subsidiary companies of the appellant, if necessity so arises, would not be available for the execution of the project, not being a party to the contract, to say the least, is speculative, unfounded, farfetched and wanting in reason and rationale. Whether the subsidiary companies of the appellant would be responsible for the execution of the work is evinced by the formational specifics and functional dynamics of the appellant and its wholly owned subsidiary companies, as noticed in Consortium of Titagarh Firema Adler SPA (supra) in the affirmative and does not call for further dilation. In the face of a forensic analysis of the decisions cited at the Bar in the above adjudication, it is inessential as well to retraverse the same.40. In the wake up of above determination, the impugned disqualification of the appellant on the ground of deficiency, in experience in terms of clause 2.4, is unsustainable in law and on facts being grossly illegal, arbitrary and perverse. As a corollary, the judgment and order of the High Court in challenge is also set-aside. The tender process in view of the above conclusion, would be furthered hereinafter as per the terms and conditions thereof and in accordance with law and taken to its logical end as expeditiously as possible. We make it clear that the present adjudication is confined only to the issue of disqualification of the appellant on the ground of experience on the touchstone of clause 2.4 of the "Eligibility and Qualification Criteria" of "Tender Document" and no other aspect.
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1
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673 |
Rishi Pal and Company Vs. State of Himachal Pradesh and Others
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bid. He deposited 5 per cent thereof immediately and another 8.5 per cent within the stipulated 10 days. On 28-3-1994 his bid was rejected 3. At the same auction held on 16-3-1994 no bid was received for the Shimla-I and Shimla-II units. The Deputy Commissioner wrote on 20-3-1994 to the Excise and Taxation Commissioner that, after the auction of the Rampur-Bushair unit, the bidders had got together and had not made any bid for the auction of the Shimla-I and Shimla-II units, even though these units had been clubbed together. What transpired on 16th March is also evident from the report of the auctions held on that date. The report speaks of the aforesaid pooling and states that no bids were offered; it recommended that "it is extremely essential to pass appropriate orders so that revenue could be kept secured .... In this context holding negotiations appears to be a suitable alternative" The suggestion was accepted and invitations were sent to those who had participated in the aforesaid auction to participate in negotiations for the allotment of the Shimla-I and Shimla-II units. These negotiations took place on 25-3-1994. It appears from the affidavit that was filed by the State before the High Court that an offer was made by one of the negotiating parties in the sum of Rs. 8.50 crores for the Shimla-I and Shimla-II units provided the Rampur-Bushair unit was also tagged on. This was found attractive and the negotiations were adjourned to 3.30 p.m. At that time the parties were told that the Financial Commissioner had decided that the negotiations should be held for the combined Shimla-I and Shimla-II and Rampur-Bushair units and that the parties should make offers accordingly. Three of these parties, including the Contractor, requested for half an hours time to formulate their response. After this lapse of time these parties, including the Contractor; participated in the negotiations and made offers. The offer of Rs. 8.55 crores given by the one of the parties (Respondent 6) was found to be the highest and was recommended for acceptance, which the Financial Commissioner thereafter gave. Accordingly, the Contractor was informed on 28-3-1994 that his bid for the Rampur-Bushair unit had not been approved and that a refund of the amount deposited by him would be made 4. The photostat copy of the proceedings annexed to the affidavit shows the signatures of the representatives of the Contractor both at the morning and the afternoon sessions on 25-3-1994 5. The Contractor filed the writ petition in the High Court challenging the validity of the rejection of his bid and for consequential reliefs. The High Court came to the conclusion that the Financial Commissioner had no power to regroup the vends and also that the proposed negotiations for the Rampur-Bushair unit had not received due publicity. Since, by efflux of time, the High Court could grant no effective relief, it awarded "just and fair compensation" to the Contractor in the sum of Rs. 1 lakh 6. The relevant Rule reads thus "34. (a) The Financial Commissioner reserves the right to grant all or any of the licences mentioned in Rule 1, other than the licences granted on fixed fee, assessed fee or both, by auction or by negotiation or by private contract or by allotment or by calling tenders or by any other arrangement which he may consider expedient (b) The Financial Commissioner further reserves the right to change the mode of granting the licences mentioned in clause (a) of this Rule, prior to the grant of such licences in a financial year, and by an order in writing on record." * The Rule entitles the Financial Commissioner to grant licences by the modes of auction, negotiations, private contract, allotment, tenders and any other a arrangement or mode which he considers expedient. It also entitles the Financial Commissioner, by order in writing, to change the mode of granting the licence prior to its grant for a financial year. We do not find in this Rule, or anywhere else, any restriction in regard to the regrouping of vends. If, for any reason, the bids at an auction cannot be accepted, the Financial Commissioner can decide to resort to negotiations instead. He can do so provided the bids at the auction have not been confirmed. The Financial Commissioner would then be entitled to negotiate for one vend or two vends combined, the objective being to get the maximum revenue for the State. A clause that relates to auctions and permits the Presiding Officer thereat to regroup vends does not imply that the power to do so does not exist in the Financial Commissioner 7. The High Courts observations on the aspect of publicity for the negotiations aforementioned would appear to be uncalled for. We have already indicated what had transpired from 16-3-1994 onwards. All those who had participated in the auction on that date had been given notice of the negotiations that were proposed for 25-3-1995. It is true that those negotiations were originally proposed for Shimla-I and Shimla-II units but it became clear during the proceedings that the revenue of the State would be greater if the Rampur-Bushair unit was combined with the Shimla-I and Shimla-II units. Therefore, the participants in the negotiations were told to return in the afternoon. When informed about the decision in this behalf they asked for some time, which was given, and it was thereafter that the highest amount offered by the other party (Respondent 6) was accepted. There is irrefutable evidence in the form of a photostat copy of the record of the persons present at the negotiations that the Contractor was represented throughout. The Contractor was the highest bidder at the auction for the Rampur-Bushair unit and his bid had not been accepted. He was given notice. In the circumstances, the authorities cannot be faulted at its instance for lack of adequate publicity, considering also the fact that the new financial year when the period of the licences would commence was fast approaching
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1[ds]We have already indicated what had transpired from4 onwards. All those who had participated in the auction on that date had been given notice of the negotiations that were proposed for. It is true that those negotiations were originally proposed forI andI units but it became clear during the proceedings that the revenue of the State would be greater if ther unit was combined with theI andI units. Therefore, the participants in the negotiations were told to return in the afternoon. When informed about the decision in this behalf they asked for some time, which was given, and it was thereafter that the highest amount offered by the other party (Respondent 6) was accepted. There is irrefutable evidence in the form of a photostat copy of the record of the persons present at the negotiations that the Contractor was represented throughout. The Contractor was the highest bidder at the auction for ther unit and his bid had not been accepted. He was given notice. In the circumstances, the authorities cannot be faulted at its instance for lack of adequate publicity, considering also the fact that the new financial year when the period of the licences would commence was fast approaching
| 1 | 1,158 |
### 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:
bid. He deposited 5 per cent thereof immediately and another 8.5 per cent within the stipulated 10 days. On 28-3-1994 his bid was rejected 3. At the same auction held on 16-3-1994 no bid was received for the Shimla-I and Shimla-II units. The Deputy Commissioner wrote on 20-3-1994 to the Excise and Taxation Commissioner that, after the auction of the Rampur-Bushair unit, the bidders had got together and had not made any bid for the auction of the Shimla-I and Shimla-II units, even though these units had been clubbed together. What transpired on 16th March is also evident from the report of the auctions held on that date. The report speaks of the aforesaid pooling and states that no bids were offered; it recommended that "it is extremely essential to pass appropriate orders so that revenue could be kept secured .... In this context holding negotiations appears to be a suitable alternative" The suggestion was accepted and invitations were sent to those who had participated in the aforesaid auction to participate in negotiations for the allotment of the Shimla-I and Shimla-II units. These negotiations took place on 25-3-1994. It appears from the affidavit that was filed by the State before the High Court that an offer was made by one of the negotiating parties in the sum of Rs. 8.50 crores for the Shimla-I and Shimla-II units provided the Rampur-Bushair unit was also tagged on. This was found attractive and the negotiations were adjourned to 3.30 p.m. At that time the parties were told that the Financial Commissioner had decided that the negotiations should be held for the combined Shimla-I and Shimla-II and Rampur-Bushair units and that the parties should make offers accordingly. Three of these parties, including the Contractor, requested for half an hours time to formulate their response. After this lapse of time these parties, including the Contractor; participated in the negotiations and made offers. The offer of Rs. 8.55 crores given by the one of the parties (Respondent 6) was found to be the highest and was recommended for acceptance, which the Financial Commissioner thereafter gave. Accordingly, the Contractor was informed on 28-3-1994 that his bid for the Rampur-Bushair unit had not been approved and that a refund of the amount deposited by him would be made 4. The photostat copy of the proceedings annexed to the affidavit shows the signatures of the representatives of the Contractor both at the morning and the afternoon sessions on 25-3-1994 5. The Contractor filed the writ petition in the High Court challenging the validity of the rejection of his bid and for consequential reliefs. The High Court came to the conclusion that the Financial Commissioner had no power to regroup the vends and also that the proposed negotiations for the Rampur-Bushair unit had not received due publicity. Since, by efflux of time, the High Court could grant no effective relief, it awarded "just and fair compensation" to the Contractor in the sum of Rs. 1 lakh 6. The relevant Rule reads thus "34. (a) The Financial Commissioner reserves the right to grant all or any of the licences mentioned in Rule 1, other than the licences granted on fixed fee, assessed fee or both, by auction or by negotiation or by private contract or by allotment or by calling tenders or by any other arrangement which he may consider expedient (b) The Financial Commissioner further reserves the right to change the mode of granting the licences mentioned in clause (a) of this Rule, prior to the grant of such licences in a financial year, and by an order in writing on record." * The Rule entitles the Financial Commissioner to grant licences by the modes of auction, negotiations, private contract, allotment, tenders and any other a arrangement or mode which he considers expedient. It also entitles the Financial Commissioner, by order in writing, to change the mode of granting the licence prior to its grant for a financial year. We do not find in this Rule, or anywhere else, any restriction in regard to the regrouping of vends. If, for any reason, the bids at an auction cannot be accepted, the Financial Commissioner can decide to resort to negotiations instead. He can do so provided the bids at the auction have not been confirmed. The Financial Commissioner would then be entitled to negotiate for one vend or two vends combined, the objective being to get the maximum revenue for the State. A clause that relates to auctions and permits the Presiding Officer thereat to regroup vends does not imply that the power to do so does not exist in the Financial Commissioner 7. The High Courts observations on the aspect of publicity for the negotiations aforementioned would appear to be uncalled for. We have already indicated what had transpired from 16-3-1994 onwards. All those who had participated in the auction on that date had been given notice of the negotiations that were proposed for 25-3-1995. It is true that those negotiations were originally proposed for Shimla-I and Shimla-II units but it became clear during the proceedings that the revenue of the State would be greater if the Rampur-Bushair unit was combined with the Shimla-I and Shimla-II units. Therefore, the participants in the negotiations were told to return in the afternoon. When informed about the decision in this behalf they asked for some time, which was given, and it was thereafter that the highest amount offered by the other party (Respondent 6) was accepted. There is irrefutable evidence in the form of a photostat copy of the record of the persons present at the negotiations that the Contractor was represented throughout. The Contractor was the highest bidder at the auction for the Rampur-Bushair unit and his bid had not been accepted. He was given notice. In the circumstances, the authorities cannot be faulted at its instance for lack of adequate publicity, considering also the fact that the new financial year when the period of the licences would commence was fast approaching
### Response:
1
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674 |
Ramnandan Prasad Narayan Singh & Another Vs. Mahanth Kapildeo Ram Jee & Others
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7 was the right one. The F. C. was not dealing with any question of interpretation at all. It is impossible to see where the doctrine of constructiveres judicata comes in, so as to be of help to the applts.7. The second question raised on their behalf relates to the true meaning of S. 7, Bihar Money-lenders (Regulation of Transactions) Act, VII [7] of 1939, which is in these terms :"7. Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any agreement, no Court shall, in any suit brought by a money-lender before or after the commencement of this Act in respect of a loan advanced before or after the commencement of this Act or in any appeal or proceedings in revision arising out of such suit, pass a decree for an amount of interest for the period preceding the institution of the suit, which together with any amount already realised as interest through the Court or otherwise, is greater than the amount of loan advanced, or, if the loan is based on a document, the amount of loan mentioned in, or evidenced by such document."8. In the present case, the original loan of Rs. 40,000 was advanced as early as 11-1-1893. The applts. contend that for the purposes of calculating the interest to be decreed prior to the date of the suit the loan advanced must be taken to be the original sum and that if an account is taken of all the sums received by the creditor as interest from that date up to the date of the suit, there would be nothing due for interest. On the other hand, the decree-holder urges that having regard to the latter part of the section, the loan must be taken to be the amount mentioned in the mtge. bond dated 6-10-1931, namely Rs. 42,000. Whichever method of calculation is adopted, it must be remembered that it has to be made not for the purposes of passing any decree on the mtge. loan, but for estimating under S. 13 of the Act, the value of the properties to be brought to sale in execution of the money decree against the applts.9. As pointed out by Sir Maurice Gwyer C. J. in Surendra Prasad v. Gajadhar Prasad,1940 F. C. R. 39 : (A I. R. (27) 1940 F. C.10), "Section 7 of the Act of 1937 is no doubt extremely obscure and ill-drawn." The true intention of the framers of the Act is somewhat difficult to gather. But the Patna H. C. has been consistently placing upon the section an interpretation which is opposed to the contention of the applts. in these proceedings.10. The point came up expressly for decision in Singeshwar Singh v. Medni Prasad, A.I.R. (27) 1940 Pat. 65 : (1871. C. 339), where a mtge. bond was executed on 31-8-1922 for a sum of Rs. 2,000 which was the balance of the principal and interest due under a mtge. bond of the 11-10-1912, for Rs. 1391. The judgment-debtors raised the plea that the Ct. should go back to the earlier bond of 1912 and that as a sum of Rs. 1512 had been paid as and by way of interest towards that bond, no decree could be passed against them for more than the principal sum of Rs.1391. The learned Judges rejected this contention and took the amount stated in the document of 1922, namely Rs. 2,000 as the loan and they held that the plts. were entitled to get a decree for interest for a sum not larger than Rs. 2,000 as no payment had been proved to have been made after the execution of the bond. The same view was taken in Lal Singh v. Ramnarain Ram, A. I. R. (29) 1942 Pat. 138 at p. 139 : (197 I. C. 659) and the pltfs. were awarded a decree on the basis that the loan was to be taken as Rs. 2,909-8-0 which was the amount for which the hand-note sued upon was executed and not Rs. 1,000 which was the original amount advanced upon an earlier hand-note of the year 1924. The case reported in Madho Prasad v. Mukutdhari Singh,193 I. C. 661 ; (A. I. R. (28) 1941 Pat. 378) lays down the same position. The F. B. decision in Deo Nandan Prasad v. Ram Prasad, 23 Pat. 618 : (A. I. R. (31) 1944 Pat. 303 F. B.) reiterates the same view, pointing out the distinction between Ss. 7 and 8 of the Act and stating that while under S. 8 we can go to the original loan in spite of a later document, under S. 7 the loan must relate to the document on which the suit is based, that is, the final document and not the original one. In each one of these cases, the question of the true meaning of S. 7 was pointedly considered. This construction no doubt enables a creditor to circumvent the beneficent provisions of the Act by taking a document for the interest due and adding it to the principal amount. Gwyer C. J., points out this difficulty at p. 59 in case Surendra Prasad v. Gajadhar Prasad Sahu Trust Estate,1940 F. C. R. 39: (A. I. R. (27) 1940 F. C. 10). If the interpretation does not carry out the intentions of the framers of the Act by reason of unhappy or ambiguous phrasing, it is for the Legislature to intervene. But so far from doing so, it has acquiesced, during all these years, in the construction, which the Patna H. C. has been placing upon the section from the very next year after the enactment of the statute. Having regard to the great obscurity in the language employed in the relevant provisions and the inaction of the Legislature, it is, in our opinion, legitimate to infer that the view expressed by the Patna H. C. is in accord with the intention of the Legislature.1
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0[ds]6. The first point is entirely without substance. When the decree-holder contended that S. 11, Bihar Money-lenders Act, 1938 was declared void and ultra vires and that there fore S. 7 of the new Act which corresponded to S. 11 was also inapplicable, the judgment-debtors pleaded that they were entitled to the benefit of S. 7 of the new Act. The F. C. held in Ramnandan Prasad v. Goshwami Madhwanand, 1940 F. C. R. 1 : (A. I. R. (27)1940 F. C.1 )that the judgment-debtors (present applts.) were entitled to claim the benefit of the provisions of the new Act when the executing Ct. proceeded under S. 13 to determine the value of the properties to be sold. The correct interpretation of S. 7 was not in question between the parties. To say that the applts. were entitled to take advantage of the provisions of S. 7 is entirely different from the contention that the interpretation sought to be put by them on S. 7 was the right one. The F. C. was not dealing with any question of interpretation at all. It is impossible to see where the doctrine of constructiveres judicata comes in, so as to be of help to theF. B. decision in Deo Nandan Prasad v. Ram Prasad, 23 Pat. 618 : (A. I. R. (31) 1944 Pat. 303 F. B.) reiterates the same view, pointing out the distinction between Ss. 7 and 8 of the Act and stating that while under S. 8 we can go to the original loan in spite of a later document, under S. 7 the loan must relate to the document on which the suit is based, that is, the final document and not the original one. In each one of these cases, the question of the true meaning of S. 7 was pointedly considered. This construction no doubt enables a creditor to circumvent the beneficent provisions of the Act by taking a document for the interest due and adding it to the principal amount. Gwyer C. J., points out this difficulty at p. 59 in case Surendra Prasad v. Gajadhar Prasad Sahu Trust Estate,1940 F. C. R. 39: (A. I. R. (27) 1940 F. C. 10). If the interpretation does not carry out the intentions of the framers of the Act by reason of unhappy or ambiguous phrasing, it is for the Legislature to intervene. But so far from doing so, it has acquiesced, during all these years, in the construction, which the Patna H. C. has been placing upon the section from the very next year after the enactment of the statute. Having regard to the great obscurity in the language employed in the relevant provisions and the inaction of the Legislature, it is, in our opinion, legitimate to infer that the view expressed by the Patna H. C. is in accord with the intention of the Legislature.
| 0 | 2,429 |
### 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:
7 was the right one. The F. C. was not dealing with any question of interpretation at all. It is impossible to see where the doctrine of constructiveres judicata comes in, so as to be of help to the applts.7. The second question raised on their behalf relates to the true meaning of S. 7, Bihar Money-lenders (Regulation of Transactions) Act, VII [7] of 1939, which is in these terms :"7. Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any agreement, no Court shall, in any suit brought by a money-lender before or after the commencement of this Act in respect of a loan advanced before or after the commencement of this Act or in any appeal or proceedings in revision arising out of such suit, pass a decree for an amount of interest for the period preceding the institution of the suit, which together with any amount already realised as interest through the Court or otherwise, is greater than the amount of loan advanced, or, if the loan is based on a document, the amount of loan mentioned in, or evidenced by such document."8. In the present case, the original loan of Rs. 40,000 was advanced as early as 11-1-1893. The applts. contend that for the purposes of calculating the interest to be decreed prior to the date of the suit the loan advanced must be taken to be the original sum and that if an account is taken of all the sums received by the creditor as interest from that date up to the date of the suit, there would be nothing due for interest. On the other hand, the decree-holder urges that having regard to the latter part of the section, the loan must be taken to be the amount mentioned in the mtge. bond dated 6-10-1931, namely Rs. 42,000. Whichever method of calculation is adopted, it must be remembered that it has to be made not for the purposes of passing any decree on the mtge. loan, but for estimating under S. 13 of the Act, the value of the properties to be brought to sale in execution of the money decree against the applts.9. As pointed out by Sir Maurice Gwyer C. J. in Surendra Prasad v. Gajadhar Prasad,1940 F. C. R. 39 : (A I. R. (27) 1940 F. C.10), "Section 7 of the Act of 1937 is no doubt extremely obscure and ill-drawn." The true intention of the framers of the Act is somewhat difficult to gather. But the Patna H. C. has been consistently placing upon the section an interpretation which is opposed to the contention of the applts. in these proceedings.10. The point came up expressly for decision in Singeshwar Singh v. Medni Prasad, A.I.R. (27) 1940 Pat. 65 : (1871. C. 339), where a mtge. bond was executed on 31-8-1922 for a sum of Rs. 2,000 which was the balance of the principal and interest due under a mtge. bond of the 11-10-1912, for Rs. 1391. The judgment-debtors raised the plea that the Ct. should go back to the earlier bond of 1912 and that as a sum of Rs. 1512 had been paid as and by way of interest towards that bond, no decree could be passed against them for more than the principal sum of Rs.1391. The learned Judges rejected this contention and took the amount stated in the document of 1922, namely Rs. 2,000 as the loan and they held that the plts. were entitled to get a decree for interest for a sum not larger than Rs. 2,000 as no payment had been proved to have been made after the execution of the bond. The same view was taken in Lal Singh v. Ramnarain Ram, A. I. R. (29) 1942 Pat. 138 at p. 139 : (197 I. C. 659) and the pltfs. were awarded a decree on the basis that the loan was to be taken as Rs. 2,909-8-0 which was the amount for which the hand-note sued upon was executed and not Rs. 1,000 which was the original amount advanced upon an earlier hand-note of the year 1924. The case reported in Madho Prasad v. Mukutdhari Singh,193 I. C. 661 ; (A. I. R. (28) 1941 Pat. 378) lays down the same position. The F. B. decision in Deo Nandan Prasad v. Ram Prasad, 23 Pat. 618 : (A. I. R. (31) 1944 Pat. 303 F. B.) reiterates the same view, pointing out the distinction between Ss. 7 and 8 of the Act and stating that while under S. 8 we can go to the original loan in spite of a later document, under S. 7 the loan must relate to the document on which the suit is based, that is, the final document and not the original one. In each one of these cases, the question of the true meaning of S. 7 was pointedly considered. This construction no doubt enables a creditor to circumvent the beneficent provisions of the Act by taking a document for the interest due and adding it to the principal amount. Gwyer C. J., points out this difficulty at p. 59 in case Surendra Prasad v. Gajadhar Prasad Sahu Trust Estate,1940 F. C. R. 39: (A. I. R. (27) 1940 F. C. 10). If the interpretation does not carry out the intentions of the framers of the Act by reason of unhappy or ambiguous phrasing, it is for the Legislature to intervene. But so far from doing so, it has acquiesced, during all these years, in the construction, which the Patna H. C. has been placing upon the section from the very next year after the enactment of the statute. Having regard to the great obscurity in the language employed in the relevant provisions and the inaction of the Legislature, it is, in our opinion, legitimate to infer that the view expressed by the Patna H. C. is in accord with the intention of the Legislature.1
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0
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675 |
Municipal Corporation, Indore Vs. Shri K.N. Palshikar, Indore
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part or some portion of the part projecting beyond the regular line or beyond the front of the immediate adjoining building, shall be removed, or that such building when being rebuilt shall be set back to or towards the said line or front; and the portion of land added to the street by such setting back or removal shall henceforth be deemed to be part of the public street and shall vest in the Corporation:Provided that the Corporation shall make reasonable compensation to the owner for any damage or loss he may sustainable in consequence of his building or any part thereof being set back.(2) The Corporation may, on such terms as it thinks fit, allow any building to be set forward for the improvement of the line of the street."15. In this case it is not necessary to determine whether land affected by a notice vests when the notice is given or when the part or some portion of the part projecting beyond the regular line or beyond the front of the immediately adjoining building is removed, or when the building when being rebuilt is set back, because it seems to have been common ground between the parties that the date for the determination of compensation in this case is the date of the meno, i. e. October 30, 1959.16. Coming to the third point, the relevant section which required interpretation is S. 387 (3) which reads:"387. Arbitration in cases of compenation, etc.(3) In event of the Panchayat not giving a decision within one month or such other longer period as may be agreed to by both the parties from the date of the selection of Sarpanch or of the appointment by the District Court of such members as may be necessary to constitute the Panchayat, the matter shall, on application by either party be determined by the District Court which shall, in cases in which the compensation is claimed in respect of land, follow, as far as may be the procedure provided by the Land Acquisition Act, 1894, for proceedings in matters referred for the determination of the Court:Provided that(a) no application to the Collector for a reference shall be necessary, and(b) the court shall have full power to give and apportion the costs of all the proceedings in manner it thinks fit."17. The learned counsel for the appicant relies on the decision of the Bombay High Court in The Borough Municipality of Ahmedabad v. Jayendra Vajubhai Divatia, ILR (1937) Bom 632 = (AIR 1937 Bom 432 ). In that case Beaumont, C. J., interpreting Section 198 of the Bombay Municipal Boroughs Act (Bom. Act XVIII of 1925), which section is, in terms, similar to Setcion 387 of the Act observed as follows:"There is no express provision in the Bombay Municipal Boroughs Act allowing for such addition to the compensation, but under the Land Acquisition Act fifteen per cent is allowed in respect of the compulsory nature of the acquisition, and the question is whether that provision in the Land Acquisition Act can be treated as incorporated into Section 198 of the Bombay Municipal Boroughs Act as being part of the procedure provided by the Land Acquisition Act. I agree that, prima facie, a provision of this sort, adding to the compensation to be payable for the value of the land, is not aptly described as procedure, but still one has to look at the Land Acquisition Act and note the phraseology adopted. One finds Part III headed "Reference to Court and Procedure thereon......"Then he referred to Sections 23, 24 and 25 of the Land Acquisition Act and concluded:"It seems to me that Sections 23, 24 and 25 of the Act constitute a code laying down the principles on which the District Court is to act in arriving at the compensation to be paid, and it is quite impossible to leave out of that code subsection (2) of Section 23, as Mr. Shah has invited me to do. His contention is that the fifteen per cent is an allowance of something in addition to the value of the land, which has to be paid for under the Municipal Act. But the truth is that the sections determine the basis on which the value of the land is to be ascertained on compulsory purchase and the allowance of the fifteen per cent must be set off against matters disallowed under Sec. 24. These provisions in the Land Acquisition Act are contained in a Chapter entitled "Reference to Court and procedure thereon" and I think that they must be treated as applicable to proceedings in the District Court under Section 198 of the Bombay Municipal Boroughs Act."18. The learned counsel for the Corporation was not able to cite any authority which has dissented from this view. We agree with the reasoning of the learned Chief Justice and hold that the Additional District Judge was right in awarding 15 per cent solatium.19. Coming to the fourth point, the revision to the High Court was filed under Section 392 of the Act which provides that:"notwithstanding anything to the contrary in any other law for the time being in force, the District Court shall exercise all the powers and jurisdiction expressly conferred on or vested in it by the provisions of this Act, and unless it is otherwise expressly provided by this Act, its decision shall he subject to revision by the High Court."The High Court could not, in a revision under Section 392, go into questions of fact and determine the amount of compensation, and the High Court was right in declining to deal with this question. It is not necessary to determine whether the powers of revision under Section 392 are the same as under Section 115, C. P. C.,because even if the powers under Section 392 of the Act are wider than that under Section 115, C. P. C., they do not extend to determining questions of fact. In view of this conclusion this point cannot be agitated before us.
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0[ds]13. The learned counsel for the applicant, Palsikar, made a statement before us that he was willing to deposit Rs. 6,000 in the District Court within four months in respect of the area which is in possession of the tenants and that he will be entitled to withdraw this amount once the possession is given to the Corporation and not before. In view of this undertaking it is not necessary to determine point No. 2. The point is not free from doubt and we hesitate to express our opinion when the point has become academic in view of the under taking given by the learned counsel for the applicant, Palsikar.14. Regarding point No. 1, we agree with the High Court that there is no provision in the Act for enabling the Corporation to withdraw from the acquisition proceedings. In fact it seems to us that there is automatic vesting of the land in the Corporation under Sec. 305 once the requisite conditions are satisfied.The learned counsel for the Corporation was not able to cite any authority which has dissented from this view. We agree with the reasoning of the learned Chief Justice and hold that the Additional District Judge was right in awarding 15 per cent solatium.19. Coming to the fourth point, the revision to the High Court was filed under Section 392 of the Act which provides that"notwithstanding anything to the contrary in any other law for the time being in force, the District Court shall exercise all the powers and jurisdiction expressly conferred on or vested in it by the provisions of this Act, and unless it is otherwise expressly provided by this Act, its decision shall he subject to revision by the High Court."The High Court could not, in a revision under Section 392, go into questions of fact and determine the amount of compensation, and the High Court was right in declining to deal with this question. It is not necessary to determine whether the powers of revision under Section 392 are the same as under Section 115, C. P. C.,because even if the powers under Section 392 of the Act are wider than that under Section 115, C. P. C., they do not extend to determining questions of fact. In view of this conclusion this point cannot be agitated before us.
| 0 | 2,747 |
### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
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part or some portion of the part projecting beyond the regular line or beyond the front of the immediate adjoining building, shall be removed, or that such building when being rebuilt shall be set back to or towards the said line or front; and the portion of land added to the street by such setting back or removal shall henceforth be deemed to be part of the public street and shall vest in the Corporation:Provided that the Corporation shall make reasonable compensation to the owner for any damage or loss he may sustainable in consequence of his building or any part thereof being set back.(2) The Corporation may, on such terms as it thinks fit, allow any building to be set forward for the improvement of the line of the street."15. In this case it is not necessary to determine whether land affected by a notice vests when the notice is given or when the part or some portion of the part projecting beyond the regular line or beyond the front of the immediately adjoining building is removed, or when the building when being rebuilt is set back, because it seems to have been common ground between the parties that the date for the determination of compensation in this case is the date of the meno, i. e. October 30, 1959.16. Coming to the third point, the relevant section which required interpretation is S. 387 (3) which reads:"387. Arbitration in cases of compenation, etc.(3) In event of the Panchayat not giving a decision within one month or such other longer period as may be agreed to by both the parties from the date of the selection of Sarpanch or of the appointment by the District Court of such members as may be necessary to constitute the Panchayat, the matter shall, on application by either party be determined by the District Court which shall, in cases in which the compensation is claimed in respect of land, follow, as far as may be the procedure provided by the Land Acquisition Act, 1894, for proceedings in matters referred for the determination of the Court:Provided that(a) no application to the Collector for a reference shall be necessary, and(b) the court shall have full power to give and apportion the costs of all the proceedings in manner it thinks fit."17. The learned counsel for the appicant relies on the decision of the Bombay High Court in The Borough Municipality of Ahmedabad v. Jayendra Vajubhai Divatia, ILR (1937) Bom 632 = (AIR 1937 Bom 432 ). In that case Beaumont, C. J., interpreting Section 198 of the Bombay Municipal Boroughs Act (Bom. Act XVIII of 1925), which section is, in terms, similar to Setcion 387 of the Act observed as follows:"There is no express provision in the Bombay Municipal Boroughs Act allowing for such addition to the compensation, but under the Land Acquisition Act fifteen per cent is allowed in respect of the compulsory nature of the acquisition, and the question is whether that provision in the Land Acquisition Act can be treated as incorporated into Section 198 of the Bombay Municipal Boroughs Act as being part of the procedure provided by the Land Acquisition Act. I agree that, prima facie, a provision of this sort, adding to the compensation to be payable for the value of the land, is not aptly described as procedure, but still one has to look at the Land Acquisition Act and note the phraseology adopted. One finds Part III headed "Reference to Court and Procedure thereon......"Then he referred to Sections 23, 24 and 25 of the Land Acquisition Act and concluded:"It seems to me that Sections 23, 24 and 25 of the Act constitute a code laying down the principles on which the District Court is to act in arriving at the compensation to be paid, and it is quite impossible to leave out of that code subsection (2) of Section 23, as Mr. Shah has invited me to do. His contention is that the fifteen per cent is an allowance of something in addition to the value of the land, which has to be paid for under the Municipal Act. But the truth is that the sections determine the basis on which the value of the land is to be ascertained on compulsory purchase and the allowance of the fifteen per cent must be set off against matters disallowed under Sec. 24. These provisions in the Land Acquisition Act are contained in a Chapter entitled "Reference to Court and procedure thereon" and I think that they must be treated as applicable to proceedings in the District Court under Section 198 of the Bombay Municipal Boroughs Act."18. The learned counsel for the Corporation was not able to cite any authority which has dissented from this view. We agree with the reasoning of the learned Chief Justice and hold that the Additional District Judge was right in awarding 15 per cent solatium.19. Coming to the fourth point, the revision to the High Court was filed under Section 392 of the Act which provides that:"notwithstanding anything to the contrary in any other law for the time being in force, the District Court shall exercise all the powers and jurisdiction expressly conferred on or vested in it by the provisions of this Act, and unless it is otherwise expressly provided by this Act, its decision shall he subject to revision by the High Court."The High Court could not, in a revision under Section 392, go into questions of fact and determine the amount of compensation, and the High Court was right in declining to deal with this question. It is not necessary to determine whether the powers of revision under Section 392 are the same as under Section 115, C. P. C.,because even if the powers under Section 392 of the Act are wider than that under Section 115, C. P. C., they do not extend to determining questions of fact. In view of this conclusion this point cannot be agitated before us.
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676 |
Shukla Manseta Industries Pvt. Ltd Vs. The Workmen Employed Under It
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letter dated June 26, 1961 and if so, the award would have expired on August 26, 1961. Since, however, the settlement disposing of common points of dispute was terminated by a letter dated August 14, 1961 and thereby the settlement stood terminated only on October 14, 1961, the termination of the award by a letter dated June 26, 1961, during the operation of the settlement was held to be invalid. The facts of Bangalore Woollen, Cotton &Silk MU& case (supra) are, therefore, entirely different from those with which we are concerned in this appeal.The other decision namely, the Indian Link Chain Manufactures Ltd. v. Their workmen, ((1972)1 S.C.R. 790.) is also not directly to the point raised in this case.10. Our attention is drawn to a decision of the Calcutta High Court in the National Carbon Co. (India) Ltd. v. M. N. Gan, Judge, Labour Appellate Tribunal and Others, (A.I.R. 1957 Cal. 500 .) wherefrom reading paragraph 13 in the decision, Mr. Shroff sought to derive some assistance. We find that although the agreement, there, was statutorily continuing after its expiry on August 26, 1952, notice for terminating the agreement was given on September 6, 1952 and the High Court rightly accepted the notice as valid. The High Court also rightly disagreed with the views of the Labour Appellate Tribunal in India Reconstruction Corporation Limited ((1953) Labour Appeal Cases 563 (Cal.).) that an agreement with a fixed period expired by efflux of the period and was not statutorily continued. "The period aforesaid" in s. 19(2) will include not only the contractual period but also the statutory period of six months. This decision, therefore, leads no assistance to Mr. Shroff.11. Mr. Shroff also relied upon a decision of the Andhra Pradesh High Court in Deccan Tile Works v. Their Workmen (Tile Factories Workers Union, Samalkot) and two others([1960] 2 L.L.J. 298.) which does not at all lead assistance to his submission. Although the facts are not very clear from the report we find, the High Court has observed that-"obviously the management was not within its rights in terminating and unilaterally repudiating Ex. A. I" (the agreement).12. Section 19(2) does not entitle a party to a settlement to repudiate the settlement while the same is in operation. Giving advance notice within the ambit of the law is not repudiation of the settlement.Mr. Shroff next submits that section 19(2) should be given the, same meaning as section 19(6) since both these provisions are on the same subject dealing with the period of operation of settlement and award respectively. It is submitted that so far as an award is concerned under the second proviso to sub-section (3) of section 19, the appropriate Government may extend the period of operation by any period not exceeding one year at a time subject to a total period of operation not exceeding three years from the date on which it comes into operation. According to counsel since there is a power in the Government to extend the period of the award a notice of termination prior to the date of expiry of the award cannot be contemplated under the law and, since this is the position regarding an award, a settlement cannot be treated differently. We are unable to accede to this submission. Even if an- advance notice is given in the case of an award, provided the period of two months expires on the usual expiry of the award permitted by law and Government in exercise of its power extends the award in a given case, such a notice would be infructuous and inoperative under the law. The extension of the award by the Government in exercise of statutory power would prevail upon the action of the party to terminate the award by notice.13. Mr. Shroff relied upon a decision of the Patna High Court in Patn a Municipal, Corporation v. The Workmen of Patna Municipal , Corporation and others ([1970] Labour Industrial Cases 1236.) and read to us the following observation from that decision"A party to the award cannot terminate it so long it remains operative either during the period of one year or during the extended period under sub-section (3) of section 19".14. We do not read the above observation as supporting the submission of counsel that no advance notice can be given to terminate a settlement or an award provided the requisite period of two months required under section 19(2) expires on thee date of expiry of the settlement or award or thereafter. It is only if a notice under section 19(2) or 1 9(6) expires within the period of operation of the award or settlement, such a notice will be invalid under the law. In that event the settlement or the award will continue to be in operation and any reference by Government of a dispute during the period of settlement or an award without the same being terminated under the law will be invalid.In the instant case the notice under section 19(2) was given intimating the intention of the workers to terminate the award on a date when the agreed period would also expire. To repeat, there is no legal bar to give advance intimation about the intention to terminate the settlement on the expiry of the agreed period and to start negotiation for, a more favorable settlement immediately thereafter. The only condition that has to be fulfilled by such a notice is that the period of two months from the date of notice must end on the expiry of the settlement and not before it. In a given case it may be even advantageous to the parties who do not want to continue the settlement to strike a new bargain without loss of time so that unnecessary bickerings and resultant industrial unrest do not take place. In an industrial matter we are not prepared to subject a notice under section 19(2) to the irksome vagaries or tyranny of technicalities of a notice under section 106 of the Transfer of Property Act.15.
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0[ds]Under the provisions of section 19(2) it is clear that a settlement shall be binding for such period as is agreed upon by the parties and if there is no period mentioned in the agreement, for a period of six months from the date on which the settlement is signed by the parties. With regard to the period of operation of the settlement, section 19(2) confers a statutory continuity of the settlement even after the expiry of the period agreed upon until the expiry of two months from the date on which a written notice of the intention to terminate the settlement is given by one party to the other. It is, therefore, clear that when a period is fixed in settlement, the settlement remains in operation for the entire period and also thereafter until one or the other party gives written intimation of the intention to terminate the settlement and until expiry of two months from the date of suchobject of the above provision under section 19(2) is to ensure that once a settlement is arrived at there prevails peace, accord and cordiality between the parties during the period agreed upon and if the settlement does not require to be altered for some reason or the other the same climate prevails by extension of the settlement by operation of law. Section 19 is not a dead end freezing all manner of aspirations of labour or even, may be, sometime, hardship suffered by the employer on account of a settlement. There is an option given to either party to terminate the settlement by a written intimation after the expiry of two months from the date of such notice. This is in accord with the policy of settlement of industrial disputes which is the principal object underlying the provisions of the Act.Settlement between employers and workmen, if not duly terminated, will operate as inviolable conditions of service of workmen. Such settlements are only step-ups in labours progressive ascent to the goal of their ultimate Ideal, namely, a living wage with realisation of other aspirations including partnership with employer. How soon that goal will be reached will depend up on so many factors and other imponderables in the process of the nations achievement, with cooperation from all sectors, public and private, but each party being always alive to the larger national interest which includes thriving of the industry of which labour is an integralpolicy of the Act is to ban agitations over the matters covered by a settlement or by an award during the period specified under section 19(2) and section 19(6) respectively. To avoid uncertainty and speculation section 19 prescribed a terminus a quo and a terminus ad quem. If in a settlement there is no time limit agreed upon between the parties the period of operation is a space of six months from the date of signing of the settlement and will also last until the expiry of two months from the date of receipt of the notice of termination of the settlement. If the period is fixed it commences from the date as specified in the settlement and will theoretically end as agreed upon but shall continue to operate under the law until the expiry of the requisite period of two months by a clear writtenaward under section 19(3) of the Act has a longer period of operation, to start with, namely, one year from the date of the commencement of the award, which is on the expiry of 30 days from the date of publication of the award by the appropriate Government. As in the case of a settlement so also under section 19(6) the award continues to operate govern ing the conditions of service until the expiry of two months from the date of receipt of notice of termination of the award. Under the two provisos to sub-section (3) of section 19 Government hag the option to reduce or extend the period of operat ion of an award. This will be, however, always subject to sub-section (5) of section 19.Notice under section 19(2) or under section 19(6) is only for intimation of an intention to terminate a settlement or an award respectively. There is no legal impediment to give advance intimation of the aforesaid intention provided the contractual or statutory period of settlement is not thereby affected orif an- advance notice is given in the case of an award, provided the period of two months expires on the usual expiry of the award permitted by law and Government in exercise of its power extends the award in a given case, such a notice would be infructuous and inoperative under the law. The extension of the award by the Government in exercise of statutory power would prevail upon the action of the party to terminate the award bydo not read the above observation as supporting the submission of counsel that no advance notice can be given to terminate a settlement or an award provided the requisite period of two months required under section 19(2) expires on thee date of expiry of the settlement or award or thereafter. It is only if a notice under section 19(2) or 1 9(6) expires within the period of operation of the award or settlement, such a notice will be invalid under the law. In that event the settlement or the award will continue to be in operation and any reference by Government of a dispute during the period of settlement or an award without the same being terminated under the law will be invalid.In the instant case the notice under section 19(2) was given intimating the intention of the workers to terminate the award on a date when the agreed period would also expire. To repeat, there is no legal bar to give advance intimation about the intention to terminate the settlement on the expiry of the agreed period and to start negotiation for, a more favorable settlement immediately thereafter. The only condition that has to be fulfilled by such a notice is that the period of two months from the date of notice must end on the expiry of the settlement and not before it. In a given case it may be even advantageous to the parties who do not want to continue the settlement to strike a new bargain without loss of time so that unnecessary bickerings and resultant industrial unrest do not take place. In an industrial matter we are not prepared to subject a notice under section 19(2) to the irksome vagaries or tyranny of technicalities of a notice under section 106 of the Transfer of Propertyfind that although the agreement, there, was statutorily continuing after its expiry on August 26, 1952, notice for terminating the agreement was given on September 6, 1952 and the High Court rightly accepted the notice as valid. The High Court also rightly disagreed with the views of the Labour Appellate Tribunal in India Reconstruction Corporation Limited ((1953) Labour Appeal Cases 563 (Cal.).) that an agreement with a fixed period expired by efflux of the period and was not statutorily continued. "The period aforesaid" in s. 19(2) will include not only the contractual period but also the statutory period of six months. This decision, therefore, leads no assistance to Mr. Shroff.
| 0 | 3,169 |
### Instruction:
Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable?
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letter dated June 26, 1961 and if so, the award would have expired on August 26, 1961. Since, however, the settlement disposing of common points of dispute was terminated by a letter dated August 14, 1961 and thereby the settlement stood terminated only on October 14, 1961, the termination of the award by a letter dated June 26, 1961, during the operation of the settlement was held to be invalid. The facts of Bangalore Woollen, Cotton &Silk MU& case (supra) are, therefore, entirely different from those with which we are concerned in this appeal.The other decision namely, the Indian Link Chain Manufactures Ltd. v. Their workmen, ((1972)1 S.C.R. 790.) is also not directly to the point raised in this case.10. Our attention is drawn to a decision of the Calcutta High Court in the National Carbon Co. (India) Ltd. v. M. N. Gan, Judge, Labour Appellate Tribunal and Others, (A.I.R. 1957 Cal. 500 .) wherefrom reading paragraph 13 in the decision, Mr. Shroff sought to derive some assistance. We find that although the agreement, there, was statutorily continuing after its expiry on August 26, 1952, notice for terminating the agreement was given on September 6, 1952 and the High Court rightly accepted the notice as valid. The High Court also rightly disagreed with the views of the Labour Appellate Tribunal in India Reconstruction Corporation Limited ((1953) Labour Appeal Cases 563 (Cal.).) that an agreement with a fixed period expired by efflux of the period and was not statutorily continued. "The period aforesaid" in s. 19(2) will include not only the contractual period but also the statutory period of six months. This decision, therefore, leads no assistance to Mr. Shroff.11. Mr. Shroff also relied upon a decision of the Andhra Pradesh High Court in Deccan Tile Works v. Their Workmen (Tile Factories Workers Union, Samalkot) and two others([1960] 2 L.L.J. 298.) which does not at all lead assistance to his submission. Although the facts are not very clear from the report we find, the High Court has observed that-"obviously the management was not within its rights in terminating and unilaterally repudiating Ex. A. I" (the agreement).12. Section 19(2) does not entitle a party to a settlement to repudiate the settlement while the same is in operation. Giving advance notice within the ambit of the law is not repudiation of the settlement.Mr. Shroff next submits that section 19(2) should be given the, same meaning as section 19(6) since both these provisions are on the same subject dealing with the period of operation of settlement and award respectively. It is submitted that so far as an award is concerned under the second proviso to sub-section (3) of section 19, the appropriate Government may extend the period of operation by any period not exceeding one year at a time subject to a total period of operation not exceeding three years from the date on which it comes into operation. According to counsel since there is a power in the Government to extend the period of the award a notice of termination prior to the date of expiry of the award cannot be contemplated under the law and, since this is the position regarding an award, a settlement cannot be treated differently. We are unable to accede to this submission. Even if an- advance notice is given in the case of an award, provided the period of two months expires on the usual expiry of the award permitted by law and Government in exercise of its power extends the award in a given case, such a notice would be infructuous and inoperative under the law. The extension of the award by the Government in exercise of statutory power would prevail upon the action of the party to terminate the award by notice.13. Mr. Shroff relied upon a decision of the Patna High Court in Patn a Municipal, Corporation v. The Workmen of Patna Municipal , Corporation and others ([1970] Labour Industrial Cases 1236.) and read to us the following observation from that decision"A party to the award cannot terminate it so long it remains operative either during the period of one year or during the extended period under sub-section (3) of section 19".14. We do not read the above observation as supporting the submission of counsel that no advance notice can be given to terminate a settlement or an award provided the requisite period of two months required under section 19(2) expires on thee date of expiry of the settlement or award or thereafter. It is only if a notice under section 19(2) or 1 9(6) expires within the period of operation of the award or settlement, such a notice will be invalid under the law. In that event the settlement or the award will continue to be in operation and any reference by Government of a dispute during the period of settlement or an award without the same being terminated under the law will be invalid.In the instant case the notice under section 19(2) was given intimating the intention of the workers to terminate the award on a date when the agreed period would also expire. To repeat, there is no legal bar to give advance intimation about the intention to terminate the settlement on the expiry of the agreed period and to start negotiation for, a more favorable settlement immediately thereafter. The only condition that has to be fulfilled by such a notice is that the period of two months from the date of notice must end on the expiry of the settlement and not before it. In a given case it may be even advantageous to the parties who do not want to continue the settlement to strike a new bargain without loss of time so that unnecessary bickerings and resultant industrial unrest do not take place. In an industrial matter we are not prepared to subject a notice under section 19(2) to the irksome vagaries or tyranny of technicalities of a notice under section 106 of the Transfer of Property Act.15.
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0
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677 |
Sita Ram Sharma & Others Vs. State of Rajasthan & Others
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1950 is made by Parliament under Item 43 of List I. Section 19(2)(c) enables the Road Transport Corporation, "to prepare schemes for the acquisition of, and to acquire, either by agreement of compulsorily in accordance with law of acquisition for the time being in force in the State concerned and with such procedure as may be prescribed, whether absolutely or for a any period, the whole or any part of any undertaking of any other person to the extent to which the activities thereof consist of the operation of road transport services in that State or in any extended area."12. We now pass on to Chapter IV-A of the Motor Vehicles Act. Section 68A is the definition provision. Clause (b) thereof defines the "State Transport Undertaking". It means any undertaking providing road transport service, where such undertaking is carried on by (i) the Central Government or a State Government (ii) any Road Transport Corporation established under Section 3 of the Road Transport Corporation Act, 1950, and (iii) any municipality or any corporation or company owned or controlled by the Central Government or one or more State Governments, or by the Central Government and one or more State Governments.13. Section 68B provides that the provisions of Chapter IV-A and the Rules and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law, Section 68C provides that where any State Transport Undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion complete or partial, of other persons or otherwise, the State Transport Undertaking may prepare a scheme giving particulars of the nature of the service proposed to be renered, the area of route proposed to be covered and such other particulars respecting thereto as may be prescribed and shall cause every such scheme to be published in the Official Gazette and also in such other manner at the State Government may direct".14. Acting under this provision read with Rules 3 and 4, the General Manager of the Rajasthan State Road Transport Corporation has prepared and published the impugned schemes of nationalisation of routes.15. It is not disputed by the appellant that the subject-matter of Chapter IV-A falls within Items 35 and 42 of List III. It would accordingly follow that Section 68-A the definition clause, also is a law with respect to those very items. Section 4 of the Ordinance declares that any scheme prepared and published under Section 68-C by the General Manager of State Transport Undertaking shall be deemed to have been prepared or published by the State Transport Undertaking. It also provides that the scheme shall not be questioned in any court or before any authority merely on the ground that the same has been prepared or published by the General Manager. It may be observed that Section 4 makes no amendment in the Road Transport Corporation Act. It does not directly affect the power of the Road Transport Corporation under Section 19(2)(c) of the said Act. It has attempted to insert a new Section 68-CC in Chapter IV-A of the Motor Vehicles Act. By this new section it has validated the scheme prepared and published by the General Manager of a State Transport Undertaking as defined in Section 68-C.16.We have little doubt in our mind that the subject-matter of Section 4 clearly falls within Items 35 and 42 of List III and not within Item 43 of List I. The subject-matter is the conferment of power of acquisition of a road transport undertaking on the General Manager of the State Transport Undertaking. It has direct concern with acquisition. It has no concern with incorporation, regulation and winding up of trading corporations. The constitutionality of the law is to be determined by its real subject-matter and not by the incidental effect which it may have on any topic of legislation in List 1. (See Prafulla Kumar Mukherjee v. Bank of Commerce ltd. Khulna, 1947 FCR 28 = (AIR 1947 PC 60 ) and Kannan Devan Hills Produce Co. Ltd. v. The State of Kerala (1973) 1 SCR 856 at pp. 869, 870 = (AIR 1972 SC 2301 ).17. It is important to observe that Section 19 (2) (c) of the Road Transport Corporation Act itself gives power to the Road Transport Corporation to prepare a scheme for the acquisition of road transport undertaking "in accordance with the law for the time being in force in the State concerned". This shows that the power under Section 19 (2) (c) is subject to any State law. Section 4 of the impugned ordinance is a State law. In this view of the matter we are not concerned in this case with the question that as Section 19 (1) (c) has occupied the field, the State legislature could not enact Section 4. It has kept the field open for the State law.18. It is true that Section 4 of the Ordinance does not amend the definition provision Section 68-C for all future times. That is so, because the object of Section 4 is to validate the scheme already prepared and published by the General Manager of a State Transport Undertaking. It does not, however, affect the substance of the matter. The subject-matter of Section 4 relates to Item 35 and 42 of List III and not Item 43, of List I.19. Counsel for the appellants have cited a number of cases in support of their argument. It is not necessary to cite them, for we do not think that they throw any useful light on the issue before us.
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0[ds]11. The Road Transport Corporation Act, 1950 is made by Parliament under Item 43 of List I. Section 19(2)(c) enables the Road Transport Corporation, "to prepare schemes for the acquisition of, and to acquire, either by agreement of compulsorily in accordance with law of acquisition for the time being in force in the State concerned and with such procedure as may be prescribed, whether absolutely or for a any period, the whole or any part of any undertaking of any other person to the extent to which the activities thereof consist of the operation of road transport services in that State or in any extended area."12. We now pass on to Chapterof the Motor Vehicles Act. Section 68A is the definition provision. Clause (b) thereof defines the "State Transport Undertaking". It means any undertaking providing road transport service, where such undertaking is carried on by (i) the Central Government or a State Government (ii) any Road Transport Corporation established under Section 3 of the Road Transport Corporation Act, 1950, and (iii) any municipality or any corporation or company owned or controlled by the Central Government or one or more State Governments, or by the Central Government and one or more State Governments.13. Section 68B provides that the provisions of Chapterand the Rules and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law, Section 68C provides that where any State Transport Undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properlyroad transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion complete or partial, of other persons or otherwise, the State Transport Undertaking may prepare a scheme giving particulars of the nature of the service proposed to be renered, the area of route proposed to be covered and such other particulars respecting thereto as may be prescribed and shall cause every such scheme to be published in the Official Gazette and also in such other manner at the State Government may direct".14. Acting under this provision read with Rules 3 and 4, the General Manager of the Rajasthan State Road Transport Corporation has prepared and published the impugned schemes of nationalisation of routes.15. It is not disputed by the appellant that thefalls within Items 35 and 42 of List III. It would accordingly follow that Sectionthe definition clause, also is a law with respect to those very items. Section 4 of the Ordinance declares that any scheme prepared and published under Sectionby the General Manager of State Transport Undertaking shall be deemed to have been prepared or published by the State Transport Undertaking. It also provides that the scheme shall not be questioned in any court or before any authority merely on the ground that the same has been prepared or published by the General Manager. It may be observed that Section 4 makes no amendment in the Road Transport Corporation Act. It does not directly affect the power of the Road Transport Corporation under Section 19(2)(c) of the said Act. It has attempted to insert a new Sectionof the Motor Vehicles Act. By this new section it has validated the scheme prepared and published by the General Manager of a State Transport Undertaking as defined in Sectionhave little doubt in our mind that theof Section 4 clearly falls within Items 35 and 42 of List III and not within Item 43 of List I. Theis the conferment of power of acquisition of a road transport undertaking on the General Manager of the State Transport Undertaking. It has direct concern with acquisition. It has no concern with incorporation, regulation and winding up of trading corporations. The constitutionality of the law is to be determined by its realand not by the incidental effect which it may have on any topic of legislation in List 1. (See Prafulla Kumar Mukherjee v. Bank of Commerce ltd. Khulna, 1947 FCR 28 = (AIR 1947 PC 60 ) and Kannan Devan Hills Produce Co. Ltd. v. The State of Kerala (1973) 1 SCR 856 at pp. 869, 870 = (AIR 1972 SC 2301 ).17. It is important to observe that Section 19 (2) (c) of the Road Transport Corporation Act itself gives power to the Road Transport Corporation to prepare a scheme for the acquisition of road transport undertaking "in accordance with the law for the time being in force in the State concerned". This shows that the power under Section 19 (2) (c) is subject to any State law. Section 4 of the impugned ordinance is a State law. In this view of the matter we are not concerned in this case with the question that as Section 19 (1) (c) has occupied the field, the State legislature could not enact Section 4. It has kept the field open for the State law.18. It is true that Section 4 of the Ordinance does not amend the definition provision Sectionfor all future times. That is so, because the object of Section 4 is to validate the scheme already prepared and published by the General Manager of a State Transport Undertaking. It does not, however, affect the substance of the matter. Theof Section 4 relates to Item 35 and 42 of List III and not Item 43, of List I.19. Counsel for the appellants have cited a number of cases in support of their argument. It is not necessary to cite them, for we do not think that they throw any useful light on the issue before us.
| 0 | 1,880 |
### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
### Input:
1950 is made by Parliament under Item 43 of List I. Section 19(2)(c) enables the Road Transport Corporation, "to prepare schemes for the acquisition of, and to acquire, either by agreement of compulsorily in accordance with law of acquisition for the time being in force in the State concerned and with such procedure as may be prescribed, whether absolutely or for a any period, the whole or any part of any undertaking of any other person to the extent to which the activities thereof consist of the operation of road transport services in that State or in any extended area."12. We now pass on to Chapter IV-A of the Motor Vehicles Act. Section 68A is the definition provision. Clause (b) thereof defines the "State Transport Undertaking". It means any undertaking providing road transport service, where such undertaking is carried on by (i) the Central Government or a State Government (ii) any Road Transport Corporation established under Section 3 of the Road Transport Corporation Act, 1950, and (iii) any municipality or any corporation or company owned or controlled by the Central Government or one or more State Governments, or by the Central Government and one or more State Governments.13. Section 68B provides that the provisions of Chapter IV-A and the Rules and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law, Section 68C provides that where any State Transport Undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion complete or partial, of other persons or otherwise, the State Transport Undertaking may prepare a scheme giving particulars of the nature of the service proposed to be renered, the area of route proposed to be covered and such other particulars respecting thereto as may be prescribed and shall cause every such scheme to be published in the Official Gazette and also in such other manner at the State Government may direct".14. Acting under this provision read with Rules 3 and 4, the General Manager of the Rajasthan State Road Transport Corporation has prepared and published the impugned schemes of nationalisation of routes.15. It is not disputed by the appellant that the subject-matter of Chapter IV-A falls within Items 35 and 42 of List III. It would accordingly follow that Section 68-A the definition clause, also is a law with respect to those very items. Section 4 of the Ordinance declares that any scheme prepared and published under Section 68-C by the General Manager of State Transport Undertaking shall be deemed to have been prepared or published by the State Transport Undertaking. It also provides that the scheme shall not be questioned in any court or before any authority merely on the ground that the same has been prepared or published by the General Manager. It may be observed that Section 4 makes no amendment in the Road Transport Corporation Act. It does not directly affect the power of the Road Transport Corporation under Section 19(2)(c) of the said Act. It has attempted to insert a new Section 68-CC in Chapter IV-A of the Motor Vehicles Act. By this new section it has validated the scheme prepared and published by the General Manager of a State Transport Undertaking as defined in Section 68-C.16.We have little doubt in our mind that the subject-matter of Section 4 clearly falls within Items 35 and 42 of List III and not within Item 43 of List I. The subject-matter is the conferment of power of acquisition of a road transport undertaking on the General Manager of the State Transport Undertaking. It has direct concern with acquisition. It has no concern with incorporation, regulation and winding up of trading corporations. The constitutionality of the law is to be determined by its real subject-matter and not by the incidental effect which it may have on any topic of legislation in List 1. (See Prafulla Kumar Mukherjee v. Bank of Commerce ltd. Khulna, 1947 FCR 28 = (AIR 1947 PC 60 ) and Kannan Devan Hills Produce Co. Ltd. v. The State of Kerala (1973) 1 SCR 856 at pp. 869, 870 = (AIR 1972 SC 2301 ).17. It is important to observe that Section 19 (2) (c) of the Road Transport Corporation Act itself gives power to the Road Transport Corporation to prepare a scheme for the acquisition of road transport undertaking "in accordance with the law for the time being in force in the State concerned". This shows that the power under Section 19 (2) (c) is subject to any State law. Section 4 of the impugned ordinance is a State law. In this view of the matter we are not concerned in this case with the question that as Section 19 (1) (c) has occupied the field, the State legislature could not enact Section 4. It has kept the field open for the State law.18. It is true that Section 4 of the Ordinance does not amend the definition provision Section 68-C for all future times. That is so, because the object of Section 4 is to validate the scheme already prepared and published by the General Manager of a State Transport Undertaking. It does not, however, affect the substance of the matter. The subject-matter of Section 4 relates to Item 35 and 42 of List III and not Item 43, of List I.19. Counsel for the appellants have cited a number of cases in support of their argument. It is not necessary to cite them, for we do not think that they throw any useful light on the issue before us.
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678 |
Kunjukutty Sahib & Others Vs. State of Kerala & Others
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Provided that where any person bona fide believes that the ownership or possession of any land owned or held by such person or, where such person is a member of a family, by the members of such family, is liable to be purchased by the cultivating tenant or kudikidappukaran or to be resumed by the landowner or the intermediary under the provisions of this Act, the extent of the land so liable to be purchased or to be resumed shall not be taken into account in calculating the extent of the land to be surrendered under this subsection. Explanation: Where any land owned or held by a family or adult unmarried person owing or holding land in excess of the ceiling area was transferred by such family or any member thereof or by such adult unmarried person, as the case may be, after the 18th December, 1957, and on or before the date of publication of the Kerala Land Reforms Bill, 1963, in the Gazette, otherwise than- (i) by way of partition; or (ii) on account of natural love and affection; or (iii) in favour of a person who was a tenant of the holding before the 18th December, 1957, and continued to be so till the date of transfer; or (iv) in favour of a religious, charitable or educational institution of a public nature solely for the purposes of the institution, the extent of land owned or held by such family or adult unmarried person shall be calculated for purposes of fixing the extent of land to be surrendered under this section as if such transfer had not taken place, and such family or adult unmarried person shall be bound to surrender an extent of land which would be in excess of the ceiling area on such calculation, or, where such family or person does not own or hold such extent of land, the entire land owned or held by the family or person but nothing in this Explanation shall affect the rights of the transferee under the transfer." The High Court struck down this provision with the following observations:"Section 85 provides for the surrender of excess land, but sub-sec (1) thereof contains an explanation which we think cannot stand. Under the explanation, subject to certain exceptions, any land transferred by a person holding land in excess of the ceiling area between the 18th December, 1957 (the date of publication of the (Kerala Agrarian Relations Bill) and the date of the publication of the Keral Land Reforms Bill 1963 (here we think that ceiling means the ceiling area under the Act, for it does not appear there was any ceiling area during the period in question) is to be regarded as still held by him for the purpose of fixing the extent of land to be surrendered by him and such surrender is to be made out of the land still held by him. This can lead to absurd results. For example, supposing a person holding land just one cent in excess of the ceiling area had transferred some lands between the dates mentioned and bought the lands now held by him, possibly at a higher price, he will have to surrender all his land for the nominal compensation provided by section 88. No doubt, absurdities like this can only be attacked under Article 14, 19 or 31 which are not available in the case of a legislation protected by Art. 31-A, but, there is the second proviso to sub-clause (a) of clause (1) of the article which enjoins the payment of compensation not less than the market value for the acquisition of any land within the ceiling limit under the law for the time being in force. The effect of the explanation is to offend this proviso since it means that even land held by a person within the ceiling limit applicable to him under the Act (the law for the time being in force within the meaning of the article) can be taken away for the nominal compensation payable under section 88, by the fiction of regarding lands disposed of by him within the dates mentioned as if those lands were still held by him although the transfer remains untouched, in other words, as if the ceiling limit for such a person is different from the ceiling limits for persons who had not disposed of land between the relevant dates. That is not so. The ceiling limits imposed by the Act are the same for all, but, in the case of a person who has so disposed of land, that land is to be regard as still held by him (although, in fact, it is not) for the purpose of calculating the extent of the land to be surrendered by him, and the surrender is to be made out of the land still held, even if its effect be to leave him with land less than the ceiling limit, indeed with no land at all. If a fiction by which land not held by a person could be taken into account for the determination of the excess land to be surrendered by him, and he could be forced to surrender land actually held by him although it is within the ceiling limit without payment of the market value thereof, were permitted, the proviso in question could easily be rendered nugatory. That would be to mock the proviso." 12. This reasoning seems to us to be unexceptionable and the learned Advocate General was wholly unable to offer any serious criticism of these observations. It is clear that by virtue of the second proviso to Art. 31-A (1) land within the ceiling limit is expressly protected against acquisition by the State unless the law relating to such acquisition provides for compensation which is not less than its market value. No attempt was made to take the impugned explanation out of this constitution inhibition. We, therefore, do not find any reason to differ from the conclusions of the High Court.
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0[ds]To reduce the indebtedness of the tenants appreciably is a reasonable restriction on the right of the creditors and the law thus providing for amelioration of indebtedness of tenants deserves to be upheld as constitutional. We grant that amelioration of indebtedness of tenants is a laudable and desirable object. But the person to whom the arrears of rent are due is also entitled to seek protection of his legitimate right and if the acquisition of arrears of rent is outside the protection of Art. 31-A then the impugned provision can not but be held invalid. It prima facie partakes of the character of forfeiture or confiscation of the discharged arrears. Article 39 of the Constitution to which reference was made can be implemented by other permissible means without violating or abridging the just and legitimate rights of those to whom the arrears of rents are due. Section 73, therefore, in our opinion, was rightly struck down by the majority opinionWe grant that amelioration of indebtedness of tenants is a laudable and desirable object. But the person to whom the arrears of rent are due is also entitled to seek protection of his legitimate right and if the acquisition of arrears of rent is outside the protection of Art. 31-A then the impugned provision can not but be held invalid. It prima facie partakes of the character of forfeiture or confiscation of the discharged arrears. Article 39 of the Constitution to which reference was made can be implemented by other permissible means without violating or abridging the just and legitimate rights of those to whom the arrears of rents are due. Section 73, therefore, in our opinion, was rightly struck down by the majority opinionIt is clear that by virtue of the second proviso to Art. 31-A (1) land within the ceiling limit is expressly protected against acquisition by the State unless the law relating to such acquisition provides for compensation which is not less than its market value. No attempt was made to take the impugned explanation out of this constitution inhibition. We, therefore, do not find any reason to differ from the conclusions of the High CourtIt was not disputed that the ceiling limit fixed by the amended Act was within the competence of the legislature to fix; nor was it contended that the ceiling fixed by the original unamended Act by itself debarred the legislature from further reducing the ceiling limit so fixed. Prior to the amendment undoubtedly no land within the personal cultivation of the holder under the unamended Act within the ceiling limit fixed thereby could be acquired without payment of compensation according to the market value, but once ceiling limit was changed by the amended Act the second Proviso to Art. 31-A (1) must be held to refer only to the new ceiling limit fixed by the amended Act. The ceiling limit originally fixed ceased to exist for future the moment it was replaced by the amended Act. The prohibition contained in the second proviso operates only within the ceiling limit fixed under the existing law at the given time. It is true that the new ceiling was fixed contemporaneously with the acquisition of the land in excess of that ceiling limit. But it was not contended that a law so fixing the ceiling limit and acquiring the land in excess would offend any provision of the Constitution. This submission must, therefore, be rejectedIt is agreed at the bar that there is no case before us on the facts and circumstances of which this rider can operate. It is also stated atTo encourage trespass by conferring rights on trespassers, even on trespassers against whom there is a decree for possession, cannot, it is said, be regarded as a measure of agrarian reform. That might well be so, but, we are not called upon to consider the validity of the proviso in question since, so far as the cases before us are concerned, the application of the proviso is a mere theoretical possibility. In none of the cases is it said that there is any person claiming the benefit of the proviso against the petitioner concerned, and the challenge to the proviso must be left to be decided in a case where the question actually arisesWe should, however, like to make it clear that we express no opinion where the provisions of this Act are utilised for lands which are not agricultural lands and do not constitute estates nor where the beneficiary happens to be a person not substantially connected with agriculture, occupying non-agricultural land or where the facts are not covered by the general test laid down in the case of Ranjit Singh (supra)This point was not canvassed even in the High Court. This Court, as a rule, does not decide questions which are not necessary for determining or resolving the actual controversy arising in the case.Such opinions partake of the nature of obiter. Without deciding any hypothetical question posed before us we consider it sufficient for our present purpose to point out that extinguishment or modification of landlords rights vis-a-vis the tenant would also be within the ambit of Article 31-A of the Constitution if otherwise it is related to agrarian reforms. Section 72 is accordingly not liable to be struck down on this ground.
| 0 | 5,571 |
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Provided that where any person bona fide believes that the ownership or possession of any land owned or held by such person or, where such person is a member of a family, by the members of such family, is liable to be purchased by the cultivating tenant or kudikidappukaran or to be resumed by the landowner or the intermediary under the provisions of this Act, the extent of the land so liable to be purchased or to be resumed shall not be taken into account in calculating the extent of the land to be surrendered under this subsection. Explanation: Where any land owned or held by a family or adult unmarried person owing or holding land in excess of the ceiling area was transferred by such family or any member thereof or by such adult unmarried person, as the case may be, after the 18th December, 1957, and on or before the date of publication of the Kerala Land Reforms Bill, 1963, in the Gazette, otherwise than- (i) by way of partition; or (ii) on account of natural love and affection; or (iii) in favour of a person who was a tenant of the holding before the 18th December, 1957, and continued to be so till the date of transfer; or (iv) in favour of a religious, charitable or educational institution of a public nature solely for the purposes of the institution, the extent of land owned or held by such family or adult unmarried person shall be calculated for purposes of fixing the extent of land to be surrendered under this section as if such transfer had not taken place, and such family or adult unmarried person shall be bound to surrender an extent of land which would be in excess of the ceiling area on such calculation, or, where such family or person does not own or hold such extent of land, the entire land owned or held by the family or person but nothing in this Explanation shall affect the rights of the transferee under the transfer." The High Court struck down this provision with the following observations:"Section 85 provides for the surrender of excess land, but sub-sec (1) thereof contains an explanation which we think cannot stand. Under the explanation, subject to certain exceptions, any land transferred by a person holding land in excess of the ceiling area between the 18th December, 1957 (the date of publication of the (Kerala Agrarian Relations Bill) and the date of the publication of the Keral Land Reforms Bill 1963 (here we think that ceiling means the ceiling area under the Act, for it does not appear there was any ceiling area during the period in question) is to be regarded as still held by him for the purpose of fixing the extent of land to be surrendered by him and such surrender is to be made out of the land still held by him. This can lead to absurd results. For example, supposing a person holding land just one cent in excess of the ceiling area had transferred some lands between the dates mentioned and bought the lands now held by him, possibly at a higher price, he will have to surrender all his land for the nominal compensation provided by section 88. No doubt, absurdities like this can only be attacked under Article 14, 19 or 31 which are not available in the case of a legislation protected by Art. 31-A, but, there is the second proviso to sub-clause (a) of clause (1) of the article which enjoins the payment of compensation not less than the market value for the acquisition of any land within the ceiling limit under the law for the time being in force. The effect of the explanation is to offend this proviso since it means that even land held by a person within the ceiling limit applicable to him under the Act (the law for the time being in force within the meaning of the article) can be taken away for the nominal compensation payable under section 88, by the fiction of regarding lands disposed of by him within the dates mentioned as if those lands were still held by him although the transfer remains untouched, in other words, as if the ceiling limit for such a person is different from the ceiling limits for persons who had not disposed of land between the relevant dates. That is not so. The ceiling limits imposed by the Act are the same for all, but, in the case of a person who has so disposed of land, that land is to be regard as still held by him (although, in fact, it is not) for the purpose of calculating the extent of the land to be surrendered by him, and the surrender is to be made out of the land still held, even if its effect be to leave him with land less than the ceiling limit, indeed with no land at all. If a fiction by which land not held by a person could be taken into account for the determination of the excess land to be surrendered by him, and he could be forced to surrender land actually held by him although it is within the ceiling limit without payment of the market value thereof, were permitted, the proviso in question could easily be rendered nugatory. That would be to mock the proviso." 12. This reasoning seems to us to be unexceptionable and the learned Advocate General was wholly unable to offer any serious criticism of these observations. It is clear that by virtue of the second proviso to Art. 31-A (1) land within the ceiling limit is expressly protected against acquisition by the State unless the law relating to such acquisition provides for compensation which is not less than its market value. No attempt was made to take the impugned explanation out of this constitution inhibition. We, therefore, do not find any reason to differ from the conclusions of the High Court.
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679 |
Vijay Vs. State of Maharashtra
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aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt very often circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of the crime imputed to him. An a priori suspicion that the accused has committed the crime transforms itself into a facile belief that it is he who has committed the crime. Human mind plays that trick on proof of the commission of 9 crime by resisting the frustrating feeling that no one can be identified as the author of that crime. In the case before us, there is no doubt that five persons were murdered. Unquestionably, every effort had to be made to find out who committed those murders. But the duty is not done by holding someone or the other guilty somehow or other. In the instant case, the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed by the appellant. The very pattern of the crime belies that conclusion. We are unable to share the High Courts view that the evidence showing that the appellant was present with the deceased persons on the evening of Nov. 8, 1980 and he was then missing from there on the next morning proves the offences alleged against the appellant beyond any shadow of doubt. In support of its conclusion that the appellant had committed the murders, the High Court has even pressed into service the circumstances that the appellant was not present at the place from which the dead bodies were recovered the next morning. These are equivocal circumstances on which it is hazardous to base the conviction. Considering the aforesaid principle laid down by the Apex Court, in our view, the fact mentioned in Marg report. (Exh. 4. 9) to the effect that yesterday night by closing the door again went to sleep being of an incriminating character is inadmissible under Section 25 of the Evidence Act. ( 13 ) FURTHER, the Apex Court in the case of Prem Thakur v. State of Punjab (supra), where the accused was seen with others in the company of the deceased, observed that there was nothing unnatural in the appellant being in the company of them, and did not find the circumstance that the appellant was last seen in the company of the deceased, though accepted as proved, sufficient to draw an inference there from that the appellant therein had committed the murder. In the present case, admittedly besides the accused there were other members of his family in the house and, therefore, even if it is assumed that the accused was last seen in the company of the deceased, it cannot be inferred from the said circumstance that it was the appellant who committed the murder of his wife.( 14 ) ADMITTEDLY, a report on the basis of which Marg (Exh. 49) was registered has not been produced on record for the reasons best known to the prosecution. Similarly, an author of Marg (Exh. 49) has also not been examined. It is contended by the prosecution that Marg (Exh. 49) bears the signature of the accused but no specific question in this behalf was put to the accused when he was examined under Section 313 of Criminal Procedure Code. The portion yesterday night by closing the door again went to sleept appearing in the said Marg (Exh. 49) being of an incriminating character in our view is not admissible as is barred under Section 25 of the Evidence Act. In this view of the matter we find considerable force in the aforesaid submission made by Shri Daga the learned Counsel for the appellant/accused. We also find that the learned trial Judge erred in placing much reliance on the said Marg report (Exh. 49). It is well-established that inference of guilt can be justified only where all incriminating facts are found incompatible with the innocence of the accused. In the present case in our view, if this Marg report (Exh. 49) is discarded, then there remains no other clinching evidence on record to prove the complicity of the accused regarding the offence in question particularly when in support of his plea of alibi, the accused has adduced the evidence of D. W. 1 Kawdu Jadhav whose evidence in our view has been wrongly discarded by the learned trial Judge only on the ground that no petrol pump man where the accused purchased the petrol in that night was examined and no receipt for the purchase of petrol was produced by him on record. ( 15 ) IT is true that in F. I. R. (Exh. 39) on the basis of which the present crime was registered, the accused made a confessional statement that he himself committed the murder of his wife Mala. In this behalf the Apex Court has consistently held that a confessional statement made by the accused to the police which forms the basis of the F. I. R. is inadmissible under Section 25 of the Evidence Act. In Khatris case cited supra also the Apex Court took similar view. It is true that the trial Court has not placed any reliance on the aforesaid confessional statement made by the accused in F. I. R. (Exh. 39) and, in our view, rightly. So this document is also of no avail to the prosecution for establishing its case against the accused. ( 16 ) IN this view of the matter we find that the evidence which was led by the prosecution to prove its case was not such on the basis of which the appellant/accused could have been convicted.
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1[ds]( 12 ) UNDISPUTEDLY the prosecution case basically hinges upon an important circumstance based on the theory of last seen together. It isthat in a case of circumstantial evidence where evidence of the accused and the deceased having been last seen together before the murder is relied upon and there is failure of the accused to satisfactorily account for the disappearance of the deceased the circumstance of the deceased having been last seen alive in the company of the accused will have to be taken as a circumstance of incriminating character. It is no doubt true that in Kanda Padayachis case cited supra on behalf of the State it is held by the Apex Court that on an admission of a fact however incriminating but by not itself establishing the guilt of the maker of such admission does not amount to confession and admissibility of such statement is not barred under Section 26. However, in Rhatris case cited supra on behalf of the appellant I accused, the Apex Court held that a confessional statement made by the accused to the police is inadmissible as is barred under Section 25 of the Evidence Act. Further, in a decision in Prem Thakur v. State of Punjab (supra) the Apex Court observed as under:117 The circumstances that the appellant was last seen in the company of the deceased can be accepted as proved but no inference can arise therefrom that appellant had committed their murder. The appellant was working with the deceased and others and there was nothing unnatural in the appellant being in the company of his companions on the evening before the murders were committed. In the present case admittedly, the prosecution depends wholly uponcircumstantial evidence and when the prosecution case hinges only upon circumstantial evidence then the Apex court in its aforesaid decision held in paragraph No. 11 as under: 11. The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt very often circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of the crime imputed to him. An a priori suspicion that the accused has committed the crime transforms itself into a facile belief that it is he who has committed the crime. Human mind plays that trick on proof of the commission of 9 crime by resisting the frustrating feeling that no one can be identified as the author of that crime. In the case before us, there is no doubt that five persons were murdered. Unquestionably, every effort had to be made to find out who committed those murders. But the duty is not done by holding someone or the other guilty somehow or other. In the instant case, the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed by the appellant. The very pattern of the crime belies that conclusion. We are unable to share the High Courts view that the evidence showing that the appellant was present with the deceased persons on the evening of Nov. 8, 1980 and he was then missing from there on the next morning proves the offences alleged against the appellant beyond any shadow of doubt. In support of its conclusion that the appellant had committed the murders, the High Court has even pressed into service the circumstances that the appellant was not present at the place from which the dead bodies were recovered the next morning. These are equivocal circumstances on which it is hazardous to base the conviction. Considering the aforesaid principle laid down by the Apex Court, in our view, the fact mentioned in Marg report. (Exh. 4. 9) to the effect that yesterday night by closing the door again went to sleep being of an incriminating character is inadmissible under Section 25 of the Evidence14 ) ADMITTEDLY, a report on the basis of which Marg (Exh. 49) was registered has not been produced on record for the reasons best known to the prosecution. Similarly, an author of Marg (Exh. 49) has also not been examined. It is contended by the prosecution that Marg (Exh. 49) bears the signature of the accused but no specific question in this behalf was put to the accused when he was examined under Section 313 of Criminal Procedure Code. The portion yesterday night by closing the door again went to sleept appearing in the said Marg (Exh. 49) being of an incriminating character in our view is not admissible as is barred under Section 25 of the Evidence Act. In this view of the matter we find considerable force in the aforesaid submission made by Shri Daga the learned Counsel for the appellant/accused. We also find that the learned trial Judge erred in placing much reliance on the said Marg report (Exh. 49). It isthat inference of guilt can be justified only where all incriminating facts are found incompatible with the innocence of the accused. In the present case in our view, if this Marg report (Exh. 49) is discarded, then there remains no other clinching evidence on record to prove the complicity of the accused regarding the offence in question particularly when in support of his plea of alibi, the accused has adduced the evidence of D. W. 1 Kawdu Jadhav whose evidence in our view has been wrongly discarded by the learned trial Judge only on the ground that no petrol pump man where the accused purchased the petrol in that night was examined and no receipt for the purchase of petrol was produced by him on15 ) IT is true that in F. I. R. (Exh. 39) on the basis of which the present crime was registered, the accused made a confessional statement that he himself committed the murder of his wife Mala. In this behalf the Apex Court has consistently held that a confessional statement made by the accused to the police which forms the basis of the F. I. R. is inadmissible under Section 25 of the Evidence Act. In Khatris case cited supra also the Apex Court took similar view. It is true that the trial Court has not placed any reliance on the aforesaid confessional statement made by the accused in F. I. R. (Exh. 39) and, in our view, rightly. So this document is also of no avail to the prosecution for establishing its case against the16 ) IN this view of the matter we find that the evidence which was led by the prosecution to prove its case was not such on the basis of which the appellant/accused could have been convicted.
| 1 | 3,105 |
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aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt very often circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of the crime imputed to him. An a priori suspicion that the accused has committed the crime transforms itself into a facile belief that it is he who has committed the crime. Human mind plays that trick on proof of the commission of 9 crime by resisting the frustrating feeling that no one can be identified as the author of that crime. In the case before us, there is no doubt that five persons were murdered. Unquestionably, every effort had to be made to find out who committed those murders. But the duty is not done by holding someone or the other guilty somehow or other. In the instant case, the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed by the appellant. The very pattern of the crime belies that conclusion. We are unable to share the High Courts view that the evidence showing that the appellant was present with the deceased persons on the evening of Nov. 8, 1980 and he was then missing from there on the next morning proves the offences alleged against the appellant beyond any shadow of doubt. In support of its conclusion that the appellant had committed the murders, the High Court has even pressed into service the circumstances that the appellant was not present at the place from which the dead bodies were recovered the next morning. These are equivocal circumstances on which it is hazardous to base the conviction. Considering the aforesaid principle laid down by the Apex Court, in our view, the fact mentioned in Marg report. (Exh. 4. 9) to the effect that yesterday night by closing the door again went to sleep being of an incriminating character is inadmissible under Section 25 of the Evidence Act. ( 13 ) FURTHER, the Apex Court in the case of Prem Thakur v. State of Punjab (supra), where the accused was seen with others in the company of the deceased, observed that there was nothing unnatural in the appellant being in the company of them, and did not find the circumstance that the appellant was last seen in the company of the deceased, though accepted as proved, sufficient to draw an inference there from that the appellant therein had committed the murder. In the present case, admittedly besides the accused there were other members of his family in the house and, therefore, even if it is assumed that the accused was last seen in the company of the deceased, it cannot be inferred from the said circumstance that it was the appellant who committed the murder of his wife.( 14 ) ADMITTEDLY, a report on the basis of which Marg (Exh. 49) was registered has not been produced on record for the reasons best known to the prosecution. Similarly, an author of Marg (Exh. 49) has also not been examined. It is contended by the prosecution that Marg (Exh. 49) bears the signature of the accused but no specific question in this behalf was put to the accused when he was examined under Section 313 of Criminal Procedure Code. The portion yesterday night by closing the door again went to sleept appearing in the said Marg (Exh. 49) being of an incriminating character in our view is not admissible as is barred under Section 25 of the Evidence Act. In this view of the matter we find considerable force in the aforesaid submission made by Shri Daga the learned Counsel for the appellant/accused. We also find that the learned trial Judge erred in placing much reliance on the said Marg report (Exh. 49). It is well-established that inference of guilt can be justified only where all incriminating facts are found incompatible with the innocence of the accused. In the present case in our view, if this Marg report (Exh. 49) is discarded, then there remains no other clinching evidence on record to prove the complicity of the accused regarding the offence in question particularly when in support of his plea of alibi, the accused has adduced the evidence of D. W. 1 Kawdu Jadhav whose evidence in our view has been wrongly discarded by the learned trial Judge only on the ground that no petrol pump man where the accused purchased the petrol in that night was examined and no receipt for the purchase of petrol was produced by him on record. ( 15 ) IT is true that in F. I. R. (Exh. 39) on the basis of which the present crime was registered, the accused made a confessional statement that he himself committed the murder of his wife Mala. In this behalf the Apex Court has consistently held that a confessional statement made by the accused to the police which forms the basis of the F. I. R. is inadmissible under Section 25 of the Evidence Act. In Khatris case cited supra also the Apex Court took similar view. It is true that the trial Court has not placed any reliance on the aforesaid confessional statement made by the accused in F. I. R. (Exh. 39) and, in our view, rightly. So this document is also of no avail to the prosecution for establishing its case against the accused. ( 16 ) IN this view of the matter we find that the evidence which was led by the prosecution to prove its case was not such on the basis of which the appellant/accused could have been convicted.
### Response:
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680 |
Pheroze Kudianavala Consultants Private Limited Vs. Foreign Exchange Regulation Appellate Board
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and the directors claiming that though the Company had right to receive foreign exchange, by non-action the recovery was delayed. The adjudicating authority merely observed that as the amount was due to the Company from various parties and the Company was unable to show what efforts were made to realise the same, the Company had contravened Section 16 (1) (a) of the Act and the Directors were liable to imposition of penalty under Section 68 (1)of the Act. The appellate authority, relying upon the decision of the Madras high Court reported in AIR 1989 Mad 141 and to which the reference is made hereinabove, held that the action for breach of sub-section (1) of Section 16 was not permissible in absence of any directions under sub-section (2 ). Shri Zaiwala submitted that the conclusion of the appellate authority on this aspect is erroneous and the submission is of considerable merit. We have already held that the decision of the Madra High Court holding that the contravention under sub-section (1) of Section 16 of the Act does not take place in absence of direction given under sub-section (2) of Section 16 of the act is not correct. Shri Zaiwala, therefore, submitted that the proceedings should be remitted back to the appellate authority to examine the claim on merits. We are not prepared to accede to the demand for several reasons. It would not be prudent to remit the proceedings back to the appellate authority and put the parties to considerable expenses when the proceedings are pending for over several years. Secondly, the remand to the appellate authority could only be for the purpose of examining whether even on merits, the conclusion that the Company and the Directors are not liable in respect of charge covered by Show Cause Notice No. V is correct or otherwise. Shri Zaiwala very fairly stated that all the facts relevant for establishing the charge against the Company and the Directors are on record. In these circumstances, in our judgment, the appropriate course is to examine the facts in this appeal and determine whether the conclusion of the appellate authority can be sustained on merits. Accordingly, we heard Shri Zaiwala and shri Nariman on merits of the charge covered by Show Cause Notice No. V. In our judgment, the charge covered by Show Cause Notice No. V cannot be sustained. The charge was tried to be sustained by the Department by merely relying upon the statement of the Chairman recorded on March 4, 1983. The perusal of the statement leaves on manner of doubt that the company was not guilty of delaying the recovery of amount which was due. The contravention under Section 16 (1) (a) takes place when a person has a right to receive foreign exchange and intentionally delays the receipt thereof. The contravention cannot be assumed even if there is no intention and the delay occurs for reasons which are beyond the control of the person. Shri Nariman submitted that the statement of the Chairman recorded by the enforcement Directorate clearly pointed out the steps taken for realisation of dues from parties based at Behrain and the inability to recover the same. The learned Counsel further pointed out that the Company was indebted to Bank of Baroda in respect of the projects undertaken in Behrain and other countries and that debt was discharged inspite of the fact that the company could not recover anything from the parties based at Behrain. There is considerable merit in the submission of the learned counsel that the company cannot be faulted because though the Company had right to receive, the payment could not be recovered. The delay on the facts and circumstances of the case cannot be because of any inaction and that too intentionally on the part of the Company. The company was to recover a substantial amount from the Defence Forces of behrain Government and the other debtors were also residents of Behrain. The statement of the Chairman indicates that the Defence Forces were not even willing to meet the representative of the Company. The statement further establishes that the Government of India as well as the Reserve Bank of India declined to give any assistance. It is not difficult to imagine that the Company could not have instituted any legal action at Behrain without the requisite foreign exchange and even if the foreign exchange is available, it would be extremely difficult to prosecute actions on a foreign soil. Shri Zaiwala could not dispute the accuracy of the statements made by the Chairman before the enforcement authorities and, therefore, it is impossible to hold that the company had contravened the provisions of Section 16 (1) (a) of the Act by intentionally delaying recovery of the amount which the Company had a right to receive. It is impossible on facts relied upon by the Department to bold that the Company was liable to penalty for contravention. As the Company was not liable, the question of holding the Directors liable does not arise. In our judgment, on merits, the charge levelled by Show Cause Notice No. V is not, at all, sustainable. Shri Zaisvala was unable to explain why the Enforcement department waited almost for more than three years to serve Show Cause notices in respect of alleged violation in the year 1982. In these circumstances, in our judgment, the order of the appellate authority in respect of Show Cause notice No. V is not required to be disturbed, though for different reasons. 9. Shri Nariman very fairly stated that the Original Side Appeal No 41 of 1990 will not survive in view of the disposal of the remaining appeals. This appeal was preferred to challenge the order of summary dismissal of Writ petition and which was filed due to the apprehension that the Enforcement directorate will launch prosecution against the Company and the Directors. The apprehension no longer survives as all the Show Cause Notices stand discharged and, therefore, Appeal No. 41 of 1990 does not survive.
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0[ds]It is not in dispute that the contract between the Company and the Governing board of the Indian School for construction of School is not by a written document but is to be gathered from the correspondence. The first letter from Indian School, Behrain is dated April 13, 1977 and was addressed to the Chairman of the Company. The letter, inter alia, recites that the Indian school confirms the design prepared by the Company and also confirms the appointment of the Company as consulting Architects. The letter further recites that the professional services in contention with the project will be at the rate of 6% of the total cost of the project excluding the value of the land. The next letter is dated, September 22, 1977 from the Chairman of the board of Governors of the Indian School to the State Bank of India who were the Companys Bankers in Behrain. The letterrecites that under the terms of the agreement, the Company is entitled to 6% of the project cost. The next letter is dated January 6, 1978 from the Chairman of the Board to Shri Srivasan, Vice President of the Company and the letter notes the gesture made by the Vice President at the Board meeting of September 9, 1977 to contribute to the worthy cause of School by donating an amount almost equal to 50% of the Companys fees. The next letter is dated march 30, 1978 from the Chairman of the Board of Governors of Indian school, Behrain to the Vice President of the Company andrecites that the Vice President desired a letter from the Chairman of the Board to facilitate opening of Bank account and which would givefacility the letter notes that the Vice President desired that the consultancy fees should be mentioned at the rate of 6% of the total amount of the project in order not to lower the standing of the Company in the business world although the Company will ultimately make a donation to the school almost equal to 50% of the fees charged. Thereafter on December 16, 1980, a telex message was forwarded by Dubai Office to the Company in Bombay and where the fact of reducing the fees to 3% of the cost of the project was referred to. On October 2, 1979, the Chairman of the Company informed the Vice President Shri Srinivasan that reducing the rate of agreed fees in connection with the Indian School at Behrain would cause a pecuniary loss and would face acute embarrassment as the Reserve Bank of India will never believe that the fees were reduced and that too without anything in writing. Thereafter, the statement of the Chairman was recorded on January 30, 1980 and December 2, 1980 by the Chief Enforcement Officer, Bombay in respect of the reduction of fees and the Chairman clearly stated that the reduction was agreed because the Indian community in Behrain, the Bankers of the company and the Indian Embassy staff requested to reduced the fees. On this material, it was contended that it is impossible to conclude that the company has right to receive 6% of the total amount of the cost of the project. The appellate authority declined to accept the claim of the Company on three counts. The first reason is that there was no written agreement between the parties altering the original rate, the second ground is that the wording of the Minutes of the meeting of the Board of Governors does not equivocally state that the Company agreed to reduce the rate. The third reason is that the intention of the Company to honour the promise of giving concession to the School as reflected in the minutes do not go to the extent of pinning down to a 50% concession. In our judgment, each of the reason is unsustainable. The appellate authority overlooked that the original contract was not reduced to writing but was reflected only in the correspondence and consequently alteration in respect of quantum of fees need not be by separate written agreement. The Minutes of the meeting did not unequivocally state that the Company is agreeable to reduce the quantum of fees is also not accurate The Minutes establish that the School authorities appreciated the gesture of the Company to reduce the fees by assuring to give donation of the amount equivalent of 50% of the consultancy fees The third reason that the Minutes do not go to the extent of pinning down to a 50% concession cannot establish that the Company had a right to receive 6% of the fees. It cannot be overlooked that the Company was trying to secure contracts in a foreign country and while undertaking the project of an Indian School in a foreign country was justified in giving concession and that too at the behest of the Indian community, the staff of the Indian Embassy and the Bankers of the Company. In these circumstances, the claim of the Company that the provisions of Section 16 (1) (b) of the Act are not attracted deserves acceptance. The contravention under Section 16 (1) of the Act can arise only when the Company has a right to receive foreign exchange Once, it is found that the Company had a right to receive only 3% of the total cost of the project of constructing School, then the charge levelled under Show Cause Notice no IV must fall to thethe present case, the Company had assured to donate before completion of the project and before determination as to what quantum of consultancy fees could be recovered The Company bad agreed to give 50% of the fees to the Indian School or in other words, to charge only 3% of the total cost of the project as fees. This agreement prior to the date of completion of the project, in our judgment, clearly establishes that the right to receive was only at 3% and not 6% as assumed by the department. In these circumstances, the appellate authority also found that the claim of the Company is a debatable one. In our judgment, once the appellate authority came to that conclusion, then it was not proper to uphold the order of adjudicating authority which was passed in quasi criminal jurisdiction. In these circumstances, the appeal preferred by the Company is required to be allowed and the levy of penalty on the Company in respect of violation of Section 16 (1) (b) of the Act in respect of charge covered by show Cause Notice No. IV is required to be setour judgment, on the facts and circumstances of the case, it is clear that the Directors cannot be treated as a person committing contravention because the liability is only of person who at the time of the contravention was in charge of and responsible for the Company. The plain reading of(1) of Section 68 of the Act makes it clear that the expression "other person" does not necessarily mean only the Directors. The Legislature contemplated that a person whether he is Director or otherwise will be liable provided such person was in charge of and responsible for the Company at the time of contravention. The claim of the Department is that the contravention took place when on behalf of the Company. Shri Srinivasan agreed to reduce the fees from 6% to 3%. It is not the claim of the department that any of the Directors of the Company were in charge of the affairs of the Company at Behrain at the time of contravention, but on the other hand, the evidence on record clearly establishes that Shri Srinivasan, the Vice President posted at Behrain was in sole charge of the affairs of the Company at behrain and if any contravention has takes place, only Shri Srinavasan could be held liable. Shri Zaiwala had no explanation why the show cause notice was not served against Shri Srinivasan but Shri Nariman submitted that the reason was that Shri Srinivasan was removed from service and at his behest the Enforcement Directorate had commenced proceedings. In our judgment, the appellate authority was not accurate in holding that the Chairman and the Director was liable under(1) of Section 68 of the Act but was entitled to be relieved because of the proviso toIn our judgment, on the facts and circumstances of the case,(1) is not attracted and, therefore, it was unnecessary to turn to the proviso. Even otherwise, we are unable to find any infirmity in the conclusion recorded by the appellate authority that the Directors could not be held responsible in view of proviso to sub section (1) as the Directors were not aware of the contravention and had exercised all due diligence to prevent such occurrence. In our judgment, the appeal preferred by the Department to challenge the order of the appellate authority holding that the Directors are not responsible for the contravention referred to in Show Cause Notice No. IV is not required to bewe heard Shri Zaiwala and shri Nariman on merits of the charge covered by Show Cause Notice No. V. In our judgment, the charge covered by Show Cause Notice No. V cannot be sustained. The charge was tried to be sustained by the Department by merely relying upon the statement of the Chairman recorded on March 4, 1983. The perusal of the statement leaves on manner of doubt that the company was not guilty of delaying the recovery of amount which was due. The contravention under Section 16 (1) (a) takes place when a person has a right to receive foreign exchange and intentionally delays the receipt thereof. The contravention cannot be assumed even if there is no intention and the delay occurs for reasons which are beyond the control of the person. Shri Nariman submitted that the statement of the Chairman recorded by the enforcement Directorate clearly pointed out the steps taken for realisation of dues from parties based at Behrain and the inability to recover the same. The learned Counsel further pointed out that the Company was indebted to Bank of Baroda in respect of the projects undertaken in Behrain and other countries and that debt was discharged inspite of the fact that the company could not recover anything from the parties based at Behrain. There is considerable merit in the submission of the learned counsel that the company cannot be faulted because though the Company had right to receive, the payment could not be recovered. The delay on the facts and circumstances of the case cannot be because of any inaction and that too intentionally on the part of the Company. The company was to recover a substantial amount from the Defence Forces of behrain Government and the other debtors were also residents of Behrain. The statement of the Chairman indicates that the Defence Forces were not even willing to meet the representative of the Company. The statement further establishes that the Government of India as well as the Reserve Bank of India declined to give any assistance. It is not difficult to imagine that the Company could not have instituted any legal action at Behrain without the requisite foreign exchange and even if the foreign exchange is available, it would be extremely difficult to prosecute actions on a foreign soil. Shri Zaiwala could not dispute the accuracy of the statements made by the Chairman before the enforcement authorities and, therefore, it is impossible to hold that the company had contravened the provisions of Section 16 (1) (a) of the Act by intentionally delaying recovery of the amount which the Company had a right to receive. It is impossible on facts relied upon by the Department to bold that the Company was liable to penalty for contravention. As the Company was not liable, the question of holding the Directors liable does not arise. In our judgment, on merits, the charge levelled by Show Cause Notice No. V is not, at all, sustainable. Shri Zaisvala was unable to explain why the Enforcement department waited almost for more than three years to serve Show Cause notices in respect of alleged violation in the year 1982. In these circumstances, in our judgment, the order of the appellate authority in respect of Show Cause notice No. V is not required to be disturbed, though for different reasons. 9. Shri Nariman very fairly stated that the Original Side Appeal No 41 of 1990 will not survive in view of the disposal of the remaining appeals. This appeal was preferred to challenge the order of summary dismissal of Writ petition and which was filed due to the apprehension that the Enforcement directorate will launch prosecution against the Company and the Directors. The apprehension no longer survives as all the Show Cause Notices stand discharged and, therefore, Appeal No. 41 of 1990 does not survive.
| 0 | 7,484 |
### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
and the directors claiming that though the Company had right to receive foreign exchange, by non-action the recovery was delayed. The adjudicating authority merely observed that as the amount was due to the Company from various parties and the Company was unable to show what efforts were made to realise the same, the Company had contravened Section 16 (1) (a) of the Act and the Directors were liable to imposition of penalty under Section 68 (1)of the Act. The appellate authority, relying upon the decision of the Madras high Court reported in AIR 1989 Mad 141 and to which the reference is made hereinabove, held that the action for breach of sub-section (1) of Section 16 was not permissible in absence of any directions under sub-section (2 ). Shri Zaiwala submitted that the conclusion of the appellate authority on this aspect is erroneous and the submission is of considerable merit. We have already held that the decision of the Madra High Court holding that the contravention under sub-section (1) of Section 16 of the Act does not take place in absence of direction given under sub-section (2) of Section 16 of the act is not correct. Shri Zaiwala, therefore, submitted that the proceedings should be remitted back to the appellate authority to examine the claim on merits. We are not prepared to accede to the demand for several reasons. It would not be prudent to remit the proceedings back to the appellate authority and put the parties to considerable expenses when the proceedings are pending for over several years. Secondly, the remand to the appellate authority could only be for the purpose of examining whether even on merits, the conclusion that the Company and the Directors are not liable in respect of charge covered by Show Cause Notice No. V is correct or otherwise. Shri Zaiwala very fairly stated that all the facts relevant for establishing the charge against the Company and the Directors are on record. In these circumstances, in our judgment, the appropriate course is to examine the facts in this appeal and determine whether the conclusion of the appellate authority can be sustained on merits. Accordingly, we heard Shri Zaiwala and shri Nariman on merits of the charge covered by Show Cause Notice No. V. In our judgment, the charge covered by Show Cause Notice No. V cannot be sustained. The charge was tried to be sustained by the Department by merely relying upon the statement of the Chairman recorded on March 4, 1983. The perusal of the statement leaves on manner of doubt that the company was not guilty of delaying the recovery of amount which was due. The contravention under Section 16 (1) (a) takes place when a person has a right to receive foreign exchange and intentionally delays the receipt thereof. The contravention cannot be assumed even if there is no intention and the delay occurs for reasons which are beyond the control of the person. Shri Nariman submitted that the statement of the Chairman recorded by the enforcement Directorate clearly pointed out the steps taken for realisation of dues from parties based at Behrain and the inability to recover the same. The learned Counsel further pointed out that the Company was indebted to Bank of Baroda in respect of the projects undertaken in Behrain and other countries and that debt was discharged inspite of the fact that the company could not recover anything from the parties based at Behrain. There is considerable merit in the submission of the learned counsel that the company cannot be faulted because though the Company had right to receive, the payment could not be recovered. The delay on the facts and circumstances of the case cannot be because of any inaction and that too intentionally on the part of the Company. The company was to recover a substantial amount from the Defence Forces of behrain Government and the other debtors were also residents of Behrain. The statement of the Chairman indicates that the Defence Forces were not even willing to meet the representative of the Company. The statement further establishes that the Government of India as well as the Reserve Bank of India declined to give any assistance. It is not difficult to imagine that the Company could not have instituted any legal action at Behrain without the requisite foreign exchange and even if the foreign exchange is available, it would be extremely difficult to prosecute actions on a foreign soil. Shri Zaiwala could not dispute the accuracy of the statements made by the Chairman before the enforcement authorities and, therefore, it is impossible to hold that the company had contravened the provisions of Section 16 (1) (a) of the Act by intentionally delaying recovery of the amount which the Company had a right to receive. It is impossible on facts relied upon by the Department to bold that the Company was liable to penalty for contravention. As the Company was not liable, the question of holding the Directors liable does not arise. In our judgment, on merits, the charge levelled by Show Cause Notice No. V is not, at all, sustainable. Shri Zaisvala was unable to explain why the Enforcement department waited almost for more than three years to serve Show Cause notices in respect of alleged violation in the year 1982. In these circumstances, in our judgment, the order of the appellate authority in respect of Show Cause notice No. V is not required to be disturbed, though for different reasons. 9. Shri Nariman very fairly stated that the Original Side Appeal No 41 of 1990 will not survive in view of the disposal of the remaining appeals. This appeal was preferred to challenge the order of summary dismissal of Writ petition and which was filed due to the apprehension that the Enforcement directorate will launch prosecution against the Company and the Directors. The apprehension no longer survives as all the Show Cause Notices stand discharged and, therefore, Appeal No. 41 of 1990 does not survive.
### Response:
0
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681 |
Rashtriya Mill Mazdoor Sangh Vs. State of Maharashtra and Others
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Central India Spinning, Weaving and Manufacturing Company Limited, with a view to securing the proper management of such undertaking so as to subserve the interest of the general public by ensuring the continued manufacture, production and distribution of textile and paper products which are essential to the needs of the economy of the country and for matters connected therewith or incidental theretoWHEREAS, the Central India Spinning, Weaving and Manufacturing Company Limited, being an existing company as defined in clause (ii) of sub-section (1) of Section 3 of the Companies Act, 1956 had been engaged in the manufacture and production of yarn, cloth and paper through its undertaking which was composite textile mill and paper manufacturing unit, styled as the Central India Spinning, Weaving and Manufacturing Company Limited, The Empress Mills, Nagpur; AND WHEREAS, in Petition No. 183 of 1986 filed by the Company for voluntary winding up, the High Court of Bombay had made an order for appointment of the provisional liquidator and the proceedings for its liquidation were pending; AND WHEREAS, the company had declared lockout throwing about more than 6000 workers out of employment and the undertaking has not been functioning since 3rd May, 1986 AND WHEREAS, it was expedient to acquire the undertaking of the said Company to ensure that the interest of the general public and of the employees of the undertaking were served by the continuance, by the undertaking of the said Company, of the manufacture, production and distribution of textile and paper products which are essential to the needs of the country and to provide for matters connected therewith or incidental thereto; AND WHEREAS, such acquisition is giving effect to the policy of the State towards securing the principle specified in clause (b) of Article 39 of the Constitution 4. The provisions contained in the Act have to be appreciated in the above background. At the outset, it may be stated that the challenge based on Article 14 or Article 19 would not be available by virtue of Article 31-C if the enactment is for giving effect to the policy of the State towards securing the directive principle specified in clause (b) of Article 39 of the Constitution. A declaration to this effect is contained in the Act itself 5. However, as held in Tinsukhia Electric Supply Co. Ltd. v. State of Assam judicial review is not excluded to examine the nexus between the impugned law and Article 39. In our opinion, the permissible judicial scrutiny to this extent reveals that the enactment undoubtedly is for effectuating the directive principle in clause (b) of Article 39 towards securing that the ownership and control of the undertaking are so utilised as best to subserve the common good. The declaration made to this effect in the Act is fully supported by the undisputed facts mentioned in the Statement of Objects and Reasons and the Preamble. The alternative to the nationalisation of this industry in the manner it is done by this Act is liquidation and unemployment of all the employees of the undertaking. The Act ensures continuance of the undertaking as a productive unit and continuation in employment of as many as possible. It was stated at the bar that more than fifty per cent of the employees have been retained in service after nationalisation of the undertaking. There cannot be any doubt that the requisite nexus of the Act with Article 39(b) is clear and duly established. This being so, the Act is immune to challenge on any ground based on Article 14 or Article 19 by virtue of Article 31-C 6. The contention of the learned counsel for the appellant relating to absence of nexus of the Act with Article 39(b) being rejected, it is unnecessary to refer to his contentions based on Article 14 and Article 19(1)(c) because of the immunity conferred by Article 31-C. The only surviving challenge now is based on Article 21. The learned counsel for the appellant contended that there is violation of Article 21 inasmuch as a large number of workmen have been rendered unemployed because every employee has not been continued in service. He submitted that this has resulted from the powers given unilaterally to the new management by Section 9(2) to reorganise the functioning of the different units and offices of the undertaking and the employees employed therein and thereby restructure such units and offices with such strength of employees as it deems fit. It was urged that this provision prescribes a procedure different from the provision for retrenchment under the Bombay Industrial Relations Act, 1946 (11 of 1947) which is the general law applicable in the State of Maharashtra for the retrenchment of workmen; and since it results in unemployment of the employees not continued in service as a result of this exercise of restructure of the units, it violates Article 21. This contention has no merit for several reasons 7. In the first place, this argument is really based on Article 14 on the ground of difference in the procedure from that prescribed in the Bombay Industrial Relations Act, the general law which is not available because of Article 31-C. Secondly, it overlooks the effect of the legislation which is to save as many employees as possible from unemployment since the only other option is liquidation which would result in all the employees being rendered unemployed. It is not a case, in effect of retrenchment. The argument is, therefore, based on a misappreciation of the effect of the enactment. Moreover, the unemployment of those who could not be continued in service is not because of the act of nationalisation since unemployment of all employees was the logical consequence otherwise. The act of nationalisation in this manner saves majority of the employees from unemployment. The argument based on Article 21 is misplaced 8. In our opinion, the above reasons alone are sufficient to reject the challenge made by the appellant to the constitutional validity of the aforesaid provisions in Maharashtra Act No. 46 of 1986
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0[ds]7. In the first place, this argument is really based on Article 14 on the ground of difference in the procedure from that prescribed in the Bombay Industrial Relations Act, the general law which is not available because of Article. Secondly, it overlooks the effect of the legislation which is to save as many employees as possible from unemployment since the only other option is liquidation which would result in all the employees being rendered unemployed. It is not a case, in effect of retrenchment. The argument is, therefore, based on a misappreciation of the effect of the enactment. Moreover, the unemployment of those who could not be continued in service is not because of the act of nationalisation since unemployment of all employees was the logical consequence otherwise. The act of nationalisation in this manner saves majority of the employees from unemployment. The argument based on Article 21 is misplaced8. In our opinion, the above reasons alone are sufficient to reject the challenge made by the appellant to the constitutional validity of the aforesaid provisions in Maharashtra Act No. 46 of 1986
| 0 | 2,049 |
### Instruction:
Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
### Input:
Central India Spinning, Weaving and Manufacturing Company Limited, with a view to securing the proper management of such undertaking so as to subserve the interest of the general public by ensuring the continued manufacture, production and distribution of textile and paper products which are essential to the needs of the economy of the country and for matters connected therewith or incidental theretoWHEREAS, the Central India Spinning, Weaving and Manufacturing Company Limited, being an existing company as defined in clause (ii) of sub-section (1) of Section 3 of the Companies Act, 1956 had been engaged in the manufacture and production of yarn, cloth and paper through its undertaking which was composite textile mill and paper manufacturing unit, styled as the Central India Spinning, Weaving and Manufacturing Company Limited, The Empress Mills, Nagpur; AND WHEREAS, in Petition No. 183 of 1986 filed by the Company for voluntary winding up, the High Court of Bombay had made an order for appointment of the provisional liquidator and the proceedings for its liquidation were pending; AND WHEREAS, the company had declared lockout throwing about more than 6000 workers out of employment and the undertaking has not been functioning since 3rd May, 1986 AND WHEREAS, it was expedient to acquire the undertaking of the said Company to ensure that the interest of the general public and of the employees of the undertaking were served by the continuance, by the undertaking of the said Company, of the manufacture, production and distribution of textile and paper products which are essential to the needs of the country and to provide for matters connected therewith or incidental thereto; AND WHEREAS, such acquisition is giving effect to the policy of the State towards securing the principle specified in clause (b) of Article 39 of the Constitution 4. The provisions contained in the Act have to be appreciated in the above background. At the outset, it may be stated that the challenge based on Article 14 or Article 19 would not be available by virtue of Article 31-C if the enactment is for giving effect to the policy of the State towards securing the directive principle specified in clause (b) of Article 39 of the Constitution. A declaration to this effect is contained in the Act itself 5. However, as held in Tinsukhia Electric Supply Co. Ltd. v. State of Assam judicial review is not excluded to examine the nexus between the impugned law and Article 39. In our opinion, the permissible judicial scrutiny to this extent reveals that the enactment undoubtedly is for effectuating the directive principle in clause (b) of Article 39 towards securing that the ownership and control of the undertaking are so utilised as best to subserve the common good. The declaration made to this effect in the Act is fully supported by the undisputed facts mentioned in the Statement of Objects and Reasons and the Preamble. The alternative to the nationalisation of this industry in the manner it is done by this Act is liquidation and unemployment of all the employees of the undertaking. The Act ensures continuance of the undertaking as a productive unit and continuation in employment of as many as possible. It was stated at the bar that more than fifty per cent of the employees have been retained in service after nationalisation of the undertaking. There cannot be any doubt that the requisite nexus of the Act with Article 39(b) is clear and duly established. This being so, the Act is immune to challenge on any ground based on Article 14 or Article 19 by virtue of Article 31-C 6. The contention of the learned counsel for the appellant relating to absence of nexus of the Act with Article 39(b) being rejected, it is unnecessary to refer to his contentions based on Article 14 and Article 19(1)(c) because of the immunity conferred by Article 31-C. The only surviving challenge now is based on Article 21. The learned counsel for the appellant contended that there is violation of Article 21 inasmuch as a large number of workmen have been rendered unemployed because every employee has not been continued in service. He submitted that this has resulted from the powers given unilaterally to the new management by Section 9(2) to reorganise the functioning of the different units and offices of the undertaking and the employees employed therein and thereby restructure such units and offices with such strength of employees as it deems fit. It was urged that this provision prescribes a procedure different from the provision for retrenchment under the Bombay Industrial Relations Act, 1946 (11 of 1947) which is the general law applicable in the State of Maharashtra for the retrenchment of workmen; and since it results in unemployment of the employees not continued in service as a result of this exercise of restructure of the units, it violates Article 21. This contention has no merit for several reasons 7. In the first place, this argument is really based on Article 14 on the ground of difference in the procedure from that prescribed in the Bombay Industrial Relations Act, the general law which is not available because of Article 31-C. Secondly, it overlooks the effect of the legislation which is to save as many employees as possible from unemployment since the only other option is liquidation which would result in all the employees being rendered unemployed. It is not a case, in effect of retrenchment. The argument is, therefore, based on a misappreciation of the effect of the enactment. Moreover, the unemployment of those who could not be continued in service is not because of the act of nationalisation since unemployment of all employees was the logical consequence otherwise. The act of nationalisation in this manner saves majority of the employees from unemployment. The argument based on Article 21 is misplaced 8. In our opinion, the above reasons alone are sufficient to reject the challenge made by the appellant to the constitutional validity of the aforesaid provisions in Maharashtra Act No. 46 of 1986
### Response:
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682 |
SHANTABEN Vs. NATIONAL POWER TRANSPORT
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up the process of assessment of the amount of compensation. In this regard, the Tribunal found that the flour mill in question belonged to the father of the deceased and no documentary evidence (like income tax returns or books of accounts etc.) as regards income of the deceased was adduced to substantiate the claim as made but, on an overall appreciation of the evidence on record, the Tribunal observed that the deceased was running the flour mill in the capacity of a manager and put an estimate on the gross earning of the deceased at Rs. 3,000/- p.m. However, the Tribunal provided for the elements of share of the father of deceased as also the expenditure on maintenance etc. and took the income of the deceased at Rs. 1462.50 p.m. and then, while making a few observations regarding inflationary trend of economy and prospective increase in income of the deceased, finally assessed his income at Rs. 1,800/- p.m.. Thereafter, the Tribunal deducted 1/3 rd on the personal expenses and hence, took the loss of dependency for the claimants at Rs. 1,200/- per month i.e., Rs. 14,400/- per annum. The Tribunal applied the multiplier of 20 and in this manner, ultimately awarded Rs. 2,88,000/- towards pecuniary loss. With addition of Rs. 12,000/- towards conventional heads, the Tribunal awarded a total sum of Rs. 3,00,000/- towards compensation to the claimants together with interest @ 12% per annum from the date of filing the claim application.(d) Against the award so made by the Tribunal, the claimants preferred an appeal before the High Court of Gujarat, seeking enhancement of compensation. It is noticed, as per the submissions made, that the parents of the deceased Shri Narshibhai Dhanji Sathwara expired during the pendency of the said appeal. The High Court, in its impugned judgment dated 14.03.2018, took the view that the Tribunal had calculated the income of the deceased rather on the higher side and found it not justified to provide for any enhancement. Hence this appeal.5. Assailing the impugned judgment of the High Court, learned counsel for the appellants has strenuously argued that the High Court has erred in not applying the principles enunciated in Pranay Sethi?s case (supra) as also in the case of Magma General Insurance Co. Ltd. V. Nanu Ram: 2018 SCC Online SC 1546 and in not awarding just compensation in this case. Per contra, learned counsel for the contesting respondent has duly supported the judgment of the High Court.6. We have heard learned counsel for the parties and have examined the record with reference to the law applicable.7. In a comprehension of the award made by the Tribunal as also the judgment passed by the High Court, we are constrained to observe that the process of assessment of compensation in the present case had been too uncertain, rather vague, and unreasonably restrictive; and the amount as awarded to the appellants cannot be said to be that of just compensation. The Tribunal in the first place took the gross income of the deceased at Rs. 3,000/- p.m. and thereafter, deducted 15% as return of investment to the father of the deceased and further deducted 35% towards maintenance and break down etc., and estimated his income at Rs. 1462.50 p.m. and then, with reference to inflationary trends of economy and prospective increase in income, took it at Rs. 1,800/- p.m.; and after deduction of 1/3 rd on personal expenses, finally assessed the loss of dependency at Rs. 1,200/- p.m. The Tribunal, thereafter, applied the multiplier of 20 and in this manner, awarded Rs. 2,88,000/- towards pecuniary loss. The High Court proceeded in a moreover cursory manner by observing that the Tribunal had taken the income of deceased at Rs. 3,000/- p.m. and considered it to be rather on the higher side for the year 1987 while referring to the salary in other employments; and for this reason, the High Court found it not justified to allow any enhancement. Obvious it is that the considerations of the Tribunal as also of the High Court have gone too astray and the matter calls for interference. However, as observed, notice in the present case has been issued only on the question of consideration of future prospects.8. As regards making a reasonable provision towards future prospects of enhancement in the income of the deceased, in this case, where the deceased was self-employed and was 23 years of age, an addition of 40% of the established income is required to be provided in view of the decision in Praney Sethi (supra). Further, for determination of multiplicand, it is noticed that the deceased had left behind his wife, mother and two minor sisters apart from his father. Even if father of the deceased is not taken as dependent, it appears reasonable to take the number of his dependents as 4 and to provide for deduction of 1/4 th for personal and living expenses. The deceased being 23 years of age and in the overall circumstances, multiplier of 18 would be appropriate in the present case.9. Hence, even while taking the estimated income of the deceased at Rs. 1,800/- p.m. as assessed by the Tribunal and providing for 40% enhancement towards future prospects, the expected income of the deceased is taken at Rs. 2,520/- p.m and, after deducting 1/4 th towards personal expenses, the loss of income for the claimants comes to Rs. 1,890/- p.m. i.e., Rs. 22,680/- per annum; and further, with application of multiplier of 18, the final figure towards loss of dependency comes to Rs. 4,08,240/- (22,680 x 18). The Tribunal, on this score, has awarded a sum of Rs. 2,88,000/- only. The claimants-appellants, therefore, would be entitled to further an amount of Rs. 1,20,240/-.9.1 As noticed, the accident in question took place in the year 1987. The parents of the deceased had expired during the pendency of appeal before the High Court and the claimants-appellants in this appeal are the wife (appellant No. 1) and sisters (appellant Nos. 2 and 3) of the deceased.
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1[ds]7. In a comprehension of the award made by the Tribunal as also the judgment passed by the High Court, we are constrained to observe that the process of assessment of compensation in the present case had been too uncertain, rather vague, and unreasonably restrictive; and the amount as awarded to the appellants cannot be said to be that of just compensation. The Tribunal in the first place took the gross income of the deceased at Rs. 3,000/- p.m. and thereafter, deducted 15% as return of investment to the father of the deceased and further deducted 35% towards maintenance and break down etc., and estimated his income at Rs. 1462.50 p.m. and then, with reference to inflationary trends of economy and prospective increase in income, took it at Rs. 1,800/- p.m.; and after deduction of 1/3 rd on personal expenses, finally assessed the loss of dependency at Rs. 1,200/- p.m. The Tribunal, thereafter, applied the multiplier of 20 and in this manner, awarded Rs. 2,88,000/- towards pecuniary loss. The High Court proceeded in a moreover cursory manner by observing that the Tribunal had taken the income of deceased at Rs. 3,000/- p.m. and considered it to be rather on the higher side for the year 1987 while referring to the salary in other employments; and for this reason, the High Court found it not justified to allow any enhancement. Obvious it is that the considerations of the Tribunal as also of the High Court have gone too astray and the matter calls for interference. However, as observed, notice in the present case has been issued only on the question of consideration of future prospects.8. As regards making a reasonable provision towards future prospects of enhancement in the income of the deceased, in this case, where the deceased was self-employed and was 23 years of age, an addition of 40% of the established income is required to be provided in view of the decision in Praney Sethi (supra). Further, for determination of multiplicand, it is noticed that the deceased had left behind his wife, mother and two minor sisters apart from his father. Even if father of the deceased is not taken as dependent, it appears reasonable to take the number of his dependents as 4 and to provide for deduction of 1/4 th for personal and living expenses. The deceased being 23 years of age and in the overall circumstances, multiplier of 18 would be appropriate in the present case.9. Hence, even while taking the estimated income of the deceased at Rs. 1,800/- p.m. as assessed by the Tribunal and providing for 40% enhancement towards future prospects, the expected income of the deceased is taken at Rs. 2,520/- p.m and, after deducting 1/4 th towards personal expenses, the loss of income for the claimants comes to Rs. 1,890/- p.m. i.e., Rs. 22,680/- per annum; and further, with application of multiplier of 18, the final figure towards loss of dependency comes to Rs. 4,08,240/- (22,680 x 18). The Tribunal, on this score, has awarded a sum of Rs. 2,88,000/- only. The claimants-appellants, therefore, would be entitled to further an amount of Rs. 1,20,240/-.9.1 As noticed, the accident in question took place in the year 1987. The parents of the deceased had expired during the pendency of appeal before the High Court and the claimants-appellants in this appeal are the wife (appellant No. 1) and sisters (appellant Nos. 2 and 3) of the deceased.
| 1 | 1,557 |
### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
up the process of assessment of the amount of compensation. In this regard, the Tribunal found that the flour mill in question belonged to the father of the deceased and no documentary evidence (like income tax returns or books of accounts etc.) as regards income of the deceased was adduced to substantiate the claim as made but, on an overall appreciation of the evidence on record, the Tribunal observed that the deceased was running the flour mill in the capacity of a manager and put an estimate on the gross earning of the deceased at Rs. 3,000/- p.m. However, the Tribunal provided for the elements of share of the father of deceased as also the expenditure on maintenance etc. and took the income of the deceased at Rs. 1462.50 p.m. and then, while making a few observations regarding inflationary trend of economy and prospective increase in income of the deceased, finally assessed his income at Rs. 1,800/- p.m.. Thereafter, the Tribunal deducted 1/3 rd on the personal expenses and hence, took the loss of dependency for the claimants at Rs. 1,200/- per month i.e., Rs. 14,400/- per annum. The Tribunal applied the multiplier of 20 and in this manner, ultimately awarded Rs. 2,88,000/- towards pecuniary loss. With addition of Rs. 12,000/- towards conventional heads, the Tribunal awarded a total sum of Rs. 3,00,000/- towards compensation to the claimants together with interest @ 12% per annum from the date of filing the claim application.(d) Against the award so made by the Tribunal, the claimants preferred an appeal before the High Court of Gujarat, seeking enhancement of compensation. It is noticed, as per the submissions made, that the parents of the deceased Shri Narshibhai Dhanji Sathwara expired during the pendency of the said appeal. The High Court, in its impugned judgment dated 14.03.2018, took the view that the Tribunal had calculated the income of the deceased rather on the higher side and found it not justified to provide for any enhancement. Hence this appeal.5. Assailing the impugned judgment of the High Court, learned counsel for the appellants has strenuously argued that the High Court has erred in not applying the principles enunciated in Pranay Sethi?s case (supra) as also in the case of Magma General Insurance Co. Ltd. V. Nanu Ram: 2018 SCC Online SC 1546 and in not awarding just compensation in this case. Per contra, learned counsel for the contesting respondent has duly supported the judgment of the High Court.6. We have heard learned counsel for the parties and have examined the record with reference to the law applicable.7. In a comprehension of the award made by the Tribunal as also the judgment passed by the High Court, we are constrained to observe that the process of assessment of compensation in the present case had been too uncertain, rather vague, and unreasonably restrictive; and the amount as awarded to the appellants cannot be said to be that of just compensation. The Tribunal in the first place took the gross income of the deceased at Rs. 3,000/- p.m. and thereafter, deducted 15% as return of investment to the father of the deceased and further deducted 35% towards maintenance and break down etc., and estimated his income at Rs. 1462.50 p.m. and then, with reference to inflationary trends of economy and prospective increase in income, took it at Rs. 1,800/- p.m.; and after deduction of 1/3 rd on personal expenses, finally assessed the loss of dependency at Rs. 1,200/- p.m. The Tribunal, thereafter, applied the multiplier of 20 and in this manner, awarded Rs. 2,88,000/- towards pecuniary loss. The High Court proceeded in a moreover cursory manner by observing that the Tribunal had taken the income of deceased at Rs. 3,000/- p.m. and considered it to be rather on the higher side for the year 1987 while referring to the salary in other employments; and for this reason, the High Court found it not justified to allow any enhancement. Obvious it is that the considerations of the Tribunal as also of the High Court have gone too astray and the matter calls for interference. However, as observed, notice in the present case has been issued only on the question of consideration of future prospects.8. As regards making a reasonable provision towards future prospects of enhancement in the income of the deceased, in this case, where the deceased was self-employed and was 23 years of age, an addition of 40% of the established income is required to be provided in view of the decision in Praney Sethi (supra). Further, for determination of multiplicand, it is noticed that the deceased had left behind his wife, mother and two minor sisters apart from his father. Even if father of the deceased is not taken as dependent, it appears reasonable to take the number of his dependents as 4 and to provide for deduction of 1/4 th for personal and living expenses. The deceased being 23 years of age and in the overall circumstances, multiplier of 18 would be appropriate in the present case.9. Hence, even while taking the estimated income of the deceased at Rs. 1,800/- p.m. as assessed by the Tribunal and providing for 40% enhancement towards future prospects, the expected income of the deceased is taken at Rs. 2,520/- p.m and, after deducting 1/4 th towards personal expenses, the loss of income for the claimants comes to Rs. 1,890/- p.m. i.e., Rs. 22,680/- per annum; and further, with application of multiplier of 18, the final figure towards loss of dependency comes to Rs. 4,08,240/- (22,680 x 18). The Tribunal, on this score, has awarded a sum of Rs. 2,88,000/- only. The claimants-appellants, therefore, would be entitled to further an amount of Rs. 1,20,240/-.9.1 As noticed, the accident in question took place in the year 1987. The parents of the deceased had expired during the pendency of appeal before the High Court and the claimants-appellants in this appeal are the wife (appellant No. 1) and sisters (appellant Nos. 2 and 3) of the deceased.
### Response:
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683 |
Jagdev Daulata Mahadik & Others Vs. Govindrao Balwantrao Through Lrs. & Others
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others, as the special leave petition was dismissed because it was filed by a dead person, the joint decree against him had also become absolute. As that decree is a joint decree, any relief that would be given in the appeal would be inconsistent with the decree which had already become final and consequently both the appeals should be dismissed.8. The learned Advocate for the appellants, however, takes support from Order, 41, Rule 4 of the Code of Civil Procedure and on that analogy he stated that if any one of the joint decree holders can file an appeal, and even though other joint holders are not made parties, the Court can reverse or vary the decree in favour of all the appellants or respondents, as the case may be. No doubt the answer to that question given by the respondents Advocate is that while that may be so, where an appeal has in fact been filed and it was dismissed there would be a decree against Raoji Satwaji Mahadik, and, consequently no decree can be given in these appeals which would be inconsistent with that decree.9. A large number of cases had been cited, but we do not think it necessary to go into that question in these appeals. Even on the assumption that there is no validity in the preliminary objection, on which we do not propose to express out opinion, on merits these appeals have to be dismissed.10. The learned Advocate for the appellants had drawn our attention to the pleas raised by the defendants in the two suits : firstly, that the plaintiffs suit was barred by res jidicata; secondly, by estoppel; thirdly by limitation and fourthly by virtue of Section 41 of the Transfer of Property Act. In so far as the first and second pleas are concerned, namely, rea judicata and estoppel, those pleas were given up in the High Court. In so far as the fourth plea based on Section 41 of the Transfer of Property Act is concerned, it was pressed and negatived by the Appellate Court, and the third plea of limitation was held against the defendants. The learned Advocate for the appellants has stated at the Bar that he does not wish to press the plea based on Section 41 of the Transfer of Property Act. He has, therefore, confined his arguments to the third plea only, namely, that the suit was barred by limitation as it was not filed within 12 years from the date of dispossession. In our view, this contention has also no substance. We may point out that the Trial Court held that Govindrao and Bali Mahadu Jadhav had title to the respective properties by reason of Narsingarao having purchased Narayanraos share in auction sale and Govindrao in his turn having purchased it on July 1, 1925 from Narasingarao that half share of Narayanrao. It is also clear that a final decree in the partition suit was passed in 1941 and later in 1943 Govindrao share was separated and he was given possession. Narayanraos share was shown as C Schedule properties. From the date Govindrao was given possession of his separate property he was also entitled to have separate possession of half share of Narayanrao. From that date, at any rate, he had title to Narayanraos properties. Till then Govindraos possession was that of joint owner with Narayanrao, as such no question of any bar of limitation would arise during that period. As we have stated stated while narrating the facts, the suits were filed in 1952 and if Govindrao was dispossessed after his joint possession was separated and he was given separate possession in respect of specific property the suits would be well within time. The learned Judge of the High Court, Palekar, J., as he then was dealt with the contention urged on behalf of the appellant/respondents before him regarding limitation. Nagativing the pleas urged on their behalf he summed up the position relating to Govindraos possession thus :"He got his own ancestral half share in the property between 1941 and 1943, and that continued in his possession, admittedly, after that date. But in respect of the other share of Narayanrao, which he had purchased in 1925, he continued in possession of the same till 1941, or thereafter. But, in the meantime, between 1941 and 1947, acts of dispossession with regard to that possession were committed by defendant No. 1 and the other defendants. In other words, his dispossession, if at all, has taken place after 1941, in which case his suit was clearly within time.Apart from the evidence which has been led to show the possession of either side, the admitted facts themselves go to show that the plaintiffs suit could not be barred by limitation. The plaintiff Govindrao and Narayanrao were in joint possession of the properties, and Govindraos half share in the properties was never denied. There was no case also of his exclusion at any time. When he filed Civil Suit No. 313 of 1923 he filed it on the basis that he was in joint possession, and the only reason why he had to bring the suit was that his brother Narayanrao was not willing to a partition. In fact, it appears, the suit was hastened by the fact that Narayanraos half share in the property had been brought to sale in court auction by one of his creditors. After the suit was filed, his joint possession was continued, and the very fact that in 1941, there was a partition by metes and bounds in which Govindrao was allotted the "B properties in the suit would postulate that he was in joint possession of every unit of the family property in enjoyment of his half share in the property. And if he was in possession till, 1941, I do not see how he would be barred by limitation. No serious challenge has been directed against the view expressed the learned Judge with which we are also in entire agreement.
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0[ds]10. The learned Advocate for the appellants had drawn our attention to the pleas raised by the defendants in the two suits : firstly, that the plaintiffs suit was barred by res jidicata; secondly, by estoppel; thirdly by limitation and fourthly by virtue of Section 41 of the Transfer of Property Act. In so far as the first and second pleas are concerned, namely, rea judicata and estoppel, those pleas were given up in the High Court. In so far as the fourth plea based on Section 41 of the Transfer of Property Act is concerned, it was pressed and negatived by the Appellate Court, and the third plea of limitation was held against the defendants. The learned Advocate for the appellants has stated at the Bar that he does not wish to press the plea based on Section 41 of the Transfer of Property Act. He has, therefore, confined his arguments to the third plea only, namely, that the suit was barred by limitation as it was not filed within 12 years from the date of dispossession. In our view, this contention has also no substance. We may point out that the Trial Court held that Govindrao and Bali Mahadu Jadhav had title to the respective properties by reason of Narsingarao having purchased Narayanraos share in auction sale and Govindrao in his turn having purchased it on July 1, 1925 from Narasingarao that half share of Narayanrao. It is also clear that a final decree in the partition suit was passed in 1941 and later in 1943 Govindrao share was separated and he was given possession. Narayanraos share was shown as C Schedule properties. From the date Govindrao was given possession of his separate property he was also entitled to have separate possession of half share of Narayanrao. From that date, at any rate, he had title to Narayanraos properties. Till then Govindraos possession was that of joint owner with Narayanrao, as such no question of any bar of limitation would arise during that period. As we have stated stated while narrating the facts, the suits were filed in 1952 and if Govindrao was dispossessed after his joint possession was separated and he was given separate possession in respect of specific property the suits would be well within time. The learned Judge of the High Court, Palekar, J., as he then was dealt with the contention urged on behalf of the appellant/respondents before him regarding limitation. Nagativing the pleas urged on their behalf he summed up the position relating to Govindraos possession thus :"He got his own ancestral half share in the property between 1941 and 1943, and that continued in his possession, admittedly, after that date. But in respect of the other share of Narayanrao, which he had purchased in 1925, he continued in possession of the same till 1941, or thereafter. But, in the meantime, between 1941 and 1947, acts of dispossession with regard to that possession were committed by defendant No. 1 and the other defendants. In other words, his dispossession, if at all, has taken place after 1941, in which case his suit was clearly within time.Apart from the evidence which has been led to show the possession of either side, the admitted facts themselves go to show that the plaintiffs suit could not be barred by limitation. The plaintiff Govindrao and Narayanrao were in joint possession of the properties, and Govindraos half share in the properties was never denied. There was no case also of his exclusion at any time. When he filed Civil Suit No. 313 of 1923 he filed it on the basis that he was in joint possession, and the only reason why he had to bring the suit was that his brother Narayanrao was not willing to a partition. In fact, it appears, the suit was hastened by the fact that Narayanraos half share in the property had been brought to sale in court auction by one of his creditors. After the suit was filed, his joint possession was continued, and the very fact that in 1941, there was a partition by metes and bounds in which Govindrao was allotted the "B properties in the suit would postulate that he was in joint possession of every unit of the family property in enjoyment of his half share in the property. And if he was in possession till, 1941, I do not see how he would be barred by limitation. No serious challenge has been directed against the view expressed the learned Judge with which we are also in entire agreement.
| 0 | 2,705 |
### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
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others, as the special leave petition was dismissed because it was filed by a dead person, the joint decree against him had also become absolute. As that decree is a joint decree, any relief that would be given in the appeal would be inconsistent with the decree which had already become final and consequently both the appeals should be dismissed.8. The learned Advocate for the appellants, however, takes support from Order, 41, Rule 4 of the Code of Civil Procedure and on that analogy he stated that if any one of the joint decree holders can file an appeal, and even though other joint holders are not made parties, the Court can reverse or vary the decree in favour of all the appellants or respondents, as the case may be. No doubt the answer to that question given by the respondents Advocate is that while that may be so, where an appeal has in fact been filed and it was dismissed there would be a decree against Raoji Satwaji Mahadik, and, consequently no decree can be given in these appeals which would be inconsistent with that decree.9. A large number of cases had been cited, but we do not think it necessary to go into that question in these appeals. Even on the assumption that there is no validity in the preliminary objection, on which we do not propose to express out opinion, on merits these appeals have to be dismissed.10. The learned Advocate for the appellants had drawn our attention to the pleas raised by the defendants in the two suits : firstly, that the plaintiffs suit was barred by res jidicata; secondly, by estoppel; thirdly by limitation and fourthly by virtue of Section 41 of the Transfer of Property Act. In so far as the first and second pleas are concerned, namely, rea judicata and estoppel, those pleas were given up in the High Court. In so far as the fourth plea based on Section 41 of the Transfer of Property Act is concerned, it was pressed and negatived by the Appellate Court, and the third plea of limitation was held against the defendants. The learned Advocate for the appellants has stated at the Bar that he does not wish to press the plea based on Section 41 of the Transfer of Property Act. He has, therefore, confined his arguments to the third plea only, namely, that the suit was barred by limitation as it was not filed within 12 years from the date of dispossession. In our view, this contention has also no substance. We may point out that the Trial Court held that Govindrao and Bali Mahadu Jadhav had title to the respective properties by reason of Narsingarao having purchased Narayanraos share in auction sale and Govindrao in his turn having purchased it on July 1, 1925 from Narasingarao that half share of Narayanrao. It is also clear that a final decree in the partition suit was passed in 1941 and later in 1943 Govindrao share was separated and he was given possession. Narayanraos share was shown as C Schedule properties. From the date Govindrao was given possession of his separate property he was also entitled to have separate possession of half share of Narayanrao. From that date, at any rate, he had title to Narayanraos properties. Till then Govindraos possession was that of joint owner with Narayanrao, as such no question of any bar of limitation would arise during that period. As we have stated stated while narrating the facts, the suits were filed in 1952 and if Govindrao was dispossessed after his joint possession was separated and he was given separate possession in respect of specific property the suits would be well within time. The learned Judge of the High Court, Palekar, J., as he then was dealt with the contention urged on behalf of the appellant/respondents before him regarding limitation. Nagativing the pleas urged on their behalf he summed up the position relating to Govindraos possession thus :"He got his own ancestral half share in the property between 1941 and 1943, and that continued in his possession, admittedly, after that date. But in respect of the other share of Narayanrao, which he had purchased in 1925, he continued in possession of the same till 1941, or thereafter. But, in the meantime, between 1941 and 1947, acts of dispossession with regard to that possession were committed by defendant No. 1 and the other defendants. In other words, his dispossession, if at all, has taken place after 1941, in which case his suit was clearly within time.Apart from the evidence which has been led to show the possession of either side, the admitted facts themselves go to show that the plaintiffs suit could not be barred by limitation. The plaintiff Govindrao and Narayanrao were in joint possession of the properties, and Govindraos half share in the properties was never denied. There was no case also of his exclusion at any time. When he filed Civil Suit No. 313 of 1923 he filed it on the basis that he was in joint possession, and the only reason why he had to bring the suit was that his brother Narayanrao was not willing to a partition. In fact, it appears, the suit was hastened by the fact that Narayanraos half share in the property had been brought to sale in court auction by one of his creditors. After the suit was filed, his joint possession was continued, and the very fact that in 1941, there was a partition by metes and bounds in which Govindrao was allotted the "B properties in the suit would postulate that he was in joint possession of every unit of the family property in enjoyment of his half share in the property. And if he was in possession till, 1941, I do not see how he would be barred by limitation. No serious challenge has been directed against the view expressed the learned Judge with which we are also in entire agreement.
### Response:
0
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684 |
The State of Karnataka by its Chief Secretary Vs. State of Tamil Nadu by its Chief Secretary & Others
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be segregated having an extricable composition and integrated whole for the purposes of the requirements of its inhabitants, more particularly when the same relates to allocation of water for domestic purposes to meet their daily errands. It will be inconceivable to have an artificial boundary and deny the population the primary need of drinking water. We hold so in the special features of the case keeping in view the global status the city has attained and further appreciating the doctrine of equitable proportionality on the bedrock of pressing human needs. 391. At this juncture, we need to recount that as per the national water policies, not only drinking water has been placed at the top of the other requirements in the order of priority, but it has also been predicted that adequate drinking water facilitates should be provided to the entire population, both in urban and rural areas and that drinking water should be made a primary consideration. It was declared as well that drinking water needs of human beings and animals should be the first charge on any available water. Article 14 of the Berlin Rules also mandates that in determining an equitable and reasonable use, the States shall first allocate water to satisfy vital human needs.392. In view of the above, we are constrained to observe that the approach of the Tribunal cannot be approved in the facts and circumstances indicated hereinabove. We are, thus, of the considered opinion that the allocation of water for drinking and domestic purposes for the entire city of Bengaluru has to be accounted for. Noticeably, Karnataka had claimed 14.52 TMC, i.e., 6.52 TMC for existing water schemes for Bengaluru and 8.00 TMC for the ongoing drinking water schemes for the city as in June, 1990. It had demanded 30 TMC as drinking water requirement for the city with the projection of 2025. Having regard to the percentage of decennial growth, as has been adopted by the Tribunal, in 2011, the demand of Karnataka for drinking water requirement for Bengaluru city would be in the vicinity of 24 TMC. Even excluding the computation for urban population of the State to be 8.70 TMC as arrived at by the Tribunal and that too without any basis and accepting the water requirement of rural population to be 8.52 TMC though also without any basis, the total figure representing drinking and domestic water requirement of the urban and rural population would be 32.5 TMC rounded upto 33 TMC in comparison to 46 TMC as claimed by Karnataka in its statement. Having rejected the assumption that 50% of the drinking water requirement would be met from ground water, this 33 TMC would, in our estimate, be a safe and acceptable figure qua drinking and domestic water requirement of the State of Karnataka for its urban and rural population. By applying the consumptive percentage of 20%, the volume of water to be allocated to Karnataka on this count would be 6.5 TMC in lieu of 1.75 awarded by the Tribunal, i.e., an increase by 4.75 TMC.393. Qua the view against transbasin diversion, suffice it to state that not only in the context of Bengaluru city, for the reasons cited hereinabove, a digression from the confines of the concept of in-river basin would be justified, since the National Water Policy of 1987, in categorical terms, enjoined that water should be made available to water short areas by transfer from other areas including transfers from one river basin to another. This very conspicuously emphasizes on an inclusive comprehension and in a deserving case like Bengaluru city, it would not be incompatible with the letter and spirit of the factors that ought to inform the determination of reasonable and equitable share of water in an interstate river as well as of the national policies formulated for planning and development of the precious natural resource involved. X.9 Allocation of water towards environmental protection: 394. On the aspect of allocation qua environmental protection, the Tribunal, in order to secure the purity of environmental and ecological regime in view of the injudicious use of available resources by human beings compounded by population explosion and distorted lifestyles and having regard to the spectre of river water pollution on account of industrial development and deforestation leading to siltation of reservoirs, etc., assigned 10 TMC to be reserved from the common pool to meet the environmental aspects. 395. We appreciate the endeavour and the initiative of the Tribunal having regard to the sustenance of purity of environment to which every individual is entitled and also simultaneously obliged to contribute to cultivate the feeling of environmental morality. That is the constant need of the present. In view of such an obtaining situation, we are not inclined to interfere in any manner in the allocation of the quantum of 10 TMC towards environmental protection. It stands affirmed. X.10 Revised water allocation amongst competing States: 396. The river Cauvery originates in Karnataka and eventually after its full flow through the other riparian States of the basin assimilates in the Bay of Bengal. With the evolution of the principle of equitable apportionment which is really to ensure equal justice to the basin States, the concept of prescriptive right or right to the natural flow of any inter-state river has ceased to exist. Having regard to the historical facts which demonstrate the constraints suffered by Karnataka resulting in its limited access and use of the surface flow of Cauvery in spite of being the upper riparian state, compared to Tamil Nadu, then Madras presidency, as well as severally drought conditions in its 28 districts/taluks, we are inclined to award an additional quantity of water to it in the measure of 14.75 TMC in all, i.e., 10 TMC (on account of availability of ground water in Tamil Nadu) + 4.75 TMC (for drinking and domestic purposes including such need for the whole city of Bengaluru). On these considerations, we consider Karnataka to be more deserving amongst the competing States to be entitled thereto.
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1[ds]84. It is absolutely manifest that the ruling in Madhav Rao Scindia (supra) states that after coming into force of the 1947 Act, the paramountcy lapsed and after the integration of the States with the Indian Union, the shadow of paramountcy faded and theia became the full sovereign authority. After the Constitution came into force, the exercise of power by the State over its citizens stood circumscribed by the Constitution. In the said case, the doctrine of paramountcy has no play. The two agreements, on a studied scrutiny, do not indicate any aspect that can be called political or touching any facet of the sovereigntyof India. Theagreements covered the areas of larger public interest like construction of dams and irrigation of land existing within the two States, namely, the State of Mysore and the State of Madras and had nothing to do with political arrangement. Therefore, we are not inclined to accept the submission of Mr. Nariman that after coming into force of the 1947 Act and thereafter the Constitution of India, the agreements of 1892 and 1924 became inoperative and totally extinct.On a perusal of the aforesaid, it seems to us that there is no discord or lack of concord with the view expressed in State of Seraikella (supra). We are persuaded to think so as the Constitution Bench in the earlier case was dealing with a different kind of instrument which was indubitably of political character entered prior to coming into force of the Constitution.104. In the case of Madhav Rao Scindia (supra), the sphere of adjudication was absolutely different. In the case at hand, the agreements in question relate to the sphere of water sharing, irrigation, etc. and have nothing to do, even remotely, with the concept of sovereignty and integrity of India and, therefore, it will be erroneous to hold that the bar under Article 363 of the Constitution would apply. It is so as both the agreements between the States do not refer to any political element and cannot be termed as political in character. The view expressed in State of Seraikella (supra), as already stated hereinbefore, related to an aspect of integrity or sovereignty of India and that is why, the bar operated. The bar under Article 363 was not allowed to stand in Madhav Rao Scindia (supra) as it was dealing with a constitutional claim of the Rulers relating to Privy Purse and the same did not have any political characteristics. In any case, the position has been absolutely made clear by the Constitution Bench in State of Tamil Nadu (popularly known as Mullaperiyar dam case). Therefore, it can be stated, without desiring to give rise to any controversy and without fear of any contradiction, that the bar under Article 363 is not applicable. The submission astutely advanced on behalf of the State of Karnataka that the two agreements should not be looked into at all for the purpose of adjudication of the water dispute by the Tribunal because of Article 262 of the Constitution is unacceptable.On a keen scrutiny of the evidence on record, there is no proof that the State of Mysore, at the relevant time, had denounced the agreement. We have already discussed the doctrine of paramountcy and how the same is not applicable to these categories of agreements. Mr.Nariman, learned senior counsel, would submit that automatic extinction of agreement because of evaporation of the doctrine of paramountcy is one thing and applicability of the said principle to treat the agreement as unconscionable is quite a distinct aspect.As held earlier, the agreements did not automatically come to an end either after coming into force of the 1947 Act or after coming into force of the Constitution because of thend further owing to the fact that there had been no denouncement. The bargaining power may not have existed in 1892 or 1924 but definitely, the said power to bargain or to choose came alive after the 1947 Act and, undoubtedly, after the Constitution came into being. However, the State of Karnataka chose not to do so. If we allow ourselves to say so, it chose not to rise like a phoenix but, on the contrary, it maintained sphinx like silence at the relevant time. Therefore, we are not persuaded to accept the submission that the agreements should be declared as void because of unconscionability.In the present case, the two provisions, namely, Sections 107 and 119 of the Reorganization Act of 1956 unequivocally spell out the continuance of the assets and liabilities. That apart, the new State of Mysore after 1956 recognised and enforced the agreement and, in any case, did not repudiate it. And in all possibilities, the State could not have done it as it related towaters and the Parliament in the Reorganisation Act did not make any law in that regard.147. We are inclined to think so inasmuch as the relevant clauses which are open to reconsideration are absolutely essential parts of the contract and it is extremely difficult to place appropriate construction on the contract without them. The clauses in the contract do not indicate permanency but, on the contrary, indicate fixed term and that is how we intend to construe the same. The continuance of contract, as we find, was further a subjective consideration and merely agreed upon and, therefore, to hold that it continued solely because of the experience gathered would not be appropriate and it would be contrary to the concept of understanding the clauses in a contract to give effect to its continuance. The continuance after 50 years was dependent on certain aspects and, therefore, we have no hesitation in holding that the agreement expired after 50 years. The submission on behalf of the State of Tamil Nadu is that the obligations of the contract continued but, in this context, it is worth noting that the parties to the agreement had entered into correspondence with the Central Government agitating their grievances and they met at the various levels to discuss and to arrive at an acceptable arrangement. That not having been accepted, the complaint was lodged. Taking into consideration the entire conspectus of facts and circumstances, we hold that the agreement expired after 50 years in the year 1974.The aforesaid submission advanced by the State of Karnataka should not detain us for long. On a perusal of the complaint, it does not contain the wordsut the antecedents of the complaint, the view of the Central Government while referring water dispute and the expression of opinion of this Court In Re: Presidential Referenceal) (supra). In the backdrop of the language of the 1956 Act, the expiration by the efflux of time and the role of this Court, we are not inclined to entertain such a plea. We must say without any hesitation that it may, in the first blush, have the potentiality to invite the intellectual interaction but the same fails to gain significance when one perceives the controversy from a broader perspective and the various orders passed from time to time by the Tribunal and by this Court. Therefore, the matter deserves to be adjudicated on merits.On a perusal of the award, it appears that the Tribunal, after coming to hold that the 1974 agreement is valid which we have not accepted, noted the submissions of the State of Karnataka, Tamil Nadu and Kerala and Union Territory ofPrinciples of apportionment to be followed:362. Having dealt with the issues of paramountcy, perceived unconscionability of the Agreements, continuation thereof after coming into force of the 1956 Act as well asof the disputeon the basis of such Agreements being in infraction of Article 363, it is now essential at this juncture, in the backdrop of the above contentious assertions, to dwell on the principles of allocation of water of theCauvery river and thethereof for uniform application. That apart, the fact of the24 having expired after 50 years in the year 1974 has been already determined. As rightly minuted by the Tribunal, having regard to the progression of events after the execution of the said Agreement, the accusations of breach and violations of the Agreement have to be treated as inconsequential at this distant point of time. Besides, there is no objective and judicially manageable standard to examine and evaluate the same in a golden scale or embark upon in an exercise of exactitude and precision to weigh the impact thereof for determination of allocation of the share.363. As enunciated by this Court in In Re: Presidential Referenceal) (supra), the waters of anriver passing through the corridors of the riparian States constitute national asset and cannot be said to be located in any one State. Being in a state of flow, no State can claim exclusive ownership of such waters or assert a prescriptive right so as to deprive the other States of their equitable share. It has been propounded therein that the right to flowing water isto be a right incident to property in the land and is a right publici juris of such character, that while it is common and equal to all through whose land it runs and no one can obstruct or divert it, yet as one of the beneficial gifts of Nature, each beneficiary has a right to just and reasonable use of it. We endorse the view of the Tribunal in the attendant perspectives that the acknowledged principle of distribution and allocation of waters between the riparian States has to be done on the basis of their equitable share, however contingent on the facts of eachview that the principle of equality does not imply equal division of water but connotes equal consideration and equal economic opportunity of theStates and that justice ought to be done to them, has been emphasized in the course of the arguments. To conceive that equality rests on equal sharing of water within an arithmetical formula, would be fundamentally violative of the established conception of equitable apportionment because the said concept inheres a multiple factors. It is the obligation of the Tribunal to address the same and the duty of this Court is to adjudge within the permissible parameters of the justification of the said adjudication. To reiterate, having regard to the above propositions as well as the provisions of the 1956 Act, the dissension has to be addressed in the backdrop of equal Status of the States and the doctrine of equitability.As far as the allocation is concerned, the uses are to be governed by the rider that these priorities must be modified, if necessary, in particular region with reference to area specific considerations. In conclusion, the policy laid stress that in view of vital importance of water for human and animal life, for maintaining ecological balance and for economic and developmental activities of all kinds and considering its increasing scarcity, the planning andis resource and its optimal, economical and equitable use has become a matter of utmost urgency. It emphasized that the success of the National Water Policy would depend entirely on the development and maintenance of a national consensus and commitments to its underlying principles and objectives. Significantly, the Policy, which is a national charter for Planning andof Water Resourcesfor its disciplined and judicious utilization recognizes and accepts it to be scarce and valuable bounty of nature to be developed, conserved and put to planned use on an environmentally sound basis with due regard to the needs of the State concerned. The Policy, thus, sustains the concept of basin state as contemplated in the Helsinki Rules, Campione Rules and Berlin Rules.The National Water Policy of 2002 which is a revised and updated form of the earlier model, reiterates the emphasis on the need for planning, development andof the water resourcesfrom the national stand point. Pertaining to water allocation priorities, this Policy added to the list, in particular, ecology and agro industries andindustries, qualifying that the priorities as enumerated could be modified or added if warranted by the specific considerations of the areas/regions. The primacy of drinking water was reiterated. On the aspect of ground water development, it was stated that a periodicalof the groundwater potential on the scientific basis should be made taking into consideration the quality of water available and the economic viability of its extraction. Same caution against over exploitation of ground water was sounded. It was, inter alia, mandated that adequate safe drinking water facility should be provided to the entire population, both in urban and in rural areas, and irrigation and multipurpose projects should invariably include in it drinking water component wherever there is no alternative source of drinking water. It was clarified that drinking water needs of human beings and animals should be the first charge on any available water. Qua irrigation, the Policy stated that planning either in an individual project or in a basin as a whole should take into account the irrigability of land, cost effective irrigation options possible from all available sources of water and appropriate irrigation techniques for optimising water use efficiency. The aspect that the irrigation intensity should be such as to extend the benefits of irrigation to a large number of farm families as much as possible, keeping in view the need to maximize production, was also underlined. It was most importantly provided that water sharing/distribution amongst the States should be guided by national perspective with due regard to the availability of water resources and the needs within the river basin. The Policy, therefore, did not bar as such the sharing or allocation of water in areas within the basin state.e National Water Policy of 2002 which is a revised and updated form of the earlier model, reiterates the emphasis on the need for planning, development andof the water resourcesfrom the national stand point. Pertaining to water allocation priorities, this Policy added to the list, in particular, ecology and agro industries and, qualifying that the priorities as enumerated could be modified or added if warranted by the specific considerations of the areas/regions. The primacy of drinking water was reiterated. On the aspect of ground water development, it was stated that a periodicalof the groundwater potential on the scientific basis should be made taking into consideration the quality of water available and the economic viability of its extraction. Same caution against over exploitation of ground water was sounded. It was, inter alia, mandated that adequate safe drinking water facility should be provided to the entire population, both in urban and in rural areas, and irrigation and multipurpose projects should invariably include in it drinking water component wherever there is no alternative source of drinking water. It was clarified that drinking water needs of human beings and animals should be the first charge on any available water. Qua irrigation, the Policy stated that planning either in an individual project or in a basin as a whole should take into account the irrigability of land, cost effective irrigation options possible from all available sources of water and appropriate irrigation techniques for optimising water use efficiency. The aspect that the irrigation intensity should be such as to extend the benefits of irrigation to a large number of farm families as much as possible, keeping in view the need to maximize production, was also underlined. It was most importantly provided that water sharing/distribution amongst the States should be guided by national perspective with due regard to the availability of water resources and the needs within the river basin. The Policy, therefore, did not bar as such the sharing or allocation of water in areas within the basin state.In conclusion, the Policy recorded that its success would depend entirely on evolving and maintaining national consensus and commitment to its underlying principles and objectives. It also laid emphasis on the needs of the community that requires to be taken into account for the development and management water resources.377. The national policies of the country as above, therefore, evidently supplement and consolidate the prescriptions of the Helsinki Rules, Campione Rules and Berlin Rules in the matter ofof reasonable and equitable share of water in an interstateriver. To reiterate, the Helsinki Rules and the other Rules envisage a basin state on the issue of equitableate river. Though the Rules predicate that in determining the share of one basin state, the otherstates would not be subjected to substantial injury, yet the clear emphasis is to fulfill the economic and social needs of the population of the State and in the sphere of irrigation, its farmer community. Indubitably, the principle of apportionment would apply uniformly to all river basins in a State. The sharing of anriver, as the professed norms of distribution suggest, has to be with the spirit of harmonious disposition and equanimous dispensation. The norms or the factors suggested, understandably, can never be exhaustive and designed only a balanced framework of pragmatic measures to ensure beneficial use of water resources in ansed application thereof and reciprocal adjustments for common good. In the regime of a welfare state wedded to the guarantees enshrined in the National Charter, any yardstick for distribution of any national asset like water would have to be essentially in furtherance thereof. The criteria identified in the Rules and supplemented by the national policies in letter and spirit, though in quite detail, can only be construed as illustrative and cannot be perceived as aformula or put in aal exactitude to exclude any other consideration or exigency to effect a desirableof water of anriver depending on the prevalent eventualities. Having regard to the geographic, hydrographic, hydrological, hydrogeological, climatic, ecological and other fluvial phenomena attendant on time, the spectrum of priorities and the factors associated therewith are bound to vary. Be it clearly stated that while no precise formula can be adopted, there has to be a sincere and pragmatic endeavour to have a rational amalgam of globally accepted norms and the local necessities founded on the doctrine of fairness and equity. The factors already enumerated, needless to say, may inter se demand precedence of one over the other depending on the ground realities, the ultimate test being to ensure that the allocations on the basis thereof in favour of one basin State ought not to be substantially detrimental to theStates. The order of precedence in the areas of necessity, as set out in the National Policy, is not incompatible with the acknowledged determinants for ascertaining the reasonable and equitable share of anriver. Nevertheless, the weight age of one item of need would depend in a given situation on the degree and priority thereof thereby necessitating grant of preference of one over the other in departure of the sequence set out in the policy. This again is to underline the attribute of variability in the approach of application of the otherwise identified criteria, the ultimate goal being equitablehe resources. This concept gains more significance where the resource is scarce and inadequate qua the demand thereof. It is warrantable as the dispute involves the inhabitants of one State with the inhabitants of another State. Such involvement by statutory command engulfs the principle of obtaining situational adjustment having due regard to priority. In the above predominant conspectus, in our estimate, the factors as set out in the Helsinki Rules and endorsed as well as supplemented by the Campion Rules and the Berlin Rules and further consolidated by our national policies as above are efficient, rational, objective and pragmatic guidelines to conduct any exercise for determining the reasonable and equitable share of basin States in the water of anriver like Cauvery as in the present case.It needs to be stated that the gravamen of the rival assertions span from wrong application of the principles of equitable apportionment to the facts of the case, defectiveof the materials on recordbearing on the requirements registered by the competing States, faulty approach in the matter of evaluation of the parameters bearing in particular on the crop water requirement, ground water availability and use and unmerited rejection of various projects as testimony of rightful claims to resultant inaccurate allocation of the water of theriver involved. As detailed hereinbefore, the impugned decision of the Tribunal would demonstrate that it had undertaken a detailed exercise on the basis of the pleadings of the parties, the evidence, oral and documentary, including several contemporary official records and statistics supplemented by the testimony of various acclaimed experts in the field of water research and use over the years. Having regard to the jurisdiction being exercised, we would, in this factual backdrop, test the competing contentions on the basis of broad features of the controversy and the established legal postulates applicable thereto and interfere in theny discernible vitiating infirmity, incurably afflicting the adjudicative pursuit of the Tribunal thereby rendering its appraisalof the materials on recordon any issue as well as the final determination to be patently unsustainable.As we notice, the Tribunal, after adopting the principle of equitable apportionment, in the process of computing the reasonable and equitable shares of the basin States as the first initiative, determined the irrigated areas of the States and in doing so, noted from the report ofy Fact Findingsubmitted in the year 1972 that the utilization of waters of Tamil Nadu including Karaikal region of the Union Territory of Puducherry, Mysore and Kerala had been 566.60 TMC, 176.82 TMC and 5 TMC respectively. As the background of the Agreements of 1892 and 1924 would reveal, the State of Karnataka had been raising persistent protests against the restraints put on it on the use of the waters of the river for which it alleged that it was not possible on its part to irrigate lands even as envisaged in the4. This was clearly by way of its remonstrance against Tamilendeavours to wrest its dominion over the water by exercising its prescriptive right to the natural flow thereof within its territories. Noticeably, the principle of equitable apportionment, as has evolved over the time, has not been and rightly not disputed by theas the yardstick for the allocation in praesenti. In view of the fact that river Cauvery is deficit in its water content compared to the demands of the riparian States involved, restrictions and savings in the matter of use thereof are not only necessary but also natural corollaries. In that view of the matter, it is incumbent to identify the areas under irrigation with the expansion thereof with time, together with the crop pattern and the suitability thereof, having regard to theon of the deficient surface flow available. On the basis of the reports of the various Committees and the recorded data referred to hereinabove, the bearing of the 1924 Agreement in particular over the march of events cannot also be totally disregarded. The Tribunal, after taking into account all these factors,Tamil Nadu, applied the restrictions to work out the irrigated area to which it would be entitled to assert its share of allocation, namely, no area for summer paddy; area of summer paddy raised prior to 1924 to be replaced bycrop; annual intensity of irrigation to be restricted to 100%; cropping period to be restricted within the irrigated season, i.e., 31st June to 31st January and ambitious lift irrigation schemes to be discouraged. It, thus, quantified such area for Tamil Nadu to be 24.71 lakh acres against its claim of 29.26 lakh acres. As far as Karnataka is concerned, the Tribunal noticed that in the pre 1924 Agreement era, irrigation in the then State of Mysore was primarily from direct diversion channels from the rivers together with the system of tank irrigation and that in the absence of any reservoir, the waters of Cauvery and its tributaries like Kabini, Hemawathi, Harangi and Suvaranwathi used to flow through the State but their ultimate destination was the Delta State of the then State of Madras as a result whereof, even as admitted by the State of Tamil Nadu, Karnataka could develop only 3.14 lakh acres of land by 1924. This inability of the State of Karnataka to develop its land for irrigation in the background of its persistent cavil of being deprived of its legitimate share and use of the water of Cauvery cannot be ignored. It is a recorded fact that though under the 1924 Agreement, Karnataka in terms of the relevant provisions thereof ought to have developed 7.45 lakh acres by 1974, it could achieve only 2.15 lakh acres. However, the Tribunal in all allowed 18.85 lakh acres of area to Karnataka being under irrigation prior to 1974 against its claim of 20.98 lakh acres. In case of Karnataka as well, the Tribunal excluded thend crop in view of the scarcity of water in the basin with due regard to the rainfall pattern and even suggested restrictions on the crop variety and the duration thereof. On an overall consideration of the relevant materials to which our attention has been drawn, we are of the view that having regard to the imperative of economy of consumption of water, the approach of the Tribunal cannot be found fault with having regard to the exitingAs the records reveal, after the evidence of the expert witnesses was recorded, as required by the Tribunal, the States filed their affidavits furnishing details of water requirements as well as the crops grown by them together with an indication of a minimum crop water requirement. The affidavit filed on behalf of Tamil Nadu was marked as Ext. TN1665 and that of Karnataka as Ext. KAR518. Hence, we shall analyse the ultimate determination by the Tribunal and scrutinize its ultimate justification. As has been noted earlier, there has been a considerable dispute over Ext.1665 and the area of dispute relates to the violation of the principles of natural justice,of opportunity ofadmissibility of the affidavit in evidence and, above all, the transgression of the sense of propriety by the State of Tamil Nadu. We have already stated that what had already been available on record can be considered from the factual assertions of the affidavit. Be that as it may, there has to be an adjudication by this Court and not allow the main protagonist States to keep the fight in continuance. The Tribunal, as is demonstrable, on the basis of the overall materials before it, took note, amongst others, of the crop pattern, duration of the crops, consumption of water thereby, soil conditions conducive thereto, rainfall pattern, Delta and system efficiency along with the drought conditions of Karnataka as projected by it, in conjunction with the testimony of the expert witnesses of both the States of Tamil Nadu and Karnataka, and in the interest of economical use of the water of the deficit basin, allocated 250.62 TMC to Karnataka for its irrigated area of 18.85 lakh acres and 390.85 TMC to Tamil Nadu for its irrigated area of 24.71 lakh acres. Significantly, it is worthwhile to notice, in this context, the recommendations ofy Fact Findingrequired restriction on double crop paddy area; introduction of short duration variety in place ofand preference to crops needing less water. Further, the Tribunal has considered the crop water requirement, namely, crop duration, ET crop, puddling requirements, percolation losses, effective rainfall and system efficiency. Keeping in view the accepted principles, we find that neither the analysis undertaken by the Tribunal nor the findings relatable thereto can be regarded as implausible by any standard. Certain parameters have been exhaustively examined by the Tribunal on the basis of the materials brought on record with supporting reasons and, therefore, the conclusion on this score cannot be termed as untenable warranting interference in the exercise of this Courts jurisdiction under Article 136 of the Constitution of India. We may pause here to clarify. In our first verdict that pertained to the delineation of the maintainability of appeals by special leave while holding the appeals to be maintainable, we had kept it open for advertence at a later stage the issue whether there should be broad approach or a narrow one. After hearing all the sides at length, at this juncture, we are inclined to say that while adjudicating a matter of such a nature we cannot be totally guided exclusively either byextraordinary discretionary orrestrictive approach but think it appropriate to have an intermediary approach as the controversy covers a span of more than 100 years involving change in boundaries, population growth and subsequent events. We may hasten to add that though the parameters of applicability of Article 136 can be broad to appreciate the materials and scrutinize the manner of appreciation by the Court/Tribunal depending upon the lis raised. In the present appeals preferred by special leave, we think it condign to adopt an approach which is neither broad nor narrow but an ‘intermediaryespecially having regard to the natureof the disputethat involves the inhabitants of three States and a Union Territory.383. In the realm of determination of irrigated area, the assessment by the Tribunal, as we find, encapsules the factual and characteristically complex situation. Lands have already been irrigated. It is an issue of sustenance at the ground reality level. To reduce the allocation of water on this core would be inequitable. Therefore, in the obtaining fact situation, in our comprehension, no interference is warranted. That apart, having regard to the degree of wiredrawn complexities involved, requiringexpertise to dislodge the otherwisefindings of the Tribunal founded on an exhaustive appreciationof the materials onrecord, we arenot inclined to upset the determination made by it in this regard. On an overall scrutiny of the materials to which our attention had been drawn, we are in general agreement with the approach and assessment made by the Tribunal and the deductions made by it on the basis thereof. Sans rhetoric and emotionally appealing submissions, we find that the rival contentions are equally balanced and to reiterate, on an overall considerationof the materials onwe do not feel persuaded to differ with the Tribunals adjudication.In respect of the claim of Kerala, it is a matter of record that rainfall is evenly distributed over the months of May to November so much so that occasional support by artificial irrigation is required in the instances of shortfall in rains and that too during small periods. Against its demand of 99.8 TMC under different heads, it had demanded 35 TMC for transbasin diversion to generatepower. The Tribunal rejected the States request for transbasin diversion forprojects which, in terms of the National Water Policy of 2002, was even otherwise lower in preference to drinking water and irrigation. The Tribunal in adjudging the States share did notice that it had been unsuccessful in furthering its projects so much so that pending the completion and utilization thereof, the unutilized water allocated to it subject to the mechanism set up by the Cauvery Management Board/Regulatory Authority, would be received by Tamil Nadu. The Tribunal examined the information furnished by it in the common format and adjudged 29.76 TMC which was rounded upto 30 TMC as its share after due regard to its demand, amongst others, pertaining to different projects in Kabani, Bhavani, and Pambar basins having regard to their individual features and corresponding crop water requirement. This allocation included the share for domestic and industrial water purposes as well with the population projection for 2011. The findings of the Tribunal are not belied by the materials in support thereof and, therefore, we are inclined to accept the same.With regard to the claim of Union Territory of Puducherry for Karaikal region, it is a matter of record that because of its close proximity to the sea, the ground water by its nature is unsuitable for drinking and irrigation purposes and, thus, the Tribunal having regard to its irrigated area of 43000 acres allowed its second crop in departure from the yardstick applied for Karnataka and Tamil Nadu and granted 6.35 TMC by way of crop water requirement. It also relieved the Union Territory of the application of 20% consumptive utility formula while assessing its domestic and industrial water requirements. In the absence of any convincing reason to determine otherwise, the adjudication of the Tribunal on this count does not deserve anyour view, having regard to the overwhelming empirical data following multiple research studies by different authorities authenticating beyond doubt availability of replenishable ground water in the Delta areas of Tamil Nadu, 20 TMC of ground water quantified by the Tribunal is an eminently safe quantity to be accounted for in finally allocating/apportioning the share of Cauvery water. While expressing this view, we are not unmindful of the stand of Tamil Nadu and the aspect thatof ground water in the absence of adequate replenishment and further in the areas proximate to the coastal zone is generally avoidable. However, in the attendant facts and circumstances, in view of the studied scrutiny of all pertinent facets of the issue by balancing all factors, we are of the unhesitant opinion that at least 10 TMC of ground water available in the Delta areas of Tamil Nadu can be accounted for in finally determining the
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be segregated having an extricable composition and integrated whole for the purposes of the requirements of its inhabitants, more particularly when the same relates to allocation of water for domestic purposes to meet their daily errands. It will be inconceivable to have an artificial boundary and deny the population the primary need of drinking water. We hold so in the special features of the case keeping in view the global status the city has attained and further appreciating the doctrine of equitable proportionality on the bedrock of pressing human needs. 391. At this juncture, we need to recount that as per the national water policies, not only drinking water has been placed at the top of the other requirements in the order of priority, but it has also been predicted that adequate drinking water facilitates should be provided to the entire population, both in urban and rural areas and that drinking water should be made a primary consideration. It was declared as well that drinking water needs of human beings and animals should be the first charge on any available water. Article 14 of the Berlin Rules also mandates that in determining an equitable and reasonable use, the States shall first allocate water to satisfy vital human needs.392. In view of the above, we are constrained to observe that the approach of the Tribunal cannot be approved in the facts and circumstances indicated hereinabove. We are, thus, of the considered opinion that the allocation of water for drinking and domestic purposes for the entire city of Bengaluru has to be accounted for. Noticeably, Karnataka had claimed 14.52 TMC, i.e., 6.52 TMC for existing water schemes for Bengaluru and 8.00 TMC for the ongoing drinking water schemes for the city as in June, 1990. It had demanded 30 TMC as drinking water requirement for the city with the projection of 2025. Having regard to the percentage of decennial growth, as has been adopted by the Tribunal, in 2011, the demand of Karnataka for drinking water requirement for Bengaluru city would be in the vicinity of 24 TMC. Even excluding the computation for urban population of the State to be 8.70 TMC as arrived at by the Tribunal and that too without any basis and accepting the water requirement of rural population to be 8.52 TMC though also without any basis, the total figure representing drinking and domestic water requirement of the urban and rural population would be 32.5 TMC rounded upto 33 TMC in comparison to 46 TMC as claimed by Karnataka in its statement. Having rejected the assumption that 50% of the drinking water requirement would be met from ground water, this 33 TMC would, in our estimate, be a safe and acceptable figure qua drinking and domestic water requirement of the State of Karnataka for its urban and rural population. By applying the consumptive percentage of 20%, the volume of water to be allocated to Karnataka on this count would be 6.5 TMC in lieu of 1.75 awarded by the Tribunal, i.e., an increase by 4.75 TMC.393. Qua the view against transbasin diversion, suffice it to state that not only in the context of Bengaluru city, for the reasons cited hereinabove, a digression from the confines of the concept of in-river basin would be justified, since the National Water Policy of 1987, in categorical terms, enjoined that water should be made available to water short areas by transfer from other areas including transfers from one river basin to another. This very conspicuously emphasizes on an inclusive comprehension and in a deserving case like Bengaluru city, it would not be incompatible with the letter and spirit of the factors that ought to inform the determination of reasonable and equitable share of water in an interstate river as well as of the national policies formulated for planning and development of the precious natural resource involved. X.9 Allocation of water towards environmental protection: 394. On the aspect of allocation qua environmental protection, the Tribunal, in order to secure the purity of environmental and ecological regime in view of the injudicious use of available resources by human beings compounded by population explosion and distorted lifestyles and having regard to the spectre of river water pollution on account of industrial development and deforestation leading to siltation of reservoirs, etc., assigned 10 TMC to be reserved from the common pool to meet the environmental aspects. 395. We appreciate the endeavour and the initiative of the Tribunal having regard to the sustenance of purity of environment to which every individual is entitled and also simultaneously obliged to contribute to cultivate the feeling of environmental morality. That is the constant need of the present. In view of such an obtaining situation, we are not inclined to interfere in any manner in the allocation of the quantum of 10 TMC towards environmental protection. It stands affirmed. X.10 Revised water allocation amongst competing States: 396. The river Cauvery originates in Karnataka and eventually after its full flow through the other riparian States of the basin assimilates in the Bay of Bengal. With the evolution of the principle of equitable apportionment which is really to ensure equal justice to the basin States, the concept of prescriptive right or right to the natural flow of any inter-state river has ceased to exist. Having regard to the historical facts which demonstrate the constraints suffered by Karnataka resulting in its limited access and use of the surface flow of Cauvery in spite of being the upper riparian state, compared to Tamil Nadu, then Madras presidency, as well as severally drought conditions in its 28 districts/taluks, we are inclined to award an additional quantity of water to it in the measure of 14.75 TMC in all, i.e., 10 TMC (on account of availability of ground water in Tamil Nadu) + 4.75 TMC (for drinking and domestic purposes including such need for the whole city of Bengaluru). On these considerations, we consider Karnataka to be more deserving amongst the competing States to be entitled thereto.
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685 |
Great Offshore Ltd Vs. Iranian Offshore Engineering & Construction Company
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parties stamp the agreement. It would be incorrect to disturb the Parliaments intention when it is so clearly stated and when it in no way conflicts with the Constitution.66. Third, nothing in Section 7 suggests that the parties must sign every page. Once again, if I take the respondents argument to its logical conclusion, I would have no choice but to read language into the Act that is not there. Even if the faxed CPA is construed as a "document," it need only be "signed by the parties" pursuant to Section 7(4)(a). Every page does not need to be signed. If it is considered a "document," then this requirement would be met. As established above, both parties signed the faxed CPA in the signature box at the bottom of Part I. That said, the faxed CPA more closely fits within Section 7(4)(b)s requirements.67. Fourth, Section 7(4)(b) states that an agreement is in writing if it is contained in "an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement." This section covers agreements that are sent via facsimile ("fax") as they are "other means of telecommunication". "Fax" is defined as "a machine that scans documents electronically and transmits a photographic image of the contents to a receiving machine by telephone line" or "a document received by such a machine." [See: Chambers 21st Century Dictionary, Allied Publishers Limited (1996)]. This definition clearly provides that a fax falls under "other means of telecommunication." Thus, faxed agreements are acceptable under Section 7 of the Act.68. Section 7(4)(b) further requires us to ask whether a record of the agreement is found in the telecommunication, in this case a fax. What could be a better record of the agreement than the signatures of the parties themselves? As noted above, with no evidence to indicate that the respondents signature was forged, the faxed CPA stands on its own as the record of agreement. Likewise, Section 7(4)(b) stands satisfied.69. The court has to translate the legislative intention especially when viewed in light of one of the Acts "main objectives": "to minimise the supervisory role of Courts in the arbitral process. [See: Statements of Objects and Reasons of Section 4(v] of the Act].70. If this Court adds a number of extra requirements such as stamps, seals and originals, we would be enhancing our role, not minimising it. Moreover, the cost of doing business would increase. It takes time to implement such formalities. What is even more worrisome is that the parties intention to arbitrate would be foiled by formality.71. Such a stance would run counter to the very idea of arbitration, wherein tribunals all over the world generally bend over backwards to ensure that the parties intention to arbitrate is upheld. Adding technicalities disturbs the parties "autonomy of the will" (l autonomie de la volonti), i.e., their wishes. [For a general discussion on this doctrine see Law and Practice of International Commercial Arbitration, Alan Redfern and Martin Hunter, Street & Maxwell, London, 1986 at pages 4 and 53].72. Technicalities like stamps, seals and even signatures are red tape that have to be removed before the parties can get what they really want - an efficient, effective and potentially cheap resolution of their dispute. The autonomie de la volonti doctrine is enshrined in the policy objectives of the United Nations Commission on International Trade Law ("UNCITRAL") Model Law on International Commercial Arbitration, 1985, on which our Arbitration Act is based. [See Preamble to the Act]. The courts must implement legislative intention. It would be improper and undesirable for the courts to add a number of extra formalities not envisaged by the legislation. The courts directions should be to achieve the legislative intention. The courts must implement legislative intention. It would be improper and undesirable for the courts to add a number of extra formalities not envisaged by the legislation. The courts directions should be to achieve the legislative intention.73. One of the objectives of the UNCITRAL Model Law reads as under:- "the liberalization of international commercial arbitration by limiting the role of national courts, and by giving effect to the doctrine "autonomy of will," allowing the parties the freedom to choose how their disputes should be determined." [See Policy Objectives adopted by UNCITRAL in the preparation of the Model Law, as cited in Law and Practice of International Commercial Arbitration, Alan Redfern and Martin Hunter, Street & Maxwell, London (1986) at page 388 (citing UN doc.A/CN.9/07, paras 16-27]. 74. It goes without saying, but in the interest of providing the parties a comprehensive review of their arguments, I note that once it is established that the faxed CPA is valid, it follows that a valid contract and a valid arbitration clause exist. This contract, the faxed CPA, does not suffer from a conditional clause, as did the Letter of Intent. Thus, the respondents argument that the parties were not ad idem must fail.75. I have heard the learned counsel appearing for the applicant and the respondent at length. I have carefully reviewed the entire correspondence between the parties. The charter party agreement that had been signed by the applicant and the respondent clearly indicated that the parties have entered into a valid and concluded contract. The other correspondence between the parties also leads to a definite conclusion: the parties have entered into a valid contract containing an arbitration clause. Since a dispute has arisen between the applicant and the respondent, it needs to be referred to the arbitrator.76. On consideration of the totality of the facts and circumstances, I am clearly of the opinion that the applicant is entitled in law to an order for appointment of a sole arbitrator. Consequently, I request Honble Justice S.N. Variava, the retired Judge of the Supreme Court, to accept this arbitration. The learned arbitrator would be at liberty to fix his own fee. I direct the parties to appear before the learned arbitrator on 8th September, 2008 or any date convenient to the learned arbitrator.
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1[ds]57. There is no evidence to suggest that the faxed CPA was forged. To the contrary, the evidence we do have is the faxed CPA bearing the parties signatures coupled with correspondence between the parties. The correspondence, as it is more than just a pleading, adds additional weight to the applicants story. The applicants letter of 21st October corroborates the allegation that Ali Rahmati delivered the faxed CPA to the applicant on 12th September. The date of delivery of 12th September fits the timeline provided on the fax header, as the respondent could only have delivered the faxed CPA after 8th September. Moreover, it appears that having received the faxed CPA on 12th September, the applicant was prompted to ask for the original vide email on 14th September. Once again, the dates match up.58. The fax header, on its face, suggests that the document is genuine. This conclusion is bolstered by the above-mentioned correspondence. Thus, I find that the applicant had discharged its initial burden of sufficiently proving that the faxed CPA was not forged. The onus shifted to the respondent to prove that its signature was forged. With no evidence to support its assertion, the respondent cannot discharge its onus. Therefore, I find that the faxed CPA is legitimate and is not a product of forgery. As such, I need not look for the existence of a contract on the basis of the LOI of 23rd June.The respondent makes much of the fact that the "faxed CPA" of August 22nd is (1) a copy, not the original; (2) is stamped by one, not by both parties; (3) one of the parties did not sign every page; and (4) it was first sent vide fax.63. Section 7 defeats all four assertions. First, there is no requirement that the arbitration agreement be an original. Where the statute has gone to great lengths to define exactly what is meant by the term "in writing," we are precluded from adding another term to definition. Indeed, "it is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so." [See: Justice G.P. Singhs Principles of Statutory Interpretation, 11th Edition, 2008, at page 62.63, citing to Renula Bose (Smt.) v. Rai Manmathnath Bose, AIR 1945 PC 108 , p. 110; Stock v. Frank Jones (Tiptan) Ltd., (1978) 1 All ER 948, p.951; Assessing Authority-Cum-Excise and Taxation Officer, Gurgaon & Another v. East India Cotton Mfg. Co. Ltd., Faridabad (1981) 3 SCC 531 ].64. An exception to this rule can be made. But before adding words to a statute, "... the Court must be abundantly clear of three matters: (1) the intended purpose of the statute or provision in question, (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have used, had the error in the Bill been noticed." [See: Justice G.P. Singhs Principles of Statutory Interpretation, 11th Edition, 2008 at page 75 citing to Inco Europe Ltd. v. First Choice Distribution (a firm) (2000) 2 All ER 109, at page 115 (HL)]. As I mention below, one of the main objectives of the Arbitration and Conciliation Act, 1996 is to minimise the role of the Court; adding additional requirements to the Act is antithetical to such a goal.65. Second, the plain language of Section 7 once again governs my conclusion. Section 7 does not require that the parties stamp the agreement. It would be incorrect to disturb the Parliaments intention when it is so clearly stated and when it in no way conflicts with the Constitution.66. Third, nothing in Section 7 suggests that the parties must sign every page. Once again, if I take the respondents argument to its logical conclusion, I would have no choice but to read language into the Act that is not there. Even if the faxed CPA is construed as a "document," it need only be "signed by the parties" pursuant to Section 7(4)(a). Every page does not need to be signed. If it is considered a "document," then this requirement would be met. As established above, both parties signed the faxed CPA in the signature box at the bottom of Part I. That said, the faxed CPA more closely fits within Section 7(4)(b)s requirements.67. Fourth, Section 7(4)(b) states that an agreement is in writing if it is contained in "an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement." This section covers agreements that are sent via facsimile ("fax") as they are "other means of telecommunication". "Fax" is defined as "a machine that scans documents electronically and transmits a photographic image of the contents to a receiving machine by telephone line" or "a document received by such a machine." [See: Chambers 21st Century Dictionary, Allied Publishers Limited (1996)]. This definition clearly provides that a fax falls under "other means of telecommunication." Thus, faxed agreements are acceptable under Section 7 of the Act.68. Section 7(4)(b) further requires us to ask whether a record of the agreement is found in the telecommunication, in this case a fax. What could be a better record of the agreement than the signatures of the parties themselves? As noted above, with no evidence to indicate that the respondents signature was forged, the faxed CPA stands on its own as the record of agreement. Likewise, Section 7(4)(b) stands satisfied.69. The court has to translate the legislative intention especially when viewed in light of one of the Acts "main objectives": "to minimise the supervisory role of Courts in the arbitral process. [See: Statements of Objects and Reasons of Section 4(v] of the Act].70. If this Court adds a number of extra requirements such as stamps, seals and originals, we would be enhancing our role, not minimising it. Moreover, the cost of doing business would increase. It takes time to implement such formalities. What is even more worrisome is that the parties intention to arbitrate would be foiled by formality.71. Such a stance would run counter to the very idea of arbitration, wherein tribunals all over the world generally bend over backwards to ensure that the parties intention to arbitrate is upheld. Adding technicalities disturbs the parties "autonomy of the will" (l autonomie de la volonti), i.e., their wishes. [For a general discussion on this doctrine see Law and Practice of International Commercial Arbitration, Alan Redfern and Martin Hunter, Street & Maxwell, London, 1986 at pages 4 and 53].72. Technicalities like stamps, seals and even signatures are red tape that have to be removed before the parties can get what they really want - an efficient, effective and potentially cheap resolution of their dispute. The autonomie de la volonti doctrine is enshrined in the policy objectives of the United Nations Commission on International Trade Law ("UNCITRAL") Model Law on International Commercial Arbitration, 1985, on which our Arbitration Act is based. [See Preamble to the Act]. The courts must implement legislative intention. It would be improper and undesirable for the courts to add a number of extra formalities not envisaged by the legislation. The courts directions should be to achieve the legislative intention. The courts must implement legislative intention. It would be improper and undesirable for the courts to add a number of extra formalities not envisaged by the legislation. The courts directions should be to achieve the legislative intention.73. One of the objectives of the UNCITRAL Model Law reads asliberalization of international commercial arbitration by limiting the role of national courts, and by giving effect to the doctrine "autonomy of will," allowing the parties the freedom to choose how their disputes should be determined." [See Policy Objectives adopted by UNCITRAL in the preparation of the Model Law, as cited in Law and Practice of International Commercial Arbitration, Alan Redfern and Martin Hunter, Street & Maxwell, London (1986) at page 388 (citing UN doc.A/CN.9/07, paras 16-27].It goes without saying, but in the interest of providing the parties a comprehensive review of their arguments, I note that once it is established that the faxed CPA is valid, it follows that a valid contract and a valid arbitration clause exist. This contract, the faxed CPA, does not suffer from a conditional clause, as did the Letter of Intent. Thus, the respondents argument that the parties were not ad idem must fail.75. I have heard the learned counsel appearing for the applicant and the respondent at length. I have carefully reviewed the entire correspondence between the parties. The charter party agreement that had been signed by the applicant and the respondent clearly indicated that the parties have entered into a valid and concluded contract. The other correspondence between the parties also leads to a definite conclusion: the parties have entered into a valid contract containing an arbitration clause. Since a dispute has arisen between the applicant and the respondent, it needs to be referred to the arbitrator.76. On consideration of the totality of the facts and circumstances, I am clearly of the opinion that the applicant is entitled in law to an order for appointment of a sole arbitrator. Consequently, I request Honble Justice S.N. Variava, the retired Judge of the Supreme Court, to accept this arbitration. The learned arbitrator would be at liberty to fix his own fee. I direct the parties to appear before the learned arbitrator on 8th September, 2008 or any date convenient to the learned arbitrator.
| 1 | 7,895 |
### 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:
parties stamp the agreement. It would be incorrect to disturb the Parliaments intention when it is so clearly stated and when it in no way conflicts with the Constitution.66. Third, nothing in Section 7 suggests that the parties must sign every page. Once again, if I take the respondents argument to its logical conclusion, I would have no choice but to read language into the Act that is not there. Even if the faxed CPA is construed as a "document," it need only be "signed by the parties" pursuant to Section 7(4)(a). Every page does not need to be signed. If it is considered a "document," then this requirement would be met. As established above, both parties signed the faxed CPA in the signature box at the bottom of Part I. That said, the faxed CPA more closely fits within Section 7(4)(b)s requirements.67. Fourth, Section 7(4)(b) states that an agreement is in writing if it is contained in "an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement." This section covers agreements that are sent via facsimile ("fax") as they are "other means of telecommunication". "Fax" is defined as "a machine that scans documents electronically and transmits a photographic image of the contents to a receiving machine by telephone line" or "a document received by such a machine." [See: Chambers 21st Century Dictionary, Allied Publishers Limited (1996)]. This definition clearly provides that a fax falls under "other means of telecommunication." Thus, faxed agreements are acceptable under Section 7 of the Act.68. Section 7(4)(b) further requires us to ask whether a record of the agreement is found in the telecommunication, in this case a fax. What could be a better record of the agreement than the signatures of the parties themselves? As noted above, with no evidence to indicate that the respondents signature was forged, the faxed CPA stands on its own as the record of agreement. Likewise, Section 7(4)(b) stands satisfied.69. The court has to translate the legislative intention especially when viewed in light of one of the Acts "main objectives": "to minimise the supervisory role of Courts in the arbitral process. [See: Statements of Objects and Reasons of Section 4(v] of the Act].70. If this Court adds a number of extra requirements such as stamps, seals and originals, we would be enhancing our role, not minimising it. Moreover, the cost of doing business would increase. It takes time to implement such formalities. What is even more worrisome is that the parties intention to arbitrate would be foiled by formality.71. Such a stance would run counter to the very idea of arbitration, wherein tribunals all over the world generally bend over backwards to ensure that the parties intention to arbitrate is upheld. Adding technicalities disturbs the parties "autonomy of the will" (l autonomie de la volonti), i.e., their wishes. [For a general discussion on this doctrine see Law and Practice of International Commercial Arbitration, Alan Redfern and Martin Hunter, Street & Maxwell, London, 1986 at pages 4 and 53].72. Technicalities like stamps, seals and even signatures are red tape that have to be removed before the parties can get what they really want - an efficient, effective and potentially cheap resolution of their dispute. The autonomie de la volonti doctrine is enshrined in the policy objectives of the United Nations Commission on International Trade Law ("UNCITRAL") Model Law on International Commercial Arbitration, 1985, on which our Arbitration Act is based. [See Preamble to the Act]. The courts must implement legislative intention. It would be improper and undesirable for the courts to add a number of extra formalities not envisaged by the legislation. The courts directions should be to achieve the legislative intention. The courts must implement legislative intention. It would be improper and undesirable for the courts to add a number of extra formalities not envisaged by the legislation. The courts directions should be to achieve the legislative intention.73. One of the objectives of the UNCITRAL Model Law reads as under:- "the liberalization of international commercial arbitration by limiting the role of national courts, and by giving effect to the doctrine "autonomy of will," allowing the parties the freedom to choose how their disputes should be determined." [See Policy Objectives adopted by UNCITRAL in the preparation of the Model Law, as cited in Law and Practice of International Commercial Arbitration, Alan Redfern and Martin Hunter, Street & Maxwell, London (1986) at page 388 (citing UN doc.A/CN.9/07, paras 16-27]. 74. It goes without saying, but in the interest of providing the parties a comprehensive review of their arguments, I note that once it is established that the faxed CPA is valid, it follows that a valid contract and a valid arbitration clause exist. This contract, the faxed CPA, does not suffer from a conditional clause, as did the Letter of Intent. Thus, the respondents argument that the parties were not ad idem must fail.75. I have heard the learned counsel appearing for the applicant and the respondent at length. I have carefully reviewed the entire correspondence between the parties. The charter party agreement that had been signed by the applicant and the respondent clearly indicated that the parties have entered into a valid and concluded contract. The other correspondence between the parties also leads to a definite conclusion: the parties have entered into a valid contract containing an arbitration clause. Since a dispute has arisen between the applicant and the respondent, it needs to be referred to the arbitrator.76. On consideration of the totality of the facts and circumstances, I am clearly of the opinion that the applicant is entitled in law to an order for appointment of a sole arbitrator. Consequently, I request Honble Justice S.N. Variava, the retired Judge of the Supreme Court, to accept this arbitration. The learned arbitrator would be at liberty to fix his own fee. I direct the parties to appear before the learned arbitrator on 8th September, 2008 or any date convenient to the learned arbitrator.
### Response:
1
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686 |
Sheodhari Rai & Others Vs. Suraj Prasad Singh & Others
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and 2 came into possession of the shares of Gobind Rai and Kari Rai as their nearest reversioner and that Bator Rai (defendant 4 ) or Singhasan Rai (defendant 5) had no connection or concern with those shares. They further pleaded in para.19 of the written statement that the lands of Bator Rai (defendant 4) and Singhasan Rai (defendant 5) were in the possession of the defendants first party as Shikmidars for over 20 years and that they had acquired occupancy rights in those lands according to law. It will be observed that Shikmi rights were claimed under Bator Rai (defendant 4) and Singhasan Rai (defendant 5) with respect to their respective shares in the lands in suit and not with respect to the shares that were of Gobind Rai or Kari Rai. Indeed, it was categorically pleaded that Bator Rai (defendant 4) and Singhasan Rai (defendant 5) had no concern or connection with the shares of Gobind Rai and Kari Rai.4. The learned Subordinate Judge held that the pedigree-table set out in the plaint was correct and that the defendants first party or the father of defendants 1 and 2 did not inherit the shares of Gobind Rai or Kari Rai on the deaths of their respective widows Maida Kuer and Budha Kuer and that Bator Rai (defendant 4) and Singhasan Rai (defendant 5) inherited those shares as the nearest reversioners of Gobind Rai and Kari Rai and consequently by and under the registered deed of sale the plaintiffs acquired title to the lands in dispute. The Subordinate Judge, however, came to the conclusion that Bator Rai (defendant 4) and Singhasan Rai (defendant 5) made a Shikmi settlement not only of their original share in the lands but also of the shares of Gobind Rai and Kari Rai which on the death of their respective widows they (the defendants 4 and 5) had inherited as the nearest reversioners. The learned Subordinate Judge was conscious that no such case was made in the written statement but felt bound to arrive at that conclusion which seemed to him to afford the only rational explanation for the defendants first party being in possession of the lands of Maida Kuer and Budha Kuer and paying their rents to the superior landlords ever since 1333 F.S. In the result, the learned Subordinate Judge, while declaring the plaintiffs title, declined to make a decree for possession in their favour because the defendants first party were Shikmidars in respect of the lands in suit and could not be ejected therefrom.5. The plaintiffs appealed. The High Court pointed out, quite correctly we think, that it was not right for the trial Court to make out a new case for the defendants first party with respect to the shares of Gobind Rai and Kari Rai, which was not only not made in their written statement but was wholly inconsistent with the title set up by the defendants.The High Court found that the fact of payment of rent by the defandants first party to the superior landlords as evidenced by the rent receiptes (Ex. E series) produced by the defendants first party from their own custody was quite consistent with their having permissive occupation of the lands under an amicable arrangement with the defendants second party without there being any relationship of landlord and tenant between the two sets of defendants. The High Court found support for this conclusion in the evidence of Jagarnath Rai defendant No. 2 himself, relevant parts of which are quoted in the High Court judgment.On a review of the evidence on record the High Court came to the following conclusions :"In the ultimate analysis the position reduces itself to this: (1) that settlement of the disputed lands with the defendants first party in Shikmi has not been established; (2) nor has it been established that they have ever paid any rent as Shikmidars in respect of the disputed lands; (3) that as kinsmen of the defendants second party, they were cultivating the lands and paying rents payable in respect of them to the proprietors by virtue of an arrangement for permissive occupation; (4) that any relationship of landlord and tenant was never contemplated between them; (5) that the contesting defendants do not set up a case of right by adverse possession (6) that even if assumed that they do set it up, they cannot have it because the rent receipts produced by them would go to show that they have been acknowledging the title of the defendants second party till within 12 years of the institution of the suit; (7) that it was not open to the trial Court to make a case which was not set up by the parties; and (8) that it is clear that the defendants have not been able to prove any title or right to possession in themselves in respect of the lands in suit so as to be able to successfully resist the plaintiffs claim for declaration of title and recovery of possession."6. Learned Advocate for the appellants has taken us through the pleadings and the evidence on record but our attention has not been drawn to anything which may be said to throw any doubt on any of the above findings of the High Court which, we are satisfied, are quite well-founded. Learned Advocate for the appellants contended that the plaintiffs having made a case of dispossession, no decree for possession could possibly be made in their favour as it was not proved that they were in possession at some time within 12 years prior to the date of the suit.There is no substance in this contention in view of the findings of the High Court. The possession of the defendants first part being only permissive, the defendants second party must be regarded as having been in possession through the defendants first party until the latter asserted an adverse possession which, however, was only shortly before the date of sale of the lands to the plaintiffs.
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0[ds]The High Court pointed out, quite correctly we think, that it was not right for the trial Court to make out a new case for the defendants first party with respect to the shares of Gobind Rai and Kari Rai, which was not only not made in their written statement but was wholly inconsistent with the title set up by the defendants.The High Court found that the fact of payment of rent by the defandants first party to the superior landlords as evidenced by the rent receiptes (Ex. E series) produced by the defendants first party from their own custody was quite consistent with their having permissive occupation of the lands under an amicable arrangement with the defendants second party without there being any relationship of landlord and tenant between the two sets of defendants. The High Court found support for this conclusion in the evidence of Jagarnath Rai defendant No. 2 himself, relevant parts of which are quoted in the High Court judgment.
| 0 | 1,457 |
### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
and 2 came into possession of the shares of Gobind Rai and Kari Rai as their nearest reversioner and that Bator Rai (defendant 4 ) or Singhasan Rai (defendant 5) had no connection or concern with those shares. They further pleaded in para.19 of the written statement that the lands of Bator Rai (defendant 4) and Singhasan Rai (defendant 5) were in the possession of the defendants first party as Shikmidars for over 20 years and that they had acquired occupancy rights in those lands according to law. It will be observed that Shikmi rights were claimed under Bator Rai (defendant 4) and Singhasan Rai (defendant 5) with respect to their respective shares in the lands in suit and not with respect to the shares that were of Gobind Rai or Kari Rai. Indeed, it was categorically pleaded that Bator Rai (defendant 4) and Singhasan Rai (defendant 5) had no concern or connection with the shares of Gobind Rai and Kari Rai.4. The learned Subordinate Judge held that the pedigree-table set out in the plaint was correct and that the defendants first party or the father of defendants 1 and 2 did not inherit the shares of Gobind Rai or Kari Rai on the deaths of their respective widows Maida Kuer and Budha Kuer and that Bator Rai (defendant 4) and Singhasan Rai (defendant 5) inherited those shares as the nearest reversioners of Gobind Rai and Kari Rai and consequently by and under the registered deed of sale the plaintiffs acquired title to the lands in dispute. The Subordinate Judge, however, came to the conclusion that Bator Rai (defendant 4) and Singhasan Rai (defendant 5) made a Shikmi settlement not only of their original share in the lands but also of the shares of Gobind Rai and Kari Rai which on the death of their respective widows they (the defendants 4 and 5) had inherited as the nearest reversioners. The learned Subordinate Judge was conscious that no such case was made in the written statement but felt bound to arrive at that conclusion which seemed to him to afford the only rational explanation for the defendants first party being in possession of the lands of Maida Kuer and Budha Kuer and paying their rents to the superior landlords ever since 1333 F.S. In the result, the learned Subordinate Judge, while declaring the plaintiffs title, declined to make a decree for possession in their favour because the defendants first party were Shikmidars in respect of the lands in suit and could not be ejected therefrom.5. The plaintiffs appealed. The High Court pointed out, quite correctly we think, that it was not right for the trial Court to make out a new case for the defendants first party with respect to the shares of Gobind Rai and Kari Rai, which was not only not made in their written statement but was wholly inconsistent with the title set up by the defendants.The High Court found that the fact of payment of rent by the defandants first party to the superior landlords as evidenced by the rent receiptes (Ex. E series) produced by the defendants first party from their own custody was quite consistent with their having permissive occupation of the lands under an amicable arrangement with the defendants second party without there being any relationship of landlord and tenant between the two sets of defendants. The High Court found support for this conclusion in the evidence of Jagarnath Rai defendant No. 2 himself, relevant parts of which are quoted in the High Court judgment.On a review of the evidence on record the High Court came to the following conclusions :"In the ultimate analysis the position reduces itself to this: (1) that settlement of the disputed lands with the defendants first party in Shikmi has not been established; (2) nor has it been established that they have ever paid any rent as Shikmidars in respect of the disputed lands; (3) that as kinsmen of the defendants second party, they were cultivating the lands and paying rents payable in respect of them to the proprietors by virtue of an arrangement for permissive occupation; (4) that any relationship of landlord and tenant was never contemplated between them; (5) that the contesting defendants do not set up a case of right by adverse possession (6) that even if assumed that they do set it up, they cannot have it because the rent receipts produced by them would go to show that they have been acknowledging the title of the defendants second party till within 12 years of the institution of the suit; (7) that it was not open to the trial Court to make a case which was not set up by the parties; and (8) that it is clear that the defendants have not been able to prove any title or right to possession in themselves in respect of the lands in suit so as to be able to successfully resist the plaintiffs claim for declaration of title and recovery of possession."6. Learned Advocate for the appellants has taken us through the pleadings and the evidence on record but our attention has not been drawn to anything which may be said to throw any doubt on any of the above findings of the High Court which, we are satisfied, are quite well-founded. Learned Advocate for the appellants contended that the plaintiffs having made a case of dispossession, no decree for possession could possibly be made in their favour as it was not proved that they were in possession at some time within 12 years prior to the date of the suit.There is no substance in this contention in view of the findings of the High Court. The possession of the defendants first part being only permissive, the defendants second party must be regarded as having been in possession through the defendants first party until the latter asserted an adverse possession which, however, was only shortly before the date of sale of the lands to the plaintiffs.
### Response:
0
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687 |
Rai Bahadur Mohan Singh Oberoi Vs. Commissioner of Income Tax, West Bengal
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been admitted by the assessee in the past before the department that the shares in question standing in the name of the wife and two sons of the assessee belonged to him and were his own investments. Although it is normally for the department to show that the apparent is not the real, in the present case we find that there was ample material to justify the inference that the assessee was the real owner of the shares and they were held by him benami in the names of his wife and two sons.7. It was urged before us during the course of argument that no such admission had been made, but nothing was brought to our notice to show that the above observation made by the Income Tax Officer had been challenged in Appeal. No copy of the memorandum of appeal filed against the order of the Income Tax Officer has been produced. We also find that the above observation containing the admission has been incorporated in the statement of the case and is an integral part of it. The tribunal nowhere observed that the above observation was factually incorrect and that the said admission had not been made by the assessee. It was not even mentioned that the above admission was erroenous. On the contrary, the Tribunal took the view that as the wife and two sons of the assessee were the registered holders of the shares in question, dividend income from those shares should have been assessed as their income and not that of the assessee. The Tribunal in this context relied upon the decision of this Court in Howrah Trading Co. v. Commissioner of Income Tax (1959) 36 ITR 215 = (AIR 1959 SC 775 ). What was held in that case was that a person who purchases shares in a company under blank transfer and in whose name the shares have not been registered in the books of the company is not a "shareholder" in respect of such shares within the meaning of Section 18 (5) of the Indian Income Tax Act, 1922 notwithstanding his equitable right to the dividend on such shares. It was further held that such person was not entitled to have his dividend income grossed up under Section 16 (2) of the Act by the addition of the income tax paid by the company in respect of those shares.8. The decision in Howrah Trading Co. (1959) 36 ITR 215 = (AIR 1959 SC 775 ) (supra) was considered by a larger bench of this Court in Kishanchand Lunidasing Bajaj v. Commissioner of Income Tax (1966) 60 ITR 500 = (AIR 1966 SC 1583 ). It was held in that case that a company for its purpose does not recognise any trust or equitable ownership in shares. It merely recognizes the registered shareholder as the owner and pays dividend to that shareholder. But the shares may, because of a trust or other fiduciary relationship, belong to a person other than the registered shareholder, and the dividend distributed by the company would for the purpose of tax be deemed to accrue or arise to the real owner of the shares. The scheme of "grossing up", it was observed, is not susceptible to the interpretation that the income from dividend is to be regarded as the income only of the registered shareholder and not of the real owner of the shares.In the aforesaid case, shares were acquired with the funds of a Hindu undivided family in the name of the Karta. It was held that the Hindu undivided family could be assessed to tax on the dividend from those shares.9. We thus find that the Tribunal excluded the dividend income on a ground which was not legally tenable.10. The Tribunal also observed that though the shares might have been acquired out of the secreted profits of the appellant, in the absence of any evidence that the shares remained in substance the property of the assessee, the dividend income could not be included in his total income. The approach of the Tribunal in this respect too was erroneous. Once it was found that the assessee was the real owner of the shares and they had been purchased benami in the name of his wife and two sons, it would be presumed that the ownership of the shares continued to remain vested in the assessee, unless it was shown that because of some subsequent event, he had ceased to be the owner of the shares. No such attempt was made by the assessee.11. In view of the admissions referred to in the order of the Income Tax Officer, nothing hinges, in our opinion, upon the fact that the shares referred to in the letter of the assessee to the Income Tax Investigation Commission were mainly of the Associated Hotels of India and not of Northern India Caterers Ltd.12. We may also observe that if the Income Tax Appellate Tribunal records a finding on the point as to whether a purchase was made benami or not, such a finding as observed in Sree Meenakshi Mills Ltd. v. Commr. of Income Tax, (1956) SCR 691 = (AIR 1957 SC 49 ) would be considered to be one of fact. If such finding is based upon some evidence, the same would have to be accepted in proceedings in a reference under Section 66 (1) of the Indian Income Tax Act. This aspect, however, does not help the assessee in the present case because the Tribunal nowhere dealt with the question as to whether the purchase of shares was or was not benami in the name of the wife and sons of the assessee.13. Submission was made by Mr. Desai during the course of arguments for adjournment of the appeal to enable the assessee-appellant to produce the detailed findings of the Income Tax Investigation Commission. We, however, declined to do so as, in our opinion, the appeal had to be disposed of on the basis of the material before us.14
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0[ds]8. The decision in Howrah Trading Co. (1959) 36 ITR 215 = (AIR 1959 SC 775 ) (supra) was considered by a larger bench of this Court in Kishanchand Lunidasing Bajaj v. Commissioner of Income Tax (1966) 60 ITR 500 = (AIR 1966 SC 1583 ). It was held in that case that a company for its purpose does not recognise any trust or equitable ownership in shares. It merely recognizes the registered shareholder as the owner and pays dividend to that shareholder. But the shares may, because of a trust or other fiduciary relationship, belong to a person other than the registered shareholder, and the dividend distributed by the company would for the purpose of tax be deemed to accrue or arise to the real owner of the shares. The scheme of "grossing up", it was observed, is not susceptible to the interpretation that the income from dividend is to be regarded as the income only of the registered shareholder and not of the real owner of the shares.In the aforesaid case, shares were acquired with the funds of a Hindu undivided family in the name of the Karta. It was held that the Hindu undivided family could be assessed to tax on the dividend from those shares.9. We thus find that the Tribunal excluded the dividend income on a ground which was not legally tenable.10. The Tribunal also observed that though the shares might have been acquired out of the secreted profits of the appellant, in the absence of any evidence that the shares remained in substance the property of the assessee, the dividend income could not be included in his total income. The approach of the Tribunal in this respect too was erroneous. Once it was found that the assessee was the real owner of the shares and they had been purchased benami in the name of his wife and two sons, it would be presumed that the ownership of the shares continued to remain vested in the assessee, unless it was shown that because of some subsequent event, he had ceased to be the owner of the shares. No such attempt was made by the assessee.11. In view of the admissions referred to in the order of the Income Tax Officer, nothing hinges, in our opinion, upon the fact that the shares referred to in the letter of the assessee to the Income Tax Investigation Commission were mainly of the Associated Hotels of India and not of Northern India Caterers Ltd.12. We may also observe that if the Income Tax Appellate Tribunal records a finding on the point as to whether a purchase was made benami or not, such a finding as observed in Sree Meenakshi Mills Ltd. v. Commr. of Income Tax, (1956) SCR 691 = (AIR 1957 SC 49 ) would be considered to be one of fact. If such finding is based upon some evidence, the same would have to be accepted in proceedings in a reference under Section 66 (1) of the Indian Income Tax Act. This aspect, however, does not help the assessee in the present case because the Tribunal nowhere dealt with the question as to whether the purchase of shares was or was not benami in the name of the wife and sons of the assessee.13. Submission was made by Mr. Desai during the course of arguments for adjournment of the appeal to enable the assessee-appellant to produce the detailed findings of the Income Tax Investigation Commission. We, however, declined to do so as, in our opinion, the appeal had to be disposed of on the basis of the material before us.
| 0 | 2,486 |
### Instruction:
Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
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been admitted by the assessee in the past before the department that the shares in question standing in the name of the wife and two sons of the assessee belonged to him and were his own investments. Although it is normally for the department to show that the apparent is not the real, in the present case we find that there was ample material to justify the inference that the assessee was the real owner of the shares and they were held by him benami in the names of his wife and two sons.7. It was urged before us during the course of argument that no such admission had been made, but nothing was brought to our notice to show that the above observation made by the Income Tax Officer had been challenged in Appeal. No copy of the memorandum of appeal filed against the order of the Income Tax Officer has been produced. We also find that the above observation containing the admission has been incorporated in the statement of the case and is an integral part of it. The tribunal nowhere observed that the above observation was factually incorrect and that the said admission had not been made by the assessee. It was not even mentioned that the above admission was erroenous. On the contrary, the Tribunal took the view that as the wife and two sons of the assessee were the registered holders of the shares in question, dividend income from those shares should have been assessed as their income and not that of the assessee. The Tribunal in this context relied upon the decision of this Court in Howrah Trading Co. v. Commissioner of Income Tax (1959) 36 ITR 215 = (AIR 1959 SC 775 ). What was held in that case was that a person who purchases shares in a company under blank transfer and in whose name the shares have not been registered in the books of the company is not a "shareholder" in respect of such shares within the meaning of Section 18 (5) of the Indian Income Tax Act, 1922 notwithstanding his equitable right to the dividend on such shares. It was further held that such person was not entitled to have his dividend income grossed up under Section 16 (2) of the Act by the addition of the income tax paid by the company in respect of those shares.8. The decision in Howrah Trading Co. (1959) 36 ITR 215 = (AIR 1959 SC 775 ) (supra) was considered by a larger bench of this Court in Kishanchand Lunidasing Bajaj v. Commissioner of Income Tax (1966) 60 ITR 500 = (AIR 1966 SC 1583 ). It was held in that case that a company for its purpose does not recognise any trust or equitable ownership in shares. It merely recognizes the registered shareholder as the owner and pays dividend to that shareholder. But the shares may, because of a trust or other fiduciary relationship, belong to a person other than the registered shareholder, and the dividend distributed by the company would for the purpose of tax be deemed to accrue or arise to the real owner of the shares. The scheme of "grossing up", it was observed, is not susceptible to the interpretation that the income from dividend is to be regarded as the income only of the registered shareholder and not of the real owner of the shares.In the aforesaid case, shares were acquired with the funds of a Hindu undivided family in the name of the Karta. It was held that the Hindu undivided family could be assessed to tax on the dividend from those shares.9. We thus find that the Tribunal excluded the dividend income on a ground which was not legally tenable.10. The Tribunal also observed that though the shares might have been acquired out of the secreted profits of the appellant, in the absence of any evidence that the shares remained in substance the property of the assessee, the dividend income could not be included in his total income. The approach of the Tribunal in this respect too was erroneous. Once it was found that the assessee was the real owner of the shares and they had been purchased benami in the name of his wife and two sons, it would be presumed that the ownership of the shares continued to remain vested in the assessee, unless it was shown that because of some subsequent event, he had ceased to be the owner of the shares. No such attempt was made by the assessee.11. In view of the admissions referred to in the order of the Income Tax Officer, nothing hinges, in our opinion, upon the fact that the shares referred to in the letter of the assessee to the Income Tax Investigation Commission were mainly of the Associated Hotels of India and not of Northern India Caterers Ltd.12. We may also observe that if the Income Tax Appellate Tribunal records a finding on the point as to whether a purchase was made benami or not, such a finding as observed in Sree Meenakshi Mills Ltd. v. Commr. of Income Tax, (1956) SCR 691 = (AIR 1957 SC 49 ) would be considered to be one of fact. If such finding is based upon some evidence, the same would have to be accepted in proceedings in a reference under Section 66 (1) of the Indian Income Tax Act. This aspect, however, does not help the assessee in the present case because the Tribunal nowhere dealt with the question as to whether the purchase of shares was or was not benami in the name of the wife and sons of the assessee.13. Submission was made by Mr. Desai during the course of arguments for adjournment of the appeal to enable the assessee-appellant to produce the detailed findings of the Income Tax Investigation Commission. We, however, declined to do so as, in our opinion, the appeal had to be disposed of on the basis of the material before us.14
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688 |
Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman & Ors
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the decree of the High Court confirming the decree of the District Court was without jurisdiction. The Court executing the decree rejected the contention. An appeal against that order to a Bench of the Court of Small Causes was also unsuccessful. 3. But in a petition under Art. 227 of the Constitution moved by Munshi the High Court of Gujarat (that High Court having, by virtue of the provisions of the Bombay Reorganization Act, 1960, acquired jurisdiction to deal with and dispose of the case) reversed the order of the Court of Small Causes and ordered that the petition for execution be dismissed. With special leave Modi has appealed to this Court. 4. The expression premises in S. 5(8) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act 57 of 1947 does not include premises used for agricultural purposes.By S. 6 of that Act the provisions of Part II which relate to conditions in which orders in ejectment may be made against tenants and other related matters apply to premises let for education, business, trade or storage. It is plain that the Court exercising power under Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, has no jurisdiction to entertain a suit for possession of land used for agricultural purposes. Again in ascertaining whether the land demised is used for agricultural purposes, the crucial date is the date on which the right conferred by the Act is sought to be exercised; Mst. Subhandra v. Narsaji Chenaji Marwadi, AIR 1966 SC 806 . 5. In this case the suit for ejectment against Munshi was instituted by Modi in the Court of Small Causes. No objection was raised that the Court had no jurisdiction to entertain the suit. The objection was not raised even in appeal, nor before the High Court. The Trial Court dismissed the suit on merits: the decree was reversed by the District Court and that decree was confirmed by the High Court. The objection was raised for the first time when the decree was sought to be executed. 6. A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a persons who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution.Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.In Jnanendra Mohan Bhaduri v. Rabindra Nath Chakravarti, 60 Ind App 71 = (AIR 1933 PC 61 ) the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction. 8. In the present case the question whether the Court of Small Causes had jurisdiction to entertain the suit against Munshi depended upon the interpretation of the terms of the agreement of lease, and the user to which the land was put at the date of the grant of the lease. These questions cannot be permitted to be raised in an execution proceeding so as to displace the jurisdiction of the Court which passed the decree.If the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or under S. 11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the Court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding. 9. The High Court was of the view that where there is lack of inherent jurisdiction in the Court which passed the decree, the executing Court must refuse to execute it on the ground that the decree is a nullity. But, in our judgment, for the purpose of determining whether the Court which passed the decree had jurisdiction to try the suit, it is necessary to determine facts on the decision of which the question depends, and the objection does not appear on the face of the record, the executing Court cannot enter upon an enquiry into those facts. In the view of the High Court since the land leased was at the date of the lease used for agricultural purposes and that it so appeared on investigation of the terms of the lease and other relevant evidence, it was open to the Court to hold that the decree was without jurisdiction and on that account a nullity. The view taken by the High Court, in our judgment, cannot be sustained.
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1[ds]8. In the present case the question whether the Court of Small Causes had jurisdiction to entertain the suit against Munshidepended upon the interpretation of the terms of the agreement of lease, and the user to which the land was put at the date of the grant of the lease. These questions cannot be permitted to be raised in an execution proceeding so as to displace the jurisdiction of the Court which passed the decree.If the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or under S. 11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determinewhether the Court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding9. The High Court was of the view that where there is lack of inherent jurisdiction in the Court which passed the decree, the executing Court must refuse to execute it on the ground that the decree is a nullity. But, in our judgment, for the purpose of determiningwhether the Court which passed the decree had jurisdiction to try theit is necessary to determine facts on the decision of which the question depends, and the objection does not appear on the face of the record, the executing Court cannot enter upon an enquiry into those facts. In the view of the High Court since the land leased was at the date of the lease used for agricultural purposes and that it so appeared on investigation of the terms of the lease and other relevant evidence, it was open to the Court to hold that the decree was without jurisdiction and on that account a nullity. The view taken by the High Court, in our judgment, cannot be sustained.
| 1 | 1,371 |
### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
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the decree of the High Court confirming the decree of the District Court was without jurisdiction. The Court executing the decree rejected the contention. An appeal against that order to a Bench of the Court of Small Causes was also unsuccessful. 3. But in a petition under Art. 227 of the Constitution moved by Munshi the High Court of Gujarat (that High Court having, by virtue of the provisions of the Bombay Reorganization Act, 1960, acquired jurisdiction to deal with and dispose of the case) reversed the order of the Court of Small Causes and ordered that the petition for execution be dismissed. With special leave Modi has appealed to this Court. 4. The expression premises in S. 5(8) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act 57 of 1947 does not include premises used for agricultural purposes.By S. 6 of that Act the provisions of Part II which relate to conditions in which orders in ejectment may be made against tenants and other related matters apply to premises let for education, business, trade or storage. It is plain that the Court exercising power under Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, has no jurisdiction to entertain a suit for possession of land used for agricultural purposes. Again in ascertaining whether the land demised is used for agricultural purposes, the crucial date is the date on which the right conferred by the Act is sought to be exercised; Mst. Subhandra v. Narsaji Chenaji Marwadi, AIR 1966 SC 806 . 5. In this case the suit for ejectment against Munshi was instituted by Modi in the Court of Small Causes. No objection was raised that the Court had no jurisdiction to entertain the suit. The objection was not raised even in appeal, nor before the High Court. The Trial Court dismissed the suit on merits: the decree was reversed by the District Court and that decree was confirmed by the High Court. The objection was raised for the first time when the decree was sought to be executed. 6. A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a persons who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution.Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.In Jnanendra Mohan Bhaduri v. Rabindra Nath Chakravarti, 60 Ind App 71 = (AIR 1933 PC 61 ) the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction. 8. In the present case the question whether the Court of Small Causes had jurisdiction to entertain the suit against Munshi depended upon the interpretation of the terms of the agreement of lease, and the user to which the land was put at the date of the grant of the lease. These questions cannot be permitted to be raised in an execution proceeding so as to displace the jurisdiction of the Court which passed the decree.If the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or under S. 11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the Court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding. 9. The High Court was of the view that where there is lack of inherent jurisdiction in the Court which passed the decree, the executing Court must refuse to execute it on the ground that the decree is a nullity. But, in our judgment, for the purpose of determining whether the Court which passed the decree had jurisdiction to try the suit, it is necessary to determine facts on the decision of which the question depends, and the objection does not appear on the face of the record, the executing Court cannot enter upon an enquiry into those facts. In the view of the High Court since the land leased was at the date of the lease used for agricultural purposes and that it so appeared on investigation of the terms of the lease and other relevant evidence, it was open to the Court to hold that the decree was without jurisdiction and on that account a nullity. The view taken by the High Court, in our judgment, cannot be sustained.
### Response:
1
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689 |
Sir Chunilal V. Mehta And Sons, Ltd Vs. The Century Spinning And Manufacturing Co., Ltd
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damages they must be deemed to exclude the right to claim an unascertained sum of money as damages. The contention of learned counsel is that the words "not less than" appearing before "Rs, 6,000" in cl. 14 clearly bring in cl. 10 and, therefore, entitle the, appellant to claim 10% of the estimated profits for the unexpired period by way of damages. But if we accept the interpretation, it would mean that the parties intended to confer on the Managing Agents what is in fact a right conferred by S. 73 of the Contract Act and the entire clause would be rendered otiose. Again the right to claim liquidated damages is enforceable under S. 74 of the Contract Act and where such a right is found to exist no question of ascertaining damages really arises. Where the parties have deliberately specified the amount of liquidated damages there can be no presumption that they, at the same time, intended to allow the party who has suffered by the breach to give a go-by to the sum specified and claim instead a sum of money which was not ascertained or ascertainable at the date of the breach. Learned counsel contends that upon this view the words "not less than" would be rendered otiose. In our opinion these words, as rightly pointed out by the High Court, were intended only to emphasise the fact that compensation will be computable at an amount not less than Rs. 6,000 p.m. Apparently, they thought it desirable to emphasise the point that the amount of Rs. 6,000 p.m. was regarded by them as reasonable and intended that it should not be reduced by the court in its discretion. 13. Mr. Palkhivala argued that what the appellants were entitled to was remuneration and remuneration meant nothing but salary. The two words according to him, have been used interchangeably in the various clauses of the agreement. If, therefore, salary in cl, 14 is the same as remuneration, which according to him it is, then as indicated in cl. 10 it would mean 10% of the gross profits of the Company subject to a minimum of Rs. 6,000 p.m. In support of the argument that the two words wherever used in the agreement mean one and the same thing learned counsel relies on cl. 12 which says that the monthly remuneration or salary shall accrue due from day to day. Then undoubtedly the two words clearly mean the same thing. But from a perusal of the clause it would appear that remuneration there could mean nothing other than Rs. 6,000 p.m. For, that clause provides that the amount shall accrue from day to day and be payable at the end of the month immediately succeeding the month in which it had been earned. Now, whether a company had made profits or not and if so what is the extent of the profits is determinable only at the end of its accounting year. To say, therefore, that the remuneration of 10% of the gross profits accrues from day to day and is payable every month would be to ignore the nature of this kind of remuneration. Therefore, in our opinion, when the remuneration and salary were equated in cl. 12 nothing else was meant but Rs. 6,000 and when the word salary was used in cl. 14 we have no doubt that only that amount was meant and no other. It may be that under cl, 10 the appellant was entitled to additional remuneration in case the profits were high upto a limit of 10% of the gross profits. That was a right to claim something over and above Rs. 6,000 and could be characterised properly as additional remuneration and not fixed or normal remuneration which alone was apparently in the minds of the parties when they drew up cl. 14. In our opinion, therefore the High Court was right in the construction placed by it upon the clause. 14. Coming to the alternative argument of Mr. Palkhivala, we appreciate that the right which the appellant had of claiming 10% of profits was a valuable right and that but for cl. 14 he would have been entitled in a suit to claim damages estimated at 10% of the gross profits. We also appreciate his argument that a party in breach should not be allowed to gain by that breach and escape liability to pay damages amounting to a very much larger sum than the compensation payable under cl. 14 and that we should so interpret cl. 14 as to keep alive that right of the appellants. Even so, it is difficult, upon any reasonable construction of cl. 14 to hold that this right of the appellants were intended by the parties to be kept alive. If such were the intention of the parties clearly there was no need whatsoever of providing for compensation in cl. 14. If at clause had not been there the appellant would indeed have been entitled to claim damages at the rate of 10% for the entire period subject to minimum of Rs. 6,000 p.m. On the other hand it seem to us that the intention of the parties was that if the appellants were relieved of the duty to work as Managing Agents and to put in their own money for carrying on the duties of managing agents they should not be entitled to get anything more than Rs. 6,000 p.m. by way of compensation. Clause 14 as it stands deals with one subject only and that is compensation. It does not expressly or by necessary implication keep alive the right to claim damages under the general law. By providing for compensation in express terms the right to claim damages under the general law is necessarily excluded and, therefore, in the face of that clause it is not open to the appellant to contend that that right is left unaffected. Where is thus no substance in the alternative contention put forward by the learned counsel. 15.
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0[ds]For, Art. 133(1) provides that where the judgment, decree or final order appealed, from affirms the decision of the court immediately below in any case other than a case referred to in sub-cl. (c) an appeal shall be to this Court if the High Court certifies that the appeal involves some substantial question of law. To the same effect are the provisions of S. 110 of theCode of Civil. In the old Judicial Commissioners Court of Oudh the view was taken that a substantial question of law meant a question of general importance. Following that view its successor, the Chief Court of oudh, refused to grant a certificate to one Raghunath Prasad Singh whose appeal it had dismissed. The appellant, therefore, moved the Privy Council for special leave on the ground that the appeal raised a substantial question of lawIt must be a substantial question of law as between the parties in the case involved. But here again it must not be forgotten that what is contemplated, is not a question of law alone; it must be a substantial question. One can define it negatively. For instance, if there is a well established principle of law and that principle is applied to a given set of facts, that would certainly not be a substantial question of law. Where the question of law is not well settled or where there is some doubt as to the principle of law involved, it certainly would raise a substantial question of law which would require a final adjudication by the highest Court."One of the points which the learned judges of the Bombay High Court had to consider in this case was whether the question of the construction to be placed upon a decree was a substantial question of law. The learned Judges said in their judgment that the decree was undoubtedly of a complicated character but even so they refused to grant a certificate under S. 110 of theCode of CivilProcedurefor appeal to the Federal Court because the construction which the Court was called upon to place on the decree did not raise a substantial question of law. They have observed that even though a decree may be of a complicated character what the Court has to do is to look at its various provisions and draw its inference therefrom. Thus according to the learned Judges merely because the inference to be drawn is from a complicated decree no substantial question of law would arise. Apparently in coming to this conclusion they omitted to attach sufficient weight to the view of the Privy Council that a question of law is "a substantial question of law" when it affects the rights of the parties to the proceeding. Further the learned Judges seem to have taken the view that there should be a doubt in the mind of the Court as to the principle of law involved and unless there is such doubt in its mind the question of law decided by it cannot be said to be "a substantial question of law" so as to entitle a party to a certificate under S. l10 of theCode of Civil. It is true that they have not said in so many words that such a doubt must be entertained by the Court itself but that is what we understand their judgment to mean and in particular the last sentence in the portion of their judgment which we have quoted aboveThe proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and, substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally, settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law7. Applying these tests it would be clear that the question involved in this appeal, that is, the construction of the Managing Agency agreement is not only one of law but also it is neither simple nor free from doubt. In the circumstances we have no hesitation in saying that the High Court was in error in refusing grant the appellant a certificate that appeal involves a substantial question of law. It has to be borne in mind that upon the success or the failure of the contention of the parties they stand to succeed or fall with respect to their claim for nearly 28 lakhs of rupseesA perusal of cl. 14 clearly shows that the parties have themselves provided for the precise amount of damages that would be payable by the Company to the Managing Agents if the Managing Agency agreement was terminated before the expiry of the period for which it was made. The clause clearly states that the Managing Agents shall receive from the Company as compensation or liquidated damages for the loss of appointment a sum equal to the aggregate amount of the monthly salary of not less than Rs. 6,000 for and during the whole of the unexpired portion of the term of agency. Now, when parties name a sum of money to be laid as liquidated damages they must be deemed to exclude the right to claim an unascertained sum of money as damagesBut if we accept the interpretation, it would mean that the parties intended to confer on the Managing Agents what is in fact a right conferred by S. 73 of the Contract Act and the entire clause would be rendered otiose. Again the right to claim liquidated damages is enforceable under S. 74 of the Contract Act and where such a right is found to exist no question of ascertaining damages really arises. Where the parties have deliberately specified the amount of liquidated damages there can be no presumption that they, at the same time, intended to allow the party who has suffered by the breach to give a go-by to the sum specified and claim instead a sum of money which was not ascertained or ascertainable at the date of the breachThen undoubtedly the two words clearly mean the same thing. But from a perusal of the clause it would appear that remuneration there could mean nothing other than Rs. 6,000 p.m. For, that clause provides that the amount shall accrue from day to day and be payable at the end of the month immediately succeeding the month in which it had been earned. Now, whether a company had made profits or not and if so what is the extent of the profits is determinable only at the end of its accounting year. To say, therefore, that the remuneration of 10% of the gross profits accrues from day to day and is payable every month would be to ignore the nature of this kind of remuneration. Therefore, in our opinion, when the remuneration and salary were equated in cl. 12 nothing else was meant but Rs. 6,000 and when the word salary was used in cl. 14 we have no doubt that only that amount was meant and no other. It may be that under cl, 10 the appellant was entitled to additional remuneration in case the profits were high upto a limit of 10% of the gross profits. That was a right to claim something over and above Rs. 6,000 and could be characterised properly as additional remuneration and not fixed or normal remuneration which alone was apparently in the minds of the parties when they drew up cl. 14. In our opinion, therefore the High Court was right in the construction placed by it upon the clauseComing to the alternative argument of Mr. Palkhivala, we appreciate that the right which the appellant had of claiming 10% of profits was a valuable right and that but for cl. 14 he would have been entitled in a suit to claim damages estimated at 10% of the gross profits. We also appreciate his argument that a party in breach should not be allowed to gain by that breach and escape liability to pay damages amounting to a very much larger sum than the compensation payable under cl. 14 and that we should so interpret cl. 14 as to keep alive that right of the appellants. Even so, it is difficult, upon any reasonable construction of cl. 14 to hold that this right of the appellants were intended by the parties to be kept alive. If such were the intention of the parties clearly there was no need whatsoever of providing for compensation in cl. 14. If at clause had not been there the appellant would indeed have been entitled to claim damages at the rate of 10% for the entire period subject to minimum of Rs. 6,000 p.m. On the other hand it seem to us that the intention of the parties was that if the appellants were relieved of the duty to work as Managing Agents and to put in their own money for carrying on the duties of managing agents they should not be entitled to get anything more than Rs. 6,000 p.m. by way of compensation. Clause 14 as it stands deals with one subject only and that is compensation. It does not expressly or by necessary implication keep alive the right to claim damages under the general law. By providing for compensation in express terms the right to claim damages under the general law is necessarily excluded and, therefore, in the face of that clause it is not open to the appellant to contend that that right is left unaffected. Where is thus no substance in the alternative contention put forward by the learned counsel.
| 0 | 4,883 |
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damages they must be deemed to exclude the right to claim an unascertained sum of money as damages. The contention of learned counsel is that the words "not less than" appearing before "Rs, 6,000" in cl. 14 clearly bring in cl. 10 and, therefore, entitle the, appellant to claim 10% of the estimated profits for the unexpired period by way of damages. But if we accept the interpretation, it would mean that the parties intended to confer on the Managing Agents what is in fact a right conferred by S. 73 of the Contract Act and the entire clause would be rendered otiose. Again the right to claim liquidated damages is enforceable under S. 74 of the Contract Act and where such a right is found to exist no question of ascertaining damages really arises. Where the parties have deliberately specified the amount of liquidated damages there can be no presumption that they, at the same time, intended to allow the party who has suffered by the breach to give a go-by to the sum specified and claim instead a sum of money which was not ascertained or ascertainable at the date of the breach. Learned counsel contends that upon this view the words "not less than" would be rendered otiose. In our opinion these words, as rightly pointed out by the High Court, were intended only to emphasise the fact that compensation will be computable at an amount not less than Rs. 6,000 p.m. Apparently, they thought it desirable to emphasise the point that the amount of Rs. 6,000 p.m. was regarded by them as reasonable and intended that it should not be reduced by the court in its discretion. 13. Mr. Palkhivala argued that what the appellants were entitled to was remuneration and remuneration meant nothing but salary. The two words according to him, have been used interchangeably in the various clauses of the agreement. If, therefore, salary in cl, 14 is the same as remuneration, which according to him it is, then as indicated in cl. 10 it would mean 10% of the gross profits of the Company subject to a minimum of Rs. 6,000 p.m. In support of the argument that the two words wherever used in the agreement mean one and the same thing learned counsel relies on cl. 12 which says that the monthly remuneration or salary shall accrue due from day to day. Then undoubtedly the two words clearly mean the same thing. But from a perusal of the clause it would appear that remuneration there could mean nothing other than Rs. 6,000 p.m. For, that clause provides that the amount shall accrue from day to day and be payable at the end of the month immediately succeeding the month in which it had been earned. Now, whether a company had made profits or not and if so what is the extent of the profits is determinable only at the end of its accounting year. To say, therefore, that the remuneration of 10% of the gross profits accrues from day to day and is payable every month would be to ignore the nature of this kind of remuneration. Therefore, in our opinion, when the remuneration and salary were equated in cl. 12 nothing else was meant but Rs. 6,000 and when the word salary was used in cl. 14 we have no doubt that only that amount was meant and no other. It may be that under cl, 10 the appellant was entitled to additional remuneration in case the profits were high upto a limit of 10% of the gross profits. That was a right to claim something over and above Rs. 6,000 and could be characterised properly as additional remuneration and not fixed or normal remuneration which alone was apparently in the minds of the parties when they drew up cl. 14. In our opinion, therefore the High Court was right in the construction placed by it upon the clause. 14. Coming to the alternative argument of Mr. Palkhivala, we appreciate that the right which the appellant had of claiming 10% of profits was a valuable right and that but for cl. 14 he would have been entitled in a suit to claim damages estimated at 10% of the gross profits. We also appreciate his argument that a party in breach should not be allowed to gain by that breach and escape liability to pay damages amounting to a very much larger sum than the compensation payable under cl. 14 and that we should so interpret cl. 14 as to keep alive that right of the appellants. Even so, it is difficult, upon any reasonable construction of cl. 14 to hold that this right of the appellants were intended by the parties to be kept alive. If such were the intention of the parties clearly there was no need whatsoever of providing for compensation in cl. 14. If at clause had not been there the appellant would indeed have been entitled to claim damages at the rate of 10% for the entire period subject to minimum of Rs. 6,000 p.m. On the other hand it seem to us that the intention of the parties was that if the appellants were relieved of the duty to work as Managing Agents and to put in their own money for carrying on the duties of managing agents they should not be entitled to get anything more than Rs. 6,000 p.m. by way of compensation. Clause 14 as it stands deals with one subject only and that is compensation. It does not expressly or by necessary implication keep alive the right to claim damages under the general law. By providing for compensation in express terms the right to claim damages under the general law is necessarily excluded and, therefore, in the face of that clause it is not open to the appellant to contend that that right is left unaffected. Where is thus no substance in the alternative contention put forward by the learned counsel. 15.
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690 |
Raja Niranjan Singh and Another Vs. State of Uttar Pradesh and Others
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admeasuring over 6000 acres therefrom for the purpose of preservation of existing tree growth, afforestation and control of erosion by means of regulation of grazing. By an award dated September 6, 1945 the Land Acquisition Officer awarded Rs. 20, 145-7-0 as compensation for the acquisition of the lands to the appellants. In a reference made by the Land Acquisition Officer, the appellants claimed a sum of Rs. 90, 000 as compensation for the land, Rs. 10, 000 for buildings and Rs. 2, 00, 000 for the tree standing in the forest. The learned District Judge, Mainpuri, came to the conclusion that income which accrued to the appellants from the acquired land by way of grazing charges amounted to Rs. 2000 per year and that 23 times of that amount would represent a fair compensation to the appellants as the market value of the land. The learned Judge valued the standing trees at Rs. 40, 293-5-0 and awarded a total sum of Rs. 99, 237-5-0 to the appellants. In First Appeal No. 473 of 1951 filed by the State of Uttar Pradesh, the High Court upheld the value of the land at Rs. 46, 000 but set aside the compensation awarded by the District Court for the value of trees. The High Court has granted to the appellants a certificate to appeal to this Court under Article 133(1)(a) of the Constitution. 2. Learned for the appellants contends that the High Court was in error in refusing to award compensation to the appellants for the value of the trees standing in the forest, since the land has to be valued separately from the trees. In support of this contention reliance is placed on the definition of ‘land’ in Section 3(a) of the Land Acquisition Act and on the provisions of Section 23(1), firstly and secondly of the same Act. Having considered this contention in the light of these provisions and in the context of the various facts to which we will presently advert, it seems to us difficult to uphold it. 3. In the first place, the forest land which has been acquired was mostly situated in ravines caused by the erosive action of the rivers Kuari, Chambal and Jamuna. With a view to preventing erosion of the land, the Government of Uttar Pradesh embarked upon a scheme of afforestation of the land in pursuance of which agreements were entered into between the appellants and the Government in 1918 and 1923. By these agreements the Government became entitled to manage the forests as ‘reserved forests’. These agreements were terminated subsequently and on October 27, 1934 a fresh agreement was arrived at between the appellants and the Secretary of State for India. That agreement was to remain in force for a period of 10 years and it was immediately on the expiry of that agreement that the land was acquired under the notification dated October 28, 1944. Under the agreement of 1934, an annual sum of Rs. 899 only was payable by the Government to the appellants. The Government had to incur the entire expenditure, for protecting, preserving and managing the forest but it was entitled to collect and credit to itself the entire income accruing from the forest. The only right reserved to the appellants, apart from the annual payment of Rs. 899, was the right of shooting for himself, his family and friends, to take the grass growing on the land and to graze his cattle on the land. 4. The evidence in the case, particularly that furnished by the various agreements between the parties, shows that the trees which stood on the land were planted by the Government itself in pursuance of its scheme of afforestation of the lands and that the entire income of the trees was appropriated by the Government. There is no evidence to show that any trees were planted by the appellants and indeed there is hardly any reliable evidence to show that the appellants were receiving any particular income by selling the wood or timber of the felled trees. In fact, there is not even credible evidence to show that the appellants were receiving any regular income by letting out the land or any part of it for grazing purposes. Even assuming therefore, for the sake of argument, that the appellants would be entitled not only to the value of the land but to the value of the trees standing thereon also, the High Court was justified in deleting from the award the compensation granted by the District Court for the value of the trees. 5. The evidence of Nawab Singh, DW 1, who retired as Deputy Ranger in 1949 shows that the trees which were standing on the land on the date of acquisition were all planted by the Government from 1913. It is significant that Prag Narain, PW 11, who was the Mukhtiar-i-am of the appellants admitted in his cross-examination that he had never seen any trees being planted on any part of the disputed forest by or on behalf of the appellants. This evidence in our opinion furnishes a complete answer to the appellants’ contention that since the trees belonged to them, they were entitled to be compensated for their acquisition. 6. It is unnecessary in view of this factual position to consider the legal submission of the appellants’ counsel that the land and the trees should have been valued separately by reason of the provisions of the Land Acquisition Act cited by him. Were it necessary to consider this contention we would have preferred to hold that since the land was acquired as a forest, it would have to be valued as a forest and that value would depend upon the kind of trees and the number of trees standing in the forest on the date of acquisition. If the value of trees is taken into consideration while valuing the forest, the trees cannot be valued once again for arriving at the total compensation payable to the owners of the forest.
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0[ds]6. It is unnecessary in view of this factual position to consider the legal submission of thecounsel that the land and the trees should have been valued separately by reason of the provisions of the Land Acquisition Act cited by him. Were it necessary to consider this contention we would have preferred to hold that since the land was acquired as a forest, it would have to be valued as a forest and that value would depend upon the kind of trees and the number of trees standing in the forest on the date of acquisition. If the value of trees is taken into consideration while valuing the forest, the trees cannot be valued once again for arriving at the total compensation payable to the owners of the forest.
| 0 | 1,157 |
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admeasuring over 6000 acres therefrom for the purpose of preservation of existing tree growth, afforestation and control of erosion by means of regulation of grazing. By an award dated September 6, 1945 the Land Acquisition Officer awarded Rs. 20, 145-7-0 as compensation for the acquisition of the lands to the appellants. In a reference made by the Land Acquisition Officer, the appellants claimed a sum of Rs. 90, 000 as compensation for the land, Rs. 10, 000 for buildings and Rs. 2, 00, 000 for the tree standing in the forest. The learned District Judge, Mainpuri, came to the conclusion that income which accrued to the appellants from the acquired land by way of grazing charges amounted to Rs. 2000 per year and that 23 times of that amount would represent a fair compensation to the appellants as the market value of the land. The learned Judge valued the standing trees at Rs. 40, 293-5-0 and awarded a total sum of Rs. 99, 237-5-0 to the appellants. In First Appeal No. 473 of 1951 filed by the State of Uttar Pradesh, the High Court upheld the value of the land at Rs. 46, 000 but set aside the compensation awarded by the District Court for the value of trees. The High Court has granted to the appellants a certificate to appeal to this Court under Article 133(1)(a) of the Constitution. 2. Learned for the appellants contends that the High Court was in error in refusing to award compensation to the appellants for the value of the trees standing in the forest, since the land has to be valued separately from the trees. In support of this contention reliance is placed on the definition of ‘land’ in Section 3(a) of the Land Acquisition Act and on the provisions of Section 23(1), firstly and secondly of the same Act. Having considered this contention in the light of these provisions and in the context of the various facts to which we will presently advert, it seems to us difficult to uphold it. 3. In the first place, the forest land which has been acquired was mostly situated in ravines caused by the erosive action of the rivers Kuari, Chambal and Jamuna. With a view to preventing erosion of the land, the Government of Uttar Pradesh embarked upon a scheme of afforestation of the land in pursuance of which agreements were entered into between the appellants and the Government in 1918 and 1923. By these agreements the Government became entitled to manage the forests as ‘reserved forests’. These agreements were terminated subsequently and on October 27, 1934 a fresh agreement was arrived at between the appellants and the Secretary of State for India. That agreement was to remain in force for a period of 10 years and it was immediately on the expiry of that agreement that the land was acquired under the notification dated October 28, 1944. Under the agreement of 1934, an annual sum of Rs. 899 only was payable by the Government to the appellants. The Government had to incur the entire expenditure, for protecting, preserving and managing the forest but it was entitled to collect and credit to itself the entire income accruing from the forest. The only right reserved to the appellants, apart from the annual payment of Rs. 899, was the right of shooting for himself, his family and friends, to take the grass growing on the land and to graze his cattle on the land. 4. The evidence in the case, particularly that furnished by the various agreements between the parties, shows that the trees which stood on the land were planted by the Government itself in pursuance of its scheme of afforestation of the lands and that the entire income of the trees was appropriated by the Government. There is no evidence to show that any trees were planted by the appellants and indeed there is hardly any reliable evidence to show that the appellants were receiving any particular income by selling the wood or timber of the felled trees. In fact, there is not even credible evidence to show that the appellants were receiving any regular income by letting out the land or any part of it for grazing purposes. Even assuming therefore, for the sake of argument, that the appellants would be entitled not only to the value of the land but to the value of the trees standing thereon also, the High Court was justified in deleting from the award the compensation granted by the District Court for the value of the trees. 5. The evidence of Nawab Singh, DW 1, who retired as Deputy Ranger in 1949 shows that the trees which were standing on the land on the date of acquisition were all planted by the Government from 1913. It is significant that Prag Narain, PW 11, who was the Mukhtiar-i-am of the appellants admitted in his cross-examination that he had never seen any trees being planted on any part of the disputed forest by or on behalf of the appellants. This evidence in our opinion furnishes a complete answer to the appellants’ contention that since the trees belonged to them, they were entitled to be compensated for their acquisition. 6. It is unnecessary in view of this factual position to consider the legal submission of the appellants’ counsel that the land and the trees should have been valued separately by reason of the provisions of the Land Acquisition Act cited by him. Were it necessary to consider this contention we would have preferred to hold that since the land was acquired as a forest, it would have to be valued as a forest and that value would depend upon the kind of trees and the number of trees standing in the forest on the date of acquisition. If the value of trees is taken into consideration while valuing the forest, the trees cannot be valued once again for arriving at the total compensation payable to the owners of the forest.
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691 |
Hemraj Keshavji Vs. Shah Haridas Jethabhai
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at the settlement regarding the commodity. The Managing Committee after hearing the seller and buyer may grant extension of time on receipt of an application to the Association from such buyer or seller, or the Association may determined and fix a reasonable rate after considering the rates as well as circumstances in the local as well as other centres of Saurashtra between the seller and the buyer and that the transactions between the buyer and the seller have to be settled at the rate so fixed.10. The transactions for purchase and sale are to be carried through between two members of the Association and under the rules and regulations of the Association. Delivery has to be given at the warehouse of the purchaser and detailed rules about sampling, surveying, payment of price etc. are made. Prima facie, these rules apply in the transactions of sale and purchase. But Mr. Ayyangar appearing on behalf of the appellant contended that the expression buyer would include a purchaser from the buyer because under the general law of contracts the benefit of a contract to purchase goods can be assigned and therefore the rights of the buyer would be enforceable by the transferee of the buyer. But the scheme of the rule indicates that the entire transaction has to be carried through between the parties to the transaction and not between the seller and a transferee of the rights of the buyer. In carrying out the transactions under the rules, diverse obligations are imposed upon the buyers, and it is settled law that without the consent of the seller, the burden of a contract cannot be assigned. The rules provide, as we have already pointed out, that the empty bags are to be supplied by the buyer. Such an obligation cannot be transferred by the buyer. Again diverse rules provide liability for payment of penalty. If a buyer cannot transfer the obligations under a contract which is made subject to the rules and regulations of the Association, all the obligations prescribed by the rules being made part of the contract, a very curious result would ensure in that whereas an assignee of the buyer would be entitled to demand delivery at his own godown at the rate fixed, for his default by the buyer would remain liable for the diverse obligations including liability to pay penalty for default of his assignee under the rules. Again the seller by Rule 6 has to deliver the goods at the warehouse of the buyer, and if the benefit of the contract is transferable, it would imply an obligation to deliver at the warehouse of the buyers assignee, wherever the warehouse of the assignee may be. The warehouse of the assignee of the buyer may be in Veraval or at any other place, but the seller having entered into a contract at a rate which would include normal expenses for delivery at the buyers godown may be required to undertake an intolerable burden of meeting all the charges for transporting the goods to the warehouse of the buyers assignee wherever such godown may be situate. Such an obligation could never have been under contemplation of the rule making body.11. Mr. Ayyangar contended that the assignee of the buyer contemplated by the rules would of necessity have to be a member of the Association and therefore resident in Veraval. But the rules to which our attention has been invited do not, if the buyer is to include the assignee of the benefit of the contract, seem to impose any such restriction. If the general law relating to assignment of benefit under a contract is to be superimposed upon the rules, notwithstanding the scheme which prima facie contemplates performance between the parties there is no reason why any such reservation should be made. It was alternatively urged by Mr. Ayyangar that the rules of the Association use two expressions - “buyer" and persons - and wherever the expression person is used it would include an assignee of the buyer. This argument, in our judgment is without force. The rules have not been drawn up with any precision, and there is nothing to indicate that by using the expression person a larger category was intended. For instance in Rule 5, the obligation to supply empty bags is imposed upon the buyer and the penalty for failing to carry out that obligation is imposed upon the person. Similarly in Rule 10 when delivery is taken by the buyer the person receiving the commodity has to make payment of 90 per cent of the price to the person giving delivery. There are a large number of other rules which deal with the rights of the buyer and the obligations simultaneously imposed upon persons which in the context may mean only the buyers. The use of the expression person does not in our judgment. Indicate that he was to be anyone other than the buyer or his representative.12. On a careful review of the rule we are of the view that under the rules and regulations of the Veraval Merchants Association pursuant to which the contracts are made, the contracts were not transferable. The contracts were undoubtedly for delivery of groundnut at a future date, but they were contracts for specific quality for specific price, and for specific delivery under the rules of the Association under which they were made. The contracts were, for reasons already mentioned, also not transferable to third parties, and cold not be regarded as forward contracts within the meaning of the order. It is unnecessary therefore to consider whether the respondent who claimed to have acted as Pucca Adatia and therefore as Commission Agent was entitled to claim reimbursement for any amount alleged to have been paid by him on behalf of the appellant for losses suffered in the transactions in dispute.13. We are therefore of the view that the High Court was right in modifying the decree passed by the trial Court and in dismissing the appellants suit.
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0[ds]12. On a careful review of the rule we are of the view that under the rules and regulations of the Veraval Merchants Association pursuant to which the contracts are made, the contracts were not transferable. The contracts were undoubtedly for delivery of groundnut at a future date, but they were contracts for specific quality for specific price, and for specific delivery under the rules of the Association under which they were made. The contracts were, for reasons already mentioned, also not transferable to third parties, and cold not be regarded as forward contracts within the meaning of the order. It is unnecessary therefore to consider whether the respondent who claimed to have acted as Pucca Adatia and therefore as Commission Agent was entitled to claim reimbursement for any amount alleged to have been paid by him on behalf of the appellant for losses suffered in the transactions in dispute.13. We are therefore of the view that the High Court was right in modifying the decree passed by the trial Court and in dismissing the appellants suit.
| 0 | 4,950 |
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at the settlement regarding the commodity. The Managing Committee after hearing the seller and buyer may grant extension of time on receipt of an application to the Association from such buyer or seller, or the Association may determined and fix a reasonable rate after considering the rates as well as circumstances in the local as well as other centres of Saurashtra between the seller and the buyer and that the transactions between the buyer and the seller have to be settled at the rate so fixed.10. The transactions for purchase and sale are to be carried through between two members of the Association and under the rules and regulations of the Association. Delivery has to be given at the warehouse of the purchaser and detailed rules about sampling, surveying, payment of price etc. are made. Prima facie, these rules apply in the transactions of sale and purchase. But Mr. Ayyangar appearing on behalf of the appellant contended that the expression buyer would include a purchaser from the buyer because under the general law of contracts the benefit of a contract to purchase goods can be assigned and therefore the rights of the buyer would be enforceable by the transferee of the buyer. But the scheme of the rule indicates that the entire transaction has to be carried through between the parties to the transaction and not between the seller and a transferee of the rights of the buyer. In carrying out the transactions under the rules, diverse obligations are imposed upon the buyers, and it is settled law that without the consent of the seller, the burden of a contract cannot be assigned. The rules provide, as we have already pointed out, that the empty bags are to be supplied by the buyer. Such an obligation cannot be transferred by the buyer. Again diverse rules provide liability for payment of penalty. If a buyer cannot transfer the obligations under a contract which is made subject to the rules and regulations of the Association, all the obligations prescribed by the rules being made part of the contract, a very curious result would ensure in that whereas an assignee of the buyer would be entitled to demand delivery at his own godown at the rate fixed, for his default by the buyer would remain liable for the diverse obligations including liability to pay penalty for default of his assignee under the rules. Again the seller by Rule 6 has to deliver the goods at the warehouse of the buyer, and if the benefit of the contract is transferable, it would imply an obligation to deliver at the warehouse of the buyers assignee, wherever the warehouse of the assignee may be. The warehouse of the assignee of the buyer may be in Veraval or at any other place, but the seller having entered into a contract at a rate which would include normal expenses for delivery at the buyers godown may be required to undertake an intolerable burden of meeting all the charges for transporting the goods to the warehouse of the buyers assignee wherever such godown may be situate. Such an obligation could never have been under contemplation of the rule making body.11. Mr. Ayyangar contended that the assignee of the buyer contemplated by the rules would of necessity have to be a member of the Association and therefore resident in Veraval. But the rules to which our attention has been invited do not, if the buyer is to include the assignee of the benefit of the contract, seem to impose any such restriction. If the general law relating to assignment of benefit under a contract is to be superimposed upon the rules, notwithstanding the scheme which prima facie contemplates performance between the parties there is no reason why any such reservation should be made. It was alternatively urged by Mr. Ayyangar that the rules of the Association use two expressions - “buyer" and persons - and wherever the expression person is used it would include an assignee of the buyer. This argument, in our judgment is without force. The rules have not been drawn up with any precision, and there is nothing to indicate that by using the expression person a larger category was intended. For instance in Rule 5, the obligation to supply empty bags is imposed upon the buyer and the penalty for failing to carry out that obligation is imposed upon the person. Similarly in Rule 10 when delivery is taken by the buyer the person receiving the commodity has to make payment of 90 per cent of the price to the person giving delivery. There are a large number of other rules which deal with the rights of the buyer and the obligations simultaneously imposed upon persons which in the context may mean only the buyers. The use of the expression person does not in our judgment. Indicate that he was to be anyone other than the buyer or his representative.12. On a careful review of the rule we are of the view that under the rules and regulations of the Veraval Merchants Association pursuant to which the contracts are made, the contracts were not transferable. The contracts were undoubtedly for delivery of groundnut at a future date, but they were contracts for specific quality for specific price, and for specific delivery under the rules of the Association under which they were made. The contracts were, for reasons already mentioned, also not transferable to third parties, and cold not be regarded as forward contracts within the meaning of the order. It is unnecessary therefore to consider whether the respondent who claimed to have acted as Pucca Adatia and therefore as Commission Agent was entitled to claim reimbursement for any amount alleged to have been paid by him on behalf of the appellant for losses suffered in the transactions in dispute.13. We are therefore of the view that the High Court was right in modifying the decree passed by the trial Court and in dismissing the appellants suit.
### Response:
0
|
692 |
D. Nagaraja Etc Vs. State of Karnataka and Others
|
other examination declared as equivalent thereto by the State Government if sufficient number of eligible persons are not available under (ia) ;(iii) persons who are regularly recruited as Panchayat Secretaries in accordance with the rules in force at the time of recruitment and working as Panchayat Secretaries who-(a) have passed the Middle School examination or any other examination declared as equivalent thereto by the State Government; and(b) have put in not less than 10 years of service as Panchayat Secretaries as the case may be if sufficient number of eligible persons are not available under (ii);(c) are not more than 50 years of age as on 1st April, 1967;(iv) xx xx xx(v) others, if sufficient number of persons are not available under any of the above categories.(2) No persons other than the persons referred to in categories (ii) and (iii) of sub-rule (1) "shall be eligible for appointment under these rules unless he has passed the S.S.L.C. examination or any examination declared by State Government as equivalent thereto.(3) The limit for appointment under sub- rule (1) shall be-(i) 33 years in the case of a person belonging to any of the Scheduled Castes or Scheduled Tribes; and(ii) 28 years in the case of others as on 1st January, 1970.Provided that in the case of person who have served as Village Officer or as Panchayat Secretary such age as on 1st April, 1967, shall not exceed 50 years.Provided further that in the case of local candidates, such age shall be as on 1st January, 1965:Explanation--For the purpose of this rule "Village Officer" means a person who held a Village Office other than in inferior village office as defined in the Karnataka Village Offices Abolition Act, 1961 (Karnataka Act 14 of 1961).""5. Committee for selection--(1) There shall be a Committee for each district consisting of the Deputy Commissioner of the District, the Assistant Commissioner, shall be the Chairman of the Committee and one of the members appointed by the Deputy Commissioner shall be the Secretary.(2) The Committee shall call for application for appointment as village Accountants and make selection in the manner laid down in the Mysore State Civil Services (Dire ct Recruitment by Selection) Rules, 1967.(3) The decision of the Committee shall be final subject to the approval of the Divisional Commissioner.(4) The list approved by the Divisional Commissioner shall be published and appointments shall be made in order in which the names of persons selected are arranged in the said list."4. Pursuant to the 1970 Rules, applications were invited by the Recruitment Committee in the year, 1972 to fill up the posts of Village Accountants in the District of Hassan. After sorting out the applications received in response to the: advertisement, the Committee interviewed the applicants who. were eligible for appointment and prepared a list of the selected candidates for appointment as Village Accountants. This list was quashed by the High Court by its judgment dated November 19, 1972 rendered in writ petition No. 1871 of 11972 entitled Komari Gowda v. State of Mysore &Ors. and the Committee was directed. to select the candidates afresh in accordance with law. Consequently the Committee again interviewed the eligible candidates and prepared a fresh list of the selected candidates which was published in the Karnataka Gazette on May 30, 1974. Thereafter, the Deputy Commissioner, Hassan issued orders of appointment of the candidates who were selected by the Recruitment Committee. Some of the candidates thus selected were posted as Village Accountants under section 16(2) of the Act to the villages in which the appellants were functioning. As the. appellants had to give up their posts in consequence. of the aforesaid fresh appointments under section 16(2) of the Act, they filed the aforesaid writ petitions impugning (i) the validity of rules 4 and 5 of the 1970 Rules on the ground that they were violativ e of Articles 14 and 16 of the Constitution, (ii) the selection and appointment of respondents 3 to 191 as Village Accountants and praying that a writ of mandamus be issued directing respondents 1 and 2 to continue them as Village Accountants under section 16(2) of the Act. The writ petitions having been dismissed by the High Court as stated above., the appellants have come up in appeal to this Court.The sole question that requires to be determined in these appeals is whether the appellants could maintain that aforesaid writ petitions. It is well settled that though Article 226 of the Constitution in terms does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for the exercise of the extraordinary jurisdiction by the High Court under the said Article. It is also well established that a person who is not aggrieved by the discrimination complained of cannot maintain a writ petition. The constitutional validity of the Abolition Act abolishing all hereditary village offices including the office of the Shambogue or Village Accountant having been upheld by this Court in B.R. Shankanarayana &Ors. v. State of Mysore (supra), and the first preference in the matter of appointment of Village Accountants having been given by Rule 4 of the 1970 Rules to all persons. belonging to the category and class of the appellants who had served as Village Officers, the appellants who did not apply for appointment as Village Accountants in response to the aforesaid notification issued by the Recruitment Committee and did not possess the prescribed qualification, could not complain of the unconstitutionality of the 1970 Rules or of the infringement of, Articles 4 an d 16 of the Constitution which merely forbid improper or invidious distinctions by conferring rights or privileges upon a class of persons arbitrarily selected from out of a larger group who. are similarly circumstanced but do not exclude the laying down of selective tests nor prevent the Government from laying general educational qualifications for the post in question. The High Court was, therefore, right in holding that the appellants have no right to maintain the aforesaid writ petitions.5.
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0[ds]It is well settled that though Article 226 of the Constitution in terms does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for the exercise of the extraordinary jurisdiction by the High Court under the said Article. It is also well established that a person who is not aggrieved by the discrimination complained of cannot maintain a writ petition. The constitutional validity of the Abolition Act abolishing all hereditary village offices including the office of the Shambogue or Village Accountant having been upheld by this Court in B.R. Shankanarayana &Ors. v. State of Mysore (supra), and the first preference in the matter of appointment of Village Accountants having been given by Rule 4 of the 1970 Rules to all persons. belonging to the category and class of the appellants who had served as Village Officers, the appellants who did not apply for appointment as Village Accountants in response to the aforesaid notification issued by the Recruitment Committee and did not possess the prescribed qualification, could not complain of the unconstitutionality of the 1970 Rules or of the infringement of, Articles 4 an d 16 of the Constitution which merely forbid improper or invidious distinctions by conferring rights or privileges upon a class of persons arbitrarily selected from out of a larger group who. are similarly circumstanced but do not exclude the laying down of selective tests nor prevent the Government from laying general educational qualifications for the post in question. The High Court was, therefore, right in holding that the appellants have no right to maintain the aforesaid writ petitions.
| 0 | 2,474 |
### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
### Input:
other examination declared as equivalent thereto by the State Government if sufficient number of eligible persons are not available under (ia) ;(iii) persons who are regularly recruited as Panchayat Secretaries in accordance with the rules in force at the time of recruitment and working as Panchayat Secretaries who-(a) have passed the Middle School examination or any other examination declared as equivalent thereto by the State Government; and(b) have put in not less than 10 years of service as Panchayat Secretaries as the case may be if sufficient number of eligible persons are not available under (ii);(c) are not more than 50 years of age as on 1st April, 1967;(iv) xx xx xx(v) others, if sufficient number of persons are not available under any of the above categories.(2) No persons other than the persons referred to in categories (ii) and (iii) of sub-rule (1) "shall be eligible for appointment under these rules unless he has passed the S.S.L.C. examination or any examination declared by State Government as equivalent thereto.(3) The limit for appointment under sub- rule (1) shall be-(i) 33 years in the case of a person belonging to any of the Scheduled Castes or Scheduled Tribes; and(ii) 28 years in the case of others as on 1st January, 1970.Provided that in the case of person who have served as Village Officer or as Panchayat Secretary such age as on 1st April, 1967, shall not exceed 50 years.Provided further that in the case of local candidates, such age shall be as on 1st January, 1965:Explanation--For the purpose of this rule "Village Officer" means a person who held a Village Office other than in inferior village office as defined in the Karnataka Village Offices Abolition Act, 1961 (Karnataka Act 14 of 1961).""5. Committee for selection--(1) There shall be a Committee for each district consisting of the Deputy Commissioner of the District, the Assistant Commissioner, shall be the Chairman of the Committee and one of the members appointed by the Deputy Commissioner shall be the Secretary.(2) The Committee shall call for application for appointment as village Accountants and make selection in the manner laid down in the Mysore State Civil Services (Dire ct Recruitment by Selection) Rules, 1967.(3) The decision of the Committee shall be final subject to the approval of the Divisional Commissioner.(4) The list approved by the Divisional Commissioner shall be published and appointments shall be made in order in which the names of persons selected are arranged in the said list."4. Pursuant to the 1970 Rules, applications were invited by the Recruitment Committee in the year, 1972 to fill up the posts of Village Accountants in the District of Hassan. After sorting out the applications received in response to the: advertisement, the Committee interviewed the applicants who. were eligible for appointment and prepared a list of the selected candidates for appointment as Village Accountants. This list was quashed by the High Court by its judgment dated November 19, 1972 rendered in writ petition No. 1871 of 11972 entitled Komari Gowda v. State of Mysore &Ors. and the Committee was directed. to select the candidates afresh in accordance with law. Consequently the Committee again interviewed the eligible candidates and prepared a fresh list of the selected candidates which was published in the Karnataka Gazette on May 30, 1974. Thereafter, the Deputy Commissioner, Hassan issued orders of appointment of the candidates who were selected by the Recruitment Committee. Some of the candidates thus selected were posted as Village Accountants under section 16(2) of the Act to the villages in which the appellants were functioning. As the. appellants had to give up their posts in consequence. of the aforesaid fresh appointments under section 16(2) of the Act, they filed the aforesaid writ petitions impugning (i) the validity of rules 4 and 5 of the 1970 Rules on the ground that they were violativ e of Articles 14 and 16 of the Constitution, (ii) the selection and appointment of respondents 3 to 191 as Village Accountants and praying that a writ of mandamus be issued directing respondents 1 and 2 to continue them as Village Accountants under section 16(2) of the Act. The writ petitions having been dismissed by the High Court as stated above., the appellants have come up in appeal to this Court.The sole question that requires to be determined in these appeals is whether the appellants could maintain that aforesaid writ petitions. It is well settled that though Article 226 of the Constitution in terms does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for the exercise of the extraordinary jurisdiction by the High Court under the said Article. It is also well established that a person who is not aggrieved by the discrimination complained of cannot maintain a writ petition. The constitutional validity of the Abolition Act abolishing all hereditary village offices including the office of the Shambogue or Village Accountant having been upheld by this Court in B.R. Shankanarayana &Ors. v. State of Mysore (supra), and the first preference in the matter of appointment of Village Accountants having been given by Rule 4 of the 1970 Rules to all persons. belonging to the category and class of the appellants who had served as Village Officers, the appellants who did not apply for appointment as Village Accountants in response to the aforesaid notification issued by the Recruitment Committee and did not possess the prescribed qualification, could not complain of the unconstitutionality of the 1970 Rules or of the infringement of, Articles 4 an d 16 of the Constitution which merely forbid improper or invidious distinctions by conferring rights or privileges upon a class of persons arbitrarily selected from out of a larger group who. are similarly circumstanced but do not exclude the laying down of selective tests nor prevent the Government from laying general educational qualifications for the post in question. The High Court was, therefore, right in holding that the appellants have no right to maintain the aforesaid writ petitions.5.
### Response:
0
|
693 |
M/S. Dhampur Sugar (Kashipur) Ltd Vs. State Of Uttaranchal
|
the good governance of the State, the Court helps the good governance by constantly reminding Government and its officers that they should act within the four corners of the statute and not contravene any of the conditions laid down as a limitation upon, their undoubtedly wide powers. Therefore, even from a practical point of view, even from the point of view of the good governance of the State, we think that the High Court should not be reluctant to issue its prerogative writ whenever it finds that the sovereign Legislature has not been obeyed and powers have been assumed which the Legislature never conferred upon the executive”. (emphasis supplied) MALA FIDE EXERCISE OF POWER 66. The appellant also contended that the impugned action of granting licence to respondent No. 4 by respondent Nos. 1 to 3 is mala fide. It was submitted that in spite of acute shortage of sugarcane in the State of Uttranchal, the policy was changed by the Government in order to grant benefit to respondent No. 4, not only at the cost of interest of the appellant but also by ignoring larger public interest and industrial growth and development. In this connection, the attention of the Court was also invited to a letter, dated August 04, 2003 written by the cane & Sugar Commissioner to the Secretary, Cane Development & Sugar Industry, Uttranchal wherein he had stated that there was no necessity to make any change in the Licensing Policy for 2003-04. The counsel submitted that surprisingly, within a short span of about two months, the same Commissioner agreed to change in policy by inserting a proviso to para ka with the sole objective to favour respondent No. 4. It was pursuant to modified policy that respondent No. 4 got the licence. Therefore, the action deserves to be set aside on the ground of mala fide exercise of power. 67. Now, it is well-settled and needs no authority for holding that every power must be exercised bona fide and in good faith. Before more than hundred years, Lord Lindley said in General Assembly of Free Church of Scotland v. Overtaum, 1904 AC 515 : 20 TLR 370; “I take it to be clear that there is a condition implied in this as well as in other instruments which create power, namely, that the powers shall be used bona fide for the purpose for which they are conferred”. In other words, every action of a public authority must be based on utmost good faith, genuine satisfaction and ought to be supported by reason and rationale. It is, therefore, not only the power but the duty of the Court to ensure that all authorities exercise their powers properly, lawfully and in good faith. If powers are exercised with oblique motive, bad faith or for extraneous or irrelevant considerations, there is no exercise of power known to law and the action cannot be termed as action in accordance with law. 68. But as already discussed earlier, a Court of Law is not expected to propel into “the unchartered ocean” of Government Policies. Once it is held that the Government has power to frame and reframe, change and rechange, adjust and readjust policy, the said action cannot be declared illegal, arbitrary or ultra vires the provisions of the Constitution only on the ground that the earlier policy had been given up, changed or not adhered to. It also cannot be attacked on the plea that the earlier policy was better and suited to the prevailing situation. 69. Allegations of mala fide are serious in nature and they essentially raise a question of fact. It is, therefore, necessary for the person making such allegations to supply full particulars in the petition. If sufficient averments and requisite materials are not on record, the court would not make fishing or roving inquiry. Mere assertion, vague averment or bald statement is not enough to hold the action to be mala fide. It must be demonstrated by facts. Moreover, the burden of proving mala fide is on the person levelling such allegations and the burden is very heavy [vide E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 4 : (1974) 2 SCR 348 ]. The charge of mala fide is more easily made than made out. As stated by Krishna Iyer, J. in Gulam Mustafa v. State of Maharashtra, (1976) 1 SCC 800 : AIR 1977 SC 448 ], it is the last refuge of a losing litigant [see also Ajit Kumar v. Indian Oil Corporation, (2005) 7 SCC 764 ]. In the case on hand, except alleging that the policy was altered by the Government, to extend the benefit to respondent No. 4, no material whatsoever has been placed on record by the appellant. We are, therefore, unable to uphold the contention of the learned counsel that the impugned action is mala fide or malicious. 70. The High Court, in our opinion, was right in observing that the change of policy was not limited to the case of respondent No. 4 but it was uniformly applied to one and all. To us, therefore, it cannot be contended that the High Court committed an error in arriving at the said conclusion which requires interference under Article 136 of the Constitution. We, therefore, see no substance in this argument as well. 71. Keeping in view statutory provisions, the policy decision taken by the respondent-authorities and interest of all parties including existing sugar factories, a decision has been taken by the respondent Nos. 1 to 3 granting licence in favour of respondent No.4. The said decision was confirmed by the State in exercise of appellate power and the High Court was not convinced that the decision was illegal, arbitrary or otherwise unreasonable. We are unable to persuade ourselves to hold that all the decisions suffer from any error of law or of jurisdiction and they should be set aside. We, therefore, express our inability to grant relief to the appellant.72. For the foregoing reasons, we
|
0[ds]Keeping in view statutory provisions, the policy decision taken by the respondent-authorities and interest of all parties including existing sugar factories, a decision has been taken by the respondent Nos. 1 to 3 granting licence in favour of respondent No.4. The said decision was confirmed by the State in exercise of appellate power and the High Court was not convinced that the decision was illegal, arbitrary or otherwise unreasonable. We are unable to persuade ourselves to hold that all the decisions suffer from any error of law or of jurisdiction and they should be set aside. We, therefore, express our inability to grant relief to the appellant.
| 0 | 14,010 |
### Instruction:
Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant.
### Input:
the good governance of the State, the Court helps the good governance by constantly reminding Government and its officers that they should act within the four corners of the statute and not contravene any of the conditions laid down as a limitation upon, their undoubtedly wide powers. Therefore, even from a practical point of view, even from the point of view of the good governance of the State, we think that the High Court should not be reluctant to issue its prerogative writ whenever it finds that the sovereign Legislature has not been obeyed and powers have been assumed which the Legislature never conferred upon the executive”. (emphasis supplied) MALA FIDE EXERCISE OF POWER 66. The appellant also contended that the impugned action of granting licence to respondent No. 4 by respondent Nos. 1 to 3 is mala fide. It was submitted that in spite of acute shortage of sugarcane in the State of Uttranchal, the policy was changed by the Government in order to grant benefit to respondent No. 4, not only at the cost of interest of the appellant but also by ignoring larger public interest and industrial growth and development. In this connection, the attention of the Court was also invited to a letter, dated August 04, 2003 written by the cane & Sugar Commissioner to the Secretary, Cane Development & Sugar Industry, Uttranchal wherein he had stated that there was no necessity to make any change in the Licensing Policy for 2003-04. The counsel submitted that surprisingly, within a short span of about two months, the same Commissioner agreed to change in policy by inserting a proviso to para ka with the sole objective to favour respondent No. 4. It was pursuant to modified policy that respondent No. 4 got the licence. Therefore, the action deserves to be set aside on the ground of mala fide exercise of power. 67. Now, it is well-settled and needs no authority for holding that every power must be exercised bona fide and in good faith. Before more than hundred years, Lord Lindley said in General Assembly of Free Church of Scotland v. Overtaum, 1904 AC 515 : 20 TLR 370; “I take it to be clear that there is a condition implied in this as well as in other instruments which create power, namely, that the powers shall be used bona fide for the purpose for which they are conferred”. In other words, every action of a public authority must be based on utmost good faith, genuine satisfaction and ought to be supported by reason and rationale. It is, therefore, not only the power but the duty of the Court to ensure that all authorities exercise their powers properly, lawfully and in good faith. If powers are exercised with oblique motive, bad faith or for extraneous or irrelevant considerations, there is no exercise of power known to law and the action cannot be termed as action in accordance with law. 68. But as already discussed earlier, a Court of Law is not expected to propel into “the unchartered ocean” of Government Policies. Once it is held that the Government has power to frame and reframe, change and rechange, adjust and readjust policy, the said action cannot be declared illegal, arbitrary or ultra vires the provisions of the Constitution only on the ground that the earlier policy had been given up, changed or not adhered to. It also cannot be attacked on the plea that the earlier policy was better and suited to the prevailing situation. 69. Allegations of mala fide are serious in nature and they essentially raise a question of fact. It is, therefore, necessary for the person making such allegations to supply full particulars in the petition. If sufficient averments and requisite materials are not on record, the court would not make fishing or roving inquiry. Mere assertion, vague averment or bald statement is not enough to hold the action to be mala fide. It must be demonstrated by facts. Moreover, the burden of proving mala fide is on the person levelling such allegations and the burden is very heavy [vide E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 4 : (1974) 2 SCR 348 ]. The charge of mala fide is more easily made than made out. As stated by Krishna Iyer, J. in Gulam Mustafa v. State of Maharashtra, (1976) 1 SCC 800 : AIR 1977 SC 448 ], it is the last refuge of a losing litigant [see also Ajit Kumar v. Indian Oil Corporation, (2005) 7 SCC 764 ]. In the case on hand, except alleging that the policy was altered by the Government, to extend the benefit to respondent No. 4, no material whatsoever has been placed on record by the appellant. We are, therefore, unable to uphold the contention of the learned counsel that the impugned action is mala fide or malicious. 70. The High Court, in our opinion, was right in observing that the change of policy was not limited to the case of respondent No. 4 but it was uniformly applied to one and all. To us, therefore, it cannot be contended that the High Court committed an error in arriving at the said conclusion which requires interference under Article 136 of the Constitution. We, therefore, see no substance in this argument as well. 71. Keeping in view statutory provisions, the policy decision taken by the respondent-authorities and interest of all parties including existing sugar factories, a decision has been taken by the respondent Nos. 1 to 3 granting licence in favour of respondent No.4. The said decision was confirmed by the State in exercise of appellate power and the High Court was not convinced that the decision was illegal, arbitrary or otherwise unreasonable. We are unable to persuade ourselves to hold that all the decisions suffer from any error of law or of jurisdiction and they should be set aside. We, therefore, express our inability to grant relief to the appellant.72. For the foregoing reasons, we
### Response:
0
|
694 |
New Standard Engineering Company Limited, Bombay Vs. Collector of Customs, Bombay
|
1. The appellants imported a precision jig boring machine with numerical control. They claimed the benefit of an Exemption Notification dated 1-3-1978, whereunder the following was exempted from customs duty in excess of 25% ad valorem, "Tool room precision optical coordinate jig boring machine, including numerical control". The claim was rejected. The appeal filed thereagainst was dismissed. The revision petition ed before the Central Government was transferred to the Customs, Excise and Gold (Control) Appellate Tribunal upon its establishment. The Tribunal rejected the same. Hence this appeal 2. The aforesaid exemption is available to a tool room precision boring machine which is fitted with an optical coordinate. It is available to such a machine even if it has a numerical control. The appellants imported a machine which included a numerical control but did not contain the optical coordinate. It was upon this basis that the exemption claimed by the appellant was refused 3. It is contended on behalf of the appellants that the numerical control, which is computerised, is of far greater efficiency than the optical coordinate. What the appellants imported, therefore, was a more advanced and effective machine and it was entitled to the benefit of the exemption. The order of the Collector of Customs recognised that a numerical control was more effective than an optical device. It was an absurd reading of the notification to require that the machine should be fitted with not only the optical device but also with the numerical control 4. The notification extends the exemption to a machine which is fitted with an optical device. It makes it clear that the exemption would be available even if such machine, fitted with the optical device, is also fitted with a numerical control. There is no absurdity in the notification. There is nothing which requires us to read the notification otherwise than as it plainly reads. The view taken by the Tribunal and the authorities below is correct
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0[ds]4. The notification extends the exemption to a machine which is fitted with an optical device. It makes it clear that the exemption would be available even if such machine, fitted with the optical device, is also fitted with a numerical control. There is no absurdity in the notification. There is nothing which requires us to read the notification otherwise than as it plainly reads. The view taken by the Tribunal and the authorities below is correct
| 0 | 358 |
### Instruction:
From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant.
### Input:
1. The appellants imported a precision jig boring machine with numerical control. They claimed the benefit of an Exemption Notification dated 1-3-1978, whereunder the following was exempted from customs duty in excess of 25% ad valorem, "Tool room precision optical coordinate jig boring machine, including numerical control". The claim was rejected. The appeal filed thereagainst was dismissed. The revision petition ed before the Central Government was transferred to the Customs, Excise and Gold (Control) Appellate Tribunal upon its establishment. The Tribunal rejected the same. Hence this appeal 2. The aforesaid exemption is available to a tool room precision boring machine which is fitted with an optical coordinate. It is available to such a machine even if it has a numerical control. The appellants imported a machine which included a numerical control but did not contain the optical coordinate. It was upon this basis that the exemption claimed by the appellant was refused 3. It is contended on behalf of the appellants that the numerical control, which is computerised, is of far greater efficiency than the optical coordinate. What the appellants imported, therefore, was a more advanced and effective machine and it was entitled to the benefit of the exemption. The order of the Collector of Customs recognised that a numerical control was more effective than an optical device. It was an absurd reading of the notification to require that the machine should be fitted with not only the optical device but also with the numerical control 4. The notification extends the exemption to a machine which is fitted with an optical device. It makes it clear that the exemption would be available even if such machine, fitted with the optical device, is also fitted with a numerical control. There is no absurdity in the notification. There is nothing which requires us to read the notification otherwise than as it plainly reads. The view taken by the Tribunal and the authorities below is correct
### Response:
0
|
695 |
Union of India Vs. Elphinstone Spinning & Weaving Co. Ltd
|
either on the materials on record or applying the rules of interpretation of a Statute. The said conclusion of the High Court as to the spirit behind the Statute, therefore, cannot be sustained. 19. Apart from answering the five points, formulated by us, we may also deal with some other ancillary points, which have been raised in course of arguments. Mr. R.F. Nariman had argued on the basis of Article 300A of the constitution and relied upon the judgment of this Court in Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co.Ltd., and others, 1954, S.C.R. 674, but we find from the impugned judgment that the said contention had not been pressed before the High Court and, therefore, we are not called upon to examine the contention to find out whether the Act can be held to be reasonable and fair. That apart, the impugned Act merely takes over the management of the property by a legislation permitted under Article 31A (1)(b) of the Constitution. This being the position, Article 300A will have no application. 20. Mr. Nariman also had raised a contention that the very fact that the other provisions, available under the Companies Act or under Industrial Development and Regulation Act has not been adhered to and a drastic step had been taken by immediately taking over of the management of the mills, would constitute an infraction of Article 19(1)(g) and in support of the said contention, reliance has been placed on the decision of this Court in the case of Mohd. Faruk v. State of Madhya Pradesh and others, 1970(1) S.C.R. 156. In the aforesaid case, the Court was consider in the validity of the notification issued by the Government of Madhya Pradesh in canceling the confirmation of the bye-laws made by Jabalpur Municipality, in so far as the bye-laws relate to slaughter of bulls and bullocks. This Court had observed "that the Court in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizens freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public, the possibility of achieving the object by imposing a less drastic restraint, and in the absence of exceptional situations such as the prevalence of a state of emergency - national or local - or the necessity to maintain essential supplies, or the necessity to stop activities inherently dangerous, the existence of a machinery to satisfy the administrative authority that no case for imposing the restriction is made out of that a less drastic restriction may ensure the object intended to be achieved". It is these observations on which Mr. R.F. Nariman strongly relied upon, since in the case in hand, the appropriate Government did not take any action under the provisions of the Companies Act, nor there had been any investigation as provided under Section 15 and 15A of the Industrial Development and Regulation Act, according to Mr. Nariman, obviously, those provisions are less drastic in nature than the impugned Act and in fact, there was no urgent necessity for enacting a law and taking a drastic measure of taking over the management of the mills. We are unable to accept this contention, since we have already discussed the public interest involved and how the Parliament thought of taking over the management of the mills without which, it would not be feasible to pump in, large sums of money from the public exchequer and leave the management with the erstwhile managers for whose mismanagement, the mills would not have been in the situation in which the law was enacted. The decision to take over the management of the mills with a view to implement the decision to nationalise the mills being the basis for enactment of the Taking Over of the Management of the Mills Act, question of taking recourse to the remedies available under the Companies Act or Industries Development and Regulation Act really do not arise and on that score it cannot be said that there has been a violation of Article 19(1)(g). Applying the observations of this Court in Dwarka Das, in fact a somewhat similar contention had been noticed in Sitaram Mills case in paragraph 14 of the judgment. We are, therefore, unable to persuade ourselves to accept the contention that the very fact that Government did not proceed with the remedies available under other Act and proceeded to enact a legislation for taking over of th management of the Mills would constitute an infraction of Article 19(1)(g) of the Constitution. We may reiterate that we are examining the enactment of a law by the Parliament itself and the wisdom of the Parliament in taking a decision to take over the management of the mills in the larger public interest and not an executive decision of the Government which could have taken recourse to some other remedial measure provided under the Industries Development and Regulation Act or the Companies Act. If Parliament decides to enact a law for taking over the management of the Textile Mills, pending completion of the process of nationalisation, on a genuine apprehension that there might be a large scale flittering away of assets if the management is not taken over and that would be grossly detrimental to the public interest it would not be open for the Court to examine the question whether other remedies could have been taken and not being taken there has been an infraction of Article 19(1)(g). In the aforesaid premises, we have no hesitation in coming to the conclusion that the High court was in error to hold that there has been an infraction of Article 19(1)(g) in the case in hand. 21.
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1[ds]During the pendency of these appeals this Court had passed some interim orders with regard to possession of certain land and other assets as well as with regard to cars and telephone connections. In view of our decision setting aside the impugned judgment of Bombay High Court and in view of Section 3(2) of the Act all interim orders would stand vacated. But the Elphinstone Spinning and Weaving Mills in its Writ Petition No. 2401 of 1983 having made a specific case that notwithstanding the Act being valid and the management of the mills can be taken over and its properties and assets vest with the Central Government under Section 3(2) of the Act, but their are certain other assets which cannot be held to form a part of the assets of Elphinstone Spinning and Weaving Mill and, therefore, cannot be taken over, the High Court has not considered this question as the Act itself was struck down but it would be meet and properthe High Courte, bearing in mind the law laid down by this Court in Sitaram Mills case interpreting the provisions of Section 3(2) of the Act on the materials to the produced by the parties. Be it stated that until a decision is given bythe High Courton this score, by virtue of operation of law all the assets would stand vested and such vesting would be subject to a final decision ofthe High Courtin respect of any of these so-called assets which the petitioner establishes not to be an asset of Elphinstone Mill notwithstanding the wider meaning given to Section 3(2) in Sitaram Mills case.
| 1 | 15,507 |
### Instruction:
Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable?
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either on the materials on record or applying the rules of interpretation of a Statute. The said conclusion of the High Court as to the spirit behind the Statute, therefore, cannot be sustained. 19. Apart from answering the five points, formulated by us, we may also deal with some other ancillary points, which have been raised in course of arguments. Mr. R.F. Nariman had argued on the basis of Article 300A of the constitution and relied upon the judgment of this Court in Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co.Ltd., and others, 1954, S.C.R. 674, but we find from the impugned judgment that the said contention had not been pressed before the High Court and, therefore, we are not called upon to examine the contention to find out whether the Act can be held to be reasonable and fair. That apart, the impugned Act merely takes over the management of the property by a legislation permitted under Article 31A (1)(b) of the Constitution. This being the position, Article 300A will have no application. 20. Mr. Nariman also had raised a contention that the very fact that the other provisions, available under the Companies Act or under Industrial Development and Regulation Act has not been adhered to and a drastic step had been taken by immediately taking over of the management of the mills, would constitute an infraction of Article 19(1)(g) and in support of the said contention, reliance has been placed on the decision of this Court in the case of Mohd. Faruk v. State of Madhya Pradesh and others, 1970(1) S.C.R. 156. In the aforesaid case, the Court was consider in the validity of the notification issued by the Government of Madhya Pradesh in canceling the confirmation of the bye-laws made by Jabalpur Municipality, in so far as the bye-laws relate to slaughter of bulls and bullocks. This Court had observed "that the Court in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizens freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public, the possibility of achieving the object by imposing a less drastic restraint, and in the absence of exceptional situations such as the prevalence of a state of emergency - national or local - or the necessity to maintain essential supplies, or the necessity to stop activities inherently dangerous, the existence of a machinery to satisfy the administrative authority that no case for imposing the restriction is made out of that a less drastic restriction may ensure the object intended to be achieved". It is these observations on which Mr. R.F. Nariman strongly relied upon, since in the case in hand, the appropriate Government did not take any action under the provisions of the Companies Act, nor there had been any investigation as provided under Section 15 and 15A of the Industrial Development and Regulation Act, according to Mr. Nariman, obviously, those provisions are less drastic in nature than the impugned Act and in fact, there was no urgent necessity for enacting a law and taking a drastic measure of taking over the management of the mills. We are unable to accept this contention, since we have already discussed the public interest involved and how the Parliament thought of taking over the management of the mills without which, it would not be feasible to pump in, large sums of money from the public exchequer and leave the management with the erstwhile managers for whose mismanagement, the mills would not have been in the situation in which the law was enacted. The decision to take over the management of the mills with a view to implement the decision to nationalise the mills being the basis for enactment of the Taking Over of the Management of the Mills Act, question of taking recourse to the remedies available under the Companies Act or Industries Development and Regulation Act really do not arise and on that score it cannot be said that there has been a violation of Article 19(1)(g). Applying the observations of this Court in Dwarka Das, in fact a somewhat similar contention had been noticed in Sitaram Mills case in paragraph 14 of the judgment. We are, therefore, unable to persuade ourselves to accept the contention that the very fact that Government did not proceed with the remedies available under other Act and proceeded to enact a legislation for taking over of th management of the Mills would constitute an infraction of Article 19(1)(g) of the Constitution. We may reiterate that we are examining the enactment of a law by the Parliament itself and the wisdom of the Parliament in taking a decision to take over the management of the mills in the larger public interest and not an executive decision of the Government which could have taken recourse to some other remedial measure provided under the Industries Development and Regulation Act or the Companies Act. If Parliament decides to enact a law for taking over the management of the Textile Mills, pending completion of the process of nationalisation, on a genuine apprehension that there might be a large scale flittering away of assets if the management is not taken over and that would be grossly detrimental to the public interest it would not be open for the Court to examine the question whether other remedies could have been taken and not being taken there has been an infraction of Article 19(1)(g). In the aforesaid premises, we have no hesitation in coming to the conclusion that the High court was in error to hold that there has been an infraction of Article 19(1)(g) in the case in hand. 21.
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696 |
Shrimati Hira Devi And Others Vs. District Board, Shahjahanpur
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sanction is necessary" in S. 90 sub-s. 3, the High Court also brought to its aid the provisions of S. 16, U. P. General Clauses Act of 1904 which provides that"unless a different intention appears the authority having power to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that power."It came to the conclusion that nothing in the terms of S. 71 or S. 90 of the Act controlled or negatived an intention to sustain the general power of suspension i. e., suspension pending order on an appeal. The High Court thus justified the resolution for the suspension of the plaintiff passed by the Board on 29th January 1940.14. We are afraid we cannot agree with this line of reasoning adopted by the High Court. The defendants were a board created by statute and were invested with powers which of necessity had to be found within the four corners of the statute itself.The powers of dismissal and suspension given to the Board are defined and circumscribed by the provisions of Ss. 71 and 90 of the Act and have to be culled out from the express provisions of those sections. When express powers have been given to the Board under the terms of these sections it would not be legitimate to have resort to general or implied powers under the law of master and servant or under S. 16, U. P. General Clauses Act. Even under the terms of S. 16 of that Act, the powers which are vested in the authority to suspend or dismiss any person appointed are to be operative only "unless a different intention appears" and such different intention is to be found in the enactment of Ss. 71 and 90 of the Act which codify the powers of dismissal and suspension vested in the Board. It would be an unwarranted extension of the powers of suspension vested in the Board to read, as the High Court type in question into the words "the orders of any authority whose sanction is necessary." It was unfortunate that when the Legislature came to amend the old S. 71 of the Act it forgot to amend S. 90 in conformity with the amendment of S. 71. But this lacuna cannot be supplied by any such liberal construction as the High Court sought to put upon the expression "orders of any authority whose sanction is necessary." No doubt it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act.15. Reading the present S. 71 of the Act along with S. 90 of the Act we are of the opinion that the power of suspension of the nature purported to be exercised by the Board in the case before us was not the power of suspension contemplated in S. 90 sub-s. 3 of the Act. If the plaintiff allowed the period of one month to expire without preferring an appeal against the resolution to the Government or if the Government passed orders dismissing his appeal, if any, the resolution for his dismissal would become effective without any sanction of the Government. The words used therefore in S. 90 sub-s. 3 "pending the orders of any authority whose sanction is necessary for his dismissal" are inappropriate to the present facts and could not cover the case of a suspension of the nature which was resorted to by the Board on 29th January 1940. We are therefore of the view that the resolution for suspension which was passed on 29th January 1940 was ultra vires the powers of the Board.16. We have accordingly come to the conclusion that the decision reached by the High Court that the resolution for suspension which was passed by the Board on 29th January 1940 was valid and binding on the plaintiff was erroneous and that the conclusion reached by the trial Court was correct. the learned Solicitor-General appearing for the defendants has however informed us that the sum of Rs. 6,629-4-0 and the proportionate costs which were awarded by the trial Court to the plaintiff have already been paid to the plaintiff. Nothing therefore remains to be recovered by the heirs and legal representatives of the plaintiff even on the basis that the decree of the trial Court is restored as a result of this judgment of ours.17. The only thing which therefore survives is the question of the costs of this appeal. The trial Court had already awarded to the plaintiff proportionate costs. The High Court in reversing the judgment of the trial Court dismissed the plaintiffs suit with costs throughout including the costs of the cross-objections which were filed by the plaintiff. The heirs and legal representatives of the plaintiff filed the present appeal in regard to the whole claim of the plaintiff as laid in the plaint. That claim could not be sustained before us by the heirs and legal representatives of the plaintiff and they only succeeded before us in regard to the claim of the plaintiff which had been allowed by the trial Court. If an order for proportionate costs of this appeal were made it would certainly work to the prejudice of the heirs and legal representatives of the plaintiff. We are not disturbing the order which had been made by the High Court in regard to the costs of the appeal, before it. No time was taken up before us in arguing the appeal on other points except the one in regard to the resolution for the suspension of the plaintiff being ultra vires and we think that under the circumstances of the case the proper order to pass in regard to the costs of this appeal before us should be that each party should bear its own costs.
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1[ds]4. We are afraid we cannot agree with this line of reasoning adopted by the High Court. The defendants were a board created by statute and were invested with powers which of necessity had to be found within the four corners of the statute itself.The powers of dismissal and suspension given to the Board are defined and circumscribed by the provisions of Ss. 71 and 90 of the Act and have to be culled out from the express provisions of those sections. When express powers have been given to the Board under the terms of these sections it would not be legitimate to have resort to general or implied powers under the law of master and servant or under S. 16, U. P. General Clauses Act. Even under the terms of S. 16 of that Act, the powers which are vested in the authority to suspend or dismiss any person appointed are to be operative only "unless a different intention appears" and such different intention is to be found in the enactment of Ss. 71 and 90 of the Act which codify the powers of dismissal and suspension vested in the Board. It would be an unwarranted extension of the powers of suspension vested in the Board to read, as the High Court type in question into the words "the orders of any authority whose sanction is necessary." It was unfortunate that when the Legislature came to amend the old S. 71 of the Act it forgot to amend S. 90 in conformity with the amendment of S.But this lacuna cannot be supplied by any such liberal construction as the High Court sought to put upon the expression "orders of any authority whose sanction is necessary." No doubt it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of anthe present S. 71 of the Act along with S. 90 of the Act we are of the opinion that the power of suspension of the nature purported to be exercised by the Board in the case before us was not the power of suspension contemplated in S. 90 sub-s. 3 of the Act. If the plaintiff allowed the period of one month to expire without preferring an appeal against the resolution to the Government or if the Government passed orders dismissing his appeal, if any, the resolution for his dismissal would become effective without any sanction of the Government. The words used therefore in S. 90 sub-s. 3 "pending the orders of any authority whose sanction is necessary for his dismissal" are inappropriate to the present facts and could not cover the case of a suspension of the nature which was resorted to by the Board on 29th January 1940. We are therefore of the view that the resolution for suspension which was passed on 29th January 1940 was ultra vires the powers of the Board.We have accordingly come to the conclusion that the decision reached by the High Court that the resolution for suspension which was passed by the Board on 29th January 1940 was valid and binding on the plaintiff was erroneous and that the conclusion reached by the trial Court was correct. the learned Solicitor-General appearing for the defendants has however informed us that the sum of Rs. 6,629-4-0 and the proportionate costs which were awarded by the trial Court to the plaintiff have already been paid to the plaintiff. Nothing therefore remains to be recovered by the heirs and legal representatives of the plaintiff even on the basis that the decree of the trial Court is restored as a result of this judgment of ours.The only thing which therefore survives is the question of the costs of this appeal. The trial Court had already awarded to the plaintiff proportionate costs. The High Court in reversing the judgment of the trial Court dismissed the plaintiffs suit with costs throughout including the costs of the cross-objections which were filed by the plaintiff. The heirs and legal representatives of the plaintiff filed the present appeal in regard to the whole claim of the plaintiff as laid in the plaint. That claim could not be sustained before us by the heirs and legal representatives of the plaintiff and they only succeeded before us in regard to the claim of the plaintiff which had been allowed by the trial Court. If an order for proportionate costs of this appeal were made it would certainly work to the prejudice of the heirs and legal representatives of the plaintiff. We are not disturbing the order which had been made by the High Court in regard to the costs of the appeal, before it. No time was taken up before us in arguing the appeal on other points except the one in regard to the resolution for the suspension of the plaintiff being ultra vires and we think that under the circumstances of the case the proper order to pass in regard to the costs of this appeal before us should be that each party should bear its own costs.
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sanction is necessary" in S. 90 sub-s. 3, the High Court also brought to its aid the provisions of S. 16, U. P. General Clauses Act of 1904 which provides that"unless a different intention appears the authority having power to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that power."It came to the conclusion that nothing in the terms of S. 71 or S. 90 of the Act controlled or negatived an intention to sustain the general power of suspension i. e., suspension pending order on an appeal. The High Court thus justified the resolution for the suspension of the plaintiff passed by the Board on 29th January 1940.14. We are afraid we cannot agree with this line of reasoning adopted by the High Court. The defendants were a board created by statute and were invested with powers which of necessity had to be found within the four corners of the statute itself.The powers of dismissal and suspension given to the Board are defined and circumscribed by the provisions of Ss. 71 and 90 of the Act and have to be culled out from the express provisions of those sections. When express powers have been given to the Board under the terms of these sections it would not be legitimate to have resort to general or implied powers under the law of master and servant or under S. 16, U. P. General Clauses Act. Even under the terms of S. 16 of that Act, the powers which are vested in the authority to suspend or dismiss any person appointed are to be operative only "unless a different intention appears" and such different intention is to be found in the enactment of Ss. 71 and 90 of the Act which codify the powers of dismissal and suspension vested in the Board. It would be an unwarranted extension of the powers of suspension vested in the Board to read, as the High Court type in question into the words "the orders of any authority whose sanction is necessary." It was unfortunate that when the Legislature came to amend the old S. 71 of the Act it forgot to amend S. 90 in conformity with the amendment of S. 71. But this lacuna cannot be supplied by any such liberal construction as the High Court sought to put upon the expression "orders of any authority whose sanction is necessary." No doubt it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act.15. Reading the present S. 71 of the Act along with S. 90 of the Act we are of the opinion that the power of suspension of the nature purported to be exercised by the Board in the case before us was not the power of suspension contemplated in S. 90 sub-s. 3 of the Act. If the plaintiff allowed the period of one month to expire without preferring an appeal against the resolution to the Government or if the Government passed orders dismissing his appeal, if any, the resolution for his dismissal would become effective without any sanction of the Government. The words used therefore in S. 90 sub-s. 3 "pending the orders of any authority whose sanction is necessary for his dismissal" are inappropriate to the present facts and could not cover the case of a suspension of the nature which was resorted to by the Board on 29th January 1940. We are therefore of the view that the resolution for suspension which was passed on 29th January 1940 was ultra vires the powers of the Board.16. We have accordingly come to the conclusion that the decision reached by the High Court that the resolution for suspension which was passed by the Board on 29th January 1940 was valid and binding on the plaintiff was erroneous and that the conclusion reached by the trial Court was correct. the learned Solicitor-General appearing for the defendants has however informed us that the sum of Rs. 6,629-4-0 and the proportionate costs which were awarded by the trial Court to the plaintiff have already been paid to the plaintiff. Nothing therefore remains to be recovered by the heirs and legal representatives of the plaintiff even on the basis that the decree of the trial Court is restored as a result of this judgment of ours.17. The only thing which therefore survives is the question of the costs of this appeal. The trial Court had already awarded to the plaintiff proportionate costs. The High Court in reversing the judgment of the trial Court dismissed the plaintiffs suit with costs throughout including the costs of the cross-objections which were filed by the plaintiff. The heirs and legal representatives of the plaintiff filed the present appeal in regard to the whole claim of the plaintiff as laid in the plaint. That claim could not be sustained before us by the heirs and legal representatives of the plaintiff and they only succeeded before us in regard to the claim of the plaintiff which had been allowed by the trial Court. If an order for proportionate costs of this appeal were made it would certainly work to the prejudice of the heirs and legal representatives of the plaintiff. We are not disturbing the order which had been made by the High Court in regard to the costs of the appeal, before it. No time was taken up before us in arguing the appeal on other points except the one in regard to the resolution for the suspension of the plaintiff being ultra vires and we think that under the circumstances of the case the proper order to pass in regard to the costs of this appeal before us should be that each party should bear its own costs.
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697 |
V. Lavanya Vs. The State Of Tamil Nadu
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reserved category candidates. In Tej Prakash (supra) the alteration in procedure in effect led to elimination of selected candidates, still the Court refrained from finding fault with such an alteration, as it was done in public interest. In the present case, the relaxation afforded to the reserved category candidates has in no way eliminated the appellants from the selection process; rather a fair opportunity has been provided to other candidates who can legitimately compete with the appellants herein.Point No.4: Challenge to G.O. Ms. No.71 dated 30.05.2014?38. The appellants have also challenged G.O.Ms. 71, which was issued by the respondents pursuant to the decision of the Single Judge of the High Court. As already noted before, the Single Judge while declining the challenge to G.O.Ms. No. 252 and G.O.Ms. No. 25 had set aside the grading system adopted by the Government vide G.O.Ms. No. 252. The Single Judge observed that the grading system adopted in G.O.Ms. No. 252 lacks rationality as it places candidates with the difference of 1 to 9 percentage in the same basket. Accordingly, vide G.O.Ms.No. 71 the Government came up with the grading methodology as indicated supra in para No 10. The appellants have not only challenged the new grading system introduced by G.O. No. 71; but they have also challenged the weightage of marks of 40% earmarked for academic performance. It is their contention that the Government has blindly accepted the recommendation of Single Judge without application of mind.39. As it is evident from the records, distribution of marks for academic performance and TET fixed by the respondents vide G.O. No. 252 continues to be the same even after issuing of G.O. No. 71. That is, for the post of secondary grade teachers weightage of marks obtained in H.Sc. examination, D.T.Ed./D.E.Ed and TET was 15 marks, 25 marks and 60 marks respectively and it continues to be the same. Similarly, for the post of Graduate Assistants weightage of marks obtained in H.Sc. examination, Degree Examination, B.Ed and TET was 10 marks, 15 marks, 15 marks and 60 marks and it also continued to be the same. In such circumstances, we hold that the Madras High Court has correctly held that it is not open to the appellants to challenge the weightage of marks. The TET conducted on 17.08.2013 and 18.08.2013 was pursuant to the issuing of G.O.Ms.No.252 fixing the weightage for the marks in the basic qualification itself in which the appellants have participated. Thus, it is not open to the appellants to challenge the said procedure adopted by the respondents after writing the examination.40. The second aspect of challenge relates to the grading system adopted by the respondents. The respondents have acted as per the directions of the Single Judge of the High Court. The Single Judge in his judgment dated 29.04.2014 while declaring the slab system irrational, suggested a scientific rational method for award of weightage marks with reference to actual marks secured by each candidate in H.Sc./D.T.Ed./D.E.Ed/B.Ed/TET for Secondary Grade Teachers/ Graduate Assistants as the case may be and accordingly make selections. This was accepted by the government in G.O.(Ms.) No.71 dated 30.05.2014 and the respondents have thus come up with the present awarding of weightage marks with reference to actual marks secured by each candidate which is more scientific and appropriate and as compared to the previous grading system contained in G.O. No. 252 which had put candidates obtaining 1-9% marks on the same footing.41. The appellants have maintained that while prescribing the marks for performance in Higher Secondary Examination, the respondents have failed to take into account different Education Boards (CBSE, ICSE, State Boards etc.) conducting Higher Secondary Examination and difference in their marks awarding patterns. As also, the appellants have alleged that respondents failed to consider different streams of education while formulating the grading pattern. It is submitted that unless and until the respondents take note of difference in marking scheme of Education boards, as also the marking scheme of different streams such as Arts, Science etc. a valid grading system cannot be formulated. Equivalence of academic qualifications is a matter for experts and courts normally do not interfere with the decisions of the Government based on the recommendations of the experts (vide University of Mysore v. CD Govinda Rao (1964) 4 SCR 575 and Mohd. Sujat Ali v. Union of India (1975) 3 SCC 76 ). We hold that it is the prerogative of State-Authorities to formulate a system whereby weightage marks is decided with reference to actual marks secured by each candidate. In the present case, as no arbitrariness is proved on the part of the respondents, in formulating the grading system we cannot interfere with the same. We cannot be expected to go into every minute technicalities of decision taken by the experts and perform the job of the respondent-State. Moreover, the High Court has also noted that submission of learned Advocate General that almost all the appellants have completed their High Secondary examination from the State Boards.42. The contention that different Boards of Examination have different standards and the examiners who evaluate the scripts are in some places more liberal than others and that the candidates who acquired qualifications decades back had to suffer strict evaluation as compared to the candidates who have qualified in the recent past facing liberal evaluation criteria, are all hypothetical arguments without any pleading and supporting material disclosed in the Writ Petitions. As noted earlier, weightage of marks for academic performance and TET fixed vide G.O.(Ms.) No.252 dated 05.10.2012 continues to be the same even after issuing G.O.(Ms.)No.71 dated 30.05.2014. Having taken up the examination as per G.O.(Ms.) No.252, the appellants cannot challenge the award of weightage for the distribution of marks for academic performance with reference to actual marks secured by each candidate. The appellants are not justified in challenging every rational decision taken by the respondents to make the selection process more fair and reasonable merely because the outcome does not favour the limited individual interests of the appellants.
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0[ds]25. The idea behind laying down NCTE Guidelines for conducting TET was to bring about uniformity and certainty in the standards and quality of education being imparted to the students across the nation. However, at the same time the framers of the guidelines took note of the hugedisparity existing in the nation and accordingly, by virtue of Clause No. 9 enabled the respective state governments/authorities to provide relaxation to the candidates belonging to socially backward classes. As discussed earlier, such a provision is in line with the principles enshrined in the Constitution. State Government cannot be faulted for discharging its constitutional obligation of upliftment of socially and economically backward Communities by providing 5% relaxation to candidates belonging to Scheduled Caste, Schedule Tribes, Backward Classes, Backward Classes (Muslim), Most Backward Classes,s and Persons with Disabilityhardly needs to be emphasized that the State has a legitimate and substantial interest in ameliorating or eliminating where feasible, the disabling effects of identified discrimination. It is a duty cast upon the State, by the Constitution, to remedy the effects of "societal discrimination". Provision for relaxation in TET pass marks has to be looked into from this angle which is in tune with the constitutional philosophy. After all it only ensures that such candidates belonging to reserved category become eligible for appointment as primary teachers. On the other hand, when it comes to selection process such reserved category candidates have to compete with general category candidates wherein due regard for merit is given. Therefore, only those candidates belonging to reserved category who are found meritorious in selection are ultimately appointed. We are of the opinion that in this manner the two constitutional goals, that of rendering quality education on the one hand and providing "equality of opportunity to the unprivileged class on the other hand, are adequately met and rightly balanced.55.We, thus, do not agree with the interpretation that is given by the High Court and answer Question No.1 holding that relaxation prescribed in letter dated March 23, 2011 in pass marks in TET examination for different reserved categories mentioned therein is legal and valid inare entirely in agreement with the above judgment in Vikas Sankhala case.State of Rajasthan by its Notification dated 29.07.2011 has granted similar relaxation of 5% marks in the qualifying marks relatable to TET exams conducted in the State of Rajasthan. The Rajasthan High Court struck down the relaxation granted by the State of Rajasthan on the ground that such relaxation was in excess of extant reservation policy. In Vikas Sankhala and Ors. v. Vikas Kumar Agarwal and Ors. Etc. (2016) 10 SCALE 163 , this Court reversed the judgment of the Rajasthan High Court holding that State has a legitimate right in granting such relaxation to SC/ST, OBC etc. After referring to Nivedita Jain and M. Nagaraj case, this Court in paras (51), (54) and (55) held asin the aforesaid context, when our Constitution envisages equal respect and concern for each individual in the society and the attainment of the goal requires special attention to be paid to some, that ought to be done. Giving of desired concessions to the reserved category persons, thus, ensures equality as a levelling process. At jurisprudential level, whether reservation policies are defended on compensatory principles, utilitarian principles or on the principles of distributive justice, fact remains that the very ethos of such policies is to bring out equality, by taking affirmative action. Indian Constitution has made adequate enabling provisions empowering the State to provide such concessions.Granting relaxation to SC/ST, OBC, physically handicapped anddenotified communities isin furtherance of the constitutional obligation of the State to theand create an equalfield. After referring to clause 9 of the NCTE Guidelines, the Madras High Court rightly held that the Government of Tamil Nadu has acted in exercise of the powers conferred under clause 9 of the Guidelines issued by the NCTE. Madurai Bench was not right in quashing G.O.(Ms.) No.25 dated 06.02.2014 on the ground that such relaxation "based upon the theory of social justice is actually destructive of the very fabric of the social justice". In our considered view, the judgment of the Madurai Bench has not kept in view the constitutional obligation of the State to provide equalfield to the under privileged. In consonance with the M. Nagaraj case, an affirmative action taken by State Government granting relaxation for TET would not amount to dilution of standards and hence the view taken by the Madurai Bench is not sustainable and is liable to be set aside.We are unable to persuade ourselves to accept the view of Madurai Bench quashing the impugned G.O. on the ground of alleged change in the stand of the Government. Considering the representation from various quarters, it was a policy decision taken by the Government to relax marks for TET pass for specified andcommunities. It is a matter of State policy to frame and prescribe selection norms with regard to services and posts connected with the affairs of the State. It isthat courts cannot interfere with the policy decisions of the State especially when the policy decision is taken in public interest to further the advancement of reserved categories. A policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India is subservient only to the mandate of the constitutional provisions and the recruitment rules framed by the State itself, either in terms of a legislative act or an executive order. The relaxation provided by the State Government and criteria of selection laid down vide impugned government orders are in exercise of the powers provided under the proviso to Article 309 of the Constitution of India and being a policy decision in terms of its extant reservation policy cannot be impeached on the ground that the relaxation has been given to suit some specific class of individuals.30. It is now well settled by a catena of decisions that there can be no question of estoppels against the Government in the exercise of its legislative, sovereign or executive powers (vide Excise Commissioner U.P., Allahabad v. Ram Kumar (1976) 3 SCC 540 and M. Ramanatha Pillai v. State of Kerala and Anr. (1973) 2 SCC 650 ). The view taken by Madurai Bench as regards the stand of the Government to relax the norms allegedly in contradiction to its earlier stand is not sustainable in law.Appellants appeared in the TET conducted on 17.08.2013 and 18.08.2013. Respondents were to select the suitable candidates. As per the selection criteria laid down in G.O. Ms. No. 252 laid down that the candidates have to secure minimum 60% in TET so as to qualify the said exam. The weightage of the marks secured in TET was 60% and that of academic qualification was 40%. It is true that the candidates who passed TET were called to attend certificate verification on 23.01.2014 and 24.01.2014; but the selection process has not been completed. Later on, G.O.Ms. No.25 dated 06.02.2014 was issued granting relaxation of 5% marks to SC, ST, backward classes, physically handicapped,communities etc. The purpose of relaxation was to increase the participation of candidates belonging to backward classes in States pool of teachers. The State Government merely widened the ambit of TET so as to reach out to those candidates belonging to the deprived section of the society who were not able to compete, inspite of possessing good academic records and qualifications. The change brought about in the selection criteria is Governments prerogative. In terms of their extant reservation policy, the State Government is free to take actions suitable to theconditions prevalent in the State, especially with regard to selection of candidates belonging to reserved category to be employed in State Service. Merely, because the Government has widened the ambit of selection, so as to enable more and more candidates to take part in the selection process, the right of candidates who were already in the process cannot be said to have been adversely affected. It is in the interest of reserved category of candidates that more candidates take part in the selection process and best and most efficient of them get selected. This will not amount to change in the criteria for selection after the selection process commenced.The Government has not changed the rules of selection so far as the present appellants are concerned. Weightage of marks obtained in TET as well as that of academic qualification is still the same. The entire selection process conforms to the equitable standards laid down by the State Government in line with the principles enshrined in the Constitution and the extant reservation policy of the State. It is not the case where basic eligibility criteria has been altered in the midst of the selection process. Conducting TET and calling for certificate verification thereafter is an exercise which the State Government is obliged to conduct every year as per the Guidelines issued by NCTE. By calling for CV along with certificates of other requisite academic qualifications, a candidates overall eligibility is ascertained and then he/she is recruited. Such an exercise by which qualified teachers in the State are segregated and correspondingly certified to that effect cannot be equated to finalization of select list which comes at a much later stage. No prejudice has been caused to the appellants, since the marks obtained by the appellants in TET are to remain valid for a period of seven years, based on which they can compete for the future vacancies. Merely because appellants were called for certificate verification, it cannot be contended that they have acquired a legal right to the post. Impugned G.O. Ms.No.25 did not take away the rights of the appellants from being considered on their own merits as pointed out by the Madras Bench. We entirely agree with the views taken by the Madras Bench that "by merely allowing more persons to compete, the petitioners cannot contend that their accrued right has been taken away".The State Government cannot be faulted for altering the selection criteria by relaxing 5% marks in favour of reserved category candidates. In Tej Prakash (supra) the alteration in procedure in effect led to elimination of selected candidates, still the Court refrained from finding fault with such an alteration, as it was done in public interest. In the present case, the relaxation afforded to the reserved category candidates has in no way eliminated the appellants from the selection process; rather a fair opportunity has been provided to other candidates who can legitimately compete with the appellants herein.As it is evident from the records, distribution of marks for academic performance and TET fixed by the respondents vide G.O. No. 252 continues to be the same even after issuing of G.O. No. 71. That is, for the post of secondary grade teachers weightage of marks obtained in H.Sc. examination, D.T.Ed./D.E.Ed and TET was 15 marks, 25 marks and 60 marks respectively and it continues to be the same. Similarly, for the post of Graduate Assistants weightage of marks obtained in H.Sc. examination, Degree Examination, B.Ed and TET was 10 marks, 15 marks, 15 marks and 60 marks and it also continued to be the same. In such circumstances, we hold that the Madras High Court has correctly held that it is not open to the appellants to challenge the weightage of marks. The TET conducted on 17.08.2013 and 18.08.2013 was pursuant to the issuing of G.O.Ms.No.252 fixing the weightage for the marks in the basic qualification itself in which the appellants have participated. Thus, it is not open to the appellants to challenge the said procedure adopted by the respondents after writing thehold that it is the prerogative ofto formulate a system whereby weightage marks is decided with reference to actual marks secured by each candidate. In the present case, as no arbitrariness is proved on the part of the respondents, in formulating the grading system we cannot interfere with the same. We cannot be expected to go into every minute technicalities of decision taken by the experts and perform the job of theMoreover, the High Court has also noted that submission of learned Advocate General that almost all the appellants have completed their High Secondary examination from the State Boards.42. The contention that different Boards of Examination have different standards and the examiners who evaluate the scripts are in some places more liberal than others and that the candidates who acquired qualifications decades back had to suffer strict evaluation as compared to the candidates who have qualified in the recent past facing liberal evaluation criteria, are all hypothetical arguments without any pleading and supporting material disclosed in the Writ Petitions. As noted earlier, weightage of marks for academic performance and TET fixed vide G.O.(Ms.) No.252 dated 05.10.2012 continues to be the same even after issuing G.O.(Ms.)No.71 dated 30.05.2014. Having taken up the examination as per G.O.(Ms.) No.252, the appellants cannot challenge the award of weightage for the distribution of marks for academic performance with reference to actual marks secured by each candidate. The appellants are not justified in challenging every rational decision taken by the respondents to make the selection process more fair and reasonable merely because the outcome does not favour the limited individual interests of the appellants.
| 0 | 8,923 |
### 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:
reserved category candidates. In Tej Prakash (supra) the alteration in procedure in effect led to elimination of selected candidates, still the Court refrained from finding fault with such an alteration, as it was done in public interest. In the present case, the relaxation afforded to the reserved category candidates has in no way eliminated the appellants from the selection process; rather a fair opportunity has been provided to other candidates who can legitimately compete with the appellants herein.Point No.4: Challenge to G.O. Ms. No.71 dated 30.05.2014?38. The appellants have also challenged G.O.Ms. 71, which was issued by the respondents pursuant to the decision of the Single Judge of the High Court. As already noted before, the Single Judge while declining the challenge to G.O.Ms. No. 252 and G.O.Ms. No. 25 had set aside the grading system adopted by the Government vide G.O.Ms. No. 252. The Single Judge observed that the grading system adopted in G.O.Ms. No. 252 lacks rationality as it places candidates with the difference of 1 to 9 percentage in the same basket. Accordingly, vide G.O.Ms.No. 71 the Government came up with the grading methodology as indicated supra in para No 10. The appellants have not only challenged the new grading system introduced by G.O. No. 71; but they have also challenged the weightage of marks of 40% earmarked for academic performance. It is their contention that the Government has blindly accepted the recommendation of Single Judge without application of mind.39. As it is evident from the records, distribution of marks for academic performance and TET fixed by the respondents vide G.O. No. 252 continues to be the same even after issuing of G.O. No. 71. That is, for the post of secondary grade teachers weightage of marks obtained in H.Sc. examination, D.T.Ed./D.E.Ed and TET was 15 marks, 25 marks and 60 marks respectively and it continues to be the same. Similarly, for the post of Graduate Assistants weightage of marks obtained in H.Sc. examination, Degree Examination, B.Ed and TET was 10 marks, 15 marks, 15 marks and 60 marks and it also continued to be the same. In such circumstances, we hold that the Madras High Court has correctly held that it is not open to the appellants to challenge the weightage of marks. The TET conducted on 17.08.2013 and 18.08.2013 was pursuant to the issuing of G.O.Ms.No.252 fixing the weightage for the marks in the basic qualification itself in which the appellants have participated. Thus, it is not open to the appellants to challenge the said procedure adopted by the respondents after writing the examination.40. The second aspect of challenge relates to the grading system adopted by the respondents. The respondents have acted as per the directions of the Single Judge of the High Court. The Single Judge in his judgment dated 29.04.2014 while declaring the slab system irrational, suggested a scientific rational method for award of weightage marks with reference to actual marks secured by each candidate in H.Sc./D.T.Ed./D.E.Ed/B.Ed/TET for Secondary Grade Teachers/ Graduate Assistants as the case may be and accordingly make selections. This was accepted by the government in G.O.(Ms.) No.71 dated 30.05.2014 and the respondents have thus come up with the present awarding of weightage marks with reference to actual marks secured by each candidate which is more scientific and appropriate and as compared to the previous grading system contained in G.O. No. 252 which had put candidates obtaining 1-9% marks on the same footing.41. The appellants have maintained that while prescribing the marks for performance in Higher Secondary Examination, the respondents have failed to take into account different Education Boards (CBSE, ICSE, State Boards etc.) conducting Higher Secondary Examination and difference in their marks awarding patterns. As also, the appellants have alleged that respondents failed to consider different streams of education while formulating the grading pattern. It is submitted that unless and until the respondents take note of difference in marking scheme of Education boards, as also the marking scheme of different streams such as Arts, Science etc. a valid grading system cannot be formulated. Equivalence of academic qualifications is a matter for experts and courts normally do not interfere with the decisions of the Government based on the recommendations of the experts (vide University of Mysore v. CD Govinda Rao (1964) 4 SCR 575 and Mohd. Sujat Ali v. Union of India (1975) 3 SCC 76 ). We hold that it is the prerogative of State-Authorities to formulate a system whereby weightage marks is decided with reference to actual marks secured by each candidate. In the present case, as no arbitrariness is proved on the part of the respondents, in formulating the grading system we cannot interfere with the same. We cannot be expected to go into every minute technicalities of decision taken by the experts and perform the job of the respondent-State. Moreover, the High Court has also noted that submission of learned Advocate General that almost all the appellants have completed their High Secondary examination from the State Boards.42. The contention that different Boards of Examination have different standards and the examiners who evaluate the scripts are in some places more liberal than others and that the candidates who acquired qualifications decades back had to suffer strict evaluation as compared to the candidates who have qualified in the recent past facing liberal evaluation criteria, are all hypothetical arguments without any pleading and supporting material disclosed in the Writ Petitions. As noted earlier, weightage of marks for academic performance and TET fixed vide G.O.(Ms.) No.252 dated 05.10.2012 continues to be the same even after issuing G.O.(Ms.)No.71 dated 30.05.2014. Having taken up the examination as per G.O.(Ms.) No.252, the appellants cannot challenge the award of weightage for the distribution of marks for academic performance with reference to actual marks secured by each candidate. The appellants are not justified in challenging every rational decision taken by the respondents to make the selection process more fair and reasonable merely because the outcome does not favour the limited individual interests of the appellants.
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698 |
Commissioner Of Income-Tax, Madhya Pradesh Vs. Dewas Cine Corporation
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two partners.2. In proceedings for assessment for the year 1952-53 the respondent was treated as a registered firm. The Appellate Tribunal held that by restoring the two theatres to the two original owners "there was a transfer by the firm and the entries adjusting the depreciation and writing off the assets at the original value amounted to total recoupment of the entire depreciation by the partnership and on that account" proviso 2 to Section 10 (2) (vii) of the Income-tax Act, 1922, applied. The High Court of Madhya Pradesh answered the following question referred to it by the Tribunal in the negative :"Whether on the facts and in the circumstances of the case, the amount of Rs. 44,380 was rightly included in the total income of the assessee in the year 1952-53 under the second proviso to Sec. 10 (2) (vii) of the Income-tax Act?"The Commissioner of Income-tax has appealed to this Court with certificate granted by the High Court.3. Section 10 (2) of the Income-tax Act permits certain allowances to be debited in the computation of profits or gains of the business, profession or vocation carried on by the assessee in the year of account one such allowance is prescribed by Clause (vii), the material part of which is :"in respect of any such building, machinery or plant which has been sold or discarded or demolished or destroyed the amount by which the written down value thereof exceeds the amount for which the building, machinery or plant, as the case may be, is actually sold or its scrap value :Provided that * * * * *Provided further that where the amount for which any such building, machinery or plant is sold, whether during the continuance of the business or after the cessation thereof, exceeds the written down value so much of the excess as does not exceed the difference between the original cost and the written down value shall be deemed to ho profits of the previous year in which the sale took place :"In respect of each of the theatres depreciation was allowed by the taxing authorities in proceedings for assessment. The Income-tax Appellate Tribunal was of the view that since the theatres were returned to the partners in settling the accounts of the partners on dissolution the theatres were in law sold to the partners. The High Court disagreed with that view.4. Under the Partnership Act, 1932, property which is brought into the partnership by the partners when it is formed or which may be acquired in the course of the business becomes the property of the partnership and a partner is, subject to any special agreement between the partners entitled upon dissolution to a share in the money representing the value of the property. When the two partners brought in the theatres of their respective ownership into the partnership, the theatres must be deemed to have become the property of the partnership. Under Section 46 of the Partnership Act, 1932, on the dissolution of the firm every partner or his representative is entitled, as against all the other partners or their representatives according to their property of the firm applied in payment of the debts and liabilities of the fine, and to have the surplus distributed among the partners or their representatives according to their rights. Section 48 of the Partnership Act provides for the mode of settlement of accounts between the partners. It prescribes the sequence in which the various outgoings are to be applied and the residue remaining is to be divided between the partners.The distribution of surplus is for the purpose of adjustment of the rights of the partners in the assets of the partnership, it does not amount to transfer of assets.5. On dissolution of the partnership, each theatre must be deemed to be returned to the original owners, in satisfaction partially or wholly of his claim to a share in the residue of the assets after discharging the debts and other obligations. But thereby the theatres were not in law sold by the partnership to the individual partners in consideration of their respective share in the residue. The expressions "sale" and "sold" are not defined in the Income-tax Act: those expressions are used in Section 10 (2) (vii) in their ordinary meaning."Sale" according to its ordinary meaning is a transfer of property for a price, and adjustment of the rights of the partners in a dissolved firm is not a transfer, nor it is for a price.6. The Solicitor-General appearing for the Revenue submitted that each partner is entitled to have the assets of the partnership sold for discharging the debts and obligations of the partnership and for the purpose of dividing the residue among the partners if property is allotted to the partners in satisfaction of their claims the transaction must be deemed in law to take the form of a notional sale of the property to the partner in consideration of the money value of his share. Counsel relied upon the statement of the law in Lindley on Partnership, 12th Edn., at p. 568 :" .. ......in the absence of a special agreement to the contrary, the right of each partner on a dissolution is to have the partnership property converted into money by a sale, even although a sale may not be necessary for the payment of debts",and also upon the decision of this Court in Addanki Narayanappa v. Bhaskara Krishnappa, AIR 1966 SC 1300 .A partner may, it is true, in an action for dissolution insist that the assets of the partnership be realised by sale of its assets, but where in satisfaction of the claim of the partner to his share in the value of the residue determined on the footing of an actual or notional sale property is allotted, the Property so allotted to him cannot be deemed in law to be sold to him.7. The High Court was, therefore, in our judgment, right in deciding the quest tion referred in favour of the assessee.
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0[ds]5. On dissolution of the partnership, each theatre must be deemed to be returned to the original owners, in satisfaction partially or wholly of his claim to a share in the residue of the assets after discharging the debts and other obligations. But thereby the theatres were not in law sold by the partnership to the individual partners in consideration of their respective share in the residue. The expressions "sale" and "sold" are not defined in the Income-tax Act: those expressions are used in Section 10 (2) (vii) in their ordinary meaning."Sale" according to its ordinary meaning is aproperty for a price, and adjustment of the rights of the partners in a dissolved firm is not a transfer, nor it is for adistribution of surplus is for the purpose of adjustment of the rights of the partners in the assets of the partnership, it does not amount topartner may, it is true, in an action for dissolution insist that the assets of the partnership be realised by sale of its assets, but where in satisfaction of the claim of the partner to his share in the value of the residue determined on the footing of an actual or notional sale property is allotted, the Property so allotted to him cannot be deemed in law to be sold to him.7. The High Court was, therefore, in our judgment, right in deciding the quest tion referred in favour of the
| 0 | 1,262 |
### 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:
two partners.2. In proceedings for assessment for the year 1952-53 the respondent was treated as a registered firm. The Appellate Tribunal held that by restoring the two theatres to the two original owners "there was a transfer by the firm and the entries adjusting the depreciation and writing off the assets at the original value amounted to total recoupment of the entire depreciation by the partnership and on that account" proviso 2 to Section 10 (2) (vii) of the Income-tax Act, 1922, applied. The High Court of Madhya Pradesh answered the following question referred to it by the Tribunal in the negative :"Whether on the facts and in the circumstances of the case, the amount of Rs. 44,380 was rightly included in the total income of the assessee in the year 1952-53 under the second proviso to Sec. 10 (2) (vii) of the Income-tax Act?"The Commissioner of Income-tax has appealed to this Court with certificate granted by the High Court.3. Section 10 (2) of the Income-tax Act permits certain allowances to be debited in the computation of profits or gains of the business, profession or vocation carried on by the assessee in the year of account one such allowance is prescribed by Clause (vii), the material part of which is :"in respect of any such building, machinery or plant which has been sold or discarded or demolished or destroyed the amount by which the written down value thereof exceeds the amount for which the building, machinery or plant, as the case may be, is actually sold or its scrap value :Provided that * * * * *Provided further that where the amount for which any such building, machinery or plant is sold, whether during the continuance of the business or after the cessation thereof, exceeds the written down value so much of the excess as does not exceed the difference between the original cost and the written down value shall be deemed to ho profits of the previous year in which the sale took place :"In respect of each of the theatres depreciation was allowed by the taxing authorities in proceedings for assessment. The Income-tax Appellate Tribunal was of the view that since the theatres were returned to the partners in settling the accounts of the partners on dissolution the theatres were in law sold to the partners. The High Court disagreed with that view.4. Under the Partnership Act, 1932, property which is brought into the partnership by the partners when it is formed or which may be acquired in the course of the business becomes the property of the partnership and a partner is, subject to any special agreement between the partners entitled upon dissolution to a share in the money representing the value of the property. When the two partners brought in the theatres of their respective ownership into the partnership, the theatres must be deemed to have become the property of the partnership. Under Section 46 of the Partnership Act, 1932, on the dissolution of the firm every partner or his representative is entitled, as against all the other partners or their representatives according to their property of the firm applied in payment of the debts and liabilities of the fine, and to have the surplus distributed among the partners or their representatives according to their rights. Section 48 of the Partnership Act provides for the mode of settlement of accounts between the partners. It prescribes the sequence in which the various outgoings are to be applied and the residue remaining is to be divided between the partners.The distribution of surplus is for the purpose of adjustment of the rights of the partners in the assets of the partnership, it does not amount to transfer of assets.5. On dissolution of the partnership, each theatre must be deemed to be returned to the original owners, in satisfaction partially or wholly of his claim to a share in the residue of the assets after discharging the debts and other obligations. But thereby the theatres were not in law sold by the partnership to the individual partners in consideration of their respective share in the residue. The expressions "sale" and "sold" are not defined in the Income-tax Act: those expressions are used in Section 10 (2) (vii) in their ordinary meaning."Sale" according to its ordinary meaning is a transfer of property for a price, and adjustment of the rights of the partners in a dissolved firm is not a transfer, nor it is for a price.6. The Solicitor-General appearing for the Revenue submitted that each partner is entitled to have the assets of the partnership sold for discharging the debts and obligations of the partnership and for the purpose of dividing the residue among the partners if property is allotted to the partners in satisfaction of their claims the transaction must be deemed in law to take the form of a notional sale of the property to the partner in consideration of the money value of his share. Counsel relied upon the statement of the law in Lindley on Partnership, 12th Edn., at p. 568 :" .. ......in the absence of a special agreement to the contrary, the right of each partner on a dissolution is to have the partnership property converted into money by a sale, even although a sale may not be necessary for the payment of debts",and also upon the decision of this Court in Addanki Narayanappa v. Bhaskara Krishnappa, AIR 1966 SC 1300 .A partner may, it is true, in an action for dissolution insist that the assets of the partnership be realised by sale of its assets, but where in satisfaction of the claim of the partner to his share in the value of the residue determined on the footing of an actual or notional sale property is allotted, the Property so allotted to him cannot be deemed in law to be sold to him.7. The High Court was, therefore, in our judgment, right in deciding the quest tion referred in favour of the assessee.
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699 |
SURAJ PAL Vs. THE STATE OF HARYANA
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BANUMATHI, J.(1) Leave granted.(2) The appellant has been convicted under Section 379-A and sentenced to undergo rigorous imprisonment for five years. Though by Order dated 22 nd November, 2018, we have observed that there is no ground warranting interference with the verdict of conviction of the appellant under Section 379-A I.P.C. and notice was issued only limited to the quantum of sentence, upon hearing further submissions today made at the Bar by Mr. Liaqat Ali, learned counsel appearing for the appellant, and Mr. Devender Kumar Saini, learned Additional Advocate General, appearing for the respondent-State of Haryana, we are of the considered view that the matter needs to be examined on its merits including on the verdict of conviction also.(3) The case in hand is of ?mobile snatching?. One Vikas Sharma (PW-1) stated that on 15 th March, 2016 when he was going to his house after the office work at 7 p.m., two persons came on the motor-cycle and snatched away his mobile phone of Nexus having SIR of Airtel No.9871395297. The de facto complainant, Vikas Sharma (PW-1), lodged the complaint of the same, based upon which FIR NO.136 of 2016 was registered at Police Station Manesar, Gurugram, Haryana.(4) The appellant and the co-accused, Javed, were arrested in Rajasthan; subsequently on 20 th September, 2016, taken into custody by the Assistant Sub-Inspector (PW-3) on production warrant in connection with the present case in FIR No.136 of 2016.(5) The Disclosure statement of the co-accused, Javed, led to the recovery of the mobile phone of Vikash Sharma (PW-1). Based upon the evidence of Vikash Sharma (PW-1) and the evidence regarding seizure of mobile phone from the co-accused, Javed, the Trial Court convicted the appellant Section 379-A I.P.C. and sentenced him to undergo rigorous imprisonment for five years which is the statutory minimum prescribed under Section 379-A I.P.C. (Haryana State Amendment).(6) We have heard learned counsel for the parties and also perused the impugned judgment and other materials on record.(7) The occurrence was of 15 th March, 2016 late evening at 7 p.m. Though the custody of the accused was secured in connection with this case on 20 th September, 2016, no Test Identification Parade (TIP) was held to identify the said accused and for the first time, Vikas Sharma (PW-1) identified the appellant-accused in the court.(8) When the mobile phone was allegedly snatched from Vikas Sharma (PW-1), he would have seen the accused only for few seconds. It is doubtful whether he would have been in a position to identify the appellant-accused. Having regard to the passage of time between the occurrence and the identification of the accused-appellant for the first time in the court by Vikas Sharma (PW-1) becomes highly doubtful. This is more so, when the said mobile phone was recovered only at the behest of the disclosure statement of the co-accused, Javed. The benefit of doubt has to be given to the accused.
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1[ds]Though by Order dated 22 nd November, 2018, we have observed that there is no ground warranting interference with the verdict of conviction of the appellant under Section 379-A I.P.C. and notice was issued only limited to the quantum of sentence, upon hearing further submissions today made at the Bar by Mr. Liaqat Ali, learned counsel appearing for the appellant, and Mr. Devender Kumar Saini, learned Additional Advocate General, appearing for the respondent-State of Haryana, we are of the considered view that the matter needs to be examined on its merits including on the verdict of convictionThe occurrence was of 15 th March, 2016 late evening at 7 p.m. Though the custody of the accused was secured in connection with this case on 20 th September, 2016, no Test Identification Parade (TIP) was held to identify the said accused and for the first time, Vikas Sharma (PW-1) identified the appellant-accused in the court.(8) When the mobile phone was allegedly snatched from Vikas Sharma (PW-1), he would have seen the accused only for few seconds. It is doubtful whether he would have been in a position to identify the appellant-accused. Having regard to the passage of time between the occurrence and the identification of the accused-appellant for the first time in the court by Vikas Sharma (PW-1) becomes highly doubtful. This is more so, when the said mobile phone was recovered only at the behest of the disclosure statement of the co-accused, Javed. The benefit of doubt has to be given to the accused.
| 1 | 583 |
### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
BANUMATHI, J.(1) Leave granted.(2) The appellant has been convicted under Section 379-A and sentenced to undergo rigorous imprisonment for five years. Though by Order dated 22 nd November, 2018, we have observed that there is no ground warranting interference with the verdict of conviction of the appellant under Section 379-A I.P.C. and notice was issued only limited to the quantum of sentence, upon hearing further submissions today made at the Bar by Mr. Liaqat Ali, learned counsel appearing for the appellant, and Mr. Devender Kumar Saini, learned Additional Advocate General, appearing for the respondent-State of Haryana, we are of the considered view that the matter needs to be examined on its merits including on the verdict of conviction also.(3) The case in hand is of ?mobile snatching?. One Vikas Sharma (PW-1) stated that on 15 th March, 2016 when he was going to his house after the office work at 7 p.m., two persons came on the motor-cycle and snatched away his mobile phone of Nexus having SIR of Airtel No.9871395297. The de facto complainant, Vikas Sharma (PW-1), lodged the complaint of the same, based upon which FIR NO.136 of 2016 was registered at Police Station Manesar, Gurugram, Haryana.(4) The appellant and the co-accused, Javed, were arrested in Rajasthan; subsequently on 20 th September, 2016, taken into custody by the Assistant Sub-Inspector (PW-3) on production warrant in connection with the present case in FIR No.136 of 2016.(5) The Disclosure statement of the co-accused, Javed, led to the recovery of the mobile phone of Vikash Sharma (PW-1). Based upon the evidence of Vikash Sharma (PW-1) and the evidence regarding seizure of mobile phone from the co-accused, Javed, the Trial Court convicted the appellant Section 379-A I.P.C. and sentenced him to undergo rigorous imprisonment for five years which is the statutory minimum prescribed under Section 379-A I.P.C. (Haryana State Amendment).(6) We have heard learned counsel for the parties and also perused the impugned judgment and other materials on record.(7) The occurrence was of 15 th March, 2016 late evening at 7 p.m. Though the custody of the accused was secured in connection with this case on 20 th September, 2016, no Test Identification Parade (TIP) was held to identify the said accused and for the first time, Vikas Sharma (PW-1) identified the appellant-accused in the court.(8) When the mobile phone was allegedly snatched from Vikas Sharma (PW-1), he would have seen the accused only for few seconds. It is doubtful whether he would have been in a position to identify the appellant-accused. Having regard to the passage of time between the occurrence and the identification of the accused-appellant for the first time in the court by Vikas Sharma (PW-1) becomes highly doubtful. This is more so, when the said mobile phone was recovered only at the behest of the disclosure statement of the co-accused, Javed. The benefit of doubt has to be given to the accused.
### Response:
1
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