Datasets:

L-NLProc

/

PredEx_Instruction-Tuning_Prediction

like 0

Follow

L-NLProc: Legal Natural Language Processing 3

Gaytri Bajaj Vs. Jiten Bhalla

the appellant by the respondent through his counsel by letter dated 13.01.2012. 11. Though the above facts stated in the aforesaid I.A. are not mentioned in the report of the Mediator submitted to this Court, what is stated in the aforesaid report dated 14.01.2012 is that on 14.01.2012 the respondent and the children were not present and that a letter dated 13.01.2012 from the counsel for the respondent had been placed before the Mediator wherein it has been stated that though the children had earlier attended the Mediation Centre they are now refusing to come to the Centre and all efforts in this regard made by their father have failed. It will also be significant to note that the statements made in the I.A. have not been controverted by the appellant - wife in any manner. 12. The law relating to custody of minors has received an exhaustive consideration of this Court in a series of pronouncements. In Gaurav Nagpal v. Sumedha Nagpal [2009 (1) SCC 142] the principles of English and American law in this regard were considered by this Court to hold that the legal position in India is not in any way different. Noticing the judgment of the Bombay High Court in Saraswati Bai Shripad Ved v. Shripad Vasanji Ved [AIR 1941 (Bom.) 103 ]; Rosy Jacob v. Jacob A Chakramakkal [(1973) 1 SCC 840] and Thirty Hoshie Dolikuka v. Hoshiam Shavdaksha Dolikuka [(1982) 2 SCC 544] this Court eventually concluded in paragraph 50 and 51 that: 50. That when the Court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousmi Moitra Gangulis case the court has to give due weightage to the childs ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others. 51. The word welfare used in section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which governs the rights of the parents and guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases. 13. The views expressed in Para 19 and 20 of the report in Mousmi Moitra Ganguli v. Jayant Ganguli [(2008) 7 SCC 673] would require special notice. In the said case it has been held that it is the welfare and interest of the child and not the rights of the parents which is the determining factor for deciding the question of custody. It was the further view of this Court that the question of welfare of the child has to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents. Similar observations of this Court contained in para 30 of the Report in Sheila B. Das v. P.R. Sugasree [(2006) 3 SCC 62] would also require a special mention. 14. From the above it follows that an order of custody of minor children either under the provisions of The Guardians and Wards Act, 1890 or Hindu Minority and Guardianship Act, 1956 is required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of the either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue of custody of a minor. What must be emphasized is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court. 15. In the present case irrespective of the question whether the abandonment of visitation rights by the wife was occasioned by the fraud or deceit practiced on her, as subsequently claimed, an attempt was made by this Court, even by means of a personal interaction with the children, to bring the issue with regard to custody and visitation rights to a satisfactory conclusion. From the materials on record, it is possible to conclude that the children, one of whom is on the verge of attaining majority, do not want to go with their mother. Both appear to be happy in the company of their father who also appears to be in a position to look after them; provide them with adequate educational facilities and also to maintain them in a proper and congenial manner. The children having expressed their reluctance to go with the mother, even for a short duration of time, we are left with no option but to hold that any visitation right to the mother would be adverse to the interest of the children. Besides, in view of the reluctance of the children to even meet their mother, leave alone spending time with her, we do not see how such an arrangement, i.e., visitation can be made possible by an order of the court. 16. Taking into account all the aforesaid facts, we

0[ds]15. In the present case irrespective of the question whether the abandonment of visitation rights by the wife was occasioned by the fraud or deceit practiced on her, as subsequently claimed, an attempt was made by this Court, even by means of a personal interaction with the children, to bring the issue with regard to custody and visitation rights to a satisfactory conclusion. From the materials on record, it is possible to conclude that the children, one of whom is on the verge of attaining majority, do not want to go with their mother. Both appear to be happy in the company of their father who also appears to be in a position to look after them; provide them with adequate educational facilities and also to maintain them in a proper and congenial manner. The children having expressed their reluctance to go with the mother, even for a short duration of time, we are left with no option but to hold that any visitation right to the mother would be adverse to the interest of the children. Besides, in view of the reluctance of the children to even meet their mother, leave alone spending time with her, we do not see how such an arrangement, i.e., visitation can be made possible by an order of the court

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: the appellant by the respondent through his counsel by letter dated 13.01.2012. 11. Though the above facts stated in the aforesaid I.A. are not mentioned in the report of the Mediator submitted to this Court, what is stated in the aforesaid report dated 14.01.2012 is that on 14.01.2012 the respondent and the children were not present and that a letter dated 13.01.2012 from the counsel for the respondent had been placed before the Mediator wherein it has been stated that though the children had earlier attended the Mediation Centre they are now refusing to come to the Centre and all efforts in this regard made by their father have failed. It will also be significant to note that the statements made in the I.A. have not been controverted by the appellant - wife in any manner. 12. The law relating to custody of minors has received an exhaustive consideration of this Court in a series of pronouncements. In Gaurav Nagpal v. Sumedha Nagpal [2009 (1) SCC 142] the principles of English and American law in this regard were considered by this Court to hold that the legal position in India is not in any way different. Noticing the judgment of the Bombay High Court in Saraswati Bai Shripad Ved v. Shripad Vasanji Ved [AIR 1941 (Bom.) 103 ]; Rosy Jacob v. Jacob A Chakramakkal [(1973) 1 SCC 840] and Thirty Hoshie Dolikuka v. Hoshiam Shavdaksha Dolikuka [(1982) 2 SCC 544] this Court eventually concluded in paragraph 50 and 51 that: 50. That when the Court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousmi Moitra Gangulis case the court has to give due weightage to the childs ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others. 51. The word welfare used in section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which governs the rights of the parents and guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases. 13. The views expressed in Para 19 and 20 of the report in Mousmi Moitra Ganguli v. Jayant Ganguli [(2008) 7 SCC 673] would require special notice. In the said case it has been held that it is the welfare and interest of the child and not the rights of the parents which is the determining factor for deciding the question of custody. It was the further view of this Court that the question of welfare of the child has to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents. Similar observations of this Court contained in para 30 of the Report in Sheila B. Das v. P.R. Sugasree [(2006) 3 SCC 62] would also require a special mention. 14. From the above it follows that an order of custody of minor children either under the provisions of The Guardians and Wards Act, 1890 or Hindu Minority and Guardianship Act, 1956 is required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of the either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue of custody of a minor. What must be emphasized is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court. 15. In the present case irrespective of the question whether the abandonment of visitation rights by the wife was occasioned by the fraud or deceit practiced on her, as subsequently claimed, an attempt was made by this Court, even by means of a personal interaction with the children, to bring the issue with regard to custody and visitation rights to a satisfactory conclusion. From the materials on record, it is possible to conclude that the children, one of whom is on the verge of attaining majority, do not want to go with their mother. Both appear to be happy in the company of their father who also appears to be in a position to look after them; provide them with adequate educational facilities and also to maintain them in a proper and congenial manner. The children having expressed their reluctance to go with the mother, even for a short duration of time, we are left with no option but to hold that any visitation right to the mother would be adverse to the interest of the children. Besides, in view of the reluctance of the children to even meet their mother, leave alone spending time with her, we do not see how such an arrangement, i.e., visitation can be made possible by an order of the court. 16. Taking into account all the aforesaid facts, we ### Response: 0

Municipal Corporation Of Greaterbombay And Anr Vs. Indian Oil Corporation Ltd

movable property or immovable property within the meaning of Section 3, Expl. 1 of the Transfer of Property Act. It was held in determining whether or not a transfer relating to an engine is a " transaction relating to immovable property regard must be had not merely to the nature of the attachment by which the engine is fixed on the ground but also to the circumstances in which it came to be fixed, the title of the person fixing it in immovable property and the object of the transaction by which the engine is transferred or bound. In that case the tenant himself fixed the machine. It was held that it was not an immovable property. Equally the ratio in Perumal Naicker v. T. Ramaswamy Kone and Anr., (1969) Mad. 346, also is not of much assistance to the respondent. The question there was whether the engine attached to the earth is immovable property. The engine fixed to the land was attach­ed to recover the arrears of the loan taken for its purchase. In that context it was held that it is a mixed question of fact and law and has to be decided in the light of particular facts in each case and no particular test could be formulaes but it must be considered in the context in which the question had arisen. The literal construction may not yield a proper and correct result. It must be decided in the light of the specific facts, the decision on the question should depend upon how the court, looking at the facts as a whole, feels on the matter. The degree, the manner and the strength of attachment of the chattel to the earth or the building, are the main features to be regarded. Attachment must partake of the character of the attachment of the trees or shrubs rooted to the earth, or walls or buildings imbedded in that sense, the further test is whether, such an attachment is for the permanent beneficial enjoyment of the immovable property to which it is attached. In view of the fact that the engine, was fixed for the beneficial enjoyment of the engine itself and in order to use the engine it has to be attached to the earth and the attachment lasts only so long as the engine is used and it would be detached and shifted to some other place. In that view of the matter it was held, it is not an immovable property. In Chaturbhui Morarji v. Thomas J. Bannett and Ors., (1905 (29) ILR. Bom. 323, the new shed, the fixture whether part of the lease was in question. It was held that the new shed as provided was not attached to the land and, therefore, it was not a part of the fixture. In J.H. Sinha v. Govindrao Bhiwaji and Ors., 1953(4) AIR Nagpur 224 the machinery belonged to (A) was erected on the land belonged to (B). The question was whether the machinery formed part of the land of (B). The Division Bench laid down two tests to determine whether it was attached to the land and thereby became immovable property, namely, the degree or mode of annexation and the object of annexation. Of the two tests the latter is the more important, and it is a question of fact to be determined upon the particular facts and circumstances of each case. In that case it was held that the (A) did not intend to annex the machinery to the land as a permanent attachment. Therefore, it was held that it is not an immovable property. This ratio in these cases is also not of any assistance to the respondent. 31. The tanks, though, are resting on earth on their own weight without being fixed with nuts and bolts, they have permanently been erected without being, shifted from place to place. Permanency is the test. The chattel whether is moveable to another place of use in the same position or liable to be dismantled and reelected at the later place? If the answer is yes to the former it must be a movable property and thereby it must be held that it is not attached to the earth. If the answer is yes to the latter it is attached to the earth. For instance a shop for sale of merchandise or eata­bles is a structure. The same could be sold by keeping in a push cart which has its mobility from place to place. Merely it is stationed at a particular place and business was carried on, it cannot be said that push court is a shop. The fact that no nuts and bolts were used to imbed the tank to the earth by itself is not con­clusive. Though the witness stated that the tank is capable of being shifted, as a fact the tanks were never shifted from the places of erection. By scientific process, the tanks stand on their own weight on the earth at the place of erection as a permanent structure.32. The petroleum products are being stored through pipes and are taken out by mechanical process. The operational mechanisation also though relevant, is not conclusive. The rateable is based on the rent, which the building or land is capable to fetch. Due to erection of the tanks whether the value of the demised property had appreciated or not, is also yet another consideration. Undoubtedly, when the tanks are erected and used for commercial purposes, the value of the demised property would get appreciated. The annual letting value is capable of increase. However, the rate of increase is a question of fact but the fact remains that the value of the land gets increased by virtue of erection of the storage tanks. Considering from this perspective we have no hesitation to hold that the petroleum storage tanks are structures or things attached to the land within the definition of Sections 3(s) and 3(r) of the Act. Thereby they are exigible to property tax.

1[ds]31. The tanks, though, are resting on earth on their own weight without being fixed with nuts and bolts, they have permanently been erected without being, shifted from place to place. Permanency is the test. The chattel whether is moveable to another place of use in the same position or liable to be dismantled and reelected at the later place? If the answer is yes to the former it must be a movable property and thereby it must be held that it is not attached to the earth. If the answer is yes to the latter it is attached to the earth. For instance a shop for sale of merchandise oris a structure. The same could be sold by keeping in a push cart which has its mobility from place to place. Merely it is stationed at a particular place and business was carried on, it cannot be said that push court is a shop. The fact that no nuts and bolts were used to imbed the tank to the earth by itself is notThough the witness stated that the tank is capable of being shifted, as a fact the tanks were never shifted from the places of erection. By scientific process, the tanks stand on their own weight on the earth at the place of erection as a permanent structure.32. The petroleum products are being stored through pipes and are taken out by mechanical process. The operational mechanisation also though relevant, is not conclusive. The rateable is based on the rent, which the building or land is capable to fetch. Due to erection of the tanks whether the value of the demised property had appreciated or not, is also yet another consideration. Undoubtedly, when the tanks are erected and used for commercial purposes, the value of the demised property would get appreciated. The annual letting value is capable of increase. However, the rate of increase is a question of fact but the fact remains that the value of the land gets increased by virtue of erection of the storage tanks. Considering from this perspective we have no hesitation to hold that the petroleum storage tanks are structures or things attached to the land within the definition of Sections 3(s) and 3(r) of the Act. Thereby they are exigible to property tax.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: movable property or immovable property within the meaning of Section 3, Expl. 1 of the Transfer of Property Act. It was held in determining whether or not a transfer relating to an engine is a " transaction relating to immovable property regard must be had not merely to the nature of the attachment by which the engine is fixed on the ground but also to the circumstances in which it came to be fixed, the title of the person fixing it in immovable property and the object of the transaction by which the engine is transferred or bound. In that case the tenant himself fixed the machine. It was held that it was not an immovable property. Equally the ratio in Perumal Naicker v. T. Ramaswamy Kone and Anr., (1969) Mad. 346, also is not of much assistance to the respondent. The question there was whether the engine attached to the earth is immovable property. The engine fixed to the land was attach­ed to recover the arrears of the loan taken for its purchase. In that context it was held that it is a mixed question of fact and law and has to be decided in the light of particular facts in each case and no particular test could be formulaes but it must be considered in the context in which the question had arisen. The literal construction may not yield a proper and correct result. It must be decided in the light of the specific facts, the decision on the question should depend upon how the court, looking at the facts as a whole, feels on the matter. The degree, the manner and the strength of attachment of the chattel to the earth or the building, are the main features to be regarded. Attachment must partake of the character of the attachment of the trees or shrubs rooted to the earth, or walls or buildings imbedded in that sense, the further test is whether, such an attachment is for the permanent beneficial enjoyment of the immovable property to which it is attached. In view of the fact that the engine, was fixed for the beneficial enjoyment of the engine itself and in order to use the engine it has to be attached to the earth and the attachment lasts only so long as the engine is used and it would be detached and shifted to some other place. In that view of the matter it was held, it is not an immovable property. In Chaturbhui Morarji v. Thomas J. Bannett and Ors., (1905 (29) ILR. Bom. 323, the new shed, the fixture whether part of the lease was in question. It was held that the new shed as provided was not attached to the land and, therefore, it was not a part of the fixture. In J.H. Sinha v. Govindrao Bhiwaji and Ors., 1953(4) AIR Nagpur 224 the machinery belonged to (A) was erected on the land belonged to (B). The question was whether the machinery formed part of the land of (B). The Division Bench laid down two tests to determine whether it was attached to the land and thereby became immovable property, namely, the degree or mode of annexation and the object of annexation. Of the two tests the latter is the more important, and it is a question of fact to be determined upon the particular facts and circumstances of each case. In that case it was held that the (A) did not intend to annex the machinery to the land as a permanent attachment. Therefore, it was held that it is not an immovable property. This ratio in these cases is also not of any assistance to the respondent. 31. The tanks, though, are resting on earth on their own weight without being fixed with nuts and bolts, they have permanently been erected without being, shifted from place to place. Permanency is the test. The chattel whether is moveable to another place of use in the same position or liable to be dismantled and reelected at the later place? If the answer is yes to the former it must be a movable property and thereby it must be held that it is not attached to the earth. If the answer is yes to the latter it is attached to the earth. For instance a shop for sale of merchandise or eata­bles is a structure. The same could be sold by keeping in a push cart which has its mobility from place to place. Merely it is stationed at a particular place and business was carried on, it cannot be said that push court is a shop. The fact that no nuts and bolts were used to imbed the tank to the earth by itself is not con­clusive. Though the witness stated that the tank is capable of being shifted, as a fact the tanks were never shifted from the places of erection. By scientific process, the tanks stand on their own weight on the earth at the place of erection as a permanent structure.32. The petroleum products are being stored through pipes and are taken out by mechanical process. The operational mechanisation also though relevant, is not conclusive. The rateable is based on the rent, which the building or land is capable to fetch. Due to erection of the tanks whether the value of the demised property had appreciated or not, is also yet another consideration. Undoubtedly, when the tanks are erected and used for commercial purposes, the value of the demised property would get appreciated. The annual letting value is capable of increase. However, the rate of increase is a question of fact but the fact remains that the value of the land gets increased by virtue of erection of the storage tanks. Considering from this perspective we have no hesitation to hold that the petroleum storage tanks are structures or things attached to the land within the definition of Sections 3(s) and 3(r) of the Act. Thereby they are exigible to property tax. ### Response: 1

WESTINGHOUSE SAXBY FARMER LTD Vs. COMMR. OF CENTRAL EXCISE CALCUTTA

The several decided cases drive home this truth quite eloquently. It is for this reason probably that the common parlance test or commercial usage test, as it is called, is treated as the more appropriate test, though not the only one. There may be cases, particularly in the case of new products, where this test may not be appropriate. In such cases, other tests like the test of predominance, either by weight of value or on some other basis may have to be applied. It is indeed not possible, nor desirable, to lay down any hard and fast rules of universal application Therefore, the respondents ought not to have overlooked the predominant use or sole/principal use test acknowledged by the General Rules for the Interpretation of the Schedule. 39. As pointed out by the Commissioner (Appeals), the goods were previously classified (before 1993) under Sub-heading 8536.90, but a revised classification list, classifying them under sub-heading 8608, submitted by the appellant, was approved by the competent Authority on 27.08.1993. After such specific approval of the classification list, it is not proper on the part of the Authorities to invoke Note 2(f) of Section XVII. Hence question No.1 is answered in favour of the appellant and against the Revenue. Question No.2 40. The second question that arises for consideration is as to whether the show cause-cum-demand notices issued by the Department on various dates during the period 1995-1998 were not barred by time under Section 11-A of the Central Excise Act, 1944, in the absence of any fraud, collusion, willful misstatement or suppression of facts, especially since the classification list submitted by the appellant have been approved on 27.08.1993. 41. At the outset we should point out that this is not a case where the extended period of limitation would apply, especially in the light of the admitted position that the assessee who had his product classified under sub-heading 8536.90 till the year 1993, specifically filed a classification list on 27.08.1993, reclassifying them under sub-heading 8608 and the same was also approved by the competent authority. Therefore, there is no question of any fraud or collusion or any willful misstatement or suppression of facts or contravention of any of the provisions of this Act or of the rules made there under with intent to evade payment of duty. It is not even the case of the Department that the appellant was guilty of any of these things, warranting the invocation of the extended period of limitation. Therefore, the conclusion is inescapable that the Revenue had only the normal period of limitation available to them to invoke the power under Section 11-A. 42. As a matter of fact the first Appellate Authority held in the penultimate paragraph of its Order as follows: I find that the subject goods were previously classified under sub- heading No.8536.90 and then the appellant asked for reclassification of the goods under sub-heading No.8608.00. The new classification was approved by the proper authority and the appellant paid duty according to the approved classification. Hence there is no violation of any provisions of law on the part of the appellant and therefore penalty is not imposable under rule 173Q. 43. The Appellate Authority also held without any discussion, that the show cause notices were issued within the time limit envisaged in Section 11-A and that any discussion on the jurisdiction of invocation of extended period is not at all required. Therefore, it is obvious that none of the Authorities chose to invoke the extended period of limitation, but proceeded on the footing that all show cause notices were issued within the normal period of limitation. If only any of the Authorities had taken care to look at the dates of the show cause notices, the period covered by those notices and the normal period of limitation that prevailed at that time, they could have easily found that the show cause notices were at least partly time barred. 44. The normal period of limitation for invoking Section 11-A was six months until 11.05.2000 and the same was modified as one year by Act 10 of 2000 with effect from 12.05.2000. This period of one year was modified as two years by Act 28 of 2016 with effect from 14.05.2016. Keeping this in mind let us now have a look at the dates of issue of show cause notices and the period covered by the show cause notices. They are as follows: TABLE 45. It could be seen from the above table (i) that all show cause notices were of a date prior to 12.05.2000 and hence the normal period of limitation was only six months; and (ii) that at least a couple of show cause notices were issued in respect of a period partly or fully beyond the period of limitation. Unfortunately neither the Appellate Authority nor CESTAT took care to analyze the show cause notices individually with reference to the period covered by them. 46. In any case all the show cause notices were issued only on and after 30.08.1995, raising a classification dispute, after having approved the classification list submitted on 27.08.1993. The dispute in the case on hand was one of classification alone, applicable to the product manufactured during the entire period after 27.08.1993. The dispute was not invoice-centric. Therefore, what was sought to be done by the Original Authority was actually to review the approval of the classification list submitted on 27.08.1993 by cleverly issuing separate notices covering certain specific periods. What is to be seen here is that the attempt to undo the effect of the approval of the classification done on 27.08.1993, was actually time barred. Therefore, despite the fact that some of the individual notices were issued within the period of limitation either in respect of the part of the period or in respect of the whole of the period covered by them, the very invocation of Section 11-A, in the facts and circumstances of the case, cannot be said to be within time.

1[ds]21. The Assistant Commissioner who passed the Orders-in- Original felt that the Relays manufactured by the appellant fell only under the category of Electrical machinery covered by Chapter 85 and that in view of Note 2(f) of Section XVII, the expressions parts and parts and accessories appearing in Chapter 86 do not apply to electrical machinery or equipment, covered by Chapter 85. The Assistant Commissioner also relied upon Rule 3(a) of the General Rules for Interpretation of the First Schedule to the Central Excise Tariff Act, 1985 to hold that the Heading which provides the most specific description shall be preferred to the Heading providing a more general description. Therefore, the Original Authority held that since Relays do not find a mention in Chapter 86, but finds a specific mention in Chapter Heading 8536, the same has to be classified only under sub-Heading 8536.90.22. The Appellate Authority agreed with the assessee that the Relays manufactured by them are used solely as part of the Railway signaling equipment, but held that in view of Note 2(f) of Section XVII, the Orders of the Original Authority did not call for any interference. However, the Appellate Authority set aside that portion of the Orders of the Original Authority by which penalty was imposed. This was on the ground that the classification list submitted by the appellant on 27.08.1993 was approved by the competent Authority and that, therefore, the appellant could not be taken to have violated the provisions of the law.23. CESTAT, by the Order impugned in the present appeal, merely concurred with the reasoning given by the Appellate Authority and dismissed the appeal.24. As could be seen from the Orders of the Original Authority and the first Appellate Authority, the answer to question No.1 revolves around the description of goods found in Chapters 85 and 86, as well as the Notes in Section XVII and the General Rules for Interpretation of the First Schedule.30. In the case on hand, the claim of the assessee was that the relays manufactured by them were part of the railway signaling equipment. But all the Authorities were of the unanimous view that this product is referable to goods of a specific description in Chapter sub-Heading 8536.90 and that, therefore, General Rule 3(a) will apply.31. But in invoking General Rule 3(a), the Authorities have omitted to take note of 2 things. They are : (i) that as laid down by this Court in Commissioner of Central Excise Vs. Simplex Mills Co. Ltd (2005) 3 SCC 51 the General Rules of Interpretation will come into play, as mandated in Rule 1 itself, only when no clear picture emerges from the terms of the Headings and the relevant section or chapter notes; and (ii) that in any case, Rule 3 of the General Rules can be invoked only when a particular good is classifiable under two or more Headings, either by application of Rule 2(b) or for any other reason. Once the authorities have concluded that by virtue of Note 2(f) of Section XVII, relays manufactured by the appellant are not even classifiable under Chapter Heading 8608, we do not know how the Authorities could fall back upon Rule 3(a) of the General Rules. There is a fundamental fallacy in the reasoning of the Authorities, that Rule 3(a) of the General Rules will apply, especially after they Nhad found that relays are not classifiable under Chapter Heading 8608, on account of Note 2(f) of Section XVII.34. Though at first blush, Note 2(f) seems to apply to the case on hand, it may not, upon a deeper scrutiny.36. What is recognized in Note 3 can be called the suitability for use test or the user test. While the exclusion under Note 2(f) may be of goods which are capable of being marketed independently as electrical machinery or equipment, for use otherwise than in or as Railway signaling equipment, those parts which are suitable for use solely or principally with an article in Chapter 86 cannot be taken to a different Chapter as the same would negate the very object of group classification. This is made clear by Note 3.38. On the question as to what test would be appropriate in a given case, this court pointed out in A. Nagaraju Bros Vs. State of A.P. 1994 Supp( 3) SCC 122, as follows:…..there is no one single universal test in these matters. The several decided cases drive home this truth quite eloquently. It is for this reason probably that the common parlance test or commercial usage test, as it is called, is treated as the more appropriate test, though not the only one. There may be cases, particularly in the case of new products, where this test may not be appropriate. In such cases, other tests like the test of predominance, either by weight of value or on some other basis may have to be applied. It is indeed not possible, nor desirable, to lay down any hard and fast rules of universal applicationTherefore, the respondents ought not to have overlooked the predominant use or sole/principal use test acknowledged by the General Rules for the Interpretation of the Schedule.39. As pointed out by the Commissioner (Appeals), the goods were previously classified (before 1993) under Sub-heading 8536.90, but a revised classification list, classifying them under sub-heading 8608, submitted by the appellant, was approved by the competent Authority on 27.08.1993. After such specific approval of the classification list, it is not proper on the part of the Authorities to invoke Note 2(f) of Section XVII. Hence question No.1 is answered in favour of the appellant and against the Revenue.41. At the outset we should point out that this is not a case where the extended period of limitation would apply, especially in the light of the admitted position that the assessee who had his product classified under sub-heading 8536.90 till the year 1993, specifically filed a classification list on 27.08.1993, reclassifying them under sub-heading 8608 and the same was also approved by the competent authority. Therefore, there is no question of any fraud or collusion or any willful misstatement or suppression of facts or contravention of any of the provisions of this Act or of the rules made there under with intent to evade payment of duty. It is not even the case of the Department that the appellant was guilty of any of these things, warranting the invocation of the extended period of limitation. Therefore, the conclusion is inescapable that the Revenue had only the normal period of limitation available to them to invoke the power under Section 11-A.43. The Appellate Authority also held without any discussion, that the show cause notices were issued within the time limit envisaged in Section 11-A and that any discussion on the jurisdiction of invocation of extended period is not at all required. Therefore, it is obvious that none of the Authorities chose to invoke the extended period of limitation, but proceeded on the footing that all show cause notices were issued within the normal period of limitation. If only any of the Authorities had taken care to look at the dates of the show cause notices, the period covered by those notices and the normal period of limitation that prevailed at that time, they could have easily found that the show cause notices were at least partly time barred.44. The normal period of limitation for invoking Section 11-A was six months until 11.05.2000 and the same was modified as one year by Act 10 of 2000 with effect from 12.05.2000. This period of one year was modified as two years by Act 28 of 2016 with effect from 14.05.2016.45. It could be seen from the above table (i) that all show cause notices were of a date prior to 12.05.2000 and hence the normal period of limitation was only six months; and (ii) that at least a couple of show cause notices were issued in respect of a period partly or fully beyond the period of limitation. Unfortunately neither the Appellate Authority nor CESTAT took care to analyze the show cause notices individually with reference to the period covered by them.46. In any case all the show cause notices were issued only on and after 30.08.1995, raising a classification dispute, after having approved the classification list submitted on 27.08.1993. The dispute in the case on hand was one of classification alone, applicable to the product manufactured during the entire period after 27.08.1993. The dispute was not invoice-centric. Therefore, what was sought to be done by the Original Authority was actually to review the approval of the classification list submitted on 27.08.1993 by cleverly issuing separate notices covering certain specific periods. What is to be seen here is that the attempt to undo the effect of the approval of the classification done on 27.08.1993, was actually time barred. Therefore, despite the fact that some of the individual notices were issued within the period of limitation either in respect of the part of the period or in respect of the whole of the period covered by them, the very invocation of Section 11-A, in the facts and circumstances of the case, cannot be said to be within time.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: The several decided cases drive home this truth quite eloquently. It is for this reason probably that the common parlance test or commercial usage test, as it is called, is treated as the more appropriate test, though not the only one. There may be cases, particularly in the case of new products, where this test may not be appropriate. In such cases, other tests like the test of predominance, either by weight of value or on some other basis may have to be applied. It is indeed not possible, nor desirable, to lay down any hard and fast rules of universal application Therefore, the respondents ought not to have overlooked the predominant use or sole/principal use test acknowledged by the General Rules for the Interpretation of the Schedule. 39. As pointed out by the Commissioner (Appeals), the goods were previously classified (before 1993) under Sub-heading 8536.90, but a revised classification list, classifying them under sub-heading 8608, submitted by the appellant, was approved by the competent Authority on 27.08.1993. After such specific approval of the classification list, it is not proper on the part of the Authorities to invoke Note 2(f) of Section XVII. Hence question No.1 is answered in favour of the appellant and against the Revenue. Question No.2 40. The second question that arises for consideration is as to whether the show cause-cum-demand notices issued by the Department on various dates during the period 1995-1998 were not barred by time under Section 11-A of the Central Excise Act, 1944, in the absence of any fraud, collusion, willful misstatement or suppression of facts, especially since the classification list submitted by the appellant have been approved on 27.08.1993. 41. At the outset we should point out that this is not a case where the extended period of limitation would apply, especially in the light of the admitted position that the assessee who had his product classified under sub-heading 8536.90 till the year 1993, specifically filed a classification list on 27.08.1993, reclassifying them under sub-heading 8608 and the same was also approved by the competent authority. Therefore, there is no question of any fraud or collusion or any willful misstatement or suppression of facts or contravention of any of the provisions of this Act or of the rules made there under with intent to evade payment of duty. It is not even the case of the Department that the appellant was guilty of any of these things, warranting the invocation of the extended period of limitation. Therefore, the conclusion is inescapable that the Revenue had only the normal period of limitation available to them to invoke the power under Section 11-A. 42. As a matter of fact the first Appellate Authority held in the penultimate paragraph of its Order as follows: I find that the subject goods were previously classified under sub- heading No.8536.90 and then the appellant asked for reclassification of the goods under sub-heading No.8608.00. The new classification was approved by the proper authority and the appellant paid duty according to the approved classification. Hence there is no violation of any provisions of law on the part of the appellant and therefore penalty is not imposable under rule 173Q. 43. The Appellate Authority also held without any discussion, that the show cause notices were issued within the time limit envisaged in Section 11-A and that any discussion on the jurisdiction of invocation of extended period is not at all required. Therefore, it is obvious that none of the Authorities chose to invoke the extended period of limitation, but proceeded on the footing that all show cause notices were issued within the normal period of limitation. If only any of the Authorities had taken care to look at the dates of the show cause notices, the period covered by those notices and the normal period of limitation that prevailed at that time, they could have easily found that the show cause notices were at least partly time barred. 44. The normal period of limitation for invoking Section 11-A was six months until 11.05.2000 and the same was modified as one year by Act 10 of 2000 with effect from 12.05.2000. This period of one year was modified as two years by Act 28 of 2016 with effect from 14.05.2016. Keeping this in mind let us now have a look at the dates of issue of show cause notices and the period covered by the show cause notices. They are as follows: TABLE 45. It could be seen from the above table (i) that all show cause notices were of a date prior to 12.05.2000 and hence the normal period of limitation was only six months; and (ii) that at least a couple of show cause notices were issued in respect of a period partly or fully beyond the period of limitation. Unfortunately neither the Appellate Authority nor CESTAT took care to analyze the show cause notices individually with reference to the period covered by them. 46. In any case all the show cause notices were issued only on and after 30.08.1995, raising a classification dispute, after having approved the classification list submitted on 27.08.1993. The dispute in the case on hand was one of classification alone, applicable to the product manufactured during the entire period after 27.08.1993. The dispute was not invoice-centric. Therefore, what was sought to be done by the Original Authority was actually to review the approval of the classification list submitted on 27.08.1993 by cleverly issuing separate notices covering certain specific periods. What is to be seen here is that the attempt to undo the effect of the approval of the classification done on 27.08.1993, was actually time barred. Therefore, despite the fact that some of the individual notices were issued within the period of limitation either in respect of the part of the period or in respect of the whole of the period covered by them, the very invocation of Section 11-A, in the facts and circumstances of the case, cannot be said to be within time. ### Response: 1

Arvee Industries & Ors Vs. Ratan Lal Sharma

case of harassment of the petitioners in order to drag them to the Calcutta High Court w here the respondent had not to pay any court fee in instituting such a suit. He also submits that since the defendants reside and carry on business in Delhi it will be a great handicap to defend such a suit in Calcutta. He has also pointed out that there is no prima facie jurisdiction to institute this suit in Calcutta. Even on the pleadings, according to him, there is a clear lack of territorial jurisdiction. He has pointed out that the cause of action averred in the plaint shows that the publication of the libel was in Delhi, which was in terms stated in Para 8 of the Plaint, as being outside the jurisdiction of the Calcutta High Court. He submits that it will be near impossible for his clients to defend such a suit in Calcutta.Mr. Mishra at the very outset submits that this Court has no jurisdiction to entertain this application under section 25 C.P.C. since the proceedings are pending on the original side of the Calcutta High Court which gave leave to the respondent to institute the suit. Clause 12 of the Letters Patent for the Calcutta High Court, inter alia, states that when the plaint discloses that only part of the cause of action for a suit is within the jurisdiction of the Calcutta High Court, leave has to be obtained from that Court before instituting the suit. It is stated that leave has been obtained from the Calcutta High Court by filing an application under clause 12 of the Letters Patent. It is, however, admitted that leave was granted, ex parte, and it will be open to the defendants to pray to the High Court for revocation of the leave. 8. After hearing Mr. Mishra at some length. we are not at all impressed by the aforesaid submission. This Court is the highest Court of anne al under the Constitution from all the High Courts in India. Section 25 C.P.C., in terms, confers a new power on this Court which was earlier in the old section within the State Government. Section 25 C.P.C. provides that this Court, if satisfied that an order under the section is expedient for the ends of justice, may transfer any case from one High Court to another or from a civil court in one State to a civil court in another State. 9. Under Article 366(14) of the Constitution "High Court means any court which is deemed for the purposes of this Constitution to be a High Court for any State and includes-"(a) any Court in the territory of India constituted or reconstituted under this Constitution as a High Court, and (b) any other Court in the territory of India which may be declared by Parliament by law to be a High Court for all or any of the purposes of this Constitution". (See also S. 3(25) General Clauses Act). All High Court in India stand on the same footing so far as this Court is concerned and there is no basis for the submission that the suit cannot be transferred by this Court under section 25 C.P.C from the original side of the chartered High Court to the Delhi High Court or that this Court has no jurisdiction to entertain such an application. We are clearly of opinion that the submission is devoted of substance and is rejected. 10. Mr. Mishra next contends that we should not at all be influenced by the submission that the Calcutta High Court may not have territorial jurisdiction to entertain the suit. That will be an objection which the defendants can take up before the Calcutta High Court which will decide it after hearing the parties. That kind of a plea would not furnish justification for an application under section 25 C.P.C., says Mr. Mishra. 11. It cannot be said that if a particular suit, is ex facie- instituted deliberately in a wrong court, it will not have any bearing whatsoever, on the question of transfer. The court may bear it in mind a, , an additional factor if there is, prima facie, on the pleadings sufficient justification for such a pl ea. It is, however, not necessary for us to express finally on the question of jurisdiction in this case. That on the pleadings there is a strong possibility of the High Court accepting the petitioners objection to territorial jurisdiction is also a relevant factor in the background of this case. 12. On the merits, we are clearly of opinion that having an overall view of the- case, the relationship between the parties, the nature of the suit, as well as the circumstances in which the suit has been filed in the Calcutta High Court, great hardship will be caused to the petitioners in defending such a suit in Calcutta. On the other hand, the plaintiff has two sons in Delhi and be had earlier instituted action in the Delhi court against the petitioners. Convenience of the parties for a smooth and speedy trial will be more in Delhi than in Calcutta. Since the cause of action has arisen out of civil proceedings in the Delhi court, it will add to the convenience of the parties so far as production of records and even witnesses before the trial court is concerned.Mr. Mishra also draws our attention to section 25(5) C.P.C. and submits that the plaintiff will be greatly handicapped in several ways in being deprived of the procedure extant in Calcutta High Court. We should not, therefore, entertain the petition, says counsel. We do not find any impediment under section 25(5), C.P.C. in the matter of entertainment of the petit ion of transfer by this Court. We however, express no opinion about section 25(5) as it will be for the Delhi High Court to deal with the matter if any question is raised before it with regard to any aspect appertaining to that section. 13.

1[ds]This Court is the highest Court of anne al under the Constitution from all the High Courts in India. Section 25 C.P.C., in terms, confers a new power on this Court which was earlier in the old section within the State Government. Section 25 C.P.C. provides that this Court, if satisfied that an order under the section is expedient for the ends of justice, may transfer any case from one High Court to another or from a civil court in one State to a civil court in another StateIt cannot be said that if a particular suit, is ex facie- instituted deliberately in a wrong court, it will not have any bearing whatsoever, on the question of transfer. The court may bear it in mind a, , an additional factor if there is, prima facie, on the pleadings sufficient justification for such a pl ea. It is, however, not necessary for us to express finally on the question of jurisdiction in this case. That on the pleadings there is a strong possibility of the High Court accepting the petitioners objection to territorial jurisdiction is also a relevant factor in the background of this caseOn the merits, we are clearly of opinion that having an overall view of the- case, the relationship between the parties, the nature of the suit, as well as the circumstances in which the suit has been filed in the Calcutta High Court, great hardship will be caused to the petitioners in defending such a suit in Calcutta. On the other hand, the plaintiff has two sons in Delhi and be had earlier instituted action in the Delhi court against the petitioners. Convenience of the parties for a smooth and speedy trial will be more in Delhi than in Calcutta. Since the cause of action has arisen out of civil proceedings in the Delhi court, it will add to the convenience of the parties so far as production of records and even witnesses before the trial court is concerned.Mr. Mishra also draws our attention to section 25(5) C.P.C. and submits that the plaintiff will be greatly handicapped in several ways in being deprived of the procedure extant in Calcutta High Court. We should not, therefore, entertain the petition, says counsel. We do not find any impediment under section 25(5), C.P.C. in the matter of entertainment of the petit ion of transfer by this Court. We however, express no opinion about section 25(5) as it will be for the Delhi High Court to deal with the matter if any question is raised before it with regard to any aspect appertaining to that section.

### 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: case of harassment of the petitioners in order to drag them to the Calcutta High Court w here the respondent had not to pay any court fee in instituting such a suit. He also submits that since the defendants reside and carry on business in Delhi it will be a great handicap to defend such a suit in Calcutta. He has also pointed out that there is no prima facie jurisdiction to institute this suit in Calcutta. Even on the pleadings, according to him, there is a clear lack of territorial jurisdiction. He has pointed out that the cause of action averred in the plaint shows that the publication of the libel was in Delhi, which was in terms stated in Para 8 of the Plaint, as being outside the jurisdiction of the Calcutta High Court. He submits that it will be near impossible for his clients to defend such a suit in Calcutta.Mr. Mishra at the very outset submits that this Court has no jurisdiction to entertain this application under section 25 C.P.C. since the proceedings are pending on the original side of the Calcutta High Court which gave leave to the respondent to institute the suit. Clause 12 of the Letters Patent for the Calcutta High Court, inter alia, states that when the plaint discloses that only part of the cause of action for a suit is within the jurisdiction of the Calcutta High Court, leave has to be obtained from that Court before instituting the suit. It is stated that leave has been obtained from the Calcutta High Court by filing an application under clause 12 of the Letters Patent. It is, however, admitted that leave was granted, ex parte, and it will be open to the defendants to pray to the High Court for revocation of the leave. 8. After hearing Mr. Mishra at some length. we are not at all impressed by the aforesaid submission. This Court is the highest Court of anne al under the Constitution from all the High Courts in India. Section 25 C.P.C., in terms, confers a new power on this Court which was earlier in the old section within the State Government. Section 25 C.P.C. provides that this Court, if satisfied that an order under the section is expedient for the ends of justice, may transfer any case from one High Court to another or from a civil court in one State to a civil court in another State. 9. Under Article 366(14) of the Constitution "High Court means any court which is deemed for the purposes of this Constitution to be a High Court for any State and includes-"(a) any Court in the territory of India constituted or reconstituted under this Constitution as a High Court, and (b) any other Court in the territory of India which may be declared by Parliament by law to be a High Court for all or any of the purposes of this Constitution". (See also S. 3(25) General Clauses Act). All High Court in India stand on the same footing so far as this Court is concerned and there is no basis for the submission that the suit cannot be transferred by this Court under section 25 C.P.C from the original side of the chartered High Court to the Delhi High Court or that this Court has no jurisdiction to entertain such an application. We are clearly of opinion that the submission is devoted of substance and is rejected. 10. Mr. Mishra next contends that we should not at all be influenced by the submission that the Calcutta High Court may not have territorial jurisdiction to entertain the suit. That will be an objection which the defendants can take up before the Calcutta High Court which will decide it after hearing the parties. That kind of a plea would not furnish justification for an application under section 25 C.P.C., says Mr. Mishra. 11. It cannot be said that if a particular suit, is ex facie- instituted deliberately in a wrong court, it will not have any bearing whatsoever, on the question of transfer. The court may bear it in mind a, , an additional factor if there is, prima facie, on the pleadings sufficient justification for such a pl ea. It is, however, not necessary for us to express finally on the question of jurisdiction in this case. That on the pleadings there is a strong possibility of the High Court accepting the petitioners objection to territorial jurisdiction is also a relevant factor in the background of this case. 12. On the merits, we are clearly of opinion that having an overall view of the- case, the relationship between the parties, the nature of the suit, as well as the circumstances in which the suit has been filed in the Calcutta High Court, great hardship will be caused to the petitioners in defending such a suit in Calcutta. On the other hand, the plaintiff has two sons in Delhi and be had earlier instituted action in the Delhi court against the petitioners. Convenience of the parties for a smooth and speedy trial will be more in Delhi than in Calcutta. Since the cause of action has arisen out of civil proceedings in the Delhi court, it will add to the convenience of the parties so far as production of records and even witnesses before the trial court is concerned.Mr. Mishra also draws our attention to section 25(5) C.P.C. and submits that the plaintiff will be greatly handicapped in several ways in being deprived of the procedure extant in Calcutta High Court. We should not, therefore, entertain the petition, says counsel. We do not find any impediment under section 25(5), C.P.C. in the matter of entertainment of the petit ion of transfer by this Court. We however, express no opinion about section 25(5) as it will be for the Delhi High Court to deal with the matter if any question is raised before it with regard to any aspect appertaining to that section. 13. ### Response: 1

Pratap Singh Vs. Union Territory Of Chandigarh And Anr

Fazal Ali, J. 1. This appeal by special leave is directed against the judgment of the Punjab and Haryana High court dismissing the Writ petition filed by the appellant against the order of this termination passed by the Senior Superintendent of Police. The appellant was appointed on July 2, 1973 as a temporary Assistant Sub-Inspector of Police. On September 26, 1977, his services were terminated by the Senior Superintendent of Police. Against this order, the appellant moved the High Court of Punjab and Haryana but his petition was rejected. Thereafter, he came to this Court and after obtaining special leave from this Court, the appeal has been placed before us for hearing. 2. The short point taken by the appellant in this appeal is that under Rule 12.8(1) of Punjab Police Rules, the petitioner must be considered to be on probation for a period of three years and as the appellant has crossed his period of three years, he must be deemed to have been confirmed and, therefore, his services could not be terminated. In support of this submission, reliance is placed by the appellant on a Division Bench judgment of this Court in case of Superintendent of Police, Ludhiana v. Dwarka Das ((1979) 3 SCC 789 : AIR 1979 SC 336 ) where Shinghal, J., speaking for the Court observed as follows : (SCC p. 791, para 5)"So if Rules 12.2(3) and 12.21 are read together, it will appear that the maximum period of probation in the case of a police officer of the rank of constable is three years, for the Superintendent of Police concerned has the power to discharge him within that period. It follows that the power of discharge cannot be exercised under Rule 12.21 after the expiry of the period of three years." 3. It is true that the observations made by this Court support the contention of the appellant to an extent. But in our opinion, the Division Bench decision was not correctly decided as it has not considered the five Bench decision of this Court in case of State of Punjab v. Dharam Singh ((1968) 3 SCR 1 , 4, 5 : AIR 1968 SC 1210 : 34 FJR 408) were after considering the number of cases, the Court observed thus : (SCR pp. 4, 5)This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, her should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post, and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should be deemed to have been confirmed ... The reason for this conclusion is that where on the completion of the specified period of probation the employee is allowed to continue in the post without an order of confirmation, the only possible view to take in the absence of anything to the contrary in the original order of appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication. 4. In the instant case, the appellant was appointed purely on a temporary basis and not on probation and, therefore, Rule 12.8 which deals with officials who are appointed on probation does not apply to this case at all. It is well settled that a person is appointed on probation only if he is appointed against a substantive vacancy. In the instant case, it is not disputed that the appellant was appointed only against a temporary vacancy. Assuming, however, that Rule 12.8 of the Punjab Police rules applies to the appellants case and he is governed by Rule 12.8 even after the probation of three years is over, the police officer shall not be deemed to be confirmed unless there is any rule which provides that in absence of an order of confirmation at the end of the probation, the employee must be presumed to be confirmed. There is no such provision in the present rules. In these circumstances, therefor, as held by this Court in the case of Dharam Singh ((1968) 3 SCR 1 , 4, 5 : AIR 1968 SC 1210 : 34 FJR 408, it must be held that if no express order of confirmation was passed after the appellant completed three years, it must be presumed that his probation was extended. 5. In this view of the matter, as the appellant was a temporary hand, the services could be terminated at any time. It appears that the attention of this Court in Dwarka Das case ((1979) 3 SCC 789 : AIR 1979 SC 336 ) was not drawn to the case of State of Punjab v. Dharam Singh ((1968) 3 SCR 1 , 4, 5 : AIR 1968 SC 1210 : 34 FJR 408) which has been decided by a larger Bench and therefore, the later decision rendered by this Court in Dwarka Das ((1979) 3 SCC 789 : AIR 1979 SC 336 ) is directly opposed to the view taken by the larger Bench and must, therefore, be overruled.

0[ds]3. It is true that the observations made by this Court support the contention of the appellant to an extent. But in our opinion, the Division Bench decision was not correctly decided as it has not considered the five Bench decision of this Court in case of State of Punjab v. Dharam Singh ((1968) 3 SCR 1 , 4, 5 : AIR 1968 SC 1210 : 34 FJR 408) were after considering the number of cases, the Court observed thus : (SCR pp. 4, 5)This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, her should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules4. In the instant case, the appellant was appointed purely on a temporary basis and not on probation and, therefore, Rule 12.8 which deals with officials who are appointed on probation does not apply to this case at all. It is well settled that a person is appointed on probation only if he is appointed against a substantive vacancy. In the instant case, it is not disputed that the appellant was appointed only against a temporary vacancy. Assuming, however, that Rule 12.8 of the Punjab Police rules applies to the appellants case and he is governed by Rule 12.8 even after the probation of three years is over, the police officer shall not be deemed to be confirmed unless there is any rule which provides that in absence of an order of confirmation at the end of the probation, the employee must be presumed to be confirmed. There is no such provision in the present rulesIn these circumstances, therefor, as held by this Court in the case of Dharam Singh ((1968) 3 SCR 1 , 4, 5 : AIR 1968 SC 1210 : 34 FJR 408, it must be held that if no express order of confirmation was passed after the appellant completed three years, it must be presumed that his probation was extended5. In this view of the matter, as the appellant was a temporary hand, the services could be terminated at any time. It appears that the attention of this Court in Dwarka Das case ((1979) 3 SCC 789 : AIR 1979 SC 336 ) was not drawn to the case of State of Punjab v. Dharam Singh ((1968) 3 SCR 1 , 4, 5 : AIR 1968 SC 1210 : 34 FJR 408) which has been decided by a larger Bench and therefore, the later decision rendered by this Court in Dwarka Das ((1979) 3 SCC 789 : AIR 1979 SC 336 ) is directly opposed to the view taken by the larger Bench and must, therefore, be overruled.

### 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: Fazal Ali, J. 1. This appeal by special leave is directed against the judgment of the Punjab and Haryana High court dismissing the Writ petition filed by the appellant against the order of this termination passed by the Senior Superintendent of Police. The appellant was appointed on July 2, 1973 as a temporary Assistant Sub-Inspector of Police. On September 26, 1977, his services were terminated by the Senior Superintendent of Police. Against this order, the appellant moved the High Court of Punjab and Haryana but his petition was rejected. Thereafter, he came to this Court and after obtaining special leave from this Court, the appeal has been placed before us for hearing. 2. The short point taken by the appellant in this appeal is that under Rule 12.8(1) of Punjab Police Rules, the petitioner must be considered to be on probation for a period of three years and as the appellant has crossed his period of three years, he must be deemed to have been confirmed and, therefore, his services could not be terminated. In support of this submission, reliance is placed by the appellant on a Division Bench judgment of this Court in case of Superintendent of Police, Ludhiana v. Dwarka Das ((1979) 3 SCC 789 : AIR 1979 SC 336 ) where Shinghal, J., speaking for the Court observed as follows : (SCC p. 791, para 5)"So if Rules 12.2(3) and 12.21 are read together, it will appear that the maximum period of probation in the case of a police officer of the rank of constable is three years, for the Superintendent of Police concerned has the power to discharge him within that period. It follows that the power of discharge cannot be exercised under Rule 12.21 after the expiry of the period of three years." 3. It is true that the observations made by this Court support the contention of the appellant to an extent. But in our opinion, the Division Bench decision was not correctly decided as it has not considered the five Bench decision of this Court in case of State of Punjab v. Dharam Singh ((1968) 3 SCR 1 , 4, 5 : AIR 1968 SC 1210 : 34 FJR 408) were after considering the number of cases, the Court observed thus : (SCR pp. 4, 5)This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, her should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post, and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should be deemed to have been confirmed ... The reason for this conclusion is that where on the completion of the specified period of probation the employee is allowed to continue in the post without an order of confirmation, the only possible view to take in the absence of anything to the contrary in the original order of appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication. 4. In the instant case, the appellant was appointed purely on a temporary basis and not on probation and, therefore, Rule 12.8 which deals with officials who are appointed on probation does not apply to this case at all. It is well settled that a person is appointed on probation only if he is appointed against a substantive vacancy. In the instant case, it is not disputed that the appellant was appointed only against a temporary vacancy. Assuming, however, that Rule 12.8 of the Punjab Police rules applies to the appellants case and he is governed by Rule 12.8 even after the probation of three years is over, the police officer shall not be deemed to be confirmed unless there is any rule which provides that in absence of an order of confirmation at the end of the probation, the employee must be presumed to be confirmed. There is no such provision in the present rules. In these circumstances, therefor, as held by this Court in the case of Dharam Singh ((1968) 3 SCR 1 , 4, 5 : AIR 1968 SC 1210 : 34 FJR 408, it must be held that if no express order of confirmation was passed after the appellant completed three years, it must be presumed that his probation was extended. 5. In this view of the matter, as the appellant was a temporary hand, the services could be terminated at any time. It appears that the attention of this Court in Dwarka Das case ((1979) 3 SCC 789 : AIR 1979 SC 336 ) was not drawn to the case of State of Punjab v. Dharam Singh ((1968) 3 SCR 1 , 4, 5 : AIR 1968 SC 1210 : 34 FJR 408) which has been decided by a larger Bench and therefore, the later decision rendered by this Court in Dwarka Das ((1979) 3 SCC 789 : AIR 1979 SC 336 ) is directly opposed to the view taken by the larger Bench and must, therefore, be overruled. ### Response: 0

Mohd. Ayub Khan Vs. Commissioner Of Police, Madras And Another

for prescribing rules of evidence, having regard to which the question of acquisition of citizenship of another country has to be determined, clearly indicates that the order is not to be made on the mere satisfaction of the authority without enquiry, that the citizen concerned has obtained a pass port of another country. The question as to whether, when and how foreign citizenship has been acquired has to be determined having regard to the rules of evidence prescribed, and termination of Indian citizenship being the consequence of voluntary acquisition of foreign citizenship, the authority has also to determine that such latter citizenship has been voluntarily acquired. Determination of the question postulates an approach as in a quasi-judicial enquiry; the citizen concerned must be given due notice of the nature of the action which in the view of the authority involves termination of Indian citizenship, and reasonable opportunity must be afforded to the citizen to convince the authority that what is alleged against him is not true. What the scope and extent of the enquiry to be made by the authority on a plea raised by the citizen concerned should be, depends upon the circumstances of each case. 12. Paragraph 1 of Sch. III which raises a rebuttable presumption, when it appears to the Central Government that a citizen has voluntarily acquired foreign citizenship, casts the burden of proof upon the citizen to disprove such acquisition, and Paragraph 2 which authorises the Central Government to make enquiries for the purpose of determining the question raised, strongly support the view that the Central Government must arrive at a decision that the Indian citizen has voluntarily acquired foreign citizenship, before action can be taken against him on the footing that his citizenship is terminated. Paragraph 3 raises a conclusive presumption that a citizen of India who has obtained a passport from a foreign country on any date, has before that date voluntarily acquired citizenship of that other country. By the application of the rule in Paragraph 3 the authority must regard obtaining of a foreign passport on a particular date as conclusive proof that the Indian citizen has voluntarily acquired citizenship of another country before that date. But obtaining of a passport of a foreign country cannot in all cases merely mean receiving the passport. If a plea is raised by the citizen that he had not voluntarily obtained the passport, the citizen must be afforded an opportunity to prove that fact. Cases may be visualized in which on account of force a person may be compelled or on account of fraud or misrepresentation he may be induced, without any intention of renunciation of his Indian citizenship, to obtain a passport from a foreign country. It would be difficult to say that such a passport is one which has been obtained within the meaning of Paragraph 3 of Sch. III and that a conclusive presumption must arise that he has acquired voluntarily citizenship of that country. 13. We are not concerned in this case with the truth or otherwise of the plea raised by the appellant in his petition before the High Court that he was compelled to obtain the passport from the High Commissioner for Pakistan. Balakrishna Ayyar, J., observed that the plea of the appellant was not bona fide. But it is not the function of the Courts to determine the question whether the plea raised is true or not : it is for the authority invested with power under S. 9 (2) to determine that question if it is raised. The High Court in appeal was of the view that S. 9 laid down an objective test and once it was found that the passport was obtained in fact by an Indian citizen from another country, the law determined the legal consequences of that conduct and no question of his intent or understanding arose. We are unable to agree with that view. If voluntary acquisition of citizenship of another country determines Indian citizenship within the meaning of S. 9 (1), and by virtue of Paragraph 3 of Sch. III of the Citizenship Rules a conclusive presumption of voluntary acquisition of citizenship is to be raised from the obtaining of a passport from the Government of any other country, it would be implicit that the obtaining of a passport was the result of the exercise of free volition by the citizen. This view is strengthened by the scheme of S. 9 (2) read with R. 30 which contemplates an enquiry by an authority prescribed under subs. (2) for determination of the question whether citizenship of another country has been acquired by an Indian citizen. 14. Counsel for the State of Madras submitted that the question whether the passport was voluntarily obtained must be decided by the foreign country, representative of which issues the passport, and mere issue of a foreign passport must always be regarded as decisive of the question that the passport was voluntarily obtained. But S. 9 (2) read with R. 30 confers the power to determine whether Indian citizenship is terminated upon the specified authority, and in exercising that power the authority is guided by the statutory rules of evidence. It would be impossible to hold that termination of Indian citizenship depends upon action of a foreign country in issuing the passport. 15. We are, therefore, of the view that the High Court was in error in holding that the decision of the Government of India without giving an opportunity to the appellant to prove his case that he had been compelled by the police to obtain a passport from the High Commissioner for Pakistan will sustain the order of deportation against the appellant. It will of course be open to the Central Government to determine whether the appellant has lost the citizenship of India by voluntarily acquiring the citizenship of Pakistan by obtaining a passport from the High Commissioner for Pakistan, or in any other manner. But the determination must be made in accordance with law. 16.

1[ds]We are not concerned in this case with the truth or otherwise of the plea raised by the appellant in his petition before the High Court that he was compelled to obtain the passport from the High Commissioner for Pakistan. Balakrishna Ayyar, J., observed that the plea of the appellant was not bona fide. But it is not the function of the Courts to determine the question whether the plea raised is true or not : it is for the authority invested with power under S. 9 (2) to determine that question if it is raised. The High Court in appeal was of the view that S. 9 laid down an objective test and once it was found that the passport was obtained in fact by an Indian citizen from another country, the law determined the legal consequences of that conduct and no question of his intent or understanding arose. We are unable to agree with that view. If voluntary acquisition of citizenship of another country determines Indian citizenship within the meaning of S. 9 (1), and by virtue of Paragraph 3 of Sch. III of the Citizenship Rules a conclusive presumption of voluntary acquisition of citizenship is to be raised from the obtaining of a passport from the Government of any other country, it would be implicit that the obtaining of a passport was the result of the exercise of free volition by the citizen. This view is strengthened by the scheme of S. 9 (2) read with R. 30 which contemplates an enquiry by an authority prescribed under subs. (2) for determination of the question whether citizenship of another country has been acquired by an Indian citizenBut S. 9 (2) read with R. 30 confers the power to determine whether Indian citizenship is terminated upon the specified authority, and in exercising that power the authority is guided by the statutory rules of evidence. It would be impossible to hold that termination of Indian citizenship depends upon action of a foreign country in issuing the passportWe are, therefore, of the view that the High Court was in error in holding that the decision of the Government of India without giving an opportunity to the appellant to prove his case that he had been compelled by the police to obtain a passport from the High Commissioner for Pakistan will sustain the order of deportation against the appellant. It will of course be open to the Central Government to determine whether the appellant has lost the citizenship of India by voluntarily acquiring the citizenship of Pakistan by obtaining a passport from the High Commissioner for Pakistan, or in any other manner. But the determination must be made in accordance with law.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: for prescribing rules of evidence, having regard to which the question of acquisition of citizenship of another country has to be determined, clearly indicates that the order is not to be made on the mere satisfaction of the authority without enquiry, that the citizen concerned has obtained a pass port of another country. The question as to whether, when and how foreign citizenship has been acquired has to be determined having regard to the rules of evidence prescribed, and termination of Indian citizenship being the consequence of voluntary acquisition of foreign citizenship, the authority has also to determine that such latter citizenship has been voluntarily acquired. Determination of the question postulates an approach as in a quasi-judicial enquiry; the citizen concerned must be given due notice of the nature of the action which in the view of the authority involves termination of Indian citizenship, and reasonable opportunity must be afforded to the citizen to convince the authority that what is alleged against him is not true. What the scope and extent of the enquiry to be made by the authority on a plea raised by the citizen concerned should be, depends upon the circumstances of each case. 12. Paragraph 1 of Sch. III which raises a rebuttable presumption, when it appears to the Central Government that a citizen has voluntarily acquired foreign citizenship, casts the burden of proof upon the citizen to disprove such acquisition, and Paragraph 2 which authorises the Central Government to make enquiries for the purpose of determining the question raised, strongly support the view that the Central Government must arrive at a decision that the Indian citizen has voluntarily acquired foreign citizenship, before action can be taken against him on the footing that his citizenship is terminated. Paragraph 3 raises a conclusive presumption that a citizen of India who has obtained a passport from a foreign country on any date, has before that date voluntarily acquired citizenship of that other country. By the application of the rule in Paragraph 3 the authority must regard obtaining of a foreign passport on a particular date as conclusive proof that the Indian citizen has voluntarily acquired citizenship of another country before that date. But obtaining of a passport of a foreign country cannot in all cases merely mean receiving the passport. If a plea is raised by the citizen that he had not voluntarily obtained the passport, the citizen must be afforded an opportunity to prove that fact. Cases may be visualized in which on account of force a person may be compelled or on account of fraud or misrepresentation he may be induced, without any intention of renunciation of his Indian citizenship, to obtain a passport from a foreign country. It would be difficult to say that such a passport is one which has been obtained within the meaning of Paragraph 3 of Sch. III and that a conclusive presumption must arise that he has acquired voluntarily citizenship of that country. 13. We are not concerned in this case with the truth or otherwise of the plea raised by the appellant in his petition before the High Court that he was compelled to obtain the passport from the High Commissioner for Pakistan. Balakrishna Ayyar, J., observed that the plea of the appellant was not bona fide. But it is not the function of the Courts to determine the question whether the plea raised is true or not : it is for the authority invested with power under S. 9 (2) to determine that question if it is raised. The High Court in appeal was of the view that S. 9 laid down an objective test and once it was found that the passport was obtained in fact by an Indian citizen from another country, the law determined the legal consequences of that conduct and no question of his intent or understanding arose. We are unable to agree with that view. If voluntary acquisition of citizenship of another country determines Indian citizenship within the meaning of S. 9 (1), and by virtue of Paragraph 3 of Sch. III of the Citizenship Rules a conclusive presumption of voluntary acquisition of citizenship is to be raised from the obtaining of a passport from the Government of any other country, it would be implicit that the obtaining of a passport was the result of the exercise of free volition by the citizen. This view is strengthened by the scheme of S. 9 (2) read with R. 30 which contemplates an enquiry by an authority prescribed under subs. (2) for determination of the question whether citizenship of another country has been acquired by an Indian citizen. 14. Counsel for the State of Madras submitted that the question whether the passport was voluntarily obtained must be decided by the foreign country, representative of which issues the passport, and mere issue of a foreign passport must always be regarded as decisive of the question that the passport was voluntarily obtained. But S. 9 (2) read with R. 30 confers the power to determine whether Indian citizenship is terminated upon the specified authority, and in exercising that power the authority is guided by the statutory rules of evidence. It would be impossible to hold that termination of Indian citizenship depends upon action of a foreign country in issuing the passport. 15. We are, therefore, of the view that the High Court was in error in holding that the decision of the Government of India without giving an opportunity to the appellant to prove his case that he had been compelled by the police to obtain a passport from the High Commissioner for Pakistan will sustain the order of deportation against the appellant. It will of course be open to the Central Government to determine whether the appellant has lost the citizenship of India by voluntarily acquiring the citizenship of Pakistan by obtaining a passport from the High Commissioner for Pakistan, or in any other manner. But the determination must be made in accordance with law. 16. ### Response: 1

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

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

1[ds]11) We may record at this stage that the main ground on which notice issued under SARFAESI Act had been quashed is the impermissibility of invoking the provisions of the Act by the appellant herein who took over the assets and liabilities of IBFSL on merger. Insofar as the other issue, namely, provisions of SARFAESI Act could not be invoked as IBFSL had already invoked the machinery under the Arbitration Act by filing petitions under Section 9 thereof is concerned, this is decided as the subsidiary issue. Insofar as this subsidiary question is concerned, learned counsel for the respondent did not press this ground seriously and it was virtually conceded that merely because IBFSL had filed applications under Section 9 of the Arbitration Act, would not create a bar for proceeding under the SARFAESI Act. Even otherwise, we find that the High Court was in error in deciding this issue. It is not correct to say that proceedings under the SARFAESI Act cannot be placed on high pedestal. We find that SARFAESI Act is a special enactment which was enacted by the Parliament to provide speedy remedy to the banks and financial institutions without recourse to the court of law. On the other hand, the Arbitration and Conciliation Act, in contrast, is a statute of general nature. Merely because steps are taken under this general law would not mean that remedy under the special statute is foreclosed. If at all, legal position is just the reverse. Matter is no more res integra and is covered by a judgment of this Court in Transcore v. Union of India & Anr. (2008) 1 SCC 125 ) In that case, after analysing the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the Court summed up the position as under:18. On analysing the above provisions of the DRT Act, we find that the said Act is a complete code by itself as far as recovery of debt is concerned. It provides for various modes of recovery. It incorporates even the provisions of the Second and Third Schedules to the Income Tax Act, 1961. Therefore, the debt due under the recovery certificate can be recovered in various ways. The remedies mentioned therein are complementary to each other. The DRT Act provides for adjudication. It provides for adjudication of disputes as far as the debt due is concerned. It covers secured as well as unsecured debts. However, it does not rule out applicability of the provisions of the TP Act, in particular Sections 69 and 69-A of that Act. Further, in cases where the debt is secured by pledge of shares or immovable properties, with the passage of time and delay in the DRT proceedings, the value of the pledged assets or mortgaged properties invariably falls. On account of inflation, value of the assets in the hands of the bank/FI invariably depletes which, in turn, leads to asset-liability mismatch. These contingencies are not taken care of by the DRT Act and, therefore, Parliament had to enact the NPA Act, 2002.We may note that our discussion is not on a virgin field as the terrain has already been covered by this Court in M.D. Frozen Foods Exports Pvt. Ltd. & Ors. v. Hero Fincorp Ltd. (2017) SCC Online SC 1211)15) Learned counsel for the appellant is factually correct in pointing out that the impugned judgment of the Andhra Pradesh High Court is specifically noted and overruled by this Court in M.D. Frozen Foods. Therefore, it would be apt to discuss the said judgment in the first instance.21) The fact situation was, thus, almost the same in the instant case. The only difference is that here the loan was initially sanctioned by IBFSL which stands merged with the appellant and the appellant is the successor-in-interest which is covered by the SARFAESI Act. In the aforesaid case, though the entity which disbursed the loan remained the same, however, at the time when the loan was given by the respondent to the appellant it was not a financial institution covered under the SARFAESI Act, which status was attained by the respondent in view of notification dated August 05, 2016 issued much after the loan was disbursed to the appellant therein. This does not make any difference in the outcome, as discussed in detailed hereinafter.22) Learned counsel for respondents could not dispute that the aforesaid judgment covers the present case in its entirety. This position had to be accepted by them having regard to the fact that the judgment of the High Court which is impugned in these proceedings has been specifically overruled by this Court in M.D. Frozen Foods case. Faced with this stark reality staring at the face of the respondents, a valiant effort was made to convince this Bench to take a contrary view and in the process it was submitted that in M.D. Frozen Foods some important legal aspects have not been considered.32) After considering the aforesaid submission, we are of the opinion that entire edifice is built on the pleas which are squarely answered in M.D. Frozen Foods and there is no reason to take a different view therefrom for the reasons that follow hereinafter.33) In the instant case, loan was given by IBFSL which was not a financial institution covered by the SARFAESI Act when the loan was given. However, this entity has got merged with the appellant and appellant is a SARFAESI company.In order to deal with this aspect, we will have to first taken into consideration, the effect of such a merger scheme as approved by the High Court. It is to be kept in mind that the loan/debts/financial assets stood vested in the appellant pursuant to the amalgamation scheme filed by the two companies under Sections 391 and 394 of the Companies Act, 1956 whereunder the predecessor company, IBFSL got amalgamated with the appellant, the effect of such a merger is explained by this Court in Saraswati Industrial Syndicate Ltd. v. Commissioner of Income Tax (1990(Supp) SCC 675) in the following manner:5. Generally, where only one company is involved in change and the rights of the shareholders and creditors are varied, it amounts to reconstruction or reorganisation of scheme of arrangement. In amalgamation two or more companies are fused into one by merger or by taking over by another. Reconstruction or amalgamation has no precise legal meaning. The amalgamation is a blending of two or more existing undertakings into one undertaking, the shareholders of each blending company become substantially the shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly amalgamation does not cover the mere acquisition by a company of the share capital of other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See: Halsburys Laws of England (4th edition volume 7 para 1539). Two companies may join to form a new company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another, the amalgamating company loses its entity.34) Thus, on sanction of the scheme of amalgamation, all loans, recoveries, security, interest, financial documents, etc. in favour of IBFSL got transferred to and stood vested in the appellant including the loans given by IBFSL to respondent borrowers, debts recoverable by IBFSL from respondent borrowers in favour of IBFSL, security documents executed by respondent borrowers in favour of IBFSL, etc. On the sanctioning of the scheme, the respondent borrowers became the borrower of the appellant as if the financial assistance was granted by the appellant to the respondent borrowers35) There is a force in the contention by the appellant that the debt with underlying securities is the asset of IBFSL and that IBFSL had right to transfer/assign its assets to any person without seeking consent of the borrower. Such transfer/assignment is recognized and that this Court in the case of Official Liquidator of APS Star Industries has recognised and upheld such an assignment36) In the aforesaid backdrop, the factor which assumes importance and has to be kept in mind is that the appellant is an assignee of a debt through the amalgamation of original lender with the appellant which was effected invoking the statutory provisions of the Companies Act. Once this is kept in mind, there would not be any difference as far as consequences in law are concerned from the case of M.D. Frozen Foods and this case. Therefore, M.D. Frozen Foods case would apply to the facts of this case in all force37) Further, it is too farfetched to argue that just to realise the dues from the respondents, IBFSL and the appellant devised the plan of merger so as to attract the provisions of SARFAESI Act and we are not inclined to accept such a submission. Various judgments which are relied upon by the respondents also would not apply as we neither find it to be a case of the Court creating any legislation or supplying any casus omissus.38) Apart from the factual parity, even legally the arguments of the respondents do not carry any weight. The view taken in M.D. Frozen Foods is that the SARFAESI Act is retroactive in nature.In the process, the Court approved the Full Bench decision of the Orissa High Court in Sarthak Builders Pvt. Ltd., Chinta, Arunodaya Market, Cuttack & Another v. Orissa Rural Development Corporation Limited, Station Square, Bhubaneswar & 5 Ors. ((2014) SCC Online Ori 75) and made the following observations:38…In case of retroactivity, the Parliament takes note of the existing conditions and promulgates the remedial measures to rectify those conditions. In fact the SARFAESI Act, in our view, was to remedy such a position and provide a measure against secured interests. The scheme of the SARFAESI Act, is really to provide a procedural remedy against security interest already created. Therefore, an existing borrower, who had been granted financial assistance was covered under Section 2(f) of the said Act as a borrower. Not only this expression, the definition clauses dealing with debt securities, financial assistance, financial assets, etc., clearly convey the legislative intent that the SARFAESI Act applies to all existing agreements irrespective of the fact whether the lender was a notified financial institution on the date of the execution of the agreement with the borrower or not. The scheme of the SARFAESI Act sets out an expeditious, procedural methodology, enabling the bank to take possession of the property for non-payment of dues, without intervention of the court. The mere fact that a more expeditious remedy is provided under the SARFAESI Act does not mean that it is substantive in character or has created an altogether new right. To accept the argument of the appellants would imply that they have an inherent right to delay the enforcement against the security interest!39. The catena of judgments referred to by learned senior counsel for the appellants on substantive law not being retrospective in operation, unless expressly stated so in the Act would, thus, have no application to the matter in issue, in view of what we have observed aforesaid. On the other hand, as observed by Buckley, L.J. in West v. Gwynne, retrospective operation is one matter and interference with existing rights is another. In that context, it was ruled that the provisions of the Conveyancing of Law and Property Act, 1892 were held applicable to leases containing a covenant, condition or agreement against assigning, under- letting or parting with possession or disposing of land or property leased without license or consent to all leases whether executed before or after the commencement of the Act. Such a construction was held not to make the Act retrospective in operation but merely effected the future existing rights under all leases whether executed before or after the date of that Act. (Discussed in Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil)40. In a similar vein, are the observations made in the case of In re Athlumney. Ex parte Wilson, where the question posed before the Queens Division Bench was whether Section 23 of the Bankruptcy Act, 1890 was retrospective in its operation. In the aforementioned context, Wright, J., speaking for the Bench, illuminatingly opined:Perhaps no rule of construction is more firmly established than this — that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only… it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them…It is said that there is one exception to that rule, namely, that, where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights, and it is suggested here that the alteration made by this section is within that exception… (Emphasis supplied)41. Similarly, the date on which a debt is declared as an NPA would again have no impact. We are, thus, of the view that the provisions of the SARFAESI Act would become applicable quaall debts owing and live when the Act became applicable to the respondent in terms of the parameters contended by learned senior counsel for the respondent and enlisted at serial Nos. i to iv in para 18.It, thus, follows that there is only a procedural change in respect of forum for recovery of debt and no substantive rights are affected39) In view of the aforesaid judgment, argument of the respondents herein predicated on Sections 69 and 69A of the Transfer of Property Act, which weighed with the High Court, is without any substance40) The aforesaid view also gets support from the judgment of this Court in Mardia Chemicals Ltd. & Ors. v. Union of India & Ors. (2004) 4 SCC 311 ) wherein the background and salient feature of the SARFAESI Act have been extensively discussed and analysed and the Court has also highlighted the objective behind enacting such a legislation.43) The aforesaid discussion, thus, leads us to conclude that respondent No.1 would be treated as borrower within the meaning of Section 2(1)(f) of the SARFAESI Act; the arrangement would be classified as security arrangement under Section 2(1) (zb); the agreements created security interest under Section 2(1) (zf); and the appellant became secured creditor within the meaning of Section 2(1)(zd) of SARFAESI Act.41) These sentiments are echoed in the subsequent judgment in the case of United Bank of India v. Satyawati Tondon and Others (2010) 8 SCC 110 ) wherein it was held that the Act is intended to give impetus to industrial development in the country by providing speedy procedure of recovery. On account of lack of infrastructure and manpower, regular courts were not able to cope with the speed in adjudication of recovery cases. In the light of recommendations of the Tiwari Committee, special tribunals came to be set up under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for recovery of huge accumulated NPAs of the bank loans. On the recommendations of the Narasimham Committee and Andhyarujina Committee, SARFAESI Act was enacted to empower banks and financial institutions to take possession of the securities and to sell them without the intervention of the Court.In this regard, reference may be made to the following observations of this Court in the case of Satyawati Tondon:1…With a view to give impetus to the industrial development of the country, the Central and State Governments encouraged the banks and other financial institutions to formulate liberal policies for grant of loans and other financial facilities to those who wanted to set up new industrial units or expand the existing units. Many hundred thousand took advantage of easy financing by the banks and other financial institutions but a large number of them did not repay the amount of loan, etc. Not only this, they instituted frivolous cases and succeeded in persuading the civil courts to pass orders of injunction against the steps taken by banks and financial institutions to recover their dues. Due to lack of adequate infrastructure and non-availability of manpower, the regular courts could not accomplish the task of expeditiously adjudicating the cases instituted by banks and other financial institutions for recovery of their dues. As a result, several hundred crores of public money got blocked in unproductive ventures2. In order to redeem the situation, the Government of India constituted a committee under the Chairmanship of Shri T. Tiwari to examine the legal and other difficulties faced by banks and financial institutions in the recovery of their dues and suggest remedial measures. The Tiwari Committee noted that the existing procedure for recovery was very cumbersome and suggested that special tribunals be set up for recovery of the dues of banks and financial institutions by following a summary procedure. The Tiwari Committee also prepared a draft of the proposed legislation which contained a provision for disposal of cases in three months and conferment of power upon the Recovery Officer for expeditious execution of orders made by adjudicating bodies16. Thus, the Act intends to provide remedy in respect of pre - existing loans. The interpretation that the Act will apply only to future debt transactions defeats the very purpose of law of reducing the non-performing assets. This object is clearly mentioned in the Statement of Objects and Reasons. As noted in the case of Satyaivati Tondon amount of rupees one lakh twenty thousand crores was due to the banks in the year 2001 which had adversely affected the economy of the country. Obviously, the Act is intended to recover the said pre-existing loans by the machinery provided under the SARFAESI Act. The pre-existing loans are not excluded from the purview of the Act. Similarly, the object of notifying the financial institution in question is to enable such institution to avail the provisions of SARFAESI Act in respect of existing loans. This salient object of the Act does not appear to have been noticed in Subash Chandra Panda.42) We may also reproduce the following discussion from that judgment which completely answers most of the arguments raised by the learned counsel for the respondents:17. Further, the settled principle of interpretation that while the statute affecting the substantive rights is presumed to be prospective, a statute changing the forum of remedy and the procedure is retrospective has also not been kept in mind. These principles are the basis of the view taken in the Unique Engineering Works and Pradeep Kumar Gupta. The said considerations are valid and legitimate, supported by ample authority of binding precedents of the Apex Court, to which reference may be made and relevant observations extracted:1. Rafiquennessa v. Lal Bahadur Chetri, AIR 1964 SC 9….. Mr. Chatterjee has relied upon the well-known observations made by Wright, J. in (Re Athlumney ex parte or Wilson (1898) 2 QBD 547) when the learned Judge said that it is a general rule that when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. He added that there was one exception to that rule, namely that where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights. In order to make the statement of the law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retrospective operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision construed in the context where it occurs. In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur.16) In M.D. Frozen Foods the appellants had borrowed monies for their business from the respondents against security of immovable properties by creating an equitable mortgage. Loan agreement contained an arbitration clause. Since the appellant defaulted in making the payment and the account became NPA, the respondent invoked the arbitration clause on November 16, 2016. However, three months before this invocation, a notification was issued on August 05, 2016 specifying certain Non-Financial Banking Companies (NFBCs) covered under clause (f) of Section 45-I of the RBI Act, with assets of more than Rs. 500 crores and above, as financial institutions and directing that the provisions of SARFAESI Act shall apply to such financial institutions with the exceptions of provisions of Sections 13 to 19 of that Act. Sections 13 to 19 were made applicable, as per the notification, only to such security interest which is obtained for securing repayment of secured debt with principal amount of Rs.1 crore and above. The respondent was specifically covered by the said notification which was issued in exercise of powers conferred under sub-clause (iv) of clause (m) of sub-section (1) of Section 2 read with Section 31A of the SARFAESI Act. In view of the aforesaid notification, the respondent issued a notice under Section 13(2) of SARFAESI Act on November 24, 2016 for one of the seven properties mortgaged to it against the aforesaid loan which was advanced to the appellants.17) Having regard to the aforesaid facts in M.D. Frozen Foods, the Court formulated following three questions which had arisen for consideration:A. Whether the arbitration proceedings initiated by the respondent can be carried on along with the SARFAESI proceedings simultaneously?B. Whether resort can be had to Section 13 of the SARFAESI Act in respect of debts which have arisen out of a loan agreement/mortgage created prior to the application of the SARFAESI Act to the respondent?C. A linked question to question (ii), whether the lender can invoke the SARFAESI Act provision where its notification as financial institution under Section 2(1) (m) has been issued after the account became an NPA under Section 2(1)(o) of the said Act?These questions amply demonstrate that the instant case is virtually on the same footing.18) Insofar as question A is concerned, the Court categorically held that merely because remedy under the Arbitration Act was invoked was no ground to debar the respondent from taking recourse to the SARFAESI Act. The discussion from that judgment is reproduced below:26. A claim by a bank or a financial institution, before the specified laws came into force, would ordinarily have been filed in the Civil Court having the pecuniary jurisdiction. The setting up of the Debt Recovery Tribunal under the RDDB Act resulted in this specialised Tribunal entertaining such claims by the banks and financial institutions. In fact, suits from the civil jurisdiction were transferred to the Debt Recovery Tribunal. The Tribunal was, thus, an alternative to a Civil Court recovery proceedings27. On the SARFAESI Act being brought into force seeking to recover debts against security interest, a question was raised whether parallel proceedings could go on under the RDDB Act and the SARFAESI Act. This issue was clearly answered in favour of such simultaneous proceedings in Transcore v. Union of India. A later judgment in Mathew Varghese v. M. Amritha Kumar also discussed this issue in the following terms:45. A close reading of Section 37 shows that the provisions of the SARFAESI Act or the Rules framed thereunder will be in addition to the provisions of the RDDB Act. Section 35 of the SARFAESI Act states that the provisions of the SARFAESI Act will have overriding effect notwithstanding anything inconsistent contained in any other law for the time being in force. Therefore, reading Sections 35 and 37 together, it will have to be held that in the event of any of the provisions of the RDDB Act not being inconsistent with the provisions of the SARFAESI Act, the application of both the Acts, namely, the SARFAESI Act and the RDDB Act, would be complementary to each other. In this context, reliance can be placed upon the decision in Transcore v. Union of India [(2008) 1 SCC 125 : (2008) 1 SCC (Civ) 116]. In para 64 it is stated as under after referring to Section 37 of the SARFAESI Act: (SCC p. 162)64. … According to American Jurisprudence, 2d, Vol. 25, p. 652, if in truth there is only one remedy, then the doctrine of election does not apply. In the present case, as stated above, the NPA Act is an additional remedy to the DRT Act. Together they constitute one remedy and, therefore, the doctrine of election does not apply. Even according to Snells Principles of Equity (31st Edn., p. 119), the doctrine of election of remedies is applicable only when there are two or more co-existent remedies available to the litigants at the time of election which are repugnant and inconsistent. In any event, there is no repugnancy nor inconsistency between the two remedies, therefore, the doctrine of election has no application.46. A reading of Section 37 discloses that the application of the SARFAESI Act will be in addition to and not in derogation of the provisions of the RDDB Act. In other words, it will not in any way nullify or annul or impair the effect of the provisions of the RDDB Act. We are also fortified by our above statement of law as the heading of the said section also makes the position clear that application of other laws are not barred. The effect of Section 37 would, therefore, be that in addition to the provisions contained under the SARFAESI Act, in respect of proceedings initiated under the said Act, it will be in order for a party to fall back upon the provisions of the other Acts mentioned in Section 37, namely, the Companies Act, 1956, the Securities Contracts (Regulation) Act, 1956, the Securities and Exchange Board of India Act, 1992, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, or any other law for the time being in force28. These observations, thus, leave no manner of doubt and the issue is no more res integra, especially keeping in mind the provisions of Sections 35 and 37 of the SARFAESI Act, which read as under:35. The provisions of this Act to override other laws. - The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. … .… .… .…37. Application of other laws not barred. - The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force29. The aforesaid two Acts are, thus, complimentary to each other and it is not a case of election of remedy33. SARFAESI proceedings are in the nature of enforcement proceedings, while arbitration is an adjudicatory process. In the event that the secured assets are insufficient to satisfy the debts, the secured creditor can proceed against other assets in execution against the debtor, after determination of the pending outstanding amount by a competent forum34. We are, thus, unequivocally of the view that the judgments of the Full Bench of the Orissa High Court in Sarthak Builders Pvt. Ltd. v. Orissa Rural Development Corporation Limited, the Full Bench of the Delhi High Court in HDFC Bank Limited v. Satpal Singh Bakshi (supra) and the Division Bench of the Allahabad High Court in Pradeep Kumar Gupta v. State of U.P. lay down the correct proposition of law and the view expressed by the Andhra Pradesh High Court in Deccan Chronicles Holdings Limited v. Union of India following the overruled decision of the Orissa High Court in Subash Chandra Panda v. State of Orissa does not set forth the correct position in law. SARFAESI proceedings and arbitration proceedings, thus, can go hand in hand.19) Insofar as questions B and C are concerned, the Court again referred to the conflicting opinion of different High Courts and after discussion held that the SARFAESI Act was retroactive in nature and, therefore, once this Act came into force, the respondent in the said case had right to invoke the provisions of the Act even if loan agreement was entered into and mortgage created prior to the coming into force the SARFAESI Act. Paragraphs 36 to 38 of the judgment need to be reproduced in this behalf, which are to the following effect:36. The SARFAESI Act was brought into force to solve the problem of recovery of large debts in NPAs. Thus, the very rationale for the said Act to be brought into force was to provide an expeditious procedure where there was a security interest. It certainly did not apply retrospectively from the date when it came into force. The question is whether, the Act being applicable to the respondent at a subsequent date and thereby allowing the respondent to utilize its provisions with regards to a past debt, would make any difference to this principle. We are of the view that the answer to the same is in the negative37. The Act applies to all the claims which would be alive at the time when it was brought into force. Thus, qua the respondent or other NBFCs, it would be applicable similarly from the date when it was so made applicable to them38. The Full Bench of the Orissa High Court in Sarthak Builders Pvt. Ltd. v. Orissa Rural Development Corporation Limited (supra) has, in fact, succinctly sets out this aspect. No doubt, till the respondent was not a financial institution within the meaning of Section 2(1)(m)(iv) of the SARFAESI Act, it was not a secured creditor as defined under Section 2(1)(zd) of the SARFAESI Act and, thus, could not invoke the provisions of the SARFAESI Act. However, the right to proceed under the SARFAESI Act accrued once the Notification was issued. The Full Bench referred to a Division Bench judgment of the Uttarakhand High Court in Unique Engineering Works v. Union of India which dealt with the issue of retrospectivity and retroactivity. In case of retroactivity, the Parliament takes note of the existing conditions and promulgates the remedial measures to rectify those conditions. In fact the SARFAESI Act, in our view, was to remedy such a position and provide a measure against secured interests. The scheme of the SARFAESI Act, is really to provide a procedural remedy against security interest already created. Therefore, an existing borrower, who had been granted financial assistance was covered under Section 2(f) of the said Act as a borrower. Not only this expression, the definition clauses dealing with debt securities, financial assistance, financial assets, etc., clearly convey the legislative intent that the SARFAESI Act applies to all existing agreements irrespective of the fact whether the lender was a notified financial institution on the date of the execution of the agreement with the borrower or not. The scheme of the SARFAESI Act sets out an expeditious, procedural methodology, enabling the bank to take possession of the property for non- payment of dues, without intervention of the court. The mere fact that a more expeditious remedy is provided under the SARFAESI Act does not mean that it is substantive in character or has created an altogether new right. To accept the argument of the appellants would imply that they have an inherent right to delay the enforcement against the security interest!

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

DR. BABLOO SINGH AND ORS Vs. STATE OF U.P. AND ORS

371 carry forward vacancies which remained unfilled is maintained.(ii) The Director, Higher Education shall before declaring the result against 371 carry forward vacancies shall re-determine the number of vacancies against which select list be issued by applying reservation and roster subject-wise and college-wise. The declaration shall be confined only to those vacancies which were carry forward vacancies and were advertised earlier by advertisement No.29 and could not be filled-up. The Director may determine on the basis of records available with him or may call for any other reports or record from management or any other competent authority. The candidates whose names are included in the select list shall be given option to give fresh choice of the colleges as required by the second proviso to Section 12(4) which has become necessary in view of quashing the advertisement against 471 vacancies and direction issued by this order to the Director to redetermine the correct number of reserved vacancies out of carry forward vacancies against which select list is to be issued. The Director shall complete the aforesaid exercise within three months from the date of production of certified copy of this order and thereafter take appropriate steps for issuing recommendation for appointment in accordance with U.P. Higher Education Services Commission Act, 1980.(iii) The Director shall take steps for advertising 471 vacancies which were covered by advertisement No.37 applying the rules of reservation and roster as per the above directions by taking necessary steps at an early date.(iv) The rules of reservation and roster shall be applied college-wise and subject-wise when there are plurality of posts as indicated above.? 7. The aforesaid view taken by the Division Bench in Dr. Vishwajeet Singh?s case (supra) was challenged before this Court. After grant of special leave to appeal, Civil Appeal Nos.6385-6396 of 2010 were dismissed by this Court on 19.01.2017 in following terms:?We have heard learned counsel for the parties at length.We are in agreement with the view taken in the impugned judgment. The judgment of the High Court is accordingly affirmed.The civil appeals are accordingly dismissed. No costs.Pending applications, if any, shall also stand disposed of.? 8. It appears that in Dr. Archana Mishra and others. v. State of U.P. and others. (Writ Petition No.51212 of 2010), a doubt was raised as to the correctness of the decision of the Division Bench in Dr. Vishwajeet Singh?s case (supra) as well as the decision of the Full Bench in Heera Lal?s case (supra) and, therefore, the matters stood referred to the bench of five learned Judges of the High Court to consider five questions as referred hereinabove.9. In view of the fact that the decision of the Division Bench in Dr. Vishwajeet Singh?s case (supra) was affirmed by this Court, the bench of five Judges considered whether the reference could be entertained by that bench. In the light of the law laid down by this Court in Kunhayammed & others v. State of Kerala and another (2006) 6 SCC 359 and S. Shanmugavel Nadar v. State of Tamil Nadu (2002) 8 SCC 361 the bench observed:?… … … The Supreme Court, while dismissing the appeal has clearly observed that it is in agreement with the view taken in Dr. Vishwajeet Singh and, accordingly, affirmed the same. There is thus a positive and unambiguous expression of approval of the said decision and, therefore, it cannot be said that the order of the High Court did not merge into the order of the supreme Court. Insofar as the case before us is concerned, it is clear from the order that the Supreme Court not only dismissed the Civil Appeals after granting leave but while doing so, clearly observed that it was in agreement with the view taken in the impugned judgment and, accordingly affirmed the judgment of this Court.xxx xxx xxxOur unequivocal answer therefore to the issue framed would be that the decision in Dr. Vishwajeet Singh stood duly affirmed by the Supreme Court. The terms of the order dated 19.01.2017 clearly establish that the said decision and the view taken by the Division Bench therein was specifically approved. The said decision consequently merged in the order of the Supreme Court. The order of the Supreme Court came to be rendered after grant of leave. Once the decision of this Court stood merged in the order of the Supreme Court, it would not be legally permissible for this Full Bench to consider the correctness or otherwise of Dr. Vishwajeet Singh. … … …? 10. The bench of five learned Judges found itself to be bound by the decision of this Court in Civil Appeal Nos.6385-6386 of 2010 decided on 19.01.2017 and as such held that there was no occasion to rule on the reference. The reference was accordingly turned down.11. Said order turning down the reference is presently under challenge.12. It is accepted by the learned counsel appearing for various petitioners that in Civil Appeal Nos.6385-6386 of 2010 questions were specifically raised regarding clubbing of all vacancies in various colleges under different universities in the State. It is, thus, accepted that the discussion and the reasoning of the Division Bench in Dr. Vishwajeet Singh?s case (supra) touching upon said issues including the applicability of the provisions of UP Act No.4 of 1994 definitely arose for consideration before this Court. However, an attempt has been made by the learned counsel to submit that certain aspects were not considered by the Division Bench in Dr. Vishwajeet Singh?s case (supra) and thus could not arise in Civil Appeals before this Court and the matter may require fuller consideration.13. We have anxiously considered the submissions and are unable to accept the contentions raised by the learned counsel. In our view, the questions as are sought to be raised now had already been considered in Dr. Vishwajeet Singh?s case (supra) which view was approved in terms by this Court. In the circumstances, the larger bench of five Judges of the High Court was right and justified in turning down the reference.

0[ds]12. It is accepted by the learned counsel appearing for various petitioners that in Civil Appeal Nos.6385-6386 of 2010 questions were specifically raised regarding clubbing of all vacancies in various colleges under different universities in the State. It is, thus, accepted that the discussion and the reasoning of the Division Bench in Dr. Vishwajeet Singh?s case (supra) touching upon said issues including the applicability of the provisions of UP Act No.4 of 1994 definitely arose for consideration before this Court. However, an attempt has been made by the learned counsel to submit that certain aspects were not considered by the Division Bench in Dr. Vishwajeet Singh?s case (supra) and thus could not arise in Civil Appeals before this Court and the matter may require fuller consideration13. We have anxiously considered the submissions and are unable to accept the contentions raised by the learned counsel. In our view, the questions as are sought to be raised now had already been considered in Dr. Vishwajeet Singh?s case (supra) which view was approved in terms by this Court. In the circumstances, the larger bench of five Judges of the High Court was right and justified in turning down the reference.

### 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: 371 carry forward vacancies which remained unfilled is maintained.(ii) The Director, Higher Education shall before declaring the result against 371 carry forward vacancies shall re-determine the number of vacancies against which select list be issued by applying reservation and roster subject-wise and college-wise. The declaration shall be confined only to those vacancies which were carry forward vacancies and were advertised earlier by advertisement No.29 and could not be filled-up. The Director may determine on the basis of records available with him or may call for any other reports or record from management or any other competent authority. The candidates whose names are included in the select list shall be given option to give fresh choice of the colleges as required by the second proviso to Section 12(4) which has become necessary in view of quashing the advertisement against 471 vacancies and direction issued by this order to the Director to redetermine the correct number of reserved vacancies out of carry forward vacancies against which select list is to be issued. The Director shall complete the aforesaid exercise within three months from the date of production of certified copy of this order and thereafter take appropriate steps for issuing recommendation for appointment in accordance with U.P. Higher Education Services Commission Act, 1980.(iii) The Director shall take steps for advertising 471 vacancies which were covered by advertisement No.37 applying the rules of reservation and roster as per the above directions by taking necessary steps at an early date.(iv) The rules of reservation and roster shall be applied college-wise and subject-wise when there are plurality of posts as indicated above.? 7. The aforesaid view taken by the Division Bench in Dr. Vishwajeet Singh?s case (supra) was challenged before this Court. After grant of special leave to appeal, Civil Appeal Nos.6385-6396 of 2010 were dismissed by this Court on 19.01.2017 in following terms:?We have heard learned counsel for the parties at length.We are in agreement with the view taken in the impugned judgment. The judgment of the High Court is accordingly affirmed.The civil appeals are accordingly dismissed. No costs.Pending applications, if any, shall also stand disposed of.? 8. It appears that in Dr. Archana Mishra and others. v. State of U.P. and others. (Writ Petition No.51212 of 2010), a doubt was raised as to the correctness of the decision of the Division Bench in Dr. Vishwajeet Singh?s case (supra) as well as the decision of the Full Bench in Heera Lal?s case (supra) and, therefore, the matters stood referred to the bench of five learned Judges of the High Court to consider five questions as referred hereinabove.9. In view of the fact that the decision of the Division Bench in Dr. Vishwajeet Singh?s case (supra) was affirmed by this Court, the bench of five Judges considered whether the reference could be entertained by that bench. In the light of the law laid down by this Court in Kunhayammed & others v. State of Kerala and another (2006) 6 SCC 359 and S. Shanmugavel Nadar v. State of Tamil Nadu (2002) 8 SCC 361 the bench observed:?… … … The Supreme Court, while dismissing the appeal has clearly observed that it is in agreement with the view taken in Dr. Vishwajeet Singh and, accordingly, affirmed the same. There is thus a positive and unambiguous expression of approval of the said decision and, therefore, it cannot be said that the order of the High Court did not merge into the order of the supreme Court. Insofar as the case before us is concerned, it is clear from the order that the Supreme Court not only dismissed the Civil Appeals after granting leave but while doing so, clearly observed that it was in agreement with the view taken in the impugned judgment and, accordingly affirmed the judgment of this Court.xxx xxx xxxOur unequivocal answer therefore to the issue framed would be that the decision in Dr. Vishwajeet Singh stood duly affirmed by the Supreme Court. The terms of the order dated 19.01.2017 clearly establish that the said decision and the view taken by the Division Bench therein was specifically approved. The said decision consequently merged in the order of the Supreme Court. The order of the Supreme Court came to be rendered after grant of leave. Once the decision of this Court stood merged in the order of the Supreme Court, it would not be legally permissible for this Full Bench to consider the correctness or otherwise of Dr. Vishwajeet Singh. … … …? 10. The bench of five learned Judges found itself to be bound by the decision of this Court in Civil Appeal Nos.6385-6386 of 2010 decided on 19.01.2017 and as such held that there was no occasion to rule on the reference. The reference was accordingly turned down.11. Said order turning down the reference is presently under challenge.12. It is accepted by the learned counsel appearing for various petitioners that in Civil Appeal Nos.6385-6386 of 2010 questions were specifically raised regarding clubbing of all vacancies in various colleges under different universities in the State. It is, thus, accepted that the discussion and the reasoning of the Division Bench in Dr. Vishwajeet Singh?s case (supra) touching upon said issues including the applicability of the provisions of UP Act No.4 of 1994 definitely arose for consideration before this Court. However, an attempt has been made by the learned counsel to submit that certain aspects were not considered by the Division Bench in Dr. Vishwajeet Singh?s case (supra) and thus could not arise in Civil Appeals before this Court and the matter may require fuller consideration.13. We have anxiously considered the submissions and are unable to accept the contentions raised by the learned counsel. In our view, the questions as are sought to be raised now had already been considered in Dr. Vishwajeet Singh?s case (supra) which view was approved in terms by this Court. In the circumstances, the larger bench of five Judges of the High Court was right and justified in turning down the reference. ### Response: 0

M/S. Patel Aluminium Private Limited Vs. Maharashtra Shramik Sena & Another

As regards the finding of the Tribunal that there was a functional integrality between different units, who were sister concerns of the appellant and running in the same compound, counsel for the appellant submitted that all the units were private limited companies and being so, each was a different person in the eye of law. Therefore, the Tribunal could not have held that there was functional and financial integrality and the finding was perverse. The Tribunal has in its judgment noted that different units were located in the same compound and services of workmen were transferable from the appellant company to other concerns and vice versa. Transferability from and to different units is an important ingredient which certainly can be taken into consideration while deciding whether there existed functional integrality between the different units. The Tribunal has not taken into consideration any irrelevant fact while reaching the finding of functional integrality and the finding is also based upon the evidence before it. Appreciation of evidence was within the jurisdiction of the Tribunal and we do not find any perversity in the appreciation of the evidence. It is settled principle of law that in exercise of writ jurisdiction under Article 226 or 227 of the Constitution of India, a finding of fact recorded by a subordinate court or a tribunal based on proper appreciation of evidence cannot be set aside on reappreciation of evidence by the High Court unless the finding is based on no evidence or an evidence which, in law, is not admissible or is otherwise perverse. Learned Single Judge did not notice any perversity in the finding of fact recorded by the Tribunal about functional financial integrality and nothing was pointed out to us to show that the finding was in any way perverse.6. However, at the insistence of the learned counsel for the appellant and in order to satisfy our conscience, we have gone through the balance sheets and profit and loss accounts, copies of which are at pages 153 onwards of the compilation. The Annual Report of the appellant for the year 1993-94 contains the figures of profit and loss for that year as well as the comparative figures of the previous year. Profit and loss statement discloses that the appellant company earned gross profit of Rs.42 lakhs in the previous year, i.e. in the year ending 31st March 1993 and gross profit of Rs.17.36 lakhs for the year ending 31st March 1994. The said gross profit was arrived at after deducting from the earnings, cost of raw materials, cost of stores & spares, processing & conversion charges, central excise duty, expenses of power & fuel, and machinery hire charges as also wages and allowances including bonus. From this gross profit, further deduction was made for salaries and other expenses. We fail to see how salaries could be again deducted from the gross profit which was arrived at after deducting wages and allowances including bonus for arriving at net profit. In any event, the burden of proving that additional expenses were incurred for salaries other than wages was clearly on the appellant company which it had not discharged. Similarly, the profit and loss account for the year ending 31st March 1995 shows that the appellant company earned a gross profit Rs.10.86 lakhs. A loss of Rs.39.43 lakhs is shown to have been incurred in the profit and loss account for the year ending 31st March 1996. However, it may be noted that an amount of Rs.11.45 lakhs paid as retrenchment compensation to the workmen and a further sum of Rs.11.45 lakhs paid as expenses of voluntary retirement compensation paid to the workmen is deducted from the income for arriving at the amount of loss. Amount of voluntary retirement and retrenchment compensation paid to the workmen would reduce the expenditure which the appellant company would have incurred in future years had the services of the workmen not been severed under the VRS. The expenses of voluntary retirement compensation and retrenchment compensation paid to the workmen would, therefore, reduce the future stream of expenses which the appellant would have been required to incur over several years in future. Expenses of voluntary retirement and retrenchment compensation therefore are required to be amortized over a period of time or over the next few years to arrive at a true and correct financial position of a company. Loss shown on account of deduction of entire expenses of VRS in the year in which they were incurred cannot, in our opinion, be considered to represent the true financial position of the company. In any event, the appellant ought to have explained in its evidence the necessity of deducting all the expenses of VRS in the financial year in which the expenses were incurred if at all it wanted to deduct all the expenses in that financial year. This was not explained by the appellant. The appellant examined Shri Nayan ohanbhai Patel, Executive Director of the appellant company, but did not examine any person from its accounts department to prove the profit and loss account and various entries therein. When questions were sought to be put to Shri Patel regarding the entries in the balance sheet and profit and loss account, he could not explain the entries therein and pleaded lack of knowledge. He stated: "It is correct to say that I am unable to explain the queries asked regarding the balance sheet and profit and loss account." Thus the balance sheets and profit and loss statements were not legally proved and for three of the four years for which statements were produced, they showed that the appellant was making profits. 7. We have referred to the profit and loss statements and the cross examination of Shri Patel regarding the balance sheet and profit and loss statements not with a view of reappreciation of evidence, but only for satisfying our conscience that the findings reached by the Tribunal are not in any way perverse and are possible findings based on appreciation of evidence.

1[ds]The Tribunal has in its judgment noted that different units were located in the same compound and services of workmen were transferable from the appellant company to other concerns and vice versa. Transferability from and to different units is an important ingredient which certainly can be taken into consideration while deciding whether there existed functional integrality between the different units. The Tribunal has not taken into consideration any irrelevant fact while reaching the finding of functional integrality and the finding is also based upon the evidence before it. Appreciation of evidence was within the jurisdiction of the Tribunal and we do not find any perversity in the appreciation of the evidence. It is settled principle of law that in exercise of writ jurisdiction under Article 226 or 227 of the Constitution of India, a finding of fact recorded by a subordinate court or a tribunal based on proper appreciation of evidence cannot be set aside on reappreciation of evidence by the High Court unless the finding is based on no evidence or an evidence which, in law, is not admissible or is otherwise perverse. Learned Single Judge did not notice any perversity in the finding of fact recorded by the Tribunal about functional financial integrality and nothing was pointed out to us to show that the finding was in any waythe insistence of the learned counsel for the appellant and in order to satisfy our conscience, we have gone through the balance sheets and profit and loss accounts, copies of which are at pages 153 onwards of the compilation. The Annual Report of the appellant for the yearcontains the figures of profit and loss for that year as well as the comparative figures of the previous year. Profit and loss statement discloses that the appellant company earned gross profit of Rs.42 lakhs in the previous year, i.e. in the year ending 31st March 1993 and gross profit of Rs.17.36 lakhs for the year ending 31st March 1994. The said gross profit was arrived at after deducting from the earnings, cost of raw materials, cost of storesconversion charges, central excise duty, expenses of powerfuel, and machinery hire charges as also wages and allowances including bonus. From this gross profit, further deduction was made for salaries and other expenses. We fail to see how salaries could be again deducted from the gross profit which was arrived at after deducting wages and allowances including bonus for arriving at net profit. In any event, the burden of proving that additional expenses were incurred for salaries other than wages was clearly on the appellant company which it had not discharged. Similarly, the profit and loss account for the year ending 31st March 1995 shows that the appellant company earned a gross profit Rs.10.86 lakhs. A loss of Rs.39.43 lakhs is shown to have been incurred in the profit and loss account for the year ending 31st March 1996. However, it may be noted that an amount of Rs.11.45 lakhs paid as retrenchment compensation to the workmen and a further sum of Rs.11.45 lakhs paid as expenses of voluntary retirement compensation paid to the workmen is deducted from the income for arriving at the amount of loss. Amount of voluntary retirement and retrenchment compensation paid to the workmen would reduce the expenditure which the appellant company would have incurred in future years had the services of the workmen not been severed under the VRS. The expenses of voluntary retirement compensation and retrenchment compensation paid to the workmen would, therefore, reduce the future stream of expenses which the appellant would have been required to incur over several years in future. Expenses of voluntary retirement and retrenchment compensation therefore are required to be amortized over a period of time or over the next few years to arrive at a true and correct financial position of a company. Loss shown on account of deduction of entire expenses of VRS in the year in which they were incurred cannot, in our opinion, be considered to represent the true financial position of the company. In any event, the appellant ought to have explained in its evidence the necessity of deducting all the expenses of VRS in the financial year in which the expenses were incurred if at all it wanted to deduct all the expenses in that financial year. This was not explained by the appellant. The appellant examined Shri Nayan ohanbhai Patel, Executive Director of the appellant company, but did not examine any person from its accounts department to prove the profit and loss account and various entries therein. When questions were sought to be put to Shri Patel regarding the entries in the balance sheet and profit and loss account, he could not explain the entries therein and pleaded lack of knowledge. Heis correct to say that I am unable to explain the queries asked regarding the balance sheet and profit and lossthe balance sheets and profit and loss statements were not legally proved and for three of the four years for which statements were produced, they showed that the appellant was making profits.We have referred to the profit and loss statements and the cross examination of Shri Patel regarding the balance sheet and profit and loss statements not with a view of reappreciation of evidence, but only for satisfying our conscience that the findings reached by the Tribunal are not in any way perverse and are possible findings based on appreciation of evidence.

### Instruction: Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)? ### Input: As regards the finding of the Tribunal that there was a functional integrality between different units, who were sister concerns of the appellant and running in the same compound, counsel for the appellant submitted that all the units were private limited companies and being so, each was a different person in the eye of law. Therefore, the Tribunal could not have held that there was functional and financial integrality and the finding was perverse. The Tribunal has in its judgment noted that different units were located in the same compound and services of workmen were transferable from the appellant company to other concerns and vice versa. Transferability from and to different units is an important ingredient which certainly can be taken into consideration while deciding whether there existed functional integrality between the different units. The Tribunal has not taken into consideration any irrelevant fact while reaching the finding of functional integrality and the finding is also based upon the evidence before it. Appreciation of evidence was within the jurisdiction of the Tribunal and we do not find any perversity in the appreciation of the evidence. It is settled principle of law that in exercise of writ jurisdiction under Article 226 or 227 of the Constitution of India, a finding of fact recorded by a subordinate court or a tribunal based on proper appreciation of evidence cannot be set aside on reappreciation of evidence by the High Court unless the finding is based on no evidence or an evidence which, in law, is not admissible or is otherwise perverse. Learned Single Judge did not notice any perversity in the finding of fact recorded by the Tribunal about functional financial integrality and nothing was pointed out to us to show that the finding was in any way perverse.6. However, at the insistence of the learned counsel for the appellant and in order to satisfy our conscience, we have gone through the balance sheets and profit and loss accounts, copies of which are at pages 153 onwards of the compilation. The Annual Report of the appellant for the year 1993-94 contains the figures of profit and loss for that year as well as the comparative figures of the previous year. Profit and loss statement discloses that the appellant company earned gross profit of Rs.42 lakhs in the previous year, i.e. in the year ending 31st March 1993 and gross profit of Rs.17.36 lakhs for the year ending 31st March 1994. The said gross profit was arrived at after deducting from the earnings, cost of raw materials, cost of stores & spares, processing & conversion charges, central excise duty, expenses of power & fuel, and machinery hire charges as also wages and allowances including bonus. From this gross profit, further deduction was made for salaries and other expenses. We fail to see how salaries could be again deducted from the gross profit which was arrived at after deducting wages and allowances including bonus for arriving at net profit. In any event, the burden of proving that additional expenses were incurred for salaries other than wages was clearly on the appellant company which it had not discharged. Similarly, the profit and loss account for the year ending 31st March 1995 shows that the appellant company earned a gross profit Rs.10.86 lakhs. A loss of Rs.39.43 lakhs is shown to have been incurred in the profit and loss account for the year ending 31st March 1996. However, it may be noted that an amount of Rs.11.45 lakhs paid as retrenchment compensation to the workmen and a further sum of Rs.11.45 lakhs paid as expenses of voluntary retirement compensation paid to the workmen is deducted from the income for arriving at the amount of loss. Amount of voluntary retirement and retrenchment compensation paid to the workmen would reduce the expenditure which the appellant company would have incurred in future years had the services of the workmen not been severed under the VRS. The expenses of voluntary retirement compensation and retrenchment compensation paid to the workmen would, therefore, reduce the future stream of expenses which the appellant would have been required to incur over several years in future. Expenses of voluntary retirement and retrenchment compensation therefore are required to be amortized over a period of time or over the next few years to arrive at a true and correct financial position of a company. Loss shown on account of deduction of entire expenses of VRS in the year in which they were incurred cannot, in our opinion, be considered to represent the true financial position of the company. In any event, the appellant ought to have explained in its evidence the necessity of deducting all the expenses of VRS in the financial year in which the expenses were incurred if at all it wanted to deduct all the expenses in that financial year. This was not explained by the appellant. The appellant examined Shri Nayan ohanbhai Patel, Executive Director of the appellant company, but did not examine any person from its accounts department to prove the profit and loss account and various entries therein. When questions were sought to be put to Shri Patel regarding the entries in the balance sheet and profit and loss account, he could not explain the entries therein and pleaded lack of knowledge. He stated: "It is correct to say that I am unable to explain the queries asked regarding the balance sheet and profit and loss account." Thus the balance sheets and profit and loss statements were not legally proved and for three of the four years for which statements were produced, they showed that the appellant was making profits. 7. We have referred to the profit and loss statements and the cross examination of Shri Patel regarding the balance sheet and profit and loss statements not with a view of reappreciation of evidence, but only for satisfying our conscience that the findings reached by the Tribunal are not in any way perverse and are possible findings based on appreciation of evidence. ### Response: 1

Nagaraja Rao Vs. C.K. Mamad Keyi

Control granting eviction was restored.3. The sole question involved in this appeal is whether the lease Ex. A-1 is a composite lease in respect of the land and the building thereon or whether it contains two independent transactions, one in respect of the building in question and the other for the remaining properties and the trees.4. The relevant portion of the lease Ex. A-1, dated, February 26, 1944, is reproduced below :"The Paramba and the upstair building described in the Schedule belonging to Jenm rights to the Tarwad of executant No. 1 and which are in the possession of executant No. 2 as per the registered Marupattam Deed No. 557 of 1940 of the Sub-Registrars Office, Cannanore, dated 15th Kumbam 1115 corresponding to 27th February, 1940, for taking the usufructs of the coconut trees, jack trees, etc., in the Paramba and the fixtures including the upstair building for rent are hereby taken on lease of a period of 6 years from you, the executant No. 1 by me, the executant No. 2 for taking only the usufructs from the coconut trees and jack trees, etc., in the abovementioned Paramba, improvements including the upstair building for rent and to construct buildings by the side of the road for the purpose of running business and is given on lease by executant No. 1 to executant No. 2 for a period of six years. Therefore it is agreed that deducting an amount of rupees 25 as mentioned below out of the total amount of Rs. 175/- being Pattam of Rs. 75/- per year fixed for taking the usufructs from the properties and Rs. 100/- per year as rent for the building, the monthly instalment of Rs. 12-8-0 shall be paid to executant No. 1 at Tellicherry by executant No. 2 on the due date every month and receipt obtained, that even after the date of expiry till the recovery of possession the Pattam and rent at the above rate shall be paid by executant No. 2 to executant No. 1 and that till that date the Paramba shall be tilled, improvements shall be safeguarded and buildings repaired by executant No. 2 on behalf of the executant No. 1 from out of the above deducted sum of Rs. 25/-. It is decided that either in case of failure to pay the Pattam and rent in any instalment and thereby balance is caused by executant No. 2 to executant No. 1 or executant No. 2 causes loss by cutting any trees or causes damage to the buildings or causes loss by dismantling, executant No. 1 has the right to recover the loss with balance of Pattam and rent with interest at rupee one per Rs. 100/- per months and to recover possession from executant No. 2 by executant No. 1 before the expiry of the stipulated period. It is decided that executant No. 2 shall on the expiry of the stipulated period. It is decided that executant No. 2 shall on the expiry of the stipulated period of this lease surrender the properties in the Schedule with everything in that including the buildings to executant No. 1 receiving half the approximate value of the buildings built by the said of the road for the purpose of doing business from executant No. 1 that I, executant No. 2 have no right for more than the half of the value of that, in case executant No. 2 demands more than half of the value he shall surrender the properties dismantling at his cost the buildings built by him. The executant No. 2 had no right or authority to make improvements in the Paramba; nor has the right to build structures in the property except on the said of the road as agreed to above."Section 2(1) of the Kerala Buildings (Lease and Rent Control) Act, 1959 (Act 16 of 1959), states :"In this Act, unless the context otherwise requires, -(1) building means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and incudes -(a) the garden, grounds, walls, tanks and structures, if any, appurtenant to such building, but or part of such building or hut, and let or to be let along with such building or hut;(b) any furniture supplied or any fittings affixed by the land-lord for use in such building or hut or part of a building or hut;but does not include a room in a hotel or boarding house."5. It was argued on behalf of the appellant that the terms embodied in the lease-deed clearly show that it contains only one single transaction in respect of the Paramba and the buildings namely a composite leas which fell outside the ambit of the Act. We are unable to accept this argument. In the opinion of this Court the lease consists of two separate transactions, one for the building and the other for the trees. The rent of Rs. 75/- per year is fixed for taking the usufruct from the trees and Rs. 100/- per year as rent for the building. The building is also described in the Schedule to the lease-deed and is identifiable, apart from the compound in which the trees are located. There is, therefore, separate identity of the land and the buildings. It is not possible to accept the argument on behalf of the appellants that the lease is a composite transaction of building and the trees which cannot be separated. It is true that there a provision in the lease that a sum of Rs. 25/- may be spent by the lessee for repair of the buildings and for tilling the Paramba. There is also another provision in the lease that a charge for arrears of rent of the building and also of the Paramba is created on the lease-hold interest in the buildings. But in our opinion these provisions cannot be construed as making the lease a composite and indivisible transaction for both the buildings and the Paramba.

0[ds]5. It was argued on behalf of the appellant that the terms embodied in they show that it contains only one single transaction in respect of the Paramba and the buildings namely a composite leas which fell outside the ambit of the Act.We are unable to accept this argument. In the opinion of this Court the lease consists of two separate transactions, one for the building and the other for the trees. The rent of Rs. 75/per year is fixed for taking the usufruct from the trees and Rs. 100/per year as rent for the building. The building is also described in the Schedule to theand is identifiable, apart from the compound in which the trees are located. There is, therefore, separate identity of the land and the buildings. It is not possible to accept the argument on behalf of the appellants that the lease is a composite transaction of building and the trees which cannot be separated. It is true that there a provision in the lease that a sum of Rs. 25/may be spent by the lessee for repair of the buildings and for tilling the Paramba. There is also another provision in the lease that a charge for arrears of rent of the building and also of the Paramba is created on theinterest in the buildings. But in our opinion these provisions cannot be construed as making the lease a composite and indivisible transaction for both the buildings and the Paramba.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: Control granting eviction was restored.3. The sole question involved in this appeal is whether the lease Ex. A-1 is a composite lease in respect of the land and the building thereon or whether it contains two independent transactions, one in respect of the building in question and the other for the remaining properties and the trees.4. The relevant portion of the lease Ex. A-1, dated, February 26, 1944, is reproduced below :"The Paramba and the upstair building described in the Schedule belonging to Jenm rights to the Tarwad of executant No. 1 and which are in the possession of executant No. 2 as per the registered Marupattam Deed No. 557 of 1940 of the Sub-Registrars Office, Cannanore, dated 15th Kumbam 1115 corresponding to 27th February, 1940, for taking the usufructs of the coconut trees, jack trees, etc., in the Paramba and the fixtures including the upstair building for rent are hereby taken on lease of a period of 6 years from you, the executant No. 1 by me, the executant No. 2 for taking only the usufructs from the coconut trees and jack trees, etc., in the abovementioned Paramba, improvements including the upstair building for rent and to construct buildings by the side of the road for the purpose of running business and is given on lease by executant No. 1 to executant No. 2 for a period of six years. Therefore it is agreed that deducting an amount of rupees 25 as mentioned below out of the total amount of Rs. 175/- being Pattam of Rs. 75/- per year fixed for taking the usufructs from the properties and Rs. 100/- per year as rent for the building, the monthly instalment of Rs. 12-8-0 shall be paid to executant No. 1 at Tellicherry by executant No. 2 on the due date every month and receipt obtained, that even after the date of expiry till the recovery of possession the Pattam and rent at the above rate shall be paid by executant No. 2 to executant No. 1 and that till that date the Paramba shall be tilled, improvements shall be safeguarded and buildings repaired by executant No. 2 on behalf of the executant No. 1 from out of the above deducted sum of Rs. 25/-. It is decided that either in case of failure to pay the Pattam and rent in any instalment and thereby balance is caused by executant No. 2 to executant No. 1 or executant No. 2 causes loss by cutting any trees or causes damage to the buildings or causes loss by dismantling, executant No. 1 has the right to recover the loss with balance of Pattam and rent with interest at rupee one per Rs. 100/- per months and to recover possession from executant No. 2 by executant No. 1 before the expiry of the stipulated period. It is decided that executant No. 2 shall on the expiry of the stipulated period. It is decided that executant No. 2 shall on the expiry of the stipulated period of this lease surrender the properties in the Schedule with everything in that including the buildings to executant No. 1 receiving half the approximate value of the buildings built by the said of the road for the purpose of doing business from executant No. 1 that I, executant No. 2 have no right for more than the half of the value of that, in case executant No. 2 demands more than half of the value he shall surrender the properties dismantling at his cost the buildings built by him. The executant No. 2 had no right or authority to make improvements in the Paramba; nor has the right to build structures in the property except on the said of the road as agreed to above."Section 2(1) of the Kerala Buildings (Lease and Rent Control) Act, 1959 (Act 16 of 1959), states :"In this Act, unless the context otherwise requires, -(1) building means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and incudes -(a) the garden, grounds, walls, tanks and structures, if any, appurtenant to such building, but or part of such building or hut, and let or to be let along with such building or hut;(b) any furniture supplied or any fittings affixed by the land-lord for use in such building or hut or part of a building or hut;but does not include a room in a hotel or boarding house."5. It was argued on behalf of the appellant that the terms embodied in the lease-deed clearly show that it contains only one single transaction in respect of the Paramba and the buildings namely a composite leas which fell outside the ambit of the Act. We are unable to accept this argument. In the opinion of this Court the lease consists of two separate transactions, one for the building and the other for the trees. The rent of Rs. 75/- per year is fixed for taking the usufruct from the trees and Rs. 100/- per year as rent for the building. The building is also described in the Schedule to the lease-deed and is identifiable, apart from the compound in which the trees are located. There is, therefore, separate identity of the land and the buildings. It is not possible to accept the argument on behalf of the appellants that the lease is a composite transaction of building and the trees which cannot be separated. It is true that there a provision in the lease that a sum of Rs. 25/- may be spent by the lessee for repair of the buildings and for tilling the Paramba. There is also another provision in the lease that a charge for arrears of rent of the building and also of the Paramba is created on the lease-hold interest in the buildings. But in our opinion these provisions cannot be construed as making the lease a composite and indivisible transaction for both the buildings and the Paramba. ### Response: 0

YASHWANT SINHA Vs. CENTRAL BUREAU OF INVESTIGATION THROUGH ITS DIRECTOR

of powers. We do not see how and why the above principle of law will not apply to the facts of the present case. There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.6. Insofar as the claim of privilege is concerned, on the very face of it, Section 123 of the Indian Evidence Act, 1872 relates to unpublished public records. As already noticed, the three documents have been published in different editions of ‘The Hindu? newspaper. That apart, as held in S.P. Gupta vs. Union of India AIR 1982 SC, 149 a claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially adjudged on the touchstone of public interest and to satisfy itself that public interest is not put to jeopardy by requiring disclosure the Court may even inspect the document in question though the said power has to be sparingly exercised. Such an exercise, however, would not be necessary in the present case as the document(s) being in public domain and within the reach and knowledge of the entire citizenry, a practical and common sense approach would lead to the obvious conclusion that it would be a meaningless and an exercise in utter futility for the Court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value. As the claim of immunity under Section 123 of the Indian Evidence Act is plainly not tenable, we do not consider it necessary to delve into the matter any further.7. An issue has been raised by the learned Attorney with regard to the manner in which the three documents in question had been procured and placed before the Court. In this regard, as already noticed, the documents have been published in ‘The Hindu? newspaper on different dates. That apart, even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court? In Pooran Mal vs. Director of Inspection (Investigation) of Income-Tax, New Delhi AIR 1974 SC 348 this Court has taken the view that the ?test of admissibility of evidence lies in its relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.?8. Insofar as the Right to Information Act is concerned in Chief Information Commissioner vs. State of Manipur (2011) 15 SCC,1 this Court had occasion to observe the object and purpose behind the enactment of the Act in the following terms: ?The preamble (of the Right to Information Act, 2005) would obviously show that the Act is based on the concept of an open society. As its preamble shows, the Act was enacted to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic republic. It is clear that the Parliament enacted the said Act keeping in mind the rights of an informed citizenry in which transparency of information is vital in curbing corruption and making the Government and its instrumentalities accountable. The Act is meant to harmonise the conflicting interests of Government to preserve the confidentiality of sensitive information with the right of citizens to know the functioning of the governmental process in such a way as to preserve the paramountcy of the democratic ideal.? 9. Section 8(2) of the Right to Information Act (already extracted) contemplates that notwithstanding anything in the Official Secrets Act and the exemptions permissible under sub-section (1) of Section 8, a public authority would be justified in allowing access to information, if on proper balancing, public interest in disclosure outweighs the harm sought to be protected. When the documents in question are already in the public domain, we do not see how the protection under Section 8(1)(a) of the Act would serve public interest.10. An omnibus statement has been made by the learned Attorney that there are certain State actions that are outside the purview of judicial review and which lie within the political domain. The present would be such a case. In the final leg of the arguments, the learned Attorney General states that this case, if kept alive, has the potential to threaten the security of each and every citizen residing within our territories. The learned Attorney-General thus exhorts us to dismiss this case, in limine, in light of public policy considerations.11. All that we would like to observe in this regard is a reiteration of what had already been said by this Court in Kesavananda Bharati Sripadagalvaru v. State of Kerala AIR 1973 SC 1461 . ?Judicial review is not intended to create what is sometimes called Judicial Oligarchy, the Aristocracy of the Robe, Covert Legislation, or Judge-Made Law. The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot be transferred to the judicial arena. That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision.?(Justice Khanna – para 1535)

0[ds]4. The fact that the three documents had been published in the Hindu and were thus available in the public domain has not been seriously disputed or contested by the respondents. No question has been raised and, in our considered opinion, very rightly, with regard to the publication of the documents in ‘The Hindu newspaper. The right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech. No law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to our notice. In fact, the publication of the said documents in ‘The Hindu? newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press in a long line of decisions commencing from Romesh Thappar vs. State of Madras AIR 1950 SC 124 and Brij Bhushan vs. The State of Delhi AIR 1950 SC 129 . Though not in issue, the present could very well be an appropriate occasion to recall the views expressed by this Court from time to time.The above views of the Supreme Court of India on the issue of the freedom of the press has been echoed by the U.S. Supreme Court in New York Times Company vs. United States 403 U.S. 713 (1971) wherein Marshall, J. refused to recognize a right in the executive government to seek a restraint order or publication of certain papers titled ?Pentagon Papers? primarily on the ground that the first Amendment guaranteed freedom of the press and 18 U.S. Code § 793 did not contemplate any restriction on publication of items or materials specified in the said Code. By a majority of 6:3 the U.S. Supreme Court declined to pass prohibitory orders on publication of the ?Pentagon Papers? on the ground that the Congress itself not having vested any such power in the executive, which it could have so done, the courts cannot carve out such a jurisdiction as the same may amount to unauthorized judicial law making thereby violating the sacred doctrine of separation of powers. We do not see how and why the above principle of law will not apply to the facts of the present case. There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.6. Insofar as the claim of privilege is concerned, on the very face of it, Section 123 of the Indian Evidence Act, 1872 relates to unpublished public records. As already noticed, the three documents have been published in different editions of ‘The Hindu? newspaper. That apart, as held in S.P. Gupta vs. Union of India AIR 1982 SC, 149 a claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially adjudged on the touchstone of public interest and to satisfy itself that public interest is not put to jeopardy by requiring disclosure the Court may even inspect the document in question though the said power has to be sparingly exercised. Such an exercise, however, would not be necessary in the present case as the document(s) being in public domain and within the reach and knowledge of the entire citizenry, a practical and common sense approach would lead to the obvious conclusion that it would be a meaningless and an exercise in utter futility for the Court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value. As the claim of immunity under Section 123 of the Indian Evidence Act is plainly not tenable, we do not consider it necessary to delve into the matter any further.7. An issue has been raised by the learned Attorney with regard to the manner in which the three documents in question had been procured and placed before the Court. In this regard, as already noticed, the documents have been published in ‘The Hindu? newspaper on different dates.10. An omnibus statement has been made by the learned Attorney that there are certain State actions that are outside the purview of judicial review and which lie within the political domain. The present would be such a case. In the final leg of the arguments, the learned Attorney General states that this case, if kept alive, has the potential to threaten the security of each and every citizen residing within our territories. The learned Attorney-General thus exhorts us to dismiss this case, in limine, in light of public policy considerations.

### 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 powers. We do not see how and why the above principle of law will not apply to the facts of the present case. There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.6. Insofar as the claim of privilege is concerned, on the very face of it, Section 123 of the Indian Evidence Act, 1872 relates to unpublished public records. As already noticed, the three documents have been published in different editions of ‘The Hindu? newspaper. That apart, as held in S.P. Gupta vs. Union of India AIR 1982 SC, 149 a claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially adjudged on the touchstone of public interest and to satisfy itself that public interest is not put to jeopardy by requiring disclosure the Court may even inspect the document in question though the said power has to be sparingly exercised. Such an exercise, however, would not be necessary in the present case as the document(s) being in public domain and within the reach and knowledge of the entire citizenry, a practical and common sense approach would lead to the obvious conclusion that it would be a meaningless and an exercise in utter futility for the Court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value. As the claim of immunity under Section 123 of the Indian Evidence Act is plainly not tenable, we do not consider it necessary to delve into the matter any further.7. An issue has been raised by the learned Attorney with regard to the manner in which the three documents in question had been procured and placed before the Court. In this regard, as already noticed, the documents have been published in ‘The Hindu? newspaper on different dates. That apart, even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court? In Pooran Mal vs. Director of Inspection (Investigation) of Income-Tax, New Delhi AIR 1974 SC 348 this Court has taken the view that the ?test of admissibility of evidence lies in its relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.?8. Insofar as the Right to Information Act is concerned in Chief Information Commissioner vs. State of Manipur (2011) 15 SCC,1 this Court had occasion to observe the object and purpose behind the enactment of the Act in the following terms: ?The preamble (of the Right to Information Act, 2005) would obviously show that the Act is based on the concept of an open society. As its preamble shows, the Act was enacted to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic republic. It is clear that the Parliament enacted the said Act keeping in mind the rights of an informed citizenry in which transparency of information is vital in curbing corruption and making the Government and its instrumentalities accountable. The Act is meant to harmonise the conflicting interests of Government to preserve the confidentiality of sensitive information with the right of citizens to know the functioning of the governmental process in such a way as to preserve the paramountcy of the democratic ideal.? 9. Section 8(2) of the Right to Information Act (already extracted) contemplates that notwithstanding anything in the Official Secrets Act and the exemptions permissible under sub-section (1) of Section 8, a public authority would be justified in allowing access to information, if on proper balancing, public interest in disclosure outweighs the harm sought to be protected. When the documents in question are already in the public domain, we do not see how the protection under Section 8(1)(a) of the Act would serve public interest.10. An omnibus statement has been made by the learned Attorney that there are certain State actions that are outside the purview of judicial review and which lie within the political domain. The present would be such a case. In the final leg of the arguments, the learned Attorney General states that this case, if kept alive, has the potential to threaten the security of each and every citizen residing within our territories. The learned Attorney-General thus exhorts us to dismiss this case, in limine, in light of public policy considerations.11. All that we would like to observe in this regard is a reiteration of what had already been said by this Court in Kesavananda Bharati Sripadagalvaru v. State of Kerala AIR 1973 SC 1461 . ?Judicial review is not intended to create what is sometimes called Judicial Oligarchy, the Aristocracy of the Robe, Covert Legislation, or Judge-Made Law. The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot be transferred to the judicial arena. That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision.?(Justice Khanna – para 1535) ### Response: 0

Bir Singh Vs. Ram Kanwar Singh (D) th. L.Rs. and Ors

R. Banumathi, J.1. Leave granted.2. The Appellant claims through the original mortgagee under the usufructuary mortgage. The Appellant-mortgagee filed a suit claiming ownership of the property in-question by prescription and also sought for permanent injunction in favour of the Appellant. The trial court decreed the suit and granted permanent injunction. On appeal, the first appellate court partly allowed the appeal holding that the Appellant, claiming through the mortgagee, cannot claim right to ownership over the property in-question. However, the first appellate court affirmed the permanent injunction in favour of the Appellant in the capacity of the Appellant as a mortgagee. The same view was affirmed by the High Court. However, the High Court granted liberty to the Respondents to work out their remedy for right to redemption in separate proceedings. While doing so the High Court affirmed the grant of injunction in favour of the Appellant.3. The short question involved in this appeal is whether the Appellant, being the mortgagee, can claim grant of ownership by contending that the right of mortgagor has been foreclosed.4. This issue is squarely covered by a judgment of this Court in Singh Ram (Dead) Thr. Legal Representatives v. Sheo Ram and Ors.(2014) 9 SCC 185 where this Court held that "A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage".

0[ds]4. This issue is squarely covered by a judgment of this Court in Singh Ram (Dead) Thr. Legal Representatives v. Sheo Ram and Ors.(2014) 9 SCC 185 where this Court held that "A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage".

### 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: R. Banumathi, J.1. Leave granted.2. The Appellant claims through the original mortgagee under the usufructuary mortgage. The Appellant-mortgagee filed a suit claiming ownership of the property in-question by prescription and also sought for permanent injunction in favour of the Appellant. The trial court decreed the suit and granted permanent injunction. On appeal, the first appellate court partly allowed the appeal holding that the Appellant, claiming through the mortgagee, cannot claim right to ownership over the property in-question. However, the first appellate court affirmed the permanent injunction in favour of the Appellant in the capacity of the Appellant as a mortgagee. The same view was affirmed by the High Court. However, the High Court granted liberty to the Respondents to work out their remedy for right to redemption in separate proceedings. While doing so the High Court affirmed the grant of injunction in favour of the Appellant.3. The short question involved in this appeal is whether the Appellant, being the mortgagee, can claim grant of ownership by contending that the right of mortgagor has been foreclosed.4. This issue is squarely covered by a judgment of this Court in Singh Ram (Dead) Thr. Legal Representatives v. Sheo Ram and Ors.(2014) 9 SCC 185 where this Court held that "A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage". ### Response: 0

Commnr. Of Central Excise, Delhi Vs. M/S. Pearl Drinks Ltd

judicial & quasi-judicial courts and authorities it implies that the order passed by a lower authority would lose its finality and efficacy in favour of an order passed by a higher authority before whom correctness of such an order may have been assailed in appeal or revision. The doctrine applies regardless whether the higher court or authority affirms or modifies the order passed by the lower court or authority. The juristic basis of the doctrine has been examined by this Court in a long line of decisions. One of the earliest of the said decisions was rendered in Commissioner of Income Tax, Bombay v. Amritlal Bhogilal & Co. (AIR 1958 SC 868 ). The Court in that case declared that as a result of the confirmation or affirmation of the decision of the Tribunal by the Appellate Authority, the original decision merges in appellate decision whereupon it is only the appellate decision which subsists and is operative and capable of enforcement. 12. In State of Madras v. Madurai Mills Co. Ltd. (AIR 1967 SC 681 ) this Court had another occasion to examine the true scope and purport of the doctrine of merger. The court declared that the doctrine of merger was not a doctrine of rigid and universal application nor could it be said that where there are two orders one by the inferior authority and the other by a superior authority they must necessarily merge irrespective of the subject matter of the appeal or the revision or the scope of the proceedings in which such orders are passed. Subsequent decisions of this Court in Gojer Bros. (Pvt.) Ltd. v. Ratan Lal Singh (1974) 2 SCC 453 and S.S. Rathore v. State of Madhya Pradesh (1989) 4 SCC 582 have reiterated and explained that position. No reference to the pronouncements of this Court on the subject can be complete without a reference to the decision of this Court in Kunhayammeds case (supra) and Maurias case (supra). In Kunhayammeds case (supra) a three-Judge Bench of this Court reviewed the decisions rendered on the subject and summed up its conclusions in para 44 of this decision. One of the said conclusions apposite to the case at hand is in the following words: "44. To sum up, our conclusions are: .... (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. ..." 13. There is in the light of the above pronouncements no gainsaying that the doctrine of merger will depend largely on the nature of the jurisdiction exercised by the superior court and the content or the subject matter of challenge laid or capable of being laid before it. 14. Applying the above test to the case at hand the doctrine would have no application for the plain and simple reason that the subject matter of the appeal filed by the assessee against the adjudicating authoritys order in original was limited to disallowance of two out of eight deductions claimed by the assessee. The Tribunal was in that appeal concerned only with the question whether the adjudicating authority was justified in disallowing deductions under the said two heads. It had no occasion to examine the admissibility of the deductions under the remaining six heads obviously because the assessees appeal did not question the grant of such deductions. Admissibility of the said deductions could have been raised only by the Revenue who had lost its case qua those deductions before the adjudicating authority. Dismissal of the appeal filed by the assessee could consequently bring finality only to the question of admissibility of deductions under the two heads regarding which the appeal was filed. The said order could not be understood to mean that the Tribunal had expressed any opinion regarding the admissibility of deductions under the remaining six heads which were not the subject matter of scrutiny before the Tribunal. That being so, the proceedings instituted by the Commissioner, Central Excise pursuant to the order passed by the Central Board of Excise and Customs brought up a subject matter which was distinctively different from that which had been examined and determined in the assessees appeal no matter against the same order, especially when the decision was not rendered on a principle of law that could foreclose the Revenues case. The Tribunal obviously failed to notice this distinction and proceeded to apply the doctrine of merger rather mechanically. It failed to take into consideration a situation where an order may be partly in favour and partly against a party in which event the part that goes in favour of the party can be separately assailed by them in appeal filed before the appellate Court or authority but dismissal on merits or otherwise of any such appeal against a part only of the order will not foreclose the right of the party who is aggrieved of the other part of this order. If the doctrine of merger were to be applied in a pedantic or wooden manner it would lead to anomalous results inasmuch as a party who has lost in part can by getting his appeal dismissed claim that the opposite party who may be aggrieved of another part of the very same order cannot assail its correctness no matter the appeal earlier disposed of by the Court or authority had not examined the correctness of that part of the order.

0[ds]13. There is in the light of the above pronouncements no gainsaying that the doctrine of merger will depend largely on the nature of the jurisdiction exercised by the superior court and the content or the subject matter of challenge laid or capable of being laid before it.Applying the above test to the case at hand the doctrine would have no application for the plain and simple reason that the subject matter of the appeal filed by the assessee against the adjudicating authoritys order in original was limited to disallowance of two out of eight deductions claimed by the assessee. The Tribunal was in that appeal concerned only with the question whether the adjudicating authority was justified in disallowing deductions under the said two heads. It had no occasion to examine the admissibility of the deductions under the remaining six heads obviously because the assessees appeal did not question the grant of such deductions. Admissibility of the said deductions could have been raised only by the Revenue who had lost its case qua those deductions before the adjudicating authority. Dismissal of the appeal filed by the assessee could consequently bring finality only to the question of admissibility of deductions under the two heads regarding which the appeal was filed. The said order could not be understood to mean that the Tribunal had expressed any opinion regarding the admissibility of deductions under the remaining six heads which were not the subject matter of scrutiny before the Tribunal. That being so, the proceedings instituted by the Commissioner, Central Excise pursuant to the order passed by the Central Board of Excise and Customs brought up a subject matter which was distinctively different from that which had been examined and determined in the assessees appeal no matter against the same order, especially when the decision was not rendered on a principle of law that could foreclose the Revenues case. The Tribunal obviously failed to notice this distinction and proceeded to apply the doctrine of merger rather mechanically. It failed to take into consideration a situation where an order may be partly in favour and partly against a party in which event the part that goes in favour of the party can be separately assailed by them in appeal filed before the appellate Court or authority but dismissal on merits or otherwise of any such appeal against a part only of the order will not foreclose the right of the party who is aggrieved of the other part of this order. If the doctrine of merger were to be applied in a pedantic or wooden manner it would lead to anomalous results inasmuch as a party who has lost in part can by getting his appeal dismissed claim that the opposite party who may be aggrieved of another part of the very same order cannot assail its correctness no matter the appeal earlier disposed of by the Court or authority had not examined the correctness of that part of the order.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: judicial & quasi-judicial courts and authorities it implies that the order passed by a lower authority would lose its finality and efficacy in favour of an order passed by a higher authority before whom correctness of such an order may have been assailed in appeal or revision. The doctrine applies regardless whether the higher court or authority affirms or modifies the order passed by the lower court or authority. The juristic basis of the doctrine has been examined by this Court in a long line of decisions. One of the earliest of the said decisions was rendered in Commissioner of Income Tax, Bombay v. Amritlal Bhogilal & Co. (AIR 1958 SC 868 ). The Court in that case declared that as a result of the confirmation or affirmation of the decision of the Tribunal by the Appellate Authority, the original decision merges in appellate decision whereupon it is only the appellate decision which subsists and is operative and capable of enforcement. 12. In State of Madras v. Madurai Mills Co. Ltd. (AIR 1967 SC 681 ) this Court had another occasion to examine the true scope and purport of the doctrine of merger. The court declared that the doctrine of merger was not a doctrine of rigid and universal application nor could it be said that where there are two orders one by the inferior authority and the other by a superior authority they must necessarily merge irrespective of the subject matter of the appeal or the revision or the scope of the proceedings in which such orders are passed. Subsequent decisions of this Court in Gojer Bros. (Pvt.) Ltd. v. Ratan Lal Singh (1974) 2 SCC 453 and S.S. Rathore v. State of Madhya Pradesh (1989) 4 SCC 582 have reiterated and explained that position. No reference to the pronouncements of this Court on the subject can be complete without a reference to the decision of this Court in Kunhayammeds case (supra) and Maurias case (supra). In Kunhayammeds case (supra) a three-Judge Bench of this Court reviewed the decisions rendered on the subject and summed up its conclusions in para 44 of this decision. One of the said conclusions apposite to the case at hand is in the following words: "44. To sum up, our conclusions are: .... (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. ..." 13. There is in the light of the above pronouncements no gainsaying that the doctrine of merger will depend largely on the nature of the jurisdiction exercised by the superior court and the content or the subject matter of challenge laid or capable of being laid before it. 14. Applying the above test to the case at hand the doctrine would have no application for the plain and simple reason that the subject matter of the appeal filed by the assessee against the adjudicating authoritys order in original was limited to disallowance of two out of eight deductions claimed by the assessee. The Tribunal was in that appeal concerned only with the question whether the adjudicating authority was justified in disallowing deductions under the said two heads. It had no occasion to examine the admissibility of the deductions under the remaining six heads obviously because the assessees appeal did not question the grant of such deductions. Admissibility of the said deductions could have been raised only by the Revenue who had lost its case qua those deductions before the adjudicating authority. Dismissal of the appeal filed by the assessee could consequently bring finality only to the question of admissibility of deductions under the two heads regarding which the appeal was filed. The said order could not be understood to mean that the Tribunal had expressed any opinion regarding the admissibility of deductions under the remaining six heads which were not the subject matter of scrutiny before the Tribunal. That being so, the proceedings instituted by the Commissioner, Central Excise pursuant to the order passed by the Central Board of Excise and Customs brought up a subject matter which was distinctively different from that which had been examined and determined in the assessees appeal no matter against the same order, especially when the decision was not rendered on a principle of law that could foreclose the Revenues case. The Tribunal obviously failed to notice this distinction and proceeded to apply the doctrine of merger rather mechanically. It failed to take into consideration a situation where an order may be partly in favour and partly against a party in which event the part that goes in favour of the party can be separately assailed by them in appeal filed before the appellate Court or authority but dismissal on merits or otherwise of any such appeal against a part only of the order will not foreclose the right of the party who is aggrieved of the other part of this order. If the doctrine of merger were to be applied in a pedantic or wooden manner it would lead to anomalous results inasmuch as a party who has lost in part can by getting his appeal dismissed claim that the opposite party who may be aggrieved of another part of the very same order cannot assail its correctness no matter the appeal earlier disposed of by the Court or authority had not examined the correctness of that part of the order. ### Response: 0

Jajodia (Overseas) Private Limited Vs. Industrial Development Corporation Oforissa Limited Andvice

were framed by the arbitrator, obviously in consultation with the parties and arising upon the pleadings. There were several hearings. It is, in these circumstances, inconceivable that the issues would not have reflected the referred dispute between the parties. It is also significant that the pleadings before the Subordinate Judge, Bhubaneshwar, and the statement of claim and the counter filed before the arbitrator were not produced before us by IDCO so that we could determine whether the statement of claim filed by JOPL before the arbitrator raised claims different from those contained in the pleadings before the Subordinate Judge, Bhubaneshwar . It was submitted that the award of damages was based on no evidence or material. The submission was based on the finding that the originals of the foreign sale contracts entered into by JOPL in respect of the goods under the agreement had not been sent to IDCO. That these original agreements had not been sent does not ipso facto lead to the conclusion that the arbitrator had no material before him upon which he could find that JOPL had suffered damage and assess the same in monetary terms.This brings us to the question of the inconsistencies found by the High Court upon the face of the award. The issues and the answers to which the High Court referred are issue Nos. 6, 7(b) and 9(a). 11. In our view, it is necessary to repro duce the issue nos. 6, 7, 9, and 10 and their answers in extenso. "Issues 6. Did the claimant fulfil their obligations under the terms and conditions of the agreement. Answers JOPL fulfilled their obligations under the agreement in question. 7.(a) Did the respondent ac- IDC accepted or affirmed or affirm the claimants the JOPLs order for supply order for supply of 4000 ton of 4000 tonnes. as mentioned -nnes as mentioned in para 4 of the statement of the claim ? (b) Did t he claimant send JOPL did not send the original the foreign sale contracts foreign sale contracts to originalnal foreign sale I.D.C. contractsto the respondent. 9.(a) Were the acts mentioned The agreement provided inpara 10 of the counter-state for JOPL sending the orig- ment covered by the agreement nal foreign sale contracts to the respondent at a certain stage. Reference to para 10 of the counter statement IDC. (b) Were the acts mentioned in The agreement provided para 11 of the counter-state- that JOPL would arrange ment covered by the agree- for export license, (Refer- ment. ence to para 11 of the counter-statement of IDC. (c) Were the acts mentioned The agreement provided that in para-12 of the counter- JOPL would procure orders statement covered by the for e xport of 5000 metric agreeement?(JOPL) tonnes of MS rounds within 3 months from the date of acceptance of the IDCs offer and they would follow up th indents placed by the respondent(IDC) for supply of billets and arrange for export licences, letter of authorisation from the Iron the Iron and Steel Controller in time (Ref. to para 12 of counter statement of IDC). 239 (d) Were the acts mentioned in The act s mentioned in para 13 of the counter-state para 13 of the counter-ment covered by the statement by IDC are cov- agreement. red by the previous three paragraphs(10, 11 and 12) of that statement and they have been already dealt/with under sub issues. (a), (b) above. If s o, did the party concer- The party concerned that ned perform such Acts? is the JOPL performed their part of the work as was necessary under the agreement at relevant stage. 10. Was the respondent jus- IDC was not justified in tified in cancelling the cancelling the agreement". agreement? 12. It will be seen that the award says that the agreement provided for JOPL sending the original foreign sale contracts to the respondent at a certain stage." It also says that "JOPL fulfilled their obligations under the agreement in question" and that "JOPL performed their part of the work as w as necessary under the Agreement at relevant Stage" On the other hand, it says that JOPL did not send the original foreign sale contracts to I.D.C. The award then finds that "IDC was not justified in canceling the agreement". (Emphasis supplied). Reading these issues and answers together and harmoniously, it is apparent that the agreement provided that JOPL should send to IDCO the original foreign sale contracts at a certain point of time and that it is found that JOPL had not sent the original foreign sale contracts to IDCO. It is also apparent that it is found that at the point of time at which IDCO purported to cancel the agreement, JOPL had performed all its obligations under the agreement. The conclusion is, there- fore, that upto that point of time JOPL had not been obliged to send the foreign sale contracts to IDCO. So read, in our view, there are no inconsistencies upon the face of the award as can be characterised as errors that vitiate the award. An award has to be read as a whole and harmoniously. The grounds upon which an award can be set aside are limited. The courtshould be very circumspect about setting aside an award reached by an arbitrator for parties have agreed t hat the disputes that may arise or have arisen between them should be resolved not by a court of law but by arbitration. Mr. Patnaik pointed out that the Orissa High Court had recognised that the malady of the racket of arbitration" affected i ts State of Orissa v. Gangaram ahapolia, (1983) 5 OLJ 214 and that this had been taken note of by this court in State of Orissa v. Dandasi Sahu. The court said: "In our opinion, the evidence of such state of affairs should make this court scrutinise the award carefully in each particular case but that does not make the court declare that all high amounts of awards would be bad per se." 13.

0[ds]arbitrator merely referred to the fact that parties had "filed their statements" before him and that he had given "careful consideration to all the written statements, documents and evidence and the arguments".s is not such a reference as can be said to incorporate the pleadings before him in the award.Reference was made to issue No.2 and its answer and it was contended that the arbitrator had thereby made a specific reference to the agreement and it must, therefore, be held that the agreement was incorporated in the award. Issue No. 2 and the answer to it read thus:Was the said agreement a commission agency or export agency agreemente agreement was not a commission agency or export agreement."In the first place, the pleadings before the Subordinate Judge, Bhubaneshwar and the order of reference made by him are not placed by IDCO before us. If it was IDCOs case that no issue of law had specifically been referred to the arbitrator, it was its obligation so to show. But we shall proceed on the basi s that a specific question of law was not referred.e submission on IDCOs behalf was that the arbitrator misconstrued theagreement and, therefore, the court was entitled to look into the agreement and determine whether the award was correct. We do not think that this broad submission is correct. It would appear that the arbitrator construed only such clause of the agreement as was relevant to decide whether the agreement was, as contended by IDCO, a commission or export agency agreement. Such clause alone would be incorporated in the award and could be looked at by the court to determine whether the arbitrator misconstrued it. We cannot accede to the submission that, by reason of the answer to issue no. 2, the entire agreement became incorporated in the award and that it was, therefore, open to the court to look into the entirety of the dispute in the arbitration proceedings and determine whether the award was correctEven assuming the incorporation of the agreement, an error apparent upon the face of the award had to be shown. We may refer with advantage to this courts judgment in Bungo Steel Furniture Pvt. Ltd. v. Union of India.e court quoted the well-known passag e from the judgment of Lord Dunedin inIt went on to observe: An award may be set aside by the court on the ground of an error of law apparent on the face of the award but an award is not invalid merely because by a process of inference and argument it may be demonstrated that the arbitrator has committed some mistake in arriving at his conclusion."It was argued on behalf of IDCO before the High Court that the pleadings before the Subordinate Judge, Bhubnesh war and the order of reference to the arbitrator made by him were not before the arbitrator and that, therefore, the arbitrator had acted without jurisdiction.e High Court rejected that contention and made reference to the order of the Sub ordinate Judge, which we have quoted above, which showed that if directed that the copy of the pleadings and of itself should be sent by, . the Court to the arbitrator. Before us it was submitted that these pleadings and order had not been considered by the arbitrator, because he had not mentioned them in the award. Issues were framed by the arbitrator, obviously in consultation with the parties and arising upon the pleadings.e were several hearings. It is, in these circumstances, inconceivable that the issues would not have reflected the referred dispute between the parties. It is also significant that the pleadings before the Subordinate Judge, Bhubaneshwar, and the statement of claim and the counter filed before the arbitrator were not produced before us by IDCO so that we could determine whether the statement of claim filed by JOPL before the arbitrator raised claims different from those contained in the pleadings before the Subordinate Judge, Bhubaneshwar . It was submitted that the award of damages was based on no evidence or material.e submission was based on the finding that the originals of the foreign sale contracts entered into by JOPL in respect of the goods under the agreement had not been sent to IDCO.t these original agreements had not been sent does not ipso facto lead to the conclusion that the arbitrator had no material before him upon which he could find that JOPL had suffered damage and assess the same in monetarys brings us to the question of the inconsistencies found by the High Court upon the face of the award.e issues and the answers to which the High Court referred are issue Nos. 6, 7(b) and 9(a)In our view, it is necessary to repro duce the issue nos. 6, 7, 9, and 10 and their answers in extenso. "Issues 6. Did the claimant fulfil their obligations under the terms and conditions of the agreement. Answers JOPL fulfilled their obligations under the agreement in question7.(a) Did the respondent ac- IDC accepted or affirmed or affirm the claimants the JOPLs order for supply order for supply of 4000 ton of 4000 tonnes. as mentioned -nnes as mentioned in para 4 of the statement of the claim ? (b) Did t he claimant send JOPL did not send the original the foreign sale contracts foreign sale contracts to originalnal foreign sale I.D.C. contractsto the respondent. 9.(a) Were the acts mentionede agreement provided inpara 10 of the counter-state for JOPL sending the orig- ment covered by the agreement nal foreign sale contracts to the respondent at a certain stage. Reference to para 10 of the counter statement IDC. (b) Were the acts mentioned ine agreement provided para 11 of the counter-state- that JOPL would arrange ment covered by the agree- for export license, (Refer- ment. ence to para 11 of the counter-statement of IDC. (c) Were the acts mentionede agreement provided that in para-12 of the counter- JOPL would procure orders statement covered by the for e xport of 5000 metric agreeement?(JOPL) tonnes of MS rounds within 3 months from the date of acceptance of the IDCs offer and they would follow up th indents placed by the respondent(IDC) for supply of billets and arrange for export licences, letter of authorisation from the Iron the Iron and Steel Controller in time (Ref. to para 12 of counter statement of IDC). 239 (d) Were the acts mentioned ine act s mentioned in para 13 of the counter-state para 13 of the counter-ment covered by the statement by IDC are cov- agreement. red by the previous three paragraphs(10, 11 and 12) of that statement and they have been already dealt/with under sub issues. (a), (b) above. If s o, did the party concer-e party concerned that ned perform such Acts? is the JOPL performed their part of the work as was necessary under the agreement at relevant stage. 10. Was the respondent jus- IDC was not justified in tified in cancelling the cancelling the agreement". agreement?It will be seen that the award says that the agreement provided for JOPL sending the original foreign sale contracts to the respondent at a certain stage." It also says that "JOPL fulfilled their obligations under the agreement in question" and that "JOPL performed their part of the work as w as necessary under the Agreement at relevant Stage" On the other hand, it says that JOPL did not send the original foreign sale contracts to I.D.C.e award then finds that "IDC was not justified in canceling the agreement". (Emphasis supplied). Reading these issues and answers together and harmoniously, it is apparent that the agreement provided that JOPL should send to IDCO the original foreign sale contracts at a certain point of time and that it is found that JOPL had not sent the original foreign sale contracts to IDCO. It is also apparent that it is found that at the point of time at which IDCO purported to cancel the agreement, JOPL had performed all its obligations under the agreement.e conclusion is, there- fore, that upto that point of time JOPL had not been obliged to send the foreign sale contracts to IDCO. So read, in our view, there are no inconsistencies upon the face of the award as can be characterised as errors that vitiate the award. An award has to be read as a whole and harmoniously.e grounds upon which an award can be set aside are limited.e courtshould be very circumspect about setting aside an award reached by an arbitrator for parties have agreed t hat the disputes that may arise or have arisen between them should be resolved not by a court of law but by arbitration.

### 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: were framed by the arbitrator, obviously in consultation with the parties and arising upon the pleadings. There were several hearings. It is, in these circumstances, inconceivable that the issues would not have reflected the referred dispute between the parties. It is also significant that the pleadings before the Subordinate Judge, Bhubaneshwar, and the statement of claim and the counter filed before the arbitrator were not produced before us by IDCO so that we could determine whether the statement of claim filed by JOPL before the arbitrator raised claims different from those contained in the pleadings before the Subordinate Judge, Bhubaneshwar . It was submitted that the award of damages was based on no evidence or material. The submission was based on the finding that the originals of the foreign sale contracts entered into by JOPL in respect of the goods under the agreement had not been sent to IDCO. That these original agreements had not been sent does not ipso facto lead to the conclusion that the arbitrator had no material before him upon which he could find that JOPL had suffered damage and assess the same in monetary terms.This brings us to the question of the inconsistencies found by the High Court upon the face of the award. The issues and the answers to which the High Court referred are issue Nos. 6, 7(b) and 9(a). 11. In our view, it is necessary to repro duce the issue nos. 6, 7, 9, and 10 and their answers in extenso. "Issues 6. Did the claimant fulfil their obligations under the terms and conditions of the agreement. Answers JOPL fulfilled their obligations under the agreement in question. 7.(a) Did the respondent ac- IDC accepted or affirmed or affirm the claimants the JOPLs order for supply order for supply of 4000 ton of 4000 tonnes. as mentioned -nnes as mentioned in para 4 of the statement of the claim ? (b) Did t he claimant send JOPL did not send the original the foreign sale contracts foreign sale contracts to originalnal foreign sale I.D.C. contractsto the respondent. 9.(a) Were the acts mentioned The agreement provided inpara 10 of the counter-state for JOPL sending the orig- ment covered by the agreement nal foreign sale contracts to the respondent at a certain stage. Reference to para 10 of the counter statement IDC. (b) Were the acts mentioned in The agreement provided para 11 of the counter-state- that JOPL would arrange ment covered by the agree- for export license, (Refer- ment. ence to para 11 of the counter-statement of IDC. (c) Were the acts mentioned The agreement provided that in para-12 of the counter- JOPL would procure orders statement covered by the for e xport of 5000 metric agreeement?(JOPL) tonnes of MS rounds within 3 months from the date of acceptance of the IDCs offer and they would follow up th indents placed by the respondent(IDC) for supply of billets and arrange for export licences, letter of authorisation from the Iron the Iron and Steel Controller in time (Ref. to para 12 of counter statement of IDC). 239 (d) Were the acts mentioned in The act s mentioned in para 13 of the counter-state para 13 of the counter-ment covered by the statement by IDC are cov- agreement. red by the previous three paragraphs(10, 11 and 12) of that statement and they have been already dealt/with under sub issues. (a), (b) above. If s o, did the party concer- The party concerned that ned perform such Acts? is the JOPL performed their part of the work as was necessary under the agreement at relevant stage. 10. Was the respondent jus- IDC was not justified in tified in cancelling the cancelling the agreement". agreement? 12. It will be seen that the award says that the agreement provided for JOPL sending the original foreign sale contracts to the respondent at a certain stage." It also says that "JOPL fulfilled their obligations under the agreement in question" and that "JOPL performed their part of the work as w as necessary under the Agreement at relevant Stage" On the other hand, it says that JOPL did not send the original foreign sale contracts to I.D.C. The award then finds that "IDC was not justified in canceling the agreement". (Emphasis supplied). Reading these issues and answers together and harmoniously, it is apparent that the agreement provided that JOPL should send to IDCO the original foreign sale contracts at a certain point of time and that it is found that JOPL had not sent the original foreign sale contracts to IDCO. It is also apparent that it is found that at the point of time at which IDCO purported to cancel the agreement, JOPL had performed all its obligations under the agreement. The conclusion is, there- fore, that upto that point of time JOPL had not been obliged to send the foreign sale contracts to IDCO. So read, in our view, there are no inconsistencies upon the face of the award as can be characterised as errors that vitiate the award. An award has to be read as a whole and harmoniously. The grounds upon which an award can be set aside are limited. The courtshould be very circumspect about setting aside an award reached by an arbitrator for parties have agreed t hat the disputes that may arise or have arisen between them should be resolved not by a court of law but by arbitration. Mr. Patnaik pointed out that the Orissa High Court had recognised that the malady of the racket of arbitration" affected i ts State of Orissa v. Gangaram ahapolia, (1983) 5 OLJ 214 and that this had been taken note of by this court in State of Orissa v. Dandasi Sahu. The court said: "In our opinion, the evidence of such state of affairs should make this court scrutinise the award carefully in each particular case but that does not make the court declare that all high amounts of awards would be bad per se." 13. ### Response: 0

M/S. SKJ COKE INDUSTRIES LTD Vs. COAL INDIA LTD AND ORS

a linked units. Such treatment as a linked unit do not mean grant of actual linkage. So, Mahabir Coke cannot claim to be a linked unit. The advantage of being treated as a linked unit was that Mahabir Coke will be assured for monthly supply of 4000 MT coal per month by NEC. The said resolution/decision also provides that the price to be charged for supply of low ash coal to Mahabir Coke will be decided by NEC on the basis of price prevalent at any point of time i.e. current price prevailing at the time of supply. 17. There are nearly 200 Cokery units, in India out of them only three cokery unit, including cokery unit of Mahabir Coke, are located at Assam. Mahabir Coke, along with other two cokery units have been getting low ash Assam coal which is of superior grade than what the other cookeries of all over India have been getting from their respective coal companies. Normally all other cookeries are getting the higher ash content coal. The other cookeries located outside Assam get coal having ash content of 25 – 30%, whereas the cookeries located in Assam are getting low ash coal of NEC having ash content of only 7%. The other cookeries located outside Assam take supply of low ash coal from NEC, under LSS for blending the same with higher ash content coal which they have been getting from other coal companies. All other cookeries including three cookeries of Assam, who are buying the same low ash coal as supplied to Mahabir Coke, have been paying the LSS price as notified from time to time. 12. Learned counsel for the appellants has brought to our notice the following observations of the Division Bench in different parts of the judgment:- At the time the Linkage Committee stipulated that the price payable by the appellant company would be as per the prevailing rate to be decided by the fifth Respondent, no coal company had any authority to supersede the price fixed by the Central Government by a notification issued under the Colliery Control Order, 1945. At the highest, such conditional treatment of the appellant company as a linked unit, could come into play only if the price of coal was deregulated by the Central Government; ipso facto by reason of the Linkage Committee decision of November 16, 1995 the appellant company could not be charged at a rate in derogation of what the Central Government notified. xx xx xx xx xx xx The price of Assam coal at Rs. 741/- per MT (subject to the variation on account of ash content) became inoperative upon the notification of March 12, 1997. xx xx xx xx xx xx The appellants remain liable to pay the difference in price on the basis of price fixed by the respondents subsequent to the notification of March 12, 1997. 13. In our opinion, the exemption granted by the Central Government by the notification dated 9 th January, 1996 to Coal India and their subsidiaries from the provisions of Clauses 4, 4A and 4B of the 1945 Control Order in respect of sale of coal under LSS, the fetter imposed by the aforesaid notification of June 1994 got effectively removed. Specific stand taken by the respondents is that the linking of the first appellant was only in respect of the quantum of coal to be obtained by them and they were not entitled to price benefits of linked consumers. For the appellants, it was only a case of allocation. Thus, the point of time from when the appellants became liable to pay LSS rate would be the time when LSS price was raised after 9 th January 1996. Prior to that date, we have already reproduced the coal companies submission that the linked price and non-linked price had remained the same. So far as the aforesaid observations in the impugned judgment is concerned, such reasoning does not appear to us to be correct. But our views on this point would not advance the case of the appellants. That is so because in our opinion, it was within the power of the NEC to enhance the price for LSS consumers upon CIL and their subsidiaries being exempted from Clause 4 of the 1945 Control Order on and from 9 th January 1996. 14. It appears that a liberalised pricing system has been prevailing since the year 1993. We find no reason to disbelieve the coal companies when they assert that there was only allocation of coal in favour of the first appellant. Thus the appellants did not have vested legal right to preferential pricing as linked consumers. The 9 th January 1996 notification empowered Coal India Ltd. and their subsidiaries to charge price to consumers beyond that notified on 16 th June 1994 in respect of Assam coal. The appellants were in the non- core sector. Around that point of time only parity between LSS price and linked price was broken and the first appellant was required to pay the LSS price. So far as allocation is concerned, the agenda 24 of the 85 th meeting of the linkage committee retained the supply volume. But that Resolution is in tune with the NECs stand taken before us that LSS price ought to be charged to the appellants. The factual argument of the appellants that the two other cokery units in Assam were not linked, are of no relevance. The appellants have not been able to sustain a case before us that their linking agreement covered both allocation and pricing as is the case of other linked consumers. So far as the other cokery units are concerned, it has been clarified by the learned counsel for the coal companies that they lift coal of high ash content between 25-30% which would automatically take them out of the price advantage specified in Table II of the 1994 notification. We accordingly do not find any reason to set aside the judgment of the Division Bench.

0[ds]We also confirm this view of the Appellate Bench as we find such view to be the correct view so far as applicability of the ratio of the case of Ashoka Smokeless Coal India (supra) is concernedFrom the said Resolution, however, we find a specific agenda item concerning the first appellant, and the Resolution as adopted specifically stipulates that the price to be charged from the appellants was to be decided by the NEC Assam as prevalent at any point of time. In view of this specific treatment of pricing along with reference to the first appellant as a linked unit, in our opinion, said Resolution has to be construed to mean that treatment of the appellant as a linked unit was for the purpose of regular supply of coal and the pricing factor was separated from such deemed linking. This would be apparent from the decision taken against agenda item no.23, in which reference has been made to SSF units and cokery units which had been allocated (emphasis supplied) coal, and it was these units which were to be treated as linked units. The distinction between allocation and linking clearly emerges from the said decision of the linking committee. It is a fact that the first appellants treatment as a linked unit was a fiction. But such fiction was replaced by reality on the basis of a specific provision in the Resolution (agenda item no.24) so far as pricing is concerned. As the Resolution dealt with linking and pricing separately, the fictional linking could not be extended to actual pricing13. In our opinion, the exemption granted by the Central Government by the notification dated 9 th January, 1996 to Coal India and their subsidiaries from the provisions of Clauses 4, 4A and 4B of the 1945 Control Order in respect of sale of coal under LSS, the fetter imposed by the aforesaid notification of June 1994 got effectively removed. Specific stand taken by the respondents is that the linking of the first appellant was only in respect of the quantum of coal to be obtained by them and they were not entitled to price benefits of linked consumers. For the appellants, it was only a case of allocation. Thus, the point of time from when the appellants became liable to pay LSS rate would be the time when LSS price was raised after 9 th January 1996. Prior to that date, we have already reproduced the coal companies submission that the linked price and non-linked price had remained the same. So far as the aforesaid observations in the impugned judgment is concerned, such reasoning does not appear to us to be correct. But our views on this point would not advance the case of the appellants. That is so because in our opinion, it was within the power of the NEC to enhance the price for LSS consumers upon CIL and their subsidiaries being exempted from Clause 4 of the 1945 Control Order on and from 9 th January 199614. It appears that a liberalised pricing system has been prevailing since the year 1993. We find no reason to disbelieve the coal companies when they assert that there was only allocation of coal in favour of the first appellant. Thus the appellants did not have vested legal right to preferential pricing as linked consumers. The 9 th January 1996 notification empowered Coal India Ltd. and their subsidiaries to charge price to consumers beyond that notified on 16 th June 1994 in respect of Assam coal. The appellants were in the non- core sector. Around that point of time only parity between LSS price and linked price was broken and the first appellant was required to pay the LSS price. So far as allocation is concerned, the agenda 24 of the 85 th meeting of the linkage committee retained the supply volume. But that Resolution is in tune with the NECs stand taken before us that LSS price ought to be charged to the appellants. The factual argument of the appellants that the two other cokery units in Assam were not linked, are of no relevance. The appellants have not been able to sustain a case before us that their linking agreement covered both allocation and pricing as is the case of other linked consumers. So far as the other cokery units are concerned, it has been clarified by the learned counsel for the coal companies that they lift coal of high ash content between 25-30% which would automatically take them out of the price advantage specified in Table II of the 1994 notification. We accordingly do not find any reason to set aside the judgment of the Division Bench.

### 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: a linked units. Such treatment as a linked unit do not mean grant of actual linkage. So, Mahabir Coke cannot claim to be a linked unit. The advantage of being treated as a linked unit was that Mahabir Coke will be assured for monthly supply of 4000 MT coal per month by NEC. The said resolution/decision also provides that the price to be charged for supply of low ash coal to Mahabir Coke will be decided by NEC on the basis of price prevalent at any point of time i.e. current price prevailing at the time of supply. 17. There are nearly 200 Cokery units, in India out of them only three cokery unit, including cokery unit of Mahabir Coke, are located at Assam. Mahabir Coke, along with other two cokery units have been getting low ash Assam coal which is of superior grade than what the other cookeries of all over India have been getting from their respective coal companies. Normally all other cookeries are getting the higher ash content coal. The other cookeries located outside Assam get coal having ash content of 25 – 30%, whereas the cookeries located in Assam are getting low ash coal of NEC having ash content of only 7%. The other cookeries located outside Assam take supply of low ash coal from NEC, under LSS for blending the same with higher ash content coal which they have been getting from other coal companies. All other cookeries including three cookeries of Assam, who are buying the same low ash coal as supplied to Mahabir Coke, have been paying the LSS price as notified from time to time. 12. Learned counsel for the appellants has brought to our notice the following observations of the Division Bench in different parts of the judgment:- At the time the Linkage Committee stipulated that the price payable by the appellant company would be as per the prevailing rate to be decided by the fifth Respondent, no coal company had any authority to supersede the price fixed by the Central Government by a notification issued under the Colliery Control Order, 1945. At the highest, such conditional treatment of the appellant company as a linked unit, could come into play only if the price of coal was deregulated by the Central Government; ipso facto by reason of the Linkage Committee decision of November 16, 1995 the appellant company could not be charged at a rate in derogation of what the Central Government notified. xx xx xx xx xx xx The price of Assam coal at Rs. 741/- per MT (subject to the variation on account of ash content) became inoperative upon the notification of March 12, 1997. xx xx xx xx xx xx The appellants remain liable to pay the difference in price on the basis of price fixed by the respondents subsequent to the notification of March 12, 1997. 13. In our opinion, the exemption granted by the Central Government by the notification dated 9 th January, 1996 to Coal India and their subsidiaries from the provisions of Clauses 4, 4A and 4B of the 1945 Control Order in respect of sale of coal under LSS, the fetter imposed by the aforesaid notification of June 1994 got effectively removed. Specific stand taken by the respondents is that the linking of the first appellant was only in respect of the quantum of coal to be obtained by them and they were not entitled to price benefits of linked consumers. For the appellants, it was only a case of allocation. Thus, the point of time from when the appellants became liable to pay LSS rate would be the time when LSS price was raised after 9 th January 1996. Prior to that date, we have already reproduced the coal companies submission that the linked price and non-linked price had remained the same. So far as the aforesaid observations in the impugned judgment is concerned, such reasoning does not appear to us to be correct. But our views on this point would not advance the case of the appellants. That is so because in our opinion, it was within the power of the NEC to enhance the price for LSS consumers upon CIL and their subsidiaries being exempted from Clause 4 of the 1945 Control Order on and from 9 th January 1996. 14. It appears that a liberalised pricing system has been prevailing since the year 1993. We find no reason to disbelieve the coal companies when they assert that there was only allocation of coal in favour of the first appellant. Thus the appellants did not have vested legal right to preferential pricing as linked consumers. The 9 th January 1996 notification empowered Coal India Ltd. and their subsidiaries to charge price to consumers beyond that notified on 16 th June 1994 in respect of Assam coal. The appellants were in the non- core sector. Around that point of time only parity between LSS price and linked price was broken and the first appellant was required to pay the LSS price. So far as allocation is concerned, the agenda 24 of the 85 th meeting of the linkage committee retained the supply volume. But that Resolution is in tune with the NECs stand taken before us that LSS price ought to be charged to the appellants. The factual argument of the appellants that the two other cokery units in Assam were not linked, are of no relevance. The appellants have not been able to sustain a case before us that their linking agreement covered both allocation and pricing as is the case of other linked consumers. So far as the other cokery units are concerned, it has been clarified by the learned counsel for the coal companies that they lift coal of high ash content between 25-30% which would automatically take them out of the price advantage specified in Table II of the 1994 notification. We accordingly do not find any reason to set aside the judgment of the Division Bench. ### Response: 0

SUNKARA LAKSHMINARASAMMA (DEAD) BY LRS Vs. SAGI SUBBA RAJU & ORS. ETC

about three and half acres was agreed to be sold by Veeraswamy in favour of the prospective vendee in the year 1974 for a sum of Rs.51,000/. Such price was agreed to between the vendor as well as the prospective vendee. This Court cannot imagine the value of the property as it stood in the year 1974 in the said area, i.e. at Bhimavaram village in Andhra Pradesh. Be that as it may, we find that hardship was neither pleaded nor proved by the appellants herein before the trial Court. No issue was raised relating to hardship before the trial Court. A plea which was not urged before the trial Court cannot be allowed to be raised for the first time before the appellate Courts. Moreover, mere escalation of price is no ground for interference at this stage (see the judgment of this Court in the case of Narinderjit Singh vs. North Star Estate Promoters Limited, (2012) 5 SCC 712 ). Added to it, as mentioned supra, the appellants do not have the locus standi to question the judgment of the Division Bench since they are not the owners of the property. As a matter of fact, Veeraswamy, the vendor of the properties, had entered the witness box before the trial Court and supported all his alienations in favour of the defendants. Therefore, in our considered opinion, the Division Bench has rightly concluded in favour of Sagi Subba Raju and against the appellants and granted the decree for specific performance. 8. In any event, Shri Thomas P. Joseph, learned senior advocate appearing on behalf of the respondents is justified in contending that these appeals are not maintainable since a number of defendants against whom the relief is sought/claimed have either been deleted from the array of parties, or are dead. The legal representatives of such deceased defendants have not been brought on record. Even before this Court, Respondent No.7 (D8), Respondent No.8 (D9), Respondent No.9 (D10) and Respondent No.11 (D13) in Civil Appeal No. 4382/2016 @ SLP(C) No. 20376/2004 have died. Their legal representatives have also not been brought on record. It is relevant to note here itself that Defendant Nos. 4, 6, 36, 50, 54, 58, 67, 69, 73, 77, 82, 92, 93, 113, 120 and 127 expired during the pendency of the matter before the trial Court in O.S. No. 97 of 1984. So also, Defendant Nos. 20, 53, 64 and 118 have also died and their legal representatives have also not been brought on record. 9. Order 22 Rule 4, CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. If the interests of the co¬ defendants are separate, as in the case of co¬owners, the suit will abate only as regards the particular interest of the deceased party. In such a situation, the question of the abatement of the appeal in its entirety that has arisen in this case depends upon general principles. If the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties. In the matter on hand, the absence of certain defendants who have been deleted from the array of parties along with the absence of legal representatives of a number of deceased defendants will prevent the court from hearing the appeals as against the other defendants. We say so because in the event of these appeals being allowed as against the remaining defendants, there would be two contradictory decrees in the same suit in respect of the same subject matter. One decree would be in favour of the defendants who are deleted or dead and whose legal representatives have not been brought on record; while the other decree would be against the defendants who are still on record in respect of the same subject matter. The subject matter in the suit is the validity of the two Wills. The Courts including the Division Bench of the High Court have consistently held that the two Wills are proved, and thus Veeraswamy being the beneficiary under the two Wills had become the absolute owner of the suit properties in question. Such decree has attained finality in favour of the defendants who are either deleted or dead and whose legal representatives have not been brought on record. In case these appeals are allowed in respect of the other defendants, the decree to be passed by this Court in these appeals would definitely conflict with the decree already passed in favour of the other defendants. As mentioned supra, the Court cannot be called upon to make two inconsistent decrees about the same subject matter. In order to avoid conflicting decrees, the Court has no alternative but to dismiss the appeals in their entirety (see the judgment of this Court in the case of Shahazada Bi vs. Halimabi, (2004) 7 SCC 354 ).

0[ds]Even before this Court, some of the defendants/respondents have expired. The appellants have not bothered to bring on record the legal representatives of such deceased defendants. As a result, the decree passed in favour of the deceased and deleted defendants holding that Veeraswamy had the right to sell the property has attained finality, and consequently the sales made in favour of such defendants have attained finality too. In other words, the validity of the Wills as well as that of the sale deeds stands confirmed in respect of the deceased/deleted defendants and therefore these appeals, which are pending consideration in respect of other defendants before this Court, are liable to be dismissed in view of the fact that in case any order is passed adverse to the interest of the respondents herein/remaining defendants, the same would be conflicting with the judgments and decrees which are already confirmed as against the deceased/deleted. Exhibit B4, the Will dated 14.08.1932, pertains to Schedule A property. The said Will was executed by Sunkara Padmanabhudu, who was admittedly the owner of the Schedule A properties. He had no issue. His wife also expired shortly after his death. The beneficiary under the said Will was Veeraswamy, who is none other than the grandson of Sunkara Venkataramaiah (the brother of Sunkara Padmanabhudu). Exhibit B106, the Will dated 05.10.1968 pertains to Schedule B property. The said Will was executed by Laxmipathi (the father of Veeraswamy) in favour of his son Veeraswamy. Sunkara Padmanabhudu expired on 20.08.1932 and Laxmipathi died on 21.01.1969. Thus, Veeraswamy became the owner of Schedule A and B properties, after the demise of Sunkara Padmanabhudu and Laxmipathi. There is nothing on record to show that the properties in Schedule B were the joint properties of Laxmipathi and his son. So also, it is not established by the plaintiffs that Schedule B properties were available for partition. There are concurrent findings of three Courts on the said point against the appellants/plaintiffs in partition suits. The plaintiff Laxminarasamma is the second wife of Laxmipathi, who has not specifically questioned the alienations made by her son Veeraswamy in favour of Defendant Nos. 5 to 125 by filing O.S. Nos. 97 & 98 of 1984. There is no prayer by her for getting the sale deeds cancelled. All the three Courts concurrently on facts have concluded that both the Wills are proved. Even before us, the findings of the validity of the Wills etc. have not been seriously disputed by the appellants. Even otherwise, on going through the judgments of the three Courts, we find that the reasons assigned and the conclusions arrived at in respect of proof of both the Wills are just and proper. Hence, no interference is called. Since Veeraswamy was the sole owner of the properties by virtue of Exhibits B4 and B106 Wills, naturally he had the right to alienate the properties. Defendant Nos. 5 to 125 and 127 had purchased the properties for valuable consideration from Veeraswamy. As mentioned supra, the alienations made in favour of these defendants/purchasers were not questioned by the appellants in the aforementioned two suits for partition. Be that as it may, since we find that the Courts below are justified in concluding that the sales made in favour of Defendant Nos. 5 to 125 and 127 are just and proper and as they are bona fide purchasers for valuable consideration, no interference is called. Shri A. Subba Rao, learned counsel for the appellants was however forceful in his arguments, insofar as the suit for specific performance is concerned. According to him, the appellants herein (defendants in the suit for specific performance) would be put to hardship if the decree for specific performance is confirmed, inasmuch as there has been a huge escalation in the price of the properties since the agreement of sale. Such plea of escalation in price cannot be accepted in view of the fact that the appellants in the first instance do not have the right to question the agreement of sale. As mentioned supra, since Veeraswamy was the absolute owner of the properties including the property involved in the suit for specific performance, he had the right to enter into an agreement of sale also. This property was bequeathed to Veeraswamy under Exhibit B4 Will by Padmanabhudu. Hence, Veeraswamy was the sole owner of the property. Consequently, he had entered into an agreement of sale with Sagi Subba Raju, as far back as on 19.09.1974. The suit was filed in the year 1978, which was later transferred to another Court and the same was re-numbered as O.S. No. 72 of 1983. Since 1978, this litigation is being fought by the prospective vendee. The property of about three and half acres was agreed to be sold by Veeraswamy in favour of the prospective vendee in the year 1974 for a sum of Rs.51,000/. Such price was agreed to between the vendor as well as the prospective vendee. This Court cannot imagine the value of the property as it stood in the year 1974 in the said area, i.e. at Bhimavaram village in Andhra Pradesh. Be that as it may, we find that hardship was neither pleaded nor proved by the appellants herein before the trial Court. No issue was raised relating to hardship before the trial Court. A plea which was not urged before the trial Court cannot be allowed to be raised for the first time before the appellate Courts. Moreover, mere escalation of price is no ground for interference at this stage (see the judgment of this Court in the case of Narinderjit Singh vs. North Star Estate Promoters Limited, (2012) 5 SCC 712 ). Added to it, as mentioned supra, the appellants do not have the locus standi to question the judgment of the Division Bench since they are not the owners of the property. As a matter of fact, Veeraswamy, the vendor of the properties, had entered the witness box before the trial Court and supported all his alienations in favour of the defendants. Therefore, in our considered opinion, the Division Bench has rightly concluded in favour of Sagi Subba Raju and against the appellants and granted the decree for specific. In any event, Shri Thomas P. Joseph, learned senior advocate appearing on behalf of the respondents is justified in contending that these appeals are not maintainable since a number of defendants against whom the relief is sought/claimed have either been deleted from the array of parties, or are dead.. Order 22 Rule 4, CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. If the interests of the co¬ defendants are separate, as in the case of co¬owners, the suit will abate only as regards the particular interest of the deceased party. In such a situation, the question of the abatement of the appeal in its entirety that has arisen in this case depends upon general principles. If the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties. In the matter on hand, the absence of certain defendants who have been deleted from the array of parties along with the absence of legal representatives of a number of deceased defendants will prevent the court from hearing the appeals as against the other defendants. We say so because in the event of these appeals being allowed as against the remaining defendants, there would be two contradictory decrees in the same suit in respect of the same subject matter. One decree would be in favour of the defendants who are deleted or dead and whose legal representatives have not been brought on record; while the other decree would be against the defendants who are still on record in respect of the same subject matter. The subject matter in the suit is the validity of the two Wills. The Courts including the Division Bench of the High Court have consistently held that the two Wills are proved, and thus Veeraswamy being the beneficiary under the two Wills had become the absolute owner of the suit properties in question. Such decree has attained finality in favour of the defendants who are either deleted or dead and whose legal representatives have not been brought on record. In case these appeals are allowed in respect of the other defendants, the decree to be passed by this Court in these appeals would definitely conflict with the decree already passed in favour of the other defendants. As mentioned supra, the Court cannot be called upon to make two inconsistent decrees about the same subject matter. In order to avoid conflicting decrees, the Court has no alternative but to dismiss the appeals in their entirety (see the judgment of this Court in the case of Shahazada Bi vs. Halimabi, (2004) 7 SCC 354 ).

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: about three and half acres was agreed to be sold by Veeraswamy in favour of the prospective vendee in the year 1974 for a sum of Rs.51,000/. Such price was agreed to between the vendor as well as the prospective vendee. This Court cannot imagine the value of the property as it stood in the year 1974 in the said area, i.e. at Bhimavaram village in Andhra Pradesh. Be that as it may, we find that hardship was neither pleaded nor proved by the appellants herein before the trial Court. No issue was raised relating to hardship before the trial Court. A plea which was not urged before the trial Court cannot be allowed to be raised for the first time before the appellate Courts. Moreover, mere escalation of price is no ground for interference at this stage (see the judgment of this Court in the case of Narinderjit Singh vs. North Star Estate Promoters Limited, (2012) 5 SCC 712 ). Added to it, as mentioned supra, the appellants do not have the locus standi to question the judgment of the Division Bench since they are not the owners of the property. As a matter of fact, Veeraswamy, the vendor of the properties, had entered the witness box before the trial Court and supported all his alienations in favour of the defendants. Therefore, in our considered opinion, the Division Bench has rightly concluded in favour of Sagi Subba Raju and against the appellants and granted the decree for specific performance. 8. In any event, Shri Thomas P. Joseph, learned senior advocate appearing on behalf of the respondents is justified in contending that these appeals are not maintainable since a number of defendants against whom the relief is sought/claimed have either been deleted from the array of parties, or are dead. The legal representatives of such deceased defendants have not been brought on record. Even before this Court, Respondent No.7 (D8), Respondent No.8 (D9), Respondent No.9 (D10) and Respondent No.11 (D13) in Civil Appeal No. 4382/2016 @ SLP(C) No. 20376/2004 have died. Their legal representatives have also not been brought on record. It is relevant to note here itself that Defendant Nos. 4, 6, 36, 50, 54, 58, 67, 69, 73, 77, 82, 92, 93, 113, 120 and 127 expired during the pendency of the matter before the trial Court in O.S. No. 97 of 1984. So also, Defendant Nos. 20, 53, 64 and 118 have also died and their legal representatives have also not been brought on record. 9. Order 22 Rule 4, CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. If the interests of the co¬ defendants are separate, as in the case of co¬owners, the suit will abate only as regards the particular interest of the deceased party. In such a situation, the question of the abatement of the appeal in its entirety that has arisen in this case depends upon general principles. If the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties. In the matter on hand, the absence of certain defendants who have been deleted from the array of parties along with the absence of legal representatives of a number of deceased defendants will prevent the court from hearing the appeals as against the other defendants. We say so because in the event of these appeals being allowed as against the remaining defendants, there would be two contradictory decrees in the same suit in respect of the same subject matter. One decree would be in favour of the defendants who are deleted or dead and whose legal representatives have not been brought on record; while the other decree would be against the defendants who are still on record in respect of the same subject matter. The subject matter in the suit is the validity of the two Wills. The Courts including the Division Bench of the High Court have consistently held that the two Wills are proved, and thus Veeraswamy being the beneficiary under the two Wills had become the absolute owner of the suit properties in question. Such decree has attained finality in favour of the defendants who are either deleted or dead and whose legal representatives have not been brought on record. In case these appeals are allowed in respect of the other defendants, the decree to be passed by this Court in these appeals would definitely conflict with the decree already passed in favour of the other defendants. As mentioned supra, the Court cannot be called upon to make two inconsistent decrees about the same subject matter. In order to avoid conflicting decrees, the Court has no alternative but to dismiss the appeals in their entirety (see the judgment of this Court in the case of Shahazada Bi vs. Halimabi, (2004) 7 SCC 354 ). ### Response: 0

SANDOZ PRIVATE LIMITED Vs. UNION OF INDIA & OTHERS

amount in the CENVAT credit account of the DTA supplier, if the DTA supplier had utilized CENVAT credit account in respect of goods supplied to EOU; and if it had paid the amount in cash, the DTA supplier would be entitled for refund of cash with simple interest at the rate of 6% per annum as provided in para 8.5.1 of the applicable FTP on delay in refund of duty drawback and TED under deemed exports scheme. 40. Reverting to the case of EOU considered by the Bombay High Court in the impugned judgment, we hold that EOU is entitled only for ab initio exemption from payment of central excise duty in terms of para 6.11(c)(ii) of the FTP; and obliged to import the goods from DTA supplier without payment of duty in terms of para 6.2(b) of the FTP. The arrangement provided in para 6.11(a) is, however, in the nature of benefit given to EOU in the event it had paid the amount towards TED in relation to goods procured by it to DTA supplier. In that case, EOU will be eligible only for obtaining entitlements of DTA supplier as specified in Chapter 8 of the FTP upon obtaining a suitable disclaimer from DTA supplier. Accordingly, in addition to ab initio exemption, the EOU is additionally eligible to receive entitlements of DTA supplier as specified in Chapter 8 of the FTP subject to complying with necessary requirements and formalities. In other words, EOU is not entitled for refund of TED on its own accord, but can avail of the entitlements of DTA supplier on complying essential procedure. As mentioned earlier, the interest on the refundable amount, if paid in cash ought to be refunded with simple interest at the rate of 6% per annum as provided in para 8.5.1 of the applicable FTP, even in the case of application for refund by EOU. 41. The next question is: the refund claim should be set up before which Authority? As noted earlier, since the entitlement of exemption and refund of TED flows from the provisions of 1992 Act and FTP framed thereunder by the Central Government, which is an independent dispensation than the one provided in the 1944 Act and the rules framed thereunder, with the avowed purpose of promoting export and earning foreign exchange, it is the obligation of Authority responsible to implement the subject FTP, to deal with refund claim of the concerned entities. For, it is not a case of refund under the 1944 Act or 2002 Rules or 2004 Rules as such, but under the applicable FTP. 42. In conclusion, we hold that the EOU entities, who had procured and imported specified goods from DTA supplier, are entitled to do so without payment of duty [as in para 6.2(b)] having been ab initio exempted from such liability under para 6.11(c)(ii) of the FTP, being deemed exports. Besides this, there is no other entitlement of EOU under the applicable FTP. Indeed, under para 6.11(a) of the FTP, EOU is additionally eligible merely to avail of entitlements of DTA supplier as specified in Chapter 8 of the FTP upon production of a suitable disclaimer from the DTA supplier and subject to compliance of necessary formalities and stipulations. It would not be a case of entitlement of EOU, but only a benefit passed on to EOU for having paid such amount to the DTA supplier, which was otherwise ab initio exempted in terms of para 6.11(c)(ii) of the FTP coupled with the obligation to import the same without payment of duty under para 6.2(b). 43. Besides, if the DTA supplier as well as EOU had utilized its CENVAT credit for importing goods in question, the refund would be in the form of reversal of commensurate amount of CENVAT credit to the account of the concerned entity. However, if TED has been paid in cash by the EOU, the EOU may get refund of that amount from Authority implementing the applicable FTP in cash with simple interest at the rate of 6% per annum for the delayed refund of duty (para 8.5.1) on condition that it would not pass on that benefit to the DTA supplier owing to such refund/rebate. 44. As regards DTA supplier of goods to EOU, it is entitled to receive the refund of TED in terms of para 8.3(c) read with paras 8.4.2 and 8.5 of the applicable FTP subject to complying necessary formalities and stipulations provided therein, being a case of deemed exports. Even, in the case of DTA supplier of goods to EOU, if TED has been paid by utilizing CENVAT credit, the refund would be in the form of reversal of commensurate amount in its CENVAT credit account. And if the amount towards TED has been paid in cash by the DTA supplier to the Authorities under the 1944 Act, the refund of TED amount would be made by the Authority implementing the applicable FTP in cash with simple interest at the rate of 6% per annum for the delay in refund of TED as per para 8.5.1. 45. In both cases, as aforesaid, responsibility of refund of TED in reference to applicable FTP would be that of the Authority responsible to implement the FTP under the 1992 Act, which has had consciously accorded such entitlements/benefits for promoting export and earning foreign exchange. Further, the fact that the concerned entity had unsuccessfully applied for refund to the Authorities under the 1944 Act and the rules made thereunder, that would not denude it of its entitlement to get refund of TED under the FTP, as may be applicable being mutually exclusive remedies. It is so because it is well settled that the assessee is free to take benefit of more beneficial regime. 46. Learned counsel for the parties had referred to other decisions, which in our opinion need not be dealt with as the same are not directly dealing with the issue(s) answered in these cases, in particular dispensation provided under the applicable FTP.

1[ds]9. From the factual matrix delineated above in the respective appeals, it is obvious that Civil Appeal Nos.3358 and 3359 of 2020 pertain to EOUs, who had procured goods from its unit in Domestic Tariff Area (DTA), which transactions were in the nature of deemed export by the DTA Unit to EOU within the meaning of the applicable FTP. On the other hand, the appeals against the decision of the High Court of Delhi and the High Court of Karnataka pertain to the refund claim set up by the DTA Unit — suppliers of goods to concerned EOU, also in reference to self- same Foreign Trade Policy (FTP).12. At the outset, it needs to be borne in mind that the entities in all these cases are claiming refund founded on the FTP and not in reference to the provisions of the 1944 Act or the rules framed thereunder, in particular, the Central Excise Rules, 2002 (for short, 2002 Rules) and the CENVAT Credit Rules, 2004 (for short, 2004 Rules).14. The authorities propounding the FTP were obviously conscious of the purport of the provisions of the 1944 Act and the rules framed thereunder. Despite that, the subject policy had been propounded with the sole objective of promoting exports and earning foreign exchange. At the relevant time, the goal set forth by the policy makers was to achieve the target of at least one per cent of the global trade by promoting exports. It is thus clear that the concessions or so to say, benefits and entitlements provided under the FTP cannot be constricted by the provisions of the taxing statute of 1944 and the rules framed thereunder. To put it tersely, the dispensation provided under the 1992 Act and the FTP must operate independently and is thus mutually exclusive in this regard. Taking any other view would be counter-productive and whittle down the intent behind formulation of a liberal FTP for promoting exports.18. From the scheme of Chapter 6 of FTP, it is thus clear that the EOU can import goods from DTA supplier, which transaction de jure is treated as deemed export; and it can do so without payment of duty, as it has been exempted vide para 6.11(c)(ii) of the FTP. On its own, the EOU is not eligible for any other entitlement.25. Going by the scheme of FTP applicable at the relevant period, it is crystal clear that EOUs were entitled to ab initio exemption from payment of Central Excise duty on goods procured from DTA on goods manufactured in India, as the import of such goods was to be made without payment of duty. No more and no less. That, however, did not preclude the EOU from availing of the entitlement of DTA supplier under Chapter 8 upon obtaining a suitable disclaimer from DTA supplier, as provided in para 6.11(a). That availment by EOU had been linked to entitlement of DTA supplier, as specified in Chapter 8. The DTA supplier could (entitled to) take refund of TED in respect of goods supplied by it to EOU being exempted from TED, in light of para 8.3(c). The eligibility for refund of TED, however, has been circumscribed by formalities and requirements to be adhered to, including as noted in para 8.5. In that, recipient of goods (EOU) does not avail CENVAT credit or rebate. Similarly, DTA supplier would be eligible for deemed export drawback in terms of para 8.3(b) of FTP on Central Excise paid on inputs/components, provided CENVAT credit facility/rebate has not been availed.26. Upon conjoint reading of the relevant para and its clauses, it leaves no manner of doubt that the intent of the subject FTP was to encourage DTA suppliers by providing refund of TED in terms of para 8.3(c), subject to fulfilment of formalities and stipulations in Chapter 8 of FTP. This was also to generate foreign exchange as a consequence of goods supplied as inputs or otherwise, were finally exported by the EOU. The EOU, on the other hand, could only avail of the entitlement of the DTA supplier if the DTA supplier had not taken rebate or CENVAT credit facility (as per para 8.5) treating it as deemed export. This dispensation was uniformly followed until the issue of policy circular dated 15.3.2013.27. As regards the claim for refund of TED by EOU, therefore, need to be governed by the dispensation provided in para 6.11(a) read with entitlement of DTA supplier under Chapter 8 of FTP. However, it may have to be processed by the authorities under the FTP keeping in mind the principle underlying the refund of CENVAT credit granted under Rule 5 of the 2004 Rules and in the manner provided therefor, though not covered by Rule 5. That is because in law it is a case of deemed export by virtue of applicable FTP.28. If the refund claim is by the EOU, the same needs to be processed by the authorities under the FTP by reckoning the entitlement of DTA supplier specified in Chapter 8 of the FTP concerning the goods supplied to it, being a case of deemed exports. The EOU on its own, however, is not entitled for refund of TED, as the mandate to EOU is to procure or import goods from DTA supplier, without payment of duty in view of the express ab initio exemption provided in terms of para 6.2(b) read with para 6.11(c)(ii). However, despite such express obligation on the EOU, if the EOU has had imported goods from DTA supplier by paying TED, it can only claim the benefit of refund provided to DTA supplier under para 8.4.2 read with paras 8.3(c) and 8.5 subject to obtaining disclaimer from DTA supplier in that regard and complying with other formalities and requirements.29. We thus agree with the conclusion reached by the Bombay High Court that the EOU is not entitled to claim refund of TED on its own. However, we add a caveat that EOU may avail of the entitlements of DTA supplier specified in Chapter 8 of FTP on condition that it will not pass on that benefit back to DTA supplier later on. In any case, the refund claim needs to be processed by keeping in mind the procedure underlying the refund of CENVAT credit/rebate of excise duty obligations. If CENVAT credit utilised by DTA supplier or EOU, as the case may be, cannot be encashed, there is no question of refunding the amount in cash. In that case, the commensurate amount must be reversed to the CENVAT credit account of the concerned entity instead of paying cash.30. If, the claim for refund by DTA supplier under the scheme of FTP is allowed, it can be in cash if TED had been paid in cash. Else, it can be in the form of reversal of commensurate CENVAT credit amount to the concerned account of DTA supplier.31. As regards the refund claim of DTA supplier, as noted earlier, it needs to be processed by the authorities under the FTP keeping in mind the purport of stipulations spelt out in Chapter 8 of subject FTP, such as the goods imported or supplied to EOU shall be with actual user condition and shall be utilised for export production and that the EOU did not avail CENVAT credit or rebate in relation to the goods supplied to EOU. Similarly, if the DTA supplier has utilised the CENVAT credit, commensurate amount needs to be reversed to its CENVAT credit account, in which case, there is no question of refunding the amount in cash to the DTA supplier.33. The earliest decision is that of the learned Single Judge of the Calcutta High Court in IFGL Refractories Limited (supra at Footnote No.22). The High Court noted that the Export and Import Policy for the relevant years was adopted amongst other to promote export of Indian products to foreign countries aiming at to earn foreign exchange and to increase global market. The scheme was propounded to encourage indigenous supplier by providing certain benefits and entitlements, either by way of exemption from payment of excise duty or to get refund of excise duty, if already paid. The object of the scheme was to provide exporters duty--free input for production of export materials and for that reason, it exempted supplier from payment of any excise duty and, if paid, to provide for refund of TED. The High Court further noted that merely because such refund was not permissible to the DTA supplier under the 1944 Act and the rules framed thereunder, that would not deprive the DTA supplier to avail of the entitlements and benefits under the FTP. It held that it is open to the assessee to take advantage of any law, particularly which is more beneficial. Accordingly, learned Single Judge issued directions to pay the refundable amount along with interest at the rate of 12 % per annum. The appeal filed by the Department against the said decision was rejected by the Division Bench of the Calcutta High Court in Joint Director General of Foreign Trade (supra at Footnote No.19). The Division Bench, however, directed the DGFT to refund TED amount as it was the concerned Authority under the FTP, subject to assessee completing necessary formalities as provided for in the FTP. This decision was then affirmed by this Court consequent to dismissal of special leave petition being S.L.P. (C) No.5368 of 2002, on 7.10.2002.34. The next decision is of the High Court of Gujarat in the case of Commissioner of Central Excise and Customs vs. NBM Industries 2012 (276) ELT 9 (Guj.) . The Division Bench of the High Court considered the question whether DTA supplier of goods to EOU is entitled for refund of the CENVAT credit despite Rule 5 of the 2004 Rules, dealing with refund of CENVAT credit. The Authorities had held that not being a case of export of goods out of India, the assessee was not entitled for refund of CENVAT credit amount utilised in respect of subject goods supplied to EOU. The High Court relying on its earlier decision in Commissioner of Central Excise vs. Shilpa Copper Wire Industries 2011 (269) ELT 17 (Guj.) , negatived that stand of the Department. Instead, the High Court held that the claim for refund was in reference to the applicable FTP and not on the basis of the provisions of the 1944 Act and the rules framed thereunder. The entitlement of DTA supplier was specified in the applicable FTP being deemed exports which in law are regarded as physical exports for the purpose of entitling refund of unutilised CENVAT credit.35. Then came the decision of the High Court of Delhi in Kandoi Metal Powders Manufacturing Company Private Limited (supra at Footnote No.18). Even, this was a case of supplier manufacturing goods supplied to EOU in reference to the applicable FTP. The High Court not only relied on the decision of the Division Bench of the Calcutta High Court in Joint Director General of Foreign Trade (supra at Footnote No.19), but independently opined that DGFT having formulated the FTP, the claim of the assessee was governed by the entitlements specified therein in paras 8.2, 8.3, 8.4 and 8.5 as applicable at the relevant time. Accordingly, the High Court allowed the writ petition and relegated the writ petitioner before the Authority concerned for deciding the refund claim of the petitioner. This judgment has been followed in subsequent decisions, not only by the coordinate Benches of the High Court of Delhi, but also by other High Courts.39. The view taken in these decisions at the instance of the DTA supplier of specified goods to EOU is in consonance with the view taken by us in this judgment. To that extent, we affirm these decisions and hold that the DTA supplier of goods to EOU would be entitled for refund of TED on the basis of applicable para 6.11(a) read with paras 8.3(c), 8.4.2 and 8.5 of the FTP under consideration. The modality of refund, however, ought to be in the form of reversal of commensurate amount in the CENVAT credit account of the DTA supplier, if the DTA supplier had utilized CENVAT credit account in respect of goods supplied to EOU; and if it had paid the amount in cash, the DTA supplier would be entitled for refund of cash with simple interest at the rate of 6% per annum as provided in para 8.5.1 of the applicable FTP on delay in refund of duty drawback and TED under deemed exports scheme.40. Reverting to the case of EOU considered by the Bombay High Court in the impugned judgment, we hold that EOU is entitled only for ab initio exemption from payment of central excise duty in terms of para 6.11(c)(ii) of the FTP; and obliged to import the goods from DTA supplier without payment of duty in terms of para 6.2(b) of the FTP. The arrangement provided in para 6.11(a) is, however, in the nature of benefit given to EOU in the event it had paid the amount towards TED in relation to goods procured by it to DTA supplier. In that case, EOU will be eligible only for obtaining entitlements of DTA supplier as specified in Chapter 8 of the FTP upon obtaining a suitable disclaimer from DTA supplier. Accordingly, in addition to ab initio exemption, the EOU is additionally eligible to receive entitlements of DTA supplier as specified in Chapter 8 of the FTP subject to complying with necessary requirements and formalities. In other words, EOU is not entitled for refund of TED on its own accord, but can avail of the entitlements of DTA supplier on complying essential procedure. As mentioned earlier, the interest on the refundable amount, if paid in cash ought to be refunded with simple interest at the rate of 6% per annum as provided in para 8.5.1 of the applicable FTP, even in the case of application for refund by EOU.As noted earlier, since the entitlement of exemption and refund of TED flows from the provisions of 1992 Act and FTP framed thereunder by the Central Government, which is an independent dispensation than the one provided in the 1944 Act and the rules framed thereunder, with the avowed purpose of promoting export and earning foreign exchange, it is the obligation of Authority responsible to implement the subject FTP, to deal with refund claim of the concerned entities. For, it is not a case of refund under the 1944 Act or 2002 Rules or 2004 Rules as such, but under the applicable FTP.42. In conclusion, we hold that the EOU entities, who had procured and imported specified goods from DTA supplier, are entitled to do so without payment of duty [as in para 6.2(b)] having been ab initio exempted from such liability under para 6.11(c)(ii) of the FTP, being deemed exports. Besides this, there is no other entitlement of EOU under the applicable FTP. Indeed, under para 6.11(a) of the FTP, EOU is additionally eligible merely to avail of entitlements of DTA supplier as specified in Chapter 8 of the FTP upon production of a suitable disclaimer from the DTA supplier and subject to compliance of necessary formalities and stipulations. It would not be a case of entitlement of EOU, but only a benefit passed on to EOU for having paid such amount to the DTA supplier, which was otherwise ab initio exempted in terms of para 6.11(c)(ii) of the FTP coupled with the obligation to import the same without payment of duty under para 6.2(b).43. Besides, if the DTA supplier as well as EOU had utilized its CENVAT credit for importing goods in question, the refund would be in the form of reversal of commensurate amount of CENVAT credit to the account of the concerned entity. However, if TED has been paid in cash by the EOU, the EOU may get refund of that amount from Authority implementing the applicable FTP in cash with simple interest at the rate of 6% per annum for the delayed refund of duty (para 8.5.1) on condition that it would not pass on that benefit to the DTA supplier owing to such refund/rebate.44. As regards DTA supplier of goods to EOU, it is entitled to receive the refund of TED in terms of para 8.3(c) read with paras 8.4.2 and 8.5 of the applicable FTP subject to complying necessary formalities and stipulations provided therein, being a case of deemed exports. Even, in the case of DTA supplier of goods to EOU, if TED has been paid by utilizing CENVAT credit, the refund would be in the form of reversal of commensurate amount in its CENVAT credit account. And if the amount towards TED has been paid in cash by the DTA supplier to the Authorities under the 1944 Act, the refund of TED amount would be made by the Authority implementing the applicable FTP in cash with simple interest at the rate of 6% per annum for the delay in refund of TED as per para 8.5.1.45. In both cases, as aforesaid, responsibility of refund of TED in reference to applicable FTP would be that of the Authority responsible to implement the FTP under the 1992 Act, which has had consciously accorded such entitlements/benefits for promoting export and earning foreign exchange. Further, the fact that the concerned entity had unsuccessfully applied for refund to the Authorities under the 1944 Act and the rules made thereunder, that would not denude it of its entitlement to get refund of TED under the FTP, as may be applicable being mutually exclusive remedies. It is so because it is well settled that the assessee is free to take benefit of more beneficial regime.46. Learned counsel for the parties had referred to other decisions, which in our opinion need not be dealt with as the same are not directly dealing with the issue(s) answered in these cases, in particular dispensation provided under the applicable FTP.

### 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: amount in the CENVAT credit account of the DTA supplier, if the DTA supplier had utilized CENVAT credit account in respect of goods supplied to EOU; and if it had paid the amount in cash, the DTA supplier would be entitled for refund of cash with simple interest at the rate of 6% per annum as provided in para 8.5.1 of the applicable FTP on delay in refund of duty drawback and TED under deemed exports scheme. 40. Reverting to the case of EOU considered by the Bombay High Court in the impugned judgment, we hold that EOU is entitled only for ab initio exemption from payment of central excise duty in terms of para 6.11(c)(ii) of the FTP; and obliged to import the goods from DTA supplier without payment of duty in terms of para 6.2(b) of the FTP. The arrangement provided in para 6.11(a) is, however, in the nature of benefit given to EOU in the event it had paid the amount towards TED in relation to goods procured by it to DTA supplier. In that case, EOU will be eligible only for obtaining entitlements of DTA supplier as specified in Chapter 8 of the FTP upon obtaining a suitable disclaimer from DTA supplier. Accordingly, in addition to ab initio exemption, the EOU is additionally eligible to receive entitlements of DTA supplier as specified in Chapter 8 of the FTP subject to complying with necessary requirements and formalities. In other words, EOU is not entitled for refund of TED on its own accord, but can avail of the entitlements of DTA supplier on complying essential procedure. As mentioned earlier, the interest on the refundable amount, if paid in cash ought to be refunded with simple interest at the rate of 6% per annum as provided in para 8.5.1 of the applicable FTP, even in the case of application for refund by EOU. 41. The next question is: the refund claim should be set up before which Authority? As noted earlier, since the entitlement of exemption and refund of TED flows from the provisions of 1992 Act and FTP framed thereunder by the Central Government, which is an independent dispensation than the one provided in the 1944 Act and the rules framed thereunder, with the avowed purpose of promoting export and earning foreign exchange, it is the obligation of Authority responsible to implement the subject FTP, to deal with refund claim of the concerned entities. For, it is not a case of refund under the 1944 Act or 2002 Rules or 2004 Rules as such, but under the applicable FTP. 42. In conclusion, we hold that the EOU entities, who had procured and imported specified goods from DTA supplier, are entitled to do so without payment of duty [as in para 6.2(b)] having been ab initio exempted from such liability under para 6.11(c)(ii) of the FTP, being deemed exports. Besides this, there is no other entitlement of EOU under the applicable FTP. Indeed, under para 6.11(a) of the FTP, EOU is additionally eligible merely to avail of entitlements of DTA supplier as specified in Chapter 8 of the FTP upon production of a suitable disclaimer from the DTA supplier and subject to compliance of necessary formalities and stipulations. It would not be a case of entitlement of EOU, but only a benefit passed on to EOU for having paid such amount to the DTA supplier, which was otherwise ab initio exempted in terms of para 6.11(c)(ii) of the FTP coupled with the obligation to import the same without payment of duty under para 6.2(b). 43. Besides, if the DTA supplier as well as EOU had utilized its CENVAT credit for importing goods in question, the refund would be in the form of reversal of commensurate amount of CENVAT credit to the account of the concerned entity. However, if TED has been paid in cash by the EOU, the EOU may get refund of that amount from Authority implementing the applicable FTP in cash with simple interest at the rate of 6% per annum for the delayed refund of duty (para 8.5.1) on condition that it would not pass on that benefit to the DTA supplier owing to such refund/rebate. 44. As regards DTA supplier of goods to EOU, it is entitled to receive the refund of TED in terms of para 8.3(c) read with paras 8.4.2 and 8.5 of the applicable FTP subject to complying necessary formalities and stipulations provided therein, being a case of deemed exports. Even, in the case of DTA supplier of goods to EOU, if TED has been paid by utilizing CENVAT credit, the refund would be in the form of reversal of commensurate amount in its CENVAT credit account. And if the amount towards TED has been paid in cash by the DTA supplier to the Authorities under the 1944 Act, the refund of TED amount would be made by the Authority implementing the applicable FTP in cash with simple interest at the rate of 6% per annum for the delay in refund of TED as per para 8.5.1. 45. In both cases, as aforesaid, responsibility of refund of TED in reference to applicable FTP would be that of the Authority responsible to implement the FTP under the 1992 Act, which has had consciously accorded such entitlements/benefits for promoting export and earning foreign exchange. Further, the fact that the concerned entity had unsuccessfully applied for refund to the Authorities under the 1944 Act and the rules made thereunder, that would not denude it of its entitlement to get refund of TED under the FTP, as may be applicable being mutually exclusive remedies. It is so because it is well settled that the assessee is free to take benefit of more beneficial regime. 46. Learned counsel for the parties had referred to other decisions, which in our opinion need not be dealt with as the same are not directly dealing with the issue(s) answered in these cases, in particular dispensation provided under the applicable FTP. ### Response: 1

The Edward Mills Co. Ltd., Beawar, And Others Vs. The State Of Ajmer And Another

in the Act. The Legislature could be said therefore to have applied its mine to the question of the application of the law to particular places and it was left to the executive only to determine when the law would be made operative in those places. According to the High Court of Australia the same principle would apply even when the executive is given power to determine to what other persons or goods the law shall be extended besides those specifically mentioned therein.24. Whether a provision like this strictly comes within the description of what is called "conditional legislation" is not very material. The question is, whether it exceeds the limits of permissible delegation. As was said by OConnor J. himself in the above case, when a Legislature is given plenary power to legislate on a particular subject there must also be an implied power to make laws incidental to the exercise of such power. It is a fundamental principle of constitutional law that everything necessary to the exercise of a power is included in the grant of the power. A Legislature cannot certainly strip itself of its essential functions and vest the same on an extraneous authority. The primary duty of law making has to be discharged by the Legislature itself but delegation may be resorted to as a subsidiary or on ancillary measure.25. Mr. Chatterjee contends that the essential legislative function is to lay down a policy and to make it a binding rule of conduct. This legislative policy, he says, is not discernible anywhere in the provisions of this Act and consequently there is no standard or criterion to guide the administrative authority in the exercise of the subsidiary legislative powers. We do not think that this is the correct view to take. The legislative policy is apparent on the face of the present enactment. What it aims at is the statutory fixation of minimum wages with a view to obviate the chance of exploitation of labour.26. The Legislature undoubtedly intended to apply this Act not to all industries but to those industries only where by reason of unorganized labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low. It is with an eye to these facts that the list of trades has been drawn up in the schedule attached to the Act but the list is not an exhaustive one and it is the policy of the Legislature not to lay down at once and for all time to which industries the Act should be applied. Conditions of labour vary under different circumstances and from State to State and the expediency of including a particular trade or industry within the schedule depends upon a variety of facts which are by no means uniform and which can best be ascertained by the person who is placed in charge of the administration of a particular State.It is to carry out effectively the purpose of this enactment that power has been given to the "appropriate Government" to decide, with reference to local conditions, whether it is desirable that minimum wages should be fixed in regard to a particular trade or industry which is not already included in the list. We do not think that in enacting section 27 the Legislature has in any way stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. The second contention of Mr. Chatterjee cannot therefore succeed.27. The third and the last point raised by Mr. Chatterjee is directed against the notification of the Chief Commissioner by which he extended the term of the Advisory Committee till the 20th of September, 1952. It is argued that the term of the committee, as originally fixed, expired on the 16th of July, 1952, and on and from the 17th of July all the members of the committee became functus officio. The Commissioner therefore was not competent to give a fresh lease of life to the committee which was already dead. We do not think that there is much substance in this contention.28. Rule 3 of the rules framed under section 30 of the Act expressly lays down that the State Government may fix the term of the committee when it is constituted and may from time to time extend it as circumstances require. The State Government had therefore a right to extend the term of the committee in such way as it liked. The only question is whether it could do so after the period originally fixed had come to an end. Mr. Chatterjee relied, in this connection, upon certain cases which held that the Court could not grant extension of time in an arbitration proceeding after the award was filed and an award made after the prescribed period is a nullity. In our opinion this analogy is not at all helpful to the appellants in the present case. It is not disputed that the committee did not function at all and did no work after the 16th of July, 1952, and before the 21st of August next when its term was extended.29. No report was submitted during this period and there was no extension of time granted after the submission of the report. Assuming that the order of the 21st of August, 1952, could not revive a committee which was already dead, it could certainly be held that a new committee was constituted on that date and even then the report submitted by it would be a perfectly good report. Quite apart from this, it is to be noted that a committee appointed under section 5 of the Act is only an advisory body and that the Government is not bound to accept any of its recommendations. Consequently, procedural irregularities of this character could not vitiate the final report which fixed the minimum wages.

1[ds]16. The contention does not appear to us to be sound. A complete reply to this argument is furnished, in our opinion, by the provisions of clauses (1) and (2) of article 372 of theclause (1) of the article provides for continuance, in force, of the existing laws notwithstanding the repeal by the Constitution of the enactments mentioned in article 395 and clause (2) provides for their adaptation with a view to bring them into accord with the provisions of the Constitution. The Government of India Act, 1935, undoubtedly stands repealed by article 395 of the Constitution, but laws made thereunder which were in existence immediately before the commencement of the Constitution would continue under article 372(1) and could be adapted under the second clause of that article.The first point does not impress us much and we do not think that there is any material difference between "an existing law" and "a law in force". Quite apart from article 366(10) of the Constitution, the expression "Indian law" has itself been defined in section 3(29) of the General Clauses Act as meaning any Act, ordinance, regulation, rule, order, orwhich before the commencement of the Constitution had the force of law in any province of India or part thereof. In our opinion, the words "law in force" as used in article 372 are wide enough to include not merely a legislative enactment but also any regulation or order which has the force of law. We agree with Mr. Chatterjee that an order must be a legislative and not an executive order before it can come within the definition of law. We do not agree with him however that the order made by thein the present case under section 94(3) of the Government of India Act is a mere executive order.19. Part IV of the Government of India Act, 1935, which begins with section 94, deals with Chief Commissioners Provinces and(3) lays down how a Chief Commissioners Province shall be administered. It provides that it shall be administered by theacting through a Chief Commissioner to such extent as he thinks fit. An order made by theunder section 94(3) investing the Chief Commissioner with the authority to administer a province is really in the nature of a legislative provision which defines the rights and powers of the Chief Commissioner in respect to that province. In our opinion such an order comes within the purview of article 372 of the Constitution and being "a law in force" immediately before the commencement of the Constitution would continue to be in force under clause (1) of the article.20. Agreeably to this view it must also be held that such order is capable of adaptation to bring it in accord with the Constitutional provisions under clause (2) of article 372 and this is precisely what has been done by the Adaptation of Laws Order,26 of the Order runs as follows :"Where any rule, order or other instrument was in force under any provision of the Government of India Act, 1935, or under any Act amending or supplementing that Act, immediately before the appointed day, and such provisions iswith or without modifications in the Constitution, the said rule, order or instrument shall, so far as applicable, remain in force with the necessary modifications as from the appointed day as if it were a rule, order or instrument of the appropriate kind duly made by the appropriate authority under the said provision of the Constitution, and may be varied or revoked accordingly."Thus the order made under section 94(3) of the Government of India Act should be reckoned now as an order made under article 239 of the Constitution and we are unable to agree with Mr. Chatterjee that it was beyond the competence of the President under clause (2) of article 372 to make the adaptation order mentioned above. The first contention of Mr. Chatterjee therefore fails.There is undoubtedly an element of delegation implied in the provision of section 27 of the Act, for the Legislature, in a sense, authorises another body, specified by it, to do something which it might do itself. But such delegation, if it can be so called at all, does not in the circumstances of the present case appear to us to be unwarranted andwas said by OConnor J. himself in the above case, when a Legislature is given plenary power to legislate on a particular subject there must also be an implied power to make laws incidental to the exercise of such power. It is a fundamental principle of constitutional law that everything necessary to the exercise of a power is included in the grant of the power. A Legislature cannot certainly strip itself of its essential functions and vest the same on an extraneous authority. The primary duty of law making has to be discharged by the Legislature itself but delegation may be resorted to as a subsidiary or on ancillary measure.25.Mr. Chatterjee contends that the essential legislative function is to lay down a policy and to make it a binding rule of conduct. This legislative policy, he says, is not discernible anywhere in the provisions of this Act and consequently there is no standard or criterion to guide the administrative authority in the exercise of the subsidiary legislative powers.We do not think that this is the correct view to take. The legislative policy is apparent on the face of the present enactment. What it aims at is the statutory fixation of minimum wages with a view to obviate the chance of exploitation of labour.26. The Legislature undoubtedly intended to apply this Act not to all industries but to those industries only where by reason of unorganized labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low. It is with an eye to these facts that the list of trades has been drawn up in the schedule attached to the Act but the list is not an exhaustive one and it is the policy of the Legislature not to lay down at once and for all time to which industries the Act should be applied. Conditions of labour vary under different circumstances and from State to State and the expediency of including a particular trade or industry within the schedule depends upon a variety of facts which are by no means uniform and which can best be ascertained by the person who is placed in charge of the administration of a particular State.It is to carry out effectively the purpose of this enactment that power has been given to the "appropriate Government" to decide, with reference to local conditions, whether it is desirable that minimum wages should be fixed in regard to a particular trade or industry which is not already included in the list. We do not think that in enacting section 27 the Legislature has in any way stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. The second contention of Mr. Chatterjee cannot therefore succeed.27.The third and the last point raised by Mr. Chatterjee is directed against the notification of the Chief Commissioner by which he extended the term of the Advisory Committee till the 20th of September, 1952. It is argued that the term of the committee, as originally fixed, expired on the 16th of July, 1952, and on and from the 17th of July all the members of the committee became functus officio. The Commissioner therefore was not competent to give a fresh lease of life to the committee which was already dead.We do not think that there is much substance in this contention.28. Rule 3 of the rules framed under section 30 of the Act expressly lays down that the State Government may fix the term of the committee when it is constituted and may from time to time extend it as circumstances require. The State Government had therefore a right to extend the term of the committee in such way as it liked. Theonly question is whether it could do so after the period originally fixed had come to an end. Mr. Chatterjee relied, in this connection, upon certain cases which held that the Court could not grant extension of time in an arbitration proceeding after the award was filed and an award made after the prescribed period is a nullity.In our opinion this analogy is not at all helpful to the appellants in the present case. It is not disputed that the committee did not function at all and did no work after the 16th of July, 1952, and before the 21st of August next when its term was extended.29. No report was submitted during this period and there was no extension of time granted after the submission of the report. Assuming that the order of the 21st of August, 1952, could not revive a committee which was already dead, it could certainly be held that a new committee was constituted on that date and even then the report submitted by it would be a perfectly good report. Quite apart from this, it is to be noted that a committee appointed under section 5 of the Act is only an advisory body and that the Government is not bound to accept any of its recommendations. Consequently, procedural irregularities of this character could not vitiate the final report which fixed the minimum wages.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: in the Act. The Legislature could be said therefore to have applied its mine to the question of the application of the law to particular places and it was left to the executive only to determine when the law would be made operative in those places. According to the High Court of Australia the same principle would apply even when the executive is given power to determine to what other persons or goods the law shall be extended besides those specifically mentioned therein.24. Whether a provision like this strictly comes within the description of what is called "conditional legislation" is not very material. The question is, whether it exceeds the limits of permissible delegation. As was said by OConnor J. himself in the above case, when a Legislature is given plenary power to legislate on a particular subject there must also be an implied power to make laws incidental to the exercise of such power. It is a fundamental principle of constitutional law that everything necessary to the exercise of a power is included in the grant of the power. A Legislature cannot certainly strip itself of its essential functions and vest the same on an extraneous authority. The primary duty of law making has to be discharged by the Legislature itself but delegation may be resorted to as a subsidiary or on ancillary measure.25. Mr. Chatterjee contends that the essential legislative function is to lay down a policy and to make it a binding rule of conduct. This legislative policy, he says, is not discernible anywhere in the provisions of this Act and consequently there is no standard or criterion to guide the administrative authority in the exercise of the subsidiary legislative powers. We do not think that this is the correct view to take. The legislative policy is apparent on the face of the present enactment. What it aims at is the statutory fixation of minimum wages with a view to obviate the chance of exploitation of labour.26. The Legislature undoubtedly intended to apply this Act not to all industries but to those industries only where by reason of unorganized labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low. It is with an eye to these facts that the list of trades has been drawn up in the schedule attached to the Act but the list is not an exhaustive one and it is the policy of the Legislature not to lay down at once and for all time to which industries the Act should be applied. Conditions of labour vary under different circumstances and from State to State and the expediency of including a particular trade or industry within the schedule depends upon a variety of facts which are by no means uniform and which can best be ascertained by the person who is placed in charge of the administration of a particular State.It is to carry out effectively the purpose of this enactment that power has been given to the "appropriate Government" to decide, with reference to local conditions, whether it is desirable that minimum wages should be fixed in regard to a particular trade or industry which is not already included in the list. We do not think that in enacting section 27 the Legislature has in any way stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. The second contention of Mr. Chatterjee cannot therefore succeed.27. The third and the last point raised by Mr. Chatterjee is directed against the notification of the Chief Commissioner by which he extended the term of the Advisory Committee till the 20th of September, 1952. It is argued that the term of the committee, as originally fixed, expired on the 16th of July, 1952, and on and from the 17th of July all the members of the committee became functus officio. The Commissioner therefore was not competent to give a fresh lease of life to the committee which was already dead. We do not think that there is much substance in this contention.28. Rule 3 of the rules framed under section 30 of the Act expressly lays down that the State Government may fix the term of the committee when it is constituted and may from time to time extend it as circumstances require. The State Government had therefore a right to extend the term of the committee in such way as it liked. The only question is whether it could do so after the period originally fixed had come to an end. Mr. Chatterjee relied, in this connection, upon certain cases which held that the Court could not grant extension of time in an arbitration proceeding after the award was filed and an award made after the prescribed period is a nullity. In our opinion this analogy is not at all helpful to the appellants in the present case. It is not disputed that the committee did not function at all and did no work after the 16th of July, 1952, and before the 21st of August next when its term was extended.29. No report was submitted during this period and there was no extension of time granted after the submission of the report. Assuming that the order of the 21st of August, 1952, could not revive a committee which was already dead, it could certainly be held that a new committee was constituted on that date and even then the report submitted by it would be a perfectly good report. Quite apart from this, it is to be noted that a committee appointed under section 5 of the Act is only an advisory body and that the Government is not bound to accept any of its recommendations. Consequently, procedural irregularities of this character could not vitiate the final report which fixed the minimum wages. ### Response: 1

Kangra Valley Slate Co. Ltd Vs. State Of Punjab & Ors

acknowledging their receipts and disposal thereof was to see that the development of mines and exploitation of minerals took place both in a regulated manner and without any undue delay. R. 28 with which we are immediately concerned not only lays down the time within which a renewal application is to be made but also provides that if it is not disposed of before the expiry of the lease the period of the lease shall be deemed to have been extended for a further period of six months or ending with the date of the receipt of the orders of the State Government thereon whichever is shorter..The object of providing time limit for the renewal application was that sufficient time before the expiry of lease was available to the State Government to decide whether the renewal should be granted or not, for, if the renewal was not granted the land in question would be available for re-grant and the State Government would have to declare that the land was so available for re-grant, invite applications for the grant of the lease and follow the procedure laid down in the Act and the Rules therefore. It is obvious that if the time of six months prescribed in rules 22 and 28 was not available to the State Government it would not be possible for it to decide within time and to follow the procedure for granting a fresh lease to someone else. The result would be that mining operations would be delayed in that particular land and to, that extent the object of the Act and the duty imposed by s. 18 on the Central Government would be delayed or defeated. Considering the scheme and the object of the Act and the rules it is not possible to agree with Mr. Gupte that r. 28 was not intended to be mandatory and is only directory.8. Mr. Gupte next contended that r. 28 laying down the period 1 limitation for renewal application was ultra vires sec. 13(2) of the Act, as the time limit prescribed in the rule does not fall under any of the matters set out in that subsection. Assuming that it is so, sub-sec. 1 authorises the Central Government to make rules for regulating the grant of mining leases and the Central Government in pursuance of that power can make rules including the, one laying down the time within which a renewal application should be made. A grant of renewal of a lease is granting a mining lease, and therefore, fixing time within which an application for it should be made would be regulating the grant of a lease. A similar contention was considered in King Emperor v. Sibnath Banerjee(-7-2 I.A. 241 at 8) in connection with r. 25 of the Defence of India Rules made under S. 2 of the Defence of India Act, 1939, as amended in 1940, and the Privy Council held that though the rule did not fall under any of the matters enumerated in sub-sec. 2 of sec. 2, the rule was competent as it would be one which could be made under the generality of Powers contained in sub-sec. 1 of sec. 2.Their Lordships held that the function of sub-sec. 2 was merely an illustrative one considering that the rule making power was conferred by sub-sec. 1 and the rules referred to in the opening sentence of sub-sec. 2 were the rules which were authorised by and made under sub-sec. 1. Therefore, the provisions of sub-sec. 2 were not restrictive of sub-sec. 1 and that indeed was expressly stated by the words "without prejudice to the generality of the powers confer red by sub-sec. 1". The general language of sub-sec. 1, therefore, amply justified the terms of r. 26 and avoided the contention that it was not justified under sub-sec. 2. These observations were followed with approval in State of Kerala v. Shri M. Appukutty( [1963] Supp.1 C.R.563, 569, 570) where the vires of r. 17 of the Madras General Sales Tax Rules made under s. 19 of the Madras General Sales Tax Act, 9 of 1939 were challenged and the challenge was rejected. The argument, therefore, that r. 28 was invalid by reason of its not falling under any one of the matters set out in s. 13(2) is without substance.9. In the view that we take that r. 28 is a valid rule and that it is mandatory, the application was clearly beyond the time appointed under the rule, the company having failed to establish that it was made, as it alleged, on September 20, 1961. In that view it would not be necessary for us to go into the questions whether the order of the Central Government not being a speaking order was bad or whether the application by the company was not a valid one inasmuch as the company was not possessed a certificate of approval at the date when the application was made and its copy was, not annexed -thereto as required by Form J. Assuming that the application was a valid one and that the requirement of annexing the copy of the certificate of approval was not mandatory and assuming further that the order of the Central Government was not a valid one, the only thing that we could be asked to do would be to send back the matter to the Central Government directing it to pass a proper order. But in the view that we have taken of r. 28 and consequently of the application for renewal being time-barred, the Central Government can only reject once again the revision application adding in its order that the Director was right in rejecting the application as it was time-barred. Such an order of remand would serve no useful purpose so far as the appellant company is concerned. That being so, it is not worth our while to interfere under Art. 136 with the order of the Central Government and ask that Government to pass a fresh order.10.

0[ds]It is clear that the object of these rules laying down time limits for making applications, acknowledging their receipts and disposal thereof was to see that the development of mines and exploitation of minerals took place both in a regulated manner and without any undue delay. R. 28 with which we are immediately concerned not only lays down the time within which a renewal application is to be made but also provides that if it is not disposed of before the expiry of the lease the period of the lease shall be deemed to have been extended for a further period of six months or ending with the date of the receipt of the orders of the State Government thereon whichever is shorter..The object of providing time limit for the renewal application was that sufficient time before the expiry of lease was available to the State Government to decide whether the renewal should be granted or not, for, if the renewal was not granted the land in question would be available for re-grant and the State Government would have to declare that the land was so available for re-grant, invite applications for the grant of the lease and follow the procedure laid down in the Act and the Rules therefore. It is obvious that if the time of six months prescribed in rules 22 and 28 was not available to the State Government it would not be possible for it to decide within time and to follow the procedure for granting a fresh lease to someone else. The result would be that mining operations would be delayed in that particular land and to, that extent the object of the Act and the duty imposed by s. 18 on the Central Government would be delayed or defeated. Considering the scheme and the object of the Act and the rules it is not possible to agree with Mr. Gupte that r. 28 was not intended to be mandatory and is onlythe view that we take that r. 28 is a valid rule and that it is mandatory, the application was clearly beyond the time appointed under the rule, the company having failed to establish that it was made, as it alleged, on September 20, 1961. In that view it would not be necessary for us to go into the questions whether the order of the Central Government not being a speaking order was bad or whether the application by the company was not a valid one inasmuch as the company was not possessed a certificate of approval at the date when the application was made and its copy was, not annexed -thereto as required by Form J. Assuming that the application was a valid one and that the requirement of annexing the copy of the certificate of approval was not mandatory and assuming further that the order of the Central Government was not a valid one, the only thing that we could be asked to do would be to send back the matter to the Central Government directing it to pass a proper order. But in the view that we have taken of r. 28 and consequently of the application for renewal being time-barred, the Central Government can only reject once again the revision application adding in its order that the Director was right in rejecting the application as it was time-barred. Such an order of remand would serve no useful purpose so far as the appellant company is concerned. That being so, it is not worth our while to interfere under Art. 136 with the order of the Central Government and ask that Government to pass a fresh order.

### Instruction: Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant. ### Input: acknowledging their receipts and disposal thereof was to see that the development of mines and exploitation of minerals took place both in a regulated manner and without any undue delay. R. 28 with which we are immediately concerned not only lays down the time within which a renewal application is to be made but also provides that if it is not disposed of before the expiry of the lease the period of the lease shall be deemed to have been extended for a further period of six months or ending with the date of the receipt of the orders of the State Government thereon whichever is shorter..The object of providing time limit for the renewal application was that sufficient time before the expiry of lease was available to the State Government to decide whether the renewal should be granted or not, for, if the renewal was not granted the land in question would be available for re-grant and the State Government would have to declare that the land was so available for re-grant, invite applications for the grant of the lease and follow the procedure laid down in the Act and the Rules therefore. It is obvious that if the time of six months prescribed in rules 22 and 28 was not available to the State Government it would not be possible for it to decide within time and to follow the procedure for granting a fresh lease to someone else. The result would be that mining operations would be delayed in that particular land and to, that extent the object of the Act and the duty imposed by s. 18 on the Central Government would be delayed or defeated. Considering the scheme and the object of the Act and the rules it is not possible to agree with Mr. Gupte that r. 28 was not intended to be mandatory and is only directory.8. Mr. Gupte next contended that r. 28 laying down the period 1 limitation for renewal application was ultra vires sec. 13(2) of the Act, as the time limit prescribed in the rule does not fall under any of the matters set out in that subsection. Assuming that it is so, sub-sec. 1 authorises the Central Government to make rules for regulating the grant of mining leases and the Central Government in pursuance of that power can make rules including the, one laying down the time within which a renewal application should be made. A grant of renewal of a lease is granting a mining lease, and therefore, fixing time within which an application for it should be made would be regulating the grant of a lease. A similar contention was considered in King Emperor v. Sibnath Banerjee(-7-2 I.A. 241 at 8) in connection with r. 25 of the Defence of India Rules made under S. 2 of the Defence of India Act, 1939, as amended in 1940, and the Privy Council held that though the rule did not fall under any of the matters enumerated in sub-sec. 2 of sec. 2, the rule was competent as it would be one which could be made under the generality of Powers contained in sub-sec. 1 of sec. 2.Their Lordships held that the function of sub-sec. 2 was merely an illustrative one considering that the rule making power was conferred by sub-sec. 1 and the rules referred to in the opening sentence of sub-sec. 2 were the rules which were authorised by and made under sub-sec. 1. Therefore, the provisions of sub-sec. 2 were not restrictive of sub-sec. 1 and that indeed was expressly stated by the words "without prejudice to the generality of the powers confer red by sub-sec. 1". The general language of sub-sec. 1, therefore, amply justified the terms of r. 26 and avoided the contention that it was not justified under sub-sec. 2. These observations were followed with approval in State of Kerala v. Shri M. Appukutty( [1963] Supp.1 C.R.563, 569, 570) where the vires of r. 17 of the Madras General Sales Tax Rules made under s. 19 of the Madras General Sales Tax Act, 9 of 1939 were challenged and the challenge was rejected. The argument, therefore, that r. 28 was invalid by reason of its not falling under any one of the matters set out in s. 13(2) is without substance.9. In the view that we take that r. 28 is a valid rule and that it is mandatory, the application was clearly beyond the time appointed under the rule, the company having failed to establish that it was made, as it alleged, on September 20, 1961. In that view it would not be necessary for us to go into the questions whether the order of the Central Government not being a speaking order was bad or whether the application by the company was not a valid one inasmuch as the company was not possessed a certificate of approval at the date when the application was made and its copy was, not annexed -thereto as required by Form J. Assuming that the application was a valid one and that the requirement of annexing the copy of the certificate of approval was not mandatory and assuming further that the order of the Central Government was not a valid one, the only thing that we could be asked to do would be to send back the matter to the Central Government directing it to pass a proper order. But in the view that we have taken of r. 28 and consequently of the application for renewal being time-barred, the Central Government can only reject once again the revision application adding in its order that the Director was right in rejecting the application as it was time-barred. Such an order of remand would serve no useful purpose so far as the appellant company is concerned. That being so, it is not worth our while to interfere under Art. 136 with the order of the Central Government and ask that Government to pass a fresh order.10. ### Response: 0

Ghanshyam Sarda Vs. Sashikant Jha, Director, M/s. JK Jute Mills Co. Ltd. & Others

was done under the express directions and alleged Contemnor No.3. However, such a statement coming from a co-contemnor, in our view, is not sufficient to reach a conclusion about the involvement of alleged Contemnor No.3. Further, the documents pertaining to Writ Petition No.5670 (W) of 2016 pending in Calcutta High Court as well as the affidavit filed by Dinesh Sarda are also not conclusive enough. The criticism that such documents and the affidavit of Dinesh Sarda are conveniently brought on record, would also require assessment of facts. Thus, though there is room to suspect the involvement of said Contemnor Nos.2 and 3, the material on record is not conclusive enough to hold them guilty of violation of Order of 08.05.2015. We, therefore, close these proceedings as against them. 24. We now come to the crucial question as to the effect of transfer or alienation of Katihar property in violation of the Order of 08.05.2014. The law on the point is well settled in the decision of this Court in D.D.A. v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622 that legal consequences of what has been done in breach of or in violation of the order of stay or injunction can be undone and the parties could be put back to the same position as they stood immediately prior to such order of stay or injunction. Paragraphs 18 to 21 of the decision in D.D.A. v. Skipper Construction Co. (P) Ltd. (supra) are quite instructive and are:- 18.The above principle has been applied even in the case of violation of orders of injunction issued by civil courts. In Clarke v. Chadbur (1985)1 All ER 211 Sir Robert Megarry V-C observed: I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them. 19.To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. v. S. Suppiah (AIR 1975 Mad 270 ) and Sujit Pal v. Prabir Kumar Sun (AIR 1986 Cal 220 ). In Century Flour Mills Ltd.(supra) it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order. 20.In Sujit Pal(supra) a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law. 21.There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give way. The court must ensure full justice between the parties before it. 25. In the present case the Company and its Directors/servants were certainly guilty of transgressing or violating the Order of 08.05.2014 but as found hereinabove, the transferee and its Directors/servants have not violated the Order of 08.05.2014. The transferee and its Directors/servants were neither parties to the proceedings nor were they served with the Order of 08.05.2014. In para 38 of the judgment of this Court dated 13.11.2014, this Court had found the transfer in favour of the transferee to be questionable and had relegated the matter to the BIFR to consider the matter in the light of directions contained in said para 38. In the circumstances, no further orders are called for invalidating the registration dated 02.07.2014. Further, according to the record the transferee had parted with full consideration way back on 04.04.2013. In the totality of these circumstances we do not think it appropriate to exercise our power to invalidate the effect of registration of the document on 02.07.2014.

0[ds]The submission of the alleged contemnors is that the conveyance deed was executed on 04.04.2013 on which date the entire consideration stood paid by the transferee and was credited to the account of the Company and as such the title passed in favour of the transferee well before the Order of 08.05.2014 and what was done on 02.07.2014 was a mere ministerial act. According to the alleged contemnors, the documents presented for registration in April 2013 were not accepted for want of adequate stamp and registration fees. This infirmity was removed and the documents were then presented for registration. In such circumstances the order of 08.05.2014 was not in any way violated by them17. The Order of 08.05.2014 had directed ....capital assets of the company shall not be disposed of without taking permission of this Court. The expression shall not be disposed in the context connotes action or process of sale of assets. Going by Section 54 of the Transfer of Property Act, 1882, transfer of any tangible immovable property of the value of Rupees hundred and upwards can be made only by a registered instrument. The expression `only in the Section is significant. The transfer comes into effect and becomes valid and effective only by a registered instrument. It is true that the document was sought to be registered in April, 2013 but the registration in question was duly effected only on 02.07.2014. In the eyes of law, it is this document registered on 02.07.2014 which alone effectuates transfer of interest in Katihar property in favour of the transferee. The transfer was thus effected on 02.07.2014 i.e. well after the Order of 08.05.201418. The document dated 04.04.2013 did not by itself create any interest nor did the title pass upon execution of such document on 04.04.2013 but it was only after the registration on 02.07.2014 that the title in Katihar property passed from the Company in favour of the transferee. The submission of the contemnors however, is that by virtue of Section 47 of the Registration Act, the document in question would operate from 04.04.2013. In our view, the principle embodied in Section 47 of the Registration Act is completely for different purposes. In so far as the issue of transfer is concerned, Section 54 of the Transfer of Property Act is the governing principle, which is quite clear. It is the date of registration of document which is crucial inasmuch as the transfer is effected and the title passes only upon registration. Viewed thus, it is clear that Katihar property was transferred in the teeth of the Order of 08.05.2014 and ex facie there has been violation of the Order passed by this Court. It is crucial to note that on 08.05.2014, the company had appeared on caveat before this Court and certainly had express knowledge about the Order of 08.05.2014. It was party to the proceedings and was bound by the order passed by this Court in every respect19. The submission on part of alleged Contemnor Nos.1,4,5,6,7 and 8 namely the Company and its directors/servants is that the document was executed by alleged Contemnor No.7 Sobhanand Jha in pursuance of the authority given to him by the Company way back on 06.02.2013. As on 06.02.2013, the company was definitely a sick company and the Reference was pending before the BIFR. Around that time the ASC was constituted which was considering sale of assets including Katihar property. It was only after the Auditors report dated 15.02.2013 that the Company started projecting that its net worth had become positive on which account it ceased to be governed under the provisions of the Act and was outside the jurisdiction of the BIFR. Though this Court rejected such submission in its judgment dated 13.11.2014, at this stage we are considering the bonafides and tenability of the assertions made by the alleged contemnors. There could not have been any occasion for the Company before 19.02.2013, even accepting the submission that it ceased to be a sick company as alleged, to enable the Company to execute an authority on 06.02.2013 in favour of alleged Contemnor No.7. That authorization is wholly defective and unsustainable. It is not the case of the alleged contemnors that after the adoption of the Auditors Report and Directors Report dated 19.02.2013 a decision was taken by the Company to sell or dispose of its Katihar property in pursuance of which due authorization was given to a competent person to execute the documents on behalf of the Company20. Further, the facts on record disclose that said Sobhanand Jha changed his name to R.S. Prabhakar on and with effect from 18.03.2013. However, the document mentioned his name as Sobhanand Jha which he signed as Sobhanand Jha on 04.04.2013. He tendered his resignation on 17.02.2014 as R.S. Prabhakar. Despite such resignation, he thereafter executed the document on 02.07.2014 in the name of Sobhanand Jha and signed as Sobhanand Jha. In any event of the matter as on 02.07.2014, the person was not a Director of the Company. He submitted that the Company had given him an authority way back on 06.02.2013 pursuant to which the document was executed on 04.04.2013 on which date the sale for all practical purposes stood completed and what remained was only a ministerial act which was done by him independently of the Company on 02.07.2014. It is on the basis of this submission that the Company as well as its Directors/servants namely alleged Contemnor Nos.4, 5, 6 and 8 seek to wriggle themselves out of any liability for violation of Order of 08.05.2014. If the order was passed on 08.05.2014 restraining any alienation of the capital assets of the Company, the Directors/servants of the company ought to have taken steps to inform alleged Contemnor No.7 to refrain from registering the document on 02.07.2014. Neither such steps were taken nor was the Court informed on 08.05.2014 about the document executed on 04.04.2013, in which event this Court could have passed appropriate Orders including restraint on registration. Similarly, if Sobhanand Jha, alleged Contemnor No.7 had resigned on 17.02.2014, he had no authority to register the document on behalf of the Company. In our view, the entire exercise was a clever device employed by the Company and its Directors, in that, first an authority in favour of a Director was created who then resigned as Director but continued to register the document on the basis of erstwhile authorization and at the same time the person having resigned could claim lack of knowledge of the Order of restraint passed by this Court. Their actions were deliberate and designed to flout the Order of 08.05.2014.The involvement of alleged Contemnor Nos.1,4,5,6,7 and 8 in the transfer the assets of the Company in the teeth of the Order of 08.05.2014 is thus apparent and clear21. We now turn to the involvement of those officials concerned with registration, who went ahead and registered the document on 02.07.2014 despite having been put to notice and served with a copy of the Order of 08.05.2014. Our attention has been invited to the opinion rendered by the office of the Advocate General, Bihar to the effect that even if there be any order passed by a civil court in connection with a private dispute between the parties, the registering authorities are bound to register a document presented for registration. This opinion was relied upon by the Government Advocate who then opined that the document in the present case could be registered. The request was allegedly made on 30.06.2014 and the opinion of the Government Advocate was promptly given on 01.07.2014. There is no register maintained diarizing the inward and outward letters and prima facie the entire theory appears to be suspicious and designed to confer a favour. However, since these are government servants, we grant them benefit of doubt and would only caution them. It is shocking that an order passed by this Court, in the face of the provisions of Article 142 of the Constitution, could be ignored or disregarded by the officials who went ahead and registered the document. However, we do not find sufficient grounds to invoke our Contempt Jurisdiction to punish them for violation of the Order of 08.05.201422. We now turn to the involvement of alleged Contemnor Nos.14, 15 and 16 who are the transferee Company and its Directors/servants. These alleged contemnors were neither parties to the proceedings pending in this Court in which Order of 08.05.2014 was passed nor is there any material to indicate that such order was ever served on them or brought to the notice of these alleged contemnors. The role played by alleged Contemnor No.17, however, stands on a different footing. The documents on record do show that he used to represent the Company and was also given authority to collect documents on behalf of the Company from the office of the BIFR. Further, on his own showing, he had gone ahead and registered the document not on the asking of the transferee. He had gone along with the Directors of the Company and on the directions of alleged Contemnor No.3. The knowledge about the passing of Order of 08.05.2014 to the Company and its Directors having been established, there is room for suspecting the involvement of alleged Contemnor No.17. But mere suspicion may not be enough and we give him benefit of doubt. Thus, none of the alleged Contemnor Nos.14 to 17 have been proved to be guilty of violation of Order of 08.05.201423. As regards the involvement of alleged Contemnor Nos.2 and 3, they were neither Directors nor Shareholders of the Company nor has it been shown that they have any stake or interest in the Transferee Company. It is undoubtedly true that alleged Contemnor No.17 in his affidavit stated that he used to work under the directions of alleged Contemnor Nos.2 and 3 and that the registration of the document on 02.07.2014 was done under the express directions and alleged Contemnor No.3. However, such a statement coming from a, in our view, is not sufficient to reach a conclusion about the involvement of alleged Contemnor No.3. Further, the documents pertaining to Writ Petition No.5670 (W) of 2016 pending in Calcutta High Court as well as the affidavit filed by Dinesh Sarda are also not conclusive enough. The criticism that such documents and the affidavit of Dinesh Sarda are conveniently brought on record, would also require assessment of facts. Thus, though there is room to suspect the involvement of said Contemnor Nos.2 and 3, the material on record is not conclusive enough to hold them guilty of violation of Order of 08.05.2015. We, therefore, close these proceedings as against them24. We now come to the crucial question as to the effect of transfer or alienation of Katihar property in violation of the Order of 08.05.2014. The law on the point is well settled in the decision of this Court in D.D.A. v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622 that legal consequences of what has been done in breach of or in violation of the order of stay or injunction can be undone and the parties could be put back to the same position as they stood immediately prior to such order of stay or injunction25. In the present case the Company and its Directors/servants were certainly guilty of transgressing or violating the Order of 08.05.2014 but as found hereinabove, the transferee and its Directors/servants have not violated the Order of 08.05.2014. The transferee and its Directors/servants were neither parties to the proceedings nor were they served with the Order of 08.05.2014. In para 38 of the judgment of this Court dated 13.11.2014, this Court had found the transfer in favour of the transferee to be questionable and had relegated the matter to the BIFR to consider the matter in the light of directions contained in said para 38. In the circumstances, no further orders are called for invalidating the registration dated 02.07.2014. Further, according to the record the transferee had parted with full consideration way back on 04.04.2013. In the totality of these circumstances we do not think it appropriate to exercise our power to invalidate the effect of registration of the document on 02.07.2014.

### 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: was done under the express directions and alleged Contemnor No.3. However, such a statement coming from a co-contemnor, in our view, is not sufficient to reach a conclusion about the involvement of alleged Contemnor No.3. Further, the documents pertaining to Writ Petition No.5670 (W) of 2016 pending in Calcutta High Court as well as the affidavit filed by Dinesh Sarda are also not conclusive enough. The criticism that such documents and the affidavit of Dinesh Sarda are conveniently brought on record, would also require assessment of facts. Thus, though there is room to suspect the involvement of said Contemnor Nos.2 and 3, the material on record is not conclusive enough to hold them guilty of violation of Order of 08.05.2015. We, therefore, close these proceedings as against them. 24. We now come to the crucial question as to the effect of transfer or alienation of Katihar property in violation of the Order of 08.05.2014. The law on the point is well settled in the decision of this Court in D.D.A. v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622 that legal consequences of what has been done in breach of or in violation of the order of stay or injunction can be undone and the parties could be put back to the same position as they stood immediately prior to such order of stay or injunction. Paragraphs 18 to 21 of the decision in D.D.A. v. Skipper Construction Co. (P) Ltd. (supra) are quite instructive and are:- 18.The above principle has been applied even in the case of violation of orders of injunction issued by civil courts. In Clarke v. Chadbur (1985)1 All ER 211 Sir Robert Megarry V-C observed: I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them. 19.To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. v. S. Suppiah (AIR 1975 Mad 270 ) and Sujit Pal v. Prabir Kumar Sun (AIR 1986 Cal 220 ). In Century Flour Mills Ltd.(supra) it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order. 20.In Sujit Pal(supra) a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law. 21.There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give way. The court must ensure full justice between the parties before it. 25. In the present case the Company and its Directors/servants were certainly guilty of transgressing or violating the Order of 08.05.2014 but as found hereinabove, the transferee and its Directors/servants have not violated the Order of 08.05.2014. The transferee and its Directors/servants were neither parties to the proceedings nor were they served with the Order of 08.05.2014. In para 38 of the judgment of this Court dated 13.11.2014, this Court had found the transfer in favour of the transferee to be questionable and had relegated the matter to the BIFR to consider the matter in the light of directions contained in said para 38. In the circumstances, no further orders are called for invalidating the registration dated 02.07.2014. Further, according to the record the transferee had parted with full consideration way back on 04.04.2013. In the totality of these circumstances we do not think it appropriate to exercise our power to invalidate the effect of registration of the document on 02.07.2014. ### Response: 0

BHARATI BHATTACHARJEE Vs. QUAZI MD. MAKSUDUZZAMAN & ORS

in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay. 13.3. This Court, in the case of V.N. Shrikhande v. Anita Sena Fernandes:(2011) 1 SCC 53 has pointed out that the term cause of action has not been defined in the Act of 1986 and the same has to be interpreted keeping in view the context in which it has been used in Section 24A(1) and the object of the legislation. In that case, relating to the question of medical negligence, this Court held that no strait-jacket formula could be applied for determining as to when the cause of action had accrued to the consumer and each case has to be decided on its own facts. Applying the principles with necessary modulations in relation to the subject-matter before us, in the case of the dispute relating to the agreement for sale, where the appellant is standing in the capacity of a seller qua the complainants who stand in the capacity of consumer, the term consumer dispute shall have to be understood in terms of the definition provided by Section 2(e) of Act of 1986 that reads as under: - 2(e)consumer dispute means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint; 13.4. In the case at hand, relating to Complaint Case No. 111 of 2013, the relevant facts had been pleaded by the complainant in the following terms: - 11. That thereafter the Complainant made several representations to the Opposite Party and asked her to perform her duties and obligations as stipulated in the said Agreement however the Opposite Parties always gave assurance that the flat will be completed by shortly but neither the same was completed nor the Deed of Conveyance in respect of the said flat was executed in his favour and the Complainant had also sent a Registered Letter with A/D dated 9th November, 2012 requesting the Opposite Party to execute the Deed of Conveyance in respect of the flat in their favour. 13.5. In the matters relating to the sale of immovable property where the appellant had received a substantial part of sale consideration and had failed to perform her duties and obligations, even for the relief of specific performance, the period of limitation would have begun, if the complainants were to file a suit for specific performance of contract, only from the period of expiry of notice dated 09.11.2012, when they would have had the notice that the performance was being refused. In any case, so far the consumer dispute is concerned, when the appellant failed to execute the Deed of Conveyance despite receiving notice from the complainant, it could safely be taken that the cause of action accrued for the purpose of the complaint only after the expiry of period of notice dated 09.11.2012. Thus, the complaints as filed on 21.03.2013 had been well within limitation. 14. As regards other submissions about the proof of readiness and willingness for performing the part of contract by the complainants, the averments taken by the parties and totality of the facts and circumstances of the case leave nothing to doubt that nothing substantial was to be performed on the part of the complainants. Rather, the essential part of performance was only the burden of the appellant which the appellant failed to discharge. Noteworthy it is that as against the agreements in question, the appellant had received major part of the sale consideration inasmuch as in Complaint Case No. 111 of 2013, the appellant had received a sum of Rs. 5,79,000/- as against the sale consideration of Rs. 9,00,000/-; whereas in Complaint Case No. 112 of 2013, the appellant had received a sum of Rs. 4,92,000/- against the sale consideration of Rs. 7,00,000/-. The payments made to the appellant included substantial amount of loan taken by the respective complainants. It has been pointed out that after obtaining such loan, the complainants had been regularly making payment of EMIs to the lender institutions. There does not appear any personal bar operating against the complainants even in terms of the Specific Relief Act, 1963. 15. The submission as regards drawing adverse inference remains totally baseless because it has not been shown if the complainants withheld any material evidence that was in their power or possession. The vague question put in the questionnaire to the effect as to whether the complainant would call for the record from his office and Bank and its answer in the affirmative, do not lead to any adverse inference because, the record in question is not shown to be in power or possession of the complainant. Rather, we have reservations, if such a question was at all permissible by way of a questionnaire on the principles of Order XI of the Code of Civil Procedure, 1908. Be that as it may, no case of drawing any adverse inference is made out. 16. The other submission in the alternative for allowing interest starting from 90 days from the date of agreement is also of no substance. Contrary to this suggestion, when we notice that the appellant had received a substantial part of sale consideration in both the cases and had yet not executed the requisite deed and had not carried out performance of other parts of the contract due on her part, even the interest as allowed by the National Commission appears to be excessive. Having said so, we would leave the matter at that because the complainants have not questioned that part of the order of the National Commission allowing interest to the appellant at the rate of 10% per annum from the date of filing of complaint.

0[ds]10. Having given thoughtful consideration to the rival submissions and having examined the material placed on record with reference to the law applicable, we are satisfied that these appeals remain totally bereft of substance and deserve to be dismissed; and the appellant, for having dragged the matters with pretentious propositions, deserves to be saddled with costs.11. The suggestion on behalf of the appellant about existence of two agreements is required to be rejected in relation to Complaint Case No. 111 of 2013 altogether for want of any such second agreement on record. The sale price shown by the complainant in the Bank for the purpose of loan or in the Government department does not lead to any inference about existence of any other agreement.11.1. Moreover, when we look at the agreement between the parties disclosing total sale consideration of Rs. 9,00,000/-, the material terms are found in the following form and expression: -3. That the consideration price shall be payable by the Purchasers to the Vendor as consideration of the said complete flat be Rs.9,00,000/- (Rupees Nine lacs) only and the mode of such payment is to be as follows:-a) At the time of booking/agreement Rs.50,000/- (Rupees Fifty thousand) only.b) At the time of Rs.6,50,000/- (Rupees Six Lakh fifty thousand) only will be payable by the Purchasers to the Vendor at the time of Registration i.e. within 90 (Ninety) days from the date of execution of this agreement.c) Rs.2,00,000/- (Rupees two lacs) only will be payable within 60 months (sic) from the date of registration of the conveyance.11.2. Obviously, the third component of the sale consideration of Rs. 2,00,000/- was payable only after registration of the Deed of Conveyance. Hence, while applying for loan, the complainant could have only stated the consideration payable for registration of the sale consideration until then. In any case, the difference in sale consideration, as stated before the Bank vis-à-vis that stated in agreement does not lead to even a remote inference that there were two separate agreements.12. As regards Complaint Case No. 112 of 2013, though there are shown to be existing two documents of the same date but, they do not appear to be separate agreements for different properties or for different parts of the same property or for segregating the total amount of sale consideration. They could only be read as one being a copy or draft of the other. In any case, it would be rather preposterous to assume that because of the alleged two documents of the same date, the sale consideration would be arrived at by adding up the consideration amount stated therein. The State Commission seems to have approached the entire case from an altogether wrong angle and has acted illegally in accepting the baseless propositions of the appellant. Thus, we are satisfied that the National Commission has rightly disapproved the orders so passed by the State Commission.13. The other submissions as made for the first time before this Court also do not make out any case for interference.13.1. There is no, and there cannot be any, quarrel with the proposition stated in the case of State Bank of India (supra) that if the complaint is barred by time and yet the Consumer Forum decides the same on merits, it would be a case of illegality on the part of the Forum. However, the question is as to whether the bar of limitation was at all operating in relation to the present complainants? In our view, the answer is in the negative.13.3. This Court, in the case of V.N. Shrikhande v. Anita Sena Fernandes:(2011) 1 SCC 53 has pointed out that the term cause of action has not been defined in the Act of 1986 and the same has to be interpreted keeping in view the context in which it has been used in Section 24A(1) and the object of the legislation. In that case, relating to the question of medical negligence, this Court held that no strait-jacket formula could be applied for determining as to when the cause of action had accrued to the consumer and each case has to be decided on its own facts. Applying the principles with necessary modulations in relation to the subject-matter before us, in the case of the dispute relating to the agreement for sale, where the appellant is standing in the capacity of a seller qua the complainants who stand in the capacity of consumer, the term consumer dispute shall have to be understood in terms of the definition provided by Section 2(e) of Act of 1986 that reads as under: -2(e)consumer dispute means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;13.5. In the matters relating to the sale of immovable property where the appellant had received a substantial part of sale consideration and had failed to perform her duties and obligations, even for the relief of specific performance, the period of limitation would have begun, if the complainants were to file a suit for specific performance of contract, only from the period of expiry of notice dated 09.11.2012, when they would have had the notice that the performance was being refused. In any case, so far the consumer dispute is concerned, when the appellant failed to execute the Deed of Conveyance despite receiving notice from the complainant, it could safely be taken that the cause of action accrued for the purpose of the complaint only after the expiry of period of notice dated 09.11.2012. Thus, the complaints as filed on 21.03.2013 had been well within limitation.14. As regards other submissions about the proof of readiness and willingness for performing the part of contract by the complainants, the averments taken by the parties and totality of the facts and circumstances of the case leave nothing to doubt that nothing substantial was to be performed on the part of the complainants. Rather, the essential part of performance was only the burden of the appellant which the appellant failed to discharge. Noteworthy it is that as against the agreements in question, the appellant had received major part of the sale consideration inasmuch as in Complaint Case No. 111 of 2013, the appellant had received a sum of Rs. 5,79,000/- as against the sale consideration of Rs. 9,00,000/-; whereas in Complaint Case No. 112 of 2013, the appellant had received a sum of Rs. 4,92,000/- against the sale consideration of Rs. 7,00,000/-. The payments made to the appellant included substantial amount of loan taken by the respective complainants. It has been pointed out that after obtaining such loan, the complainants had been regularly making payment of EMIs to the lender institutions. There does not appear any personal bar operating against the complainants even in terms of the Specific Relief Act, 1963.15. The submission as regards drawing adverse inference remains totally baseless because it has not been shown if the complainants withheld any material evidence that was in their power or possession. The vague question put in the questionnaire to the effect as to whether the complainant would call for the record from his office and Bank and its answer in the affirmative, do not lead to any adverse inference because, the record in question is not shown to be in power or possession of the complainant. Rather, we have reservations, if such a question was at all permissible by way of a questionnaire on the principles of Order XI of the Code of Civil Procedure, 1908. Be that as it may, no case of drawing any adverse inference is made out.16. The other submission in the alternative for allowing interest starting from 90 days from the date of agreement is also of no substance. Contrary to this suggestion, when we notice that the appellant had received a substantial part of sale consideration in both the cases and had yet not executed the requisite deed and had not carried out performance of other parts of the contract due on her part, even the interest as allowed by the National Commission appears to be excessive. Having said so, we would leave the matter at that because the complainants have not questioned that part of the order of the National Commission allowing interest to the appellant at the rate of 10% per annum from the date of filing of complaint.

### 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: in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay. 13.3. This Court, in the case of V.N. Shrikhande v. Anita Sena Fernandes:(2011) 1 SCC 53 has pointed out that the term cause of action has not been defined in the Act of 1986 and the same has to be interpreted keeping in view the context in which it has been used in Section 24A(1) and the object of the legislation. In that case, relating to the question of medical negligence, this Court held that no strait-jacket formula could be applied for determining as to when the cause of action had accrued to the consumer and each case has to be decided on its own facts. Applying the principles with necessary modulations in relation to the subject-matter before us, in the case of the dispute relating to the agreement for sale, where the appellant is standing in the capacity of a seller qua the complainants who stand in the capacity of consumer, the term consumer dispute shall have to be understood in terms of the definition provided by Section 2(e) of Act of 1986 that reads as under: - 2(e)consumer dispute means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint; 13.4. In the case at hand, relating to Complaint Case No. 111 of 2013, the relevant facts had been pleaded by the complainant in the following terms: - 11. That thereafter the Complainant made several representations to the Opposite Party and asked her to perform her duties and obligations as stipulated in the said Agreement however the Opposite Parties always gave assurance that the flat will be completed by shortly but neither the same was completed nor the Deed of Conveyance in respect of the said flat was executed in his favour and the Complainant had also sent a Registered Letter with A/D dated 9th November, 2012 requesting the Opposite Party to execute the Deed of Conveyance in respect of the flat in their favour. 13.5. In the matters relating to the sale of immovable property where the appellant had received a substantial part of sale consideration and had failed to perform her duties and obligations, even for the relief of specific performance, the period of limitation would have begun, if the complainants were to file a suit for specific performance of contract, only from the period of expiry of notice dated 09.11.2012, when they would have had the notice that the performance was being refused. In any case, so far the consumer dispute is concerned, when the appellant failed to execute the Deed of Conveyance despite receiving notice from the complainant, it could safely be taken that the cause of action accrued for the purpose of the complaint only after the expiry of period of notice dated 09.11.2012. Thus, the complaints as filed on 21.03.2013 had been well within limitation. 14. As regards other submissions about the proof of readiness and willingness for performing the part of contract by the complainants, the averments taken by the parties and totality of the facts and circumstances of the case leave nothing to doubt that nothing substantial was to be performed on the part of the complainants. Rather, the essential part of performance was only the burden of the appellant which the appellant failed to discharge. Noteworthy it is that as against the agreements in question, the appellant had received major part of the sale consideration inasmuch as in Complaint Case No. 111 of 2013, the appellant had received a sum of Rs. 5,79,000/- as against the sale consideration of Rs. 9,00,000/-; whereas in Complaint Case No. 112 of 2013, the appellant had received a sum of Rs. 4,92,000/- against the sale consideration of Rs. 7,00,000/-. The payments made to the appellant included substantial amount of loan taken by the respective complainants. It has been pointed out that after obtaining such loan, the complainants had been regularly making payment of EMIs to the lender institutions. There does not appear any personal bar operating against the complainants even in terms of the Specific Relief Act, 1963. 15. The submission as regards drawing adverse inference remains totally baseless because it has not been shown if the complainants withheld any material evidence that was in their power or possession. The vague question put in the questionnaire to the effect as to whether the complainant would call for the record from his office and Bank and its answer in the affirmative, do not lead to any adverse inference because, the record in question is not shown to be in power or possession of the complainant. Rather, we have reservations, if such a question was at all permissible by way of a questionnaire on the principles of Order XI of the Code of Civil Procedure, 1908. Be that as it may, no case of drawing any adverse inference is made out. 16. The other submission in the alternative for allowing interest starting from 90 days from the date of agreement is also of no substance. Contrary to this suggestion, when we notice that the appellant had received a substantial part of sale consideration in both the cases and had yet not executed the requisite deed and had not carried out performance of other parts of the contract due on her part, even the interest as allowed by the National Commission appears to be excessive. Having said so, we would leave the matter at that because the complainants have not questioned that part of the order of the National Commission allowing interest to the appellant at the rate of 10% per annum from the date of filing of complaint. ### Response: 0

Commissioner of Income Tax, Madras Vs. K. S. Ratnaswamy

consequent right to occupy it without anything more would not be sufficient to satisfy the requirements of s. 4A(a)(ii), for, the requirements thereof are : not only there must be a dwelling place in which the assessee has a right to live but he must maintain it as his home or he must have it maintained for him as his home. The material on record shows that the family house in which he stayed was neither his abode or home nor was it maintained by Ganesa at the instance of the assessee or for his benefit. 8. Turning to the two decisions--one of the Madras High Court and the other of the Gujarat High Court--on which reliance was placed by counsel for the revenue, we may at once say that both the decisions are clearly distinguishable. The decision of the Madras High Court in Zackariah Sahibs case [1952] 22 ITR 359 dealt with a case of an assessee who was a Muhammadan merchant. He carried on business in Ceylon and resided there. His parents lived in British India, as it then was, in a house owned by his mother. The assessees wife also lived in British India--sometimes with his parents and sometimes with her parents. The assessee was remitting monies now and then to his parents for their maintenance. He visited British India during the year of account and stayed in his mothers house with his parents. The Appellate Tribunal held that the assessee was resident in British India within the meaning of s. 4A(a)(ii). Reversing this decision, the Madras High Court held that the assessee did not maintain a dwelling place in British India and that his mothers house was maintained for the parents of the assessee and not for the assessee himself. Obviously, the house belonged to the mother of the assessee, which he had no legal right to occupy, and, therefore, it could not be said that the assessee maintained a dwelling place in British India. Counsel, however, relied upon certain observations made by Viswanatha Sastri J., in that judgment, which run thus: The expression maintains a dwelling place connotes the idea that the assessee owns or has taken on rent or on a mortgage with possession a dwelling house which he can legally and as of right occupy, if he is so minded, during his visit to British India ...... In our opinion, the expression has maintained for him would certainly cover a case where the assessee has a right to occupy or live in a dwelling place during his stay in British India though the expenses of maintaining the dwelling place are not met by him in whole or in part. A member of an undivided Hindu family ... has a right to live in the family-house when he goes there, though the house is maintained by the manager of the family and not by the assessee from his own funds .... In such cases it can be said that the assessee has a dwelling place maintained for him by the manager of the family for he has a right to occupy the house during his visits to British India. 9. Relying on the aforesaid passage, counsel urged that, in the instant case, the house at Orathanadu was maintained by Ganesa as a karta of the family and since the assessee as a coparcener had a right to live in it during his visits to India, it must be held that the assessee had maintained for him a dwelling place in India. It is not possible to accept this contention, for, in our view, the aforesaid passage, taken in its content, does not lay down as a proposition of law that mere ownership of a fractional share in a family house with a consequent right to occupy the same with nothing more would constitute it a dwelling house of such owner within the meaning of s. 4A(a)(ii) ; for, it must further be shown that it was maintained by the manager at the instance of the assessee and for his benefit. That is how the aforesaid passage has been partly explained and, in our view, rightly, by the Madras High Court in a subsequent decision in CIT v. Janab A. P. Mohamed Noohu [1961] 43 ITR 88 . The Gujarat decision in Ramjibhai Hansjibhais case [1964] 53 ITR 547 was clearly a case where the joint family house was maintained as a dwelling place for the benefit of all the members of the joint family, including the assessee. The main contention urged on behalf of the assessee in that case was that the dwelling house was not maintained for the assessee as an individual but it was maintained not only for him but for other members of the joint family as well and, therefore, the requirements of the section were not satisfied. The contention was negatived. In other words, it was not disputed in the Gujarat case that a dwelling house was maintained by the manager of the family for the benefit of the assessee. In the instant case, on the facts, it has been found that the family house was maintained by Ganesa not for the assessee nor for his benefit but for the other family membersHaving regard to the above discussion, it is clear that though the assessee could be said to have had a share in the joint family house with a consequent right to occupy the same, it could not be said that the said family house was maintained by Ganesa as the karta of the family as a dwelling place for the assessee or for his benefit nor was it maintained by him at the instance of the assessee. Moreover, his stay in the family house has been found to be as a guest enjoying the hospitality of his kith and kin rather than as an inhabitant of his abode or home. In this view of the matter, the assessee, in our, view, was rightly regarded as a non-resident. 10.

0[ds]At the outset it may be pointed out that the section uses the expressiondwelling place , a flexible expression, but the expression must be construed according to the object and intent of the particular legislation in which it has been used. Primarily, the expression meanswhere an individual is supposed usually to live and sleep and since the expression has been used in a taxing statute in the context of a provision which lays down a technical test of territorial connection amounting to residence, the concept of an abode or home would be implicit in it. In other words, it must be a house or a portion thereof which could be regarded as an abode or home of the assessee in the taxable territories. In our view, this aspect of the matter has been rightly emphasized by the Bombay High Court in Fulabhai Khodabhais case [1957] 31 ITR 771, 776, 777It is, therefore, not possible to accept the contention of learned counsel for the revenue that it is erroneous to introduce the concept of home or abode into the sectionSecondly, the section uses two expressions :he maintains a dwelling placehas maintained for him a dwelling place . The latter expression obviously means he causes to be maintained for him a dwelling place. This is clear from the fact that the relevant provision in the 1961 Act has now been altered and it sayshe causes to be maintained for himand in the Notes on Clauses to the concerned Bill it has been explained that the wordsin s. 4A(a)(ii) have been replaced in the draft by the wordscauses to be maintained , which express the intention better. Now, in either of these expressions the volition on the part of the assessee in the maintenance of the dwelling place emerges very clearly; whether he maintains it or he causes it to be maintained, the maintenance of the dwelling place must be at his instance, behest or request and when it is maintained by someone else other than the assessee, it must be for the assessee or for his benefitIt is true that the house at Orathanadu was at the material time a joint family house in which the assessee as a coparcener had a share and interest ; it is also true that as a coparcener he had a right to occupy that house without any let or hindrance, but mere ownership of a fractional share or interest in the family house with the consequent right to occupy it without anything more would not be sufficient to satisfy the requirements of s. 4A(a)(ii), for, the requirements thereof are : not only there must be a dwelling place in which the assessee has a right to live but he must maintain it as his home or he must have it maintained for him as his home. The material on record shows that the family house in which he stayed was neither his abode or home nor was it maintained by Ganesa at the instance of the assessee or for his benefitIt is not possible to accept this contention, for, in our view, the aforesaid passage, taken in its content, does not lay down as a proposition of law that mere ownership of a fractional share in a family house with a consequent right to occupy the same with nothing more would constitute it a dwelling house of such owner within the meaning of s. 4A(a)(ii) ; for, it must further be shown that it was maintained by the manager at the instance of the assessee and for his benefit. That is how the aforesaid passage has been partly explained and, in our view, rightly, by the Madras High Court in a subsequent decision in CIT v. Janab A. P. Mohamed Noohu [1961] 43 ITR 88 In the instant case, on the facts, it has been found that the family house was maintained by Ganesa not for the assessee nor for his benefit but for the other family membersHaving regard to the above discussion, it is clear that though the assessee could be said to have had a share in the joint family house with a consequent right to occupy the same, it could not be said that the said family house was maintained by Ganesa as the karta of the family as a dwelling place for the assessee or for his benefit nor was it maintained by him at the instance of the assessee. Moreover, his stay in the family house has been found to be as a guest enjoying the hospitality of his kith and kin rather than as an inhabitant of his abode orn this view of the matter, the assessee, in our, view, was rightly regarded as a non-resident.

### 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: consequent right to occupy it without anything more would not be sufficient to satisfy the requirements of s. 4A(a)(ii), for, the requirements thereof are : not only there must be a dwelling place in which the assessee has a right to live but he must maintain it as his home or he must have it maintained for him as his home. The material on record shows that the family house in which he stayed was neither his abode or home nor was it maintained by Ganesa at the instance of the assessee or for his benefit. 8. Turning to the two decisions--one of the Madras High Court and the other of the Gujarat High Court--on which reliance was placed by counsel for the revenue, we may at once say that both the decisions are clearly distinguishable. The decision of the Madras High Court in Zackariah Sahibs case [1952] 22 ITR 359 dealt with a case of an assessee who was a Muhammadan merchant. He carried on business in Ceylon and resided there. His parents lived in British India, as it then was, in a house owned by his mother. The assessees wife also lived in British India--sometimes with his parents and sometimes with her parents. The assessee was remitting monies now and then to his parents for their maintenance. He visited British India during the year of account and stayed in his mothers house with his parents. The Appellate Tribunal held that the assessee was resident in British India within the meaning of s. 4A(a)(ii). Reversing this decision, the Madras High Court held that the assessee did not maintain a dwelling place in British India and that his mothers house was maintained for the parents of the assessee and not for the assessee himself. Obviously, the house belonged to the mother of the assessee, which he had no legal right to occupy, and, therefore, it could not be said that the assessee maintained a dwelling place in British India. Counsel, however, relied upon certain observations made by Viswanatha Sastri J., in that judgment, which run thus: The expression maintains a dwelling place connotes the idea that the assessee owns or has taken on rent or on a mortgage with possession a dwelling house which he can legally and as of right occupy, if he is so minded, during his visit to British India ...... In our opinion, the expression has maintained for him would certainly cover a case where the assessee has a right to occupy or live in a dwelling place during his stay in British India though the expenses of maintaining the dwelling place are not met by him in whole or in part. A member of an undivided Hindu family ... has a right to live in the family-house when he goes there, though the house is maintained by the manager of the family and not by the assessee from his own funds .... In such cases it can be said that the assessee has a dwelling place maintained for him by the manager of the family for he has a right to occupy the house during his visits to British India. 9. Relying on the aforesaid passage, counsel urged that, in the instant case, the house at Orathanadu was maintained by Ganesa as a karta of the family and since the assessee as a coparcener had a right to live in it during his visits to India, it must be held that the assessee had maintained for him a dwelling place in India. It is not possible to accept this contention, for, in our view, the aforesaid passage, taken in its content, does not lay down as a proposition of law that mere ownership of a fractional share in a family house with a consequent right to occupy the same with nothing more would constitute it a dwelling house of such owner within the meaning of s. 4A(a)(ii) ; for, it must further be shown that it was maintained by the manager at the instance of the assessee and for his benefit. That is how the aforesaid passage has been partly explained and, in our view, rightly, by the Madras High Court in a subsequent decision in CIT v. Janab A. P. Mohamed Noohu [1961] 43 ITR 88 . The Gujarat decision in Ramjibhai Hansjibhais case [1964] 53 ITR 547 was clearly a case where the joint family house was maintained as a dwelling place for the benefit of all the members of the joint family, including the assessee. The main contention urged on behalf of the assessee in that case was that the dwelling house was not maintained for the assessee as an individual but it was maintained not only for him but for other members of the joint family as well and, therefore, the requirements of the section were not satisfied. The contention was negatived. In other words, it was not disputed in the Gujarat case that a dwelling house was maintained by the manager of the family for the benefit of the assessee. In the instant case, on the facts, it has been found that the family house was maintained by Ganesa not for the assessee nor for his benefit but for the other family membersHaving regard to the above discussion, it is clear that though the assessee could be said to have had a share in the joint family house with a consequent right to occupy the same, it could not be said that the said family house was maintained by Ganesa as the karta of the family as a dwelling place for the assessee or for his benefit nor was it maintained by him at the instance of the assessee. Moreover, his stay in the family house has been found to be as a guest enjoying the hospitality of his kith and kin rather than as an inhabitant of his abode or home. In this view of the matter, the assessee, in our, view, was rightly regarded as a non-resident. 10. ### Response: 0

Abu Khan and Others Vs. Union of India Another

two house stating therein that only the share of Gafoor Khan an Hanif Khan has been declared to be evacuee property. The State Competent Officer who dealt with this proceeding held as per his order dated January 27, 1959 that Abu Khan had two-fifteenth share in the said property and the share of the female claimants was seven-fifteenth. The share of two evacuees Gafoor Khan and Hanif Khan was declared to be six-fifteenth. The State Competent Officer after determining the shares of the various claimants as also of the two evacuees gave a choice to the non-evacuees to purchase the evacuee interest for a price that was to be determined by the Competent Authority. It is at that stage that respondent No. 6 Maljimal entered the picture. The Managing Officer-cum-Assistant Custodian of Evacuee Property moved an application on February 10, 1959 before the State Competent officer by his order dated March 3, 1959 directed that house No. 11/5/168 has been put in possession of respondent No. 6, Maljimal, who was a displaced person and the same may be allotted to Maljimal on the assessed price. The State Company Officer by his order dated March 3, 1959 directed that house No. 11/5/168 should be given to Maljimal and house No. 11/5/180 should be given purchased by Abu Khan and other non-evacuees. It appears that in the mean time respondent No. 6, Maljimal preferred an appeal before the Custodian-General questioning the correctness of the decision in the fresh enquiry by Assistant Custodian holding that Abu Khan was an evacuee. This appeal was dismissed confirming that Abu Khan was not an evacuee. By that time, Respondent No. 6, Maljimal had occupied the property and therefore, the State Competent Officer directed that house No. 11/5/68 should be given to refugee allottee who is residing therein and the other house may be given to Abu Khan and other non-evacuee claimants provided they were prepared to purchase the evacuee interest therein. Abu Khan preferred an appeal against this order to the Appellate officer. This appeal was allowed by the Appellate Authority holding that even though some hardship is likely to be caused to the displaced allottee who was in occupation of the house, he is not without a remedy because the Central Government may take action under Section 20-B of the Displaced Persons (Compensation and Rehabilitations) Act, 1954. Taking cue from the observation of the Appellate Officer, respondent No. 6, Maljimal moved an application before the Government of India under Section 20-B. To this application neither Abu Khan nor other non-evacuees having an interest in the property involved in the dispute were impleaded as impleaded as parties. When Abu Khan came to know about the application made by respondent No. 6, he filed an application before the Secretary, Government of India, Ministry of Rehabilitation pointed out therein that respondent 6, Maljimal cannot complain of any hardship because as far back in 1955 when Abu Khan was declared to be a non-evacuee, Maljimal was asked to vacate the house but the he has been successfully avoiding the same. Appellant Abu Khan also pointed out that he had already deposited the assessed price of the evacuee interest in both the houses and thereby has become the full owner of the house in possession of Maljimal. He accordingly requested the Government of India not to accept the application of respondent No. 6, Maljimal under Section 20-B. It appears that the Government of India accepted the application of respondent No. 6, Maljimal holding that he should be allowed to retain the house in question. The State Competent Officer informed Abu Khan and his co-claimants on April 28, 1964 about the order made by the Government of India under Section 20-B. Abu Khan and his co-claimants thereupon filed a writ petition in the Rajasthan High Court under Article 226 of the Constitution. The High Court rendered its decision on January 31, 1969 holding that the Government of Indian was not bound to hear Abu Khan and his co-claimants before making an order under Section 20-B, and found no other adequate reason to interfere with the order made by the Central Government. Hence this appeal by special leave.2. Mr. B. D. Sharma, learned counsel who appeared for the appellant urged that Section 20-B of the Displaced Persons (Compensation and Rehabilitations) Act, 1954 has been declared ultra vires by this Court in Lachhman Dass v. Municipal Committee, Jalalabad ((1969) 3 SCR 645 : AIR 1969 SC 1126 : (1969) 1 SCC 653 ) and therefore, the order made in exercise of the power conferred by Section 20-B would be illegal, invalid and of no effect and accordingly must be quashed and set aside by this Court. This Court in the aforementioned decision rendered on February 12, 1968 held that Section 20-B is ultra vires Article 31(2) of the Constitutions. The Section was accordingly struck down. Undoubtedly, it was struck down as being violative of Article 31(2) which itself has been repealed by Construction (Forty-fourth Amendment) Act, 1978. However, once Section 20-B was struck down way back in 1968 as being violative of Article 31(2) but it was not re-enacted after the repeal and deletion of Article 31(2) and therefore, no order could have been made by the Central Government in 1964 under an unconstitutional provision when it purported to make the impugned order. Though this decision holding Section 20-B ultra vires the construction was rendered aback a year before the High Court pronounced the Judgment under appeal, it was not brought to the notice of the High Court. Since then Section 20-B has not been re-enacted; obviously, therefore an order made under an unconstitutional provision would be illegal and invalid and no effect can be given to it. This was the only point raised in this appeal which must be accepted and therefore, the appeal must succeed.3. Unfortunately, neither the Union of India nor the sixth respondent appeared before us to canvass any other contention on which the impugned order could be sustained.

1[ds]his Court in the aforementioned decision rendered on February 12, 1968 held that Sectionis ultra vires Article 31(2) of the Constitutions. The Section was accordingly struck down. Undoubtedly, it was struck down as being violative of Article 31(2) which itself has been repealed by ConstructionAmendment) Act, 1978. However, once Sectionwas struck down way back in 1968 as being violative of Article 31(2) but it was notafter the repeal and deletion of Article 31(2) and therefore, no order could have been made by the Central Government in 1964 under an unconstitutional provision when it purported to make the impugned order. Though this decision holding Sectionultra vires the construction was rendered aback a year before the High Court pronounced the Judgment under appeal, it was not brought to the notice of the High Court. Since then Sectionhas not beenobviously, therefore an order made under an unconstitutional provision would be illegal and invalid and no effect can be given to it. This was the only point raised in this appeal which must be accepted and therefore, the appeal must succeed.3. Unfortunately, neither the Union of India nor the sixth respondent appeared before us to canvass any other contention on which the impugned order could be sustained.

### 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: two house stating therein that only the share of Gafoor Khan an Hanif Khan has been declared to be evacuee property. The State Competent Officer who dealt with this proceeding held as per his order dated January 27, 1959 that Abu Khan had two-fifteenth share in the said property and the share of the female claimants was seven-fifteenth. The share of two evacuees Gafoor Khan and Hanif Khan was declared to be six-fifteenth. The State Competent Officer after determining the shares of the various claimants as also of the two evacuees gave a choice to the non-evacuees to purchase the evacuee interest for a price that was to be determined by the Competent Authority. It is at that stage that respondent No. 6 Maljimal entered the picture. The Managing Officer-cum-Assistant Custodian of Evacuee Property moved an application on February 10, 1959 before the State Competent officer by his order dated March 3, 1959 directed that house No. 11/5/168 has been put in possession of respondent No. 6, Maljimal, who was a displaced person and the same may be allotted to Maljimal on the assessed price. The State Company Officer by his order dated March 3, 1959 directed that house No. 11/5/168 should be given to Maljimal and house No. 11/5/180 should be given purchased by Abu Khan and other non-evacuees. It appears that in the mean time respondent No. 6, Maljimal preferred an appeal before the Custodian-General questioning the correctness of the decision in the fresh enquiry by Assistant Custodian holding that Abu Khan was an evacuee. This appeal was dismissed confirming that Abu Khan was not an evacuee. By that time, Respondent No. 6, Maljimal had occupied the property and therefore, the State Competent Officer directed that house No. 11/5/68 should be given to refugee allottee who is residing therein and the other house may be given to Abu Khan and other non-evacuee claimants provided they were prepared to purchase the evacuee interest therein. Abu Khan preferred an appeal against this order to the Appellate officer. This appeal was allowed by the Appellate Authority holding that even though some hardship is likely to be caused to the displaced allottee who was in occupation of the house, he is not without a remedy because the Central Government may take action under Section 20-B of the Displaced Persons (Compensation and Rehabilitations) Act, 1954. Taking cue from the observation of the Appellate Officer, respondent No. 6, Maljimal moved an application before the Government of India under Section 20-B. To this application neither Abu Khan nor other non-evacuees having an interest in the property involved in the dispute were impleaded as impleaded as parties. When Abu Khan came to know about the application made by respondent No. 6, he filed an application before the Secretary, Government of India, Ministry of Rehabilitation pointed out therein that respondent 6, Maljimal cannot complain of any hardship because as far back in 1955 when Abu Khan was declared to be a non-evacuee, Maljimal was asked to vacate the house but the he has been successfully avoiding the same. Appellant Abu Khan also pointed out that he had already deposited the assessed price of the evacuee interest in both the houses and thereby has become the full owner of the house in possession of Maljimal. He accordingly requested the Government of India not to accept the application of respondent No. 6, Maljimal under Section 20-B. It appears that the Government of India accepted the application of respondent No. 6, Maljimal holding that he should be allowed to retain the house in question. The State Competent Officer informed Abu Khan and his co-claimants on April 28, 1964 about the order made by the Government of India under Section 20-B. Abu Khan and his co-claimants thereupon filed a writ petition in the Rajasthan High Court under Article 226 of the Constitution. The High Court rendered its decision on January 31, 1969 holding that the Government of Indian was not bound to hear Abu Khan and his co-claimants before making an order under Section 20-B, and found no other adequate reason to interfere with the order made by the Central Government. Hence this appeal by special leave.2. Mr. B. D. Sharma, learned counsel who appeared for the appellant urged that Section 20-B of the Displaced Persons (Compensation and Rehabilitations) Act, 1954 has been declared ultra vires by this Court in Lachhman Dass v. Municipal Committee, Jalalabad ((1969) 3 SCR 645 : AIR 1969 SC 1126 : (1969) 1 SCC 653 ) and therefore, the order made in exercise of the power conferred by Section 20-B would be illegal, invalid and of no effect and accordingly must be quashed and set aside by this Court. This Court in the aforementioned decision rendered on February 12, 1968 held that Section 20-B is ultra vires Article 31(2) of the Constitutions. The Section was accordingly struck down. Undoubtedly, it was struck down as being violative of Article 31(2) which itself has been repealed by Construction (Forty-fourth Amendment) Act, 1978. However, once Section 20-B was struck down way back in 1968 as being violative of Article 31(2) but it was not re-enacted after the repeal and deletion of Article 31(2) and therefore, no order could have been made by the Central Government in 1964 under an unconstitutional provision when it purported to make the impugned order. Though this decision holding Section 20-B ultra vires the construction was rendered aback a year before the High Court pronounced the Judgment under appeal, it was not brought to the notice of the High Court. Since then Section 20-B has not been re-enacted; obviously, therefore an order made under an unconstitutional provision would be illegal and invalid and no effect can be given to it. This was the only point raised in this appeal which must be accepted and therefore, the appeal must succeed.3. Unfortunately, neither the Union of India nor the sixth respondent appeared before us to canvass any other contention on which the impugned order could be sustained. ### Response: 1

Deepak Parshad Vs. Automobile Products of India and Others

1. Leave granted. 2. Heard learned counsel for the parties. 3. The only question that arises in these appeals is whether the High Court was right in holding that the appellate authority ought not to have condoned the delay in filing the appeal against the order of termination of the appellant. 4. The appellant was an employee of Respondent 1 Company. His services were terminated in the last week of April 1986 but the order of termination was made effective from May 10, 1986. The appellant challenged the order before the appellate authority i.e. the Deputy Commissioner of Labour, by filing an appeal sometime in November, 1986. There was delay of 153 days in filing the appeal. The appellate authority on consideration of the statement made by the appellant on oath and the material produced by him was satisfied that the appellant was vigilant in pursuing his remedy but because of his illness and negligence of his advocate the appeal could not be filed within time. The appellate authority therefore condoned the delay by an order dated September 11, 1987 and thereafter disposed of the appeal on merits. Against the order condoning delay, the respondent Company filed Writ Petition No. 10795 of 1987 and against the final order passed in the appeal it filed Writ Petition No. 5361 of 1988. While both the writ petitions were pending before the learned Single Judge, an application for stay was moved and the learned Single Judge directed the respondent Company to pay to the appellant a sum of Rs. 20, 000/- within four weeks from the date of the order. Aggrieved by that order the respondent Company preferred Writ Appeal No. 993 of 1988. With the consent of the parties the writ appeal and the writ petitions were heard together and disposed of by a common judgment. The High Court was of the view that the appellate authority ought not to have condoned the delay in filing the appeal as the delay was not on account of illness of the appellant nor because of any negligence of his advocate but probably because the appellant, initially, did not want to, challenge the said order. It, therefore, reversed the order condoning delay, held the appeal as time-barred and declared the order of Deputy Commissioner of Labour null and void. It allowed Writ Petitions Nos. 5361 of 1988 and 10795 of 1987. The writ appeal was disposed of as infructuous.Mr. H. S. Gururaja Rao, learned counsel for the appellant contended that the High Court has not properly considered the material which was placed before the appellate authority and wrongly held that the delay was not on account of illness of the appellant and negligence of his advocate. In our opinion, the learned counsel is right in his submission. The order of termination was passed in the last week of April 1986 and was to be effective from May 10, 1986. In his application for condonation of delay, the appellant had clearly stated that he had filed an appeal under Rule 6 of the Rules framed by the Company to the Chairman/Vice-Chairman of the Company and that as he did not hear anything from the Chairman/Vice-Chairman for more than a month he approached a lawyer, took his advice and decided to file an appeal under the Tamil Nadu Shops and Establishments Act, 1947. He had in fact approached the advocate in the month of June and an affidavit for condonation of delay was also prepared in the month of July, 1986. It appears that the advocate who was engaged by the appellant did not file the appeal, kept the appellant in the dark and got two or three more affidavits sworn by the appellant to create an impression that the matter was being pursued by him. Ultimately he filed the appeal in November. The very fact that the appellant had sworn an affidavit for condonation of delay in July 1986 would clearly indicate that he wanted to pursue the matter and was not negligent in taking necessary steps. He had filed an appeal to the Chairman of the respondent Company in time but there was no response. After waiting for a reasonable time he consulted a lawyer in the month of June 1986. He had thereafter approached his lawyer twice or thrice and had given affidavits as suggested. All these aspects have been overlooked by the High Court. Though the High Court referred to the affidavit of July 1986 for holding that the statement contained therein that he had come to know about the order of his termination on May 10, 1986 is false, it failed to take note of the fact that the appellant was thus pursuing his remedy by way of an appeal. The appellant himself had stated before the Court that it was in the last week of April 1986 that he had come to know about the termination order; therefore, from this inconsistency alone the High Court should not have doubted the correctness of the reason given by the appellant for the delay.

1[ds]In our opinion, the learned counsel is right in his submission. The order of termination was passed in the last week of April 1986 and was to be effective from May 10, 1986. In his application for condonation of delay, the appellant had clearly stated that he had filed an appeal under Rule 6 of the Rules framed by the Company to then of the Company and that as he did not hear anything from then for more than a month he approached a lawyer, took his advice and decided to file an appeal under the Tamil Nadu Shops and Establishments Act, 1947. He had in fact approached the advocate in the month of June and an affidavit for condonation of delay was also prepared in the month of July, 1986. It appears that the advocate who was engaged by the appellant did not file the appeal, kept the appellant in the dark and got two or three more affidavits sworn by the appellant to create an impression that the matter was being pursued by him. Ultimately he filed the appeal in November. The very fact that the appellant had sworn an affidavit for condonation of delay in July 1986 would clearly indicate that he wanted to pursue the matter and was not negligent in taking necessary steps. He had filed an appeal to the Chairman of the respondent Company in time but there was no response. After waiting for a reasonable time he consulted a lawyer in the month of June 1986. He had thereafter approached his lawyer twice or thrice and had given affidavits as suggested. All these aspects have been overlooked by the High Court. Though the High Court referred to the affidavit of July 1986 for holding that the statement contained therein that he had come to know about the order of his termination on May 10, 1986 is false, it failed to take note of the fact that the appellant was thus pursuing his remedy by way of an appeal. The appellant himself had stated before the Court that it was in the last week of April 1986 that he had come to know about the termination order; therefore, from this inconsistency alone the High Court should not have doubted the correctness of the reason given by the appellant for the delay.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: 1. Leave granted. 2. Heard learned counsel for the parties. 3. The only question that arises in these appeals is whether the High Court was right in holding that the appellate authority ought not to have condoned the delay in filing the appeal against the order of termination of the appellant. 4. The appellant was an employee of Respondent 1 Company. His services were terminated in the last week of April 1986 but the order of termination was made effective from May 10, 1986. The appellant challenged the order before the appellate authority i.e. the Deputy Commissioner of Labour, by filing an appeal sometime in November, 1986. There was delay of 153 days in filing the appeal. The appellate authority on consideration of the statement made by the appellant on oath and the material produced by him was satisfied that the appellant was vigilant in pursuing his remedy but because of his illness and negligence of his advocate the appeal could not be filed within time. The appellate authority therefore condoned the delay by an order dated September 11, 1987 and thereafter disposed of the appeal on merits. Against the order condoning delay, the respondent Company filed Writ Petition No. 10795 of 1987 and against the final order passed in the appeal it filed Writ Petition No. 5361 of 1988. While both the writ petitions were pending before the learned Single Judge, an application for stay was moved and the learned Single Judge directed the respondent Company to pay to the appellant a sum of Rs. 20, 000/- within four weeks from the date of the order. Aggrieved by that order the respondent Company preferred Writ Appeal No. 993 of 1988. With the consent of the parties the writ appeal and the writ petitions were heard together and disposed of by a common judgment. The High Court was of the view that the appellate authority ought not to have condoned the delay in filing the appeal as the delay was not on account of illness of the appellant nor because of any negligence of his advocate but probably because the appellant, initially, did not want to, challenge the said order. It, therefore, reversed the order condoning delay, held the appeal as time-barred and declared the order of Deputy Commissioner of Labour null and void. It allowed Writ Petitions Nos. 5361 of 1988 and 10795 of 1987. The writ appeal was disposed of as infructuous.Mr. H. S. Gururaja Rao, learned counsel for the appellant contended that the High Court has not properly considered the material which was placed before the appellate authority and wrongly held that the delay was not on account of illness of the appellant and negligence of his advocate. In our opinion, the learned counsel is right in his submission. The order of termination was passed in the last week of April 1986 and was to be effective from May 10, 1986. In his application for condonation of delay, the appellant had clearly stated that he had filed an appeal under Rule 6 of the Rules framed by the Company to the Chairman/Vice-Chairman of the Company and that as he did not hear anything from the Chairman/Vice-Chairman for more than a month he approached a lawyer, took his advice and decided to file an appeal under the Tamil Nadu Shops and Establishments Act, 1947. He had in fact approached the advocate in the month of June and an affidavit for condonation of delay was also prepared in the month of July, 1986. It appears that the advocate who was engaged by the appellant did not file the appeal, kept the appellant in the dark and got two or three more affidavits sworn by the appellant to create an impression that the matter was being pursued by him. Ultimately he filed the appeal in November. The very fact that the appellant had sworn an affidavit for condonation of delay in July 1986 would clearly indicate that he wanted to pursue the matter and was not negligent in taking necessary steps. He had filed an appeal to the Chairman of the respondent Company in time but there was no response. After waiting for a reasonable time he consulted a lawyer in the month of June 1986. He had thereafter approached his lawyer twice or thrice and had given affidavits as suggested. All these aspects have been overlooked by the High Court. Though the High Court referred to the affidavit of July 1986 for holding that the statement contained therein that he had come to know about the order of his termination on May 10, 1986 is false, it failed to take note of the fact that the appellant was thus pursuing his remedy by way of an appeal. The appellant himself had stated before the Court that it was in the last week of April 1986 that he had come to know about the termination order; therefore, from this inconsistency alone the High Court should not have doubted the correctness of the reason given by the appellant for the delay. ### Response: 1

P. Malaichami Vs. M. Andi Ambalam & Ors

and there was no rule or any need for him to file a recrimination is wholly beside the point. He had in his counter to the main election petition repudiated every one of the allegations in the election petition. It was at that stage that he should have filed the petition under Section 97 (of course, within 14 days of his appearance). It was not at the stage when the petitioner filed his application for recount that the opportunity or need for a petition under Section 97 arose.11. It was then urged that when all the material was before the Court it was unnecessary for him to have done so. As we have already pointed out this is not an action at law or a suit in equity but one under the provisions of the statute which has specifically created that right. If the appellant wanted an opportunity to question the respondents claim that he should be declared elected he should have followed the procedure laid down in Section 97.In this connection it is interesting to note that in the decision in (1964) 6 SCR 54 = (AIR 1964 SC 1200 ) (supra) the successful candidate in his own petition had pleaded that many votes cast in favour of himself had been wrongly rejected, in regard to which details were given, and that similarly several votes were wrongly accepted in favour of the election petitioner and in regard to which also details were given, and it ended with the prayer that if a proper scrutiny and recount were made of the valid votes received by each, it would be found that he - the returned candidate - had in fact, obtained a larger number of votes than the election-petitioner and for this reason he submitted that the election petition ought to be dismissed. In spite of this it was held that he had to fail because he had not filed a recrimination petition under Section 97.So it is not enough to say that what ought to be looked into is the substance and not the form. If a relief provided under a statute could be obtained only by following a certain procedure laid therein for that purpose, that procedure must be followed if he is to obtain that relief.12. What we have pointed out just now shows that it is not a question of mere pleading, it is a question of jurisdiction. The Election Tribunal had no jurisdiction to go into the question whether any wrong votes had been counted in favour of the election-petitioner, who had claimed the seat for himself unless the successful candidate had filed a petition under Section 97. The law reports are full of cases where parties have failed because of their failure strictly to conform to the letter of the law in regard to the procedure laid down under the Act and the rules.13. Point 3 raised by the appellant has no substance because it was not necessary to lead evidence in respect of any individual vote about improper reception or improper rejection. The decision about improper reception or improper rejection has been given in this case mostly on concessions by both the parties and in a few cases by the Judge himself scrutinising and deciding about all disputed cases. Indeed, there was no need for any evidence except a proper scrutiny of the votes and a correct decision based on such scrutiny as to the candidate for whom it was cast or whether it was invalid. We may at the risk of repetition point out that the process of recounting included decision regarding the question of improper reception or improper rejection and there is no such thing as a general recount and there is no authority in law for suggesting that all that the respondent could have asked for was either a general recount or none at all. Indeed there is no provision in the Act for a petition to be filed alleging "Let all votes be recounted and whoever gets more votes be declared elected."Nor do we think that any question of estoppel arises. Estoppel may arise in respect of each individual vote conceded by one party or the other as valid and given in favour of the other in the sense that having conceded that a disputed vote should have gone to one or other of the parties the party who made that concession cannot go back on it. But where the law provides that no evidence can be given about the improper reception of votes in favour of the defeated candidate who had claimed a seat for himself unless the successful candidate had complied with Section 97, no question of estoppel arises. Concession is akin to admission and the use of such an admission would be evidence. What is barred under the proviso to Section 97 is the giving of evidence by the appellant. Appellant can give evidence either by relying on the respondents admissions or leading independent evidence. In either case it would be giving evidence. And, since giving of evidence is barred, the concessions cannot be used as evidence in favour of the appellant. This is what the learned Judge has very clearly pointed out in his order. We have earlier quoted from the decision in Bhim Sen v. Gopali (supra) where the provisions of S. 97 had not been complied with. Even though as a matter of fact the valid as well as the invalid votes in favour of both the petitioner as well as the respondent might have been counted, the evidence furnished by such votes was not admissible because of failure to comply with the provisions of Section 97.14. Finally, we must deal with the appeal made to us that the justice should be done irrespective of technicalities. Justice has got to be done according to law. A Tribunal with limited jurisdiction cannot go beyond the procedure laid down by the statute for its functioning. If it does so it would be acting without jurisdiction.

0[ds]We are satisfied that the High Court has taken into consideration all the material circumstances and has appreciated the evidence from the correct perspective in coming to the conclusion that the circumstances under which the counting was carried out necessitated acannot understand the anxiety of the Returning Officer in questioning the orders of the learned Judge in the petition for recount as well as the main election petition. After all the concerned parties were fighting it out under the ostensible excuse of questioning the decision of the learned Judge regarding his interpretation of rules 53 and 66. It has been filed really due to the hypersensitiveness on the part of the Minister. Indeed the learned Judge has made fairly strong remarks against the Returning Officer in other respects. He has stated at one place that the Returning Officer had failed in his duty, and at another place that the Returning Officer and the Assistant Returning Officer came forward with a story totally devoid of truth. Nothing is said in the petition about all this which shows that our inference on this point is correct. The petition on behalf of the Returning Officer was wholly uncalled for. It would appear that he is not a freethis enquiry the onus is on the petitioner to prove his allegation. Therefore, in the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of S. 100 (1) (d) itself. In fact S. 97 (1) has no application to the case falling under Section 100 (1) (d) (iii); the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else.(ii) There are cases in which the election petition makes a double claim; it claims that the election of a returned candidate is void and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that S. 100 as well as S. 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that S. 97 comes into play. Section 97 (1) thus allows the returned candidate to recriminate and raise pleas in support of his case. The result of S. 97 (l) therefore, is that in dealing with a composite election petition the Tribunal enquiries into not only the case made out by the petitioner, but also themade by the returned candidate. In this connection the returned candidate is required to comply with the provisions of S. 97 (l) and S. 97 (2) of the Act. If the returned candidate does not recriminate as required by S. 97, then he cannot make any attack against the alternative claim made by the petitioner. In other words the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate.(iii) The pleas of the returned candidate under S. 97 of the Act, have to be tried after a declaration has been made under S. 100 of the Act. The first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by Section 100 (1) (d) (iii) and the latter part or the enquiry which is governed by S. 101 (a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under S. 97 (l). But even in cases to which S. 97 applies, the enquiry necessary while dealing with the dispute under S. 101 (a) will not be wider if the returned candidate has failed to recriminate and in a case of this type the duty of the Election Tribunal will not be to count and scrutinise all the votes cast at the election. As a result of R. 57, the Election Tribunal will have to assume that every ballot paper which had not been rejected under R. 56 constituted one valid vote and it is on that basis the finding will have to be made under S. 101 (a). Therefore, it is clear that in holding an enquiry either under S. 100 (1) (d) (iii) or under S. 101 where Section 97 has not been complied with it is not competent to the Tribunal to order a general recount of the votes preceded by a scrutiny about theirargument is clearly based on a misapprehension. The question that arises in this case did not arise there nor was the earlier decision in Jabar Singhs case, (1964) 6 SCR 54 = (AIR 1964 SC 1200 ) referred to or distinguished. Indeed it was not necessary because they were dealing only with a case falling under S. 100, i.e. a case where the election of the successful candidate was sought to be set aside and not one also falling under S. 101 where the defeated candidate also wants that he should be declared to have beenmay, therefore, look into the law regarding this matter. Under S. 81 of the Representation of the People Act, 1951 "an election petition calling in question any election may be presented on one or more of the grounds specified in(1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector withindays from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those twoonly ground on which the defeated candidate could be declared to be elected is under S. 101 (a) that in fact he had received a majority of valid votes. But it is in deciding who has got the majority of valid votes that S. 97 comes into play. When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. This right the appellant had but this right is subject to the provision that he shall not be entitled to give evidence to prove that the election of the petitioner in this case i.e. the respondent would have been void if he had been the returned candidate and the petitioner had presented petition calling in question the election unless he had given notice of his intention to give such evidence and also given security and the further security referred to in Ss. 117 and 118 respectively, and every such notice has to be accompanied by the statement and particulars required under S. 83 in case of an election petition and shall be signed and verified in the like manner. None of these things was done in this case. The petition by the respondent had been filed onThe orders for the appearance of the respondent were passed onThe appellant, who was the respondent in that petition, should have given notice under S. 97 within 14 days of his appearance i.e. onand also complied with the other requirements specified therein. The issues were framed onthe recount was ordered onhe judgment itself was pronounced onIt was onthat an attempt was made to file a recrimination petition with a petition to excuse the delay. But even then the other requisites of S. 97 like giving security or the petition being accompanied by statement and particulars required by S. 83 were not complied with. A special leave petition was filed in this Court again applying for permission to receive a recrimination petition. There is, thus, no doubt at all that the appellant did not comply with the requirements of S.we are afraid, is a complete misreading of the petition. No doubt the petitioner has asked for a recount of votes. It may legitimately be presumed to mean a recount of all the votes, but such a recount is asked for the purpose of obtaining a declaration that the appellants election was void and a further declaration that the respondent himself had been elected. This aspect of the matter should not be lost sight of. Now, when the respondent asked for a recount, it was not a mere mechanical process that he was asking for. The very grounds which he urged in support of his petition (to which we have referred at an earlier stage) as well as the application for recount and the various grounds on which the learned Judge felt that a recount should be ordered showed that many mistakes were likely to have arisen in the counting, and as revealed by the instances which the learned Judge himself looked into andit is not proper to interpret the respondents prayer for recount as a request for a mere mechanical process of counting. It was counting contemplated under Rule 56 with all its implications that he was asking for. The very grounds on the basis of which the recount was ordered by the learned Judge show that there was a possibility of mistakes having arisen under anyone of the grounds set out in Rule 56 (2) clauses (a) to (h) and it is to have them taken into account and decided correctly that the respondent wanted a recount. Now, when he wants a recount for the purpose of setting aside the appellants election he necessarily has got to have not merely the benefits of votes which would have originally gone to him but which had been wrongly given to the appellant but also all votes which had been cast in his favour (the respondent) but had been rejected wrongly on one or other of the grounds mentioned in Rule 56 (2) clauses (a) to (h).So, it was necessary for the purpose of the respondents case not merely that votes which were held invalid should bebut also votes which had been held to have been cast in favour of the appellant. The improper reception or rejection, therefore, would include not merely cases where a voter appears before the presiding officer at the time of polling and his vote is received where it should not have been received and his vote rejected where it should not have been rejected. The improper rejection or reception contemplated under S. 100 (1) (d) (iii) would include mistakes or wrong judgments made by the returning officer while counting and exercising his powers under Rule 56 (2), clauses (a) to (h). The fact, therefore, that the respondent asked for recounting of all the votes does not mean that he wanted also that votes which had been wrongly held to have been cast in his favour but should have gone to the appellant as also votes which had been rejected, but which should have gone to the appellant should be taken into account. The respondent was interested in no such thing. He made no such prayer.y the appellant that was interested and bound to do it if he wanted to defeat the respondents claim that he should be declared elected and Section 97 is intended for just such a purpose. It was asked what was the purpose and where was the need for the appellant to have filed a recrimination under Section 97 and what he could have filed when the respondent had asked for a total recount. What we have stated above furnishes the necessary answer. The appellant knew not only that the respondent wanted his election to be set aside but also that he wanted himself (the respondent) to be declared elected. He should have, therefore, stated whatever material was necessary to show that the respondent, if he had been the successful candidate and the petition had been presented calling in question his election, his election would have been void, in other words comply with Section 83. He could have stated therein setting out that while he had no objection to a recount to be ordered (we have already shown that he strongly opposed the recount) there were many votes which would have rightly gone to him (the appellant) which have wrongly been given to the respondent, that there were many votes which should have rightly gone to him but which have been improperly rejected. He should also have complied with the other requirements of Section 97. If he had done that that could have been taken into consideration. There was no difficulty at all about his doing all this. His contention that he had no objection to the recount and there was no rule or any need for him to file a recrimination is wholly beside the point. He had in his counter to the main election petition repudiated every one of the allegations in the election petition. It was at that stage that he should have filed the petition under Section 97 (of course, within 14 days of his appearance). It was not at the stage when the petitioner filed his application for recount that the opportunity or need for a petition under Section 97we have already pointed out this is not an action at law or a suit in equity but one under the provisions of the statute which has specifically created that right. If the appellant wanted an opportunity to question the respondents claim that he should be declared elected he should have followed the procedure laid down in Section 97.In this connection it is interesting to note that in the decision in (1964) 6 SCR 54 = (AIR 1964 SC 1200 ) (supra) the successful candidate in his own petition had pleaded that many votes cast in favour of himself had been wrongly rejected, in regard to which details were given, and that similarly several votes were wrongly accepted in favour of the election petitioner and in regard to which also details were given, and it ended with the prayer that if a proper scrutiny and recount were made of the valid votes received by each, it would be found that hethe returned candidatehad in fact, obtained a larger number of votes than theand for this reason he submitted that the election petition ought to be dismissed. In spite of this it was held that he had to fail because he had not filed a recrimination petition under Section 97.So it is not enough to say that what ought to be looked into is the substance and not the form. If a relief provided under a statute could be obtained only by following a certain procedure laid therein for that purpose, that procedure must be followed if he is to obtain that relief.12. What we have pointed out just now shows that it is not a question of mere pleading, it is a question of jurisdiction. The Election Tribunal had no jurisdiction to go into the question whether any wrong votes had been counted in favour of thewho had claimed the seat for himself unless the successful candidate had filed a petition under Section 97. The law reports are full of cases where parties have failed because of their failure strictly to conform to the letter of the law in regard to the procedure laid down under the Act and the rules.13. Point 3 raised by the appellant has no substance because it was not necessary to lead evidence in respect of any individual vote about improper reception or improper rejection. The decision about improper reception or improper rejection has been given in this case mostly on concessions by both the parties and in a few cases by the Judge himself scrutinising and deciding about all disputed cases. Indeed, there was no need for any evidence except a proper scrutiny of the votes and a correct decision based on such scrutiny as to the candidate for whom it was cast or whether it was invalid. We may at the risk of repetition point out that the process of recounting included decision regarding the question of improper reception or improper rejection and there is no such thing as a general recount and there is no authority in law for suggesting that all that the respondent could have asked for was either a general recount or none at all. Indeed there is no provision in the Act for a petition to be filed alleging "Let all votes be recounted and whoever gets more votes be declared elected."Nor do we think that any question of estoppel arises. Estoppel may arise in respect of each individual vote conceded by one party or the other as valid and given in favour of the other in the sense that having conceded that a disputed vote should have gone to one or other of the parties the party who made that concession cannot go back on it. But where the law provides that no evidence can be given about the improper reception of votes in favour of the defeated candidate who had claimed a seat for himself unless the successful candidate had complied with Section 97, no question of estoppel arises. Concession is akin to admission and the use of such an admission would be evidence. What is barred under the proviso to Section 97 is the giving of evidence by the appellant. Appellant can give evidence either by relying on the respondents admissions or leading independent evidence. In either case it would be giving evidence. And, since giving of evidence is barred, the concessions cannot be used as evidence in favour of the appellant. This is what the learned Judge has very clearly pointed out in his order. We have earlier quoted from the decision in Bhim Sen v. Gopali (supra) where the provisions of S. 97 had not been complied with. Even though as a matter of fact the valid as well as the invalid votes in favour of both the petitioner as well as the respondent might have been counted, the evidence furnished by such votes was not admissible because of failure to comply with the provisions of Section 97.14. Finally, we must deal with the appeal made to us that the justice should be done irrespective of technicalities. Justice has got to be done according to law. A Tribunal with limited jurisdiction cannot go beyond the procedure laid down by the statute for its functioning. If it does so it would be acting without jurisdiction.15. We are, therefore, satisfied that the learned Judge was right in holding that though a general recount had been ordered and an account taken of the valid votes given for both the candidates, it was not possible to take into account any vote in favour of the appellant because of his failure to comply with Section 97. Nor are we satisfied that we would be justified in ordering that this case should be reconsidered by a larger Bench.

### 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: and there was no rule or any need for him to file a recrimination is wholly beside the point. He had in his counter to the main election petition repudiated every one of the allegations in the election petition. It was at that stage that he should have filed the petition under Section 97 (of course, within 14 days of his appearance). It was not at the stage when the petitioner filed his application for recount that the opportunity or need for a petition under Section 97 arose.11. It was then urged that when all the material was before the Court it was unnecessary for him to have done so. As we have already pointed out this is not an action at law or a suit in equity but one under the provisions of the statute which has specifically created that right. If the appellant wanted an opportunity to question the respondents claim that he should be declared elected he should have followed the procedure laid down in Section 97.In this connection it is interesting to note that in the decision in (1964) 6 SCR 54 = (AIR 1964 SC 1200 ) (supra) the successful candidate in his own petition had pleaded that many votes cast in favour of himself had been wrongly rejected, in regard to which details were given, and that similarly several votes were wrongly accepted in favour of the election petitioner and in regard to which also details were given, and it ended with the prayer that if a proper scrutiny and recount were made of the valid votes received by each, it would be found that he - the returned candidate - had in fact, obtained a larger number of votes than the election-petitioner and for this reason he submitted that the election petition ought to be dismissed. In spite of this it was held that he had to fail because he had not filed a recrimination petition under Section 97.So it is not enough to say that what ought to be looked into is the substance and not the form. If a relief provided under a statute could be obtained only by following a certain procedure laid therein for that purpose, that procedure must be followed if he is to obtain that relief.12. What we have pointed out just now shows that it is not a question of mere pleading, it is a question of jurisdiction. The Election Tribunal had no jurisdiction to go into the question whether any wrong votes had been counted in favour of the election-petitioner, who had claimed the seat for himself unless the successful candidate had filed a petition under Section 97. The law reports are full of cases where parties have failed because of their failure strictly to conform to the letter of the law in regard to the procedure laid down under the Act and the rules.13. Point 3 raised by the appellant has no substance because it was not necessary to lead evidence in respect of any individual vote about improper reception or improper rejection. The decision about improper reception or improper rejection has been given in this case mostly on concessions by both the parties and in a few cases by the Judge himself scrutinising and deciding about all disputed cases. Indeed, there was no need for any evidence except a proper scrutiny of the votes and a correct decision based on such scrutiny as to the candidate for whom it was cast or whether it was invalid. We may at the risk of repetition point out that the process of recounting included decision regarding the question of improper reception or improper rejection and there is no such thing as a general recount and there is no authority in law for suggesting that all that the respondent could have asked for was either a general recount or none at all. Indeed there is no provision in the Act for a petition to be filed alleging "Let all votes be recounted and whoever gets more votes be declared elected."Nor do we think that any question of estoppel arises. Estoppel may arise in respect of each individual vote conceded by one party or the other as valid and given in favour of the other in the sense that having conceded that a disputed vote should have gone to one or other of the parties the party who made that concession cannot go back on it. But where the law provides that no evidence can be given about the improper reception of votes in favour of the defeated candidate who had claimed a seat for himself unless the successful candidate had complied with Section 97, no question of estoppel arises. Concession is akin to admission and the use of such an admission would be evidence. What is barred under the proviso to Section 97 is the giving of evidence by the appellant. Appellant can give evidence either by relying on the respondents admissions or leading independent evidence. In either case it would be giving evidence. And, since giving of evidence is barred, the concessions cannot be used as evidence in favour of the appellant. This is what the learned Judge has very clearly pointed out in his order. We have earlier quoted from the decision in Bhim Sen v. Gopali (supra) where the provisions of S. 97 had not been complied with. Even though as a matter of fact the valid as well as the invalid votes in favour of both the petitioner as well as the respondent might have been counted, the evidence furnished by such votes was not admissible because of failure to comply with the provisions of Section 97.14. Finally, we must deal with the appeal made to us that the justice should be done irrespective of technicalities. Justice has got to be done according to law. A Tribunal with limited jurisdiction cannot go beyond the procedure laid down by the statute for its functioning. If it does so it would be acting without jurisdiction. ### Response: 0

Income-Tax Officer, Agra Vs. Radha Krishan

assessed against a partner of a registered firm individually under Section 23 (5) (a) of the Act, another partner becomes liable jointly and severally with that first partner to pay tax.The entire scheme of taxing the income of a registered firm in the hands of individual partners is inconsistent with any assumption that for payment of tax assessed against a partner, other partners are liable. The tax assessed against a partner of a registered firm is assessed on his total income inclusive of the share in the firms income, and the rate applicable is determined by the quantum of the total income of the partner. Section 44 contemplates cases of joint and several assessment of income of the business of a firm which is discontinued. When such an assessment is made, each member of the firm may be liable to pay jointly and severally tax payable by the firm. But when under the scheme of the Act tax is assessed individually against each partner, and no tax is made payable by the firm, principle of joint and several liability under Section 44 has no application.8. Counsel for the Commissioner said that this Court had, if not expressly tacitly, accepted the view that the liability of the partners of a firm to pay tax attributable to the share of each partner in the income of the firm is joint and several. Counsel relied upon the clause "determining the tax payable by registered and unregistered firms respectively" in the judgment of this Court in Commissioner of Income-tax, Bombay v. Amritlal Bhogilal and Co., 1958-34 ITR. 130 (at p. 136) = (AIR 1958 SC 868 at p. 872);"It is true that the Income-tax Officer is empowered to follow the two methods specified in Section 23 (5) (a) and (b) in determining the tax payable by registered and unregistered firms respectively and making the demand for the tax so found due, but this does not affect the computation of taxable income,"and contended that the tax determined to be payable under Section 23 (5) is payable by the firm, and hence by all the partners jointly and severally. But in Amritlal Bhogilals case, 1958-34 ITR 130 = (AIR 1958 SC 868 ) the Court was called upon to determine whether the Commissioner of Incometax in exercise of his revisional power may cancel registration of the firm granted under Section 26A and direct the Income-tax Officer to make fresh assessment of the firm as an unregistered firm, when an appeal is pending against the order of assessment before the Appellant Assistant Commissioner. In making the observations relied upon, the Court broadly examined the scheme of assessment of registered firms; it was not stated by the court expressly, nor can it be implied, that for tax attributable to the share of a partner in a registered firm the other partners are liable, notwithstanding separate assessment under Section 23 (5) (a).9. Reliance was then placed upon the following observations made by this Court in S. V. Angidi Chettiars Case, 1962-44 ITR 739 (at p. 744) = (AIR 1962 SC 970 at p. 974)."Under Section 23 (5) of the Indian Income-tax Act, before it was amended in l956 in the case of a registered firm the tax payable by the firm itself was not required to be determined but the total income of each partner of the firm including therein the share of its income, profits and gains of the previous year was required to be assessed and the sum payable by him on the basis of such assessment was to be determined. But this was merely a method of collection of tax due from the firm."In S. V. Angidi Chettiars case, 1962-44 ITR 739 = (AIR 1962 SC 970 ) it was held that the Income-tax Officer has power to make an order under Section 28 imposing penalty on a firm even after dissolution of the firm. There is nothing in the observations relied upon which indicates that under Section 23 (5) (a) when the income of a registered firm is computed and the tax liability is imposed by the machinery provided thereunder the tax is imposed upon the firm or is recoverable jointly and severally from the partners of the firm.10. A recent case was also relied upon Shivram Podar v. Income-tax Officer, Central Circle II, Calcutta, 1964-51 ITR 823 = (AIR 1964 SC 1095 ). In that case it was held that the firm, by the discontinuance of its business, does not cease to be liable to pay tax on the income earned by it; nor can a procedure different from the one prescribed under Ch. IV of the Income-tax Act 1922, apply for assessment of the income of such a firm. The firm after it has discontinued its business, whether it is dissolved or not, will be assessed either under S. 25 (1) in the year of account in which it discontinues its business, or in the year of assessment. In both cases the procedure for assessment is under Section 23 (3) and (4) supplemented by Section 23 (5). The principle of that judgment also has no application to the present case. Reliance was placed upon the observation made at p. 828 (of ITR) = (at p. 1098 of AIR)."On the discontinuance of the business of a firm, however, by Section 44 a joint and several liability of all partners rises to pay tax due by the firm."But that obviously means that joint and several liability arises when the income of a firm which has discontinued its business is assessed under Section 44. It does not mean that where the assessment is made under Section 23 (5) (a) of a registered firm and the income of each individual partner is assessed, the partners becomes jointly and severally liable to pay the aggregate amount of tax attributable to their various shares, in their individual assessments.(11) The cases relied upon by counsel for the Income Tax Officer do not support the claim made by the Income-tax Officer.(12)

0[ds]Undoubtedly, contractual obligations of a firm are enforceable jointly and severally against the partners.But the liability to pay income-tax is statutory; it does not arise out of any contract, and its incidence must be determined by the statute. If the statute which imposes liability has not made it enforceable jointly and severally against the partners, no such implication can arise merely because contractual liabilities of a firm may be jointly and severally enforced against theentire scheme of taxing the income of a registered firm in the hands of individual partners is inconsistent with any assumption that for payment of tax assessed against a partner, other partners are liable. The tax assessed against a partner of a registered firm is assessed on his total income inclusive of the share in the firms income, and the rate applicable is determined by the quantum of the total income of the partner. Section 44 contemplates cases of joint and several assessment of income of the business of a firm which is discontinued. When such an assessment is made, each member of the firm may be liable to pay jointly and severally tax payable by the firm. But when under the scheme of the Act tax is assessed individually against each partner, and no tax is made payable by the firm, principle of joint and several liability under Section 44 has nois nothing in the observations relied upon which indicates that under Section 23 (5) (a) when the income of a registered firm is computed and the tax liability is imposed by the machinery provided thereunder the tax is imposed upon the firm or is recoverable jointly and severally from the partners of theboth cases the procedure for assessment is under Section 23 (3) and (4) supplemented by Section 23 (5). The principle of that judgment also has no application to the presentthat obviously means that joint and several liability arises when the income of a firm which has discontinued its business is assessed under Section 44. It does not mean that where the assessment is made under Section 23 (5) (a) of a registered firm and the income of each individual partner is assessed, the partners becomes jointly and severally liable to pay the aggregate amount of tax attributable to their various shares, in their individualThe cases relied upon by counsel for the Income Tax Officer do not support the claim made by the Income-tax Officer.

### 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: assessed against a partner of a registered firm individually under Section 23 (5) (a) of the Act, another partner becomes liable jointly and severally with that first partner to pay tax.The entire scheme of taxing the income of a registered firm in the hands of individual partners is inconsistent with any assumption that for payment of tax assessed against a partner, other partners are liable. The tax assessed against a partner of a registered firm is assessed on his total income inclusive of the share in the firms income, and the rate applicable is determined by the quantum of the total income of the partner. Section 44 contemplates cases of joint and several assessment of income of the business of a firm which is discontinued. When such an assessment is made, each member of the firm may be liable to pay jointly and severally tax payable by the firm. But when under the scheme of the Act tax is assessed individually against each partner, and no tax is made payable by the firm, principle of joint and several liability under Section 44 has no application.8. Counsel for the Commissioner said that this Court had, if not expressly tacitly, accepted the view that the liability of the partners of a firm to pay tax attributable to the share of each partner in the income of the firm is joint and several. Counsel relied upon the clause "determining the tax payable by registered and unregistered firms respectively" in the judgment of this Court in Commissioner of Income-tax, Bombay v. Amritlal Bhogilal and Co., 1958-34 ITR. 130 (at p. 136) = (AIR 1958 SC 868 at p. 872);"It is true that the Income-tax Officer is empowered to follow the two methods specified in Section 23 (5) (a) and (b) in determining the tax payable by registered and unregistered firms respectively and making the demand for the tax so found due, but this does not affect the computation of taxable income,"and contended that the tax determined to be payable under Section 23 (5) is payable by the firm, and hence by all the partners jointly and severally. But in Amritlal Bhogilals case, 1958-34 ITR 130 = (AIR 1958 SC 868 ) the Court was called upon to determine whether the Commissioner of Incometax in exercise of his revisional power may cancel registration of the firm granted under Section 26A and direct the Income-tax Officer to make fresh assessment of the firm as an unregistered firm, when an appeal is pending against the order of assessment before the Appellant Assistant Commissioner. In making the observations relied upon, the Court broadly examined the scheme of assessment of registered firms; it was not stated by the court expressly, nor can it be implied, that for tax attributable to the share of a partner in a registered firm the other partners are liable, notwithstanding separate assessment under Section 23 (5) (a).9. Reliance was then placed upon the following observations made by this Court in S. V. Angidi Chettiars Case, 1962-44 ITR 739 (at p. 744) = (AIR 1962 SC 970 at p. 974)."Under Section 23 (5) of the Indian Income-tax Act, before it was amended in l956 in the case of a registered firm the tax payable by the firm itself was not required to be determined but the total income of each partner of the firm including therein the share of its income, profits and gains of the previous year was required to be assessed and the sum payable by him on the basis of such assessment was to be determined. But this was merely a method of collection of tax due from the firm."In S. V. Angidi Chettiars case, 1962-44 ITR 739 = (AIR 1962 SC 970 ) it was held that the Income-tax Officer has power to make an order under Section 28 imposing penalty on a firm even after dissolution of the firm. There is nothing in the observations relied upon which indicates that under Section 23 (5) (a) when the income of a registered firm is computed and the tax liability is imposed by the machinery provided thereunder the tax is imposed upon the firm or is recoverable jointly and severally from the partners of the firm.10. A recent case was also relied upon Shivram Podar v. Income-tax Officer, Central Circle II, Calcutta, 1964-51 ITR 823 = (AIR 1964 SC 1095 ). In that case it was held that the firm, by the discontinuance of its business, does not cease to be liable to pay tax on the income earned by it; nor can a procedure different from the one prescribed under Ch. IV of the Income-tax Act 1922, apply for assessment of the income of such a firm. The firm after it has discontinued its business, whether it is dissolved or not, will be assessed either under S. 25 (1) in the year of account in which it discontinues its business, or in the year of assessment. In both cases the procedure for assessment is under Section 23 (3) and (4) supplemented by Section 23 (5). The principle of that judgment also has no application to the present case. Reliance was placed upon the observation made at p. 828 (of ITR) = (at p. 1098 of AIR)."On the discontinuance of the business of a firm, however, by Section 44 a joint and several liability of all partners rises to pay tax due by the firm."But that obviously means that joint and several liability arises when the income of a firm which has discontinued its business is assessed under Section 44. It does not mean that where the assessment is made under Section 23 (5) (a) of a registered firm and the income of each individual partner is assessed, the partners becomes jointly and severally liable to pay the aggregate amount of tax attributable to their various shares, in their individual assessments.(11) The cases relied upon by counsel for the Income Tax Officer do not support the claim made by the Income-tax Officer.(12) ### Response: 0

B. LAKSHMANA ETC Vs. DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED ETC

who issued the disability certificate, was examined as PW7. 3. Exhibits P1 to P17 were marked. Exhibit P1 is the First Information Report on the accident. Exhibit P2 is the Charge-sheet and Exhibit P3 is the Registration Certificate. Exhibits P5 to P16 are the Wound Certificates and the Disability Certificates, respectively of the Appellants and P17 is the Insurance Policy. The Wound Certificates and Disability Certificates were duly proved by PW7. 4. Though the insurer filed an application for calling for the medical records from the primary health centre where the Appellants were initially treated, the same was dismissed since disability certificate issued by the registered medical practitioner had already been admitted in evidence. Application for reassessment of disability by a panel of doctors was also dismissed on the same ground as per common order dated 04.07.2007 of the Workmens Compensation Commissioner. 5. Based on the evidence on record, by order dated 19.07.2007, the Workmens Compensation Commissioner awarded compensation as follows: As per the calculation of compensation amount the ages of the Petitioners and obtaining their respective salaries already decided factor. As per workmen compensation Act the Petitioners ages and obtaining net salaries at the rate of 60% as calculated and they sustained loss and both are calculated and the compensation award amount has been fixed as follows: The fact of the accident intimated before Respondent, the fact before the court was held with discussion and this Court fixed the compensation amount to the Petitioners as per workmen compensation Act, 1923 as per Section 4(A)(3)(A) and the compensation award amount shall be tender to the Petitioners with one month from the date of judgment and deposited the same before this Court at the rate of 12% interest to the said award amount. 6. Aggrieved, the insurance company filed appeals before the High Court. The appeals have been disposed of by the impugned judgment dated 02.02.2011. The High Court set aside the order passed by the Workmens Compensation Commissioner and dismissed the applications for compensation mainly holding that the claim was not properly proved before the Workmens Compensation Commissioner. The High Court was of the view that x-rays of the Appellants, based on which PW7 assessed the disability, should have been produced. To quote from paragraph-18 of the impugned judgment: Evidence on record would also clearly go to show that claimants have not only withheld the valuable evidence if any available with them for being tendered namely X-ray reports and as such an adverse inference has to be drawn against claimants for withholding best evidence available with them from being produced and being scrutinized by the Workmens Compensation Commissioner at the time of adjudication their claim petitions. 7. We are afraid that the stand taken by the High Court cannot be appreciated. All the records were seen by PW7-registered medical practitioner, who is an orthopedic surgeon, before issuing the disability certificate. He has also seen would certificate issued by the primary health centre. Only after examining the Appellants with reference to the wound certificate and the x-rays taken by him, PW7-orthopedic surgeon issued the disability certificate. In such circumstances, it is not necessary for the Appellants, who are applicants before the Workmens Compensation Commissioner, to produce the x-rays before the Workmens Compensation Commissioner. Even otherwise, the Commissioner is not an officer qualified and competent to assess the disability with reference to the medical records, particularly the x-rays. That is the field of medical experts, the medical practitioner. PW-7-registered medical practitioner has duly assessed the disability with reference to the relevant records and on examining the Appellants. There is no case that he has not seen the records or that he has manipulated the records of treatment or he has misread the same. He has also physically examined the Appellants after taking x-ray. In such circumstances, it is not required to have the x-rays before the Commissioner. 8. u/s 4 of the Act, it is sufficient if the loss of earning capacity is assessed by a qualified and registered medical practitioner. The insurer does not have a case that PW7 is not a qualified medical practitioner. He is a registered medical practitioner and he is an orthopedic surgeon. There is no dispute with regard to his competence to issue the disability certificate. 9. All that apart, the order dated 04.07.2007 of the Workmens Compensation Commissioner rejecting the prayer made by the insurer for calling for records and for referring the Appellants to the panel of doctors, was not challenged by the insurer, and, thus, it has become final. 10. u/s 30 of the Act: ...no appeal shall lie against any order unless a substantial question of law is involved in the appeal.... 11. In the instant case, the Workmens Compensation Commissioner has already returned a finding of fact with regard to the accident, the injury suffered by the Appellants and the extent of loss of earning capacity of the Appellants as a result of the accident. The said finding is based on the evidence duly proved before the Commissioner. There is no material irregularity or perversity in the appraisal of evidence. There is no case that the evidence was inadmissible. In such circumstances, the appellate court should not have entertained the appeal as there is no substantial question of law. 12. Under the scheme of the Act, the Workmens Compensation Commissioner is the final authority on questions of fact and the first appellate court is the final authority on the question of law. In the instant case, there is no question of law much less a substantial question of law arising for consideration u/s 30 of the Act for the High Court. The High Court has simply ventured to re-appreciate the evidence and record a difference finding, which is not within its jurisdiction u/s 30 of the Act, in the absence of any material irregularity or perversity. 13. As far as the rate of interest is concerned, the Commissioner only awarded 12% which is the statutory interest u/s 4A of the Act.

1[ds]7. We are afraid that the stand taken by the High Court cannot be appreciated. All the records were seen by PW7-registered medical practitioner, who is an orthopedic surgeon, before issuing the disability certificate. He has also seen would certificate issued by the primary health centre. Only after examining the Appellants with reference to the wound certificate and the x-rays taken by him, PW7-orthopedic surgeon issued the disability certificate. In such circumstances, it is not necessary for the Appellants, who are applicants before the Workmens Compensation Commissioner, to produce the x-rays before the Workmens Compensation Commissioner. Even otherwise, the Commissioner is not an officer qualified and competent to assess the disability with reference to the medical records, particularly the x-rays. That is the field of medical experts, the medical practitioner. PW-7-registered medical practitioner has duly assessed the disability with reference to the relevant records and on examining the Appellants. There is no case that he has not seen the records or that he has manipulated the records of treatment or he has misread the same. He has also physically examined the Appellants after taking x-ray. In such circumstances, it is not required to have the x-rays before the Commissioner.8. u/s 4 of the Act, it is sufficient if the loss of earning capacity is assessed by a qualified and registered medical practitioner. The insurer does not have a case that PW7 is not a qualified medical practitioner. He is a registered medical practitioner and he is an orthopedic surgeon. There is no dispute with regard to his competence to issue the disability certificate.9. All that apart, the order dated 04.07.2007 of the Workmens Compensation Commissioner rejecting the prayer made by the insurer for calling for records and for referring the Appellants to the panel of doctors, was not challenged by the insurer, and, thus, it has become final.11. In the instant case, the Workmens Compensation Commissioner has already returned a finding of fact with regard to the accident, the injury suffered by the Appellants and the extent of loss of earning capacity of the Appellants as a result of the accident. The said finding is based on the evidence duly proved before the Commissioner. There is no material irregularity or perversity in the appraisal of evidence. There is no case that the evidence was inadmissible. In such circumstances, the appellate court should not have entertained the appeal as there is no substantial question of law.12. Under the scheme of the Act, the Workmens Compensation Commissioner is the final authority on questions of fact and the first appellate court is the final authority on the question of law. In the instant case, there is no question of law much less a substantial question of law arising for consideration u/s 30 of the Act for the High Court. The High Court has simply ventured to re-appreciate the evidence and record a difference finding, which is not within its jurisdiction u/s 30 of the Act, in the absence of any material irregularity or perversity.13. As far as the rate of interest is concerned, the Commissioner only awarded 12% which is the statutory interest u/s 4A of the Act.

### 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: who issued the disability certificate, was examined as PW7. 3. Exhibits P1 to P17 were marked. Exhibit P1 is the First Information Report on the accident. Exhibit P2 is the Charge-sheet and Exhibit P3 is the Registration Certificate. Exhibits P5 to P16 are the Wound Certificates and the Disability Certificates, respectively of the Appellants and P17 is the Insurance Policy. The Wound Certificates and Disability Certificates were duly proved by PW7. 4. Though the insurer filed an application for calling for the medical records from the primary health centre where the Appellants were initially treated, the same was dismissed since disability certificate issued by the registered medical practitioner had already been admitted in evidence. Application for reassessment of disability by a panel of doctors was also dismissed on the same ground as per common order dated 04.07.2007 of the Workmens Compensation Commissioner. 5. Based on the evidence on record, by order dated 19.07.2007, the Workmens Compensation Commissioner awarded compensation as follows: As per the calculation of compensation amount the ages of the Petitioners and obtaining their respective salaries already decided factor. As per workmen compensation Act the Petitioners ages and obtaining net salaries at the rate of 60% as calculated and they sustained loss and both are calculated and the compensation award amount has been fixed as follows: The fact of the accident intimated before Respondent, the fact before the court was held with discussion and this Court fixed the compensation amount to the Petitioners as per workmen compensation Act, 1923 as per Section 4(A)(3)(A) and the compensation award amount shall be tender to the Petitioners with one month from the date of judgment and deposited the same before this Court at the rate of 12% interest to the said award amount. 6. Aggrieved, the insurance company filed appeals before the High Court. The appeals have been disposed of by the impugned judgment dated 02.02.2011. The High Court set aside the order passed by the Workmens Compensation Commissioner and dismissed the applications for compensation mainly holding that the claim was not properly proved before the Workmens Compensation Commissioner. The High Court was of the view that x-rays of the Appellants, based on which PW7 assessed the disability, should have been produced. To quote from paragraph-18 of the impugned judgment: Evidence on record would also clearly go to show that claimants have not only withheld the valuable evidence if any available with them for being tendered namely X-ray reports and as such an adverse inference has to be drawn against claimants for withholding best evidence available with them from being produced and being scrutinized by the Workmens Compensation Commissioner at the time of adjudication their claim petitions. 7. We are afraid that the stand taken by the High Court cannot be appreciated. All the records were seen by PW7-registered medical practitioner, who is an orthopedic surgeon, before issuing the disability certificate. He has also seen would certificate issued by the primary health centre. Only after examining the Appellants with reference to the wound certificate and the x-rays taken by him, PW7-orthopedic surgeon issued the disability certificate. In such circumstances, it is not necessary for the Appellants, who are applicants before the Workmens Compensation Commissioner, to produce the x-rays before the Workmens Compensation Commissioner. Even otherwise, the Commissioner is not an officer qualified and competent to assess the disability with reference to the medical records, particularly the x-rays. That is the field of medical experts, the medical practitioner. PW-7-registered medical practitioner has duly assessed the disability with reference to the relevant records and on examining the Appellants. There is no case that he has not seen the records or that he has manipulated the records of treatment or he has misread the same. He has also physically examined the Appellants after taking x-ray. In such circumstances, it is not required to have the x-rays before the Commissioner. 8. u/s 4 of the Act, it is sufficient if the loss of earning capacity is assessed by a qualified and registered medical practitioner. The insurer does not have a case that PW7 is not a qualified medical practitioner. He is a registered medical practitioner and he is an orthopedic surgeon. There is no dispute with regard to his competence to issue the disability certificate. 9. All that apart, the order dated 04.07.2007 of the Workmens Compensation Commissioner rejecting the prayer made by the insurer for calling for records and for referring the Appellants to the panel of doctors, was not challenged by the insurer, and, thus, it has become final. 10. u/s 30 of the Act: ...no appeal shall lie against any order unless a substantial question of law is involved in the appeal.... 11. In the instant case, the Workmens Compensation Commissioner has already returned a finding of fact with regard to the accident, the injury suffered by the Appellants and the extent of loss of earning capacity of the Appellants as a result of the accident. The said finding is based on the evidence duly proved before the Commissioner. There is no material irregularity or perversity in the appraisal of evidence. There is no case that the evidence was inadmissible. In such circumstances, the appellate court should not have entertained the appeal as there is no substantial question of law. 12. Under the scheme of the Act, the Workmens Compensation Commissioner is the final authority on questions of fact and the first appellate court is the final authority on the question of law. In the instant case, there is no question of law much less a substantial question of law arising for consideration u/s 30 of the Act for the High Court. The High Court has simply ventured to re-appreciate the evidence and record a difference finding, which is not within its jurisdiction u/s 30 of the Act, in the absence of any material irregularity or perversity. 13. As far as the rate of interest is concerned, the Commissioner only awarded 12% which is the statutory interest u/s 4A of the Act. ### Response: 1

R.K.Anand Vs. Registrar,Delhi High Court

Indeed the Bar council(s) have very positively taken up a number of important issues concerning the administration of justice in the country. It has consistently fought to safeguard the interests of lawyers and it has done a lot of good work for their welfare. But on the issue of maintaining high professional standards and enforcing discipline among lawyers its performance hardly matches its achievements in other areas. It has not shown much concern even to see that lawyers should observe the statutory norms prescribed by the Council itself. We hope and trust that the Council will at least now sit up and pay proper attention to the restoration of the high professional standards among lawyers worthy of their position in the judicial system and in the society. This takes us to the last leg of this matter. THE LARGER ISSUE: BMW TRIAL GETTING OUT OF HAND: 204. Before laying down the records of the case we must also advert to another issue of great importance that causes grave concern to this Court. At the root of this odious affair is the way the BMW trial was allowed to be constantly interfered with till it almost became directionless. We have noted Kulkarnis conduct in course of investigation and at the commencement of the trial; the fight that broke out in the court premises between some policemen and a section of lawyers over his control and custody; the manner in which Hari Shankar Yadav, a key prosecution witness turned hostile in court; the curious way in which Manoj Malik, another key witness for the prosecution appeared before the court and overriding the prosecutions protest, was allowed to depose only to resile from his earlier statement. All this and several other similar developments calculated to derail the trial would not have escaped the notice of the Chief Justice or the judges of the Court. But there is nothing to show that the High Court, as an institution, as a body took any step to thwart the nefarious activities aimed at undermining the trial and to ensure that it proceeded on the proper course. As a result, everyone seemed to feel free to try to subvert the trial in any way they pleased.205. We must add here that this indifferent and passive attitude is not confined to the BMW trial or to the Delhi High Court alone. It is shared in greater or lesser degrees by many other High Courts. From experience in Bihar, the author of these lines can say that every now and then one would come across reports of investigation deliberately botched up or of the trial being hijacked by some powerful and influential accused, either by buying over or intimidating witnesses or by creating insurmountable impediments for the trial court and not allowing the trial to proceed. But unfortunately the reports would seldom, if ever, be taken note of by the collective consciousness of the Court. The High Court would continue to carry on its business as if everything under it was proceeding normally and smoothly. The trial would fail because it was not protected from external interferences. Every trial that fails due to external interference is a tragedy for the victim(s) of the crime. More importantly, every frustrated trial defies and mocks the society based on the rule of law. Every subverted trial leaves a scar on the criminal justice system. Repeated scars make the system unrecognisable and it then loses the trust and confidence of the people. Every failed trial is also, in a manner of speaking, a negative comment on the States High Court that is entrusted with the responsibility of superintendence, supervision and control of the lower courts. It is, therefore, high time for the High Courts to assume a more pro-active role in such matters. A step in time by the High Court can save a criminal case from going astray. An enquiry from the High Court Registry to the concerned quarters would send the message that the High Court is watching; it means business and it will not tolerate any nonsense. Even this much would help a great deal in insulating a criminal case from outside interferences. In very few cases where more positive intervention is called for, if the matter is at the stage of investigation the High Court may call for status report and progress reports from police headquarter or the concerned Superintendent of Police. That alone would provide sufficient stimulation and pressure for a fair investigation of the case. In rare cases if the High Court is not satisfied by the status/progress reports it may even consider taking up the matter on the judicial side. Once the case reaches the stage of trial the High Court obviously has far wider powers. It can assign the trial to some judicial officer who has made a reputation for independence and integrity. It may fix the venue of the trial at a proper place where the scope for any external interference may be eliminated or minimized. It can give effective directions for protection of witnesses and victims and their families. It can ensure a speedy conclusion of the trial by directing the trial court to take up the matter on a day-to-day basis. The High Court has got ample powers for all this both on the judicial and administrative sides. Article 227 of the Constitution of India that gives the High Court the authority of superintendence over the subordinate courts has great dynamism and now is the time to add to it another dimension for monitoring and protection of criminal trials. Similarly Article 235 of the Constitution that vests the High Court with the power of control over sub-ordinate courts should also include a positive element. It should not be confined only to posting, transfer and promotion of the officers of the subordinate judiciary. The power of control should also be exercised to protect them from external interference that may sometime appear overpowering to them and to support them to discharge their duties fearlessly.

1[ds]find substance in Mr. Raos submission.In our considered view, on the basis of materials on record the charge of criminal contempt cannot be held to be satisfactorily established against IU Khan. In our opinion he is entitled to the benefit of doubt.The action of the appellant in trying to suborn the court witness in a criminal trial was reprehensible enough but his conduct before the High Court aggravates the matter manifold. He does not show any remorse for his gross misdemeanour and instead tries to take on the High Court by defying its authority. We are in agreement with Mr. Salve and Mr. Subramanium that punishment given to him by the High Court was wholly inadequate and incommensurate to the seriousness of his actions and conduct. We, accordingly, propose to issue a notice to him for enhancement of punishment. We also hold that by his actions and conduct the appellant has established himself as a person who needs to be kept away from the portals of the court for a longer time. The notice would therefore require him to show-cause why the punishment awarded to him should not be enhanced as provided under section 12 of the Contempt of Courts Act. He would additionally show-cause why he should not be debarred from appearing in courts for a longer period. The second part of the notice would also cure the defect in the High Court order in debarring the appellant from appearing in courts without giving any specific notice in that regard as held in the earlier part of the judgment.We are also unable to agree with the submission made by Mr. P. P. Rao that the TV channel should have carried out the stings only after obtaining the permission of the trial court or the Chief Justice of the Delhi High Court and should have submitted the sting materials to the court before its telecast. Such a course would not be an exercise in journalism but in that case the media would be acting as some sort of special vigilance agency for the court. On little consideration the idea appears to be quite repugnant both from the points of view of the court and the media. It would be a sad day for the court to employ the media for setting its own house in order; and media too would certainly not relish the role of being the snoopers for the court. Moreover, to insist that a report concerning a pending trial may be published or a sting operation concerning a trial may be done only subject to the prior consent and permission of the court would tantamount to pre-censorship of reporting of court proceedings. And this would be plainly an infraction of the medias right of freedom of speech and expression guaranteed under Article 19(1) of the Constitution. This is, however, not to say that media is free to publish any kind of report concerning a sub-judice matter or to do a sting on some matter concerning a pending trial in any manner they please. The legal parameter within which a report or comment on a sub-judice matter can be made is well defined and any action in breach of the legal bounds would invite consequences. Compared to normal reporting, a sting operation is an incalculably more risky and dangerous thing to do. A sting is based on deception and, therefore, it would attract the legal restrictions with far greater stringency and any infraction would invite more severe punishment. Sting programme whether trial byIn light of the above it can hardly be said that the sting programme telecast by NDTV was a media trial. Leaving aside some stray remarks or comments by the anchors or the interviewees, the programme showed some people trying to subvert the BMW trial and the state of the criminal administration of justice in the country (as perceived by the TV channel and the interviewees). There was nothing in the programme to suggest that the accused in the BMW case were guilty or innocent. The programme was not about the accused but it was mainly about two lawyers representing the two sides and one of the witnesses in the case. It indeed made serious allegations against the two lawyers. The allegations, insofar as RK Anand is concerned, stand established after strict scrutiny by the High Court and this Court. Insofar as IU Khan is concerned, though this Court held that his conduct did not constitute criminal contempt of court, nonetheless allegations against him too are established to the extent that his conduct has been found to be inappropriate for a Special Prosecutor. In regard to the witness the comments and remarks made in the telecast were never subject to a judicial scrutiny but those too are broadly in conformity with the materials on the courts record. We are thus clearly of the view that the sting programme telecast by NDTV cannot be described as a piece of trial by media. Stings & telecast of sting programmes not constituting criminalWe express our concern on the falling professional norms among the lawyers with considerable pain because we strongly feel that unless the trend is immediately arrested and reversed, it will have very deleterious consequences for administration of justice in the country. No judicial system in a democratic society can work satisfactorily unless it is supported by a bar that enjoys the unqualified trust and confidence of the people, that share the aspirations, hopes and the ideals of the people and whose members are monetarily accessible and affordable to the people.201. We are glad to note that Mr. Gopal Subramanium, the amicus fully shared our concern and realised the gravity of the issue. In course of his submissions he eloquently addressed us on the elevated position enjoyed by a lawyer in our system of justice and the responsibilities cast upon him in consequence. His Written Submissions begin with this issue and he quotes extensively form the address of Shri M C Setalvad at the Diamond Jubilee Celebrations of the Banglore Bar Association, 1961, and from the decisions of this Court in Pritam Pal vs. High court of Madhya Pradesh, 1993 Supp (1) SCC 529 (observations of Ratnavel Pandian J.) and Sanjeev Datta, In Re, (1995) 3 SCC 619 (observations of Sawant J. at pp 634-635, para 20).202. We respectfully endorse the views and sentiments expressed by Mr. M.C. Setalvad, Pandian J. and Sawant J.Before laying down the records of the case we must also advert to another issue of great importance that causes grave concern to this Court. At the root of this odious affair is the way the BMW trial was allowed to be constantly interfered with till it almost became directionless. We have noted Kulkarnis conduct in course of investigation and at the commencement of the trial; the fight that broke out in the court premises between some policemen and a section of lawyers over his control and custody; the manner in which Hari Shankar Yadav, a key prosecution witness turned hostile in court; the curious way in which Manoj Malik, another key witness for the prosecution appeared before the court and overriding the prosecutions protest, was allowed to depose only to resile from his earlier statement. All this and several other similar developments calculated to derail the trial would not have escaped the notice of the Chief Justice or the judges of the Court. But there is nothing to show that the High Court, as an institution, as a body took any step to thwart the nefarious activities aimed at undermining the trial and to ensure that it proceeded on the proper course. As a result, everyone seemed to feel free to try to subvert the trial in any way they pleased.205. We must add here that this indifferent and passive attitude is not confined to the BMW trial or to the Delhi High Court alone. It is shared in greater or lesser degrees by many other High Courts. From experience in Bihar, the author of these lines can say that every now and then one would come across reports of investigation deliberately botched up or of the trial being hijacked by some powerful and influential accused, either by buying over or intimidating witnesses or by creating insurmountable impediments for the trial court and not allowing the trial to proceed. But unfortunately the reports would seldom, if ever, be taken note of by the collective consciousness of the Court. The High Court would continue to carry on its business as if everything under it was proceeding normally and smoothly. The trial would fail because it was not protected from external interferences. Every trial that fails due to external interference is a tragedy for the victim(s) of the crime. More importantly, every frustrated trial defies and mocks the society based on the rule of law. Every subverted trial leaves a scar on the criminal justice system. Repeated scars make the system unrecognisable and it then loses the trust and confidence of the people. Every failed trial is also, in a manner of speaking, a negative comment on the States High Court that is entrusted with the responsibility of superintendence, supervision and control of the lower courts. It is, therefore, high time for the High Courts to assume a more pro-active role in such matters. A step in time by the High Court can save a criminal case from going astray. An enquiry from the High Court Registry to the concerned quarters would send the message that the High Court is watching; it means business and it will not tolerate any nonsense. Even this much would help a great deal in insulating a criminal case from outside interferences. In very few cases where more positive intervention is called for, if the matter is at the stage of investigation the High Court may call for status report and progress reports from police headquarter or the concerned Superintendent of Police. That alone would provide sufficient stimulation and pressure for a fair investigation of the case. In rare cases if the High Court is not satisfied by the status/progress reports it may even consider taking up the matter on the judicial side. Once the case reaches the stage of trial the High Court obviously has far wider powers. It can assign the trial to some judicial officer who has made a reputation for independence and integrity. It may fix the venue of the trial at a proper place where the scope for any external interference may be eliminated or minimized. It can give effective directions for protection of witnesses and victims and their families. It can ensure a speedy conclusion of the trial by directing the trial court to take up the matter on a day-to-day basis. The High Court has got ample powers for all this both on the judicial and administrative sides. Article 227 of the Constitution of India that gives the High Court the authority of superintendence over the subordinate courts has great dynamism and now is the time to add to it another dimension for monitoring and protection of criminal trials. Similarly Article 235 of the Constitution that vests the High Court with the power of control over sub-ordinate courts should also include a positive element. It should not be confined only to posting, transfer and promotion of the officers of the subordinate judiciary. The power of control should also be exercised to protect them from external interference that may sometime appear overpowering to them and to support them to discharge their duties

### 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: Indeed the Bar council(s) have very positively taken up a number of important issues concerning the administration of justice in the country. It has consistently fought to safeguard the interests of lawyers and it has done a lot of good work for their welfare. But on the issue of maintaining high professional standards and enforcing discipline among lawyers its performance hardly matches its achievements in other areas. It has not shown much concern even to see that lawyers should observe the statutory norms prescribed by the Council itself. We hope and trust that the Council will at least now sit up and pay proper attention to the restoration of the high professional standards among lawyers worthy of their position in the judicial system and in the society. This takes us to the last leg of this matter. THE LARGER ISSUE: BMW TRIAL GETTING OUT OF HAND: 204. Before laying down the records of the case we must also advert to another issue of great importance that causes grave concern to this Court. At the root of this odious affair is the way the BMW trial was allowed to be constantly interfered with till it almost became directionless. We have noted Kulkarnis conduct in course of investigation and at the commencement of the trial; the fight that broke out in the court premises between some policemen and a section of lawyers over his control and custody; the manner in which Hari Shankar Yadav, a key prosecution witness turned hostile in court; the curious way in which Manoj Malik, another key witness for the prosecution appeared before the court and overriding the prosecutions protest, was allowed to depose only to resile from his earlier statement. All this and several other similar developments calculated to derail the trial would not have escaped the notice of the Chief Justice or the judges of the Court. But there is nothing to show that the High Court, as an institution, as a body took any step to thwart the nefarious activities aimed at undermining the trial and to ensure that it proceeded on the proper course. As a result, everyone seemed to feel free to try to subvert the trial in any way they pleased.205. We must add here that this indifferent and passive attitude is not confined to the BMW trial or to the Delhi High Court alone. It is shared in greater or lesser degrees by many other High Courts. From experience in Bihar, the author of these lines can say that every now and then one would come across reports of investigation deliberately botched up or of the trial being hijacked by some powerful and influential accused, either by buying over or intimidating witnesses or by creating insurmountable impediments for the trial court and not allowing the trial to proceed. But unfortunately the reports would seldom, if ever, be taken note of by the collective consciousness of the Court. The High Court would continue to carry on its business as if everything under it was proceeding normally and smoothly. The trial would fail because it was not protected from external interferences. Every trial that fails due to external interference is a tragedy for the victim(s) of the crime. More importantly, every frustrated trial defies and mocks the society based on the rule of law. Every subverted trial leaves a scar on the criminal justice system. Repeated scars make the system unrecognisable and it then loses the trust and confidence of the people. Every failed trial is also, in a manner of speaking, a negative comment on the States High Court that is entrusted with the responsibility of superintendence, supervision and control of the lower courts. It is, therefore, high time for the High Courts to assume a more pro-active role in such matters. A step in time by the High Court can save a criminal case from going astray. An enquiry from the High Court Registry to the concerned quarters would send the message that the High Court is watching; it means business and it will not tolerate any nonsense. Even this much would help a great deal in insulating a criminal case from outside interferences. In very few cases where more positive intervention is called for, if the matter is at the stage of investigation the High Court may call for status report and progress reports from police headquarter or the concerned Superintendent of Police. That alone would provide sufficient stimulation and pressure for a fair investigation of the case. In rare cases if the High Court is not satisfied by the status/progress reports it may even consider taking up the matter on the judicial side. Once the case reaches the stage of trial the High Court obviously has far wider powers. It can assign the trial to some judicial officer who has made a reputation for independence and integrity. It may fix the venue of the trial at a proper place where the scope for any external interference may be eliminated or minimized. It can give effective directions for protection of witnesses and victims and their families. It can ensure a speedy conclusion of the trial by directing the trial court to take up the matter on a day-to-day basis. The High Court has got ample powers for all this both on the judicial and administrative sides. Article 227 of the Constitution of India that gives the High Court the authority of superintendence over the subordinate courts has great dynamism and now is the time to add to it another dimension for monitoring and protection of criminal trials. Similarly Article 235 of the Constitution that vests the High Court with the power of control over sub-ordinate courts should also include a positive element. It should not be confined only to posting, transfer and promotion of the officers of the subordinate judiciary. The power of control should also be exercised to protect them from external interference that may sometime appear overpowering to them and to support them to discharge their duties fearlessly. ### Response: 1

Balbir Singh and Another Vs. State of Punjab

the delivery of the custody of the appellant by the Air Force Authorities for being taken to Police Station Dharamkot for trial by the ordinary criminal courts under the Code. Handing over and taking over certificate signed by Shri Vijay Prakash, Flying Officer, Station Adjutant No. 11 Wing, Air Force and by ASI Daljit Singh was placed on the record before the committing Magistrate. The conduct of the Air Force Authorities in handing over the custody of the appellant to the police Authorities for being produced before the criminal court for trial, is a clear indication of the exercise of the option by the Air Force Authorities that they did not wish to detain the appellant in their custody under Section 124 of the Air Force Act and had opted for the trial of the appellant by the ordinary criminal court. This conclusion is reinforced by the fact that the Commanding Officer of the Air Force Station, Halwara, had subsequently also sought information from the trial court with regard to the fate of the case, vide his letter dated 18-2-1991. The above facts unhesitatingly show that the Air Force Authorities had been made fully aware of the pendency of the criminal case against a member of the force by the criminal court and had been afforded adequate and full opportunity to exercise the option of having the appellant tried by a court-martial. Since, with the full knowledge of the pendency of the criminal case against the member of the Air Force, the Authorities had voluntarily delivered the custody of the appellant, for his trial by the ordinary criminal court, the Authorities would be deemed to have exercised the option of not trying the appellant by a court-martial. The act of the Authorities in voluntarily delivering the appellant to the civil Authorities for trial unmistakably show that the Air Force Authorities did not intend to claim the trial of the appellant by a court-martial. It is pertinent to notice here that the Air Force Authorities have made no grievance at any stage that their right to decide whether or not to try the accused by court-martial had been impinged upon by the criminal court in any manner. They have not questioned the validity of the trial of the appellant by the criminal court at any forum whatsoever. The right to exercise the option is with the Authorities and an accused has no right to demand or choose trial by a particular forum. The Authorities under the Act have made no grievance and the grievance raised by the appellant is untenable. Since, the appellant was admittedly on leave on the day of the occurrence as deposed to by PW 9 G. S. Gill, Warrant Officer, Air Force Station, Halwara and the victims of the offence were persons not subject to military, air force or naval law, these factors may well have weighed with and persuaded the Air Force Authorities not to opt to try the appellant by court-martial and to allow the criminal court to try him under the Code. We are, therefore, of the opinion that in the facts and circumstances of this case that there has been no lack of compliance with the provisions of the 1952 Rules read with Section 475 of the Code and Sections 72, 124 and 125 of the Air Force Act, by the trial court and the trial of the appellant was not in any way vitiated 23. The judgment in Supdt. and Remembrancer of Legal Affairs, W. B. v. Usha Ranjan Roy Choudhury, relied upon by the learned counsel for the appellant is clearly distinguishable and has no application whatsoever to the facts of the present case. In that case three accused persons who were army officers were charged with offences which fell within the purview of Section 52 of the Army Act. The said section deals with the offences in respect of property and those offences could be tried both by the ordinary criminal courts as also by the court-martial, since both have concurrent jurisdiction. The offence under Section 52 of the Army Act is not analogous to the offences falling under Section 72 of the Air Force Act. The Army Authorities in that case had only requested for investigation to be made by the civil police. After the investigation was complete, the criminal court proceeded to try the case without giving option to the Army Authorities as is envisaged by Rules 3 and 4 of the 1952 Rules to exercise their option. This Court found that the action of the Army Authorities in calling for a detailed police report at the investigation stage could not amount to the Authorities under the Act exercising the option not to try the accused by the court-martial and the Army Authorities could not be said to have voluntarily abandoned their option to try the accused in court-martial. Moreover, in Usha Ranjan Roy Choudhury case unlike the facts of the present case, the Army Authorities had not handed over the custody of the accused to the civil Authorities in execution of any warrant of arrest issued by the criminal court in that case for trial nor did the Authorities keep a track of the trial of the accused by the criminal court. That judgment therefore which was rendered in the peculiar facts of that case does not advance the case of the appellant at all and is clearly distinguishable 24. In view of the aforesaid discussion, we find that the conviction and sentence of the appellant are not vitiated for the alleged lack of jurisdiction of the criminal court to try the appellant, as urged by the learned counsel for the appellant 25. So far as the merits of the case are concerned, we agree with the findings recorded by the trial court and the High Court with regard to the complicity of the appellant Nachhattar Singh in the crime and are of the opinion that his conviction and sentence under Sections 302/34 IPC are well merited

0[ds]Rule 9 of the Leave Rules (supra) thus specifically states that casual leave counts as duty except as provided for in Rule 10(a). It therefore follows that a person subject to the Act would be deemed to be "on active service" even when he is on casual leave. Learned counsel for the parties, in view of this legal position, did not dispute that the appellant, though on casual leave, would be deemed to be on "active service" in view of the notification dated 5-12-1962 (supra)18. In our opinion, on a construction of the various provisions referred to above the criminal courts are not deprived of their inherent jurisdiction to take cognizance of civil offences under the Code. Before the Full Bench of the PunjabHaryana High Court in Ajit Singh v. State of Punjab it was argued on behalf of the appellant therein, who was in "active service" of the Air Force, that on account of the non-compliance with the provisions of Section 125 of the Act and Section 549 CrPC (corresponding to Section 475 of the Code), the committal of the appellant and his trial held in pursuance thereof must be held to be without jurisdiction. The Full Bench repelled the argument and opined"No room is left for doubt about the legal position being that the inherent jurisdiction which a Magistrate has to take cognizance of civil offences under the Code of Criminal Procedure is not taken away by any provisions of the Army Act (and, therefore, of the Air Force Act), and of Section 549 of the Code of Criminal Procedure and the rules made thereunder. What those provisions, envisage is concurrent jurisdiction in the criminal courts and the court-martial and an arrangement for the proper exercise of such jurisdiction including, when necessary a way of resolving a conflict of jurisdiction. " and went on to hold" [T] hat the contention raised on behalf of the appellant that the trial was vitiated by lack of jurisdiction in the Magistrate and the learned Additional Sessions Judge must be rejected as untenable. " *19. In our opinion, the view of the Full Bench is correct and we agree with it and hold that the inherent jurisdiction under which the criminal courts have to take cognizance of civil offences is not taken away by any of the provisions of the Act or Section 475 CrPC and the rules framed thereunder20. We are also unable to agree with Mr. Poti, in the facts and circumstances of this case, that there was any non-compliance with the provisions of Sections 124 and 125 of the Air Force Act read with Section 475 CrPC21. The object of giving a notice as envisaged by the Act and the 1952 Rules of the Authorities under the Act is to make them fully aware of the pendency of a criminal case against a member of the force and to afford them an opportunity to exercise their discretion of having the member of the force tried either by the court-martial or to allow the ordinary criminal court to proceed with the trial. Though the provisions of the Act and the Code referred to above are mandatory in character insofar as they require that the Authorities under the Act shall be given the first option to decide whether to try the accused by court-martial or allow his trial by the ordinary criminal court no particular form of notice has been prescribed either under the Act, the Rules or the Code. Whether or not the Authorities have been made fully aware and put on notice by the criminal court to enable them to exercise their option, would depend upon the facts and circumstances of each case. It is the substance and not the form of notice which is relevant and important. All that the law envisages is that the Authorities under the Act must be made fully aware of the nature of offence, status of the victim and the pendency of the criminal case against a member of the force on "active service", so that the Authorities under the Act may exercise their option whether or not to try the accused by a court-martial. Where full and complete information is provided to the Authorities, the requirement of law would stand complied with, irrespective of the fact whether the information was given by way of a notice or otherwise22. In the present case, from the scrutiny of the record of the committing court, it transpires that in execution of the warrant of arrest issued by the committing Magistrate on 28-7-1988, the Air Force Authorities had themselves delivered Nachhattar Singh, appellant, to the custody of ASI Daljit Singh PW 15 who had carried the said warrant issued by the competent Magistrate, for execution on 10-8-1988. PW 15 Daljit Singh, ASI, deposed at the trial that while he was posted at Police Station Dharamkot in the month of August 1988, he had obtained the warrants of arrest of the appellant and went to Tezpur (Assam) and after obtaining necessary permission from the Air Force Authorities served the warrants on appellant Nachhattar Singh. The Air Force Authorities then delivered the custody of Nachhattar Singh to him and after taking the custody of Nachhattar Singh from the Air Force Authorities, he brought him to Police Station Dharamkot on 15-8-1990 to face his trial in the criminal court. There was no challenge in the cross-examination of PW 15 either about the obtaining of the necessary permission from the Air Force Authorities to serve the warrant on the appellant or about the delivery of the custody of the appellant by the Air Force Authorities for being taken to Police Station Dharamkot for trial by the ordinary criminal courts under the Code. Handing over and taking over certificate signed by Shri Vijay Prakash, Flying Officer, Station Adjutant No. 11 Wing, Air Force and by ASI Daljit Singh was placed on the record before the committing Magistrate. The conduct of the Air Force Authorities in handing over the custody of the appellant to the police Authorities for being produced before the criminal court for trial, is a clear indication of the exercise of the option by the Air Force Authorities that they did not wish to detain the appellant in their custody under Section 124 of the Air Force Act and had opted for the trial of the appellant by the ordinary criminal court. This conclusion is reinforced by the fact that the Commanding Officer of the Air Force Station, Halwara, had subsequently also sought information from the trial court with regard to the fate of the case, vide his letter dated 18-2-1991. The above facts unhesitatingly show that the Air Force Authorities had been made fully aware of the pendency of the criminal case against a member of the force by the criminal court and had been afforded adequate and full opportunity to exercise the option of having the appellant tried by a court-martial. Since, with the full knowledge of the pendency of the criminal case against the member of the Air Force, the Authorities had voluntarily delivered the custody of the appellant, for his trial by the ordinary criminal court, the Authorities would be deemed to have exercised the option of not trying the appellant by a court-martial. The act of the Authorities in voluntarily delivering the appellant to the civil Authorities for trial unmistakably show that the Air Force Authorities did not intend to claim the trial of the appellant by a court-martial. It is pertinent to notice here that the Air Force Authorities have made no grievance at any stage that their right to decide whether or not to try the accused by court-martial had been impinged upon by the criminal court in any manner. They have not questioned the validity of the trial of the appellant by the criminal court at any forum whatsoever. The right to exercise the option is with the Authorities and an accused has no right to demand or choose trial by a particular forum. The Authorities under the Act have made no grievance and the grievance raised by the appellant is untenable. Since, the appellant was admittedly on leave on the day of the occurrence as deposed to by PW 9 G. S. Gill, Warrant Officer, Air Force Station, Halwara and the victims of the offence were persons not subject to military, air force or naval law, these factors may well have weighed with and persuaded the Air Force Authorities not to opt to try the appellant by court-martial and to allow the criminal court to try him under the Code. We are, therefore, of the opinion that in the facts and circumstances of this case that there has been no lack of compliance with the provisions of the 1952 Rules read with Section 475 of the Code and Sections 72, 124 and 125 of the Air Force Act, by the trial court and the trial of the appellant was not in any way vitiated23. The judgment in Supdt. and Remembrancer of Legal Affairs, W. B. v. Usha Ranjan Roy Choudhury, relied upon by the learned counsel for the appellant is clearly distinguishable and has no application whatsoever to the facts of the present case. In that case three accused persons who were army officers were charged with offences which fell within the purview of Section 52 of the Army Act. The said section deals with the offences in respect of property and those offences could be tried both by the ordinary criminal courts as also by the court-martial, since both have concurrent jurisdiction. The offence under Section 52 of the Army Act is not analogous to the offences falling under Section 72 of the Air Force Act. The Army Authorities in that case had only requested for investigation to be made by the civil police. After the investigation was complete, the criminal court proceeded to try the case without giving option to the Army Authorities as is envisaged by Rules 3 and 4 of the 1952 Rules to exercise their option. This Court found that the action of the Army Authorities in calling for a detailed police report at the investigation stage could not amount to the Authorities under the Act exercising the option not to try the accused by the court-martial and the Army Authorities could not be said to have voluntarily abandoned their option to try the accused in court-martial. Moreover, in Usha Ranjan Roy Choudhury case unlike the facts of the present case, the Army Authorities had not handed over the custody of the accused to the civil Authorities in execution of any warrant of arrest issued by the criminal court in that case for trial nor did the Authorities keep a track of the trial of the accused by the criminal court. That judgment therefore which was rendered in the peculiar facts of that case does not advance the case of the appellant at all and is clearly distinguishable24. In view of the aforesaid discussion, we find that the conviction and sentence of the appellant are not vitiated for the alleged lack of jurisdiction of the criminal court to try the appellant, as urged by the learned counsel for the appellant25. So far as the merits of the case are concerned, we agree with the findings recorded by the trial court and the High Court with regard to the complicity of the appellant Nachhattar Singh in the crime and are of the opinion that his conviction and sentence under Sections 302/34 IPC are well merited

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: the delivery of the custody of the appellant by the Air Force Authorities for being taken to Police Station Dharamkot for trial by the ordinary criminal courts under the Code. Handing over and taking over certificate signed by Shri Vijay Prakash, Flying Officer, Station Adjutant No. 11 Wing, Air Force and by ASI Daljit Singh was placed on the record before the committing Magistrate. The conduct of the Air Force Authorities in handing over the custody of the appellant to the police Authorities for being produced before the criminal court for trial, is a clear indication of the exercise of the option by the Air Force Authorities that they did not wish to detain the appellant in their custody under Section 124 of the Air Force Act and had opted for the trial of the appellant by the ordinary criminal court. This conclusion is reinforced by the fact that the Commanding Officer of the Air Force Station, Halwara, had subsequently also sought information from the trial court with regard to the fate of the case, vide his letter dated 18-2-1991. The above facts unhesitatingly show that the Air Force Authorities had been made fully aware of the pendency of the criminal case against a member of the force by the criminal court and had been afforded adequate and full opportunity to exercise the option of having the appellant tried by a court-martial. Since, with the full knowledge of the pendency of the criminal case against the member of the Air Force, the Authorities had voluntarily delivered the custody of the appellant, for his trial by the ordinary criminal court, the Authorities would be deemed to have exercised the option of not trying the appellant by a court-martial. The act of the Authorities in voluntarily delivering the appellant to the civil Authorities for trial unmistakably show that the Air Force Authorities did not intend to claim the trial of the appellant by a court-martial. It is pertinent to notice here that the Air Force Authorities have made no grievance at any stage that their right to decide whether or not to try the accused by court-martial had been impinged upon by the criminal court in any manner. They have not questioned the validity of the trial of the appellant by the criminal court at any forum whatsoever. The right to exercise the option is with the Authorities and an accused has no right to demand or choose trial by a particular forum. The Authorities under the Act have made no grievance and the grievance raised by the appellant is untenable. Since, the appellant was admittedly on leave on the day of the occurrence as deposed to by PW 9 G. S. Gill, Warrant Officer, Air Force Station, Halwara and the victims of the offence were persons not subject to military, air force or naval law, these factors may well have weighed with and persuaded the Air Force Authorities not to opt to try the appellant by court-martial and to allow the criminal court to try him under the Code. We are, therefore, of the opinion that in the facts and circumstances of this case that there has been no lack of compliance with the provisions of the 1952 Rules read with Section 475 of the Code and Sections 72, 124 and 125 of the Air Force Act, by the trial court and the trial of the appellant was not in any way vitiated 23. The judgment in Supdt. and Remembrancer of Legal Affairs, W. B. v. Usha Ranjan Roy Choudhury, relied upon by the learned counsel for the appellant is clearly distinguishable and has no application whatsoever to the facts of the present case. In that case three accused persons who were army officers were charged with offences which fell within the purview of Section 52 of the Army Act. The said section deals with the offences in respect of property and those offences could be tried both by the ordinary criminal courts as also by the court-martial, since both have concurrent jurisdiction. The offence under Section 52 of the Army Act is not analogous to the offences falling under Section 72 of the Air Force Act. The Army Authorities in that case had only requested for investigation to be made by the civil police. After the investigation was complete, the criminal court proceeded to try the case without giving option to the Army Authorities as is envisaged by Rules 3 and 4 of the 1952 Rules to exercise their option. This Court found that the action of the Army Authorities in calling for a detailed police report at the investigation stage could not amount to the Authorities under the Act exercising the option not to try the accused by the court-martial and the Army Authorities could not be said to have voluntarily abandoned their option to try the accused in court-martial. Moreover, in Usha Ranjan Roy Choudhury case unlike the facts of the present case, the Army Authorities had not handed over the custody of the accused to the civil Authorities in execution of any warrant of arrest issued by the criminal court in that case for trial nor did the Authorities keep a track of the trial of the accused by the criminal court. That judgment therefore which was rendered in the peculiar facts of that case does not advance the case of the appellant at all and is clearly distinguishable 24. In view of the aforesaid discussion, we find that the conviction and sentence of the appellant are not vitiated for the alleged lack of jurisdiction of the criminal court to try the appellant, as urged by the learned counsel for the appellant 25. So far as the merits of the case are concerned, we agree with the findings recorded by the trial court and the High Court with regard to the complicity of the appellant Nachhattar Singh in the crime and are of the opinion that his conviction and sentence under Sections 302/34 IPC are well merited ### Response: 0

Gunnebo India Limited Formerly Known As Steelage Industries Limited Vs. Government Labour Officer & Secretary, The Metal (Excluding Iron & Steel) & Paper Markets & Shops Mathadi Labour Board For Greater Mumbai & Another

is going that in those circumstances only the act in question is applicable. Even if something is manufactured outside the State but if the loading and unloading operations are carried out in connection with the business of the Company as per the schedule, such operation of loading and unloading certainly be covered under the provisions of the Act. It is not in dispute that manufactured articles are brought within the State and loading and unloading operations have been carried out in the State of Maharashtra itself.8. In this connection, reference is required to be made to the Metal (Excluding Iron and Steel) and Paper Unprotected Workers (Regulation of Employment and Welfare) Scheme, 1973. The object of the scheme is to ensure an adequate supply and full and proper utilisation of unprotected workers employed in metal (excluding Iron and Steel) including those employments in steel furniture, markets or shops and paper markets or other shops an establishments in the trades in connection with loading, unloading, stacking, carrying, weighing, measuring or such other work including work preparatory or incidental to such operations for efficient performance of work and generally for making better provision for the terms and conditions of employment of such workers and make provision for their general welfare. In exercise of powers conferred by subsection (2) of Section 4 of the Maharashtra Mathadi, Hamal and other Manual Workers (Regulation of Employment and Welfare) Act, 1969, the Government of Maharashtra, after consultation with the Advisory Committee, has formulated a scheme for employment in metal (excluding iron and steel) including employment in steel furniture, markets or shops and paper markets or shops and other establishments in the trades in connection with loading, unloading, stacking, carrying, weighing , measuring or such other work including work preparatory or incidental to such operations in the area of Greater Bombay. Considering the provisions of the Act and the Scheme, in our view, simply because the factory is closed itself cannot be a ground for coming to the conclusion that the Act and the Scheme is not applicable. 9. Loading and unloading is an important part of activity and 16 workmen have already been registered with the Board in this behalf. Under these circumstances, simply because the said work has been assigned to a different agency cannot be a ground by which the petitioner can escape its liability as a principal employer as defined in the Act. It is unfortunate that the work of loading and unloading has been carried out by other agency ignoring the claim of protected workers. If the contention of the petitioner is accepted, then it may defeat the objects of the Act and in a given case one can bypass the said provisions. The provisions of the Act are required to be interpreted accordingly by keeping in mind the object for which the Act has been enacted. The Board has found that the Act and the Scheme is applicable irrespective of the fact that the factory of the petitioner is closed or stopped manufacturing activity in Mazgaon area. Regarding the argument of Mr. Rele that the amount is not calculated properly, it is to be seen that the Board had given ample opportunity to the petitioner but the petitioner has remained absent for the hearings fixed by the Board, even though ample opportunity was given to the petitioner in this behalf. Document produced in the petition is not reflecting a to whether such calculation is for 8 or 16 workers who have registered with the Board. The learned counsel for the Respondent Board has submitted that appropriate breakup has also been given in this behalf and the calculation arrived at by the Board on the basis of 16 workmen is absolutely correct. Mr. Ganguli, Learned Counsel appearing for the Union has also supported the aforesaid argument of the learned counsel for respondent no.1.10. Learned counsel for the petitioner is not in a position to substantiate the said argument by giving probable data in this behalf. The petitioner has been given ample opportunities which the petitioner has not availed. Considering the said aspect, this Court, in a petition under Article 227 of the Constitution of India, cannot be called upon to decide such disputed aspect as the said finding is clearly the finding of fact given by the Board. A reference is also required to be made to a decision of the Supreme Court in the case of Maharashtra Rajya Mathadi Transport and Central Kamgar Union vs. State of Maharashtra and others, 1995 II CLR 217. In paragraph 7 of the said judgment, the Supreme Court after considering the definition of employer in the Act has observed as under:According to the above definition of employer he may be (i) an employer of an unprotected worker engaged by or through a contractor, that is, the principal employer, (ii) an employer of any other unprotected worker, that is, a person who has the ultimate control over the affairs of the establishment or the person to whom the affairs of such establishment are entrusted whether such person is called an agent, manager or by any other name prevailing in the scheduled appointment.8. When Section 2 (7) defines principal employer as meaning an employer who engages unprotected workers by or through a contractor in any scheduled employment, principal employer can be classified or described as employer when he engages unprotected workers by or through contractor of the scheduled employment.11. Considering the aforesaid aspect of the matter, in our view, it was not open for the Petitioner to take the work in question from other employees or from other agency bypassing the claim of registered workers and as such the registered workers can be said to be in scheduled employment. It is not in dispute that loading and unloading activities are still going on at the concerned place, though through different agencies. Considering the aforesaid aspect of the matter, we do not find any error either of law or of jurisdiction in the impugned order of the Board.

0[ds]It is no doubt true, as argued by Mr. Rele, that the factory has now been closed and manufacturing activity is also closed from the State of Maharashtra. The manufacturing activities are at present carried on at Halol, in the State of Gujarat. This fact is not in dispute.So far as the scheduled employment is concerned, any employment specified in Schedule is to be treated as scheduled employment. As per the schedule, clause (1) thereof defines employment in Iron and Steel Market or shops in connection with loading, unloading, stacking, carrying, weighing, measuring or such other work including work preparatory or incidental to such operations. On going through the said schedule, it is abundantly clear that such operations are to be considered as scheduled employment. Any work, therefore, which is in connection with loading and unloading in connection with the business of the petitioner, the same is covered in the scheduled employment. There is no requirement in the law that unless the manufacturing activity itself is going that in those circumstances only the act in question is applicable. Even if something is manufactured outside the State but if the loading and unloading operations are carried out in connection with the business of the Company as per the schedule, such operation of loading and unloading certainly be covered under the provisions of the Act. It is not in dispute that manufactured articles are brought within the State and loading and unloading operations have been carried out in the State of MaharashtraBoard has found that the Act and the Scheme is applicable irrespective of the fact that the factory of the petitioner is closed or stopped manufacturing activity in Mazgaon area. Regarding the argument of Mr. Rele that the amount is not calculated properly, it is to be seen that the Board had given ample opportunity to the petitioner but the petitioner has remained absent for the hearings fixed by the Board, even though ample opportunity was given to the petitioner in this behalf. Document produced in the petition is not reflecting a to whether such calculation is for 8 or 16 workers who have registered with the Board. The learned counsel for the Respondent Board has submitted that appropriate breakup has also been given in this behalf and the calculation arrived at by the Board on the basis of 16 workmen is absolutely correct. Mr. Ganguli, Learned Counsel appearing for the Union has also supported the aforesaid argument of the learned counsel for respondent no.1.10. Learned counsel for the petitioner is not in a position to substantiate the said argument by giving probable data in this behalf. The petitioner has been given ample opportunities which the petitioner has not availed. Considering the said aspect, this Court, in a petition under Article 227 of the Constitution of India, cannot be called upon to decide such disputed aspect as the said finding is clearly the finding of fact given by the Board. A reference is also required to be made to a decision of the Supreme Court in the case of Maharashtra Rajya Mathadi Transport and Central Kamgar Union vs. State of Maharashtra and others, 1995 II CLR 217.Considering the aforesaid aspect of the matter, in our view, it was not open for the Petitioner to take the work in question from other employees or from other agency bypassing the claim of registered workers and as such the registered workers can be said to be in scheduled employment. It is not in dispute that loading and unloading activities are still going on at the concerned place, though through different agencies. Considering the aforesaid aspect of the matter, we do not find any error either of law or of jurisdiction in the impugned order of the Board.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: is going that in those circumstances only the act in question is applicable. Even if something is manufactured outside the State but if the loading and unloading operations are carried out in connection with the business of the Company as per the schedule, such operation of loading and unloading certainly be covered under the provisions of the Act. It is not in dispute that manufactured articles are brought within the State and loading and unloading operations have been carried out in the State of Maharashtra itself.8. In this connection, reference is required to be made to the Metal (Excluding Iron and Steel) and Paper Unprotected Workers (Regulation of Employment and Welfare) Scheme, 1973. The object of the scheme is to ensure an adequate supply and full and proper utilisation of unprotected workers employed in metal (excluding Iron and Steel) including those employments in steel furniture, markets or shops and paper markets or other shops an establishments in the trades in connection with loading, unloading, stacking, carrying, weighing, measuring or such other work including work preparatory or incidental to such operations for efficient performance of work and generally for making better provision for the terms and conditions of employment of such workers and make provision for their general welfare. In exercise of powers conferred by subsection (2) of Section 4 of the Maharashtra Mathadi, Hamal and other Manual Workers (Regulation of Employment and Welfare) Act, 1969, the Government of Maharashtra, after consultation with the Advisory Committee, has formulated a scheme for employment in metal (excluding iron and steel) including employment in steel furniture, markets or shops and paper markets or shops and other establishments in the trades in connection with loading, unloading, stacking, carrying, weighing , measuring or such other work including work preparatory or incidental to such operations in the area of Greater Bombay. Considering the provisions of the Act and the Scheme, in our view, simply because the factory is closed itself cannot be a ground for coming to the conclusion that the Act and the Scheme is not applicable. 9. Loading and unloading is an important part of activity and 16 workmen have already been registered with the Board in this behalf. Under these circumstances, simply because the said work has been assigned to a different agency cannot be a ground by which the petitioner can escape its liability as a principal employer as defined in the Act. It is unfortunate that the work of loading and unloading has been carried out by other agency ignoring the claim of protected workers. If the contention of the petitioner is accepted, then it may defeat the objects of the Act and in a given case one can bypass the said provisions. The provisions of the Act are required to be interpreted accordingly by keeping in mind the object for which the Act has been enacted. The Board has found that the Act and the Scheme is applicable irrespective of the fact that the factory of the petitioner is closed or stopped manufacturing activity in Mazgaon area. Regarding the argument of Mr. Rele that the amount is not calculated properly, it is to be seen that the Board had given ample opportunity to the petitioner but the petitioner has remained absent for the hearings fixed by the Board, even though ample opportunity was given to the petitioner in this behalf. Document produced in the petition is not reflecting a to whether such calculation is for 8 or 16 workers who have registered with the Board. The learned counsel for the Respondent Board has submitted that appropriate breakup has also been given in this behalf and the calculation arrived at by the Board on the basis of 16 workmen is absolutely correct. Mr. Ganguli, Learned Counsel appearing for the Union has also supported the aforesaid argument of the learned counsel for respondent no.1.10. Learned counsel for the petitioner is not in a position to substantiate the said argument by giving probable data in this behalf. The petitioner has been given ample opportunities which the petitioner has not availed. Considering the said aspect, this Court, in a petition under Article 227 of the Constitution of India, cannot be called upon to decide such disputed aspect as the said finding is clearly the finding of fact given by the Board. A reference is also required to be made to a decision of the Supreme Court in the case of Maharashtra Rajya Mathadi Transport and Central Kamgar Union vs. State of Maharashtra and others, 1995 II CLR 217. In paragraph 7 of the said judgment, the Supreme Court after considering the definition of employer in the Act has observed as under:According to the above definition of employer he may be (i) an employer of an unprotected worker engaged by or through a contractor, that is, the principal employer, (ii) an employer of any other unprotected worker, that is, a person who has the ultimate control over the affairs of the establishment or the person to whom the affairs of such establishment are entrusted whether such person is called an agent, manager or by any other name prevailing in the scheduled appointment.8. When Section 2 (7) defines principal employer as meaning an employer who engages unprotected workers by or through a contractor in any scheduled employment, principal employer can be classified or described as employer when he engages unprotected workers by or through contractor of the scheduled employment.11. Considering the aforesaid aspect of the matter, in our view, it was not open for the Petitioner to take the work in question from other employees or from other agency bypassing the claim of registered workers and as such the registered workers can be said to be in scheduled employment. It is not in dispute that loading and unloading activities are still going on at the concerned place, though through different agencies. Considering the aforesaid aspect of the matter, we do not find any error either of law or of jurisdiction in the impugned order of the Board. ### Response: 0

T. Cajee Vs. U. Jormanik Siem And Another

necessary, the Executive committee of a District Council other than that of the Mikhir Hills or the North Cachar Hills, may take such action thereon as the emergency appears to it to require; but every such case shall have to be laid before the District Council at its next session. The order of July 7, 1959, shows that the Executive Committee took action under Rule 30 (a) as it considered the matter to be one of emergency. It is not for the Courts to go into the question whether there was emergency or not with respect to excepted matters and in the circumstances the action taken by the Executive Committee cannot be challenged on the ground that it is beyond its power. 13. The last point that has been urged is that in any case the Executive committee could not suspend the respondent, and reliance in this connection is placed on Management of Hotel Imperial v. Hotel Workers Union, (1960) 1 SCR 476 : (AIR 1959 SC 1324). This Court held in that assessee as under :"It was now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied terms in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the so-called period of suspension. Where, however there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay." 14. It is urged on the basis of these observations that in any case the respondent could not be suspended. Suspension is of two kinds. In the first place, suspension may be as a punishment, but the present is not a case of this kind of suspension; in the second place interim suspension may be mad pending inquiry into a case where removal is the result sought. It was this type of interim suspension which was dealt with in the case of Hotel Imperial, (1960) 1 SCR 476 : (AIR 1959 SC 1342 ) and it was pointed out that without an express term in the contract or without some provision of a statute or the rules there could not be interim suspension in the sense that the master could withhold the wages of the servant. But that case did not lay down that the master could not forbid the servant from working while he was inquiring into his conduct with a view to removing into his conduct with a view to removing him from service. It was specifically said there that if the master does so namely, forbids the servant to work and thus in fact suspends him as an interim measure he will have to pay the wages during the period of interim suspension. These wages or payment for the work done or emolument of the office held could not be withheld in whole or in part unless there is power to make an order of interim suspension either in the contract of employment or in the statute or the rules framed thereunder. The effect of that decision is that in the absence of such power the master can pass an order of interim suspension but he will have to pay the servant according to the terms of contract between them. In the present case the terms and conditions communicated to the respondent do not indicate an express term giving power to the District Council to make an order of interim suspension while inquiring into the conduct of the respondent with a view to his ultimate removal. No statute or rules framed thereunder have been brought to our notice which authorised interim suspension having the effect of withholding remuneration in whole or in part. In the circumstances therefore though an order of interim suspension could be made against the respondent while inquiry into his conduct with a view to his ultimate removal is going on, his remuneration according to the terms and conditions communicated to him cannot be withheld unless there is some statute or rules framed thereunder which would justify the withholding of the whole or part of the remuneration. So far therefore as there is no statute or rule thereunder the remuneration cannot be withheld from the respondent even though an order of interim suspension, in the sense he is told not to do the work of his office, may be made against him.The order of interim suspension therefore passed in this case on July 7, 1959, would be valid subject of course to the respondent being paid the full remuneration unless the District Council can legitimately withhold the whole or part of it under some statute or rules framed thereunder, there being undoubtedly no express contract to that effect in this case. 15. Before we part with this case we should like to point out that a law has now been passed, namely, The United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 (No. II of 1959) which came into force in October 1959. It deals with the appointment of Chiefs and Headmen as well as their removal and suspension (as a punishment). The word "Chief" includes a Siem, a Lyngdoh etc. and the respondent would therefore be a chief within the meaning of this Act and further action may be taken accordingly.

1[ds]7. It will thus be seen for the scheme of the Sixth Schedule that the District Council is both an administrative as well as a legislative body. Further all the administrative and legislative powers were vested in the Governor by para. 19 till the District Councils were constituted. The Governor framed Rules under para. 2 (6) in 1951 called the Assam Autonomous Districts (Constitution of District Councils) Rules, 1951. That notification notified for the general information of the subjects of Mylliem Siemship that Government after careful consideration of the nomination made by the Myntri-electors of the successor to the Siemship of Mylliem and also of the objections to this nomination, had appointed the respondent as Siem of Mylliem in place of late U. Sati Raja subject to confirmation by the District Council when that body was constituted. It was also notified that the respondent had taken over charge of the Siemship with effect from March, 5, 1951. It is clear from what we have said above that the Myntri-electors in this particular case used to elect a person and their election amounted to nomination of that person for the approval of the Governor to the Siemship of Mylliem; but until the Governor approved of the nomination and appointed the person so nominated to the Siemship he could not hold office as Siem of Mylliem. The position therefore just after the coming into force of the Constitution was that the Governor was charged with the administration of the autonomous districts till the District Councils came into existence and that carried with it the power to appoint officers to carry on the administration. The appointment therefore of the respondent as Siem of Mylliem was made by virtue of the Governors power under paragraph 19 and the respondent derived his power as Siem from that appointment and could not claim any power outside that appointment. The Governor of course made it clear that the appointment was subject to confirmation of the District Council when it came into being, for the Governors powers at the time of the appointment were derived from paragraph 19 and were transitional only. That is why it was said that the appointment was subject to confirmation by the District Council. Therefore when the District Council came into existence in June 1952, it, in due course, in exercise of its administrative powers under paragraph 2(4), considered the question of confirmation of the appointment made by the Governor in 1951 and confirmed the respondents appointment as Siem of Mylliem and communicated it to him along with the terms on which the confirmation was made. Besides the financial clauses, one of the terms provided that the Siem shall be subject to the control of the District Council and shall carry out all the orders issued to him from time to time by the District Council or its officers acting for and on behalf of the District Council.It was also provided that the Siem shall conduct himself in accordance with the established customs and usages approved by the District Council and in accordance with the rules, laws and regulations that the District Council may issue from time to time. Another term provided that the Siem and others shall be liable to removal from their offices by the order of the District Council if that body was satisfied that any of them did not discharge his duties properly or had been acting in a manner prejudicial to the interest of the Siemship or the District Council in general or had been conducting himself with indecorum; and such order passed by the District Council would be final. Therefore, after April 1953 the respondent continued in the office of Siem by virtue of this confirmation by the District Council10. This position apparently continued till 1959 when we come to the incidents which culminated in the order of July 7, 1959. We are not concerned in this appeal with the merits of the action taken against the respondent; nor are we concerned with the question whether there were sufficient reasons for the Executive Committee to take the action which it did against the respondent. We are only concerned with the power of the Executive Committee of the District Council to take any action at all in the matter of the respondents removal from the office of Siem. The High Court has taken the view that the appointment and succession of a Siem was not an administrative function of the District Council and that the District Council could only act by making a law with the assent of the Governor so far as the appointment and removal of a Siem was concerned. In this connection, the High Court relied on para. 3 (1) (g) of the Schedule, which lays down that the District Council shall have to power to make laws with respect to the appointment and suspension of Chiefs and Headmen. The High Court seems to be of the view that until such a law is made there could be no power of appointment of a Chief of Siem like the respondent and in consequence there would be no power of removal either. With respect, it seems to us that the High Court has read far more into paragraph 3 (1) (g) than is justified by its language. Paragraph 3(1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws. Under para. 3(1) (g) it has power to make laws with respect to the appointment or suspension of Chiefs or Headmen and this would naturally included the power to remove them. But it does not follow from this that the appointment or removal of a chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect. The High Court also seems to have thought that as there was no provision in the Sixth Schedule in terms of Arts. 73 and 162 of the Constitution the administrative power of the District Council would not extend to the subject enumerated in paragraph 3(1). Now para 2(4) provides that the administration of an autonomous district shall vest in the District Council and this in our opinion is comprehensive enough to include all such executive powers as are necessary to be exercised for the purposes of the administration of the district.It is true that where executive power impinges upon the rights of citizens it will have to be backed by an appropriate law; but where executive power is concerned only with the personnel of the administration it is not necessary - even though it may be desirable - that there must be laws, rules or regulations governing the appointment of those who would carry on the administration under the control of the District Council. The Sixth Schedule vested the administration of the autonomous districts in the Governor during the transitional period and thereafter in the District Council. The administration could only be carried on by officers like the Siem or Chief and others below him, and it seems to us quite clear, if the administration was to be carried on, as it must, that the Governor in the first instance and the District Councils after they came into existence, would have power by virtue of the administration being vested in them to appoint officers and others to carry on the administration. Further once the power of appointment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a corollary. The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under paragraph 19(1) (b) or till the District Council passed laws under para. 3(1) (g). the Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included that power to appoint and remove the personnel for carrying on the administration. Doubtless when regulations are made under para. 19(1) (b) or laws are passed under para. 3(1) with respect to the appointment or removal of the personnel of the administration, the administrative authorities would be bound to follow the regulations so made or the laws so passed. But from this it does not follow that till the regulations were made or the laws were passed, there could be no appointment or dismissal of the personnel of the administration. In our opinion, the authorities concerned would at all relevant times have the power to appoint or remove administrative personnel under the general power of administration vested in them by the Sixth Schedule.The view therefore taken by the High Court that there could be no appointment or removal by the District Council without a law having been first passed in that behalf under para. 3(1) (g) cannot be sustainedIn the absence of such general rules, the particular terms offered to a particular officer on his appointment would govern the relationship between the appointing authority and the person appointed in that particular case. It would therefore be wrong to hold that the respondent could not be removed from his office after his appointment in accordance with the terms on which he was appointedOne the view taken by the High Court, even the appointment of the respondent would be illegal for there was no law to support that appointment at the relevant time. But as we have said above, the Governor and later the District Councils being vested with the administration of the autonomous districts would be entitled to appoint personnel for carrying on the administration and the power to appoint would include from its very nature, being inherent in it, the power of removal, for it can hardly be contended that though the appointment might be made, the authority making the appointment would have no power to remove a person once appointed. In this particular case there can be no difficulty whatsoever because when the District Council confirmed the appointment of the respondent it laid down the terms on which the appointment will be held as well as the terms on which the respondent could be removed from the office, in which he was being continued. Nor can it be said that the appointment in this case was by the Governor and therefore the Governor could alone remove him, for the notification of March 1951 made it clear that the appointment by the Governor was provisional and was subject to confirmation by the District Council when it came into existence. The District Council in fact confirmed the appointment of the respondent in April 1953 and so in law the appointment of the respondent was by the District Council and therefore it would have the power to remove him. Besides, if as the High Court thought, the appointment of the respondent was invalid, it would inevitably follow that he had no right to ask for a writ under Art. 226; if the appointment was bad, he had no legal right and he cannot complain against his suspension. We are therefore of opinion that the respondent being an officer appointed to carry on the administration by the District Council could be removed by it in accordance with the terms and conditions of his appointmentOrdinarily, the appointment being made by the District Council, the removal could only be by it. The contention on behalf of the respondent is that even if the District Council had the power to remove in accordance with the terms and conditions of the respondents appointment that power could only be exercised by the District Council and not by the Executive Committee. In this connection, Rs. 28, 29 and 30 of the Assam Autonomous Districts (Constitution of District Councils) Rules, 1951, are relevant. Rule 28 vests the executive functions of the District Council in the Executive Committee. Rule 29 (1) gives power to the Executive committee to dispose of all matters falling within its purview subject to certain exceptions mentioned in Rule 29 (2). One of these exceptions is with respect to all important appointments. Assuming that the office of Siem is an important appointment, the Executive Committee could not normally deal with it in view of the exceptions in R. 29(2). But R. 30 (a) lays down that where immediate action in respect of any of the excepted matters is necessary, the Executive committee of a District Council other than that of the Mikhir Hills or the North Cachar Hills, may take such action thereon as the emergency appears to it to require; but every such case shall have to be laid before the District Council at its next session. The order of July 7, 1959, shows that the Executive Committee took action under Rule 30 (a) as it considered the matter to be one of emergency. It is not for the Courts to go into the question whether there was emergency or not with respect to excepted matters and in the circumstances the action taken by the Executive Committee cannot be challenged on the ground that it is beyond its powerThe effect of that decision is that in the absence of such power the master can pass an order of interim suspension but he will have to pay the servant according to the terms of contract between them. In the present case the terms and conditions communicated to the respondent do not indicate an express term giving power to the District Council to make an order of interim suspension while inquiring into the conduct of the respondent with a view to his ultimate removal. No statute or rules framed thereunder have been brought to our notice which authorised interim suspension having the effect of withholding remuneration in whole or in part. In the circumstances therefore though an order of interim suspension could be made against the respondent while inquiry into his conduct with a view to his ultimate removal is going on, his remuneration according to the terms and conditions communicated to him cannot be withheld unless there is some statute or rules framed thereunder which would justify the withholding of the whole or part of the remuneration. So far therefore as there is no statute or rule thereunder the remuneration cannot be withheld from the respondent even though an order of interim suspension, in the sense he is told not to do the work of his office, may be made against him.The order of interim suspension therefore passed in this case on July 7, 1959, would be valid subject of course to the respondent being paid the full remuneration unless the District Council can legitimately withhold the whole or part of it under some statute or rules framed thereunder, there being undoubtedly no express contract to that effect in this case15. Before we part with this case we should like to point out that a law has now been passed, namely, The United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 (No. II of 1959) which came into force in October 1959. It deals with the appointment of Chiefs and Headmen as well as their removal and suspension (as a punishment). The word "Chief" includes a Siem, a Lyngdoh etc. and the respondent would therefore be a chief within the meaning of this Act and further action may be taken accordingly.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: necessary, the Executive committee of a District Council other than that of the Mikhir Hills or the North Cachar Hills, may take such action thereon as the emergency appears to it to require; but every such case shall have to be laid before the District Council at its next session. The order of July 7, 1959, shows that the Executive Committee took action under Rule 30 (a) as it considered the matter to be one of emergency. It is not for the Courts to go into the question whether there was emergency or not with respect to excepted matters and in the circumstances the action taken by the Executive Committee cannot be challenged on the ground that it is beyond its power. 13. The last point that has been urged is that in any case the Executive committee could not suspend the respondent, and reliance in this connection is placed on Management of Hotel Imperial v. Hotel Workers Union, (1960) 1 SCR 476 : (AIR 1959 SC 1324). This Court held in that assessee as under :"It was now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied terms in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the so-called period of suspension. Where, however there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay." 14. It is urged on the basis of these observations that in any case the respondent could not be suspended. Suspension is of two kinds. In the first place, suspension may be as a punishment, but the present is not a case of this kind of suspension; in the second place interim suspension may be mad pending inquiry into a case where removal is the result sought. It was this type of interim suspension which was dealt with in the case of Hotel Imperial, (1960) 1 SCR 476 : (AIR 1959 SC 1342 ) and it was pointed out that without an express term in the contract or without some provision of a statute or the rules there could not be interim suspension in the sense that the master could withhold the wages of the servant. But that case did not lay down that the master could not forbid the servant from working while he was inquiring into his conduct with a view to removing into his conduct with a view to removing him from service. It was specifically said there that if the master does so namely, forbids the servant to work and thus in fact suspends him as an interim measure he will have to pay the wages during the period of interim suspension. These wages or payment for the work done or emolument of the office held could not be withheld in whole or in part unless there is power to make an order of interim suspension either in the contract of employment or in the statute or the rules framed thereunder. The effect of that decision is that in the absence of such power the master can pass an order of interim suspension but he will have to pay the servant according to the terms of contract between them. In the present case the terms and conditions communicated to the respondent do not indicate an express term giving power to the District Council to make an order of interim suspension while inquiring into the conduct of the respondent with a view to his ultimate removal. No statute or rules framed thereunder have been brought to our notice which authorised interim suspension having the effect of withholding remuneration in whole or in part. In the circumstances therefore though an order of interim suspension could be made against the respondent while inquiry into his conduct with a view to his ultimate removal is going on, his remuneration according to the terms and conditions communicated to him cannot be withheld unless there is some statute or rules framed thereunder which would justify the withholding of the whole or part of the remuneration. So far therefore as there is no statute or rule thereunder the remuneration cannot be withheld from the respondent even though an order of interim suspension, in the sense he is told not to do the work of his office, may be made against him.The order of interim suspension therefore passed in this case on July 7, 1959, would be valid subject of course to the respondent being paid the full remuneration unless the District Council can legitimately withhold the whole or part of it under some statute or rules framed thereunder, there being undoubtedly no express contract to that effect in this case. 15. Before we part with this case we should like to point out that a law has now been passed, namely, The United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 (No. II of 1959) which came into force in October 1959. It deals with the appointment of Chiefs and Headmen as well as their removal and suspension (as a punishment). The word "Chief" includes a Siem, a Lyngdoh etc. and the respondent would therefore be a chief within the meaning of this Act and further action may be taken accordingly. ### Response: 1

JOHN D SOUZA Vs. KARNATAKA STATE ROAD TRANSPORT CORPORATION

of 81 ft therefrom even after colliding with another bus coming from the front deserved serious consideration at the hands of the Tribunal. The nature of impact clearly demonstrates that the vehicle was being driven rashly or negligently. 33. The Three-Judge bench decisions of this Court in Punjab National Bank and Mysore Steel Works Pvt. Ltd. (supra), as well as the Division Bench judgment in Lalla Ram (supra) were unfortunately not cited before this Court in Cholan Roadways Ltd. There is yet no conflict of opinion as in Cholan Roadways Ltd. (supra) also this Court reiterated the past consistent view that while exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see only whether a prima facie case has been made out as regard to the requirement of domestic enquiry. Cholan Roadways nonetheless deals with only 1 st phase of the jurisdiction exercisable under Section 33(2)(b) and it falls short to elucidate as to whether, in the event of a defective domestic enquiry, the Labour Court/Tribunal can also the parties to adduce evidence. The 2 nd phase of Jurisdiction exercisable under Section 33(2)(b) was not debated in Cholan Roadways (supra) apparently for the reason that on facts this Court was satisfied that the delinquent workman was guilty of the misconduct attributed and proved against him in the domestic enquiry. On the other hand, Mysore Steel Works Pvt. Ltd. and Lalla Ram have gone a step ahead to hold that the Tribunal can permit the parties to adduce evidence if it finds that the domestic enquiry suffers from any defect or was violative of the principles of natural justice or was marred by unfair labour practice, it may then independently examine the evidence led before it to embark upon the question whether or not the punitive action deserves to be accorded approval. 34. It, thus, stands out that though the Labour Court or the Tribunal while exercising their jurisdiction under Section 33(2)(b) are empowered to permit the parties to lead evidence in respect of the legality and propriety of the domestic enquiry held into the misconduct of a workman, such evidence would be taken into consideration by the Labour Court or the Tribunal only if it is found that the domestic enquiry conducted by the Management on the scale that the standard of proof required therein can be `preponderance of probability and not a `proof beyond all reasonable doubts suffers from inherent defects or is violative of principles of natural justice. In other words, the Labour Court or the Tribunal cannot without first examining the material led in the domestic enquiry jump to a conclusion and mechanically permit the parties to lead evidence as if it is an essential procedural part of the enquiry to be held under Section 33(2)(b) of the Act. 35. If the awards/orders of the Labour Court or the judgments passed by Learned Single Judge(s) and the Division Benches of the High Court are evaluated on these principles, it appears to us that all of them went partly wrong and their respective orders suffer from one or the other legal infirmity. While the Labour Court and the Learned Single Judge(s) have erroneously presumed that no enquiry can be held under Section 33(2)(b) without asking the parties to lead their evidence, the Learned Division Benches of the High Court have proceeded on the premise that in a prima facie fact finding enquiry under Section 33(2)(b) no evidence can be adduced or considered by the Labour Court except what is on the record of domestic enquiry. Both the views do not go hand in hand with the law laid down by this Court in Punjab National Bank, Mysore Steel Works Pvt. Ltd. and Lalla Rams cases (supra). The Division Bench of the High Court solely depended upon Martin Burn Ltd. and Cholan Roadways Ltd. (supra) to hold that the scope of enquiry under Section 33(2)(b) being limited to see that prima facie the enquiry is just and proper, the Labour Court is precluded from asking the parties to lead any other evidence. Such a view is not in confirmity with the exposition of law in Punjab National Bank, Mysore Steel Works Pvt. Ltd. and Lalla Rams cases, cited above. The Labour Court did not exceed its jurisdiction in permitting the parties to adduce the evidence before it though it erred in relying upon the same without holding that the enquiry was defective or the punitive action was vitiated for want of bona fides. The finding on issue No. 1 that the domestic enquiry was held in a proper and fair manner also acquires significance here. Still further, the scope and object of Section 33(2)(b) cannot be expanded to an extent that the very scheme of adjudication of an `industrial dispute under Sections 10(1)(c) and (d) read with Section 11A of the Act becomes superfluous. 36. It is for this precise reason that the Three-Judge Bench in Punjab National Bank (supra), after limiting the scope of enquiry under Section 33(2)(b) of the Act, has categorically held that the order of dismissal even if approved under Section 33(2)(b), would not attain finality and that ....if an industrial dispute is raised on such a dismissal, the order of dismissal passed even with the requisite permission obtained under Section 33 has to face the scrutiny of Tribunal. 37. In Cholan Roadways Ltd. (supra) also, this Court gave opportunity to the workman to take recourse to such remedy as was available to under the laws for questioning the order of dismissal. 38. The Labour Court or Tribunal, therefore, while holding enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers vested in them under Section 10(i)(c) and (d) of the Act nor can they in the process of formation of their prima facie view under Section 33(2)(b), dwell upon the proportionality of punishment, as erroneously done in the instant case, for such a power can be exercised by the Labour Court or Tribunal only under Section 11A of the Act.

1[ds]34. It, thus, stands out that though the Labour Court or the Tribunal while exercising their jurisdiction under Section 33(2)(b) are empowered to permit the parties to lead evidence in respect of the legality and propriety of the domestic enquiry held into the misconduct of a workman, such evidence would be taken into consideration by the Labour Court or the Tribunal only if it is found that the domestic enquiry conducted by the Management on the scale that the standard of proof required therein can be `preponderance of probability and not a `proof beyond all reasonable doubts suffers from inherent defects or is violative of principles of natural justice. In other words, the Labour Court or the Tribunal cannot without first examining the material led in the domestic enquiry jump to a conclusion and mechanically permit the parties to lead evidence as if it is an essential procedural part of the enquiry to be held under Section 33(2)(b) of the Act35. If the awards/orders of the Labour Court or the judgments passed by Learned Single Judge(s) and the Division Benches of the High Court are evaluated on these principles, it appears to us that all of them went partly wrong and their respective orders suffer from one or the other legal infirmity. While the Labour Court and the Learned Single Judge(s) have erroneously presumed that no enquiry can be held under Section 33(2)(b) without asking the parties to lead their evidence, the Learned Division Benches of the High Court have proceeded on the premise that in a prima facie fact finding enquiry under Section 33(2)(b) no evidence can be adduced or considered by the Labour Court except what is on the record of domestic enquiry. Both the views do not go hand in hand with the law laid down by this Court in Punjab National Bank, Mysore Steel Works Pvt. Ltd. and Lalla Rams cases (supra). The Division Bench of the High Court solely depended upon Martin Burn Ltd. and Cholan Roadways Ltd. (supra) to hold that the scope of enquiry under Section 33(2)(b) being limited to see that prima facie the enquiry is just and proper, the Labour Court is precluded from asking the parties to lead any other evidence. Such a view is not in confirmity with the exposition of law in Punjab National Bank, Mysore Steel Works Pvt. Ltd. and Lalla Rams cases, cited above. The Labour Court did not exceed its jurisdiction in permitting the parties to adduce the evidence before it though it erred in relying upon the same without holding that the enquiry was defective or the punitive action was vitiated for want of bona fides. The finding on issue No. 1 that the domestic enquiry was held in a proper and fair manner also acquires significance here. Still further, the scope and object of Section 33(2)(b) cannot be expanded to an extent that the very scheme of adjudication of an `industrial dispute under Sections 10(1)(c) and (d) read with Section 11A of the Act becomes superfluous38. The Labour Court or Tribunal, therefore, while holding enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers vested in them under Section 10(i)(c) and (d) of the Act nor can they in the process of formation of their prima facie view under Section 33(2)(b), dwell upon the proportionality of punishment, as erroneously done in the instant case, for such a power can be exercised by the Labour Court or Tribunal only under Section 11A of the Act40. This is, however, not the end of the matter. We are not oblivious to the fact that the appellant attained the age of superannuation in the year 2010. There might be some substance in the allegation that he used to indulge in the acts of indiscipline, insubordination or may have absented himself from duties for a few days, there are, however, no allegations of financial irregularity or embezzlement of funds. It has come on record that when the proceedings were pending before the High Court, the parties were directed to mediate and submit their settlement proposals. The appellant also submitted his proposal which is on record, in which he demanded 75% of back wages whereas the Corporation agreed to pay 50% back wages to him. The settlement could not take place due to the difference in demand and offer to the extent of 25% back wages. Though the appellant seems to be in no mood to settle the dispute, we have not lost the hope and are sanguine that better sense will prevail upon both the parties and they will make an earnest and renewed effort through the Mediation Centre of High Court of Karnataka at Bangalore for amicable settlement of the dispute. This can only happen by adopting the give and take approach, especially to avoid prolonged litigation. The appellant may agree to take less than 75% back wages and the Corporation may incline to offer more than 50% back wages. Mediators will surely make efforts to bridge the gap and see that the dispute comes to an end. Both the parties, must also bear in mind that the recourse to `mediation suggested by us is one of the statutory mode prescribed for resolving an `industrial dispute under the Act.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: of 81 ft therefrom even after colliding with another bus coming from the front deserved serious consideration at the hands of the Tribunal. The nature of impact clearly demonstrates that the vehicle was being driven rashly or negligently. 33. The Three-Judge bench decisions of this Court in Punjab National Bank and Mysore Steel Works Pvt. Ltd. (supra), as well as the Division Bench judgment in Lalla Ram (supra) were unfortunately not cited before this Court in Cholan Roadways Ltd. There is yet no conflict of opinion as in Cholan Roadways Ltd. (supra) also this Court reiterated the past consistent view that while exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see only whether a prima facie case has been made out as regard to the requirement of domestic enquiry. Cholan Roadways nonetheless deals with only 1 st phase of the jurisdiction exercisable under Section 33(2)(b) and it falls short to elucidate as to whether, in the event of a defective domestic enquiry, the Labour Court/Tribunal can also the parties to adduce evidence. The 2 nd phase of Jurisdiction exercisable under Section 33(2)(b) was not debated in Cholan Roadways (supra) apparently for the reason that on facts this Court was satisfied that the delinquent workman was guilty of the misconduct attributed and proved against him in the domestic enquiry. On the other hand, Mysore Steel Works Pvt. Ltd. and Lalla Ram have gone a step ahead to hold that the Tribunal can permit the parties to adduce evidence if it finds that the domestic enquiry suffers from any defect or was violative of the principles of natural justice or was marred by unfair labour practice, it may then independently examine the evidence led before it to embark upon the question whether or not the punitive action deserves to be accorded approval. 34. It, thus, stands out that though the Labour Court or the Tribunal while exercising their jurisdiction under Section 33(2)(b) are empowered to permit the parties to lead evidence in respect of the legality and propriety of the domestic enquiry held into the misconduct of a workman, such evidence would be taken into consideration by the Labour Court or the Tribunal only if it is found that the domestic enquiry conducted by the Management on the scale that the standard of proof required therein can be `preponderance of probability and not a `proof beyond all reasonable doubts suffers from inherent defects or is violative of principles of natural justice. In other words, the Labour Court or the Tribunal cannot without first examining the material led in the domestic enquiry jump to a conclusion and mechanically permit the parties to lead evidence as if it is an essential procedural part of the enquiry to be held under Section 33(2)(b) of the Act. 35. If the awards/orders of the Labour Court or the judgments passed by Learned Single Judge(s) and the Division Benches of the High Court are evaluated on these principles, it appears to us that all of them went partly wrong and their respective orders suffer from one or the other legal infirmity. While the Labour Court and the Learned Single Judge(s) have erroneously presumed that no enquiry can be held under Section 33(2)(b) without asking the parties to lead their evidence, the Learned Division Benches of the High Court have proceeded on the premise that in a prima facie fact finding enquiry under Section 33(2)(b) no evidence can be adduced or considered by the Labour Court except what is on the record of domestic enquiry. Both the views do not go hand in hand with the law laid down by this Court in Punjab National Bank, Mysore Steel Works Pvt. Ltd. and Lalla Rams cases (supra). The Division Bench of the High Court solely depended upon Martin Burn Ltd. and Cholan Roadways Ltd. (supra) to hold that the scope of enquiry under Section 33(2)(b) being limited to see that prima facie the enquiry is just and proper, the Labour Court is precluded from asking the parties to lead any other evidence. Such a view is not in confirmity with the exposition of law in Punjab National Bank, Mysore Steel Works Pvt. Ltd. and Lalla Rams cases, cited above. The Labour Court did not exceed its jurisdiction in permitting the parties to adduce the evidence before it though it erred in relying upon the same without holding that the enquiry was defective or the punitive action was vitiated for want of bona fides. The finding on issue No. 1 that the domestic enquiry was held in a proper and fair manner also acquires significance here. Still further, the scope and object of Section 33(2)(b) cannot be expanded to an extent that the very scheme of adjudication of an `industrial dispute under Sections 10(1)(c) and (d) read with Section 11A of the Act becomes superfluous. 36. It is for this precise reason that the Three-Judge Bench in Punjab National Bank (supra), after limiting the scope of enquiry under Section 33(2)(b) of the Act, has categorically held that the order of dismissal even if approved under Section 33(2)(b), would not attain finality and that ....if an industrial dispute is raised on such a dismissal, the order of dismissal passed even with the requisite permission obtained under Section 33 has to face the scrutiny of Tribunal. 37. In Cholan Roadways Ltd. (supra) also, this Court gave opportunity to the workman to take recourse to such remedy as was available to under the laws for questioning the order of dismissal. 38. The Labour Court or Tribunal, therefore, while holding enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers vested in them under Section 10(i)(c) and (d) of the Act nor can they in the process of formation of their prima facie view under Section 33(2)(b), dwell upon the proportionality of punishment, as erroneously done in the instant case, for such a power can be exercised by the Labour Court or Tribunal only under Section 11A of the Act. ### Response: 1

LULLU VAS (SINCE DECEASED) THROUGH LRS AUDREY LUDWIG VAS Vs. THE STATE OF MAHARASHTRA

other remedy available to the party except to grant the relief sought.26. In the present case the genesis of the appellants? right is a lease which was allegedly entered into between the appellants? predecessor in interest and MCGM, which allegedly accepted the application and the premium amount on 17.11.1965. Respondent no. 2 has vehemently denied the existence of any lease on the ground that mere filing of an ?application? and an endorsement made thereunder of its acceptance does not result in a ?concluded contract? which creates any right. Further, counsel for respondent no. 2 averred that the original application can only be treated as an ?offer to enter into a lease? and the amount paid i.e., Rs.8,232, was only in the nature of earnest money. Respondent no. 2 further contended that in any event, the offer which allegedly came to be accepted on 05.11.1965 was not in the required form as prescribed under the Municipal Act. Respondent no. 2 has also vehemently argued that Section 70 of the Municipal Act was not complied with as the said document has neither been duly sealed nor does it have the signature of the competent authority. Therefore, respondent no. 2 submitted that as per the provisions of Section 71 of the Municipal Act the said lease is not binding upon the corporation.27. It may be noted that the very basis of the appellants? right, i.e., the lease deed, is itself disputed as there exists no registered document to that effect. It is pertinent to note herein that the appellants have taken the plea that by paying consideration towards the leasehold rights they now have a vested interest over the suit property. Hence, without any alleged violation of the conditions of the lease, the appellants claim that the revocation of their rights by the respondent no. 2 is malafide. In order to substantiate their claim, the appellants have averred that the name of the appellants appears in the records of the Estate Department as the lessees. Furthermore, our attention has been drawn to the fact that the first order of the HPC, dated 20.06.2009, declares the appellants to be lessees for 999 years. As the aforementioned order has not been challenged by the respondents, it has now attained finality. However, bearing in mind that this very issue is the subject matter of the pending civil suit, we refrain from making any observations regarding the same.28. While taking into consideration the rights of the appellants, we must also not lose sight of the fact that the Slum Act is a beneficial legislation meant to ameliorate the poor condition of slum dwellers. (See Balasaheb Arjun Torbole v. Administrator and Divisional Commissioner., (2015) 6 SCC 534 ). The legislative purpose behind this enactment is to provide statutory protection to the rights of slum dwellers in furtherance of their fundamental right to shelter and other basic amenities, enabling them to lead a dignified life as reflected in the Constitution. As such, where the rights of the appellants need to be analysed in light of the Slum Act, it is necessary to balance the interests of the appellants with that of the slum dwellers. In the present case, the slum dwellers, who are the primary beneficiaries of the redevelopment scheme, are not only at risk of losing their shelter, but also their means of livelihood.29. The averments made by the respondents reveal that pursuant to the implementation of the Slum Act, more than 70% of the slum dwellers formed respondent no. 4 (the housing society) and sought rehabilitation on the site in furtherance of their statutory rights. Further, respondent no. 5 has averred that demolition of the existing structures has already been initiated and the shifting of the slum dwellers is ongoing. The respondent no. 5 has brought to our notice that alternate accommodation for the slum dwellers has been arranged on a rental basis. But, owing to the ongoing litigation over the suit property, redevelopment has been pending for more than eight years. It is to be noted that ultimately it is the slum dwellers who are suffering. There is nothing on record to show that they have the support of 70% of the slum dwellers as mandated by the statute. Moreover, the appellants can be adequately compensated in the event of their success in the trial and, as such, have failed to prove any irreparable injury which cannot be remedied. In a situation such as this, where rights of the parties have not yet crystalized, and no irreparable injury can accrue to the plaintiff pending trial, the entire case then revolves around the principles of comparative convenience.30. The balance of convenience in the present case tilts in favour of the respondents, as the completion of the scheme is in greater public interest. However, it is noteworthy to observe that the appellants have vehemently contended that they have paid consideration in exchange of the lease¬hold right which is the subject matter of the trial. In order to substantiate their claim, the appellants have produced multiple documents on records, the genuineness of which is seriously doubted by the respondent authorities.31. The main grievance of the appellant?s counsel is that in case they succeed in the trial, they may not be placed in a position to enjoy the benefits arising out of the suit property. The counsel contended that their interest can be protected only if respondent no. 5 (developer) is injuncted from disposing of 50% of the free saleable area.32. It is to be noted that no material was produced before us so as to ascertain the quantum of damages that may have accrued to the appellants. Further, we cannot prohibit respondent no. 5 from disposing of the free saleable area, as it is only performing its contractual obligations and cannot be penalized for any irregularity committed by the respondent authorities. A specific averment has been made by respondent no. 2 that, in the event the appellants succeed before the trial court, they shall be entitled to adequate damages.

1[ds]22. Even though the parties have argued at length and produced multiple documents regarding the lease¬holding rights in dispute, at the outset, we would like to clarify that at this stage of litigation we are not inclined to attempt to resolve conflicts of evidence on affidavit or to decide questions of law on merits which call for elaborate arguments or detailed scrutiny, as these issues are the subject matter of the trial. The aforesaid contentions raised by the parties are to be resolved during the trial.The adjudication of the dispute before us has to be based on principles of equity. The party seeking the remedy has to make out a prima facie case on merits, and has to satisfy the court that there is some basis to its claim regarding the existence of his right. Further, the court must balance the comparative hardship or mischief which is likely to occur from withholding the relief, against that which would likely arise from granting it. It has to be further established that non-interference by the court would result in ?irreparable injury? to the party seeking relief and that there is no other remedy available to the party except to grant the relief sought.26. In the present case the genesis of the appellants? right is a lease which was allegedly entered into between the appellants? predecessor in interest and MCGM, which allegedly accepted the application and the premium amount on 17.11.1965. Respondent no. 2 has vehemently denied the existence of any lease on the ground that mere filing of an ?application? and an endorsement made thereunder of its acceptance does not result in a ?concluded contract? which creates any right.27. It may be noted that the very basis of the appellants? right, i.e., the lease deed, is itself disputed as there exists no registered document to that effect. It is pertinent to note herein that the appellants have taken the plea that by paying consideration towards the leasehold rights they now have a vested interest over the suit property. Hence, without any alleged violation of the conditions of the lease, the appellants claim that the revocation of their rights by the respondent no. 2 is malafide. In order to substantiate their claim, the appellants have averred that the name of the appellants appears in the records of the Estate Department as the lessees. Furthermore, our attention has been drawn to the fact that the first order of the HPC, dated 20.06.2009, declares the appellants to be lessees for 999 years. As the aforementioned order has not been challenged by the respondents, it has now attained finality. However, bearing in mind that this very issue is the subject matter of the pending civil suit, we refrain from making any observations regarding the same.28. While taking into consideration the rights of the appellants, we must also not lose sight of the fact that the Slum Act is a beneficial legislation meant to ameliorate the poor condition of slum dwellers. (See Balasaheb Arjun Torbole v. Administrator and Divisional Commissioner., (2015) 6 SCC 534 ). The legislative purpose behind this enactment is to provide statutory protection to the rights of slum dwellers in furtherance of their fundamental right to shelter and other basic amenities, enabling them to lead a dignified life as reflected in the Constitution. As such, where the rights of the appellants need to be analysed in light of the Slum Act, it is necessary to balance the interests of the appellants with that of the slum dwellers. In the present case, the slum dwellers, who are the primary beneficiaries of the redevelopment scheme, are not only at risk of losing their shelter, but also their means of livelihood.29. The averments made by the respondents reveal that pursuant to the implementation of the Slum Act, more than 70% of the slum dwellers formed respondent no. 4 (the housing society) and sought rehabilitation on the site in furtherance of their statutory rights. Further, respondent no. 5 has averred that demolition of the existing structures has already been initiated and the shifting of the slum dwellers is ongoing. The respondent no. 5 has brought to our notice that alternate accommodation for the slum dwellers has been arranged on a rental basis. But, owing to the ongoing litigation over the suit property, redevelopment has been pending for more than eight years. It is to be noted that ultimately it is the slum dwellers who are suffering. There is nothing on record to show that they have the support of 70% of the slum dwellers as mandated by the statute. Moreover, the appellants can be adequately compensated in the event of their success in the trial and, as such, have failed to prove any irreparable injury which cannot be remedied. In a situation such as this, where rights of the parties have not yet crystalized, and no irreparable injury can accrue to the plaintiff pending trial, the entire case then revolves around the principles of comparative convenience.30. The balance of convenience in the present case tilts in favour of the respondents, as the completion of the scheme is in greater public interest. However,it is noteworthy to observe that the appellants have vehemently contended that they have paid consideration in exchange of the lease¬hold right which is the subject matter of the trial.In order to substantiate their claim, the appellants have produced multiple documents on records, the genuineness of which is seriously doubted by the respondent authorities.It is to be noted that no material was produced before us so as to ascertain the quantum of damages that may have accrued to the appellants. Further, we cannot prohibit respondent no. 5 from disposing of the free saleable area, as it is only performing its contractual obligations and cannot be penalized for any irregularity committed by the respondent authorities. A specific averment has been made by respondent no. 2 that, in the event the appellants succeed before the trial court, they shall be entitled to adequate damages.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: other remedy available to the party except to grant the relief sought.26. In the present case the genesis of the appellants? right is a lease which was allegedly entered into between the appellants? predecessor in interest and MCGM, which allegedly accepted the application and the premium amount on 17.11.1965. Respondent no. 2 has vehemently denied the existence of any lease on the ground that mere filing of an ?application? and an endorsement made thereunder of its acceptance does not result in a ?concluded contract? which creates any right. Further, counsel for respondent no. 2 averred that the original application can only be treated as an ?offer to enter into a lease? and the amount paid i.e., Rs.8,232, was only in the nature of earnest money. Respondent no. 2 further contended that in any event, the offer which allegedly came to be accepted on 05.11.1965 was not in the required form as prescribed under the Municipal Act. Respondent no. 2 has also vehemently argued that Section 70 of the Municipal Act was not complied with as the said document has neither been duly sealed nor does it have the signature of the competent authority. Therefore, respondent no. 2 submitted that as per the provisions of Section 71 of the Municipal Act the said lease is not binding upon the corporation.27. It may be noted that the very basis of the appellants? right, i.e., the lease deed, is itself disputed as there exists no registered document to that effect. It is pertinent to note herein that the appellants have taken the plea that by paying consideration towards the leasehold rights they now have a vested interest over the suit property. Hence, without any alleged violation of the conditions of the lease, the appellants claim that the revocation of their rights by the respondent no. 2 is malafide. In order to substantiate their claim, the appellants have averred that the name of the appellants appears in the records of the Estate Department as the lessees. Furthermore, our attention has been drawn to the fact that the first order of the HPC, dated 20.06.2009, declares the appellants to be lessees for 999 years. As the aforementioned order has not been challenged by the respondents, it has now attained finality. However, bearing in mind that this very issue is the subject matter of the pending civil suit, we refrain from making any observations regarding the same.28. While taking into consideration the rights of the appellants, we must also not lose sight of the fact that the Slum Act is a beneficial legislation meant to ameliorate the poor condition of slum dwellers. (See Balasaheb Arjun Torbole v. Administrator and Divisional Commissioner., (2015) 6 SCC 534 ). The legislative purpose behind this enactment is to provide statutory protection to the rights of slum dwellers in furtherance of their fundamental right to shelter and other basic amenities, enabling them to lead a dignified life as reflected in the Constitution. As such, where the rights of the appellants need to be analysed in light of the Slum Act, it is necessary to balance the interests of the appellants with that of the slum dwellers. In the present case, the slum dwellers, who are the primary beneficiaries of the redevelopment scheme, are not only at risk of losing their shelter, but also their means of livelihood.29. The averments made by the respondents reveal that pursuant to the implementation of the Slum Act, more than 70% of the slum dwellers formed respondent no. 4 (the housing society) and sought rehabilitation on the site in furtherance of their statutory rights. Further, respondent no. 5 has averred that demolition of the existing structures has already been initiated and the shifting of the slum dwellers is ongoing. The respondent no. 5 has brought to our notice that alternate accommodation for the slum dwellers has been arranged on a rental basis. But, owing to the ongoing litigation over the suit property, redevelopment has been pending for more than eight years. It is to be noted that ultimately it is the slum dwellers who are suffering. There is nothing on record to show that they have the support of 70% of the slum dwellers as mandated by the statute. Moreover, the appellants can be adequately compensated in the event of their success in the trial and, as such, have failed to prove any irreparable injury which cannot be remedied. In a situation such as this, where rights of the parties have not yet crystalized, and no irreparable injury can accrue to the plaintiff pending trial, the entire case then revolves around the principles of comparative convenience.30. The balance of convenience in the present case tilts in favour of the respondents, as the completion of the scheme is in greater public interest. However, it is noteworthy to observe that the appellants have vehemently contended that they have paid consideration in exchange of the lease¬hold right which is the subject matter of the trial. In order to substantiate their claim, the appellants have produced multiple documents on records, the genuineness of which is seriously doubted by the respondent authorities.31. The main grievance of the appellant?s counsel is that in case they succeed in the trial, they may not be placed in a position to enjoy the benefits arising out of the suit property. The counsel contended that their interest can be protected only if respondent no. 5 (developer) is injuncted from disposing of 50% of the free saleable area.32. It is to be noted that no material was produced before us so as to ascertain the quantum of damages that may have accrued to the appellants. Further, we cannot prohibit respondent no. 5 from disposing of the free saleable area, as it is only performing its contractual obligations and cannot be penalized for any irregularity committed by the respondent authorities. A specific averment has been made by respondent no. 2 that, in the event the appellants succeed before the trial court, they shall be entitled to adequate damages. ### Response: 1

M/S BASPA ORGANICS LIMITED Vs. UNITED INDIA INSURANCE COMPANY LTD

efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. 26. Clearly, orders under Section 3(1) may pertain to the following objectives: (i) maintaining or increasing supplies of any essential commodity; (ii) securing the equitable distribution and availability at fair prices of such commodity; or, (iii) securing any essential commodity for the defence of India or the efficient conduct of military operations. 27. Furthermore, Section 3(2) contemplates particular aspects with respect to which orders may be passed in exercise of the power under Section 3(1). In this regard, it is relevant to refer to clause (d) of Section 3(2): (2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide? x x x (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity. 28. Thus, it is clear that the Central Government has the power to pass orders under the Essential Commodities Act to provide for licensing regimes governing the storage of an essential commodity, in pursuance of the three objectives set out in Section 3(1). The 2000 Order, in our considered view, is one such order, providing for a licensing regime regulating the acquisition, sale, storage and prevention of use in automobiles of solvents, raffinates and slops, particularly for the purposes of the Essential Commodities Act. There is nothing in the said order to suggest that it intends to replace or modify any other existing licensing regime under any other law in force, including the Petroleum Act and the rules formulated thereunder. 29. In fact, we find that the notifications issued in pursuance of the 2000 Order set to rest any residual doubt in this regard. For instance, a perusal of G.R.S. 578(E), an order dated 30.06.2000 issued by the Central Government under Clause 3 of the 2000 Order, clearly reveals that the licence being referred to under the order is the Solvent, Raffinate and Slop Licence. The said notification reiterates that the said licence is to be issued by the State Government, District Magistrate, or the officer authorised by the Central or State Government, as also mentioned in Clause 3(1) of the 2000 Order. 30. There cannot be any dispute that the licence issued under the Essential Commodities Act and control orders are for a different purpose altogether compared to the Petroleum Act. Thus, it is clear that the licensing regime envisaged in clause 3 of the 2000 Order, and the exemption granted thereto, is in addition to the licensing requirements under the Petroleum Act. The direction of the Controller of Explosives vide letter dated 05.11.2001 to comply with the requirements under the 2000 Order is an additional requirement to be complied with in order to obtain a licence under the Petroleum Act. It cannot be said that an exemption from obtaining a licence under the 2000 Order would amount to an exemption to obtain a licence under the Petroleum Act. Hence, even assuming that the Appellant was exempt from obtaining a licence under the 2000 Order by virtue of the said exemption, the Appellant was still required to obtain a licence in accordance with the 1976 Rules. We hasten to add here that, as already mentioned supra, the quantity of Hexane stored by the Appellant was more than 20 kilolitres. Hence, the Appellant was required to obtain a licence under the 2000 Order as well. 31. From the above discussion, it is evident that the 1976 Rules prescribed that a licence had to be obtained for the purposes of storing Hexane of the quantity involved in the instant case, and the Appellant has failed to comply with this requirement. In the absence of such a licence, the Appellant could not have lawfully stored Hexane. Therefore, we are of the view that the non-disclosure of the non-possession of a licence was of a material nature, and constituted a violation of Condition 1 of the insurance policy. As a result, we are inclined to affirm the finding of the National Commission that the Respondent was justified in repudiating the claim of the Appellant on this ground. 32. The second issue, regarding the overvaluation of the subject factory, was not seriously argued by either party. Moreover, it is a question of fact, which this Court generally does not probe deeply. Thus, we shall refrain from examining the merits thereof. The same is also unnecessary in light of our above finding that the repudiation of the instant claim was justified on the ground pertaining to the Appellant lacking a licence for storing Hexane under the Petroleum Act and 1976 Rules. 33. Before we part with this matter, we may note that some objection was raised by the Appellant against the appointment of the third surveyor by the Respondent. Suffice it to state that the appointment of the third surveyor was for the limited purpose of examining whether the Appellant was in possession of the requisite licences for the storage of Hexane. Moreover, neither did the findings of the third surveyor disturb the findings of the second surveyor, nor were they material to the conclusion against the Appellant arrived at by the National Commission. The second surveyor had given a categorical finding that about 90 kilolitres of Hexane were stored in the factory premises, and this finding has not been challenged by the Appellant. At the same time, while the findings of the third surveyor supplement the reasoning of the National Commission vis-à-vis the absence of a licence under the Petroleum Act and 1976 Rules, they are not crucial to this conclusion, inasmuch as the Appellant itself never contended that it was in possession of the requisite licences for the storage of Hexane. As a result, we find that irrespective of whether or not the appointment of the third surveyor was proper, the findings of the said surveyor do not materially affect the outcome of the instant case.

0[ds]6. At the outset, we must observe that we are at a loss to understand why the insurance policy was taken by the Appellant for only one month and extended thereafter, again, for only one more month. It is also quite perplexing as to why the Respondent agreed to issue a policy for such a short period of time, and no plausible reasons are forthcoming from the records to explain the peculiar nature of this transaction12. Before looking into whether the Appellant was required to obtain a licence under the provisions reproduced above, it is relevant to note that the Appellant has not challenged the second surveyors report, or its finding that the factory premises contained over 90 kilolitres of Hexane, out of which 79.152 kilolitres were damaged. On the contrary, the Appellant seeks to rely on the report heavily13.1 Therefore, it is evident that for the storage of petroleum Class A less than 30 litres in quantity, no licence is required under the Petroleum Act or rules thereunder. As per Article 3, a licence issued by the District Authority is required for importing and storing petroleum Class A in a quantity not exceeding 300 litres. Thus, the Respondent may be justified in arguing that for storage of petroleum Class A ranging from 30 litres to 300 litres in quantity, a licence under Article 3 may be required. However, in the instant case, it is clear that the Appellant had stored much more than 300 litres of Hexane, and therefore, a licence under Article 3 would not be sufficient15. From the definitions reproduced above, it becomes evident that irrespective of the quantity of petroleum, when petroleum is stored in a tank, it is referred to as petroleum in bulk under the 1976 Rules. As mentioned earlier, Article 7, on which the Respondent seeks to place reliance, deals with the grant of a licence for storage of petroleum otherwise than in bulk, i.e. otherwise than in a tank. In other words, for petroleum Class A exceeding 300 litres, a licence under Article 7 is required when it is not being stored in receptacles exceeding 1000 litres in capacity18. In the instant case, the second surveyor had clearly stated that the Hexane had leaked from the tanks in which it was stored. However, it is not clear from the material on record whether or not the term tank was assigned the same meaning as under the 1976 Rules. If the tanks referred to by the second surveyor were receptacles that could not store more than 1000 litres of petroleum, then they would not constitute tanks under the 1976 Rules, and the petroleum stored in such tanks would fall under the category of petroleum stored otherwise than in bulk. In such a case, a licence would be required under Article 720. The above communication clearly indicates that even the Controller of Explosives was of the opinion that the premises where the Appellant was storing Hexane amounted to an installation. As we have discussed supra, for a premises to be considered as an installation, it must contain a place prepared to hold tanks as defined under the 1976 Rules. This strongly suggests that the tanks referred to by the second surveyor were indeed tanks as envisaged under the 1976 Rules. In our considered view, this shows that the Appellant may well have been required to obtain a licence under Article 6 itself21. It is not the case of the Appellant that it provided the documents stipulated by the Controller of Explosives. No further communication between the Appellant and the said authority has been placed on record either. There is nothing on record to show that a licence under Article 6 was granted to the Appellant22. In light of the above discussion, we are of the view that the Appellant was required to obtain a licence under the 1976 Rules for the storage of Hexane, be it under Article 6 or 7, and has failed to show that it possessed any such licence24. Evidently, there is an exemption carved out in the proviso dispensing with the need for a licence in the cases laid down thereunder. Significantly, Hexane is mentioned in the Schedule referred to in the above clause, making it clear that the substance is governed by the same28. Thus, it is clear that the Central Government has the power to pass orders under the Essential Commodities Act to provide for licensing regimes governing the storage of an essential commodity, in pursuance of the three objectives set out in Section 3(1). The 2000 Order, in our considered view, is one such order, providing for a licensing regime regulating the acquisition, sale, storage and prevention of use in automobiles of solvents, raffinates and slops, particularly for the purposes of the Essential Commodities Act. There is nothing in the said order to suggest that it intends to replace or modify any other existing licensing regime under any other law in force, including the Petroleum Act and the rules formulated thereunder29. In fact, we find that the notifications issued in pursuance of the 2000 Order set to rest any residual doubt in this regard. For instance, a perusal of G.R.S. 578(E), an order dated 30.06.2000 issued by the Central Government under Clause 3 of the 2000 Order, clearly reveals that the licence being referred to under the order is the Solvent, Raffinate and Slop Licence. The said notification reiterates that the said licence is to be issued by the State Government, District Magistrate, or the officer authorised by the Central or State Government, as also mentioned in Clause 3(1) of the 2000 Order30. There cannot be any dispute that the licence issued under the Essential Commodities Act and control orders are for a different purpose altogether compared to the Petroleum Act. Thus, it is clear that the licensing regime envisaged in clause 3 of the 2000 Order, and the exemption granted thereto, is in addition to the licensing requirements under the Petroleum Act. The direction of the Controller of Explosives vide letter dated 05.11.2001 to comply with the requirements under the 2000 Order is an additional requirement to be complied with in order to obtain a licence under the Petroleum Act. It cannot be said that an exemption from obtaining a licence under the 2000 Order would amount to an exemption to obtain a licence under the Petroleum Act. Hence, even assuming that the Appellant was exempt from obtaining a licence under the 2000 Order by virtue of the said exemption, the Appellant was still required to obtain a licence in accordance with the 1976 Rules. We hasten to add here that, as already mentioned supra, the quantity of Hexane stored by the Appellant was more than 20 kilolitres. Hence, the Appellant was required to obtain a licence under the 2000 Order as well31. From the above discussion, it is evident that the 1976 Rules prescribed that a licence had to be obtained for the purposes of storing Hexane of the quantity involved in the instant case, and the Appellant has failed to comply with this requirement. In the absence of such a licence, the Appellant could not have lawfully stored Hexane. Therefore, we are of the view that the non-disclosure of the non-possession of a licence was of a material nature, and constituted a violation of Condition 1 of the insurance policy. As a result, we are inclined to affirm the finding of the National Commission that the Respondent was justified in repudiating the claim of the Appellant on this ground32. The second issue, regarding the overvaluation of the subject factory, was not seriously argued by either party. Moreover, it is a question of fact, which this Court generally does not probe deeply. Thus, we shall refrain from examining the merits thereof. The same is also unnecessary in light of our above finding that the repudiation of the instant claim was justified on the ground pertaining to the Appellant lacking a licence for storing Hexane under the Petroleum Act and 1976 Rules33. Before we part with this matter, we may note that some objection was raised by the Appellant against the appointment of the third surveyor by the Respondent. Suffice it to state that the appointment of the third surveyor was for the limited purpose of examining whether the Appellant was in possession of the requisite licences for the storage of Hexane. Moreover, neither did the findings of the third surveyor disturb the findings of the second surveyor, nor were they material to the conclusion against the Appellant arrived at by the National Commission. The second surveyor had given a categorical finding that about 90 kilolitres of Hexane were stored in the factory premises, and this finding has not been challenged by the Appellant. At the same time, while the findings of the third surveyor supplement the reasoning of the National Commission vis-à-vis the absence of a licence under the Petroleum Act and 1976 Rules, they are not crucial to this conclusion, inasmuch as the Appellant itself never contended that it was in possession of the requisite licences for the storage of Hexane. As a result, we find that irrespective of whether or not the appointment of the third surveyor was proper, the findings of the said surveyor do not materially affect the outcome of the instant case.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. 26. Clearly, orders under Section 3(1) may pertain to the following objectives: (i) maintaining or increasing supplies of any essential commodity; (ii) securing the equitable distribution and availability at fair prices of such commodity; or, (iii) securing any essential commodity for the defence of India or the efficient conduct of military operations. 27. Furthermore, Section 3(2) contemplates particular aspects with respect to which orders may be passed in exercise of the power under Section 3(1). In this regard, it is relevant to refer to clause (d) of Section 3(2): (2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide? x x x (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity. 28. Thus, it is clear that the Central Government has the power to pass orders under the Essential Commodities Act to provide for licensing regimes governing the storage of an essential commodity, in pursuance of the three objectives set out in Section 3(1). The 2000 Order, in our considered view, is one such order, providing for a licensing regime regulating the acquisition, sale, storage and prevention of use in automobiles of solvents, raffinates and slops, particularly for the purposes of the Essential Commodities Act. There is nothing in the said order to suggest that it intends to replace or modify any other existing licensing regime under any other law in force, including the Petroleum Act and the rules formulated thereunder. 29. In fact, we find that the notifications issued in pursuance of the 2000 Order set to rest any residual doubt in this regard. For instance, a perusal of G.R.S. 578(E), an order dated 30.06.2000 issued by the Central Government under Clause 3 of the 2000 Order, clearly reveals that the licence being referred to under the order is the Solvent, Raffinate and Slop Licence. The said notification reiterates that the said licence is to be issued by the State Government, District Magistrate, or the officer authorised by the Central or State Government, as also mentioned in Clause 3(1) of the 2000 Order. 30. There cannot be any dispute that the licence issued under the Essential Commodities Act and control orders are for a different purpose altogether compared to the Petroleum Act. Thus, it is clear that the licensing regime envisaged in clause 3 of the 2000 Order, and the exemption granted thereto, is in addition to the licensing requirements under the Petroleum Act. The direction of the Controller of Explosives vide letter dated 05.11.2001 to comply with the requirements under the 2000 Order is an additional requirement to be complied with in order to obtain a licence under the Petroleum Act. It cannot be said that an exemption from obtaining a licence under the 2000 Order would amount to an exemption to obtain a licence under the Petroleum Act. Hence, even assuming that the Appellant was exempt from obtaining a licence under the 2000 Order by virtue of the said exemption, the Appellant was still required to obtain a licence in accordance with the 1976 Rules. We hasten to add here that, as already mentioned supra, the quantity of Hexane stored by the Appellant was more than 20 kilolitres. Hence, the Appellant was required to obtain a licence under the 2000 Order as well. 31. From the above discussion, it is evident that the 1976 Rules prescribed that a licence had to be obtained for the purposes of storing Hexane of the quantity involved in the instant case, and the Appellant has failed to comply with this requirement. In the absence of such a licence, the Appellant could not have lawfully stored Hexane. Therefore, we are of the view that the non-disclosure of the non-possession of a licence was of a material nature, and constituted a violation of Condition 1 of the insurance policy. As a result, we are inclined to affirm the finding of the National Commission that the Respondent was justified in repudiating the claim of the Appellant on this ground. 32. The second issue, regarding the overvaluation of the subject factory, was not seriously argued by either party. Moreover, it is a question of fact, which this Court generally does not probe deeply. Thus, we shall refrain from examining the merits thereof. The same is also unnecessary in light of our above finding that the repudiation of the instant claim was justified on the ground pertaining to the Appellant lacking a licence for storing Hexane under the Petroleum Act and 1976 Rules. 33. Before we part with this matter, we may note that some objection was raised by the Appellant against the appointment of the third surveyor by the Respondent. Suffice it to state that the appointment of the third surveyor was for the limited purpose of examining whether the Appellant was in possession of the requisite licences for the storage of Hexane. Moreover, neither did the findings of the third surveyor disturb the findings of the second surveyor, nor were they material to the conclusion against the Appellant arrived at by the National Commission. The second surveyor had given a categorical finding that about 90 kilolitres of Hexane were stored in the factory premises, and this finding has not been challenged by the Appellant. At the same time, while the findings of the third surveyor supplement the reasoning of the National Commission vis-à-vis the absence of a licence under the Petroleum Act and 1976 Rules, they are not crucial to this conclusion, inasmuch as the Appellant itself never contended that it was in possession of the requisite licences for the storage of Hexane. As a result, we find that irrespective of whether or not the appointment of the third surveyor was proper, the findings of the said surveyor do not materially affect the outcome of the instant case. ### Response: 0

Hindustan Aeronautics Vs. Registering Authority

of the Schedule and that must be a vehicle which is used for conveying passengers. 7. In Sales v. Lake & Ors., 1922(1) KB 553, the expression "pites for hire" arose for consideration. The language used in the provision considered therein was "every carriage of different descriptions or other vehicle which is intended or used for the conveyance of passengers and which plies for hire in any street, road or place and in which the passengers or any of them are charged to any separate and distinct or at the rate of separate and distinct fares for the respective places or seats therein". The court was of the view that a vehicle cannot accurately be said to ply for hire unless two conditions are satisfied. Firstly, there must be a soliciting or waiting to secure passengers by the driver or other person in control without any previous contract with them. And, secondly, the owner or person in control who is engaged in or authorised the soliciting or waiting must be in possession of a carriage for which he is soliciting or waiting to obtain passengers. We are not concerned with the second condition. So far as the first condition is concerned, "a vehicle plies for hire" means that is regularly used for such hire, that is, the vehicle which is offered for such service regularly. The expression "to ply for hire" means to exhibit the vehicle in such a way as to invite those who may desire to hire it for travel in it on payment of usual fares or to offer its use thereby soliciting customers. 8. All the authorities have relied upon the circular No. HAL/KPT/CAF/3/3/88/137 issued by the appellant on February 27, 1988. Therefore, to correctly appreciate the matter in dispute, it is necessary to set out the entire circular which is as under :- "Sub : Revision of charges to be levied for private use of Companys Vehicles...........It has been decided to revise the charges for private use of Companys transport by employees as indicated below with effect from 1.3.88 so as to cover the direct cost o operations :-Table #a) Bus, Rs. 400 per KM plus detention charges of Rs. 15/- per hour.b) Car (Diesel), Rs. 1.50 per KM plus detention charges of Rs. 6/- per hour.c) Car (Petrol), Rs. 3.00, -----do-----d) Jeep(Diesel), Rs. 1.50, -----do-----e) Jeep(Petrol), Rs. 2.00, -----do----f) Van/Minibus/Station Wagon/Ambulance (diesel), Rs. 200 per KM plus detention charges of Rs. 10/- per hour.g) -do- (Petrol, Rs. 3.00 per KM --do--h) Truck (diesel), Rs. 4.00 per KM --do--2. The above charges will be levied on garage basis.3. In respcr of Picnic trips arranges by employees through bodies recognised by HAL the charges would be Rs. 1.50 per KM plus detention charges Rs. 6/- per hour for the bus on garage to garage basis.4. The charges for trucks provided to Hindustan Aeronautics Consumers Co-operativce stores will be Rs. 0.25 per KM on garge-to-garage basis of lifting the ration commodities only and for oother trips at the rates mention din para-1 above.5. The charges for the vehicles given for use by outside parties (other than HAL employees or other recognised bodies of HAL) like State Govt. authorizes and other like institutions etc. will be 50% additional over the rates indicated in para-1 above. When the vehicles are given for private use by outside parties, they should deposit the full amount of expected usage in advance before the Vehicles is moved out of the garage.6. While it should be the policy to discourage the private use of companys transport/vehicles, wherever it is considered necessary to permit such use in unavoidable cases, the officers concerned will intimate the employees of the revised rates before forwarding the requests to the General Manager for approval., Â?39Â?3
ÅThis issues with the approval of General Manager." 9. Although the circular is captioned "Revision of charges to be levied for private use of Companys Vehicles", it is made clear that the policy of the company is to discourage private use of companys transport for vehicles but wherever it is considered necessary to permit such use in unavoidable cases, the officer concerned will intimate the employees of the revised rates before forwarding the requests to the General Manager for approval. Thus the rates specified are not by way of an offer to the general public but to regulate the use of the vehicles in a particular manner. Thus the buses are not plied for hire or reward. And, in addition to that, the vehicles are used mainly for their employees and their children as part of the welfare measure of the employees. If the members of the family of the employees, like the spouses or children, are allowed to travel in those buses, it should not be treated as the vehicle being plied for "hire or reward". In such circumstances, we do not think that the authorities were justified in treating the vehicles as being flied for "hire or reward". They have lost sight of the fact that the requirement to attract the charge under Entry 4 of the Schedule to the Act was "playing of motor vehicles for hire" and not mere user. Therefore, we do not think that either the High Court or authorities under the Act were justified in either imposing the higher rate of tax under Entry 4 of the Schedule to the Act or upholding the same when challenged. 10. Other decisions in I.T.I. Limited v. Passenger Tax Officer, AIR 1996 Allahabad 79, TATA Engineering & Locomotive Co. Ltd. v. The Sales Tax Officer & Regional Transport Officer, Poona & Anr., 1979(2) SCR 357, and Smt. H.M.T. Sittamma & Anr. v. State of Karnataka & Ors., AIR 1979 Karnataka 211, are adverted to by the learned counsel appearing in the case. However, these cases turned upon the respective provisions of the Motor Vehicles Taxation Act with which they were concerned in those cases. Therefore, these decisions may not be of any relevance or application to the present case. 11.

1[ds]es v. Lake & Ors., 1922(1) KBthe expression "pites for hire" arose for consideration. The language used in the provision considered therein was "every carriage of different descriptions or other vehicle which is intended or used for the conveyance of passengers and which plies for hire in any street, road or place and in which the passengers or any of them are charged to any separate and distinct or at the rate of separate and distinct fares for the respective places or seats therein". The court was of the view that a vehicle cannot accurately be said to ply for hire unless two conditions are satisfied. Firstly, there must be a soliciting or waiting to secure passengers by the driver or other person in control without any previous contract with them. And, secondly, the owner or person in control who is engaged in or authorised the soliciting or waiting must be in possession of a carriage for which he is soliciting or waiting to obtain passengers. We are not concerned with the second condition. So far as the first condition is concerned, "a vehicle plies for hire" means that is regularly used for such hire, that is, the vehicle which is offered for such service regularly. The expression "to ply for hire" means to exhibit the vehicle in such a way as to invite those who may desire to hire it for travel in it on payment of usual fares or to offer its use thereby solicitingthe circular is captioned "Revision of charges to be levied for private use of Companys Vehicles", it is made clear that the policy of the company is to discourage private use of companys transport for vehicles but wherever it is considered necessary to permit such use in unavoidable cases, the officer concerned will intimate the employees of the revised rates before forwarding the requests to the General Manager for approval. Thus the rates specified are not by way of an offer to the general public but to regulate the use of the vehicles in a particular manner. Thus the buses are not plied for hire or reward. And, in addition to that, the vehicles are used mainly for their employees and their children as part of the welfare measure of the employees. If the members of the family of the employees, like the spouses or children, are allowed to travel in those buses, it should not be treated as the vehicle being plied for "hire or reward". In such circumstances, we do not think that the authorities were justified in treating the vehicles as being flied for "hire or reward". They have lost sight of the fact that the requirement to attract the charge under Entry 4 of the Schedule to the Act was "playing of motor vehicles for hire" and not mere user. Therefore, we do not think that either the High Court or authorities under the Act were justified in either imposing the higher rate of tax under Entry 4 of the Schedule to the Act or upholding the same whendecisions in I.T.I. Limited v. Passenger Tax Officer, AIR 1996 Allahabad 79, TATA Engineering & Locomotive Co. Ltd. v. The Sales Tax Officer & Regional Transport Officer, Poona & Anr., 1979(2) SCR 357, and Smt. H.M.T. Sittamma & Anr. v. State of Karnataka & Ors., AIR 1979 Karnataka 211, are adverted to by the learned counsel appearing in the case. However, these cases turned upon the respective provisions of the Motor Vehicles Taxation Act with which they were concerned in those cases. Therefore, these decisions may not be of any relevance or application to the present case.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: of the Schedule and that must be a vehicle which is used for conveying passengers. 7. In Sales v. Lake & Ors., 1922(1) KB 553, the expression "pites for hire" arose for consideration. The language used in the provision considered therein was "every carriage of different descriptions or other vehicle which is intended or used for the conveyance of passengers and which plies for hire in any street, road or place and in which the passengers or any of them are charged to any separate and distinct or at the rate of separate and distinct fares for the respective places or seats therein". The court was of the view that a vehicle cannot accurately be said to ply for hire unless two conditions are satisfied. Firstly, there must be a soliciting or waiting to secure passengers by the driver or other person in control without any previous contract with them. And, secondly, the owner or person in control who is engaged in or authorised the soliciting or waiting must be in possession of a carriage for which he is soliciting or waiting to obtain passengers. We are not concerned with the second condition. So far as the first condition is concerned, "a vehicle plies for hire" means that is regularly used for such hire, that is, the vehicle which is offered for such service regularly. The expression "to ply for hire" means to exhibit the vehicle in such a way as to invite those who may desire to hire it for travel in it on payment of usual fares or to offer its use thereby soliciting customers. 8. All the authorities have relied upon the circular No. HAL/KPT/CAF/3/3/88/137 issued by the appellant on February 27, 1988. Therefore, to correctly appreciate the matter in dispute, it is necessary to set out the entire circular which is as under :- "Sub : Revision of charges to be levied for private use of Companys Vehicles...........It has been decided to revise the charges for private use of Companys transport by employees as indicated below with effect from 1.3.88 so as to cover the direct cost o operations :-Table #a) Bus, Rs. 400 per KM plus detention charges of Rs. 15/- per hour.b) Car (Diesel), Rs. 1.50 per KM plus detention charges of Rs. 6/- per hour.c) Car (Petrol), Rs. 3.00, -----do-----d) Jeep(Diesel), Rs. 1.50, -----do-----e) Jeep(Petrol), Rs. 2.00, -----do----f) Van/Minibus/Station Wagon/Ambulance (diesel), Rs. 200 per KM plus detention charges of Rs. 10/- per hour.g) -do- (Petrol, Rs. 3.00 per KM --do--h) Truck (diesel), Rs. 4.00 per KM --do--2. The above charges will be levied on garage basis.3. In respcr of Picnic trips arranges by employees through bodies recognised by HAL the charges would be Rs. 1.50 per KM plus detention charges Rs. 6/- per hour for the bus on garage to garage basis.4. The charges for trucks provided to Hindustan Aeronautics Consumers Co-operativce stores will be Rs. 0.25 per KM on garge-to-garage basis of lifting the ration commodities only and for oother trips at the rates mention din para-1 above.5. The charges for the vehicles given for use by outside parties (other than HAL employees or other recognised bodies of HAL) like State Govt. authorizes and other like institutions etc. will be 50% additional over the rates indicated in para-1 above. When the vehicles are given for private use by outside parties, they should deposit the full amount of expected usage in advance before the Vehicles is moved out of the garage.6. While it should be the policy to discourage the private use of companys transport/vehicles, wherever it is considered necessary to permit such use in unavoidable cases, the officers concerned will intimate the employees of the revised rates before forwarding the requests to the General Manager for approval., Â?39Â?3
ÅThis issues with the approval of General Manager." 9. Although the circular is captioned "Revision of charges to be levied for private use of Companys Vehicles", it is made clear that the policy of the company is to discourage private use of companys transport for vehicles but wherever it is considered necessary to permit such use in unavoidable cases, the officer concerned will intimate the employees of the revised rates before forwarding the requests to the General Manager for approval. Thus the rates specified are not by way of an offer to the general public but to regulate the use of the vehicles in a particular manner. Thus the buses are not plied for hire or reward. And, in addition to that, the vehicles are used mainly for their employees and their children as part of the welfare measure of the employees. If the members of the family of the employees, like the spouses or children, are allowed to travel in those buses, it should not be treated as the vehicle being plied for "hire or reward". In such circumstances, we do not think that the authorities were justified in treating the vehicles as being flied for "hire or reward". They have lost sight of the fact that the requirement to attract the charge under Entry 4 of the Schedule to the Act was "playing of motor vehicles for hire" and not mere user. Therefore, we do not think that either the High Court or authorities under the Act were justified in either imposing the higher rate of tax under Entry 4 of the Schedule to the Act or upholding the same when challenged. 10. Other decisions in I.T.I. Limited v. Passenger Tax Officer, AIR 1996 Allahabad 79, TATA Engineering & Locomotive Co. Ltd. v. The Sales Tax Officer & Regional Transport Officer, Poona & Anr., 1979(2) SCR 357, and Smt. H.M.T. Sittamma & Anr. v. State of Karnataka & Ors., AIR 1979 Karnataka 211, are adverted to by the learned counsel appearing in the case. However, these cases turned upon the respective provisions of the Motor Vehicles Taxation Act with which they were concerned in those cases. Therefore, these decisions may not be of any relevance or application to the present case. 11. ### Response: 1

Gian Singh Mann Vs. High Court of Punjab and Haryana and Another

It is not necessary , in the circumstances, to consider the further submission of the respondents that the provision on which the petitioner relies as the basis of his claim is concerned with the appointment only of members of the Scheduled Castes to posts in the Punjab Superior Judicial Service and not to recruitment by promotion to that service.4. The petitioner has also claimed that even without the advantage of reservation he is entitled to promotion to a Selection Grade post in the Punjab Civil Service (Judicial Branch) and to a post in the Punjab Superior Judicial Service, and that the High Court should have promoted him accordingly. The position taken in reply by the High Court is that the character and quality of the petitioners work and conduct, as evidenced by confidential reports pertaining to him, did not justify his promotion having regard to the guidelines laid down by the High Court. We have personally examined the records in respect of the petitioner, and we are unable to say that the view taken by the High Court is unreasonable or arbitrary.5. We may now examine the contention of the petitioner that the order of premature retirement is invalid. He has assailed the application of the Punjab Civil Service (Premature Retirement) Rules, 1975. He urges that as a Judicial officer in the Punjab Civil Service (Judicial Branch) he is not governed by these rules. It is true that originally rule 7 of those Rules provided that they would not apply to persons belonging to any judicial service of the State. But by notification dated 18th August, 1975, * * * in exercise of the powers under Article 234 of the Constitution besides other provisions, Rule 7 was substituted by another rule which did not exempt members of the judicial service from the operation of the Premature Retirement Rules. The Premature Retirement Rules were finalised after consultation with the High Court and, therefore, must be regarded as complying with Article 234 of the Constitution. There is nothing in the Punjab Civil Service (Judicial Branch) Rules which excludes the operation of the Retirement Rules. We are therefore, not satisfied that the Premature Retirement Rules cannot be applied to the case of the petitioner.6. It is urged by the petitioner that the High Court, when it applied the Premature Retirement Rules, did not consider the case of the petitioner on its facts. We have, however, the affidavit of the Registrar of the High Court which states that the case of the petitioner was considered by the High Court on 26th October, 1978, and having regard to the policy laid down by the High Court it was decided to recommend to the Government that the petitioner should be retired from service in the public interest with effect from 30th December, 1978, the date on which he completed twenty five years of qualifying service. At the same time it was decided as a matter of policy by the High Court that all the work pending in the court of a Judicial officer, in respect of whom a recommendation for premature retirement had been made to the Government, should be withdrawn immediately pending a decision by the Government on such recommendation. It was in implementation of that policy that the order directing withdrawal of judicial work from the petitioner was made.7. It is next contended by the petitioner that the expression "public interest" in the Premature Retirement Rules is vague and the rule is for that reason ultra vires. In our opinion, the expression in the context of premature retirement has a well settled meaning. It refers to cases where the interests of public administration require the retirement of a government servant who with the passage of years has prematurely ceased to possess the standard of efficiency, competence and utility called for by the government service to which he belongs. No stigma or implication of misbehaviour is intended, and punishment is not the objective. It appears to us to be beyond dispute that the decision of the High Court to recommend the premature retirement of the petitioner in the light of his record of service must be regarded as falling within the scope of the expression "public interest".8. The petitioner also asserted that Judicial officers whose record of service was inferior or equivalent to that of the petitioner have not been prematurely retired, and have been retained in service. The High Court, however, has stated that no such Subordinate Judge has been retained in service. We see no reason why the High Court should not be believed.9. Another point raised by the petitioner is that Article 311 of the Constitution has been violated by the Premature Retirement Rules. We think that the concept of premature retirement which has found expression in the Rules does not fall within the scope of Article 311. As we have observed, no element of punishment is involved in premature retirement and it is not possible to say that Article 311 is attracted.10. The petitioner has justified the filing of this writ petition under Article 32 of the Constitution on the plea that his fundamental rights under Articles 14, 16, 17 and 46 are violated. We find no substance at all in that plea.The petitioner alleges mala fides on the part of the High Court. It is a reckless allegation, and impossible to countenance. There is nothing whatever to indicate that the High Court, as a body, was motivated by mala fides against the petitioner. The instances alleged by the petitioner in support of his allegation of mala fides fail to prove his case. The High Court has offered a perfectly valid explanation in respect of each instance. The petitioner points out that the High Court has refused to permit encashment of unutilised earned leave. On the material before us, we are not satisfied that a case of mala fides has been made out.11. These are the only points raised by the petitioner which deserve consideration. There is no force in them.12.

0[ds]In regard to the petitioners claim for promotion to the Selection Grade post in the Punjab Civil Service (Judicial Branch) with effect from 1st November, 1966, and to a post in the Punjab Superior Judicial Service with effect from 1st May, 1967 on the basis that a post ha d been reserved in each of the services for a member of the Scheduled Castes, it seems to us that the claim is grossly belated. The writ petition was filed in this Court in 1978, about eleven years after the dates from which the promotions are claimed. There is no valid explanation for the delay. That the petitioner was making successive representations during this period can hardly justify our overlooking the inordinate delay. Relief must be refused on that ground. It is not necessary , in the circumstances, to consider the further submission of the respondents that the provision on which the petitioner relies as the basis of his claim is concerned with the appointment only of members of the Scheduled Castes to posts in the Punjab Superior Judicial Service and not to recruitment by promotion to thatis true that originally rule 7 of those Rules provided that they would not apply to persons belonging to any judicial service of the State. But by notification dated 18th August, 1975, * * * in exercise of the powers under Article 234 of the Constitution besides other provisions, Rule 7 was substituted by another rule which did not exempt members of the judicial service from the operation of the Premature Retirement Rules. The Premature Retirement Rules were finalised after consultation with the High Court and, therefore, must be regarded as complying with Article 234 of the Constitution. There is nothing in the Punjab Civil Service (Judicial Branch) Rules which excludes the operation of the Retirement Rules. We are therefore, not satisfied that the Premature Retirement Rules cannot be applied to the case of thehave, however, the affidavit of the Registrar of the High Court which states that the case of the petitioner was considered by the High Court on 26th October, 1978, and having regard to the policy laid down by the High Court it was decided to recommend to the Government that the petitioner should be retired from service in the public interest with effect from 30th December, 1978, the date on which he completed twenty five years of qualifying service. At the same time it was decided as a matter of policy by the High Court that all the work pending in the court of a Judicial officer, in respect of whom a recommendation for premature retirement had been made to the Government, should be withdrawn immediately pending a decision by the Government on such recommendation. It was in implementation of that policy that the order directing withdrawal of judicial work from the petitioner wass next contended by the petitioner that the expression "public interest" in the Premature Retirement Rules is vague and the rule is for that reason ultravires. In our opinion, the expression in the context of premature retirement has a well settled meaning. It refers to cases where the interests of public administration require the retirement of a government servant who with the passage of years has prematurely ceased to possess the standard of efficiency, competence and utility called for by the government service to which he belongs. No stigma or implication of misbehaviour is intended, and punishment is not the objective. It appears to us to be beyond dispute that the decision of the High Court to recommend the premature retirement of the petitioner in the light of his record of service must be regarded as falling within the scope of the expression "publicHigh Court, however, has stated that no such Subordinate Judge has been retained in service. We see no reason why the High Court should not bethink that the concept of premature retirement which has found expression in the Rules does not fall within the scope of Article 311. As we have observed, no element of punishment is involved in premature retirement and it is not possible to say that Article 311 ispetitioner has justified the filing of this writ petition under Article 32 of the Constitution on the plea that his fundamental rights under Articles 14, 16, 17 and 46 are violated.We find no substance at all in that plea.The petitioner alleges mala fides on the part of the High Court. It is a reckless allegation, and impossible to countenance. There is nothing whatever to indicate that the High Court, as a body, was motivated by mala fides against the petitioner. The instances alleged by the petitioner in support of his allegation of mala fides fail to prove his case. The High Court has offered a perfectly valid explanation in respect of each instance. The petitioner points out that the High Court has refused to permit encashment of unutilised earned leave. On the material before us, we are not satisfied that a case of mala fides has been madeour opinion, the expression in the context of premature retirement has a well settled meaning. It refers to cases where the interests of public administration require the retirement of a government servant who with the passage of years has prematurely ceased to possess the standard of efficiency, competence and utility called for by the government service to which he belongs. No stigma or implication of misbehaviour is intended, and punishment is not the objective. It appears to us to be beyond dispute that the decision of the High Court to recommend the premature retirement of the petitioner in the light of his record of service must be regarded as falling within the scope of the expression "publicfind no substance at all in that plea.The petitioner alleges mala fides on the part of the High Court. It is a reckless allegation, and impossible to countenance. There is nothing whatever to indicate that the High Court, as a body, was motivated by mala fides against the petitioner. The instances alleged by the petitioner in support of his allegation of mala fides fail to prove his case. The High Court has offered a perfectly valid explanation in respect of each instance. The petitioner points out that the High Court has refused to permit encashment of unutilised earned leave. On the material before us, we are not satisfied that a case of mala fides has been made

### 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: It is not necessary , in the circumstances, to consider the further submission of the respondents that the provision on which the petitioner relies as the basis of his claim is concerned with the appointment only of members of the Scheduled Castes to posts in the Punjab Superior Judicial Service and not to recruitment by promotion to that service.4. The petitioner has also claimed that even without the advantage of reservation he is entitled to promotion to a Selection Grade post in the Punjab Civil Service (Judicial Branch) and to a post in the Punjab Superior Judicial Service, and that the High Court should have promoted him accordingly. The position taken in reply by the High Court is that the character and quality of the petitioners work and conduct, as evidenced by confidential reports pertaining to him, did not justify his promotion having regard to the guidelines laid down by the High Court. We have personally examined the records in respect of the petitioner, and we are unable to say that the view taken by the High Court is unreasonable or arbitrary.5. We may now examine the contention of the petitioner that the order of premature retirement is invalid. He has assailed the application of the Punjab Civil Service (Premature Retirement) Rules, 1975. He urges that as a Judicial officer in the Punjab Civil Service (Judicial Branch) he is not governed by these rules. It is true that originally rule 7 of those Rules provided that they would not apply to persons belonging to any judicial service of the State. But by notification dated 18th August, 1975, * * * in exercise of the powers under Article 234 of the Constitution besides other provisions, Rule 7 was substituted by another rule which did not exempt members of the judicial service from the operation of the Premature Retirement Rules. The Premature Retirement Rules were finalised after consultation with the High Court and, therefore, must be regarded as complying with Article 234 of the Constitution. There is nothing in the Punjab Civil Service (Judicial Branch) Rules which excludes the operation of the Retirement Rules. We are therefore, not satisfied that the Premature Retirement Rules cannot be applied to the case of the petitioner.6. It is urged by the petitioner that the High Court, when it applied the Premature Retirement Rules, did not consider the case of the petitioner on its facts. We have, however, the affidavit of the Registrar of the High Court which states that the case of the petitioner was considered by the High Court on 26th October, 1978, and having regard to the policy laid down by the High Court it was decided to recommend to the Government that the petitioner should be retired from service in the public interest with effect from 30th December, 1978, the date on which he completed twenty five years of qualifying service. At the same time it was decided as a matter of policy by the High Court that all the work pending in the court of a Judicial officer, in respect of whom a recommendation for premature retirement had been made to the Government, should be withdrawn immediately pending a decision by the Government on such recommendation. It was in implementation of that policy that the order directing withdrawal of judicial work from the petitioner was made.7. It is next contended by the petitioner that the expression "public interest" in the Premature Retirement Rules is vague and the rule is for that reason ultra vires. In our opinion, the expression in the context of premature retirement has a well settled meaning. It refers to cases where the interests of public administration require the retirement of a government servant who with the passage of years has prematurely ceased to possess the standard of efficiency, competence and utility called for by the government service to which he belongs. No stigma or implication of misbehaviour is intended, and punishment is not the objective. It appears to us to be beyond dispute that the decision of the High Court to recommend the premature retirement of the petitioner in the light of his record of service must be regarded as falling within the scope of the expression "public interest".8. The petitioner also asserted that Judicial officers whose record of service was inferior or equivalent to that of the petitioner have not been prematurely retired, and have been retained in service. The High Court, however, has stated that no such Subordinate Judge has been retained in service. We see no reason why the High Court should not be believed.9. Another point raised by the petitioner is that Article 311 of the Constitution has been violated by the Premature Retirement Rules. We think that the concept of premature retirement which has found expression in the Rules does not fall within the scope of Article 311. As we have observed, no element of punishment is involved in premature retirement and it is not possible to say that Article 311 is attracted.10. The petitioner has justified the filing of this writ petition under Article 32 of the Constitution on the plea that his fundamental rights under Articles 14, 16, 17 and 46 are violated. We find no substance at all in that plea.The petitioner alleges mala fides on the part of the High Court. It is a reckless allegation, and impossible to countenance. There is nothing whatever to indicate that the High Court, as a body, was motivated by mala fides against the petitioner. The instances alleged by the petitioner in support of his allegation of mala fides fail to prove his case. The High Court has offered a perfectly valid explanation in respect of each instance. The petitioner points out that the High Court has refused to permit encashment of unutilised earned leave. On the material before us, we are not satisfied that a case of mala fides has been made out.11. These are the only points raised by the petitioner which deserve consideration. There is no force in them.12. ### Response: 0

State Of Madras Vs. S. G. Jayaraj Nadar & Sons

Grover, J.1. This is an appeal from a judgment of the madras High Court in a matter arising out of the Madras General Sales Tax Act, 1959, hereinafter called the "Act".2. The assessee is a dealer in motor cars, trucks, scooters, motor spare parts and certain other goods. He returned a turnover of Rs. 42, 09.912-12 for the assessment year 1951-62. The Commercial Tax Officer on scrutiny of accounts determined the turnover at Rs. 68, 06, 331-49. During the assessment proceedings it was found that the assessee had not included in the monthly return in Form A-2, three item of turnover. The first was a sum of Rs. 1, 95, 311-21 relating to delivery charges which the assessee had paid to certain Calcutta dealers from whom he had made purchases of cars, trucks, scooters etc. The second item was of Rs. 2, 21, 247-97 which related to the sales of motor parts. The third item was of Rs. 1, 56, 539-25 being the aggregate of the sale proceeds of firewood. The assessing authority served a notice on the assessee to show cause why these items should not be brought to tax. The assessee filed objections which were rejected. The assessing authority found that the delivery charges paid by the assessee were included in the cost price when the cars, trucks, scooters etc. were sold by it and sales tax at 7% had been collected by the assessee on the delivery charges. As regards the second item it was held that the assessee had failed to maintain separate accounts contrary to the rules in respect of the first sales of parts and as it was not possible to separate the first sales from the general entries in the account books it was necessary to make assessment on best judgment. The assessment was completed but certain penalty was levied on the assessee. The assessee appealed to the Appellate Assistant Commissioner who took the view that the failure of the assessee to disclose the taxable turnover in the monthly returns was due to a bona fide impression on the assessee’s part that it would be sufficient if correct figures were furnished at the time of the final assessment. He, therefore, imposed a nominal penalty. The Board of Revenue in exercise of its power under sec. 34 of the Act set aside the order of the Appellate Assistant Commissioner. According to the Board’s finding the failure of the assessee to disclose the turnover in question was deliberate and called for no lenient treatment. An appeal was filed against the order of the Board of Revenue to the Madras High Court. The High Court allowed the appeal so far as the first and third items were concerned. As regards the second item it decided against the assessee.Sec. 12(2) of the Act is in the following terms :"If no return is submitted by the dealer under sub-sec. (1) within the prescribed period, or the return submitted by him appears to the assessing authority to be incomplete or incorrect, the assessing authority shall, after making such enquiry as it may consider necessary, assess the dealer to the best of its judgment :Provided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of proving the correctness or completeness of any return submitted by him".3. The question is whether penalty can be levied while making the assessment under sub-sec. (2) of the above section merely because an incorrect return has been filed. The High Court was of the view that it is only if the assessment has to be made to the best of the judgment of the assessing authority that penalty can be levied. It seems to us that the High Court came to the correct conclusion because sub-secs. (2) and (3) have to be read together. Sub-sec. (2) empowers the assessing authority to assess the dealer to the best of its judgment in two events; (1) if no return has been submitted by the dealer under sub-sec. (1) within the prescribed period and (ii) if the return submitted by him appears to be incomplete. Sub-sec. (3) empowers the assessing authority to levy the penalty only when it makes an assessment under sub-sec. (2). In other words when the assessing authority has made the assessment to the best of its judgment, it can levy a penalty. It is well known that the best judgment assessment has to be on an estimate which the assessing authority has to make not capriciously but on settled and recognised principles of Justice. An element of guess work is bound to be present in best judgment assessment but it must have a reasonable nexus to the available material and the circumstances of each case. (See The State of Kerala vs. C. Velukutty). Where account books are accepted along with other records there can be no ground for making a best judgment assessment.4. In the present case the High Court found that the turnovers involved in the first and the third items were not determined on the basis of any estimate of best judgment. The quantum of turnovers in respect of both these items were based on the assessee’s account books. It has almost been conceded on behalf of the Revenue before us that the determination of the turnovers relating to the aforesaid two items was made from the entries in the books of account of the assessee. The true position, therefore, was that certain items which had not been included in the turnover shown in the returns filed by the assessee were discovered from his own account books and the assessing authority included those items in his total turnover.

0[ds]The High Court was of the view that it is only if the assessment has to be made to the best of the judgment of the assessing authority that penalty can be levied.It seems to us that the High Court came to the correct conclusion because sub-secs. (2) and (3) have to be read together. Sub-sec. (2) empowers the assessing authority to assess the dealer to the best of its judgment in two events; (1) if no return has been submitted by the dealer under sub-sec. (1) within the prescribed period and (ii) if the return submitted by him appears to be incomplete. Sub-sec. (3) empowers the assessing authority to levy the penalty only when it makes an assessment under sub-sec. (2). In other words when the assessing authority has made the assessment to the best of its judgment, it can levy a penalty. It is well known that the best judgment assessment has to be on an estimate which the assessing authority has to make not capriciously but on settled and recognised principles of Justice. An element of guess work is bound to be present in best judgment assessment but it must have a reasonable nexus to the available material and the circumstances of eachaccount books are accepted along with other records there can be no ground for making a best judgment assessment.4. In the present case the High Court found that the turnovers involved in the first and the third items were not determined on the basis of any estimate of best judgment. The quantum of turnovers in respect of both these items were based on the assessee’s account books. It has almost been conceded on behalf of the Revenue before us that the determination of the turnovers relating to the aforesaid two items was made from the entries in the books of account of the assessee. The true position, therefore, was that certain items which had not been included in the turnover shown in the returns filed by the assessee were discovered from his own account books and the assessing authority included those items in his totalseems to us that the High Court came to the correct conclusion because(2) and (3) have to be read together.(2) empowers the assessing authority to assess the dealer to the best of its judgment in two events; (1) if no return has been submitted by the dealer under(1) within the prescribed period and (ii) if the return submitted by him appears to be incomplete.(3) empowers the assessing authority to levy the penalty only when it makes an assessment under(2). In other words when the assessing authority has made the assessment to the best of its judgment, it can levy a penalty. It is well known that the best judgment assessment has to be on an estimate which the assessing authority has to make not capriciously but on settled and recognised principles of Justice. An element of guess work is bound to be present in best judgment assessment but it must have a reasonable nexus to the available material and the circumstances of eachcase. (See The State of Kerala vs. C. Velukutty). Whereaccount books are accepted along with other records there can be no ground for making a best judgment assessment.4. In the present case the High Court found that the turnovers involved in the first and the third items were not determined on the basis of any estimate of best judgment. The quantum of turnovers in respect of both these items were based on the assessee’s account books. It has almost been conceded on behalf of the Revenue before us that the determination of the turnovers relating to the aforesaid two items was made from the entries in the books of account of the assessee. The true position, therefore, was that certain items which had not been included in the turnover shown in the returns filed by the assessee were discovered from his own account books and the assessing authority included those items in his total

### 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: Grover, J.1. This is an appeal from a judgment of the madras High Court in a matter arising out of the Madras General Sales Tax Act, 1959, hereinafter called the "Act".2. The assessee is a dealer in motor cars, trucks, scooters, motor spare parts and certain other goods. He returned a turnover of Rs. 42, 09.912-12 for the assessment year 1951-62. The Commercial Tax Officer on scrutiny of accounts determined the turnover at Rs. 68, 06, 331-49. During the assessment proceedings it was found that the assessee had not included in the monthly return in Form A-2, three item of turnover. The first was a sum of Rs. 1, 95, 311-21 relating to delivery charges which the assessee had paid to certain Calcutta dealers from whom he had made purchases of cars, trucks, scooters etc. The second item was of Rs. 2, 21, 247-97 which related to the sales of motor parts. The third item was of Rs. 1, 56, 539-25 being the aggregate of the sale proceeds of firewood. The assessing authority served a notice on the assessee to show cause why these items should not be brought to tax. The assessee filed objections which were rejected. The assessing authority found that the delivery charges paid by the assessee were included in the cost price when the cars, trucks, scooters etc. were sold by it and sales tax at 7% had been collected by the assessee on the delivery charges. As regards the second item it was held that the assessee had failed to maintain separate accounts contrary to the rules in respect of the first sales of parts and as it was not possible to separate the first sales from the general entries in the account books it was necessary to make assessment on best judgment. The assessment was completed but certain penalty was levied on the assessee. The assessee appealed to the Appellate Assistant Commissioner who took the view that the failure of the assessee to disclose the taxable turnover in the monthly returns was due to a bona fide impression on the assessee’s part that it would be sufficient if correct figures were furnished at the time of the final assessment. He, therefore, imposed a nominal penalty. The Board of Revenue in exercise of its power under sec. 34 of the Act set aside the order of the Appellate Assistant Commissioner. According to the Board’s finding the failure of the assessee to disclose the turnover in question was deliberate and called for no lenient treatment. An appeal was filed against the order of the Board of Revenue to the Madras High Court. The High Court allowed the appeal so far as the first and third items were concerned. As regards the second item it decided against the assessee.Sec. 12(2) of the Act is in the following terms :"If no return is submitted by the dealer under sub-sec. (1) within the prescribed period, or the return submitted by him appears to the assessing authority to be incomplete or incorrect, the assessing authority shall, after making such enquiry as it may consider necessary, assess the dealer to the best of its judgment :Provided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of proving the correctness or completeness of any return submitted by him".3. The question is whether penalty can be levied while making the assessment under sub-sec. (2) of the above section merely because an incorrect return has been filed. The High Court was of the view that it is only if the assessment has to be made to the best of the judgment of the assessing authority that penalty can be levied. It seems to us that the High Court came to the correct conclusion because sub-secs. (2) and (3) have to be read together. Sub-sec. (2) empowers the assessing authority to assess the dealer to the best of its judgment in two events; (1) if no return has been submitted by the dealer under sub-sec. (1) within the prescribed period and (ii) if the return submitted by him appears to be incomplete. Sub-sec. (3) empowers the assessing authority to levy the penalty only when it makes an assessment under sub-sec. (2). In other words when the assessing authority has made the assessment to the best of its judgment, it can levy a penalty. It is well known that the best judgment assessment has to be on an estimate which the assessing authority has to make not capriciously but on settled and recognised principles of Justice. An element of guess work is bound to be present in best judgment assessment but it must have a reasonable nexus to the available material and the circumstances of each case. (See The State of Kerala vs. C. Velukutty). Where account books are accepted along with other records there can be no ground for making a best judgment assessment.4. In the present case the High Court found that the turnovers involved in the first and the third items were not determined on the basis of any estimate of best judgment. The quantum of turnovers in respect of both these items were based on the assessee’s account books. It has almost been conceded on behalf of the Revenue before us that the determination of the turnovers relating to the aforesaid two items was made from the entries in the books of account of the assessee. The true position, therefore, was that certain items which had not been included in the turnover shown in the returns filed by the assessee were discovered from his own account books and the assessing authority included those items in his total turnover. ### Response: 0

Liquidators of Pursa Limited Vs. Commissioner of Income Tax, Bihar

business even subsequent to the sale of machinery on 7th December, 1943." 7. Although the High Court will not disturb or go behind the finding of fact of the tribunal, it is now well settled that where it is competent for a tribunal to make findings in fact which are excluded from review, the appeal court has always jurisdiction to intervene if it appears either that the tribunal has misunderstood the statutory language - because the proper construction of the statutory language is a matter of law - or that the tribunal has made a finding for which there is no evidence or which is consistent with the evidence and contradictory of it. [See Lord Normand in Commissioners of Inland Revenue v. Fraser (24 Tax Tax. 498 at p. 501.)]. It appears to us that the tribunal misdirected itself in law as to the meaning and import of the relevant provisions of section 10 of the Act. It completely overlooked the fact which is plainly in evidence on the record that the machinery and plant which were sold had not at all been used for the purpose of the business carried on in the accounting year and consequently the second proviso to section 10(2)(vii) could have no application to the sale proceeds of such machinery and plant. In fact the entire decision of the tribunal was vitiated by its failure to keep in view the true meaning and scope of section 10(2)(vii) and cannot, therefore, be supported.It further appears to us that in the statement of the case the tribunal was not merely stating something in the nature of a primary fact but was also drawing a conclusion which is to a certain extent contrary to the primary finding. As is stated clearly in the statement of the case, the decision of the tribunal was based on two considerations. The first consideration was founded on an admission by the liquidators that the company had been carrying on its business up to the date of the sale of the machinery on the 7th December, 1943. This admission is quite consistent with the case that the company was only selling its stock of sugar and not doing any business of manufacture of sugar. Indeed, the manufacturing process does not begin until December of each year and the memorandum of agreement was made on the 7th December, 1943, and possession was delivered to the purchaser on the 10th December 1943. It is nobodys case and it has not been found that the company had manufactured any sugar during the whole of the accounting year. Therefore, this finding that the company carried on its business up to the 7th December, 1943, certainly does not indicate that the company was also carrying on any business of growing sugarcane or manufacturing sugar by the use of the machinery or plant in question. The second finding that the company carried on business even after the sale of the machinery and the plant clearly indicates that business had nothing to do with the machinery or plant. Both the findings, therefore, are inconclusive. The matter, however, does not rest there. It appears to us that the findings of fact, taken literally, cannot support the decision of the tribunal. If, as held by the tribunal, "the sale of the machinery was a part of the applicant companys carrying on of the business" then the sale must be regarded as an ordinary operation of such business and consequently the profits arising out of such ordinary business operation would be assessable under the provisions of section 10(1) and it would not be necessary to have recourse to the statutory fiction created by the second proviso to clause (vii) under which the excess of the sale proceeds over the written down value is to be deemed to be profit of the business. If the profits on the sale of the machinery and plant are to be made assessable under the second proviso, as has been done by the tribunal, then it must be conceded that these deemed profits were not in reality the profits of the business carried on by the company and, therefore, the sale transaction which brought in these profits was not in fact part of the companys business, which conclusion again will be inconsistent with the finding of fact if the business is not understood as limited only to the selling of sugar.For reasons stated above, it appears to us that having misdirected itself in law as to the scope and effect of the relevant portions of sections 10 of the Act the tribunal did not approach the facts from a proper angle and, further, that its findings cannot, in the circumstances of this case, be given such sanctity as would exclude the same from review by the High Court or this court. Turning to the facts to be gathered from the records it is quite clear that the intention of the company was to discontinue its business and the sale of the machinery and plant was a step in the process of the winding up of its business. The sale of the machinery and plant was not an operation in furtherance of the business carried on by the company but was a realisation of its assets in the process of gradual winding up of its business which eventually culminated in the voluntary liquidation of the company. Even if the sale of the stock of sugar be regarded as carrying on of business by the company and not a realisation of its assets with a view to winding up, the machinery or plant not being used during the accounting year at all and in any event not having had any connection with the carrying on of that limited business during the accounting year, section 10(2)(vii) can have no application to the sale of any such machinery or plant. In this view of the matter, the answer to the first question should be in the negative and we answer accordingly. 8.

1[ds]Therefore, it is clear that the tax is payable only in respect of the profits or gains of the business which is carried on by the assessee. Sub-section (2) permits allowances to be made before the taxable profits are ascertained. It is not necessary, for the purposes of the present appeal, to express any opinion on that point on which the High Courts have expressed different views. It is, however, clear that in order to attract the operation of clauses (v), (vi) and (vii) the machinery and plant must be such as were used, in whatever sense that word is taken, at least for a part of the accounting year. If the machinery and plant have not at all been used at any time during the accounting year no allowance can be claimed under clause (vii) in respect of them and the second proviso also does not come into operation. It appears to us that the tribunal misdirected itself in law as to the meaning and import of the relevant provisions of section 10 of the Act. It completely overlooked the fact which is plainly in evidence on the record that the machinery and plant which were sold had not at all been used for the purpose of the business carried on in the accounting year and consequently the second proviso to section 10(2)(vii) could have no application to the sale proceeds of such machinery and plant. In fact the entire decision of the tribunal was vitiated by its failure to keep in view the true meaning and scope of section 10(2)(vii) and cannot, therefore, be supported.It further appears to us that in the statement of the case the tribunal was not merely stating something in the nature of a primary fact but was also drawing a conclusion which is to a certain extent contrary to the primary finding. As is stated clearly in the statement of the case, the decision of the tribunal was based on two considerations. The first consideration was founded on an admission by the liquidators that the company had been carrying on its business up to the date of the sale of the machinery on the 7th December, 1943. This admission is quite consistent with the case that the company was only selling its stock of sugar and not doing any business of manufacture of sugar. Indeed, the manufacturing process does not begin until December of each year and the memorandum of agreement was made on the 7th December, 1943, and possession was delivered to the purchaser on the 10th December 1943. It is nobodys case and it has not been found that the company had manufactured any sugar during the whole of the accounting year. Therefore, this finding that the company carried on its business up to the 7th December, 1943, certainly does not indicate that the company was also carrying on any business of growing sugarcane or manufacturing sugar by the use of the machinery or plant in question. The second finding that the company carried on business even after the sale of the machinery and the plant clearly indicates that business had nothing to do with the machinery or plant. Both the findings, therefore, are inconclusive. The matter, however, does not rest there. It appears to us that the findings of fact, taken literally, cannot support the decision of the tribunal. If, as held by the tribunal, "the sale of the machinery was a part of the applicant companys carrying on of the business" then the sale must be regarded as an ordinary operation of such business and consequently the profits arising out of such ordinary business operation would be assessable under the provisions of section 10(1) and it would not be necessary to have recourse to the statutory fiction created by the second proviso to clause (vii) under which the excess of the sale proceeds over the written down value is to be deemed to be profit of the business. If the profits on the sale of the machinery and plant are to be made assessable under the second proviso, as has been done by the tribunal, then it must be conceded that these deemed profits were not in reality the profits of the business carried on by the company and, therefore, the sale transaction which brought in these profits was not in fact part of the companys business, which conclusion again will be inconsistent with the finding of fact if the business is not understood as limited only to the selling of sugar.For reasons stated above, it appears to us that having misdirected itself in law as to the scope and effect of the relevant portions of sections 10 of the Act the tribunal did not approach the facts from a proper angle and, further, that its findings cannot, in the circumstances of this case, be given such sanctity as would exclude the same from review by the High Court or this court. Turning to the facts to be gathered from the records it is quite clear that the intention of the company was to discontinue its business and the sale of the machinery and plant was a step in the process of the winding up of its business. The sale of the machinery and plant was not an operation in furtherance of the business carried on by the company but was a realisation of its assets in the process of gradual winding up of its business which eventually culminated in the voluntary liquidation of the company. Even if the sale of the stock of sugar be regarded as carrying on of business by the company and not a realisation of its assets with a view to winding up, the machinery or plant not being used during the accounting year at all and in any event not having had any connection with the carrying on of that limited business during the accounting year, section 10(2)(vii) can have no application to the sale of any such machinery or plant. In this view of the matter, the answer to the first question should be in the negative and we answer accordingly.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: business even subsequent to the sale of machinery on 7th December, 1943." 7. Although the High Court will not disturb or go behind the finding of fact of the tribunal, it is now well settled that where it is competent for a tribunal to make findings in fact which are excluded from review, the appeal court has always jurisdiction to intervene if it appears either that the tribunal has misunderstood the statutory language - because the proper construction of the statutory language is a matter of law - or that the tribunal has made a finding for which there is no evidence or which is consistent with the evidence and contradictory of it. [See Lord Normand in Commissioners of Inland Revenue v. Fraser (24 Tax Tax. 498 at p. 501.)]. It appears to us that the tribunal misdirected itself in law as to the meaning and import of the relevant provisions of section 10 of the Act. It completely overlooked the fact which is plainly in evidence on the record that the machinery and plant which were sold had not at all been used for the purpose of the business carried on in the accounting year and consequently the second proviso to section 10(2)(vii) could have no application to the sale proceeds of such machinery and plant. In fact the entire decision of the tribunal was vitiated by its failure to keep in view the true meaning and scope of section 10(2)(vii) and cannot, therefore, be supported.It further appears to us that in the statement of the case the tribunal was not merely stating something in the nature of a primary fact but was also drawing a conclusion which is to a certain extent contrary to the primary finding. As is stated clearly in the statement of the case, the decision of the tribunal was based on two considerations. The first consideration was founded on an admission by the liquidators that the company had been carrying on its business up to the date of the sale of the machinery on the 7th December, 1943. This admission is quite consistent with the case that the company was only selling its stock of sugar and not doing any business of manufacture of sugar. Indeed, the manufacturing process does not begin until December of each year and the memorandum of agreement was made on the 7th December, 1943, and possession was delivered to the purchaser on the 10th December 1943. It is nobodys case and it has not been found that the company had manufactured any sugar during the whole of the accounting year. Therefore, this finding that the company carried on its business up to the 7th December, 1943, certainly does not indicate that the company was also carrying on any business of growing sugarcane or manufacturing sugar by the use of the machinery or plant in question. The second finding that the company carried on business even after the sale of the machinery and the plant clearly indicates that business had nothing to do with the machinery or plant. Both the findings, therefore, are inconclusive. The matter, however, does not rest there. It appears to us that the findings of fact, taken literally, cannot support the decision of the tribunal. If, as held by the tribunal, "the sale of the machinery was a part of the applicant companys carrying on of the business" then the sale must be regarded as an ordinary operation of such business and consequently the profits arising out of such ordinary business operation would be assessable under the provisions of section 10(1) and it would not be necessary to have recourse to the statutory fiction created by the second proviso to clause (vii) under which the excess of the sale proceeds over the written down value is to be deemed to be profit of the business. If the profits on the sale of the machinery and plant are to be made assessable under the second proviso, as has been done by the tribunal, then it must be conceded that these deemed profits were not in reality the profits of the business carried on by the company and, therefore, the sale transaction which brought in these profits was not in fact part of the companys business, which conclusion again will be inconsistent with the finding of fact if the business is not understood as limited only to the selling of sugar.For reasons stated above, it appears to us that having misdirected itself in law as to the scope and effect of the relevant portions of sections 10 of the Act the tribunal did not approach the facts from a proper angle and, further, that its findings cannot, in the circumstances of this case, be given such sanctity as would exclude the same from review by the High Court or this court. Turning to the facts to be gathered from the records it is quite clear that the intention of the company was to discontinue its business and the sale of the machinery and plant was a step in the process of the winding up of its business. The sale of the machinery and plant was not an operation in furtherance of the business carried on by the company but was a realisation of its assets in the process of gradual winding up of its business which eventually culminated in the voluntary liquidation of the company. Even if the sale of the stock of sugar be regarded as carrying on of business by the company and not a realisation of its assets with a view to winding up, the machinery or plant not being used during the accounting year at all and in any event not having had any connection with the carrying on of that limited business during the accounting year, section 10(2)(vii) can have no application to the sale of any such machinery or plant. In this view of the matter, the answer to the first question should be in the negative and we answer accordingly. 8. ### Response: 1

Sarla Performance Fibers Ltd Vs. C.C.E.C.,Vapi

yarn of chapter 50 to 55 but may be distinguished from them by the characteristic of gimped yarn that the core does not itself undergo a twisting with the cover threads. In gimped yarn, the yarn forming the loop is wrapped around the core yarn and is held on place by binder or tie yarn. The manufacture requires two distinct twisting operation after the yarn is first made, it is twisted opposite direction to establish the desired effect. It may have the loops formed by a very soft and slackly twisted yarn. These yarns falls under Chapter Heading 56.06 of the Tariff as special yarns. In view of the above, and in view of the fact that the yarn forming the loop is not wrapped around the core yarn is not held in place by a binder or the tie yarn like in gimped yarn and loops are not formed by twisted yarn. These yarns viz. Polyester/Nylon covered yarn can not fall under Chapter heading 56.06 of the Central Excise Tariff Act, 1985.8. It therefore appears that Air mingled yarns manufactured by M/s. Sarla Polyester Ltd. comprise a Polyester Yarn (Polyester) or Nylon Yarn (Polyamide) air mingled with Lycra/Spandex (polyurethane). The assessee using lycra or spandex as core yarn and covering the same with polyester or nylon yarn, a non elastic multi filament yarn of Polyester/Nylon is fed through an air jet with stretched lycra/spandex. In the air jet, due to compressed air, the filaments of polyester/nylon get intermingled with that of Lycra/Spandex. The resulting yarn would therefore merit classification based on the principle of pre-dominance of textile material used. Since the air mingled yarn contain more polyester or nylon by weight vis-a-vis Lycra/Spandex such yarns merit classification under Chapter Sub Heading No. 5402.61 or 5402.62 as Synthetic Filament Yarn of Nylon or Polyester respectively. This classification is decided by virtue of Section Note 2(A) to section XI covering chapter 50 to 63 of the first schedule to Central Excise Tariff Act, 1985. Since M/s. Sarla Polyester Ltd., Silvassa are having intermingling machinery at their manufacturing unit, they are adopting the intermingling/interlacing process for covering lycra/spandex. Further the unit does not have facility to manufacture spun yarn and cannot manufacture crimped yarn. The unit has the air mingling machinery capable of producing air mingled yarn only. Therefore yarn manufactured by them cannot be classified Crimped Yarn under CH. Heading no.56.06 of CET. The interlaced/intermingled yarn manufactured by undertaking air mingling operation is to be classified by resorting to section note 2(a) to section XI i.e. by principle of pre-dominance of textile material used. The goods manufactured by M/s. Sarla Polyester Ltd. would therefore fall under chapter Heading no.5402.61 and 5402.62 as Nylon and Polyester respectively predominate in weight over lycra/spandex." 14. In nutshell, having regard to the use of Nylon and Lycra in the ratio of 90:10, the classification was proposed on the principle of pre-dominance of textile material used. The Order-in-Original was passed by the Assessing Authority, taking note of the dominance of Polyester or Nylon yarn in the manufacturing of the said product. The Assessing Authority also referred to tests reports from Man Made Textile Research Association (MANTRA) which also supported the version of the Revenue. Contention of the assessees that the product should be covered under Chapter Heading 56.06 was turned down by the Assessing Officer in the following manner: "28. The assessee has claimed the classification of their covering yarn manufactured by way of attachment by applying pressurized air in Air Jet machine under Chapter Sub-heading 56.06 of Central Excise Tariff. Accordingly, on perusal of said entry in Central Excise tariff, it is seen that Chapter Sub-heading No. 56.06 covered gimped yarn, and strop and the like of heading No. 54.04 or 54.05, gimped (other than those of Heading No.56.05 and gimped horse hair); chenille yarn (including flock chenille yarn); lop wale yarn.Since the assessee has claimed polyester and Nylon covering yarn as gimped yarn under Chapter Sub-heading 56.06 of Central Excise Tariff, it may be mentioned here that as per the Explanatory Notes to HSN, Gimped yarn are composed of core, usually of one or more textile yarns, around which other yarns are wound spirally. In gimped yarn, the yarn forming the loop is wrapped around the core yarn and is held in place by binder or tie yarn. However as per the test report of MANTRA, Surat, which has not been challenged or disputed by the assessee, the polyester or Nylon yarn did not wound spirally and even did not wrapped around the Lycra/Spandex (elastoemeric) yarn or it was not held in place by a binder or tie yarn. It was merely attached with each other due to pressurized air by way of technique of intermingling. Therefore the yarns in question cannot be said to be composed of core of yarns. And as such it is not gimped yarn." 15. The Appellate Authority while affirming the order of the Assessing Officer also referred to Rule 3(a) of the Rules of Interpretation as per which the heading which provides the most specific description is to be preferred to the heading providing a more general description. The Tribunal has revisited the entire issue taking into consideration all the aspects of the matter and in the light of tests reports of MANTRA, affirmed the findings of the Authorities below that the products manufactured by assessees are nothing but air mingled yarn and, therefore, cannot be classified under Chapter No. 56 in view of the fact that it does not contain a core around which another yarn has been woven. Thus, a categorical finding is arrived at that the core does not itself undergo twisting with covered threads. On the basis of the aforesaid concurrent finding of the Authorities below rejecting the contentions of the assessees that the product in question was a gimped yarn, supported with cogent and valid reasons, we do not find any merit in any of the contentions raised by the appellants before us.

0[ds]13. At the outset, it may be pointed out that there is no dispute that two yarns are used in the manufacture of the product, namely, Nylon and Lycra. At the same time, however, it is also an admitted fact that in Polyester Covered Yarn, the percentage of Lycra is only nine to ten and it is Polyester/Nylon which isused ranging from 91% to 93%. Taking note of these facts and definition of gimped yarn in Explanation (A) to Chapter Heading 56.00 under Section XI of Explanatory note to HSN, it was stated in the show cause notice that the product could not be treated as gimped yarn.In nutshell, having regard to the use of Nylon and Lycra in the ratio of 90:10, the classification was proposed on the principle ofof textile material used. Thewas passed by the Assessing Authority, taking note of the dominance of Polyester or Nylon yarn in the manufacturing of the said product. The Assessing Authority also referred to tests reports from Man Made Textile Research Association (MANTRA) which also supported the version of the Revenue.The Appellate Authority while affirming the order of the Assessing Officer also referred to Rule 3(a) of the Rules of Interpretation as per which the heading which provides the most specific description is to be preferred to the heading providing a more general description. The Tribunal has revisited the entire issue taking into consideration all the aspects of the matter and in the light of tests reports of MANTRA, affirmed the findings of the Authorities below that the products manufactured by assessees are nothing but air mingled yarn and, therefore, cannot be classified under Chapter No. 56 in view of the fact that it does not contain a core around which another yarn has been woven. Thus, a categorical finding is arrived at that the core does not itself undergo twisting with covered threads. On the basis of the aforesaid concurrent finding of the Authorities below rejecting the contentions of the assessees that the product in question was a gimped yarn, supported with cogent and valid reasons, we do not find any merit in any of the contentions raised by the appellants before

### 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: yarn of chapter 50 to 55 but may be distinguished from them by the characteristic of gimped yarn that the core does not itself undergo a twisting with the cover threads. In gimped yarn, the yarn forming the loop is wrapped around the core yarn and is held on place by binder or tie yarn. The manufacture requires two distinct twisting operation after the yarn is first made, it is twisted opposite direction to establish the desired effect. It may have the loops formed by a very soft and slackly twisted yarn. These yarns falls under Chapter Heading 56.06 of the Tariff as special yarns. In view of the above, and in view of the fact that the yarn forming the loop is not wrapped around the core yarn is not held in place by a binder or the tie yarn like in gimped yarn and loops are not formed by twisted yarn. These yarns viz. Polyester/Nylon covered yarn can not fall under Chapter heading 56.06 of the Central Excise Tariff Act, 1985.8. It therefore appears that Air mingled yarns manufactured by M/s. Sarla Polyester Ltd. comprise a Polyester Yarn (Polyester) or Nylon Yarn (Polyamide) air mingled with Lycra/Spandex (polyurethane). The assessee using lycra or spandex as core yarn and covering the same with polyester or nylon yarn, a non elastic multi filament yarn of Polyester/Nylon is fed through an air jet with stretched lycra/spandex. In the air jet, due to compressed air, the filaments of polyester/nylon get intermingled with that of Lycra/Spandex. The resulting yarn would therefore merit classification based on the principle of pre-dominance of textile material used. Since the air mingled yarn contain more polyester or nylon by weight vis-a-vis Lycra/Spandex such yarns merit classification under Chapter Sub Heading No. 5402.61 or 5402.62 as Synthetic Filament Yarn of Nylon or Polyester respectively. This classification is decided by virtue of Section Note 2(A) to section XI covering chapter 50 to 63 of the first schedule to Central Excise Tariff Act, 1985. Since M/s. Sarla Polyester Ltd., Silvassa are having intermingling machinery at their manufacturing unit, they are adopting the intermingling/interlacing process for covering lycra/spandex. Further the unit does not have facility to manufacture spun yarn and cannot manufacture crimped yarn. The unit has the air mingling machinery capable of producing air mingled yarn only. Therefore yarn manufactured by them cannot be classified Crimped Yarn under CH. Heading no.56.06 of CET. The interlaced/intermingled yarn manufactured by undertaking air mingling operation is to be classified by resorting to section note 2(a) to section XI i.e. by principle of pre-dominance of textile material used. The goods manufactured by M/s. Sarla Polyester Ltd. would therefore fall under chapter Heading no.5402.61 and 5402.62 as Nylon and Polyester respectively predominate in weight over lycra/spandex." 14. In nutshell, having regard to the use of Nylon and Lycra in the ratio of 90:10, the classification was proposed on the principle of pre-dominance of textile material used. The Order-in-Original was passed by the Assessing Authority, taking note of the dominance of Polyester or Nylon yarn in the manufacturing of the said product. The Assessing Authority also referred to tests reports from Man Made Textile Research Association (MANTRA) which also supported the version of the Revenue. Contention of the assessees that the product should be covered under Chapter Heading 56.06 was turned down by the Assessing Officer in the following manner: "28. The assessee has claimed the classification of their covering yarn manufactured by way of attachment by applying pressurized air in Air Jet machine under Chapter Sub-heading 56.06 of Central Excise Tariff. Accordingly, on perusal of said entry in Central Excise tariff, it is seen that Chapter Sub-heading No. 56.06 covered gimped yarn, and strop and the like of heading No. 54.04 or 54.05, gimped (other than those of Heading No.56.05 and gimped horse hair); chenille yarn (including flock chenille yarn); lop wale yarn.Since the assessee has claimed polyester and Nylon covering yarn as gimped yarn under Chapter Sub-heading 56.06 of Central Excise Tariff, it may be mentioned here that as per the Explanatory Notes to HSN, Gimped yarn are composed of core, usually of one or more textile yarns, around which other yarns are wound spirally. In gimped yarn, the yarn forming the loop is wrapped around the core yarn and is held in place by binder or tie yarn. However as per the test report of MANTRA, Surat, which has not been challenged or disputed by the assessee, the polyester or Nylon yarn did not wound spirally and even did not wrapped around the Lycra/Spandex (elastoemeric) yarn or it was not held in place by a binder or tie yarn. It was merely attached with each other due to pressurized air by way of technique of intermingling. Therefore the yarns in question cannot be said to be composed of core of yarns. And as such it is not gimped yarn." 15. The Appellate Authority while affirming the order of the Assessing Officer also referred to Rule 3(a) of the Rules of Interpretation as per which the heading which provides the most specific description is to be preferred to the heading providing a more general description. The Tribunal has revisited the entire issue taking into consideration all the aspects of the matter and in the light of tests reports of MANTRA, affirmed the findings of the Authorities below that the products manufactured by assessees are nothing but air mingled yarn and, therefore, cannot be classified under Chapter No. 56 in view of the fact that it does not contain a core around which another yarn has been woven. Thus, a categorical finding is arrived at that the core does not itself undergo twisting with covered threads. On the basis of the aforesaid concurrent finding of the Authorities below rejecting the contentions of the assessees that the product in question was a gimped yarn, supported with cogent and valid reasons, we do not find any merit in any of the contentions raised by the appellants before us. ### Response: 0

Krishan Chander Nayar Vs. The Chairman, Central Tractororganisation And Others

would not be desirable to reinstate him."The careless and irresponsible way in which the affidavit has been drawn up is further illustrated by the following statement in paragraph 13 of the affidavit :"Referring to paragraph 11 of the petition it is submitted that the petitioner is not entitled to move this Honble Court under Art. 32 of the Constitution after his application for special leave before this Honble Court from the judgment of the Punjab High Court, Circuit Bench, was dismissed on the 26th of April, 1957, and the order passed by this Honble Court dismissing the said special leave petition on the 26th of April, 1957 is final between the parties and should be treated as res-judicata against the present application."This is reiterated in paragraph 23, which runs as follows:"Referring to grounds 10 and 11 of the said petition, I say that there is no fundamental right in the petitioner to move an application before this Honble Court as he has sought to do. The petitioner has already exhausted all his remedies and this Honble Court was also pleased to dismiss his application for special leave and as such it is submitted that the present application is wholly misconceived and should be dismissed with costs."It is clear that the averments, quoted above, are intended to convey the idea that this Court dealt with an application for special leave to appeal from the judgment of the Punjab High Court, Circuit Bench, and dismissed the same by its order dated April 26, 1957. As a matter of fact, there was no such special leave application filed in this Court, and, therefore, there is no foundation, in fact, for that averment, what appears to have happened is that the High Court refused to grant the necessary certificate when it was moved to certify that that was a fit case for appeal to this Court. It is manifest, therefore, that the person responsible for drawing up the affidavit was either negligent or ignorant. Such remissness cannot readily be passed over. Those who are charged with the duty and responsibility of drawing up affidavits to be used in this Court have got to be circumspect and should not make statements and re-emphasize them when there is no basis, in fact, for such statements.4. As already indicated, the affidavit, in answer to the petitioners case, is unnecessarily verbose. But it does not suffer only from that infirmity; it is also misleading and disingenuous. Though the petitioner had pointedly drawn attention to the ban contained in Annexure D quoted above, and that, indeed, was his main grievance against the respondents, the affidavit in answer to the petition, does not make any reference to Annexure D and, ignoring it, purports not to admit that the respondents had put a ban on the petitioner being taken into Government service. The answer of the respondents is, in effect, that the petitioner has not been deprived of his right to apply for a post under the Government, though so long as the ban is there, any application by the petitioner for employment under the Government is bound to be ignored. In spite of the denial on behalf of the respondents that there was no ban against the petitioners employment under the Government, the fact of the matter is that the petitioner is under a ban in the matter of employment under the Government, and that so long as the ban continues, he cannot be considered by any Government department for any post for which he may make an application, and for which he may be found qualified. If the affidavit on behalf of the respondents had clearly indicated the nature of the ban and the justification therefor, the Court would have been in a better position in deciding the question whether or not the petitioner had any substantial grounds for complaining against the treatment meted out to him. A person who has once been employed under the Government, and whose services have been terminated by reason of his antecedents, may or may not stand on an equal footing with other candidates not under such a ban. Of course, the ban imposed by Government should have a reasonable basis and must have some relation to his suitability for employment or appointment to an office. But an arbitrary imposition of a ban against the employment of a certain person, under the Government would certainly amount to denial of right of equal opportunity of employment, guaranteed under Art. 16(1) of the Constitution. In the instant case, the affidavit filed on behalf of the respondents does not indicate the nature of the ban, and whatever may have been the nature of the ban, there does not appear to have been any proceeding taken against the petitioner giving him the opportunity of showing cause against the action proposed to be taken against him. We are, therefore, not in a position to say that the reason for the ban, whatever its nature, had a just relation to the question of his suitability for employment or appointment under the Government.5. It is clear, therefore, that the petitioner has been deprived of his constitutional right of equality of opportunity in matters of employment or appointment to any office under the State, contained in Art. 16(1) of the Constitution. So long as the ban subsists, any application made by the petitioner for employment under the State is bound to be treated as waste-paper. The fundamental right; guaranteed by the Constitution is not only to make an application for a post under the Government but the further right to be considered on merits for the post for which an application has been made. Of course, the right does not extend to being actually appointed to the post for which an application may have been made. The ban complained of apparently is against his being considered on merits. It is a ban which deprives him of that guaranteed right. The inference is clear that the petitioner has not been fairly treated.

1[ds]It is clear that the averments, quoted above, are intended to convey the idea that this Court dealt with an application for special leave to appeal from the judgment of the Punjab High Court, Circuit Bench, and dismissed the same by its order dated April 26, 1957. As a matter of fact, there was no such special leave application filed in this Court, and, therefore, there is no foundation, in fact, for that averment, what appears to have happened is that the High Court refused to grant the necessary certificate when it was moved to certify that that was a fit case for appeal to this Court. It is manifest, therefore, that the person responsible for drawing up the affidavit was either negligent or ignorant. Such remissness cannot readily be passed over. Those who are charged with the duty and responsibility of drawing up affidavits to be used in this Court have got to be circumspect and should not make statements and re-emphasize them when there is no basis, in fact, for such statements.4. As already indicated, the affidavit, in answer to the petitioners case, is unnecessarily verbose. But it does not suffer only from that infirmity; it is also misleading and disingenuous. Though the petitioner had pointedly drawn attention to the ban contained in Annexure D quoted above, and that, indeed, was his main grievance against the respondents, the affidavit in answer to the petition, does not make any reference to Annexure D and, ignoring it, purports not to admit that the respondents had put a ban on the petitioner being taken into Government service. The answer of the respondents is, in effect, that the petitioner has not been deprived of his right to apply for a post under the Government, though so long as the ban is there, any application by the petitioner for employment under the Government is bound to be ignored. In spite of the denial on behalf of the respondents that there was no ban against the petitioners employment under the Government, the fact of the matter is that the petitioner is under a ban in the matter of employment under the Government, and that so long as the ban continues, he cannot be considered by any Government department for any post for which he may make an application, and for which he may be found qualified. If the affidavit on behalf of the respondents had clearly indicated the nature of the ban and the justification therefor, the Court would have been in a better position in deciding the question whether or not the petitioner had any substantial grounds for complaining against the treatment meted out to him. A person who has once been employed under the Government, and whose services have been terminated by reason of his antecedents, may or may not stand on an equal footing with other candidates not under such a ban. Of course, the ban imposed by Government should have a reasonable basis and must have some relation to his suitability for employment or appointment to an office. But an arbitrary imposition of a ban against the employment of a certain person, under the Government would certainly amount to denial of right of equal opportunity of employment, guaranteed under Art. 16(1) of the Constitution. In the instant case, the affidavit filed on behalf of the respondents does not indicate the nature of the ban, and whatever may have been the nature of the ban, there does not appear to have been any proceeding taken against the petitioner giving him the opportunity of showing cause against the action proposed to be taken against him. We are, therefore, not in a position to say that the reason for the ban, whatever its nature, had a just relation to the question of his suitability for employment or appointment under the Government.5. It is clear, therefore, that the petitioner has been deprived of his constitutional right of equality of opportunity in matters of employment or appointment to any office under the State, contained in Art. 16(1) of the Constitution. So long as the ban subsists, any application made by the petitioner for employment under the State is bound to be treated as waste-paper. The fundamental right; guaranteed by the Constitution is not only to make an application for a post under the Government but the further right to be considered on merits for the post for which an application has been made. Of course, the right does not extend to being actually appointed to the post for which an application may have been made. The ban complained of apparently is against his being considered on merits. It is a ban which deprives him of that guaranteed right. The inference is clear that the petitioner has not been fairly treated.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: would not be desirable to reinstate him."The careless and irresponsible way in which the affidavit has been drawn up is further illustrated by the following statement in paragraph 13 of the affidavit :"Referring to paragraph 11 of the petition it is submitted that the petitioner is not entitled to move this Honble Court under Art. 32 of the Constitution after his application for special leave before this Honble Court from the judgment of the Punjab High Court, Circuit Bench, was dismissed on the 26th of April, 1957, and the order passed by this Honble Court dismissing the said special leave petition on the 26th of April, 1957 is final between the parties and should be treated as res-judicata against the present application."This is reiterated in paragraph 23, which runs as follows:"Referring to grounds 10 and 11 of the said petition, I say that there is no fundamental right in the petitioner to move an application before this Honble Court as he has sought to do. The petitioner has already exhausted all his remedies and this Honble Court was also pleased to dismiss his application for special leave and as such it is submitted that the present application is wholly misconceived and should be dismissed with costs."It is clear that the averments, quoted above, are intended to convey the idea that this Court dealt with an application for special leave to appeal from the judgment of the Punjab High Court, Circuit Bench, and dismissed the same by its order dated April 26, 1957. As a matter of fact, there was no such special leave application filed in this Court, and, therefore, there is no foundation, in fact, for that averment, what appears to have happened is that the High Court refused to grant the necessary certificate when it was moved to certify that that was a fit case for appeal to this Court. It is manifest, therefore, that the person responsible for drawing up the affidavit was either negligent or ignorant. Such remissness cannot readily be passed over. Those who are charged with the duty and responsibility of drawing up affidavits to be used in this Court have got to be circumspect and should not make statements and re-emphasize them when there is no basis, in fact, for such statements.4. As already indicated, the affidavit, in answer to the petitioners case, is unnecessarily verbose. But it does not suffer only from that infirmity; it is also misleading and disingenuous. Though the petitioner had pointedly drawn attention to the ban contained in Annexure D quoted above, and that, indeed, was his main grievance against the respondents, the affidavit in answer to the petition, does not make any reference to Annexure D and, ignoring it, purports not to admit that the respondents had put a ban on the petitioner being taken into Government service. The answer of the respondents is, in effect, that the petitioner has not been deprived of his right to apply for a post under the Government, though so long as the ban is there, any application by the petitioner for employment under the Government is bound to be ignored. In spite of the denial on behalf of the respondents that there was no ban against the petitioners employment under the Government, the fact of the matter is that the petitioner is under a ban in the matter of employment under the Government, and that so long as the ban continues, he cannot be considered by any Government department for any post for which he may make an application, and for which he may be found qualified. If the affidavit on behalf of the respondents had clearly indicated the nature of the ban and the justification therefor, the Court would have been in a better position in deciding the question whether or not the petitioner had any substantial grounds for complaining against the treatment meted out to him. A person who has once been employed under the Government, and whose services have been terminated by reason of his antecedents, may or may not stand on an equal footing with other candidates not under such a ban. Of course, the ban imposed by Government should have a reasonable basis and must have some relation to his suitability for employment or appointment to an office. But an arbitrary imposition of a ban against the employment of a certain person, under the Government would certainly amount to denial of right of equal opportunity of employment, guaranteed under Art. 16(1) of the Constitution. In the instant case, the affidavit filed on behalf of the respondents does not indicate the nature of the ban, and whatever may have been the nature of the ban, there does not appear to have been any proceeding taken against the petitioner giving him the opportunity of showing cause against the action proposed to be taken against him. We are, therefore, not in a position to say that the reason for the ban, whatever its nature, had a just relation to the question of his suitability for employment or appointment under the Government.5. It is clear, therefore, that the petitioner has been deprived of his constitutional right of equality of opportunity in matters of employment or appointment to any office under the State, contained in Art. 16(1) of the Constitution. So long as the ban subsists, any application made by the petitioner for employment under the State is bound to be treated as waste-paper. The fundamental right; guaranteed by the Constitution is not only to make an application for a post under the Government but the further right to be considered on merits for the post for which an application has been made. Of course, the right does not extend to being actually appointed to the post for which an application may have been made. The ban complained of apparently is against his being considered on merits. It is a ban which deprives him of that guaranteed right. The inference is clear that the petitioner has not been fairly treated. ### Response: 1

Kailash Prasad Kanodia and Another Vs. State of Bihar

FAZAL ALI, J. In this appeal by special leave, which is directed against the judgment of the Patna High Court, appellant 1, Kailash Prasad Kanodia has been convicted under Section 302 and sentenced to imprisonment for life. Appellant 2, Gatru Mal Kanodia has been convicted under Section 326 and has been sentenced to three years RI. A detailed narrative of the prosecution case is to be found in the judgment of the High Court and it is not necessary for us to repeat the same all over again. 2. The High Court as well as the Sessions Judge have accepted the prosecution case and have affirmed the conviction of the appellants as indicated above. The only point that was urged before us by Mr. Mukherjee and Mr. Kohli appearing for the appellants, was that the entire case must fail because the statements recorded by the Officer-in-Charge D. P. Sharma (PW 19) on a rough piece of paper were not made available to the appellant at the trial which has caused serious prejudice to them. The High Court as well as the Sessions Judge considered this aspect of the matter and found that this infirmity was not sufficient to vitiate the trial. The prosecution has examined PWs. 4, 7, 10 and 12 the eyewitness of the occurrence. So far as PW 12 is concerned, he was the informant and lodged the FIR within minutes of the occurrence at the police station which is about 200 yard away from the place of occurrence. So far as the said eyewitnesses are concerned, there is no doubt that PW D. P. Sharma himself admitted that when he arrived at the place of occurrence, he recorded the statements of eyewitnesses but did not make part of the diary. This was a serious lapse on his part resulting in his immediate suspension followed by a department enquiry. It was contended by Mr. Mukherjee that if the earlier statements would have been available to the appellant, they would have shown that the true version of the occurrence was not presented before the court. Even so, we have excluded the evidence of the other eyewitnesses excepting PWs 7 and 12 and we find that there was ample evidence on record to justify the conviction of the appellants. PW 12 has clearly stated in the FIR that his father was assaulted with a bhala on the chest by the first appellant and his brother was given a blow by the second appellant. His evidence is fully corroborated by the evidence of PW 7 Bishwanath and the medical evidence fully supports his testimony. To some extent the evidence of these two witnesses is further supported by Shyam Lal Kanodia PW 2 who had also reached the police station soon after the FIR was lodged. In this view of the matter, the judgment of the courts below can be fully supported on the evidence of these witnesses even assuming that the comments made by the learned counsel for the appellants against the prosecution are correct. We have ourselves perused the statements of the two witnesses PWs 7 and 12 and are fully convinced that their testimony bears a ring of truth and is worthy of credence. 3. The next point argued by Mr. Kohli is that so far as the second appellant is concerned, the charge under Section 326 has not been proved. It appears from the medical evidence that PW Bishwanath did not sustain any grievous injury. He has not received any serious injuries on any vital part of the body. The doctor admits that he did not find any fracture of a serious nature. In these circumstances, we are satisfied that the charge under Section 326 must necessarily fail but the appellant 2 cannot escape conviction under Section 324, IPC as that has been fully proved. Having regard to the peculiar facts circumstances of this case, we do not think that this is a fit case in which the second appellant should be convicted and awarded jail sentence. We, therefore, set aside the sentence of imprisonment passed under Section 326 and convict the second appellant under Section 324 and impose a fine of Rs. 2000 in default one months RI. Out of the fine if realized the entire amount will be paid to PW Bishwanath as compensation. Two months time is allowed for the amount to be paid as fine.

0[ds]3. The next point argued by Mr. Kohli is that so far as the second appellant is concerned, the charge under Section 326 has not been proved. It appears from the medical evidence that PW Bishwanath did not sustain any grievous injury. He has not received any serious injuries on any vital part of the body. The doctor admits that he did not find any fracture of a serious nature. In these circumstances, we are satisfied that the charge under Section 326 must necessarily fail but the appellant 2 cannot escape conviction under Section 324, IPC as that has been fully proved. Having regard to the peculiar facts circumstances of this case, we do not think that this is a fit case in which the second appellant should be convicted and awarded jail sentence. We, therefore, set aside the sentence of imprisonment passed under Section 326 and convict the second appellant under Section 324 and impose a fine of Rs. 2000 in default one months RI. Out of the fine if realized the entire amount will be paid to PW Bishwanath as compensation. Two months time is allowed for the amount to be paid as fine.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: FAZAL ALI, J. In this appeal by special leave, which is directed against the judgment of the Patna High Court, appellant 1, Kailash Prasad Kanodia has been convicted under Section 302 and sentenced to imprisonment for life. Appellant 2, Gatru Mal Kanodia has been convicted under Section 326 and has been sentenced to three years RI. A detailed narrative of the prosecution case is to be found in the judgment of the High Court and it is not necessary for us to repeat the same all over again. 2. The High Court as well as the Sessions Judge have accepted the prosecution case and have affirmed the conviction of the appellants as indicated above. The only point that was urged before us by Mr. Mukherjee and Mr. Kohli appearing for the appellants, was that the entire case must fail because the statements recorded by the Officer-in-Charge D. P. Sharma (PW 19) on a rough piece of paper were not made available to the appellant at the trial which has caused serious prejudice to them. The High Court as well as the Sessions Judge considered this aspect of the matter and found that this infirmity was not sufficient to vitiate the trial. The prosecution has examined PWs. 4, 7, 10 and 12 the eyewitness of the occurrence. So far as PW 12 is concerned, he was the informant and lodged the FIR within minutes of the occurrence at the police station which is about 200 yard away from the place of occurrence. So far as the said eyewitnesses are concerned, there is no doubt that PW D. P. Sharma himself admitted that when he arrived at the place of occurrence, he recorded the statements of eyewitnesses but did not make part of the diary. This was a serious lapse on his part resulting in his immediate suspension followed by a department enquiry. It was contended by Mr. Mukherjee that if the earlier statements would have been available to the appellant, they would have shown that the true version of the occurrence was not presented before the court. Even so, we have excluded the evidence of the other eyewitnesses excepting PWs 7 and 12 and we find that there was ample evidence on record to justify the conviction of the appellants. PW 12 has clearly stated in the FIR that his father was assaulted with a bhala on the chest by the first appellant and his brother was given a blow by the second appellant. His evidence is fully corroborated by the evidence of PW 7 Bishwanath and the medical evidence fully supports his testimony. To some extent the evidence of these two witnesses is further supported by Shyam Lal Kanodia PW 2 who had also reached the police station soon after the FIR was lodged. In this view of the matter, the judgment of the courts below can be fully supported on the evidence of these witnesses even assuming that the comments made by the learned counsel for the appellants against the prosecution are correct. We have ourselves perused the statements of the two witnesses PWs 7 and 12 and are fully convinced that their testimony bears a ring of truth and is worthy of credence. 3. The next point argued by Mr. Kohli is that so far as the second appellant is concerned, the charge under Section 326 has not been proved. It appears from the medical evidence that PW Bishwanath did not sustain any grievous injury. He has not received any serious injuries on any vital part of the body. The doctor admits that he did not find any fracture of a serious nature. In these circumstances, we are satisfied that the charge under Section 326 must necessarily fail but the appellant 2 cannot escape conviction under Section 324, IPC as that has been fully proved. Having regard to the peculiar facts circumstances of this case, we do not think that this is a fit case in which the second appellant should be convicted and awarded jail sentence. We, therefore, set aside the sentence of imprisonment passed under Section 326 and convict the second appellant under Section 324 and impose a fine of Rs. 2000 in default one months RI. Out of the fine if realized the entire amount will be paid to PW Bishwanath as compensation. Two months time is allowed for the amount to be paid as fine. ### Response: 0

The State of Bihar and Ors Vs. Deo Kumar Singh and Ors

1. The Petitioner-State of Bihar filed an appeal against the order of the learned Single Judge before the Division Bench after a delay of 367 days. The Division Bench dismissed the application for condonation of delay on the ground that there was no sufficient cause shown for condonation of delay. It is thereafter with a delay of 728 days that the special leave petition has been filed. The reason given for seeking condonation of this extraordinary 728 days delay is as under:2. that the Petitioner State is filing the present special leave petition after obtaining all the sanctions from the respective departments and took time to receive the affidavit and vakalatnama from the concerned department, hence there is delay in filing the present matter.2. We are of the view that a clear signal has to sent to the Government Authorities that they cannot approach the Court as and when they please, on account of gross incompetence of their officers and that too without taking any action against the concerned officers. No detail of this delay of 728 days have been given as if there is an inherent right to seek condonation of delay by State Government. The law of limitation apparently does not apply to the State Government according to its conduct.3. That such condonation of delay is no more admissible on the pretext of Government working lethargy is clear from the judgment of this Court in The Chief Post Master General v. Living Media India Ltd. 2012 (3) SCC 563.

0[ds]2. We are of the view that a clear signal has to sent to the Government Authorities that they cannot approach the Court as and when they please, on account of gross incompetence of their officers and that too without taking any action against the concerned officers. No detail of this delay of 728 days have been given as if there is an inherent right to seek condonation of delay by State Government. The law of limitation apparently does not apply to the State Government according to its conduct.That such condonation of delay is no more admissible on the pretext of Government working lethargy is clear from the judgment of this Court in The Chief Post Master General v. Living Media India Ltd. 2012 (3) SCC 563.

### Instruction: Assess the case proceedings and provide a prediction: is the court likely to rule in favor of (1) or against (0) the appellant/petitioner? ### Input: 1. The Petitioner-State of Bihar filed an appeal against the order of the learned Single Judge before the Division Bench after a delay of 367 days. The Division Bench dismissed the application for condonation of delay on the ground that there was no sufficient cause shown for condonation of delay. It is thereafter with a delay of 728 days that the special leave petition has been filed. The reason given for seeking condonation of this extraordinary 728 days delay is as under:2. that the Petitioner State is filing the present special leave petition after obtaining all the sanctions from the respective departments and took time to receive the affidavit and vakalatnama from the concerned department, hence there is delay in filing the present matter.2. We are of the view that a clear signal has to sent to the Government Authorities that they cannot approach the Court as and when they please, on account of gross incompetence of their officers and that too without taking any action against the concerned officers. No detail of this delay of 728 days have been given as if there is an inherent right to seek condonation of delay by State Government. The law of limitation apparently does not apply to the State Government according to its conduct.3. That such condonation of delay is no more admissible on the pretext of Government working lethargy is clear from the judgment of this Court in The Chief Post Master General v. Living Media India Ltd. 2012 (3) SCC 563. ### Response: 0

Dharam Chand Jain Vs. The State Of Bihar

dated February 17, 1968 against which the present appeal by special leave has been preferred before us.The facts mentioned above are proved from the various annexures filed by the appellant along with the special leave and printed in the Paper Book and consist of various orders passed by the Central and State Governments, the correspondence between the State Government and the Central Government, the note-sheets and summary of facts made by the concerned Ministry etc. The learned counsel for the respondent has not at all disputed the correctness of the contents of these documents.5. It seems to us that the Central Government has not disposed of the revision application in accordance with law. To begin with, the Central Government had expressly directed the State Government to dispose of the application of the appellant by its order dated March 24, 1962, on the first re vision application filed by the appellant. Due to the continued inaction of the State Government, the second revision application was filed before the Central Government which was also allowed on November 21, 1964 and the State Government was given clear directions to grant the lease to the appellant. In view of this order it was not open to the State Government to reject the application of the appellant on any ground whatsoever. If the State Government found itself unable to implement the order of the Central Government a reference could have been made to the Central Government for obtaining necessary directions. Ultimately the order of the Central Government culminated into the grant of a licence in favour of the appellant after he had selected a compact block. Thereafter the State Government instead of implementing this order took the stand that they had devised a policy to grant leases only to those persons who were prepared to set up a cement plant. Subsequently this policy was also given a go by and the State Government rejected the application of the appellant on the ground that the land was the subject-matter of a litigation. This led to the last revision filed by the appellant before the Central Government. The Central Government, after calling for the comments of the State Government, appears to have upheld the order of the State Government rejecting the application. In doing so, the Central Government overlooked the fact that it had already directed by its order dated November 21, 1964 that the State Government should grant the mining lease to the appellant in respect of a compact block selected by the appellant. The State Government, being a sub ordinate authority in the matter of grant of mining lease, was obligated under the law to carry out the orders of the Central Government as indicated above. But the State Government declined to do so on the ground that it had laid down a policy that the mining leases in respect of the area should be given only to those who were prepared to set up a cement factory. It was clearly not open to the State Government to decline to carry out the orders of the Central Government on this ground, particularly because the Central Government was a tribunal superior to the State Government. If a ground came into existence subsequent to the making of the order of the Central Government which warranted a reconsideration of the order of the Central Government as indicated above, the State Government could have brought this ground to the notice of the Central Government. However, one thing is manifestly clear that the State Government could not have refused to implement the order of the Central Government unless the Central Government itself chose to revise it either on a reference by the State Government or suo motu. In fact to take the view that the State Government could decline to carry out the order of the Central Government on some ground which it thinks proper would be subversive of judicial discipline. Therefore, when the appellant preferred a revision application to the Central Government against the refusal of the State Government to carry out the order of the Central Government by rejecting his application, the Central Government should have proceeded to set aside the order of the State Government and directed the State Government to grant the application of the appellant. Instead of doing this, the Central Government again appears to have entered into the merits of the question as if its earlier order was not in existence at all and sustained the rejection of the application of the appellant on the ground that t he area in question was the subject-matter of the title suit in the Court of Hazaribagh, even though the appellant had pointed out to the Central Government that the injunction issued by the Court regarding the premises in dispute had been vacated. Even assuming for the sake of argument that the Central Government could revise its earlier order, and putting the case of the Central Government at its highest, this could be done only if some fresh ground came into existence which warranted reconsideration of the earlier order. The fact that there was a litigation pending in the Hazaribagh Court in respect of the area in question was neither a new or a fresh fact which came into existence for the first time after the order was made by the Central Government directing the State Government to grant the licence to the appellant. The litigation was pending since 1954 and the Central Government was aware of this fact even when it passed its order dated November 21, 1964. In these circumstances, therefore, there was absolutely no legal justification at all for the Central Government to go back upon its earlier order. The earlier order of the Central Government stood unvaried and unvacated and the State Government was bound to implement it and, therefore, the Central Government was in error in upholding the action of the State Government rejecting the revision application filed by the appellant and thus silently condoned the lapse committed by the State Government.

1[ds]It seems to us that the Central Government has not disposed of the revision application in accordance with law. To begin with, the Central Government had expressly directed the State Government to dispose of the application of the appellant by its order dated March 24, 1962, on the first re vision application filed by the appellant. Due to the continued inaction of the State Government, the second revision application was filed before the Central Government which was also allowed on November 21, 1964 and the State Government was given clear directions to grant the lease to the appellant. In view of this order it was not open to the State Government to reject the application of the appellant on any ground whatsoever. If the State Government found itself unable to implement the order of the Central Government a reference could have been made to the Central Government for obtaining necessary directions. Ultimately the order of the Central Government culminated into the grant of a licence in favour of the appellant after he had selected a compact block. Thereafter the State Government instead of implementing this order took the stand that they had devised a policy to grant leases only to those persons who were prepared to set up a cement plant. Subsequently this policy was also given a go by and the State Government rejected the application of the appellant on the ground that the land was the subject-matter of a litigation. This led to the last revision filed by the appellant before the Central Government. The Central Government, after calling for the comments of the State Government, appears to have upheld the order of the State Government rejecting the application. In doing so, the Central Government overlooked the fact that it had already directed by its order dated November 21, 1964 that the State Government should grant the mining lease to the appellant in respect of a compact block selected by the appellant. The State Government, being a sub ordinate authority in the matter of grant of mining lease, was obligated under the law to carry out the orders of the Central Government as indicated above. But the State Government declined to do so on the ground that it had laid down a policy that the mining leases in respect of the area should be given only to those who were prepared to set up a cement factory. It was clearly not open to the State Government to decline to carry out the orders of the Central Government on this ground, particularly because the Central Government was a tribunal superior to the State Government. If a ground came into existence subsequent to the making of the order of the Central Government which warranted a reconsideration of the order of the Central Government as indicated above, the State Government could have brought this ground to the notice of the Central Government. However, one thing is manifestly clear that the State Government could not have refused to implement the order of the Central Government unless the Central Government itself chose to revise it either on a reference by the State Government or suo motu. In fact to take the view that the State Government could decline to carry out the order of the Central Government on some ground which it thinks proper would be subversive of judicial discipline. Therefore, when the appellant preferred a revision application to the Central Government against the refusal of the State Government to carry out the order of the Central Government by rejecting his application, the Central Government should have proceeded to set aside the order of the State Government and directed the State Government to grant the application of the appellant. Instead of doing this, the Central Government again appears to have entered into the merits of the question as if its earlier order was not in existence at all and sustained the rejection of the application of the appellant on the ground that t he area in question was the subject-matter of the title suit in the Court of Hazaribagh, even though the appellant had pointed out to the Central Government that the injunction issued by the Court regarding the premises in dispute had been vacated. Even assuming for the sake of argument that the Central Government could revise its earlier order, and putting the case of the Central Government at its highest, this could be done only if some fresh ground came into existence which warranted reconsideration of the earlier order. The fact that there was a litigation pending in the Hazaribagh Court in respect of the area in question was neither a new or a fresh fact which came into existence for the first time after the order was made by the Central Government directing the State Government to grant the licence to the appellant. The litigation was pending since 1954 and the Central Government was aware of this fact even when it passed its order dated November 21, 1964. In these circumstances, therefore, there was absolutely no legal justification at all for the Central Government to go back upon its earlier order. The earlier order of the Central Government stood unvaried and unvacated and the State Government was bound to implement it and, therefore, the Central Government was in error in upholding the action of the State Government rejecting the revision application filed by the appellant and thus silently condoned the lapse committed by the State Government.

### 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: dated February 17, 1968 against which the present appeal by special leave has been preferred before us.The facts mentioned above are proved from the various annexures filed by the appellant along with the special leave and printed in the Paper Book and consist of various orders passed by the Central and State Governments, the correspondence between the State Government and the Central Government, the note-sheets and summary of facts made by the concerned Ministry etc. The learned counsel for the respondent has not at all disputed the correctness of the contents of these documents.5. It seems to us that the Central Government has not disposed of the revision application in accordance with law. To begin with, the Central Government had expressly directed the State Government to dispose of the application of the appellant by its order dated March 24, 1962, on the first re vision application filed by the appellant. Due to the continued inaction of the State Government, the second revision application was filed before the Central Government which was also allowed on November 21, 1964 and the State Government was given clear directions to grant the lease to the appellant. In view of this order it was not open to the State Government to reject the application of the appellant on any ground whatsoever. If the State Government found itself unable to implement the order of the Central Government a reference could have been made to the Central Government for obtaining necessary directions. Ultimately the order of the Central Government culminated into the grant of a licence in favour of the appellant after he had selected a compact block. Thereafter the State Government instead of implementing this order took the stand that they had devised a policy to grant leases only to those persons who were prepared to set up a cement plant. Subsequently this policy was also given a go by and the State Government rejected the application of the appellant on the ground that the land was the subject-matter of a litigation. This led to the last revision filed by the appellant before the Central Government. The Central Government, after calling for the comments of the State Government, appears to have upheld the order of the State Government rejecting the application. In doing so, the Central Government overlooked the fact that it had already directed by its order dated November 21, 1964 that the State Government should grant the mining lease to the appellant in respect of a compact block selected by the appellant. The State Government, being a sub ordinate authority in the matter of grant of mining lease, was obligated under the law to carry out the orders of the Central Government as indicated above. But the State Government declined to do so on the ground that it had laid down a policy that the mining leases in respect of the area should be given only to those who were prepared to set up a cement factory. It was clearly not open to the State Government to decline to carry out the orders of the Central Government on this ground, particularly because the Central Government was a tribunal superior to the State Government. If a ground came into existence subsequent to the making of the order of the Central Government which warranted a reconsideration of the order of the Central Government as indicated above, the State Government could have brought this ground to the notice of the Central Government. However, one thing is manifestly clear that the State Government could not have refused to implement the order of the Central Government unless the Central Government itself chose to revise it either on a reference by the State Government or suo motu. In fact to take the view that the State Government could decline to carry out the order of the Central Government on some ground which it thinks proper would be subversive of judicial discipline. Therefore, when the appellant preferred a revision application to the Central Government against the refusal of the State Government to carry out the order of the Central Government by rejecting his application, the Central Government should have proceeded to set aside the order of the State Government and directed the State Government to grant the application of the appellant. Instead of doing this, the Central Government again appears to have entered into the merits of the question as if its earlier order was not in existence at all and sustained the rejection of the application of the appellant on the ground that t he area in question was the subject-matter of the title suit in the Court of Hazaribagh, even though the appellant had pointed out to the Central Government that the injunction issued by the Court regarding the premises in dispute had been vacated. Even assuming for the sake of argument that the Central Government could revise its earlier order, and putting the case of the Central Government at its highest, this could be done only if some fresh ground came into existence which warranted reconsideration of the earlier order. The fact that there was a litigation pending in the Hazaribagh Court in respect of the area in question was neither a new or a fresh fact which came into existence for the first time after the order was made by the Central Government directing the State Government to grant the licence to the appellant. The litigation was pending since 1954 and the Central Government was aware of this fact even when it passed its order dated November 21, 1964. In these circumstances, therefore, there was absolutely no legal justification at all for the Central Government to go back upon its earlier order. The earlier order of the Central Government stood unvaried and unvacated and the State Government was bound to implement it and, therefore, the Central Government was in error in upholding the action of the State Government rejecting the revision application filed by the appellant and thus silently condoned the lapse committed by the State Government. ### Response: 1

Mahavir Prasad Vs. State of Rajasthan

The appellant, Mahavir Prasad, who stands convicted under S. 302 IPC and sentenced to undergo life imprisonment has preferred this criminal appeal challenging the correctness of the judgment made in Criminal Appeal No. 801 of 1971, on the file of the Rajasthan High Court at Jaipur Bench. The deceased, Prem Bai, was married to one Durga Prasad who was arrayed as an accused along with the appellant, but acquitted by the Trial Court itself. It seems that there was some misunderstanding between the deceased and her husband, Durga Prasad, as the latter had entertained some suspicion about the character of the deceased. In connection with the marriage of the brother of the deceased, the deceased had gone to her parents house at Nawalgarh in May, 1970. Some letters were exchanged between Durga Prasad and Ram Gopal, the brother of the deceased. In one of the letters dated 10-6-70, Durga Prasad even went to the extent of suggesting Ram Gopal to put an end to her life in order to save the honour of the family. Subsequently he expressed regrets and offered reconciliation. Then he wrote a letter to Ram Gopal that he would be sending Shankar Lal his brother to bring the deceased back. However, instead of Shankar Lal, the appellant who is the younger brother of Durga Prasad was sent to Nawalgarh to bring the deceased back to the house of Durga Prasad2. The appellant reached Nawalgarh on 20-10-1970 and left the village with the deceased on 4-10-1970 but the deceased did not reach the village. On 14-10-70. Ram Gopal received a letter purports to have been written by one Mail Ram stating that Prem Bai had developed some pain in the abdomen during the course of her train journey and that on her way to Jaipur for treatment she met her death and had been cremated at Jaipur. Ram Gopal went to Bharu-ki-Dhani and asked the appellant about the contents of the letter; but the appellant pleaded ignorance. Not being satisfied with the version given by the appellant, Ram Gopal submitted a complaint before the Superintendent of Police on 16-10-70 which report was endorsed to the Station House Officer, Neem-ka-Thana for taking appropriate proceedings. On the complaint of Ram Gopal, the law was set on motion3. According to the prosecution, the dead body of Prem Bai had been recovered from a well situated near Sarson Wali Dhani on 5-10-70 and the body was not identified by anyone. An inquest was held on the dead body and thereafter the body had been disposed of. After completion of the investigation, the chargesheet was laid against the appellant and two others, namely, Durga Prasad and Ram Narain. The Trial Court discharged Ram Narain and acquitted Durga Prasad. None-the-less the appellant was convicted and sentenced as aforementioned which conviction has been confirmed by the High Court. Hence this appeal 4. Admittedly, there is no direct evidence to connect that appellant with the crime in question. The prosecution rests its case only on circumstantial evidence to prove its case, they being (1) Durga Prasad wrote the letters exh. P-16 & 17 to the brother of the deceased Ram Gopal; (2) the appellant left the village Nawalgarh in 4-10-70 in the company of the deceased; and (3) the appellant alone returned to the Village Bharu-ki-Dhani. Even assuming these circumstances create some suspicion against the appellant, they cannot take the place of evidence and establish the charge of murder. According to the medical evidence, the probable cause of death was asphyxia due to drowning5. The appellant comes with an explanation stating that the deceased left his company with a broken heart while both of them were at the Railway Station; that he did not know as to what had happened afterwards; that he stayed overnight in a Dharamshala and then returned back and informed his brother and that, thereafter, coming to know that a dead body was in the hospital, he went there and saw the dead body of the deceased, but after having become panicky returned to the village. Whether this explanation is totally acceptable or not, it cannot be completely ruled out from consideration. However, the prosecution case, in our view, suffers for want of adequate and sufficient evidence to substantiate the charge of murder

1[ds]5. The appellant comes with an explanation stating that the deceased left his company with a broken heart while both of them were at the Railway Station; that he did not know as to what had happened afterwards; that he stayed overnight in a Dharamshala and then returned back and informed his brother and that, thereafter, coming to know that a dead body was in the hospital, he went there and saw the dead body of the deceased, but after having become panicky returned to the village. Whether this explanation is totally acceptable or not, it cannot be completely ruled out from consideration. However, the prosecution case, in our view, suffers for want of adequate and sufficient evidence to substantiate the charge of murder

### Instruction: Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant? ### Input: The appellant, Mahavir Prasad, who stands convicted under S. 302 IPC and sentenced to undergo life imprisonment has preferred this criminal appeal challenging the correctness of the judgment made in Criminal Appeal No. 801 of 1971, on the file of the Rajasthan High Court at Jaipur Bench. The deceased, Prem Bai, was married to one Durga Prasad who was arrayed as an accused along with the appellant, but acquitted by the Trial Court itself. It seems that there was some misunderstanding between the deceased and her husband, Durga Prasad, as the latter had entertained some suspicion about the character of the deceased. In connection with the marriage of the brother of the deceased, the deceased had gone to her parents house at Nawalgarh in May, 1970. Some letters were exchanged between Durga Prasad and Ram Gopal, the brother of the deceased. In one of the letters dated 10-6-70, Durga Prasad even went to the extent of suggesting Ram Gopal to put an end to her life in order to save the honour of the family. Subsequently he expressed regrets and offered reconciliation. Then he wrote a letter to Ram Gopal that he would be sending Shankar Lal his brother to bring the deceased back. However, instead of Shankar Lal, the appellant who is the younger brother of Durga Prasad was sent to Nawalgarh to bring the deceased back to the house of Durga Prasad2. The appellant reached Nawalgarh on 20-10-1970 and left the village with the deceased on 4-10-1970 but the deceased did not reach the village. On 14-10-70. Ram Gopal received a letter purports to have been written by one Mail Ram stating that Prem Bai had developed some pain in the abdomen during the course of her train journey and that on her way to Jaipur for treatment she met her death and had been cremated at Jaipur. Ram Gopal went to Bharu-ki-Dhani and asked the appellant about the contents of the letter; but the appellant pleaded ignorance. Not being satisfied with the version given by the appellant, Ram Gopal submitted a complaint before the Superintendent of Police on 16-10-70 which report was endorsed to the Station House Officer, Neem-ka-Thana for taking appropriate proceedings. On the complaint of Ram Gopal, the law was set on motion3. According to the prosecution, the dead body of Prem Bai had been recovered from a well situated near Sarson Wali Dhani on 5-10-70 and the body was not identified by anyone. An inquest was held on the dead body and thereafter the body had been disposed of. After completion of the investigation, the chargesheet was laid against the appellant and two others, namely, Durga Prasad and Ram Narain. The Trial Court discharged Ram Narain and acquitted Durga Prasad. None-the-less the appellant was convicted and sentenced as aforementioned which conviction has been confirmed by the High Court. Hence this appeal 4. Admittedly, there is no direct evidence to connect that appellant with the crime in question. The prosecution rests its case only on circumstantial evidence to prove its case, they being (1) Durga Prasad wrote the letters exh. P-16 & 17 to the brother of the deceased Ram Gopal; (2) the appellant left the village Nawalgarh in 4-10-70 in the company of the deceased; and (3) the appellant alone returned to the Village Bharu-ki-Dhani. Even assuming these circumstances create some suspicion against the appellant, they cannot take the place of evidence and establish the charge of murder. According to the medical evidence, the probable cause of death was asphyxia due to drowning5. The appellant comes with an explanation stating that the deceased left his company with a broken heart while both of them were at the Railway Station; that he did not know as to what had happened afterwards; that he stayed overnight in a Dharamshala and then returned back and informed his brother and that, thereafter, coming to know that a dead body was in the hospital, he went there and saw the dead body of the deceased, but after having become panicky returned to the village. Whether this explanation is totally acceptable or not, it cannot be completely ruled out from consideration. However, the prosecution case, in our view, suffers for want of adequate and sufficient evidence to substantiate the charge of murder ### Response: 1

State Of Maharashtra Vs. Swanstone Multiplex Cinema(P) Ltd

collects tax illegally, he has to refund it to the taxpayers. If the taxpayers cannot be found, the court would either direct the same to be paid and/ or appropriated by the State. In a given case, this Court in exercise of its jurisdiction under Article 142 of the Constitution of India may also issue other directions, as has been done in Indian Banks Association, Bombay and Others v. Devkala Consultancy Service and Others [(2004) 11 SCC 1] in a similar situation where it was difficult for the court to direct refund of a huge amount to a large number of depositors from whom the bank had illegally collected, this Court directed that the amount be spent for the benefit of the disabled in terms of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.This Court may take recourse to such a procedure as the State also having granted exemption was not entitled to collect the duty. In other words, it having granted an exemption, was not legally entitled thereto.26. We think that it would be better course, as strict sensu, Article 296 of the Constitution is not applicable.We are passing this order keeping in view the peculiar situation as in either event it was cinema-goers who had lost a huge amount. It would be travesty of justice if the owners of the cinema theatre become eligible to appropriate such a huge amount for its own benefit. To the aforementioned extent, doctrine of unjust enrichment may be held to be applicable. A person who unjustly enriches himself cannot be permitted to retain the same for its benefit except enrichment. Where it becomes entitled thereto the doctrine of unjust enrichment can be invoked irrespective of any statutory provisions. 27. In Mafatlal Industries Ltd. (supra), Section 72 of the Contract Act providing for restitution may be taken recourse to. Doctrine of `unjust enrichment was resorted to, observing : "(iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition.The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched." {See Union of India & Ors. v. Solar Pesticides Pvt. Ltd. & Ors. [(2000) 2 SCC 703]. In Sahakari Khand Udyog Mandal Ltd. v. Commissioner of Central Excise & Customs [(2005) 3 SCC 738] , this Court has held: "45. From the above discussion, it is clear that the doctrine of "unjust enrichment" is based on equity and has been accepted and applied in several cases.In our opinion, therefore, irrespective of applicability of Section 11-B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11-B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in the absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner-appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss." 28. It may be true that here at we are not concerned with refund of tax but then for enforcement of legal principles, this court may direct a party to divest itself of the money or benefits, which in justice, equity and good conscience belongs to someone else. It must be directed to restitute that part of the benefit to which it was not entitled to.29. We, therefore, direct that the State shall realize the amount to the extent the respondent had unjustly enriched itself and pay the same to a voluntary or a charitable organization, which according to it is a reputed civil society organization and had been rendering good services to any section of the disadvantaged people and in particular women and children. We would request Honble the Chief Minister of the State to take up the responsibility in this behalf so that full, proper and effective utilization of the amount in question is ensured.

1[ds]24. In absence of any express statutory provision, allowing the proprietors of the multiplex theatre to retain the benefit, it is difficult for us to arrive at such an inference. The State has power to impose tax. The State has a power to grant exemption or concession in respect of payment of tax. It has no power in terms of the provisions of the Constitution or otherwise to allow an assessee to collect the tax and retain the same. We will assume that to that effect the provisions are not very clear but the superior courts will not interpret the statute in such a way which will confer an unjust benefit to any of the parties, i.e., either the taxpayer or tax collector or the State. The statute must be interpreted reasonably. It must be so interpreted so that it becomes workable. Interpretation of a statute must subserve a constitutional goal.25. A statue of this nature, in our considered opinion, cannot be interpreted in such a manner so as to enable an entrepreneur to get undue advantage to the effect that he would collect tax from theand appropriate the same. When a person collects tax illegally, he has to refund it to the taxpayers. If the taxpayers cannot be found, the court would either direct the same to be paid and/ or appropriated by the State. In a given case, this Court in exercise of its jurisdiction under Article 142 of the Constitution of India may also issue other directions, as has been done in Indian Banks Association, Bombay and Others v. Devkala Consultancy Service and Others [(2004) 11 SCC 1] in a similar situation where it was difficult for the court to direct refund of a huge amount to a large number of depositors from whom the bank had illegally collected, this Court directed that the amount be spent for the benefit of the disabled in terms of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.This Court may take recourse to such a procedure as the State also having granted exemption was not entitled to collect the duty. In other words, it having granted an exemption, was not legally entitled thereto.26. We think that it would be better course, as strict sensu, Article 296 of the Constitution is not applicable.We are passing this order keeping in view the peculiar situation as in either event it waswho had lost a huge amount. It would be travesty of justice if the owners of the cinema theatre become eligible to appropriate such a huge amount for its own benefit. To the aforementioned extent, doctrine of unjust enrichment may be held to be applicable. A person who unjustly enriches himself cannot be permitted to retain the same for its benefit except enrichment. Where it becomes entitled thereto the doctrine of unjust enrichment can be invoked irrespective of any statutory provisions.It may be true that here at we are not concerned with refund of tax but then for enforcement of legal principles, this court may direct a party to divest itself of the money or benefits, which in justice, equity and good conscience belongs to someone else. It must be directed to restitute that part of the benefit to which it was not entitled to.29. We, therefore, direct that the State shall realize the amount to the extent the respondent had unjustly enriched itself and pay the same to a voluntary or a charitable organization, which according to it is a reputed civil society organization and had been rendering good services to any section of the disadvantaged people and in particular women andwould request Honble the Chief Minister of the State to take up the responsibility in this behalf so that full, proper and effective utilization of the amount in question is ensured.

### 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: collects tax illegally, he has to refund it to the taxpayers. If the taxpayers cannot be found, the court would either direct the same to be paid and/ or appropriated by the State. In a given case, this Court in exercise of its jurisdiction under Article 142 of the Constitution of India may also issue other directions, as has been done in Indian Banks Association, Bombay and Others v. Devkala Consultancy Service and Others [(2004) 11 SCC 1] in a similar situation where it was difficult for the court to direct refund of a huge amount to a large number of depositors from whom the bank had illegally collected, this Court directed that the amount be spent for the benefit of the disabled in terms of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.This Court may take recourse to such a procedure as the State also having granted exemption was not entitled to collect the duty. In other words, it having granted an exemption, was not legally entitled thereto.26. We think that it would be better course, as strict sensu, Article 296 of the Constitution is not applicable.We are passing this order keeping in view the peculiar situation as in either event it was cinema-goers who had lost a huge amount. It would be travesty of justice if the owners of the cinema theatre become eligible to appropriate such a huge amount for its own benefit. To the aforementioned extent, doctrine of unjust enrichment may be held to be applicable. A person who unjustly enriches himself cannot be permitted to retain the same for its benefit except enrichment. Where it becomes entitled thereto the doctrine of unjust enrichment can be invoked irrespective of any statutory provisions. 27. In Mafatlal Industries Ltd. (supra), Section 72 of the Contract Act providing for restitution may be taken recourse to. Doctrine of `unjust enrichment was resorted to, observing : "(iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition.The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched." {See Union of India & Ors. v. Solar Pesticides Pvt. Ltd. & Ors. [(2000) 2 SCC 703]. In Sahakari Khand Udyog Mandal Ltd. v. Commissioner of Central Excise & Customs [(2005) 3 SCC 738] , this Court has held: "45. From the above discussion, it is clear that the doctrine of "unjust enrichment" is based on equity and has been accepted and applied in several cases.In our opinion, therefore, irrespective of applicability of Section 11-B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11-B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in the absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner-appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss." 28. It may be true that here at we are not concerned with refund of tax but then for enforcement of legal principles, this court may direct a party to divest itself of the money or benefits, which in justice, equity and good conscience belongs to someone else. It must be directed to restitute that part of the benefit to which it was not entitled to.29. We, therefore, direct that the State shall realize the amount to the extent the respondent had unjustly enriched itself and pay the same to a voluntary or a charitable organization, which according to it is a reputed civil society organization and had been rendering good services to any section of the disadvantaged people and in particular women and children. We would request Honble the Chief Minister of the State to take up the responsibility in this behalf so that full, proper and effective utilization of the amount in question is ensured. ### Response: 1

Western Coalfields Ltd. and Ors Vs. Ballapur Collieries Company and Ors

Abhay Manohar Sapre, J.1. These appeals are filed against the common final judgment and order dated 22.01.2007 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Civil Revision Application Nos. 801 & 803 of 2002 whereby the High Court allowed the revision petitions filed by Respondent Nos. 1-8 herein.2. The proceedings in question which are subject matter of these appeals arise out of initiation of eviction proceedings by the Appellants-Government of India Company against the Respondents under the provisions of the Public Premises (Eviction of Unauthorized Occupation) Act, 1971 (hereinafter referred to as "the Act") in relation to the suit property.3. By impugned order, the High Court in the revision petitions filed by Respondent Nos. 1-8 herein Under Section 9 of the Act against the order of the District Judge allowed the revision petitions and held that having regard to the nature of controversy and factual issues raised by the parties against each other in the eviction proceedings, the proper remedy of the Appellants would be to file a civil suit against the Respondents for their eviction from the suit properties rather than to take recourse to the summary remedy of eviction under the Act before the Estate Officer.4. The Appellants felt aggrieved by the said order and have filed these appeals by way of special leave in this Court.5. Having heard the learned Counsel for the parties and on perusal of the record of the case and the written submissions filed by the Appellants, we are inclined to agree with the observations made by the High Court in the impugned order.

1[ds]5. Having heard the learned Counsel for the parties and on perusal of the record of the case and the written submissions filed by the Appellants, we are inclined to agree with the observations made by the High Court in the impugned order.

### 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: Abhay Manohar Sapre, J.1. These appeals are filed against the common final judgment and order dated 22.01.2007 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Civil Revision Application Nos. 801 & 803 of 2002 whereby the High Court allowed the revision petitions filed by Respondent Nos. 1-8 herein.2. The proceedings in question which are subject matter of these appeals arise out of initiation of eviction proceedings by the Appellants-Government of India Company against the Respondents under the provisions of the Public Premises (Eviction of Unauthorized Occupation) Act, 1971 (hereinafter referred to as "the Act") in relation to the suit property.3. By impugned order, the High Court in the revision petitions filed by Respondent Nos. 1-8 herein Under Section 9 of the Act against the order of the District Judge allowed the revision petitions and held that having regard to the nature of controversy and factual issues raised by the parties against each other in the eviction proceedings, the proper remedy of the Appellants would be to file a civil suit against the Respondents for their eviction from the suit properties rather than to take recourse to the summary remedy of eviction under the Act before the Estate Officer.4. The Appellants felt aggrieved by the said order and have filed these appeals by way of special leave in this Court.5. Having heard the learned Counsel for the parties and on perusal of the record of the case and the written submissions filed by the Appellants, we are inclined to agree with the observations made by the High Court in the impugned order. ### Response: 1

Wallace Pharmaceuticals Limited & Another Vs. Union of India, Through The Secretary, Ministry of Chemicals & Fertilizers, Department of Chemicals & Fertilizers & Others

27.10.1986. However, it is sought to be contended that the import price of the bulk drug fixed from time to time in respect of the period prior to 27.10.1986 could be taken into account, in fixing the leader price of the formulations made from the said bulk drug. As it is an anti-tubercular drug and falls under category III of Schedule III and therefore the Government is empowered to fix the leader price in terms of paragraph 13(6) of the DPCO 1979.32. The stand of the respondent that there was no need for notifying the procurement price of the bulk drug allowed in fixing the leader price of formulations prepared out of the bulk drug as it was being imported prior to 1986, is not a contention that is supported by any legal provision. No such presumption arises from reading of the Scheme of the DPCO 1979. The respondent seeking to read paragraph 13(6) of the DPCO 1979 in isolation to trace the power of the Government to fix the leader price of a formulation falling under Category III of Schedule III does not meet the requirement of the price of the bulk drug being notified even if imported. No such presumption that the price of the bulk drug ought to be taken as the price at which it is imported be taken into account in the petitioner proceeding to find its own alleged liability.33. In the absence of any determination of the liability of the petitioner in terms of the DPCO 1979 prior to its repeal no liability can be fastened on the petitioner on the strength of paragraph 14 of the DPCO 1987.Accordingly, the petitions deserve to be allowed.The writ petitions ie WP.26118/2005 and WP 9463/2006 are hereby allowed.Annexures S.V, AA, CC and DD in WP.26118/2005 are hereby quashed.Annexures M and HH in WP 9463/2006 are hereby quashed.Ordered accordingly.11. In our view, the ratio of the said judgment of the Karnataka High Court clearly applies to the facts of the present case. It is an admitted position that the said judgment and order of the Karnataka High Court has, so far, not been challenged by the respondents, in the Apex Court and, as such, as of today, the finding given by the Karnataka High Court has become final. The ratio of the said Judgment clearly applies to the facts of the present case, and, as such, the contention of the learned Counsel appearing on behalf of the petitioners will have to be accepted.12. Learned Counsel for the respondents has relied on the judgment of the Bombay High Court in Indian Drugs Manufactures Association and ors. vs. Union of India and ors., (supra). In our view, the ratio of the said judgment would not apply to the facts of the present case, since the question which fell for consideration before the Division Bench of Bombay High Court was, whether, after repeal of the provisions of para 7(2) and 17 of the DPCO, 1979 with effect from 26th August, 1987, the show cause notices could have been issued for the recovery of the amount which had actually accrued during the continuance of the DPCO, 1979 In paragraphs 1 and 2, the issue involved before the Division Bench has been succinctly mentioned. Paragraphs 1 and 2, read as under:The question which arises for consideration in the above petition is whether the respondents have the power and authority to issue the impugned notices invoking paragraph 7(2) of the Drugs (Prices Control) Order, 1979 read with paragraph 14 of the Drugs (Prices Control) Order, 1987 and para 12 of the Drugs (Prices Control) Order, 1995 after the repeal of the Drug (Prices Control) Order, 1979.2. The main substantive reliefs sought in the above petition are prayer clauses (a) and (b) of the petition which read as under:(a) For the following declaration of this Honble Court:(i) that on a true construction of the DPCO, 1979 read with the DPCO, 1987 and DPCO, 1995, only those amounts which had been finally determined to be due and payable by a manufacturer and which had actually accrued during the continuance of the DPCO, 1979, and which satisfied the tests of Constitutional and Essential Commodities Act requirements, can be recovered from the concerned manufacturer for deposit in the DPEA;(ii) that under no other circumstances can the respondents purport to invoke the provisions of Paras 7(2) and 17 of the DPCO, 1979, after its repeal with effect from 26th August, 1987;(iii) that the impugned Notice (Specimen copy Exhibit A hereto) and all similar notices issued by the respondents to the members of the 1st and 3rd petitioners are all issued without the authority of law, being ex facie ultra vires the DPCO, 1979, 1987 and 1995, ultra vires Articles 14, 265 and 300-A of the Constitution of India and are null and void and of no legal effect whatsoever;(iv) That the respondents are not authorised or entitled in law to issue to the members of the 1st and 3rd petitioners such notices in the future;(b) For a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records of the case and after going into the legality of the same, quashing and setting aside the impugned notice Exhibit -A- hereto as also all similar notices issued by the respondents to the members of the 1st and 3rd petitioners.13. Perusal of the said observations reveal that the challenge in the said petition was on a totally different ground and, as such, the observations which are made in the context of paragraph 7(2) would strictly not apply to the facts of the present case and the learned Counsel appearing on behalf of the respondents was unable to point out any observations which were either directly contrary to the ratio of the judgment of the Karnataka High Court or in favour of the arguments advanced by the respondents in the present case.

1[ds]11. In our view, the ratio of the said judgment of the Karnataka High Court clearly applies to the facts of the present case. It is an admitted position that the said judgment and order of the Karnataka High Court has, so far, not been challenged by the respondents, in the Apex Court and, as such, as of today, the finding given by the Karnataka High Court has become final. The ratio of the said Judgment clearly applies to the facts of the present case, and, as such, the contention of the learned Counsel appearing on behalf of the petitioners will have to be accepted.In our view, the ratio of the said judgment would not apply to the facts of the present case, since the question which fell for consideration before the Division Bench of Bombay High Court was, whether, after repeal of the provisions of para 7(2) and 17 of the DPCO, 1979 with effect from 26th August, 1987, the show cause notices could have been issued for the recovery of the amount which had actually accrued during the continuance of the DPCO, 1979 In paragraphs 1 and 2, the issue involved before the Division Bench has been succinctly mentioned.Perusal of the said observations reveal that the challenge in the said petition was on a totally different ground and, as such, the observations which are made in the context of paragraph 7(2) would strictly not apply to the facts of the present case and the learned Counsel appearing on behalf of the respondents was unable to point out any observations which were either directly contrary to the ratio of the judgment of the Karnataka High Court or in favour of the arguments advanced by the respondents in the present case.

### 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: 27.10.1986. However, it is sought to be contended that the import price of the bulk drug fixed from time to time in respect of the period prior to 27.10.1986 could be taken into account, in fixing the leader price of the formulations made from the said bulk drug. As it is an anti-tubercular drug and falls under category III of Schedule III and therefore the Government is empowered to fix the leader price in terms of paragraph 13(6) of the DPCO 1979.32. The stand of the respondent that there was no need for notifying the procurement price of the bulk drug allowed in fixing the leader price of formulations prepared out of the bulk drug as it was being imported prior to 1986, is not a contention that is supported by any legal provision. No such presumption arises from reading of the Scheme of the DPCO 1979. The respondent seeking to read paragraph 13(6) of the DPCO 1979 in isolation to trace the power of the Government to fix the leader price of a formulation falling under Category III of Schedule III does not meet the requirement of the price of the bulk drug being notified even if imported. No such presumption that the price of the bulk drug ought to be taken as the price at which it is imported be taken into account in the petitioner proceeding to find its own alleged liability.33. In the absence of any determination of the liability of the petitioner in terms of the DPCO 1979 prior to its repeal no liability can be fastened on the petitioner on the strength of paragraph 14 of the DPCO 1987.Accordingly, the petitions deserve to be allowed.The writ petitions ie WP.26118/2005 and WP 9463/2006 are hereby allowed.Annexures S.V, AA, CC and DD in WP.26118/2005 are hereby quashed.Annexures M and HH in WP 9463/2006 are hereby quashed.Ordered accordingly.11. In our view, the ratio of the said judgment of the Karnataka High Court clearly applies to the facts of the present case. It is an admitted position that the said judgment and order of the Karnataka High Court has, so far, not been challenged by the respondents, in the Apex Court and, as such, as of today, the finding given by the Karnataka High Court has become final. The ratio of the said Judgment clearly applies to the facts of the present case, and, as such, the contention of the learned Counsel appearing on behalf of the petitioners will have to be accepted.12. Learned Counsel for the respondents has relied on the judgment of the Bombay High Court in Indian Drugs Manufactures Association and ors. vs. Union of India and ors., (supra). In our view, the ratio of the said judgment would not apply to the facts of the present case, since the question which fell for consideration before the Division Bench of Bombay High Court was, whether, after repeal of the provisions of para 7(2) and 17 of the DPCO, 1979 with effect from 26th August, 1987, the show cause notices could have been issued for the recovery of the amount which had actually accrued during the continuance of the DPCO, 1979 In paragraphs 1 and 2, the issue involved before the Division Bench has been succinctly mentioned. Paragraphs 1 and 2, read as under:The question which arises for consideration in the above petition is whether the respondents have the power and authority to issue the impugned notices invoking paragraph 7(2) of the Drugs (Prices Control) Order, 1979 read with paragraph 14 of the Drugs (Prices Control) Order, 1987 and para 12 of the Drugs (Prices Control) Order, 1995 after the repeal of the Drug (Prices Control) Order, 1979.2. The main substantive reliefs sought in the above petition are prayer clauses (a) and (b) of the petition which read as under:(a) For the following declaration of this Honble Court:(i) that on a true construction of the DPCO, 1979 read with the DPCO, 1987 and DPCO, 1995, only those amounts which had been finally determined to be due and payable by a manufacturer and which had actually accrued during the continuance of the DPCO, 1979, and which satisfied the tests of Constitutional and Essential Commodities Act requirements, can be recovered from the concerned manufacturer for deposit in the DPEA;(ii) that under no other circumstances can the respondents purport to invoke the provisions of Paras 7(2) and 17 of the DPCO, 1979, after its repeal with effect from 26th August, 1987;(iii) that the impugned Notice (Specimen copy Exhibit A hereto) and all similar notices issued by the respondents to the members of the 1st and 3rd petitioners are all issued without the authority of law, being ex facie ultra vires the DPCO, 1979, 1987 and 1995, ultra vires Articles 14, 265 and 300-A of the Constitution of India and are null and void and of no legal effect whatsoever;(iv) That the respondents are not authorised or entitled in law to issue to the members of the 1st and 3rd petitioners such notices in the future;(b) For a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records of the case and after going into the legality of the same, quashing and setting aside the impugned notice Exhibit -A- hereto as also all similar notices issued by the respondents to the members of the 1st and 3rd petitioners.13. Perusal of the said observations reveal that the challenge in the said petition was on a totally different ground and, as such, the observations which are made in the context of paragraph 7(2) would strictly not apply to the facts of the present case and the learned Counsel appearing on behalf of the respondents was unable to point out any observations which were either directly contrary to the ratio of the judgment of the Karnataka High Court or in favour of the arguments advanced by the respondents in the present case. ### Response: 1

INCOME TAX OFFICER WARD NO.16(2) Vs. M/S TECHSPAN INDIA PRIVATE LTD.(FORMERLY KNOWN AS M/S. TECHSPAN INDIA LTD.) THROUGH ITS MANAGING DIR

interpreted schematically as the liberal interpretation of the word would have the consequence of conferring arbitrary powers on the assessing officer who may even initiate such re-assessment proceedings merely on his change of opinion on the basis of same facts and circumstances which has already been considered by him during the original assessment proceedings. Such could not be the intention of the legislature. The said provision was incorporated in the scheme of the IT Act so as to empower the Assessing Authorities to re-assess any income on the ground which was not brought on record during the original proceedings and escaped his knowledge; and the said fact would have material bearing on the outcome of the relevant assessment order.9. Section 147 of the IT Act does not allow the re-assessment of an income merely because of the fact that the assessing officer has a change of opinion with regard to the interpretation of law differently on the facts that were well within his knowledge even at the time of assessment. Doing so would have the effect of giving the assessing officer the power of review and Section 147 confers the power to re-assess and not the power to review.10. To check whether it is a case of change of opinion or not one has to see its meaning in literal as well as legal terms. The word change of opinion implies formulation of opinion and then a change thereof. In terms of assessment proceedings, it means formulation of belief by an assessing officer resulting from what he thinks on a particular question. It is a result of understanding, experience and reflection.11. It is well settled and held by this court in a catena of judgments and it would be sufficient to refer Commissioner of Income Tax, Delhi vs. Kelvinator of India Ltd. (2010) 320 ITR 561(SC) wherein this Court has held as under:-?5….where the Assessing Officer has reason to believe that income has escaped assessment, confers jurisdiction to re- open the assessment. Therefore, post-1st April, 1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words "reason to believe"….. Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open.6. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-condition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place.7. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to re-open, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief.?12. Before interfering with the proposed re-opening of the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on a matter which is the basis of the alleged escapement of income that was taxable. If the assessment order is non-speaking, cryptic or perfunctory in nature, it may be difficult to attribute to the assessing officer any opinion on the questions that are raised in the proposed re-assessment proceedings. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the order of assessment does not address itself to a given aspect sought to be examined in the re-assessment proceedings.13. The fact in controversy in this case is with regard to the deduction under Section 10A of the IT Act which was allegedly allowed in excess. The show cause notice dated 10.02.2005 reflects the ground for re-assessment in the present case, that is, the deduction allowed in excess under Section 10A and, therefore, the income has escaped assessment to the tune of Rs. 57,36,811. In the order in question dated 17.08.2005, the reason purportedly given for rejecting the objections was that the assessee was not maintaining any separate books of accounts for the two categories, i.e., software development and human resource development, on which it has declared income separately. However, a bare perusal of notice dated 09.03.2004 which was issued in the original assessment proceedings under Section 143 makes it clear that the point on which the re-assessment proceedings were initiated, was well considered in the original proceedings. In fact, the very basis of issuing the show cause notice dated 09.03.2004 was that the assessee was not maintaining any separate books of account for the said two categories and the details filed do not reveal proportional allocation of common expenses be made to these categories. Even the said show cause notice suggested how proportional allocation should be done. All these things leads to an unavoidable conclusion that the question as to how and to what extent deduction should be allowed under Section 10A of the IT Act was well considered in the original assessment proceedings itself. Hence, initiation of the re-assessment proceedings under Section 147 by issuing a notice under Section 148 merely because of the fact that now the Assessing Officer is of the view that the deduction under Section 10A was allowed in excess, was based on nothing but a change of opinion on the same facts and circumstances which were already in his knowledge even during the original assessment proceedings.14. In light of the forgoing discussion, we are of the view that impugned judgment and order of the High Court dated 24.02.2006 does not call for any interference.

0[ds]Before interfering with the proposedof the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on a matter which is the basis of the alleged escapement of income that was taxable. If the assessment order iscryptic or perfunctory in nature, it may be difficult to attribute to the assessing officer any opinion on the questions that are raised in the proposedproceedings. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the order of assessment does not address itself to a given aspect sought to be examined in theThe fact in controversy in this case is with regard to the deduction under Section 10A of the IT Act which was allegedly allowed in excess. The show cause notice dated 10.02.2005 reflects the ground forin the present case, that is, the deduction allowed in excess under Section 10A and, therefore, the income has escaped assessment to the tune of Rs. 57,36,811. In the order in question dated 17.08.2005, the reason purportedly given for rejecting the objections was that the assessee was not maintaining any separate books of accounts for the two categories, i.e., software development and human resource development, on which it has declared income separately. However, a bare perusal of notice dated 09.03.2004 which was issued in the original assessment proceedings under Section 143 makes it clear that the point on which theproceedings were initiated, was well considered in the original proceedings. In fact, the very basis of issuing the show cause notice dated 09.03.2004 was that the assessee was not maintaining any separate books of account for the said two categories and the details filed do not reveal proportional allocation of common expenses be made to these categories. Even the said show cause notice suggested how proportional allocation should be done. All these things leads to an unavoidable conclusion that the question as to how and to what extent deduction should be allowed under Section 10A of the IT Act was well considered in the original assessment proceedings itself. Hence, initiation of theproceedings under Section 147 by issuing a notice under Section 148 merely because of the fact that now the Assessing Officer is of the view that the deduction under Section 10A was allowed in excess, was based on nothing but a change of opinion on the same facts and circumstances which were already in his knowledge even during the original assessmentIn light of the forgoing discussion, we are of the view that impugned judgment and order of the High Court dated 24.02.2006 does not call for any

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: interpreted schematically as the liberal interpretation of the word would have the consequence of conferring arbitrary powers on the assessing officer who may even initiate such re-assessment proceedings merely on his change of opinion on the basis of same facts and circumstances which has already been considered by him during the original assessment proceedings. Such could not be the intention of the legislature. The said provision was incorporated in the scheme of the IT Act so as to empower the Assessing Authorities to re-assess any income on the ground which was not brought on record during the original proceedings and escaped his knowledge; and the said fact would have material bearing on the outcome of the relevant assessment order.9. Section 147 of the IT Act does not allow the re-assessment of an income merely because of the fact that the assessing officer has a change of opinion with regard to the interpretation of law differently on the facts that were well within his knowledge even at the time of assessment. Doing so would have the effect of giving the assessing officer the power of review and Section 147 confers the power to re-assess and not the power to review.10. To check whether it is a case of change of opinion or not one has to see its meaning in literal as well as legal terms. The word change of opinion implies formulation of opinion and then a change thereof. In terms of assessment proceedings, it means formulation of belief by an assessing officer resulting from what he thinks on a particular question. It is a result of understanding, experience and reflection.11. It is well settled and held by this court in a catena of judgments and it would be sufficient to refer Commissioner of Income Tax, Delhi vs. Kelvinator of India Ltd. (2010) 320 ITR 561(SC) wherein this Court has held as under:-?5….where the Assessing Officer has reason to believe that income has escaped assessment, confers jurisdiction to re- open the assessment. Therefore, post-1st April, 1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words "reason to believe"….. Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open.6. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-condition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place.7. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to re-open, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief.?12. Before interfering with the proposed re-opening of the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on a matter which is the basis of the alleged escapement of income that was taxable. If the assessment order is non-speaking, cryptic or perfunctory in nature, it may be difficult to attribute to the assessing officer any opinion on the questions that are raised in the proposed re-assessment proceedings. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the order of assessment does not address itself to a given aspect sought to be examined in the re-assessment proceedings.13. The fact in controversy in this case is with regard to the deduction under Section 10A of the IT Act which was allegedly allowed in excess. The show cause notice dated 10.02.2005 reflects the ground for re-assessment in the present case, that is, the deduction allowed in excess under Section 10A and, therefore, the income has escaped assessment to the tune of Rs. 57,36,811. In the order in question dated 17.08.2005, the reason purportedly given for rejecting the objections was that the assessee was not maintaining any separate books of accounts for the two categories, i.e., software development and human resource development, on which it has declared income separately. However, a bare perusal of notice dated 09.03.2004 which was issued in the original assessment proceedings under Section 143 makes it clear that the point on which the re-assessment proceedings were initiated, was well considered in the original proceedings. In fact, the very basis of issuing the show cause notice dated 09.03.2004 was that the assessee was not maintaining any separate books of account for the said two categories and the details filed do not reveal proportional allocation of common expenses be made to these categories. Even the said show cause notice suggested how proportional allocation should be done. All these things leads to an unavoidable conclusion that the question as to how and to what extent deduction should be allowed under Section 10A of the IT Act was well considered in the original assessment proceedings itself. Hence, initiation of the re-assessment proceedings under Section 147 by issuing a notice under Section 148 merely because of the fact that now the Assessing Officer is of the view that the deduction under Section 10A was allowed in excess, was based on nothing but a change of opinion on the same facts and circumstances which were already in his knowledge even during the original assessment proceedings.14. In light of the forgoing discussion, we are of the view that impugned judgment and order of the High Court dated 24.02.2006 does not call for any interference. ### Response: 0

Nandkishor Savalaram Malu (Dead) Through Lrs. Vs. Hanumanmal G.Biyani(D) By Lrs

failed to prove that they surrendered the vacant possession of the suit house to the plaintiffs on 12.05.1980.17. According to learned counsel, it was, therefore, a clear case where tenant having suffered a decree for eviction, all persons claiming through such tenant or/and those acting for and on behalf of the tenant-Firm, had to be dispossessed on the strength of the decree suffered by the tenant-firm.18. On these submissions, learned Counsel for the appellants prayed for reversal of the impugned order and restoration of the order of the first appellate Court.19. In reply, learned counsel for the respondents supported the impugned order and contended for its upholding.20. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to accept the submissions of the learned counsel for the appellants as, in our opinion, it has a force.21. Indeed, we are constrained to observe that there was absolutely no legal basis for the High Court to have reversed the well-reasoned order of the first appellate Court which had rightly reversed the order of the Trial Court by passing decree for arrears of rent, eviction and mesne profits against all the defendants jointly and severally. The High Court, unfortunately, failed to apply the settled legal principles applicable to the case at hand as are enumerated herein below in the light of following factual findings of fact recorded by the two Courts below.22. Firstly, the Firm was held to be the tenant whereas defendant no.1 was held to be Firms employee. Secondly, the Firm failed to prove that they surrendered their possession to the appellants and cleared all arrears of rent and lastly, defendant no.1 was held to be in possession of the suit house as "trespasser" and not as " appellants tenant".23. With these concurrent findings of fact, we are of the considered opinion that neither the Firm nor their partners and nor defendant no.1 had any legal right to remain in possession of the suit house. The reason being that so far as the Firm and its partners were concerned (defendant Nos. 2 to 9), they being the tenant rightly suffered the decree for payment of arrears of rent and eviction under the Rent Act and so far as defendant no.1 was concerned, he was neither an owner of the suit house nor a tenant inducted by the appellants and nor a licensee but was held to be an employee of the Firm and a rank trespasser in the suit house.24. The legal effect of such eviction decree under the Rent Act was that the possession of the tenant-firm and persons claiming through such tenant became unauthorized. Since the tenant was a Firm, persons connected with the internal affairs of the Firm such as its partners and the employees working in the Firm were also bound by the eviction decree for the simple reason that all such persons were claiming through the tenant-Firm.25. An employee of a tenant is never considered to be in actual possession of tenanted premises much less in possession in his legal right. Indeed, he is allowed to use the tenanted premises only with the permission of his employer by virtue of his contract of employment with his employer. An employee, therefore, cannot claim any legal right of his own to occupy or to remain in possession of the tenanted premises while in employment of his employer or even thereafter qua landlord for want of any privity of contract between him and the landlord in respect of the tenanted premises.26. There was, therefore, no need for the appellant to file a separate suit to claim possession of the suit house against defendant no.1 under the general law as he was well within his legal right to execute the decree for eviction from the demised premises in this very litigation not only against the original tenant but also against all the persons who were claiming through such tenant. As mentioned above, defendant no.1 was such person who was held to be claiming through the tenant being its employee and was, therefore, bound by the decree once passed against his employer-tenant.27. A tenancy is a creation of contract between the two persons who are capable to enter into contract called lessor/landlord and the lessee/tenant. The two persons can be either living person or juristic persons such as Partnership Firm or a Company.28. Once the tenancy is created either orally or in writing with respect to a land or building then it is always subject to the relevant provisions of the Transfer of Property Act, 1882 (hereinafter referred to as "the TP Act") and the State Rent Acts. Sections 105 to 111 of the TP Act provide certain safeguards, create some statutory rights, obligations, duties whereas the State Rent Acts, inter alia, specify the grounds to enable the lessor to evict the lessee/tenant from the demised premises.29. If the lessee/tenant is a living person, then in such event, the tenant would also include his legal representatives in the event of his death together with his dependents living with the tenant in the tenanted premises. Likewise, if the lessee/tenant is a juristic person, i.e., partnership Firm then such tenant would represent the interest of all the partners of the Firm and the employees working in the Firm. Such persons since claim through the Firm, they have no right of their own in the tenancy and in the demised property qua landlord.30. As a matter of fact, in our view, it was not necessary for the appellants to have impleaded defendant no.1 in the present rent proceedings. The reason being that in rent proceedings the lessee/tenant is the only necessary or/and proper party and none else. A person, who claims through lessee/tenant, is not a necessary party.31. The aforementioned factors were completely overlooked by the High Court. It is for these reasons, the impugned order is not legally sustainable and, therefore, deserves to be set aside.32. In the light of foregoing discussion, the

1[ds]21. Indeed, we are constrained to observe that there was absolutely no legal basis for the High Court to have reversed the well-reasoned order of the first appellate Court which had rightly reversed the order of the Trial Court by passing decree for arrears of rent, eviction and mesne profits against all the defendants jointly and severally. The High Court, unfortunately, failed to apply the settled legal principles applicable to the case at hand as are enumerated herein below in the light of following factual findings of fact recorded by the two Courts below.22. Firstly, the Firm was held to be the tenant whereas defendant no.1 was held to be Firms employee. Secondly, the Firm failed to prove that they surrendered their possession to the appellants and cleared all arrears of rent and lastly, defendant no.1 was held to be in possession of the suit house as "trespasser" and not as " appellants tenant".23. With these concurrent findings of fact, we are of the considered opinion that neither the Firm nor their partners and nor defendant no.1 had any legal right to remain in possession of the suit house. The reason being that so far as the Firm and its partners were concerned (defendant Nos. 2 to 9), they being the tenant rightly suffered the decree for payment of arrears of rent and eviction under the Rent Act and so far as defendant no.1 was concerned, he was neither an owner of the suit house nor a tenant inducted by the appellants and nor a licensee but was held to be an employee of the Firm and a rank trespasser in the suit house.There was, therefore, no need for the appellant to file a separate suit to claim possession of the suit house against defendant no.1 under the general law as he was well within his legal right to execute the decree for eviction from the demised premises in this very litigation not only against the original tenant but also against all the persons who were claiming through such tenant. As mentioned above, defendant no.1 was such person who was held to be claiming through the tenant being its employee and was, therefore, bound by the decree once passed against his employer-tenant.As a matter of fact, in our view, it was not necessary for the appellants to have impleaded defendant no.1 in the present rent proceedings. The reason being that in rent proceedings the lessee/tenant is the only necessary or/and proper party and none else. A person, who claims through lessee/tenant, is not a necessary party.31. The aforementioned factors were completely overlooked by the High Court. It is for these reasons, the impugned order is not legally sustainable and, therefore, deserves to be set aside.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: failed to prove that they surrendered the vacant possession of the suit house to the plaintiffs on 12.05.1980.17. According to learned counsel, it was, therefore, a clear case where tenant having suffered a decree for eviction, all persons claiming through such tenant or/and those acting for and on behalf of the tenant-Firm, had to be dispossessed on the strength of the decree suffered by the tenant-firm.18. On these submissions, learned Counsel for the appellants prayed for reversal of the impugned order and restoration of the order of the first appellate Court.19. In reply, learned counsel for the respondents supported the impugned order and contended for its upholding.20. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to accept the submissions of the learned counsel for the appellants as, in our opinion, it has a force.21. Indeed, we are constrained to observe that there was absolutely no legal basis for the High Court to have reversed the well-reasoned order of the first appellate Court which had rightly reversed the order of the Trial Court by passing decree for arrears of rent, eviction and mesne profits against all the defendants jointly and severally. The High Court, unfortunately, failed to apply the settled legal principles applicable to the case at hand as are enumerated herein below in the light of following factual findings of fact recorded by the two Courts below.22. Firstly, the Firm was held to be the tenant whereas defendant no.1 was held to be Firms employee. Secondly, the Firm failed to prove that they surrendered their possession to the appellants and cleared all arrears of rent and lastly, defendant no.1 was held to be in possession of the suit house as "trespasser" and not as " appellants tenant".23. With these concurrent findings of fact, we are of the considered opinion that neither the Firm nor their partners and nor defendant no.1 had any legal right to remain in possession of the suit house. The reason being that so far as the Firm and its partners were concerned (defendant Nos. 2 to 9), they being the tenant rightly suffered the decree for payment of arrears of rent and eviction under the Rent Act and so far as defendant no.1 was concerned, he was neither an owner of the suit house nor a tenant inducted by the appellants and nor a licensee but was held to be an employee of the Firm and a rank trespasser in the suit house.24. The legal effect of such eviction decree under the Rent Act was that the possession of the tenant-firm and persons claiming through such tenant became unauthorized. Since the tenant was a Firm, persons connected with the internal affairs of the Firm such as its partners and the employees working in the Firm were also bound by the eviction decree for the simple reason that all such persons were claiming through the tenant-Firm.25. An employee of a tenant is never considered to be in actual possession of tenanted premises much less in possession in his legal right. Indeed, he is allowed to use the tenanted premises only with the permission of his employer by virtue of his contract of employment with his employer. An employee, therefore, cannot claim any legal right of his own to occupy or to remain in possession of the tenanted premises while in employment of his employer or even thereafter qua landlord for want of any privity of contract between him and the landlord in respect of the tenanted premises.26. There was, therefore, no need for the appellant to file a separate suit to claim possession of the suit house against defendant no.1 under the general law as he was well within his legal right to execute the decree for eviction from the demised premises in this very litigation not only against the original tenant but also against all the persons who were claiming through such tenant. As mentioned above, defendant no.1 was such person who was held to be claiming through the tenant being its employee and was, therefore, bound by the decree once passed against his employer-tenant.27. A tenancy is a creation of contract between the two persons who are capable to enter into contract called lessor/landlord and the lessee/tenant. The two persons can be either living person or juristic persons such as Partnership Firm or a Company.28. Once the tenancy is created either orally or in writing with respect to a land or building then it is always subject to the relevant provisions of the Transfer of Property Act, 1882 (hereinafter referred to as "the TP Act") and the State Rent Acts. Sections 105 to 111 of the TP Act provide certain safeguards, create some statutory rights, obligations, duties whereas the State Rent Acts, inter alia, specify the grounds to enable the lessor to evict the lessee/tenant from the demised premises.29. If the lessee/tenant is a living person, then in such event, the tenant would also include his legal representatives in the event of his death together with his dependents living with the tenant in the tenanted premises. Likewise, if the lessee/tenant is a juristic person, i.e., partnership Firm then such tenant would represent the interest of all the partners of the Firm and the employees working in the Firm. Such persons since claim through the Firm, they have no right of their own in the tenancy and in the demised property qua landlord.30. As a matter of fact, in our view, it was not necessary for the appellants to have impleaded defendant no.1 in the present rent proceedings. The reason being that in rent proceedings the lessee/tenant is the only necessary or/and proper party and none else. A person, who claims through lessee/tenant, is not a necessary party.31. The aforementioned factors were completely overlooked by the High Court. It is for these reasons, the impugned order is not legally sustainable and, therefore, deserves to be set aside.32. In the light of foregoing discussion, the ### Response: 1

The District Board, Tanjore Represented by its President Vs. M.K. Noor Mohamed Rowther & Others

to conclude that the first grant, was either of the whole village area or was expressed to be of a named village and that the area excluded had already been granted for service or other tenure.The learned trial Judge and the learned Judges of the High Court thought that the inam grant of Kunanjeri village covered by title deed No. 2156 was of a named village because in col. 21 the boundaries of the whole village were given and the whole village was described as a grain rented village. In my opinion, from this recital in Col. 21 such an inference was not justified. The description in that part was given concerning the lease that had been granted to Mudali prior to the grant and while describing the lease it had to be said that the lease was of the whole area of the village and its boundaries were stated. When the question of grant was dealt with, it was clearly stated in entry 21 that the grant was of 39V. 17M. out of an area of 40V. 12M. The more reasonable inference is that the grant was expressed in terms of areas and not in terms of the name of a village.Even when the grant is of a particular area in a village, the village has to be named; but, in my opinion, that is not complying with the conditions mentioned in Explanation 1to S. 3(2)(d) of the Act. Under the explanation in express terms a grant has to be of a village by name and if the grant is expressed in those terms and it is discovered that it does not incorporate the whole area of the village and certain area has been excluded from it, even then the grant will be deemed to be of an estate provided the area excluded has already been granted on service or other tenure or given for communal purposes. From the entries in Exhibits B-I and A-2 such an inference cannot be drawn.Obviously the case does not fall under the main part of cl. (d) because the grant was not of the whole village as certain area was admittedly, excluded from it. It is difficult to hold positively, though it is probable. that the grant to Mudali as well as the Yerayeli grant were by the same paravangi, but even so these will be two separate grants though written on one piece of paper, the contracting parties being two different persons. Neither of these, grants can be held to be a grant of a whole village. On the scanty materials before us it is not possible to say that there were service grants. The expression "other tenure" in the explanation should ordinarily be construed ejusdem generis with a service tenure owing to the reason that these service tenures usually are resumable and in case of resumable tenures the reversionary right in the land remains in the grantee and therefore even if such resumable tenures are excluded from the grant, in substance the grant can be deemed to be of the whole village. The same can be said of lands reserved for communal purposes.9. In-Jankirama Sastri v. Jagani Gopalam. AIR 1952 Mad 224 (A), it .was observed."any inam village" in S. 3 (2) (d) means "a whole village granted in inam and not anything less than a village. however big a part it may be of that village."In my opinion, this is the true construction of 3(2) (d) and the explanation has a similar meaning. It clarifies the point that notwithstanding the exclusion of certain lands in which the grantee has a reversionary interest from the grant, nonetheless it remains a grant of a whole village provided it is so expressed. In the present case from the evidence on the record as dismissed above, all that can be satisfactorily held proved is that two blocks of land were separately granted to two different persons, whether contemporaneously or otherwise, it is difficult to say There is no evidence to find satisfactorily either the nature of the Yerayeli grant or its exact date. It seems, however, clear that the grant was not resumable, it being hereditary and being of the same nature and character as the grant to Mudali.The learned Judges were impressed by the fact that the boundaries of the village were mentioned in the register and for fixing the jodi the income from the entire village was taken into consideration and that subsequently the village was allowed to be redeemed on payment of twenty years quit rent. From the recitals in col. 21 this inference appears to be drawn, but in my view this is not a justifiable inference. It is true that in the absence of actual and authentic evidence as to the nature of the original grant a report contained in the inam register has to be given importance, subject to the qualification that the entries in the register have been accurately made and carefully written and they give a complete picture of the history of the grant and show how it originated and in what terms it was expressed. So far as Ex. A-2 is concerned, it neither gives the name of the grantor nor of the grantee. The entries given in Ex. B-1 are not, complete and accurate and do not state how the original grant was expressed and in what terms.10. For the reasons given above, in my opinion, it has not been satisfactorily established that the grant covered by title deed No. 2156 was a grant of a whole village or was expressed in terms of a named village and the area excluded was of a nature mentioned in the explanation and that being so, the definition of the word "estate" as given in S. 3(2)(d), Madras Estates Land Act, is not attracted to the facts of this case. In these circumstance under the provisions of S. 6(2) of the Act the defendant was not entitled to a permanent right of occupancy in the suit land.

1[ds]The only evidence in support of the respondents contention consists of two solitary entries (Exhibits2) from the inam register prepared in the year 1870. Those entries clearly show that the grant to the predecessor in interest of the Chatram (the appellant) did not incorporate the whole area of the village lands.is an extract from the register of inams in the whole village of Kunanjeri. Col. 2 in this extract bears the following heading : "General class to which the inam belongs" and under it the entry is "Personal. Now Dharmadayam". Col. 3 concerns the survey numbers and names of the field or fields comprised in the grant. The entry in this column is "Ayacut. Deduct poramboke minor inams No survey numbers are mentioned, though admittedly the land was described by survey numbers in the revenue papers. The fourth and fifth columns in the register relate to the extent of the grant and show that the grant was of the total area minus 63 acres odd, though this entry is not quite consistent with the statements contained in in col.21Cols. 6 and 7 relates to the cess paid by the ryot to the inamdar or the average assessment of similar government land. No entry is found under these columns. Some entries appear in Col. 7 giving calculations of the amount that during the inam proceedings was fixed as quit rent in lieu of the earlier kind rent, but these have no relevancy to the heading of the columns. In column 8 which relates to the description of the inam it was stated that it was for the personal benefit of the holder. The tenure was stated to be hereditary and the proposed quit rent was in the sum of Rs. 1.733.The heading of col. 11 is "By whom granted and in what year." The entry under it is "By Pratapa Sinha Raju 1790".Under col. 12 it is stated that the grant was under a Paravangi hearing the seal of Sri Pratapa Sinha Raja of the year 1790. Col. 13 states that the original grantee was Gudalur Venkatachala Mudali. Col. 14 mentions that at the time when the register was prepared under Regulation 31 of 1802, one Mukthambalpuram Annachatram was the registered holder. Cols. 15, 16, 17, 19 and 20 have been left blank as those columns have no relevancy to the history of this grant. In col. 18 the appellants name is entered. This column relates to the relation of the present holder to the original grantee or subsequent registered grantee. Col. 21 is for "the Deputy Collectors opinion and recommendation". It contains the following recital :This is a whole Nel Izara or grain rented village. It is supported by a Paravangi granted by Pratapa Sinha Raja in the year Tissian maya Alaf corresponding to Sadarana (A. D. 1790).From the various entries mentioned above all that can be legitimately inferred is that out of the total area of the village 40V. 12M., the land allotted to Mudali was 39V. 17M. and the land described as Yeraveli was OV. 15M. Two blocks of land, one a major block, another a minor block, were held by two different persons under two separate grants. It also appears that previous to these grants the whole village had been rented by the Raja to Mudali for a rent of 4.000 kalams. The boundaries of the village given include both these areas. There is nothing in this document from which it can be properly inferred that in express terms the village of Kunanjeri was granted to Mudali as an inam.On the other hand, it appears that when the whole village was given on lease, it was so described in clear terms. In the column dealing with the extent of the grant, it is not stated that the grant is of the village as such. On the other hand, the area granted is stated. It also does not appear from this document that the area described as Yeraeli had been granted prior to the grant of major area in 1790 or it was a contemporaneous grant by the same paravangi or was subsequent to it.6. Exhibitis another entry from the same inam register relating to the area described as Yerayeli. In col.2 it is stated that this area was also a personal grant. Col. 3 gives the survey number of the area granted. Cols. 4 and 5 give the area in acres. Col. 6 is blank, while col. 7 states the amount fixed as quit rent. In col. 8 it is stated that the grant was for the personal benefit of the holder. Col. 9 gives the amount of the proposed jodi as Rs.In col.10 it is stated that the grant is hereditary. Col. 11 is headed "By whom granted and in what year". There is no entry under this heading at all.In col. 12 it is stated that the grant was under the Paravangi of 1790. The name of the original grantee in col. 13 is also left blank. In Col 14 it is stated that one Chinna Appumuppan was registered as the holder under Regulation 31 of 1802. In col. 16 the name of the present holder is given as Viiayathammal, Age 20, Cols. 17 and 20 are left blank. Col. 18 is headed as follows: "Relation to original grantee or subsequent registered holders". Underneath this column is entered: "Grandsons widow to the party in the 14th column". In col. 21 it is stated "Reference be made to the register entry in Ex.From this document again it is not possible to hold that the Yerayeli grant was previous to the grant to Mudali or was contemporaneous or subsequent to it. The probability is that as both these grants rerfer to the Paravangi of 1790, they may have been by the same document, but it is not possible to say in what order they were made.8. Onboth these grants were confirmed by the Inam Commissioner. By title deed No. 2156, the principal grant was confirmed to the Chatram on a combined quit rent of Rs. 1,798, while by title deed No. 2157 the Yerayeli grant was confirmed in favour of the heirs of Vijaythammal. The result is that in this village two blocks of land are held under two separate grants by two different persons and they were recognized under two separate title deeds by the British Government. From this meagre material it is not possible to conclude that the first grant, was either of the whole village area or was expressed to be of a named village and that the area excluded had already been granted for service or other tenure.The learned trial Judge and the learned Judges of the High Court thought that the inam grant of Kunanjeri village covered by title deed No. 2156 was of a named village because in col. 21 the boundaries of the whole village were given and the whole village was described as a grain rented village. In my opinion, from this recital in Col. 21 such an inference was not justified. The description in that part was given concerning the lease that had been granted to Mudali prior to the grant and while describing the lease it had to be said that the lease was of the whole area of the village and its boundaries were stated. When the question of grant was dealt with, it was clearly stated in entry 21 that the grant was of 39V. 17M. out of an area of 40V. 12M. The more reasonable inference is that the grant was expressed in terms of areas and not in terms of the name of a village.Even when the grant is of a particular area in a village, the village has to be named; but, in my opinion, that is not complying with the conditions mentioned in Explanation 1to S. 3(2)(d) of the Act. Under the explanation in express terms a grant has to be of a village by name and if the grant is expressed in those terms and it is discovered that it does not incorporate the whole area of the village and certain area has been excluded from it, even then the grant will be deemed to be of an estate provided the area excluded has already been granted on service or other tenure or given for communal purposes. From the entries in Exhibitssuch an inference cannot be drawn.Obviously the case does not fall under the main part of cl. (d) because the grant was not of the whole village as certain area was admittedly, excluded from it. It is difficult to hold positively, though it is probable. that the grant to Mudali as well as the Yerayeli grant were by the same paravangi, but even so these will be two separate grants though written on one piece of paper, the contracting parties being two different persons. Neither of these, grants can be held to be a grant of a whole village. On the scanty materials before us it is not possible to say that there were service grants. The expression "other tenure" in the explanation should ordinarily be construed ejusdem generis with a service tenure owing to the reason that these service tenures usually are resumable and in case of resumable tenures the reversionary right in the land remains in the grantee and therefore even if such resumable tenures are excluded from the grant, in substance the grant can be deemed to be of the whole village. The same can be said of lands reserved for communal purposes.9.Sastri v. Jagani Gopalam. AIR 1952 Mad 224 (A), it .wasinam village" in S. 3 (2) (d) means "a whole village granted in inam and not anything less than a village. however big a part it may be of thatmy opinion, this is the true construction of 3(2) (d) and the explanation has a similar meaning. It clarifies the point that notwithstanding the exclusion of certain lands in which the grantee has a reversionary interest from the grant, nonetheless it remains a grant of a whole village provided it is so expressed. In the present case from the evidence on the record as dismissed above, all that can be satisfactorily held proved is that two blocks of land were separately granted to two different persons, whether contemporaneously or otherwise, it is difficult to say There is no evidence to find satisfactorily either the nature of the Yerayeli grant or its exact date. It seems, however, clear that the grant was not resumable, it being hereditary and being of the same nature and character as the grant to Mudali.The learned Judges were impressed by the fact that the boundaries of the village were mentioned in the register and for fixing the jodi the income from the entire village was taken into consideration and that subsequently the village was allowed to be redeemed on payment of twenty years quit rent. From the recitals in col. 21 this inference appears to be drawn, but in my view this is not a justifiable inference. It is true that in the absence of actual and authentic evidence as to the nature of the original grant a report contained in the inam register has to be given importance, subject to the qualification that the entries in the register have been accurately made and carefully written and they give a complete picture of the history of the grant and show how it originated and in what terms it was expressed. So far as Ex.is concerned, it neither gives the name of the grantor nor of the grantee. The entries given in Ex.are not, complete and accurate and do not state how the original grant was expressed and in what terms.10. For the reasons given above, in my opinion, it has not been satisfactorily established that the grant covered by title deed No. 2156 was a grant of a whole village or was expressed in terms of a named village and the area excluded was of a nature mentioned in the explanation and that being so, the definition of the word "estate" as given in S. 3(2)(d), Madras Estates Land Act, is not attracted to the facts of this case. In these circumstance under the provisions of S. 6(2) of the Act the defendant was not entitled to a permanent right of occupancy in the suit land.

### 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: to conclude that the first grant, was either of the whole village area or was expressed to be of a named village and that the area excluded had already been granted for service or other tenure.The learned trial Judge and the learned Judges of the High Court thought that the inam grant of Kunanjeri village covered by title deed No. 2156 was of a named village because in col. 21 the boundaries of the whole village were given and the whole village was described as a grain rented village. In my opinion, from this recital in Col. 21 such an inference was not justified. The description in that part was given concerning the lease that had been granted to Mudali prior to the grant and while describing the lease it had to be said that the lease was of the whole area of the village and its boundaries were stated. When the question of grant was dealt with, it was clearly stated in entry 21 that the grant was of 39V. 17M. out of an area of 40V. 12M. The more reasonable inference is that the grant was expressed in terms of areas and not in terms of the name of a village.Even when the grant is of a particular area in a village, the village has to be named; but, in my opinion, that is not complying with the conditions mentioned in Explanation 1to S. 3(2)(d) of the Act. Under the explanation in express terms a grant has to be of a village by name and if the grant is expressed in those terms and it is discovered that it does not incorporate the whole area of the village and certain area has been excluded from it, even then the grant will be deemed to be of an estate provided the area excluded has already been granted on service or other tenure or given for communal purposes. From the entries in Exhibits B-I and A-2 such an inference cannot be drawn.Obviously the case does not fall under the main part of cl. (d) because the grant was not of the whole village as certain area was admittedly, excluded from it. It is difficult to hold positively, though it is probable. that the grant to Mudali as well as the Yerayeli grant were by the same paravangi, but even so these will be two separate grants though written on one piece of paper, the contracting parties being two different persons. Neither of these, grants can be held to be a grant of a whole village. On the scanty materials before us it is not possible to say that there were service grants. The expression "other tenure" in the explanation should ordinarily be construed ejusdem generis with a service tenure owing to the reason that these service tenures usually are resumable and in case of resumable tenures the reversionary right in the land remains in the grantee and therefore even if such resumable tenures are excluded from the grant, in substance the grant can be deemed to be of the whole village. The same can be said of lands reserved for communal purposes.9. In-Jankirama Sastri v. Jagani Gopalam. AIR 1952 Mad 224 (A), it .was observed."any inam village" in S. 3 (2) (d) means "a whole village granted in inam and not anything less than a village. however big a part it may be of that village."In my opinion, this is the true construction of 3(2) (d) and the explanation has a similar meaning. It clarifies the point that notwithstanding the exclusion of certain lands in which the grantee has a reversionary interest from the grant, nonetheless it remains a grant of a whole village provided it is so expressed. In the present case from the evidence on the record as dismissed above, all that can be satisfactorily held proved is that two blocks of land were separately granted to two different persons, whether contemporaneously or otherwise, it is difficult to say There is no evidence to find satisfactorily either the nature of the Yerayeli grant or its exact date. It seems, however, clear that the grant was not resumable, it being hereditary and being of the same nature and character as the grant to Mudali.The learned Judges were impressed by the fact that the boundaries of the village were mentioned in the register and for fixing the jodi the income from the entire village was taken into consideration and that subsequently the village was allowed to be redeemed on payment of twenty years quit rent. From the recitals in col. 21 this inference appears to be drawn, but in my view this is not a justifiable inference. It is true that in the absence of actual and authentic evidence as to the nature of the original grant a report contained in the inam register has to be given importance, subject to the qualification that the entries in the register have been accurately made and carefully written and they give a complete picture of the history of the grant and show how it originated and in what terms it was expressed. So far as Ex. A-2 is concerned, it neither gives the name of the grantor nor of the grantee. The entries given in Ex. B-1 are not, complete and accurate and do not state how the original grant was expressed and in what terms.10. For the reasons given above, in my opinion, it has not been satisfactorily established that the grant covered by title deed No. 2156 was a grant of a whole village or was expressed in terms of a named village and the area excluded was of a nature mentioned in the explanation and that being so, the definition of the word "estate" as given in S. 3(2)(d), Madras Estates Land Act, is not attracted to the facts of this case. In these circumstance under the provisions of S. 6(2) of the Act the defendant was not entitled to a permanent right of occupancy in the suit land. ### Response: 1

Bhagwati Prasad Sah And Others Vs. Dulhin Rameshwari Juerand Another

evidence adduced by the parties as wholly unreliable and the learned counsel appearing for neither side has invited us to place any reliance on the same. We do not, therefore, think it necessary to refer to the oral evidence at all. His Lordship then adverted to documentary evidence and referred particularly to a registered mortgage bond executed by Imrit in favour of Ram Narain containing the following recital : "I, the executant, have been living separately and have been separate in mess from Ram Narain Sahu and Ram Saran Sahu my own nephew for a long time and at the time of separation all the movable and immovable properties were partitioned among all the three parties. Since separation, all business is carried on separately". A question was raised, however, as to whether this statement of Imrit could be legally admissible as evidence. Imrit is undoubtedly dead and Mr. Kunzru, appearing for the respondents, contended that this statement could be admitted in evidence under S. 32 (7), Evidence Act. We are not sure that S. 32 (7) is really of assistance to the respondents. The particular right, which is the subject-matter of dispute before us was certainly as serted in this transaction but not byit within the meaning of S. 13 (a). Evidence Act. We think, however, that the statements could be admitted under S. 32 (3), Evidence Act. The statements of a particular person that he is separated from a joint family, of which he was a coparcener, and that he has no further interest in the joint property or claim to any assets left by his father, would be statements made against the interest of such person, and, after such person is dead, they would be relevant under S. 32 (3), Evidence Act. The assertion that there was separation not only in respect of himself but between all the coparceners would be admissible as a connected matter and an integral part of the same statement vide Blackburn J, in Smith v. Blakey,(1867) 2 Q. B. 326. It is not merely the precise fact which is against interest that is admissible but all matters that are "involved in it and knit up with the statement". See Wigmore on Evidence, Art. 1465.9. We agree with the learned Judges of the High Court that Exs. 2, 2(a) and 2 (b) taken together afford most satisfactory evidence of there being a separation amongst all the sons of Sheo Narain and that they show further that the separation took place during Sheo Narains lifetime.This conclusion is fortified by the recitals in several other documents which were executed during this period. In fact, prior to 1905 there is no evidence of any transaction in which both Ram Narain and Ram Saran took part, or of any acquisition of property in their joint names. [After further considering the documentary evidence on record his Lordship concluded:] The result is that on the whole we are of the opinion that the view taken by the learned Judges of the High Court is correct and that there was in fact a separation of all the members of the family and not of Imrit alone during the lifetimes of Sheo Narain himself. As no case of reunion has been attempted to be made on behalf of the defendants, the facts that Ram Narain and Ram Saran lived in commensality, carried on business together and acquired properties in their joint names, or that their names were recorded as joint holders of properties in the settlement records might at best create a tenancy in common between them, but not a joint tenancy under the Mitakshara law which would attract the law of survivorship. Defendant 1, therefore, did not acquire any right by survivorship to the properties which were owned by Ram Narain and the plaintiff is entitled to succeed on this ground.10. We are unable, however, to affirm the decree in the form in which it has been made by the High Court in favour of the plaintiff. The plaintiff laid claim to the properties which are specified in Schs. I to IV of the plaint. In para. 21 of the written statement, it was expressly averred by the defendants that the list of properties and the valuation given at the foot of the plaint were incorrect. Some of the properties, it was said, were non-existent. Some debts had become time-barred and claims with regard to certain others had been dismissed. Then, there were properties owned jointly by Ram Narain and Ram Saran to the entirety of which no claim could be laid by the plaintiff. Upon this defence issue 7 was raised in the trial Court and it involved a consideration of the question as to what properties the plaintiff could claim to recover possession of even if she succeeded in establishing that her father died separate. The trial Court did not think it necessary to decide this issue, as it dismissed the plaintiffs suit altogether. The High Court, it is to be seen, has given a decree to the plaintiff in terms of her prayers in the plaint without considering this matter at all. It may be further pointed out that the plaintiff in her plaint claimed Rs. 6,600 as past mesne profits and there was a prayer for recovery of future mesne profits as well. What amount, if any the plaintiff would be entitled to recover as mesne profits and on what basis mesne profits should be calculated formed the subject-matter of issue 8 and that issue has also been left undecided by the High Court. In these circumstances, although we agree with the decision of the High Court that the plaintiffs father did die separate from defendant 1 and consequently the latter was not entitled to claim any property by right of survivorship, still for the determination of the properties with regard to which a decree for possession could be made and also for ascertainment of mesne profits, the case must be sent back to the High Court.11.

1[ds]The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but, as it is admitted here, that Imrit, one of the coparceners, did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the plaintiffs side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claimsresult is that on the whole we are of the opinion that the view taken by the learned Judges of the High Court is correct and that there was in fact a separation of all the members of the family and not of Imrit alone during the lifetimes of Sheo Narain himself. As no case of reunion has been attempted to be made on behalf of the defendants, the facts that Ram Narain and Ram Saran lived in commensality, carried on business together and acquired properties in their joint names, or that their names were recorded as joint holders of properties in the settlement records might at best create a tenancy in common between them, but not a joint tenancy under the Mitakshara law which would attract the law of survivorship. Defendant 1, therefore, did not acquire any right by survivorship to the properties which were owned by Ram Narain and the plaintiff is entitled to succeed on this ground.10. We are unable, however, to affirm the decree in the form in which it has been made by the High Court in favour of the plaintiff. The plaintiff laid claim to the properties which are specified in Schs. I to IV of the plaint. In para. 21 of the written statement, it was expressly averred by the defendants that the list of properties and the valuation given at the foot of the plaint were incorrect. Some of the properties, it was said, were non-existent. Some debts had become time-barred and claims with regard to certain others had been dismissed. Then, there were properties owned jointly by Ram Narain and Ram Saran to the entirety of which no claim could be laid by the plaintiff. Upon this defence issue 7 was raised in the trial Court and it involved a consideration of the question as to what properties the plaintiff could claim to recover possession of even if she succeeded in establishing that her father died separate. The trial Court did not think it necessary to decide this issue, as it dismissed the plaintiffs suit altogether. The High Court, it is to be seen, has given a decree to the plaintiff in terms of her prayers in the plaint without considering this matter at all. It may be further pointed out that the plaintiff in her plaint claimed Rs. 6,600 as past mesne profits and there was a prayer for recovery of future mesne profits as well. What amount, if any the plaintiff would be entitled to recover as mesne profits and on what basis mesne profits should be calculated formed the subject-matter of issue 8 and that issue has also been left undecided by the High Court. In these circumstances, although we agree with the decision of the High Court that the plaintiffs father did die separate from defendant 1 and consequently the latter was not entitled to claim any property by right of survivorship, still for the determination of the properties with regard to which a decree for possession could be made and also for ascertainment of mesne profits, the case must be sent back to the High Court.

### 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: evidence adduced by the parties as wholly unreliable and the learned counsel appearing for neither side has invited us to place any reliance on the same. We do not, therefore, think it necessary to refer to the oral evidence at all. His Lordship then adverted to documentary evidence and referred particularly to a registered mortgage bond executed by Imrit in favour of Ram Narain containing the following recital : "I, the executant, have been living separately and have been separate in mess from Ram Narain Sahu and Ram Saran Sahu my own nephew for a long time and at the time of separation all the movable and immovable properties were partitioned among all the three parties. Since separation, all business is carried on separately". A question was raised, however, as to whether this statement of Imrit could be legally admissible as evidence. Imrit is undoubtedly dead and Mr. Kunzru, appearing for the respondents, contended that this statement could be admitted in evidence under S. 32 (7), Evidence Act. We are not sure that S. 32 (7) is really of assistance to the respondents. The particular right, which is the subject-matter of dispute before us was certainly as serted in this transaction but not byit within the meaning of S. 13 (a). Evidence Act. We think, however, that the statements could be admitted under S. 32 (3), Evidence Act. The statements of a particular person that he is separated from a joint family, of which he was a coparcener, and that he has no further interest in the joint property or claim to any assets left by his father, would be statements made against the interest of such person, and, after such person is dead, they would be relevant under S. 32 (3), Evidence Act. The assertion that there was separation not only in respect of himself but between all the coparceners would be admissible as a connected matter and an integral part of the same statement vide Blackburn J, in Smith v. Blakey,(1867) 2 Q. B. 326. It is not merely the precise fact which is against interest that is admissible but all matters that are "involved in it and knit up with the statement". See Wigmore on Evidence, Art. 1465.9. We agree with the learned Judges of the High Court that Exs. 2, 2(a) and 2 (b) taken together afford most satisfactory evidence of there being a separation amongst all the sons of Sheo Narain and that they show further that the separation took place during Sheo Narains lifetime.This conclusion is fortified by the recitals in several other documents which were executed during this period. In fact, prior to 1905 there is no evidence of any transaction in which both Ram Narain and Ram Saran took part, or of any acquisition of property in their joint names. [After further considering the documentary evidence on record his Lordship concluded:] The result is that on the whole we are of the opinion that the view taken by the learned Judges of the High Court is correct and that there was in fact a separation of all the members of the family and not of Imrit alone during the lifetimes of Sheo Narain himself. As no case of reunion has been attempted to be made on behalf of the defendants, the facts that Ram Narain and Ram Saran lived in commensality, carried on business together and acquired properties in their joint names, or that their names were recorded as joint holders of properties in the settlement records might at best create a tenancy in common between them, but not a joint tenancy under the Mitakshara law which would attract the law of survivorship. Defendant 1, therefore, did not acquire any right by survivorship to the properties which were owned by Ram Narain and the plaintiff is entitled to succeed on this ground.10. We are unable, however, to affirm the decree in the form in which it has been made by the High Court in favour of the plaintiff. The plaintiff laid claim to the properties which are specified in Schs. I to IV of the plaint. In para. 21 of the written statement, it was expressly averred by the defendants that the list of properties and the valuation given at the foot of the plaint were incorrect. Some of the properties, it was said, were non-existent. Some debts had become time-barred and claims with regard to certain others had been dismissed. Then, there were properties owned jointly by Ram Narain and Ram Saran to the entirety of which no claim could be laid by the plaintiff. Upon this defence issue 7 was raised in the trial Court and it involved a consideration of the question as to what properties the plaintiff could claim to recover possession of even if she succeeded in establishing that her father died separate. The trial Court did not think it necessary to decide this issue, as it dismissed the plaintiffs suit altogether. The High Court, it is to be seen, has given a decree to the plaintiff in terms of her prayers in the plaint without considering this matter at all. It may be further pointed out that the plaintiff in her plaint claimed Rs. 6,600 as past mesne profits and there was a prayer for recovery of future mesne profits as well. What amount, if any the plaintiff would be entitled to recover as mesne profits and on what basis mesne profits should be calculated formed the subject-matter of issue 8 and that issue has also been left undecided by the High Court. In these circumstances, although we agree with the decision of the High Court that the plaintiffs father did die separate from defendant 1 and consequently the latter was not entitled to claim any property by right of survivorship, still for the determination of the properties with regard to which a decree for possession could be made and also for ascertainment of mesne profits, the case must be sent back to the High Court.11. ### Response: 1

Sadhana Lodh Vs. National Insurance Company Ltd.

Khare, CJI. 1. Leave granted. 2. The appellants son, aged 24 years and drawing a sum of Rs.4,000/- per months, died in a motor vehicle accident. The appellant herein filed a claim petition before the Motor Accidents Claims Tribunal (hereinafter referred to as the Tribunal). The Tribunal awarded a sum of Rs. 3,50,000/- as compensation. Aggrieved, the insurer, who is respondent No.1 herein, filed a writ petition under Articles 226 and 227 of the Constitution of India before the Guwahati High Court. A learned Single Judge of the High Court dismissed the writ petition. Aggrieved, the insurer preferred a Letters Patent Appeal before the Division Bench of the High Court. Before the High Court, the claimant took an objection that since petition under Article 226/227 is not maintainable, therefore, the appeal is totally misconceived and the same deserves dismissal on that ground alone. However, the Division Bench of the High Court, after overruling the objection allowed the appeal preferred by the insurer and reduced the compensation from Rs. 3,50,000/- to Rs. 3,00,000/- It is against the said judgment, the present appeal has been filed by way of special leave petition. 3. Learned counsel appearing for the appellant urged that in view of the fact that under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), a remedy by way of appeal to the High Court is available to the insurer against an award given by the Tribunal and, therefore, the filing of a petition under Article 227 of the Constitution was misconceived and deserved dismissal and the High Court ought not to have entertained and decided the writ petition on merits. We find merit in the submission. 4. It is not disputed that under Section 173 of the Act, an insurer has right to file an appeal before the High Court on limited grounds available under Section 149(2) of the Act. However, in a situation where there is a collusion between the claimant and the insured or the insured does not contest the claim and further if the Tribunal does not implead the insurance company to contest the claim, in such a situation it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merit, in that case it is open to the insurer to file an appeal against the award of the Tribunal on merits. Thus, in such a situation, the insurer can question the quantum of compensation awarded by the Tribunal. 5. However, learned counsel for the respondent argued that since an insurer had limited grounds available under Section 173 of the Act, it is open to an insurer to file a petition under Article 226/227 of the Constitution. 6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd. Chandigarh vs. Nicolletta Rohtagi and others (2002 (7) SCC 456 ). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 C.P.C., in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115 C.P.C., no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution. 7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.

1[ds]6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd. Chandigarh vs. Nicolletta Rohtagi and others (2002 (7) SCC 456 ). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 C.P.C., in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115 C.P.C., no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: Khare, CJI. 1. Leave granted. 2. The appellants son, aged 24 years and drawing a sum of Rs.4,000/- per months, died in a motor vehicle accident. The appellant herein filed a claim petition before the Motor Accidents Claims Tribunal (hereinafter referred to as the Tribunal). The Tribunal awarded a sum of Rs. 3,50,000/- as compensation. Aggrieved, the insurer, who is respondent No.1 herein, filed a writ petition under Articles 226 and 227 of the Constitution of India before the Guwahati High Court. A learned Single Judge of the High Court dismissed the writ petition. Aggrieved, the insurer preferred a Letters Patent Appeal before the Division Bench of the High Court. Before the High Court, the claimant took an objection that since petition under Article 226/227 is not maintainable, therefore, the appeal is totally misconceived and the same deserves dismissal on that ground alone. However, the Division Bench of the High Court, after overruling the objection allowed the appeal preferred by the insurer and reduced the compensation from Rs. 3,50,000/- to Rs. 3,00,000/- It is against the said judgment, the present appeal has been filed by way of special leave petition. 3. Learned counsel appearing for the appellant urged that in view of the fact that under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), a remedy by way of appeal to the High Court is available to the insurer against an award given by the Tribunal and, therefore, the filing of a petition under Article 227 of the Constitution was misconceived and deserved dismissal and the High Court ought not to have entertained and decided the writ petition on merits. We find merit in the submission. 4. It is not disputed that under Section 173 of the Act, an insurer has right to file an appeal before the High Court on limited grounds available under Section 149(2) of the Act. However, in a situation where there is a collusion between the claimant and the insured or the insured does not contest the claim and further if the Tribunal does not implead the insurance company to contest the claim, in such a situation it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merit, in that case it is open to the insurer to file an appeal against the award of the Tribunal on merits. Thus, in such a situation, the insurer can question the quantum of compensation awarded by the Tribunal. 5. However, learned counsel for the respondent argued that since an insurer had limited grounds available under Section 173 of the Act, it is open to an insurer to file a petition under Article 226/227 of the Constitution. 6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd. Chandigarh vs. Nicolletta Rohtagi and others (2002 (7) SCC 456 ). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 C.P.C., in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115 C.P.C., no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution. 7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision. ### Response: 1

Jagat Ram Sethi Vs. R.B.D.D. Jain & Others

behalf of the appellant is that an allotment order was made on February 27, 1950, by the Rent Control Officer in favour of the appellant. In that allotment order the schedule of accommodation contained the following : "A mud roof verandah and a kothri with open place at present is used by Shri Mohd. Ibrahim for tonga repairing work, situated at Begum Bridge Road in front of Dr. Phopels kothi." It appears that Harbans Lal drafted out a letter to the Rent Control Officer pointing out that only a part of the land had been let out by him to Mistri Mohd. Ibrahim by an agreement, dated January 7, 1941, according to which he was authorised to make temporary construction and that he had actually constructed a shed at his own cost which he was liable to remove when the land was required by the landlord. This letter, however, was never sent to the Rent Control Officer. It has, therefore, been urged on behalf of the appellant that Harbans Lal accepted this statement contained in the allotment order. It is suggested that the existence of a mud roof verandah and kothri on the land would bring the premises within the definition of "accommodation". The Additional Civil Judge who considered the evidence expressed the view that the kothri and verandah had been constructed by Mistri Ibrahim but Harbans Lal never came into possession of these constructions as the appellant had been given possession by Mistri Ibrahim. Reliance was placed on Para 14 of the written statement in which it was admitted that the defendant-appellant had acquired the goodwill, business and the workshop of Mistri Ibrahim and had settled on the land with the consent and permission of Harbans Lal. Reference was also made to the notice, dated April 21, 1950, according to which both Mistri Ibrahim and the appellant were in possession of the property in suit on April 21, 1950. According to the learned judge the evidence established that the appellant was making efforts to take possession of the property in the tenancy of Ibrahim without its reverting back to the landlord and had succeeded in doing so. Under Section 108(h) of the Transfer of Property Act the lessee could, after determination of the lease, remove while in possession the construction made by him but if he failed to do so and the property reverted to the lessor the fixtures etc. would become the property of the latter. Since Mistri Ibrahim did not put the landlord in possession and transferred the land together with the structure put up by him to the appellant the transferee stepped into the shoes of the lessee. Thus so far as the appellant and Harbans Lal were concerned the former was tenant only of the land and no accommodation had been rented out to him by the latter. As such the provisions of Section 3 of the Act would not be attracted. The High Court also considered this point and expressed the opinion that the structures never became the property of the landlord. 6. Mr. M. C. Chagla who argued the case on behalf of the appellant does not and indeed cannot contend that if the structures which were put up by Mistri Ibrahim never became the property of Harbans Lal any accommodation within the meaning of Section 2(a) of the Act could be said to have been leased or let out to the appellant by Harbans Lal. It was the land alone in respect of which the tenancy existed. That by itself could not fall within the definition of accommodation and consequently the permission of the District Magistrate under Section 3 of the Act was not necessary for institution of a suit for ejectment. We have no doubt, therefore, that the conclusion of the courts below on this point is correct. 7. Mr. Chagla has sought to urge that the respondents were estopped from filing the suit. According to him several constructions were made by the appellant on the land in question with the knowledge of the respondents. The High Court relied on the findings of the courts below that no such action on the part of the lessor had been proved on the basis of which it could be held that the appellant had altered the position to his detriment. If the lessee chose to make unauthorised constructions at his own risk and the lessor did not take action the latter could not, on that account, be estopped from filing a suit for ejectment. According to Mr. Chagla the allotment order made in February, 1950, by the Rent Control Officer in favour of the appellant was never challenged by Harbans Lal or the respondents. It was on the basis of that order and the representation contained in it that it was accommodation which was to be the subject-matter of tenancy that the appellant had expanded a good deal of money on further construction. We are wholly unable to understand how any description of the property in the allotment order could be treated as a representation made by the respondents. It has not been shown that the allotment order created any such rights on the basis of which the appellant could find his defence on the rule of estoppel. The Additional Civil Judge had found on Issue No. 4 that Harbans Lal never gave express consent for the constructions to be raised but he knew about their existence. We concur in the view of the High Court that mere inaction on the part of the lessor did not entitle the lessee to resist the suit on the ground of estoppel. The lessee had the right under Section 108(h) of the Transfer of Property Act to remove the constructions while he was in possession. There was no provision in that Act which debarred the lessor from determining the lease under Section 111 merely because constructions had been made by the lessee even to the knowledge of the lessor, and from instituting the suit for ejectment.

0[ds]6. Mr. M. C. Chagla who argued the case on behalf of the appellant does not and indeed cannot contend that if the structures which were put up by Mistri Ibrahim never became the property of Harbans Lal any accommodation within the meaning of Section 2(a) of the Act could be said to have been leased or let out to the appellant by HarbansLal.It was the land alone in respect of which the tenancy existed. That by itself could not fall within the definition of accommodation and consequently the permission of the District Magistrate under Section 3 of the Act was not necessary for institution of a suit for ejectment. We have no doubt, therefore, that the conclusion of the courts below on this point is correct7. Mr. Chagla has sought to urge that the respondents were estopped from filing the suit. According to him several constructions were made by the appellant on the land in question with the knowledge of the respondents.The High Court relied on the findings of the courts below that no such action on the part of the lessor had been proved on the basis of which it could be held that the appellant had altered the position to his detriment. If the lessee chose to make unauthorised constructions at his own risk and the lessor did not take action the latter could not, on that account, be estopped from filing a suit for ejectment. According to Mr. Chagla the allotment order made in February, 1950, by the Rent Control Officer in favour of the appellant was never challenged by Harbans Lal or the respondents. It was on the basis of that order and the representation contained in it that it was accommodation which was to be ther of tenancy that the appellant had expanded a good deal of money on further construction. We are wholly unable to understand how any description of the property in the allotment order could be treated as a representation made by the respondents. It has not been shown that the allotment order created any such rights on the basis of which the appellant could find his defence on the rule of estoppel. The Additional Civil Judge had found on Issue No. 4 that Harbans Lal never gave express consent for the constructions to be raised but he knew about their existence. We concur in the view of the High Court that mere inaction on the part of the lessor did not entitle the lessee to resist the suit on the ground of estoppel. The lessee had the right under Section 108(h) of the Transfer of Property Act to remove the constructions while he was in possession. There was no provision in that Act which debarred the lessor from determining the lease under Section 111 merely because constructions had been made by the lessee even to the knowledge of the lessor, and from instituting the suit for ejectment.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: behalf of the appellant is that an allotment order was made on February 27, 1950, by the Rent Control Officer in favour of the appellant. In that allotment order the schedule of accommodation contained the following : "A mud roof verandah and a kothri with open place at present is used by Shri Mohd. Ibrahim for tonga repairing work, situated at Begum Bridge Road in front of Dr. Phopels kothi." It appears that Harbans Lal drafted out a letter to the Rent Control Officer pointing out that only a part of the land had been let out by him to Mistri Mohd. Ibrahim by an agreement, dated January 7, 1941, according to which he was authorised to make temporary construction and that he had actually constructed a shed at his own cost which he was liable to remove when the land was required by the landlord. This letter, however, was never sent to the Rent Control Officer. It has, therefore, been urged on behalf of the appellant that Harbans Lal accepted this statement contained in the allotment order. It is suggested that the existence of a mud roof verandah and kothri on the land would bring the premises within the definition of "accommodation". The Additional Civil Judge who considered the evidence expressed the view that the kothri and verandah had been constructed by Mistri Ibrahim but Harbans Lal never came into possession of these constructions as the appellant had been given possession by Mistri Ibrahim. Reliance was placed on Para 14 of the written statement in which it was admitted that the defendant-appellant had acquired the goodwill, business and the workshop of Mistri Ibrahim and had settled on the land with the consent and permission of Harbans Lal. Reference was also made to the notice, dated April 21, 1950, according to which both Mistri Ibrahim and the appellant were in possession of the property in suit on April 21, 1950. According to the learned judge the evidence established that the appellant was making efforts to take possession of the property in the tenancy of Ibrahim without its reverting back to the landlord and had succeeded in doing so. Under Section 108(h) of the Transfer of Property Act the lessee could, after determination of the lease, remove while in possession the construction made by him but if he failed to do so and the property reverted to the lessor the fixtures etc. would become the property of the latter. Since Mistri Ibrahim did not put the landlord in possession and transferred the land together with the structure put up by him to the appellant the transferee stepped into the shoes of the lessee. Thus so far as the appellant and Harbans Lal were concerned the former was tenant only of the land and no accommodation had been rented out to him by the latter. As such the provisions of Section 3 of the Act would not be attracted. The High Court also considered this point and expressed the opinion that the structures never became the property of the landlord. 6. Mr. M. C. Chagla who argued the case on behalf of the appellant does not and indeed cannot contend that if the structures which were put up by Mistri Ibrahim never became the property of Harbans Lal any accommodation within the meaning of Section 2(a) of the Act could be said to have been leased or let out to the appellant by Harbans Lal. It was the land alone in respect of which the tenancy existed. That by itself could not fall within the definition of accommodation and consequently the permission of the District Magistrate under Section 3 of the Act was not necessary for institution of a suit for ejectment. We have no doubt, therefore, that the conclusion of the courts below on this point is correct. 7. Mr. Chagla has sought to urge that the respondents were estopped from filing the suit. According to him several constructions were made by the appellant on the land in question with the knowledge of the respondents. The High Court relied on the findings of the courts below that no such action on the part of the lessor had been proved on the basis of which it could be held that the appellant had altered the position to his detriment. If the lessee chose to make unauthorised constructions at his own risk and the lessor did not take action the latter could not, on that account, be estopped from filing a suit for ejectment. According to Mr. Chagla the allotment order made in February, 1950, by the Rent Control Officer in favour of the appellant was never challenged by Harbans Lal or the respondents. It was on the basis of that order and the representation contained in it that it was accommodation which was to be the subject-matter of tenancy that the appellant had expanded a good deal of money on further construction. We are wholly unable to understand how any description of the property in the allotment order could be treated as a representation made by the respondents. It has not been shown that the allotment order created any such rights on the basis of which the appellant could find his defence on the rule of estoppel. The Additional Civil Judge had found on Issue No. 4 that Harbans Lal never gave express consent for the constructions to be raised but he knew about their existence. We concur in the view of the High Court that mere inaction on the part of the lessor did not entitle the lessee to resist the suit on the ground of estoppel. The lessee had the right under Section 108(h) of the Transfer of Property Act to remove the constructions while he was in possession. There was no provision in that Act which debarred the lessor from determining the lease under Section 111 merely because constructions had been made by the lessee even to the knowledge of the lessor, and from instituting the suit for ejectment. ### Response: 0

Commissioner of Sales Tax, U.P Vs. Ganga Sugar Corporation Limited Commissioner of Sales Tax, U.P. v. Behari Lal Ram Prasad. Ganga Sugar Corporation Limited v. Commissioner of Sales Tax, U.P

anything to the contrary contained in any order of an officer or tribunal or the judgment, decree or order of a court, every person who has collected or collects on or after 1st May, 1950, any amount by way of tax otherwise than in accordance with the provisions of this Act, shall pay over to the Government, within such time and in such manner as may be prescribed the amount to collected by him, and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue."5. It was decided that the State Legislature could not be regarded as having directly legislated for the imposition of sales and purchase tax under entry 54, List II, in the Constitution when it made the provisions of section 11(2) because on the face of the provisions the amount though collected by way of tax was not exigible as tax under the law. This is what was observed at page 873 :"We do not think that the ambit of ancillary or incidental power goes 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 still be paid over to Government, as if it were a tax."6. Reliance by counsel was placed in that case on a decision of the Madras High Court in Indian Aluminium Co., Ltd., Calcutta v. The State of Madras ([1962] 13 S.T.C. 967). That decision was with respect to section 8-B of the Madras General Sales Tax Act (9 of 1939 as amended by Madras Act 1 of 1956). It as observed that though the words in section 8-B(2) were not exactly the same as in section 11(2) of the Hyderabad Act, the provision in substance was to the same effect as in section 11(2). Therefore the Madras decision must be held to be incorrect.Now section 8-B(2) of the Madras Act was in the following terms :-"8-B. (2) Every person who has collected or collects any amount purporting to be by way of tax under this Act, on or after the 1st day of April, 1947 (whether or not any tax is due from him under this Act in respect of the transaction in which he has collected or collects such amount) shall pay over to the (State) Government within the such time and in such manner as may be prescribed, all amounts so collected by him if they are in excess of the tax, if any, paid by him for the period during which the collections were made."Section 8-A(4) of the Act may be reproduced :"8-A. (4) Without prejudice to the provisions of clause (g) of sub-section (2) of section 14, the amount realised by any person as tax on sale of any goods shall, notwithstanding anything contained in any other provision of this Act, be deposited by him in Government treasury within such period as may be prescribed, if the amount so realised exceeds the amount payable as tax in respect of that sale or if no tax is payable in respect thereof."7. Mr. C. B. Agarwala has not been able to point to much difference between section 8-B(2) of the Madras Act and section 8-A(4) of the Act. He has, however, contended that in R. Abdul Quaders case ([1964] 6 S.C.R. 867; 15 S.T.C. 403), section 11(2) related to tax which had been collected otherwise than in accordance with the provisions of that Act. It was for that reason that it was held that the relevant entry under which the legislation had been enacted could not have covered such a provision even by invoking the theory of ancillary or incidental powers. In the present case, according to him, the State Legislature was perfectly competent to legislate about imposition of the tax under the corresponding entry in the Government of India Act, 1935, on inter-State sales before the enactment of the Constitution in which article 286 created a bar to the imposition of tax on inter-State sales except in accordance with the provisions of that article. A perusal of the orders made by the sales tax authorities in the present case and the judgments of the High Court as also the section itself would show that section 8-A(4) of the Act was applicable only where an assessee had realised amounts of sales tax from his customers which were unauthorised in the sense that the amount realised exceeded the amount payable as tax or no tax was payable. At any rate, it is perfectly clear that the tax liability of the assessee came to Rs. 14, 621-9-4 only and therefore the excess which had been realised by him (the total amount realised being Rs. 1, 20, 000) could not be regarded as having been realised lawfully. It seems to us that the decision in R. Abdul Quaders case ([1964] 6 S.C.R. 867; 15 S.T.C. 403) squarely applies and section 8-A(4) of the Act must be held to be ultra vires the competence of the State Legislature.In Civil Appeal No. 1284 of 1966, where the facts were similar to the other appeal the point about the vires of section 8-A(4) of the Act was specifically raised and decided without any objection by the Commissioner of Sales Tax. It has now been laid down by this court in M/s. Tikaram & Sons Ltd. v. The Commissioner of Sales Tax, U.P. (Civil Appeals Nos. 1682 to 1691 of 1967; since reported at [1968] 22 S.T.C. 308), decided on March 22, 1968, that when the jurisdiction of the High Court is not challenged to examine the question of law regarding constitutional validity of a taxing provision in a sales tax reference it is not open to the sales tax authorities to challenge the jurisdiction of the High Court to examine such a question of law and to pronounce upon the constitutional validity of the impugned section.

1[ds]In view of the settled rule that in a tax reference the question of vires of a taxing provision cannot be gone into the assessee has filed a petition under article 32 of the Constitution in this court challenging the vires of sectionof the Act on the ground of back of legislative competence of the State Legislature and also being violative of the fundamental rights under article 19(1)(f) of the Constitution.. C. B. Agarwala has not been able to point to much difference between sectionof the Madras Act and sectionof the Act. He has, however, contended that in R. Abdul Quaders case ([1964] 6 S.C.R. 867; 15 S.T.C. 403), section 11(2) related to tax which had been collected otherwise than in accordance with the provisions of that Act. It was for that reason that it was held that the relevant entry under which the legislation had been enacted could not have covered such a provision even by invoking the theory of ancillary or incidental powers. In the present case, according to him, the State Legislature was perfectly competent to legislate about imposition of the tax under the corresponding entry in the Government of India Act, 1935, ons before the enactment of the Constitution in which article 286 created a bar to the imposition of tax ons except in accordance with the provisions of that article.A perusal of the orders made by the sales tax authorities in the present case and the judgments of the High Court as also the section itself would show that sectionof the Act was applicable only where an assessee had realised amounts of sales tax from his customers which were unauthorised in the sense that the amount realised exceeded the amount payable as tax or no tax was payable. At any rate, it is perfectly clear that the tax liability of the assessee came to Rs. 14,only and therefore the excess which had been realised by him (the total amount realised being Rs. 1, 20, 000) could not be regarded as having been realised lawfully. It seems to us that the decision in R. Abdul Quaders case ([1964] 6 S.C.R. 867; 15 S.T.C. 403) squarely applies and sectionof the Act must be held to be ultra vires the competence of the State Legislature.In Civil Appeal No. 1284 of 1966, where the facts were similar to the other appeal the point about the vires of sectionof the Act was specifically raised and decided without any objection by the Commissioner of Sales Tax. It has now been laid down by this court in M/s. Tikaram & Sons Ltd. v. The Commissioner of Sales Tax, U.P. (Civil Appeals Nos. 1682 to 1691 of 1967; since reported at [1968] 22 S.T.C. 308), decided on March 22, 1968, that when the jurisdiction of the High Court is not challenged to examine the question of law regarding constitutional validity of a taxing provision in a sales tax reference it is not open to the sales tax authorities to challenge the jurisdiction of the High Court to examine such a question of law and to pronounce upon the constitutional validity of the impugned section.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: anything to the contrary contained in any order of an officer or tribunal or the judgment, decree or order of a court, every person who has collected or collects on or after 1st May, 1950, any amount by way of tax otherwise than in accordance with the provisions of this Act, shall pay over to the Government, within such time and in such manner as may be prescribed the amount to collected by him, and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue."5. It was decided that the State Legislature could not be regarded as having directly legislated for the imposition of sales and purchase tax under entry 54, List II, in the Constitution when it made the provisions of section 11(2) because on the face of the provisions the amount though collected by way of tax was not exigible as tax under the law. This is what was observed at page 873 :"We do not think that the ambit of ancillary or incidental power goes 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 still be paid over to Government, as if it were a tax."6. Reliance by counsel was placed in that case on a decision of the Madras High Court in Indian Aluminium Co., Ltd., Calcutta v. The State of Madras ([1962] 13 S.T.C. 967). That decision was with respect to section 8-B of the Madras General Sales Tax Act (9 of 1939 as amended by Madras Act 1 of 1956). It as observed that though the words in section 8-B(2) were not exactly the same as in section 11(2) of the Hyderabad Act, the provision in substance was to the same effect as in section 11(2). Therefore the Madras decision must be held to be incorrect.Now section 8-B(2) of the Madras Act was in the following terms :-"8-B. (2) Every person who has collected or collects any amount purporting to be by way of tax under this Act, on or after the 1st day of April, 1947 (whether or not any tax is due from him under this Act in respect of the transaction in which he has collected or collects such amount) shall pay over to the (State) Government within the such time and in such manner as may be prescribed, all amounts so collected by him if they are in excess of the tax, if any, paid by him for the period during which the collections were made."Section 8-A(4) of the Act may be reproduced :"8-A. (4) Without prejudice to the provisions of clause (g) of sub-section (2) of section 14, the amount realised by any person as tax on sale of any goods shall, notwithstanding anything contained in any other provision of this Act, be deposited by him in Government treasury within such period as may be prescribed, if the amount so realised exceeds the amount payable as tax in respect of that sale or if no tax is payable in respect thereof."7. Mr. C. B. Agarwala has not been able to point to much difference between section 8-B(2) of the Madras Act and section 8-A(4) of the Act. He has, however, contended that in R. Abdul Quaders case ([1964] 6 S.C.R. 867; 15 S.T.C. 403), section 11(2) related to tax which had been collected otherwise than in accordance with the provisions of that Act. It was for that reason that it was held that the relevant entry under which the legislation had been enacted could not have covered such a provision even by invoking the theory of ancillary or incidental powers. In the present case, according to him, the State Legislature was perfectly competent to legislate about imposition of the tax under the corresponding entry in the Government of India Act, 1935, on inter-State sales before the enactment of the Constitution in which article 286 created a bar to the imposition of tax on inter-State sales except in accordance with the provisions of that article. A perusal of the orders made by the sales tax authorities in the present case and the judgments of the High Court as also the section itself would show that section 8-A(4) of the Act was applicable only where an assessee had realised amounts of sales tax from his customers which were unauthorised in the sense that the amount realised exceeded the amount payable as tax or no tax was payable. At any rate, it is perfectly clear that the tax liability of the assessee came to Rs. 14, 621-9-4 only and therefore the excess which had been realised by him (the total amount realised being Rs. 1, 20, 000) could not be regarded as having been realised lawfully. It seems to us that the decision in R. Abdul Quaders case ([1964] 6 S.C.R. 867; 15 S.T.C. 403) squarely applies and section 8-A(4) of the Act must be held to be ultra vires the competence of the State Legislature.In Civil Appeal No. 1284 of 1966, where the facts were similar to the other appeal the point about the vires of section 8-A(4) of the Act was specifically raised and decided without any objection by the Commissioner of Sales Tax. It has now been laid down by this court in M/s. Tikaram & Sons Ltd. v. The Commissioner of Sales Tax, U.P. (Civil Appeals Nos. 1682 to 1691 of 1967; since reported at [1968] 22 S.T.C. 308), decided on March 22, 1968, that when the jurisdiction of the High Court is not challenged to examine the question of law regarding constitutional validity of a taxing provision in a sales tax reference it is not open to the sales tax authorities to challenge the jurisdiction of the High Court to examine such a question of law and to pronounce upon the constitutional validity of the impugned section. ### Response: 1

PERRY KANSAGRA Vs. SMRITI MADAN KANSAGRA

question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the moral and ethical welfare of the child must also weigh with the court as well as his physical well- being . The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution, with love, affection and sentiments applying human touch to the problem. Though, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases. (Vide Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1 : AIR 2009 SC 557 .) 19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. (Vide Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42 : 1987 SCC (Cri) 13 : AIR 1987 SC 3 , Chandrakala Menon v. Vipin Menon (1993) 2 SCC 6 : 1993 SCC (Cri) 485 , Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413 , Shilpa Aggarwal v. Aviral Mittal (2010) 1 SCC 591 : (2010) 1 SCC (Civ) 192 and Athar Hussain v. Syed Siraj Ahmed (2010) 2 SCC 654 : (2010) 1 SCC (Civ) 528 .) 27. Statements made by the parents during the course of mediation may not be relied upon on the ground of confidentiality but natural responses and statements made by the minor to the Counsellor would certainly afford a chance to decide what is in the best interest of the child. A child may respond naturally and spontaneously in its interactions with the Counsellor, who is professionally trained to make the child feel comfortable. Record of such interaction may afford valuable inputs to the Court in discharge of its duties in parens patriae jurisdiction. If during such interaction issues or aspects concerning welfare of a child are noticed, there is no reason why the Court be deprived of access to such aspects. As held by this Court in various judgments, the paramount consideration ought to be to see what is in the best interest of the child. 28. In terms of Sub Rule (viii) of Rule 8, the Counsellor is obliged to give report, inter alia, relating to home environment of the parties concerned, their personalities and their relationship with the child and/or children in order to assist the Judge in deciding the question of guardianship of any child or children. The intention is clear that the normal principle of confidentiality will not apply in matters concerning custody or guardianship issues and the Court, in the best interest of the child, must be equipped with all the material touching upon relevant issues in order to render complete justice. This departure from confidentially is consistent with the underlined theme of the Act in general and Section 12 in particular. Once there is a clear exception in favour of categories stated therein, principles in any other forms of mediation/conciliation or other modes of Alternative Dispute Resolution regarding confidentiality cannot be imported. The effect of such exception cannot be diluted or nullified. In our view, the High Court considered the matter in correct perspective in paragraphs 17 to 20 of its judgment dated 07.02.2017. 29. There is, however, one aspect which must also be considered and that is who is the Counsellor within the meaning of Rule 8 and whether the Counsellor who assisted the court in the present matter comes within the four corners of said provision. It is true that under Section 6 the Counsellors are appointed by the State Government in consultation with the High Court. It is also true that the Counsellor in the present case was not the one who was appointed in terms of Section 6 but was appointed by a committee of the High Court and her assistance had been requested for in connection with many matters. The order passed on 06.05.2016 had indicated that the Mediator could join any other person as may be deemed necessary for a holistic and effective mediation. The next order dated 11.05.2016 did mention the name of the Counsellor and the fact that the Counsellor had a fruitful meeting with Aditya. The Counsellor, thereafter, interacted with him on 08.07.2016 and 11.07.2016, based on which interaction, a report was submitted on 21.07.2016. The engagement of the Counsellor was thus in complete knowledge of the parties as well as with express acceptance of the High Court. It may be that said Counsellor was not appointed under Section 6 of the Act but if the paramount consideration is the welfare of the child, there cannot be undue reliance on a technicality. As a matter of fact, the width of Section 12 of the Act would admit no such restriction. The report given by the Counsellor in the present case cannot, therefore, be eschewed from consideration. It is noteworthy that there was absolutely nothing against the Counsellor and in the judgment under appeal, the High Court went on to observe in para No.30 that the Counsellor was well experienced and known for her commitment and sincerity to secure a settlement which would be satisfactory to all.

1[ds]16. We have gone through both the judgments of the High Court in the instant case and considered rival submissions on the point. It is well settled that an error which is required to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record. To justify exercise of review jurisdiction, the error must be self-evident. Tested on this parameter, the exercise of jurisdiction in the present case was not correct. The exercise undertaken in the present case, in our considered view, was as if the High Court was sitting in appeal over the earlier decision dated 17.02.2017. Even assuming that there was no correct appreciation of facts and law in the earlier judgment, the parties could be left to challenge the decision in an appeal. But the review was not a proper remedy at all. In our view, the High Court erred in entertaining the review petition and setting aside the earlier view dated 17.02.2017. Having so concluded, the logical course in the circumstances would be to set aside the judgment under appeal and permit the respondent to challenge the judgment dated 17.02.2017. But such a course would entail further litigation and therefore, we have considered the matter from the stand point of second issue as well24. We, thus, have line of cases dealing with mediation/conciliation and other proceedings in general and Rule 8 of the Rules dealing inter alia, with custody issues which is in the nature of an exception to the norms of confidentiality. It is true that the process of mediation is founded on the element of confidentiality. Qualitatively, Mediation or Conciliation stands on a completely different footing as against regular adjudicatory processes. Instead of an adversarial stand in adjudicatory proceedings, the idea of mediation is to resolve the dispute at a level which is amicable rather than adversarial. In the process, the parties may make statements which they otherwise they would not have made while the matter was pending adjudication before a court of law. Such statements which are essentially made in order to see if there could be a settlement, ought not to be used against the maker of such statements in case at a later point the attempts at mediation completely fail. If the statements are allowed to be used at subsequent stages, the element of confidence which is essential for healthy mediation/conciliation would be completely lost. The element of confidentiality and the assurance that the statements would not be relied upon helps the parties bury the hatchet and move towards resolution of the disputes. The confidentiality is, thus, an important element of mediation/conciliation25. Complete adherence to confidentiality would absolutely be correct in normal matters where the role of the court is purely of an adjudicator. But such an approach may not essentially be conducive when the court is called upon and expected to discharge its role in the capacity as parens patriae and is concerned with the welfare of a child. All custody and guardianship issues are resolved on the touchstone or parameter of best interest of the child. In custody and guardianship disputes between two parties, a minor child is in a peculiar situation. At times, both sides are busy fighting legal battles and the court is called upon in parens patriae to decide what is in the best interest of the child. In order to reach correct conclusion, the court may interview the child or may depend upon the analysis of an expert who may spend some more time with the child and gauge the upbringing, personality, desires or mental frame of the child and render assistance to the court. It is precisely for this reason that the element of confidentiality which is otherwise the basic foundation of mediation/conciliation, to a certain extent, is departed from in Sub-Rule (viii) of Rule 8 of the Rules26. If the reports of the Counsellor touching upon the home environment of the parties concerned, their personalities and their relationship with their child or children would assist the court in determining the custody or guardianship issues, any technicality ought not to stand in the way. Sub-Rule (viii) of Rule 8 seeks to achieve that purpose and makes such material available for the assessment of the court.27. Statements made by the parents during the course of mediation may not be relied upon on the ground of confidentiality but natural responses and statements made by the minor to the Counsellor would certainly afford a chance to decide what is in the best interest of the child. A child may respond naturally and spontaneously in its interactions with the Counsellor, who is professionally trained to make the child feel comfortable. Record of such interaction may afford valuable inputs to the Court in discharge of its duties in parens patriae jurisdiction. If during such interaction issues or aspects concerning welfare of a child are noticed, there is no reason why the Court be deprived of access to such aspects. As held by this Court in various judgments, the paramount consideration ought to be to see what is in the best interest of the child28. In terms of Sub Rule (viii) of Rule 8, the Counsellor is obliged to give report, inter alia, relating to home environment of the parties concerned, their personalities and their relationship with the child and/or children in order to assist the Judge in deciding the question of guardianship of any child or children. The intention is clear that the normal principle of confidentiality will not apply in matters concerning custody or guardianship issues and the Court, in the best interest of the child, must be equipped with all the material touching upon relevant issues in order to render complete justice. This departure from confidentially is consistent with the underlined theme of the Act in general and Section 12 in particular. Once there is a clear exception in favour of categories stated therein, principles in any other forms of mediation/conciliation or other modes of Alternative Dispute Resolution regarding confidentiality cannot be imported. The effect of such exception cannot be diluted or nullified. In our view, the High Court considered the matter in correct perspective in paragraphs 17 to 20 of its judgment dated 07.02.201729. There is, however, one aspect which must also be considered and that is who is the Counsellor within the meaning of Rule 8 and whether the Counsellor who assisted the court in the present matter comes within the four corners of said provision. It is true that under Section 6 the Counsellors are appointed by the State Government in consultation with the High Court. It is also true that the Counsellor in the present case was not the one who was appointed in terms of Section 6 but was appointed by a committee of the High Court and her assistance had been requested for in connection with many matters. The order passed on 06.05.2016 had indicated that the Mediator could join any other person as may be deemed necessary for a holistic and effective mediation. The next order dated 11.05.2016 did mention the name of the Counsellor and the fact that the Counsellor had a fruitful meeting with Aditya. The Counsellor, thereafter, interacted with him on 08.07.2016 and 11.07.2016, based on which interaction, a report was submitted on 21.07.2016. The engagement of the Counsellor was thus in complete knowledge of the parties as well as with express acceptance of the High Court. It may be that said Counsellor was not appointed under Section 6 of the Act but if the paramount consideration is the welfare of the child, there cannot be undue reliance on a technicality. As a matter of fact, the width of Section 12 of the Act would admit no such restriction. The report given by the Counsellor in the present case cannot, therefore, be eschewed from consideration. It is noteworthy that there was absolutely nothing against the Counsellor and in the judgment under appeal, the High Court went on to observe in para No.30 that the Counsellor was well experienced and known for her commitment and sincerity to secure a settlement which would be satisfactory to all.

### 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: question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the moral and ethical welfare of the child must also weigh with the court as well as his physical well- being . The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution, with love, affection and sentiments applying human touch to the problem. Though, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases. (Vide Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1 : AIR 2009 SC 557 .) 19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. (Vide Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42 : 1987 SCC (Cri) 13 : AIR 1987 SC 3 , Chandrakala Menon v. Vipin Menon (1993) 2 SCC 6 : 1993 SCC (Cri) 485 , Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413 , Shilpa Aggarwal v. Aviral Mittal (2010) 1 SCC 591 : (2010) 1 SCC (Civ) 192 and Athar Hussain v. Syed Siraj Ahmed (2010) 2 SCC 654 : (2010) 1 SCC (Civ) 528 .) 27. Statements made by the parents during the course of mediation may not be relied upon on the ground of confidentiality but natural responses and statements made by the minor to the Counsellor would certainly afford a chance to decide what is in the best interest of the child. A child may respond naturally and spontaneously in its interactions with the Counsellor, who is professionally trained to make the child feel comfortable. Record of such interaction may afford valuable inputs to the Court in discharge of its duties in parens patriae jurisdiction. If during such interaction issues or aspects concerning welfare of a child are noticed, there is no reason why the Court be deprived of access to such aspects. As held by this Court in various judgments, the paramount consideration ought to be to see what is in the best interest of the child. 28. In terms of Sub Rule (viii) of Rule 8, the Counsellor is obliged to give report, inter alia, relating to home environment of the parties concerned, their personalities and their relationship with the child and/or children in order to assist the Judge in deciding the question of guardianship of any child or children. The intention is clear that the normal principle of confidentiality will not apply in matters concerning custody or guardianship issues and the Court, in the best interest of the child, must be equipped with all the material touching upon relevant issues in order to render complete justice. This departure from confidentially is consistent with the underlined theme of the Act in general and Section 12 in particular. Once there is a clear exception in favour of categories stated therein, principles in any other forms of mediation/conciliation or other modes of Alternative Dispute Resolution regarding confidentiality cannot be imported. The effect of such exception cannot be diluted or nullified. In our view, the High Court considered the matter in correct perspective in paragraphs 17 to 20 of its judgment dated 07.02.2017. 29. There is, however, one aspect which must also be considered and that is who is the Counsellor within the meaning of Rule 8 and whether the Counsellor who assisted the court in the present matter comes within the four corners of said provision. It is true that under Section 6 the Counsellors are appointed by the State Government in consultation with the High Court. It is also true that the Counsellor in the present case was not the one who was appointed in terms of Section 6 but was appointed by a committee of the High Court and her assistance had been requested for in connection with many matters. The order passed on 06.05.2016 had indicated that the Mediator could join any other person as may be deemed necessary for a holistic and effective mediation. The next order dated 11.05.2016 did mention the name of the Counsellor and the fact that the Counsellor had a fruitful meeting with Aditya. The Counsellor, thereafter, interacted with him on 08.07.2016 and 11.07.2016, based on which interaction, a report was submitted on 21.07.2016. The engagement of the Counsellor was thus in complete knowledge of the parties as well as with express acceptance of the High Court. It may be that said Counsellor was not appointed under Section 6 of the Act but if the paramount consideration is the welfare of the child, there cannot be undue reliance on a technicality. As a matter of fact, the width of Section 12 of the Act would admit no such restriction. The report given by the Counsellor in the present case cannot, therefore, be eschewed from consideration. It is noteworthy that there was absolutely nothing against the Counsellor and in the judgment under appeal, the High Court went on to observe in para No.30 that the Counsellor was well experienced and known for her commitment and sincerity to secure a settlement which would be satisfactory to all. ### Response: 1

National Highway Authority of India Vs. Transstroy (India) Limited

respondent may, in support of his case, also submit a counterclaim or plead a set-off, along with its Statement of Defence for adjudication by the AT. The AT observes that the respondent has pleaded a set-off of Rs. 1.23 crores vide its Statement of Defence; while as regards the counterclaims, it has been stated therein that the respondent reserves its right to file the counterclaims. The respondent has not stated any applicable law in respect of reserving such right. In the above background, the AT observes that (i) during the proceedings the procedure and schedule for filing the pleadings were determined by the AT as agreed to by both the parties; that there is no mention therein for filing of the counterclaims by the respondent and (ii) the Statement of Defence has already been filed by the respondent, with set- off and without any counterclaim as per the procedure agreed to by and between the parties, except that the respondent has sue moto reserved its right to file counterclaim at a later date. Thereafter there is no application by the respondent for filing of any counterclaim. In the above circumstances, there is no question of having any date determined by the AT or agreed upon by the parties for filing the counterclaim by the respondent, and if there is no date fixed or agreed upon for filing of the counterclaims, the question of its extension does not arise. Therefore, the AT orders that the request for an extension of time for filing of the counterclaim made by the respondent is not in accordance with applicable law and is irrelevant in view of the factual circumstances as above. In view of the delay in filing of the SOD by the respondent, the claimant shall file its rejoinder thereon, if any, on or before 05.08.2017 and the statement of admission and denial of documents shall be filed by the parties on or before 11.08.2017i.e. the date of the next meeting of the AT. The above decision of the AT does not preclude the respondent from having another legal remedy in respect of its claims. The above Order is issued by the Presiding Arbitrator in consultation with and on behalf of the AT. 13.3 However, thereafter, when the NHAI filed the application under sub-section (2A) of Section 23 of the Arbitration Act, 1996 seeking to place on record its counter claim, by order dated 15.09.2017, the Arbitral Tribunal rejected the said application by observing that in the application for permitting the NHAI to place on record the counter claim, the NHAI has not stated anything about having made an attempt for such amicable settlement. However, it is required to be noted that from the very beginning, the NHAI reserved its right to claim the damages and even in the Statement of Defence also claimed such a set off of Rs.1.23 crores and also specifically stated therein that the NHAI reserved its right to file the counter claim. Therefore, on the grounds on which the Arbitral Tribunal had rejected the application of NHAI to place on record the counter claim can be said to be contrary to the intent between the parties to resolve the dispute (which was for termination of the Contract by the NHAI) through conciliation first. In the facts and circumstances of the case, by such a narrow interpretation, the Arbitral Tribunal has taken away the valuable right of the NHAI to submit counter claim, which is of a very huge amount thereby negotiating the statutory and contractual rights of the NHAI and paving way for a piecemeal and inchoate adjudication. 13.4 When there is a provision for filing the counter claim – set off, which is expressly inserted in Section 23 of the Arbitration Act, 1996, there is no reason for curtailing the right of the appellant for making the counter claim or set off. If we do not allow the counter claim made by the NHAI in the proceedings arising out of the claims made by the Contractor, it may lead to parallel proceedings before various fora. While passing the impugned judgment and order, the High Court has lost sight of the aforesaid aspect, which ought to have been considered while considering the request on behalf of the NHAI to place on record its counter claim. Clauses 26.1 and 26.2 have to be interpreted in a pragmatic and practical manner, as they require that the parties must at first try to settle, resolve and even try conciliation but when the procedure under Clauses 26.1 and 26.2 fails to yield desired result, in the form of settlement within the period specified in Clause 26.2, the Dispute can be resolved through arbitration in terms of Clause 26.3. Once any dispute, difference or controversy is notified under Clause 26.1, the entire subject matter including counter claim/set off would form subject matter of arbitration as any dispute which is not resolved in Clauses 26.1 and 26.2. 13.5 At this stage, it is required to be noted that as such there was no delay at all on the part of the NHAI initially praying for extension of time to file the counter claim and/or thereafter to file application under Section 23(2A) permitting it to place on record the counter claim. In the facts and circumstances of the case, we are of the opinion that not permitting the NHAI to file the counter claim would defeat the object and purpose of permitting to file the counter claim/set off as provided under Section 23(2A) of the Arbitration Act, 1996. Without appreciating the aforesaid aspects, the High Court has by the impugned judgment and order, and on narrow interpretation of Clause 26 has seriously erred in rejecting the application under Section 34/37 of the Arbitration Act, 1996 and confirming the order passed by the Arbitral Tribunal in not permitting the NHAI to file the counter claim. The High Court ought to have appreciated that permitting the NHAI to file the counter claim may avoid multiplicity of proceedings.

1[ds]8. At the outset, it is required to be noted that in the present case, the NHAI submitted the Statement of Defence on 11.07.2017 in which the NHAI reserved its right to claim damages and stated that it would file its counter claim separately and after two days only, i.e., on 13.07.2017, sent a letter to the Arbitral Tribunal seeking extension of time for filing the counter claim, which came to be rejected by the Arbitral Tribunal vide e-mail on 18.07.2017. That thereafter, immediately the NHAI moved an application before the Arbitral Tribunal under Section 23(2A) of the Arbitration Act, 1996 to place its counter claim on record.It is required to be noted that in the present case, the cause for the dispute between the parties was the termination of the contract by the NHAI. As far as the said dispute of termination of notice was required to be resolved amicably as per the procedure prescribed under Clauses 26.1 and 26.2 of the Contract Agreement. It may be true that in a given case, the Dispute may include the claims and/or counter claims, but, at the same time, the main dispute can be said to be termination of the contract, which as observed hereinabove was required to be resolved through conciliation after following the procedure as above.13. Therefore, thereafter, it is not open for the Contractor to contend that the counter claim was without following the procedure as required in Clauses 26.1 and 26.2 and, therefore, may not be taken on record. On a true and fair interpretation of Clause 26, failure to resolve the dispute (in the present case, the termination of the Contract by the NHAI), the arbitration proceedings would be maintainable. That does not mean that only a claim and/or counter claim as sought to be contended on behalf of the Contractor now would alone be entertained.13.1 Both the Arbitral Tribunal as well as the High Court have failed to appreciate the difference between the expressions claim, which may be made by one side and Dispute, which by its definition has two sides.13.3 However, thereafter, when the NHAI filed the application under sub-section (2A) of Section 23 of the Arbitration Act, 1996 seeking to place on record its counter claim, by order dated 15.09.2017, the Arbitral Tribunal rejected the said application by observing that in the application for permitting the NHAI to place on record the counter claim, the NHAI has not stated anything about having made an attempt for such amicable settlement. However, it is required to be noted that from the very beginning, the NHAI reserved its right to claim the damages and even in the Statement of Defence also claimed such a set off of Rs.1.23 crores and also specifically stated therein that the NHAI reserved its right to file the counter claim. Therefore, on the grounds on which the Arbitral Tribunal had rejected the application of NHAI to place on record the counter claim can be said to be contrary to the intent between the parties to resolve the dispute (which was for termination of the Contract by the NHAI) through conciliation first. In the facts and circumstances of the case, by such a narrow interpretation, the Arbitral Tribunal has taken away the valuable right of the NHAI to submit counter claim, which is of a very huge amount thereby negotiating the statutory and contractual rights of the NHAI and paving way for a piecemeal and inchoate adjudication.13.4 When there is a provision for filing the counter claim – set off, which is expressly inserted in Section 23 of the Arbitration Act, 1996, there is no reason for curtailing the right of the appellant for making the counter claim or set off. If we do not allow the counter claim made by the NHAI in the proceedings arising out of the claims made by the Contractor, it may lead to parallel proceedings before various fora. While passing the impugned judgment and order, the High Court has lost sight of the aforesaid aspect, which ought to have been considered while considering the request on behalf of the NHAI to place on record its counter claim. Clauses 26.1 and 26.2 have to be interpreted in a pragmatic and practical manner, as they require that the parties must at first try to settle, resolve and even try conciliation but when the procedure under Clauses 26.1 and 26.2 fails to yield desired result, in the form of settlement within the period specified in Clause 26.2, the Dispute can be resolved through arbitration in terms of Clause 26.3. Once any dispute, difference or controversy is notified under Clause 26.1, the entire subject matter including counter claim/set off would form subject matter of arbitration as any dispute which is not resolved in Clauses 26.1 and 26.2.13.5 At this stage, it is required to be noted that as such there was no delay at all on the part of the NHAI initially praying for extension of time to file the counter claim and/or thereafter to file application under Section 23(2A) permitting it to place on record the counter claim. In the facts and circumstances of the case, we are of the opinion that not permitting the NHAI to file the counter claim would defeat the object and purpose of permitting to file the counter claim/set off as provided under Section 23(2A) of the Arbitration Act, 1996. Without appreciating the aforesaid aspects, the High Court has by the impugned judgment and order, and on narrow interpretation of Clause 26 has seriously erred in rejecting the application under Section 34/37 of the Arbitration Act, 1996 and confirming the order passed by the Arbitral Tribunal in not permitting the NHAI to file the counter claim. The High Court ought to have appreciated that permitting the NHAI to file the counter claim may avoid multiplicity of proceedings.

### Instruction: Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request? ### Input: respondent may, in support of his case, also submit a counterclaim or plead a set-off, along with its Statement of Defence for adjudication by the AT. The AT observes that the respondent has pleaded a set-off of Rs. 1.23 crores vide its Statement of Defence; while as regards the counterclaims, it has been stated therein that the respondent reserves its right to file the counterclaims. The respondent has not stated any applicable law in respect of reserving such right. In the above background, the AT observes that (i) during the proceedings the procedure and schedule for filing the pleadings were determined by the AT as agreed to by both the parties; that there is no mention therein for filing of the counterclaims by the respondent and (ii) the Statement of Defence has already been filed by the respondent, with set- off and without any counterclaim as per the procedure agreed to by and between the parties, except that the respondent has sue moto reserved its right to file counterclaim at a later date. Thereafter there is no application by the respondent for filing of any counterclaim. In the above circumstances, there is no question of having any date determined by the AT or agreed upon by the parties for filing the counterclaim by the respondent, and if there is no date fixed or agreed upon for filing of the counterclaims, the question of its extension does not arise. Therefore, the AT orders that the request for an extension of time for filing of the counterclaim made by the respondent is not in accordance with applicable law and is irrelevant in view of the factual circumstances as above. In view of the delay in filing of the SOD by the respondent, the claimant shall file its rejoinder thereon, if any, on or before 05.08.2017 and the statement of admission and denial of documents shall be filed by the parties on or before 11.08.2017i.e. the date of the next meeting of the AT. The above decision of the AT does not preclude the respondent from having another legal remedy in respect of its claims. The above Order is issued by the Presiding Arbitrator in consultation with and on behalf of the AT. 13.3 However, thereafter, when the NHAI filed the application under sub-section (2A) of Section 23 of the Arbitration Act, 1996 seeking to place on record its counter claim, by order dated 15.09.2017, the Arbitral Tribunal rejected the said application by observing that in the application for permitting the NHAI to place on record the counter claim, the NHAI has not stated anything about having made an attempt for such amicable settlement. However, it is required to be noted that from the very beginning, the NHAI reserved its right to claim the damages and even in the Statement of Defence also claimed such a set off of Rs.1.23 crores and also specifically stated therein that the NHAI reserved its right to file the counter claim. Therefore, on the grounds on which the Arbitral Tribunal had rejected the application of NHAI to place on record the counter claim can be said to be contrary to the intent between the parties to resolve the dispute (which was for termination of the Contract by the NHAI) through conciliation first. In the facts and circumstances of the case, by such a narrow interpretation, the Arbitral Tribunal has taken away the valuable right of the NHAI to submit counter claim, which is of a very huge amount thereby negotiating the statutory and contractual rights of the NHAI and paving way for a piecemeal and inchoate adjudication. 13.4 When there is a provision for filing the counter claim – set off, which is expressly inserted in Section 23 of the Arbitration Act, 1996, there is no reason for curtailing the right of the appellant for making the counter claim or set off. If we do not allow the counter claim made by the NHAI in the proceedings arising out of the claims made by the Contractor, it may lead to parallel proceedings before various fora. While passing the impugned judgment and order, the High Court has lost sight of the aforesaid aspect, which ought to have been considered while considering the request on behalf of the NHAI to place on record its counter claim. Clauses 26.1 and 26.2 have to be interpreted in a pragmatic and practical manner, as they require that the parties must at first try to settle, resolve and even try conciliation but when the procedure under Clauses 26.1 and 26.2 fails to yield desired result, in the form of settlement within the period specified in Clause 26.2, the Dispute can be resolved through arbitration in terms of Clause 26.3. Once any dispute, difference or controversy is notified under Clause 26.1, the entire subject matter including counter claim/set off would form subject matter of arbitration as any dispute which is not resolved in Clauses 26.1 and 26.2. 13.5 At this stage, it is required to be noted that as such there was no delay at all on the part of the NHAI initially praying for extension of time to file the counter claim and/or thereafter to file application under Section 23(2A) permitting it to place on record the counter claim. In the facts and circumstances of the case, we are of the opinion that not permitting the NHAI to file the counter claim would defeat the object and purpose of permitting to file the counter claim/set off as provided under Section 23(2A) of the Arbitration Act, 1996. Without appreciating the aforesaid aspects, the High Court has by the impugned judgment and order, and on narrow interpretation of Clause 26 has seriously erred in rejecting the application under Section 34/37 of the Arbitration Act, 1996 and confirming the order passed by the Arbitral Tribunal in not permitting the NHAI to file the counter claim. The High Court ought to have appreciated that permitting the NHAI to file the counter claim may avoid multiplicity of proceedings. ### Response: 1

Bimolangshu Roy (Dead) Through LRs Vs. State of Assam & Another

is relevant. Article 194 occurs in Chapter III of Part VI of the Constitution which deals with the States. Chapter II of Part VI deals with the State Executive. Chapter III deals with the State Legislature. Various articles of Chapter III provide for establishment of a legislature (either unicameral or bicameral), the composition of such legislative bodies, the qualifications for membership of the legislative bodies and their durations, the offices of the legislature and their powers and responsibilities and all other allied matters. 43. Article 194 deals exclusively with the powers and privileges of the legislature, its members and committees thereof. While clause declares that there shall be freedom of speech in the Legislature subject to the limitations enumerated therein, clause (2) provides immunity in favour of the members of the Legislature from any legal proceedings in any court for anything said or any vote given by such members in the Legislature or any Committees etc. Sub-clause (3) deals with the powers, privileges and immunities of a House of the Legislature and its members with respect to matters other than the ones covered under clauses (1) and (2). 44. Thus, it can be seen from the scheme of Article 194 that it does not expressly authorise the State Legislature to create offices such as the one in question. On the other hand, Article 178 [Article 178. Every Legislative Assembly of a State shall, as soon as may be, choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member to be Speaker or Deputy Speaker, as the case may be.] speaks about the offices of Speaker and Deputy Speaker. Article 179 [Article 179. A member holding office as Speaker or Deputy Speaker of an Assembly — (a) shall vacate his office if he ceases to be a member of the Assembly; (b) may at any time by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker, to the Speaker, resign his office; and (c) may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly: Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days notice has been given of the intention to move the resolution: Provided further that, whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution.] deals with the vacation of those offices or resignations of incumbents of those offices whereas Article 182 [Article 182. The Legislative Council of every State having such Council shall, as soon as may be, choose two members of the Council to be respectively Chairman and Deputy Chairman thereof and, so often as the office of Chairman or Deputy Chairman becomes vacant, the Council shall choose another member to be Chairman or Deputy Chairman, as the case may be.] and 183 [Article 183. A member holding office as Chairman or Deputy Chairman of a Legislative Council— (a) shall vacate his office if he ceases to be a member of the Council; (b) may at any time by writing under his hand addressed, if such member is the Chairman, to the Deputy Chairman and if such member is the Deputy Chairman, to the Chairman, resign his office; and (c) may be removed from his office by a resolution of the Council passed by a majority of all the then members of the Council: Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days notice has been given of the intention to move the resolution.] deal with the Chairman and Deputy Chairman of the Legislative Council wherever the Council exists. In our opinion, the most crucial article in this Chapter is Article 187 [Article 187. (1) The House or each House of the Legislature of a State shall have a separate secretarial staff: Provided that nothing in this clause shall, in the case of the Legislature of a State having a Legislative Council, be construed as preventing the creation of posts common to both Houses of such Legislature. (2) The Legislature of a State may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the House or Houses of the Legislature of the State. (3) Until provision is made by the Legislature of the State under clause (2), the Governor may, after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the Assembly or the Council, and any rules so made shall have effect subject to the provisions of any law made under the said clause.] which makes stipulations even with reference to the secretarial staff of the Legislature. On the face of such elaborate and explicit constitutional arrangement with respect to the Legislature and the various offices connected with the legislature and matters incidental to them to read the authority to create new offices by legislation would be a wholly irrational way of construing the scope of Article 194(3) and Entry 39 of List II. Such a construction would be enabling the legislature to make a law which has no rational connection with the subject matter of the entry. The powers, privileges and immunities contemplated by Article 194(3) and Entry 39 are those of the legislators qua legislators. 45. For the above-mentioned reasons, we are of the opinion that the Legislature of Assam lacks the competence to make the impugned Act. In view of the above conclusion, we do not see it necessary to examine the various other issues identified by us earlier in this judgment.

1[ds]In our opinion, if the answer to any one of the first two issues is in favour of the petitioner, the other two issues need not be examined.16. In our opinion, the State of Assams reliance on the various extracts from the judgments of this Court is out of the context, ignoring an important caveat contained in the very extract relied upon by the State i.e. each general word should be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in it. [India Cement Ltd. & Others v. State of Tamil Nadu & Others, (1990) 1 SCC 12 18. … Hence, the language of the entries should be given widest scope, to find out which of the meaning is fairly capable because these set up machinery of the government. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. …]. However, the more accurate legal position is expounded in Union of India & Others v. Shah Goverdhan L. Kabra Teachers College, (2002) 8 SCC 228 at para 6:In view of the rival submissions at the Bar, the question that arises for consideration is whether the impugned legislation can be held to be a law dealing with coordinated development of education system within Entry 66 of List I of the Seventh Schedule or it is a law dealing with the service conditions of an employee under the State Government. The power to legislate is engrafted under Article 246 of the Constitution and the various entries for the three lists of the Seventh Schedule are the fields of legislation. The different entries being legislative heads are all of enabling character and are designed to define and delimit the respective areas of legislative competence of the Union and the State Legislatures. They neither impose any restrictions on the legislative power nor prescribe any duty for exercise of the legislative power in any particular manner. It has been a cardinal principle of construction that the language of the entries should be given the widest scope of which their meaning is fairly capable and while interpreting an entry of any list it would not be reasonable to import any limitation therein. The rule of widest construction, however, would not enable the legislature to make a law relating to a matter which has no rational connection with the subject-matter of an entry. When the vires of enactment is challenged, the court primarily presumes the constitutionality of the statute by putting the most liberal construction upon the relevant legislative entry so that it may have the widest amplitude and the substance of the legislation will have to be looked into. The court sometimes is duty-bound to guard against extending the meaning of the words beyond their reasonable connotation in anxiety to preserve the power of the legislature.18. The jurisprudential basis for the rule of widest construction is the hallowed belief that a Constitution is drafted with an eye on future providing a continuing framework for exercise of governmental power. Therefore, it must be elastic enough to meet new social, political and historical realities often unimagined by the framers of the ConstitutionIn substance, the power to make the legislation flows from various sources: (1) express text of the Constitution; (2) by implication from the scheme of the Constitution; and (3) as an incident of sovereignty22. Unlike the American Constitution, we chose to adopt a Constitution which regulates and structures not only the authority of the federal government but also the components of the Federation (States and now [After the Constitution 73rd Amendment] even the local bodies). Coming to the question of the authority of the legislatures (Federal and State) we are of the opinion that analysis adopted by the US Supreme Court is equally good for our Constitution with appropriate modifications, because there are areas where the two Constitutions differ substantiallyHowever, the principle that the power to legislate under the Indian Constitution can flow from various sources is recognised by this Court in Synthetics and Chemicals Ltd. & Others v. State of U.P. & Others, (1990) 1 SCC 109 at para 67 that… The power to legislate is given by Article 246 and other Articles of the Constitution [See also 1995 Supp. (1) SCC 596 para 7 - Jilubhai Nanbhai Khachar v. State of Gujarat & Another the legislature derives its power from Article 246 and other related Articles of the Constitution]a reiteration of the principle that the power to legislate does not flow from a single Article of the Constitution.Relying on the above-mentioned celebrated statements, the Federal Court in the case of Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, (1939) 1 FCR 18, Gwyer, CJ observed thatI conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purpose of supplying omissions or of correcting supposed errors.21. The authority to make law flows not only from an express grant of power by the Constitution to a legislative body but also by virtue of implications flowing from the context of the Constitution is well settled by the various decisions of the Supreme Court of America in the context of American Constitution. A principle which is too well settled in all the jurisdictions where a written Constitution exists. The US Supreme Court also recognised that the Congress would have the authority to legislate with reference to certain matters because of the fact that such authority is inherent in the nature of the sovereignty. The doctrine of inherent powers was propounded by Justice Sutherland in the context of the role of the American Government in handling foreign affairs and the limitations thereon.d States v. Curtiss – Wright Export Corp., 299 U.S. 304, 81 L. Ed.In substance, the power to make the legislation flows from various sources: (1) express text of the Constitution; (2) by implication from the scheme of the Constitution; and (3) as an incident of sovereignty22. Unlike the American Constitution, we chose to adopt a Constitution which regulates and structures not only the authority of the federal government but also the components of the Federation (States and now [After the Constitution 73rd Amendment] even the local bodies). Coming to the question of the authority of the legislatures (Federal and State) we are of the opinion that analysis adopted by the US Supreme Court is equally good for our Constitution with appropriate modifications, because there are areas where the two Constitutions differever, the principle that the power to legislate under the Indian Constitution can flow from various sources is recognised by this Court in Synthetics and Chemicals Ltd. & Others v. State of U.P. & Others, (1990) 1 SCC 109 at para 67 that… The power to legislate is given by Article 246 and other Articles of the Constitution [See also 1995 Supp. (1) SCC 596 para 7 - Jilubhai Nanbhai Khachar v. State of Gujarat & Another the legislature derives its power from Article 246 and other related Articles of the Constitution]a reiteration of the principle that the power to legislate does not flow from a single Article of the Constitution.24. Apart from declaration contained in Article 246, there are various other Articles of the Constitution which confer authority to legislate either on the Parliament or on a State legislature, as the case may be in various circumstances. For example, Article 3 authorises the Parliament to make a law either creating a new State or extinguishing an existing State. Such a power is exclusively conferred on the Parliament.25. Article 326 [Article 326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage.—The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.] while declaring a right of every citizen who is not less than 18 years of age to register as a voter at any election to the House of the People or to the legislative assembly of a State, authorises the appropriate legislature to disqualify any such citizen to be a voter on any one of the grounds specified under Article 326 by making a law. The authority to make such a law obviously flows directly from the text of Article 326 but not from Article 246. See also Articles 2, 3, 11, 15(5), 22(7), 32(3), 33, 34, 59(3), 70, 71(3), 98(2). The Articles mentioned above are only illustrative but not exhaustive of the category.26. It must be remembered that this Court repeatedly held [Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166 , Ramaswami, J. speaking on behalf of the Court, while dealing with the Gold (Control) Act (45 of 1968), observed:Para 8. … Before construing these entries it is useful to notice some of the well-settled rules of interpretation laid down by the Federal Court and by this Court in the matter of construing the entries. The power to legislate is given to the appropriate Legislature by Article 246 of the Constitution. The entries in the three Lists are only legislative heads or fields of legislation, they demarcate the area over which the appropriate Legislatures can operate. …n of India v. Harbhajan Singh Dhillon (1971) 2 SCC 779 – Para 22. It must be remembered that the function of the lists is not to confer powers; they merely demarcate the legislative field. The Federal Court, while interpreting the Government of India Act in The Governor General in Council v. The Releigh Investment Co., observed:It would not be right to derive the power to legislate on this topic merely from the reference to it in the List, because the purpose of the Lists was not to create or confer powers, but only to distribute between the Federal and the Provincial Legislatures the powers which had been conferred by Sections 99 and 100 of the Act.27. The task of this Court in identifying the scope of an entry in the Lists contained in the Seventh Schedule is not easy. While examining the scope of the entries this Court must necessarily keep in mind the scheme of the Constitution relevant in the context of the Entry in question28. A broad pattern can be identified from the scheme of the three lists, the salient features of which are (i) Fields of legislation perceived to be of importance for sustaining the federation, are exclusively assigned to the Parliament, (ii) State legislatures are assigned only specified fields of legislation unlike the US Constitution, (iii) Residuary legislative power is conferred in the Parliament; (iv) taxing entries are distinct from the general entries [M/s. Hoechst Pharmaceuticals Ltd. & Others v. State of Bihar & Others, (1983) 4 SCC 45 , Para 74 – It is equally well settled that the various entries in the three Lists are not powers of legislation, but fields of legislation. The power to legislate is given by Article 246 and other Articles of the Constitution. Taxation is considered to be a distinct matter for purposes of legislative competence. Hence, the power to tax cannot be deduced from a general legislative entry as ancillary power. …], and (v) List III does not contain a taxing entry,29. At the same time, it can also be noticed that there is no logical uniformity in the scheme of the three lists contained in the Seventh Schedule.31. The doctrine of widest construction propounded by Marshall was in the context of the substantive provisions of the Constitution which are the sources of power to legislate and stipulate the areas with respect to which the Congress shall have the legislative power but not in the context of something like an entry in the 7th Schedule of our Constitution which is not a source of power but only indicative of the field of legislation. Though words and expressions employed in the Constitution must receive widest possible construction, we believe that the principle must be applied with some degree of caution when it comes to the examination of the amplitude of the legislative Entries. There must be some distinction between a provision of the Constitution which confers power to legislate (source of power) and an Entry in one of the 3 lists of the 7th Schedule which are not sources of power but are only indicative of the fields of legislation. Any construction which would run counter to the scheme of the Constitution relevant in the context must be avoided.32. As rightly pointed out by the petitioners, the existence of a dedicated article in the Constitution authorizing the making of law on a particular topic would certainly eliminate the possibility of the existence of the legislative authority to legislate in Article 246 read with any Entry in the Seventh Schedule indicating a field of legislation which appears to be closely associated with the topic dealt with by the dedicated article. For example even if the Constitution were not to contain Entries 38, 39, 40 in List II the State Legislatures would still be competent to make laws w.r.t. the topics indicated in those 3 entries, because of the authority contained in Articles 164(5), 186, 194, 195 etc. Therefore, to place a construction on those entries which would have the effect of enabling the concerned legislative body to make a law not within the contemplation of the said Articles would be plainly repugnant to the scheme of the Constitution.33. Cauvery Water Disputes [1993 Supp. (1) SCC 96 (II)] may not be an exact authority for the proposition of law advanced by the petitioners. But the logical extension of the principle enunciated in Cauvery would certainly support the case of the petitioners.35. There has been a long standing dispute between the States of Karnataka and Tamil Nadu with regard to their respective rights to the water of river Cauvery. For the resolution of the said dispute, a tribunal was constituted by a notification dated 2nd June 1990 of the Government of India in exercise of the power under the Inter State Water Disputes Act, 1956. On an interlocutory application filed by the State of Tamil Nadu, by an order dated 25th June 1991, the tribunal gave certain directions [To release 205 TMC water from its reservoirs located in the State of Karnataka and certain other incidental directions.] to the State of Karnataka. Thereupon, the State of Karnataka issued an ordinance nullifying the directions of the tribunal referred to above. The President of India by a reference under Article 143 [Article 143. (1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon(2) The President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon] of the Constitution sought the opinion of this Court regarding the constitutionality of the ordinance36. The State of Karnataka argued that the ordinance in question fell exclusively within the field of legislation assigned to the States by Article 246 (3) read with Entry 17 of List II. In the absence of any law made by the Parliament dealing with the subject matter of the content of the ordinance in question, the authority of the legislature of Karnataka remained unencumbered37. While examining the said submission, this Court had to examine – whether the Inter State Water Disputes Act, 1956 made by the Parliament was a law made in exercise of the authority of the Parliament under Article 246(1) [Article 246. (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List).] read with Entry 56 [Entry 56. Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest] of List I of the Seventh Schedule? This Court reached a conclusion that the Inter State Water Disputes Act, 1956 is not a legislation referable to Entry 56 of List I. It also took note of the fact that none of the Entries in Seventh Schedule mentioned the topic of adjudication of disputes relating to inter State waters and Article 262 [Article 262. (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley. (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).] of the Constitution specifically provides for such adjudication.62. It cannot be disputed that the Act, viz., the Inter-State Water Disputes Act, 1956 is not a legislation under Entry 56. In the first instance, Entry 56 speaks of regulation and development of inter-State rivers and river valleys and does not relate to the disputes between the riparian States with regard to the same and adjudication thereof. Secondly, and even assuming that the expression regulation and development would in its width, include resolution of disputes arising therefrom and a provision for adjudicating them, the Act does not make the declaration required by Entry 56. This is obviously not an accidental omission but a deliberate disregard of the entry since it is not applicable to the subject matter of the legislation. Thirdly, no entry in any of the three lists refers specifically to the adjudication of disputes with regard to inter-State river waters63. The reason why none of the Entries in the Seventh Schedule mention the topic of adjudication of disputes relating to the inter-State river waters is not far to seek. Article 262 of the Constitution specifically provides for such adjudication. …67. ... Since the subject of adjudication of the said disputes is taken care of specifically and exclusively by Article 262, by necessary implication the subject stands excluded from the field covered by Entries 56 and 17. It is not, therefore, permissible either for the Parliament under Entry 56 or for a State legislature under Entry 17 to enact a legislation providing for adjudication of the said disputes or in any manner affecting or interfering with the adjudication or adjudicatory process of the machinery for adjudication established by law under Article 262. ...38. The ordinance was found to be beyond the legislative competence of the State of Karnataka. Because of the existence of a dedicated article empowering the Parliament to make laws for the adjudication of inter-State water disputes the subject stood by implication excluded from the field covered under Entries 56 or 17 and the ordinance in substance had the effect of interfering with adjudication process of the machinery for adjudication established by law under Article 262.42. In ascertaining the meaning of the clause, the scheme of Article 194 and the setting in which the said clause is placed is relevant. Article 194 occurs in Chapter III of Part VI of the Constitution which deals with the States. Chapter II of Part VI deals with the State Executive. Chapter III deals with the State Legislature. Various articles of Chapter III provide for establishment of a legislature (either unicameral or bicameral), the composition of such legislative bodies, the qualifications for membership of the legislative bodies and their durations, the offices of the legislature and their powers and responsibilities and all other allied matters43. Article 194 deals exclusively with the powers and privileges of the legislature, its members and committees thereof. While clause declares that there shall be freedom of speech in the Legislature subject to the limitations enumerated therein, clause (2) provides immunity in favour of the members of the Legislature from any legal proceedings in any court for anything said or any vote given by such members in the Legislature or any Committees etc. Sub-clause (3) deals with the powers, privileges and immunities of a House of the Legislature and its members with respect to matters other than the ones covered under clauses (1) and (2)44. Thus, it can be seen from the scheme of Article 194 that it does not expressly authorise the State Legislature to create offices such as the one in question. On the other hand, Article 178 [Article 178. Every Legislative Assembly of a State shall, as soon as may be, choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member to be Speaker or Deputy Speaker, as the case may be.] speaks about the offices of Speaker and Deputy Speaker. Article 179 [Article 179. A member holding office as Speaker or Deputy Speaker of an Assembly — (a) shall vacate his office if he ceases to be a member of the Assembly; (b) may at any time by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker, to the Speaker, resign his office; and (c) may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly: Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days notice has been given of the intention to move the resolution: Provided further that, whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution.] deals with the vacation of those offices or resignations of incumbents of those offices whereas Article 182 [Article 182. The Legislative Council of every State having such Council shall, as soon as may be, choose two members of the Council to be respectively Chairman and Deputy Chairman thereof and, so often as the office of Chairman or Deputy Chairman becomes vacant, the Council shall choose another member to be Chairman or Deputy Chairman, as the case may be.] and 183 [Article 183. A member holding office as Chairman or Deputy Chairman of a Legislative Council—(a) shall vacate his office if he ceases to be a member of the Council;(b) may at any time by writing under his hand addressed, if such member is the Chairman, to the Deputy Chairman and if such member is the Deputy Chairman, to the Chairman, resign his office; and(c) may be removed from his office by a resolution of the Council passed by a majority of all the then members of the Council:Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days notice has been given of the intention to move the resolution.] deal with the Chairman and Deputy Chairman of the Legislative Council wherever the Council exists. In our opinion, the most crucial article in this Chapter is Article 187 [Article 187. (1) The House or each House of the Legislature of a State shall have a separate secretarial staff: Provided that nothing in this clause shall, in the case of the Legislature of a State having a Legislative Council, be construed as preventing the creation of posts common to both Houses of such Legislature. (2) The Legislature of a State may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the House or Houses of the Legislature of the State. (3) Until provision is made by the Legislature of the State under clause (2), the Governor may, after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the Assembly or the Council, and any rules so made shall have effect subject to the provisions of any law made under the said clause.] which makes stipulations even with reference to the secretarial staff of the Legislature. On the face of such elaborate and explicit constitutional arrangement with respect to the Legislature and the various offices connected with the legislature and matters incidental to them to read the authority to create new offices by legislation would be a wholly irrational way of construing the scope of Article 194(3) and Entry 39 of List II. Such a construction would be enabling the legislature to make a law which has no rational connection with the subject matter of the entry. The powers, privileges and immunities contemplated by Article 194(3) and Entry 39 are those of the legislators qua legislators45. For the above-mentioned reasons, we are of the opinion that the Legislature of Assam lacks the competence to make the impugned Act.In view of the above conclusion, we do not see it necessary to examine the various other issues identified by us earlier in this judgment.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: is relevant. Article 194 occurs in Chapter III of Part VI of the Constitution which deals with the States. Chapter II of Part VI deals with the State Executive. Chapter III deals with the State Legislature. Various articles of Chapter III provide for establishment of a legislature (either unicameral or bicameral), the composition of such legislative bodies, the qualifications for membership of the legislative bodies and their durations, the offices of the legislature and their powers and responsibilities and all other allied matters. 43. Article 194 deals exclusively with the powers and privileges of the legislature, its members and committees thereof. While clause declares that there shall be freedom of speech in the Legislature subject to the limitations enumerated therein, clause (2) provides immunity in favour of the members of the Legislature from any legal proceedings in any court for anything said or any vote given by such members in the Legislature or any Committees etc. Sub-clause (3) deals with the powers, privileges and immunities of a House of the Legislature and its members with respect to matters other than the ones covered under clauses (1) and (2). 44. Thus, it can be seen from the scheme of Article 194 that it does not expressly authorise the State Legislature to create offices such as the one in question. On the other hand, Article 178 [Article 178. Every Legislative Assembly of a State shall, as soon as may be, choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member to be Speaker or Deputy Speaker, as the case may be.] speaks about the offices of Speaker and Deputy Speaker. Article 179 [Article 179. A member holding office as Speaker or Deputy Speaker of an Assembly — (a) shall vacate his office if he ceases to be a member of the Assembly; (b) may at any time by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker, to the Speaker, resign his office; and (c) may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly: Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days notice has been given of the intention to move the resolution: Provided further that, whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution.] deals with the vacation of those offices or resignations of incumbents of those offices whereas Article 182 [Article 182. The Legislative Council of every State having such Council shall, as soon as may be, choose two members of the Council to be respectively Chairman and Deputy Chairman thereof and, so often as the office of Chairman or Deputy Chairman becomes vacant, the Council shall choose another member to be Chairman or Deputy Chairman, as the case may be.] and 183 [Article 183. A member holding office as Chairman or Deputy Chairman of a Legislative Council— (a) shall vacate his office if he ceases to be a member of the Council; (b) may at any time by writing under his hand addressed, if such member is the Chairman, to the Deputy Chairman and if such member is the Deputy Chairman, to the Chairman, resign his office; and (c) may be removed from his office by a resolution of the Council passed by a majority of all the then members of the Council: Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days notice has been given of the intention to move the resolution.] deal with the Chairman and Deputy Chairman of the Legislative Council wherever the Council exists. In our opinion, the most crucial article in this Chapter is Article 187 [Article 187. (1) The House or each House of the Legislature of a State shall have a separate secretarial staff: Provided that nothing in this clause shall, in the case of the Legislature of a State having a Legislative Council, be construed as preventing the creation of posts common to both Houses of such Legislature. (2) The Legislature of a State may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the House or Houses of the Legislature of the State. (3) Until provision is made by the Legislature of the State under clause (2), the Governor may, after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the Assembly or the Council, and any rules so made shall have effect subject to the provisions of any law made under the said clause.] which makes stipulations even with reference to the secretarial staff of the Legislature. On the face of such elaborate and explicit constitutional arrangement with respect to the Legislature and the various offices connected with the legislature and matters incidental to them to read the authority to create new offices by legislation would be a wholly irrational way of construing the scope of Article 194(3) and Entry 39 of List II. Such a construction would be enabling the legislature to make a law which has no rational connection with the subject matter of the entry. The powers, privileges and immunities contemplated by Article 194(3) and Entry 39 are those of the legislators qua legislators. 45. For the above-mentioned reasons, we are of the opinion that the Legislature of Assam lacks the competence to make the impugned Act. In view of the above conclusion, we do not see it necessary to examine the various other issues identified by us earlier in this judgment. ### Response: 1

M/S. Bharat & Company Vs. Trade Tax Officer

order dated 9th August, 2000 passed by the Tribunal and its order by the High Court on 28th September, 2000 was malafide and contumacious. It was said that false statements had been made by the respondents to the effect that the goods had been released to the appellant on 31st October, 2000. It was said that the order of re-seizure was without jurisdiction. It was pointed out that the security bonds furnished by the appellant are still with the respondents.16. The respondents have submitted that the alleged purchaser had not appeared at any stage of proceedings and enquiry revealed that it was no longer an existing firm. According to the respondents no documents had been filed at any stage by the appellant in support of its claim of ownership to the gambier. It was further submitted that issue of title was pending in the Revisional Application filed by the appellant and the respondents from the order of the Tribunal dated 9th August, 2000. It was said that the documents which were produced by the appellant were interpolated and contradictory and that the appellant had not come to court with clean hands. 17. The High Court, dismissed the application on the ground that the title in the goods had not passed to the purchaser although the price for the goods had not been paid. It was also said that M/s. Kamakhya Lime Industries and M/s. Maa Kamakhya Lime Industries were one and the same and that therefore the outstanding dues of M/s. Maa Kamakhya Lime Industries could be recovered from the goods in question. The appellant filed an application for review of the judgment which was dismissed by the High Court.18. Initially the special leave petition had been filed from the order dismissing the application for review. Subsequently, an application for amendment of the petition was filed including a challenge to the order of the High Court. At the hearing the application for amendment was not opposed and is allowed. 19. In our opinion, the High Court was wrong in dismissing the appellants petition. The Trade Tax Tribunal as early as on 31st March, 2000 had held that the appellant had the locus standi to ask for the release of goods because the appellant was the owner of the goods. The decision of the Tribunal was not challenged by the respondents. The decision of the Tribunal not being challenged, the issue of title was concluded in the appellants favour. In the face of this order, it was not open to Assistant Commissioner, Trade Tax on remand to reject the application of the appellant on the ground that it was not the owner of the goods. The High Court should have considered this aspect of the matter particularly when it had been expressly drawn to the High Courts attention. The High Court was also precluded from re-deciding the same issue between the same parties.20. Besides, the High Courts finding that the ownership of the goods had passed to M/s. Kamakhya Lime Industries only because it had been named in the Consignment Note appears to be incorrect. In Commissioner of Income-Tax, Madhya Pradesh and Bhopal, Nagpur vs. Bhopal Textiles Ltd., Bhopal, AIr 1961 SC 426 , 428, this Court said:- "A railway receipt is a document of title to goods, and for all purposes, represents the goods. When the railway receipt is handed over to the consignee on payment, the property in the goods is transferred. In this case, it is a matter of considerable doubt whether the property in the goods can be said to have passed to the buyers by the mere fact of the railway receipts being in the name of the consignees, as has been held by the High Court." 21. In the second round the Tribunal had directed the release of the goods to the appellant by its order dated 9th August, 2000 subject to furnishing the security of Rs.4 lakhs. The High Court by the interim order passed in the revisional application also directed the seized goods to be released to the appellant on the furnishing of security by its order dated 28th September, 2000. Even according to the respondents the goods were released formally to the appellant against security furnished by the appellant. Yet the last order of seizure in execution of the recovery certificates against the purchaser was issued on the basis that the goods had been released to M/s. Kakakhya Lime Industries. 22. The submission of the respondents that the appellant had come to the Court with unclean hands is unacceptable. On the other hand the respondents have mis-directed themselves by seeking to question the appellants ownership in the property to the goods. That could not have been in issue because unless ownership of the gambier was with the appellant, no title could have been transferred to the purchaser by it. [See: Section 27 of the Sale of Goods Act, 1930] The enquiry conducted by the TTO as to the business of the appellant, the existence of its office in Mumbai, etc. was therefore not only uncalled for but self defeating. 23. It is true that the respondents have said that the two invoice of the appellant have been prepared bearing the same number but in respect of different quantities of gambier. It is however, nobodys case that the total of the two invoices did not tally with the number of bags in fact found on the truck. No material has been brought on record by the respondents to show that the value of the gambier as on the date of transport was less than that shown on the invoices except for the unsupported estimate of the TTO that the gambier was worth Rs.20 lakhs. The appellant in any event was not concerned with any ineterstate sale that the purchaser might have effected after the delivery. As far as it was concerned, the sale was and intrastate one and subject to Central Sales Tax 1956, and therefore, outside the purview of the State Act.

1[ds]14. It was against this order that the writ petition which culminated in the impugned order was passed. Before we consider the reasoning of the High Court it may be noted that the High Court had issued an interim order staying the sale of the gambier pending the disposal of the writ petition. The writ petition was dismissed on 15th November 2002. The goods have been sold by public auction in February 2003 and according to the respondents, fetched a sum of Rs.The sale was approved by Assistant Commissioner (Trade Tax) on 15th February 2003. The amount of sale proceeds is being held by the respondents.In our opinion, the High Court was wrong in dismissing the appellants petition. The Trade Tax Tribunal as early as on 31st March, 2000 had held that the appellant had the locus standi to ask for the release of goods because the appellant was the owner of the goods. The decision of the Tribunal was not challenged by the respondents. The decision of the Tribunal not being challenged, the issue of title was concluded in the appellants favour. In the face of this order, it was not open to Assistant Commissioner, Trade Tax on remand to reject the application of the appellant on the ground that it was not the owner of the goods. The High Court should have considered this aspect of the matter particularly when it had been expressly drawn to the High Courts attention. The High Court was also precluded fromthe same issue between the same parties.20. Besides, the High Courts finding that the ownership of the goods had passed to M/s. Kamakhya Lime Industries only because it had been named in the Consignment Note appears to be incorrect. In Commissioner ofMadhya Pradesh and Bhopal, Nagpur vs. Bhopal Textiles Ltd., Bhopal, AIr 1961 SC 426 , 428, this Courtrailway receipt is a document of title to goods, and for all purposes, represents the goods. When the railway receipt is handed over to the consignee on payment, the property in the goods is transferred. In this case, it is a matter of considerable doubt whether the property in the goods can be said to have passed to the buyers by the mere fact of the railway receipts being in the name of the consignees, as has been held by the High Court.The submission of the respondents that the appellant had come to the Court with unclean hands is unacceptable. On the other hand the respondents havethemselves by seeking to question the appellants ownership in the property to the goods. That could not have been in issue because unless ownership of the gambier was with the appellant, no title could have been transferred to the purchaser by it.It is true that the respondents have said that the two invoice of the appellant have been prepared bearing the same number but in respect of different quantities of gambier. It is however, nobodys case that the total of the two invoices did not tally with the number of bags in fact found on the truck. No material has been brought on record by the respondents to show that the value of the gambier as on the date of transport was less than that shown on the invoices except for the unsupported estimate of the TTO that the gambier was worth Rs.20 lakhs. The appellant in any event was not concerned with any ineterstate sale that the purchaser might have effected after the delivery. As far as it was concerned, the sale was and intrastate one and subject to Central Sales Tax 1956, and therefore, outside the purview of the State Act.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: order dated 9th August, 2000 passed by the Tribunal and its order by the High Court on 28th September, 2000 was malafide and contumacious. It was said that false statements had been made by the respondents to the effect that the goods had been released to the appellant on 31st October, 2000. It was said that the order of re-seizure was without jurisdiction. It was pointed out that the security bonds furnished by the appellant are still with the respondents.16. The respondents have submitted that the alleged purchaser had not appeared at any stage of proceedings and enquiry revealed that it was no longer an existing firm. According to the respondents no documents had been filed at any stage by the appellant in support of its claim of ownership to the gambier. It was further submitted that issue of title was pending in the Revisional Application filed by the appellant and the respondents from the order of the Tribunal dated 9th August, 2000. It was said that the documents which were produced by the appellant were interpolated and contradictory and that the appellant had not come to court with clean hands. 17. The High Court, dismissed the application on the ground that the title in the goods had not passed to the purchaser although the price for the goods had not been paid. It was also said that M/s. Kamakhya Lime Industries and M/s. Maa Kamakhya Lime Industries were one and the same and that therefore the outstanding dues of M/s. Maa Kamakhya Lime Industries could be recovered from the goods in question. The appellant filed an application for review of the judgment which was dismissed by the High Court.18. Initially the special leave petition had been filed from the order dismissing the application for review. Subsequently, an application for amendment of the petition was filed including a challenge to the order of the High Court. At the hearing the application for amendment was not opposed and is allowed. 19. In our opinion, the High Court was wrong in dismissing the appellants petition. The Trade Tax Tribunal as early as on 31st March, 2000 had held that the appellant had the locus standi to ask for the release of goods because the appellant was the owner of the goods. The decision of the Tribunal was not challenged by the respondents. The decision of the Tribunal not being challenged, the issue of title was concluded in the appellants favour. In the face of this order, it was not open to Assistant Commissioner, Trade Tax on remand to reject the application of the appellant on the ground that it was not the owner of the goods. The High Court should have considered this aspect of the matter particularly when it had been expressly drawn to the High Courts attention. The High Court was also precluded from re-deciding the same issue between the same parties.20. Besides, the High Courts finding that the ownership of the goods had passed to M/s. Kamakhya Lime Industries only because it had been named in the Consignment Note appears to be incorrect. In Commissioner of Income-Tax, Madhya Pradesh and Bhopal, Nagpur vs. Bhopal Textiles Ltd., Bhopal, AIr 1961 SC 426 , 428, this Court said:- "A railway receipt is a document of title to goods, and for all purposes, represents the goods. When the railway receipt is handed over to the consignee on payment, the property in the goods is transferred. In this case, it is a matter of considerable doubt whether the property in the goods can be said to have passed to the buyers by the mere fact of the railway receipts being in the name of the consignees, as has been held by the High Court." 21. In the second round the Tribunal had directed the release of the goods to the appellant by its order dated 9th August, 2000 subject to furnishing the security of Rs.4 lakhs. The High Court by the interim order passed in the revisional application also directed the seized goods to be released to the appellant on the furnishing of security by its order dated 28th September, 2000. Even according to the respondents the goods were released formally to the appellant against security furnished by the appellant. Yet the last order of seizure in execution of the recovery certificates against the purchaser was issued on the basis that the goods had been released to M/s. Kakakhya Lime Industries. 22. The submission of the respondents that the appellant had come to the Court with unclean hands is unacceptable. On the other hand the respondents have mis-directed themselves by seeking to question the appellants ownership in the property to the goods. That could not have been in issue because unless ownership of the gambier was with the appellant, no title could have been transferred to the purchaser by it. [See: Section 27 of the Sale of Goods Act, 1930] The enquiry conducted by the TTO as to the business of the appellant, the existence of its office in Mumbai, etc. was therefore not only uncalled for but self defeating. 23. It is true that the respondents have said that the two invoice of the appellant have been prepared bearing the same number but in respect of different quantities of gambier. It is however, nobodys case that the total of the two invoices did not tally with the number of bags in fact found on the truck. No material has been brought on record by the respondents to show that the value of the gambier as on the date of transport was less than that shown on the invoices except for the unsupported estimate of the TTO that the gambier was worth Rs.20 lakhs. The appellant in any event was not concerned with any ineterstate sale that the purchaser might have effected after the delivery. As far as it was concerned, the sale was and intrastate one and subject to Central Sales Tax 1956, and therefore, outside the purview of the State Act. ### Response: 1

A.M. Mair & Co Vs. Gordhandass Sagarmull

Calcutta, in its ordinary original civil jurisdiction, praying inter alia that the award may be adjudged to be without jurisdiction and void and not binding on the respondents, and that it may be set aside. The main point raised by the respondents in the petition was that it was not open to the appellants to invoke the arbitration clause, as the Bengal Jute Mill Company and not the appellants were the real party to the contract and the appellants had acted as mere brokers. The appellants asserted in reply that the allegation made by the respondents in regard to there being no privity between them and the appellants was wrong, and in paragraph 16 of their affidavit they stated as follows :-"With regard to paragraph 7 of the petition I crave reference to the said contract for its true construction and effect. I say as I have already stated that according to the custom or usage or practice of the trade the respondent is entitled to charge brokerage and also to enforce the terms of the said contract."5. The case was heard by Sinha J., who dismissed the petition on the ground that the contract was directly between the respondents and the appellants. The learned Judge also observed that if the right of the appellants to enforce the contract depended upon the existence of custom it would have been necessary to take evidence and the arbitrators would have had jurisdiction to decide the question of the existence of custom.6. The respondents being dissatisfied with the judgment of Sinha J., preferred an appeal, which was heard and disposed of by a Division Bench of the High Court consisting of the learned Chief Justice and Chakravarthi J. The learned Judges held that having regard to the fact that the appellants own contention was that they had entered into the contract as brokers and were entitled to enforce its terms by reason of the usage or custom of the trade, it was not open to Sinha J. to treat them as principals, and the award was liable to be set aside on the ground that the arbitration tribunal had no jurisdiction to make an award at the instance of a person who was not a principal party to the contract. The appellants thereafter having obtained a certificate from the High Court under section 109(c) of the Code of Civil Procedure, preferred this appeal.7. It seems to us that this appeal can be disposed of on a short ground. We have carefully read the affidavit filed on behalf of the appellants in the trial court, and we are unable to hold that their case was that they were not parties to the contract or that they had asked the court to proceed on the sole ground that they were entitled to enforce the contract by virtue of the custom or usage of the trade. In our opinion, the position which was taken up by them may be summed up as follows :- (1) They did not accept the allegations made by the respondents that they were not parties to any arbitration agreement with the respondents (2) They asked the Court to construe the contract and its effect and asserted that they were entitled to enforce it (3) They also stated that they were entitled to enforce the contract according to the custom or usage of the trade.8. The principal dispute raised in this case was whether the extension of time for delivery was granted within the time limited in the contract. That dispute is certainly covered by the arbitration clause. The further dispute that the brokers (appellants) were not parties to the contract in their own right as principals out entered into the contract only on behalf of the Bengal Jute Mill Company does not appear to have been raised until the matter went to the arbitrators. Assuming that at that stage it was open to the respondents to raise such an objection, after the other dispute which clearly fell within the arbitration clause was referred to the arbitrators, this further dispute is also one which turns upon the true interpretation of the contract, so that the respondents must have recourse to the contract to establish their claim that the appellants were not bound as principals while the latter say that they were. If that is the position, such a dispute, the determination of which turns on the true construction of the contract, would also seem to be a dispute, under or arising out of or concerning the contract. In a passage quoted in Heyman v. Drawins Ltd. [1942 A.C. 356], Lord Dunedin propounds the test thus : -"If a party has to have recourse to the contract, that dispute is a dispute under the contract".Here, the respondents must have recourse to the contract to establish their case and therefore it is a dispute falling within the arbitration clause. The error into which the learned Judges of the appellate Bench of the High Court appear to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract every having been entered into.9. If, therefore, we come to the conclusion that both the disputes raised by the respondents fall within the scope of the arbitration clause, then there is an end of the matter, for the arbitrators would have jurisdiction to adjudicate on the disputes, and we are not concerned with any error of law or fact committed by them of any omission on their part to consider any of the matters. In this view, it would not be for us to determine the true construction of the contract and find out whether the respondents contention is correct or not. Once the dispute is found to be within the scope of the arbitration clause, it is no part of the province of the court to enter into the merits of the dispute.10.

1[ds]It seems to us that this appeal can be disposed of on a short ground. We have carefully read the affidavit filed on behalf of the appellants in the trial court, and we are unable to hold that their case was that they were not parties to the contract or that they had asked the court to proceed on the sole ground that they were entitled to enforce the contract by virtue of the custom or usage of the trade. In our opinion, the position which was taken up by them may be summed up as follows :- (1) They did not accept the allegations made by the respondents that they were not parties to any arbitration agreement with the respondents (2) They asked the Court to construe the contract and its effect and asserted that they were entitled to enforce it (3) They also stated that they were entitled to enforce the contract according to the custom or usage of theprincipal dispute raised in this case was whether the extension of time for delivery was granted within the time limited in the contract. That dispute is certainly covered by the arbitration clause. The further dispute that the brokers (appellants) were not parties to the contract in their own right as principals out entered into the contract only on behalf of the Bengal Jute Mill Company does not appear to have been raised until the matter went to the arbitrators. Assuming that at that stage it was open to the respondents to raise such an objection, after the other dispute which clearly fell within the arbitration clause was referred to the arbitrators, this further dispute is also one which turns upon the true interpretation of the contract, so that the respondents must have recourse to the contract to establish their claim that the appellants were not bound as principals while the latter say that they were. If that is the position, such a dispute, the determination of which turns on the true construction of the contract, would also seem to be a dispute, under or arising out of or concerning theerror into which the learned Judges of the appellate Bench of the High Court appear to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract every having been enteredtherefore, we come to the conclusion that both the disputes raised by the respondents fall within the scope of the arbitration clause, then there is an end of the matter, for the arbitrators would have jurisdiction to adjudicate on the disputes, and we are not concerned with any error of law or fact committed by them of any omission on their part to consider any of the matters. In this view, it would not be for us to determine the true construction of the contract and find out whether the respondents contention is correct or not. Once the dispute is found to be within the scope of the arbitration clause, it is no part of the province of the court to enter into the merits of the dispute.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: Calcutta, in its ordinary original civil jurisdiction, praying inter alia that the award may be adjudged to be without jurisdiction and void and not binding on the respondents, and that it may be set aside. The main point raised by the respondents in the petition was that it was not open to the appellants to invoke the arbitration clause, as the Bengal Jute Mill Company and not the appellants were the real party to the contract and the appellants had acted as mere brokers. The appellants asserted in reply that the allegation made by the respondents in regard to there being no privity between them and the appellants was wrong, and in paragraph 16 of their affidavit they stated as follows :-"With regard to paragraph 7 of the petition I crave reference to the said contract for its true construction and effect. I say as I have already stated that according to the custom or usage or practice of the trade the respondent is entitled to charge brokerage and also to enforce the terms of the said contract."5. The case was heard by Sinha J., who dismissed the petition on the ground that the contract was directly between the respondents and the appellants. The learned Judge also observed that if the right of the appellants to enforce the contract depended upon the existence of custom it would have been necessary to take evidence and the arbitrators would have had jurisdiction to decide the question of the existence of custom.6. The respondents being dissatisfied with the judgment of Sinha J., preferred an appeal, which was heard and disposed of by a Division Bench of the High Court consisting of the learned Chief Justice and Chakravarthi J. The learned Judges held that having regard to the fact that the appellants own contention was that they had entered into the contract as brokers and were entitled to enforce its terms by reason of the usage or custom of the trade, it was not open to Sinha J. to treat them as principals, and the award was liable to be set aside on the ground that the arbitration tribunal had no jurisdiction to make an award at the instance of a person who was not a principal party to the contract. The appellants thereafter having obtained a certificate from the High Court under section 109(c) of the Code of Civil Procedure, preferred this appeal.7. It seems to us that this appeal can be disposed of on a short ground. We have carefully read the affidavit filed on behalf of the appellants in the trial court, and we are unable to hold that their case was that they were not parties to the contract or that they had asked the court to proceed on the sole ground that they were entitled to enforce the contract by virtue of the custom or usage of the trade. In our opinion, the position which was taken up by them may be summed up as follows :- (1) They did not accept the allegations made by the respondents that they were not parties to any arbitration agreement with the respondents (2) They asked the Court to construe the contract and its effect and asserted that they were entitled to enforce it (3) They also stated that they were entitled to enforce the contract according to the custom or usage of the trade.8. The principal dispute raised in this case was whether the extension of time for delivery was granted within the time limited in the contract. That dispute is certainly covered by the arbitration clause. The further dispute that the brokers (appellants) were not parties to the contract in their own right as principals out entered into the contract only on behalf of the Bengal Jute Mill Company does not appear to have been raised until the matter went to the arbitrators. Assuming that at that stage it was open to the respondents to raise such an objection, after the other dispute which clearly fell within the arbitration clause was referred to the arbitrators, this further dispute is also one which turns upon the true interpretation of the contract, so that the respondents must have recourse to the contract to establish their claim that the appellants were not bound as principals while the latter say that they were. If that is the position, such a dispute, the determination of which turns on the true construction of the contract, would also seem to be a dispute, under or arising out of or concerning the contract. In a passage quoted in Heyman v. Drawins Ltd. [1942 A.C. 356], Lord Dunedin propounds the test thus : -"If a party has to have recourse to the contract, that dispute is a dispute under the contract".Here, the respondents must have recourse to the contract to establish their case and therefore it is a dispute falling within the arbitration clause. The error into which the learned Judges of the appellate Bench of the High Court appear to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract every having been entered into.9. If, therefore, we come to the conclusion that both the disputes raised by the respondents fall within the scope of the arbitration clause, then there is an end of the matter, for the arbitrators would have jurisdiction to adjudicate on the disputes, and we are not concerned with any error of law or fact committed by them of any omission on their part to consider any of the matters. In this view, it would not be for us to determine the true construction of the contract and find out whether the respondents contention is correct or not. Once the dispute is found to be within the scope of the arbitration clause, it is no part of the province of the court to enter into the merits of the dispute.10. ### Response: 1

I.S.Sirohi Vs. Commr.Of Police

1. Leave granted. 2. This appeal arises out of the judgment and order dated 18th September, 2007 passed by the Delhi High Court in Writ Petition(Crl.)No.1225 of 2007 filed by Shri I.S. Sirohi, the appellant herein, who is the father-in-law of Mrs. Deepti Sirohi, the respondent No.4 herein. The writ petition was disposed of by the High Court on 18/09/2007 by a non-speaking order, which reads as follows:- "In the circumstances of the case we feel that such a writ petition does not lie. Dismissed." 3. Having regard to the nature of the order passed, notice was issued in the special leave petition on 12th October, 2007, and subsequently, on 7th December, 2007, after service of notice when the matter was listed, the parties were referred to mediation before the Delhi High Court Mediation Centre and the matter was directed to be listed once a report was received in respect of such mediation. 4. When the matter was listed on 25th February, 2008, it was directed to be put up for final disposal, and accordingly, the same was listed before us on 26th August, 2008. After hearing the counsel for the respective parties, we had directed the matter to appear today in Chambers, when the respondent No.4-wife was directed to produce the two children who were the subject matter of the reliefs prayed for in the writ petition. She was also directed to be personally present, and a similar direction was given with regard to the paternal grandfather. 5. Today, when the matter was taken up, we had occasion to speak to the respondent-wife, the two children, Ruchira, aged approximately 10 years, and Rajat, aged 7 years, the parents-in-law of the respondent 4-wife and their respective counsel. 6. Since we were considering the writ petition wherein a writ in the nature of habeas corpus, as far as the two children are concerned, had been prayed for and which had been dismissed by a one sentence order of the High Court, we were of the view that since the children have been separated from the paternal grand-parents as well as their father for almost two years, it would be in the best interest of all concerned, and especially the children, to pass appropriate interim orders to enable the paternal grand-parents of the children, as well as the husband of the respondent No.4, to have access to the children. We are fully alive to the fact that this is not a custody proceeding, but, in the facts and circumstances of the case, we are of the view that the children should also not be alienated from the company and affection of their father or paternal grand-parents. In our view, the children require the care, love and affection, both of the fathers side of the family, as well as that of the mother, and that none of them should be denied access to the children.

1[ds]6. Since we were considering the writ petition wherein a writ in the nature of habeas corpus, as far as the two children are concerned, had been prayed for and which had been dismissed by a one sentence order of the High Court, we were of the view that since the children have been separated from the paternals as well as their father for almost two years, it would be in the best interest of all concerned, and especially the children, to pass appropriate interim orders to enable the paternals of the children, as well as the husband of the respondent No.4, to have access to the children. We are fully alive to the fact that this is not a custody proceeding, but, in the facts and circumstances of the case, we are of the view that the children should also not be alienated from the company and affection of their father or paternal. In our view, the children require the care, love and affection, both of the fathers side of the family, as well as that of the mother, and that none of them should be denied access to the children.

### 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: 1. Leave granted. 2. This appeal arises out of the judgment and order dated 18th September, 2007 passed by the Delhi High Court in Writ Petition(Crl.)No.1225 of 2007 filed by Shri I.S. Sirohi, the appellant herein, who is the father-in-law of Mrs. Deepti Sirohi, the respondent No.4 herein. The writ petition was disposed of by the High Court on 18/09/2007 by a non-speaking order, which reads as follows:- "In the circumstances of the case we feel that such a writ petition does not lie. Dismissed." 3. Having regard to the nature of the order passed, notice was issued in the special leave petition on 12th October, 2007, and subsequently, on 7th December, 2007, after service of notice when the matter was listed, the parties were referred to mediation before the Delhi High Court Mediation Centre and the matter was directed to be listed once a report was received in respect of such mediation. 4. When the matter was listed on 25th February, 2008, it was directed to be put up for final disposal, and accordingly, the same was listed before us on 26th August, 2008. After hearing the counsel for the respective parties, we had directed the matter to appear today in Chambers, when the respondent No.4-wife was directed to produce the two children who were the subject matter of the reliefs prayed for in the writ petition. She was also directed to be personally present, and a similar direction was given with regard to the paternal grandfather. 5. Today, when the matter was taken up, we had occasion to speak to the respondent-wife, the two children, Ruchira, aged approximately 10 years, and Rajat, aged 7 years, the parents-in-law of the respondent 4-wife and their respective counsel. 6. Since we were considering the writ petition wherein a writ in the nature of habeas corpus, as far as the two children are concerned, had been prayed for and which had been dismissed by a one sentence order of the High Court, we were of the view that since the children have been separated from the paternal grand-parents as well as their father for almost two years, it would be in the best interest of all concerned, and especially the children, to pass appropriate interim orders to enable the paternal grand-parents of the children, as well as the husband of the respondent No.4, to have access to the children. We are fully alive to the fact that this is not a custody proceeding, but, in the facts and circumstances of the case, we are of the view that the children should also not be alienated from the company and affection of their father or paternal grand-parents. In our view, the children require the care, love and affection, both of the fathers side of the family, as well as that of the mother, and that none of them should be denied access to the children. ### Response: 1

Workmen of British India Corporation, Limited Vs. British India Corporation, Limited

be compared. It came to the conclusion that the nearest industry which could be taken into consideration for purpose of comparison was the cotton textile industry. It pointed out that both cotton textiles and woollen textiles are parts of the textile industry, the difference being only in the material used. It therefore held that it would be proper to consider the wages paid in the cotton textile industry in Kanpur for purposes of comparison. We are of opinion that the tribunal cannot be said to be in error when it took the cotton textile industry in Kanpur for purposes of comparison as there are no other woollen mills in that region.4. The tribunal then considered first the wages of operatives in the spinning and weaving section. It pointed out that the wage board in the cotton industry had recommended an ad hoc increase in the wages of operatives in cotton mills and that recommendation had been carried out. It therefore allowed the same increase in the wages of operatives in the mills with this difference that the increase was allowed from January 1, 1961 instead of January 1, 1960 which was the date in the case of cotton textile industry. The reason for this difference appears to be that the reference was made in June, 1961 and the tribunal thought it expedient to begin the increase from January 1, 1961. In the circumstance, we are unable to see anything wrong with the view taken by the tribunal as to the extent of the increase and also as to the date from which the increase should begin. The contention of the appellants on this head must therefore fail.5. Next we come to the engineering and power-house section. The appellant contended that this staff should not be paid at the same rate at which the other operatives were being paid by the mills. It was urged that this section of the mills should be treated as a separate industry and compared with the Kanpur Electric Supply Administration and wages of the workmen in the engineering and power-house section of the mills should be fixed according to wages in the Kanpur Electric supply Administration. The tribunal rejected this contention and gave the same increase to this staff as he had given to the operatives in the spinning and weaving section of the mills. There can be no doubt that the engineering and power-house section of the mills is a part of the mills and in incidental to its working. It cannot be treated as a separate industry or its own and on that ground compared with the Kanpur Electric Supply Administration. The tribunal has also pointed out that there are similar sections in the cotton mills in Kanpur and the workmen in those sections are paid on par with other operatives in the cotton mills. It has also pointed out that taking into consideration wages in these sections of the cotton mills in Kanpur there is no appreciable, difference in the wages paid to the engineering and power-house section in the mills. It therefore decided to treat the workmen of the engineering and power house section in the same manner as the operatives of the shining and weaving section.6. We gave considered the matter very carefully and we are of opinion that the tribunal was right in holding that the engineering and power-house section which is incidental to the mills cannot be treated as a separate industry and on that ground compared with the Kanpur Electric Supply Administration. On this view, therefore, the tribunal was right in giving the same increase to the workmen in this section as it did to the apparitions in the spinning and weaving section. The contention of the appellants on this head must fail.We now come to clerks. The tribunal has given them the same scales as had been given by the Central Wage Board in the cotton industry. Once it is accepted that wages in the mills should be brought on the same level as wages in cotton mills as recommended by the Central Wage Board, the decision of the tribunal giving the same scales to clerks in the mills as provided in the recommendation of the board is correct. The only thing that has been urged is that the clerks in the mills should have been given category I, provided by the Central Wage Board and not category II. But it appears that the Kanpur cotton Mills are in category II and that is why the tribunal has given wages of category II to clerks in the mills. In the circumstances, we cannot say that this view of the tribunal is incorrect. The contention on this head must therefore also fail.7. Lastly we come to supervisors. The tribunal treated them on a part with operatives and gave the same increase. It seems to have been urged before the tribunal that supervisors should be equated with clerks. The tribunal however pointed out that there was total dearth of evidence to show what duties the supervisors performed and why there was difference in the basic wages paid to different supervisors. It also pointed out that the supervisors could not be treated on par with clerks because the nature of their duties was not the same, it held that the work performed by supervisors was not proved to be of higher responsibility and was really not supervisory in nature as seems to be indicated by the designation itself. It therefore held that as they were doing technical work, they, in the absence of proper material, must be treated on par with other operatives and ordered accordingly. In the absence of proper material it was in our opinion not possible for the tribunal to provide more than it did for supervisors, Nothing has been brought to our notice to show that the tribunal was wrong in saying that it would do no more far supervisors in the absence of proper material. The contention on this head must also be rejected.

0[ds]3. Taking first the question of amalgamation of dourness allowance with wages, the tribunal held that this question had not been referred to it. We have already set out the term of reference, and it is obvious that there is no express reference in that term to the amalgamation of dearness allowance with wages.It is true that in a sense dearness allowance is part of wages : but we are of opinion that the question of amalgamation of dearness allowance with basic wages raises specific and distinct issues some of which may be ofeffect in the region to which this industry belongs and such a question cannot be considered as a mere incidental matter arising out of the reference as to increase in wages. Increase in wages is a very different matter and such an increase would not necessarily comprise even increase the question of amalgamation of dearness allowance with basic wages. We agree with the tribunal that if it was the intention of government that the matter of amalgamation of dearness allowance and basic wages should be considered by tribunal there should have been a specific term in the reference to the effect. In the absence of such a terms, it was not possible for the tribunal to consider this question and thus make a radical change in the pattern of wages prevalent in the region as if byWe therefore reject the contention of the appellants in this behalf.Turning now to the question of wages, the tribunal pointed out that there was no woollen mill in the region. It had therefore to decide with what other industry the wages prevalent in the mills had to be compared. It came to the conclusion that the nearest industry which could be taken into consideration for purpose of comparison was the cotton textile industry. It pointed out that both cotton textiles and woollen textiles are parts of the textile industry, the difference being only in the material used. It therefore held that it would be proper to consider the wages paid in the cotton textile industry in Kanpur for purposes of comparison. We are of opinion that the tribunal cannot be said to be in error when it took the cotton textile industry in Kanpur for purposes of comparison as there are no other woollen mills in that region.4. The tribunal then considered first the wages of operatives in the spinning and weaving section. It pointed out that the wage board in the cotton industry had recommended an ad hoc increase in the wages of operatives in cotton mills and that recommendation had been carried out. It therefore allowed the same increase in the wages of operatives in the mills with this difference that the increase was allowed from January 1, 1961 instead of January 1, 1960 which was the date in the case of cotton textile industry. The reason for this difference appears to be that the reference was made in June, 1961 and the tribunal thought it expedient to begin the increase from January 1, 1961. In the circumstance, we are unable to see anything wrong with the view taken by the tribunal as to the extent of the increase and also as to the date from which the increase should begin. The contention of the appellants on this head must therefore fail.5. Next we come to the engineering ande tribunal rejected this contention and gave the same increase to this staff as he had given to the operatives in the spinning and weaving section of the mills. There can be no doubt that the engineering andsection of the mills is a part of the mills and in incidental to its working. It cannot be treated as a separate industry or its own and on that ground compared with the Kanpur Electric Supply Administration. The tribunal has also pointed out that there are similar sections in the cotton mills in Kanpur and the workmen in those sections are paid on par with other operatives in the cotton mills. It has also pointed out that taking into consideration wages in these sections of the cotton mills in Kanpur there is no appreciable, difference in the wages paid to the engineering andsection in the mills. It therefore decided to treat the workmen of the engineering and power house section in the same manner as the operatives of the shining and weaving section.6. We gave considered the matter very carefully and we are of opinion that the tribunal was right in holding that the engineering andsection which is incidental to the mills cannot be treated as a separate industry and on that ground compared with the Kanpur Electric Supply Administration. On this view, therefore, the tribunal was right in giving the same increase to the workmen in this section as it did to the apparitions in the spinning and weaving section. The contention of the appellants on this head must fail.We now come to clerks. The tribunal has given them the same scales as had been given by the Central Wage Board in the cotton industry. Once it is accepted that wages in the mills should be brought on the same level as wages in cotton mills as recommended by the Central Wage Board, the decision of the tribunal giving the same scales to clerks in the mills as provided in the recommendation of the board is correct. The only thing that has been urged is that the clerks in the mills should have been given category I, provided by the Central Wage Board and not category II. But it appears that the Kanpur cotton Mills are in category II and that is why the tribunal has given wages of category II to clerks in the mills. In the circumstances, we cannot say that this view of the tribunal is incorrect. The contention on this head must therefore also fail.7. Lastly we come to supervisors. The tribunal treated them on a part with operatives and gave the same increase. It seems to have been urged before the tribunal that supervisors should be equated with clerks. The tribunal however pointed out that there was total dearth of evidence to show what duties the supervisors performed and why there was difference in the basic wages paid to different supervisors. It also pointed out that the supervisors could not be treated on par with clerks because the nature of their duties was not the same, it held that the work performed by supervisors was not proved to be of higher responsibility and was really not supervisory in nature as seems to be indicated by the designation itself. It therefore held that as they were doing technical work, they, in the absence of proper material, must be treated on par with other operatives and ordered accordingly. In the absence of proper material it was in our opinion not possible for the tribunal to provide more than it did for supervisors, Nothing has been brought to our notice to show that the tribunal was wrong in saying that it would do no more far supervisors in the absence of proper material. The contention on this head must also be rejected.

### 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: be compared. It came to the conclusion that the nearest industry which could be taken into consideration for purpose of comparison was the cotton textile industry. It pointed out that both cotton textiles and woollen textiles are parts of the textile industry, the difference being only in the material used. It therefore held that it would be proper to consider the wages paid in the cotton textile industry in Kanpur for purposes of comparison. We are of opinion that the tribunal cannot be said to be in error when it took the cotton textile industry in Kanpur for purposes of comparison as there are no other woollen mills in that region.4. The tribunal then considered first the wages of operatives in the spinning and weaving section. It pointed out that the wage board in the cotton industry had recommended an ad hoc increase in the wages of operatives in cotton mills and that recommendation had been carried out. It therefore allowed the same increase in the wages of operatives in the mills with this difference that the increase was allowed from January 1, 1961 instead of January 1, 1960 which was the date in the case of cotton textile industry. The reason for this difference appears to be that the reference was made in June, 1961 and the tribunal thought it expedient to begin the increase from January 1, 1961. In the circumstance, we are unable to see anything wrong with the view taken by the tribunal as to the extent of the increase and also as to the date from which the increase should begin. The contention of the appellants on this head must therefore fail.5. Next we come to the engineering and power-house section. The appellant contended that this staff should not be paid at the same rate at which the other operatives were being paid by the mills. It was urged that this section of the mills should be treated as a separate industry and compared with the Kanpur Electric Supply Administration and wages of the workmen in the engineering and power-house section of the mills should be fixed according to wages in the Kanpur Electric supply Administration. The tribunal rejected this contention and gave the same increase to this staff as he had given to the operatives in the spinning and weaving section of the mills. There can be no doubt that the engineering and power-house section of the mills is a part of the mills and in incidental to its working. It cannot be treated as a separate industry or its own and on that ground compared with the Kanpur Electric Supply Administration. The tribunal has also pointed out that there are similar sections in the cotton mills in Kanpur and the workmen in those sections are paid on par with other operatives in the cotton mills. It has also pointed out that taking into consideration wages in these sections of the cotton mills in Kanpur there is no appreciable, difference in the wages paid to the engineering and power-house section in the mills. It therefore decided to treat the workmen of the engineering and power house section in the same manner as the operatives of the shining and weaving section.6. We gave considered the matter very carefully and we are of opinion that the tribunal was right in holding that the engineering and power-house section which is incidental to the mills cannot be treated as a separate industry and on that ground compared with the Kanpur Electric Supply Administration. On this view, therefore, the tribunal was right in giving the same increase to the workmen in this section as it did to the apparitions in the spinning and weaving section. The contention of the appellants on this head must fail.We now come to clerks. The tribunal has given them the same scales as had been given by the Central Wage Board in the cotton industry. Once it is accepted that wages in the mills should be brought on the same level as wages in cotton mills as recommended by the Central Wage Board, the decision of the tribunal giving the same scales to clerks in the mills as provided in the recommendation of the board is correct. The only thing that has been urged is that the clerks in the mills should have been given category I, provided by the Central Wage Board and not category II. But it appears that the Kanpur cotton Mills are in category II and that is why the tribunal has given wages of category II to clerks in the mills. In the circumstances, we cannot say that this view of the tribunal is incorrect. The contention on this head must therefore also fail.7. Lastly we come to supervisors. The tribunal treated them on a part with operatives and gave the same increase. It seems to have been urged before the tribunal that supervisors should be equated with clerks. The tribunal however pointed out that there was total dearth of evidence to show what duties the supervisors performed and why there was difference in the basic wages paid to different supervisors. It also pointed out that the supervisors could not be treated on par with clerks because the nature of their duties was not the same, it held that the work performed by supervisors was not proved to be of higher responsibility and was really not supervisory in nature as seems to be indicated by the designation itself. It therefore held that as they were doing technical work, they, in the absence of proper material, must be treated on par with other operatives and ordered accordingly. In the absence of proper material it was in our opinion not possible for the tribunal to provide more than it did for supervisors, Nothing has been brought to our notice to show that the tribunal was wrong in saying that it would do no more far supervisors in the absence of proper material. The contention on this head must also be rejected. ### Response: 0

Makrand Balkrishna Patwardhan Vs. State of Maharashtra

N.W. Sambre, J.1. Rule. Rule made returnable forthwith. By consent, heard finally.2. The petitioner, pursuant to a complaint dated 20/10/2001 preferred for and on behalf of respondent No.2 in the matter of theft of electrical energy, suffered prosecution under the provisions Section 39, 44 and 50 of the Indian Electricity Act, 1910 and amended in 1986 (for short "said Act"). Pursuant to the said complaint, charge was framed against the petitioner for an offence punishable under Section 39 of the said Act on 04/09/2008 by Judicial Magistrate, First Class, Dhule in Regular Criminal Case No.624 of 2001.3. Having regard to the policy of the Maharashtra State Electricity Distribution Company Limited (for short, "Distribution Company") particularly as reflected in Commercial Circular No.86 dated 25/07/2008, the petitioner approached the Superintending Engineer of the Distribution Company for compounding of offence.4. The said request of compounding of offence was placed before the Court in the above referred complaint case and in view of the provision of Section 89 of the Code of Civil Procedure, the matter was referred for mediation.5. Pursuant to the order of mediation passed by learned Court of the Judicial Magistrate, First Class, the matter was settled in between the parties and the petitioner herein has paid entire electricity charges, penalty, compounding fees to the tune of Rs.1,86,000/-. A joint pursis by the petitioner and the Distribution Company came to be filed on 06/03/2013 depicting the settlement.6. The said settlement is accepted by the Distribution Company and accordingly, the Distribution Company assured the petitioner to cooperate in the matter of compounding the criminal case, as is reflected in the joint pursis dated 06/03/2013.7. The criminal proceedings under Section 482 of the Code of Criminal Procedure are taken out by the petitioner in view of the fact that, under the provisions of Indian Electricity Act of 1910, if an offence under Section 39 is detected, no provision of compounding of offence is provided.8. The petitioner, in the wake of Commercial Circular No.86 dated 25/07/2008 issued by the Maharashtra State Electricity Distribution Company Limited and in view of compounding accepted by distribution Company, has sought quashing of the proceedings initiated vide Regular Criminal Case No.624 of 2001.9. It is the case of the petitioner that even if offence is alleged to have been committed under the old Act i.e., Act of 1910, however, in view of the verdict of the High Court of Bihar in the matter of Binod Giri vs. State of Bihar and others, the compounding is permissible. According to him, in the matter of compounding, provisions of the Electricity Act, 2003, there is a specific provision as regards compounding, in view of the Section 152 of the said Act.10. Based on the same, Distribution Company has adopted the provisions of Section 152 of the Indian Electricity Act, 2003 as regards compounding i.e., the offence committed under the old Act of 1910.11. From the record, it appears that the petitioner, has acceded the demand of the Distribution Company and has paid complete compounding charges as is acknowledged by the Counsel for the Distribution Company Mr. S.M. Godsay. It is also apparent from the record that the Distribution Company, in pursis dated 06/03/2013 in clear terms, has accepted that compounding fees are already paid by the petitioner and receipt to that effect is already passed.12. In view of above, having regard to the terms of the Commercial Circular No.86 dated 25/07/2008 and the provisions of Section 152 of the Indian Electricity Act, 2003, the prayer of the present petitioner for quashing and setting aside the proceedings pending on the file of Judicial Magistrate, First Class, Dhule vide Regular Criminal Case No.624 of 2001 is liable to be accepted.

1[ds]11. From the record, it appears that the petitioner, has acceded the demand of the Distribution Company and has paid complete compounding charges as is acknowledged by the Counsel for the Distribution Company Mr. S.M. Godsay. It is also apparent from the record that the Distribution Company, in pursis dated 06/03/2013 in clear terms, has accepted that compounding fees are already paid by the petitioner and receipt to that effect is already passed.12. In view of above, having regard to the terms of the Commercial Circular No.86 dated 25/07/2008 and the provisions of Section 152 of the Indian Electricity Act, 2003, the prayer of the present petitioner for quashing and setting aside the proceedings pending on the file of Judicial Magistrate, First Class, Dhule vide Regular Criminal Case No.624 of 2001 is liable to be accepted.

### 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: N.W. Sambre, J.1. Rule. Rule made returnable forthwith. By consent, heard finally.2. The petitioner, pursuant to a complaint dated 20/10/2001 preferred for and on behalf of respondent No.2 in the matter of theft of electrical energy, suffered prosecution under the provisions Section 39, 44 and 50 of the Indian Electricity Act, 1910 and amended in 1986 (for short "said Act"). Pursuant to the said complaint, charge was framed against the petitioner for an offence punishable under Section 39 of the said Act on 04/09/2008 by Judicial Magistrate, First Class, Dhule in Regular Criminal Case No.624 of 2001.3. Having regard to the policy of the Maharashtra State Electricity Distribution Company Limited (for short, "Distribution Company") particularly as reflected in Commercial Circular No.86 dated 25/07/2008, the petitioner approached the Superintending Engineer of the Distribution Company for compounding of offence.4. The said request of compounding of offence was placed before the Court in the above referred complaint case and in view of the provision of Section 89 of the Code of Civil Procedure, the matter was referred for mediation.5. Pursuant to the order of mediation passed by learned Court of the Judicial Magistrate, First Class, the matter was settled in between the parties and the petitioner herein has paid entire electricity charges, penalty, compounding fees to the tune of Rs.1,86,000/-. A joint pursis by the petitioner and the Distribution Company came to be filed on 06/03/2013 depicting the settlement.6. The said settlement is accepted by the Distribution Company and accordingly, the Distribution Company assured the petitioner to cooperate in the matter of compounding the criminal case, as is reflected in the joint pursis dated 06/03/2013.7. The criminal proceedings under Section 482 of the Code of Criminal Procedure are taken out by the petitioner in view of the fact that, under the provisions of Indian Electricity Act of 1910, if an offence under Section 39 is detected, no provision of compounding of offence is provided.8. The petitioner, in the wake of Commercial Circular No.86 dated 25/07/2008 issued by the Maharashtra State Electricity Distribution Company Limited and in view of compounding accepted by distribution Company, has sought quashing of the proceedings initiated vide Regular Criminal Case No.624 of 2001.9. It is the case of the petitioner that even if offence is alleged to have been committed under the old Act i.e., Act of 1910, however, in view of the verdict of the High Court of Bihar in the matter of Binod Giri vs. State of Bihar and others, the compounding is permissible. According to him, in the matter of compounding, provisions of the Electricity Act, 2003, there is a specific provision as regards compounding, in view of the Section 152 of the said Act.10. Based on the same, Distribution Company has adopted the provisions of Section 152 of the Indian Electricity Act, 2003 as regards compounding i.e., the offence committed under the old Act of 1910.11. From the record, it appears that the petitioner, has acceded the demand of the Distribution Company and has paid complete compounding charges as is acknowledged by the Counsel for the Distribution Company Mr. S.M. Godsay. It is also apparent from the record that the Distribution Company, in pursis dated 06/03/2013 in clear terms, has accepted that compounding fees are already paid by the petitioner and receipt to that effect is already passed.12. In view of above, having regard to the terms of the Commercial Circular No.86 dated 25/07/2008 and the provisions of Section 152 of the Indian Electricity Act, 2003, the prayer of the present petitioner for quashing and setting aside the proceedings pending on the file of Judicial Magistrate, First Class, Dhule vide Regular Criminal Case No.624 of 2001 is liable to be accepted. ### Response: 1

Sat Pal Gupta & Anr Vs. State Of Haryana & Anr

High Court.3. It is true that the power conferred by section 3(1) of the Essential Commodities Act, 1955, can be exercised by the Central Government or its delegate, only if it is of the opinion that it is necessary or expedient to provide for the regulation of any `essential commodity. The only sub- clauses of section 2(a) which a re relevant for the purpose of deciding whether rice bran is an essential commodity, are sub-clauses (i) and (v). Sub-clause (i) of section 2(a) defines an `essential commodity to mean "cattle fodder, including oil-cakes and other concentrates" . By sub-clause (v), an `essential commodity means "foodstuffs including edible oil-seeds and oils". If rice bran is either cattle fodder or foodstuff, it would be an essential commodity and the Central Government or its delegate, the St ate Government, would have the power to regulate its production, supply and distribution, and trade and commerce therein.Coming first to the question argued by Shri Maheshwari as to whether rice bran is a `foodstuff, it is well known that rice b ran is commonly used as poultry feed and not uncommonly as cattle feed. This is undisputed. Rice bran is a bye-product of the husking and milling process of paddy and consists of the layer which lies between the husk and the kernel. The affidavit of Shri T.K. Banerji, Director, Food and Supplies, Haryana which was filed in the High Court shows that rice bran is used in place of wheat bran or wheat middlings in livestock feeding. To the same effect is the affidavit filed in this Court by Shri H.D. Bansal, Director, Food and Supplies, Haryana. If this is the true position, we are unable to appreciate that rice bran cannot be considered to be a foodstuff. Any stuff which is commonly used as food by the generality of living beings is foodstuff: it is not legitimate to restrict the meaning of that word to things which are used as food by human beings. The animal kingdom is not any the less important in the cosmic scheme than the human empire and it is a distortion to say that it is a matter of little or no concern to the State whether the cattle and the poultry get their due ration of the means of their subsistence. Cattle feed and poultry feed are food to the cattle and the poultry, and therefore they are foodstuffs.4. The word `foodstuffs which occurs in clause (v) of Section 2(a) is not defined in the Act and therefore it must receive its ordinary and natural meaning, that is to say, a meaning which takes account of and accords with the day-to- day affairs of life. Cattle and poultry are living components of the natural environment and there is no reason to exclude that which they eat or feed upon, from the meaning of the word `foodstuffs. If, what the human beings eat is food, so is what the other living beings eat. `Cattle fodder is expressly brought within the compass of essential commodities by clause (i) of section 2(a). It would be illogical if, in that context, rice bran is excluded from the purview of essential commodities on the ground that it is eaten by the poultry and not by Homo Sapiens.By `foodstuffs is meant food of any kind. The Shorter Oxford English Dictionary (Third Edition) says that `food is "what one takes into the system to maintain life and growth". According to Websters Third New International Dictionary, `food means "material consisting of carbohydrates, fats, proteins and supplementary substances, that is taken or absorbed into the body of an organism in order to sustain growth, repair, and all vital processes and to furnish energy for all activity of the organism; something that nourishes or develops or sustains". These dictionary meanings of the word "food" are not restricted to what is eaten by human beings for nourishment and sustenance. According to them, what one takes into the system to maintain life and growth or what is taken into the body of an organism in order to sustain growth is food.5. We are therefore of the opinion that rice bran being a foodstuff within the meaning of section 2(a)(v) of the Act, it is an essential commodity and therefore, the power conferred by section 3 can be used to regulate its production, sale or supply.6. The affidavits filed on behalf of the State of Haryana have attempted to make out a case that rice bran is also used for human consumption. A research bulletin brought out by the Department of Chemical Engineering and Technology, Punjab University, Chandigarh, is cited therein as showing that the oil extracted from rice bran can be used in a variety of ways in the edible field as, for example, for fat-frying, cooking and in the preparation of salads and sauces, and that in Japan, it has been used for edible purposes for many years. This claim may or may not be true but we would like to have better evidence to uphold it. It may be possible, in course of time, to process rice bran by the use of advanced food technology in order to make it a common article of food for human consumption.Our attention is drawn by Shri Bhagat, who appears on behalf of the Haryana Government, to a decision of this Court in M/s Sachdeva &Sons &Ors v. State of Punjab &Ors (Civil Appeal No. 8 17 of 1980 decided on May 7, 1980) in which it was held that rice bran is "cattle fodder" within the meaning of section 2(a)(i) of the Act. We need not go into that question since we are of the view that rice bran, being a foodstuff, is an essential commodity.7. The decisions in The State of Bombay v. Virkumar Gulabchand Shah(1) and Shriniwas Pannalal Chockani v. The Crown(2) which were cited by Shri Maheshwari and Shri Bhagat respectively do not bear upon the question in issue befor e us and need not, therefore, be discussed.8.

0[ds]It is true that the power conferred by section 3(1) of the Essential Commodities Act, 1955, can be exercised by the Central Government or its delegate, only if it is of the opinion that it is necessary or expedient to provide for the regulation of any `essential commodity. The only sub- clauses of section 2(a) which a re relevant for the purpose of decidingrice bran isy, are sub-clauses (i) and (v). Sub-clause (i) of section 2(a) defines an `essential commodity to mean "cattle fodder, including oil-cakes and other concentrates" . By sub-clause (v), an `essential commodity means "foodstuffs including edible oil-seeds and oils". Ifrice bran iseither cattle fodder or foodstuff, it would be an essential commodity and the Central Government or its delegate, the St ate Government, would have the power to regulate its production, supply and distribution, and trade and commerce therein.Coming first to the question argued by Shri Maheshwari as to whetherrice bran is`foodstuff, it is well known that rice b ran is commonly used as poultry feed and not uncommonly as cattle feed. This is undisputed. Rice bran is a bye-product of the husking and milling process of paddy and consists of the layer which lies between the husk and the kernel. The affidavit of Shri T.K. Banerji, Director, Food and Supplies, Haryana which was filed in the High Court shows thatrice bran isused in place of wheat bran or wheat middlings in livestock feeding. To the same effect is the affidavit filed in this Court by Shri H.D. Bansal, Director, Food and Supplies, Haryana. If this is the true position, we are unable to appreciate that rice bran cannot be considered to be a foodstuff. Any stuff which is commonly used as food by the generality of living beings is foodstuff: it is not legitimate to restrict the meaning of that word to things which are used as food by human beings. The animal kingdom is not any the less important in the cosmic scheme than the human empire and it is a distortion to say that it is a matter of little or no concern to the State whetherthe cattle and the poultry get their due ration of the means of their subsistence.Cattle feed and poultry feed are food to the cattle and the poultry, and therefore they areare therefore of the opinion that rice bran being a foodstuff within the meaning of section 2(a)(v) of the Act, it is an essential commodity and therefore, the power conferred by section 3 can be used to regulate its production, sale oraffidavits filed on behalf of the State of Haryana have attempted to make out a case thatrice bran isused for human consumption. A research bulletin brought out by the Department of Chemical Engineering and Technology, Punjab University, Chandigarh, is cited therein as showing that the oil extracted from rice bran can be used in a variety of ways in the edible field as, for example, for fat-frying, cooking and in the preparation of salads and sauces, and that in Japan, it has been used for edible purposes for many years. This claim may or may not be true but we would like to have better evidence to uphold it. It may be possible, in course of time, to process rice bran by the use of advanced food technology in order to make it a common article of food for human consumption.Our attention is drawn by Shri Bhagat, who appears on behalf of the Haryana Government, to a decision of this Court in M/s Sachdeva &Sons &Ors v. State of Punjab &Ors (Civil Appeal No. 8 17 of 1980 decided on May 7, 1980) in which it was held thatrice bran is"cattle fodder" within the meaning of section 2(a)(i) of the Act. We need not go into that question since we are of the view that rice bran, being a foodstuff, is an essentialdecisions in The State of Bombay v. Virkumar Gulabchand Shah(1) and Shriniwas Pannalal Chockani v. The Crown(2) which were cited by Shri Maheshwari and Shri Bhagat respectively do not bear upon the question in issue befor e us and need not, therefore, be discussed.

### 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: High Court.3. It is true that the power conferred by section 3(1) of the Essential Commodities Act, 1955, can be exercised by the Central Government or its delegate, only if it is of the opinion that it is necessary or expedient to provide for the regulation of any `essential commodity. The only sub- clauses of section 2(a) which a re relevant for the purpose of deciding whether rice bran is an essential commodity, are sub-clauses (i) and (v). Sub-clause (i) of section 2(a) defines an `essential commodity to mean "cattle fodder, including oil-cakes and other concentrates" . By sub-clause (v), an `essential commodity means "foodstuffs including edible oil-seeds and oils". If rice bran is either cattle fodder or foodstuff, it would be an essential commodity and the Central Government or its delegate, the St ate Government, would have the power to regulate its production, supply and distribution, and trade and commerce therein.Coming first to the question argued by Shri Maheshwari as to whether rice bran is a `foodstuff, it is well known that rice b ran is commonly used as poultry feed and not uncommonly as cattle feed. This is undisputed. Rice bran is a bye-product of the husking and milling process of paddy and consists of the layer which lies between the husk and the kernel. The affidavit of Shri T.K. Banerji, Director, Food and Supplies, Haryana which was filed in the High Court shows that rice bran is used in place of wheat bran or wheat middlings in livestock feeding. To the same effect is the affidavit filed in this Court by Shri H.D. Bansal, Director, Food and Supplies, Haryana. If this is the true position, we are unable to appreciate that rice bran cannot be considered to be a foodstuff. Any stuff which is commonly used as food by the generality of living beings is foodstuff: it is not legitimate to restrict the meaning of that word to things which are used as food by human beings. The animal kingdom is not any the less important in the cosmic scheme than the human empire and it is a distortion to say that it is a matter of little or no concern to the State whether the cattle and the poultry get their due ration of the means of their subsistence. Cattle feed and poultry feed are food to the cattle and the poultry, and therefore they are foodstuffs.4. The word `foodstuffs which occurs in clause (v) of Section 2(a) is not defined in the Act and therefore it must receive its ordinary and natural meaning, that is to say, a meaning which takes account of and accords with the day-to- day affairs of life. Cattle and poultry are living components of the natural environment and there is no reason to exclude that which they eat or feed upon, from the meaning of the word `foodstuffs. If, what the human beings eat is food, so is what the other living beings eat. `Cattle fodder is expressly brought within the compass of essential commodities by clause (i) of section 2(a). It would be illogical if, in that context, rice bran is excluded from the purview of essential commodities on the ground that it is eaten by the poultry and not by Homo Sapiens.By `foodstuffs is meant food of any kind. The Shorter Oxford English Dictionary (Third Edition) says that `food is "what one takes into the system to maintain life and growth". According to Websters Third New International Dictionary, `food means "material consisting of carbohydrates, fats, proteins and supplementary substances, that is taken or absorbed into the body of an organism in order to sustain growth, repair, and all vital processes and to furnish energy for all activity of the organism; something that nourishes or develops or sustains". These dictionary meanings of the word "food" are not restricted to what is eaten by human beings for nourishment and sustenance. According to them, what one takes into the system to maintain life and growth or what is taken into the body of an organism in order to sustain growth is food.5. We are therefore of the opinion that rice bran being a foodstuff within the meaning of section 2(a)(v) of the Act, it is an essential commodity and therefore, the power conferred by section 3 can be used to regulate its production, sale or supply.6. The affidavits filed on behalf of the State of Haryana have attempted to make out a case that rice bran is also used for human consumption. A research bulletin brought out by the Department of Chemical Engineering and Technology, Punjab University, Chandigarh, is cited therein as showing that the oil extracted from rice bran can be used in a variety of ways in the edible field as, for example, for fat-frying, cooking and in the preparation of salads and sauces, and that in Japan, it has been used for edible purposes for many years. This claim may or may not be true but we would like to have better evidence to uphold it. It may be possible, in course of time, to process rice bran by the use of advanced food technology in order to make it a common article of food for human consumption.Our attention is drawn by Shri Bhagat, who appears on behalf of the Haryana Government, to a decision of this Court in M/s Sachdeva &Sons &Ors v. State of Punjab &Ors (Civil Appeal No. 8 17 of 1980 decided on May 7, 1980) in which it was held that rice bran is "cattle fodder" within the meaning of section 2(a)(i) of the Act. We need not go into that question since we are of the view that rice bran, being a foodstuff, is an essential commodity.7. The decisions in The State of Bombay v. Virkumar Gulabchand Shah(1) and Shriniwas Pannalal Chockani v. The Crown(2) which were cited by Shri Maheshwari and Shri Bhagat respectively do not bear upon the question in issue befor e us and need not, therefore, be discussed.8. ### Response: 0

State Of West Bengal Vs. Gourangalal Chatterjee

R.M. Sahai, J. 1. The short and the only question of law that arises for consideration in this appeal is if an appeal was maintainable against an order passed by the Learned Single Judge under Section 39(1) of the Arbitration Act either under Section 39(2) of the Act or under the Letters Patent jurisdiction.2. Facts are not in dispute. Since the State did not appoint any Arbitrator as provided for in Clause 25 of the agreement despite letters by the respondent to the Chief Engineer, Public Works Department (P.W.D.) and the Secretary P.W.D. the respondent approached the High Court and a Learned Single Judge by order dated 6th September, 1991 revoked the authority of the Chief Engineer to act as an arbitrator and directed one Shri D.K. Roy Chowdhury to act as the sole arbitrator as suggested by the respondent. Against this order the State filed an appeal which has been dismissed by the Division Bench upholding the objection of the respondent as not maintainable. It has been held that the appeal was not maintainable either under Section 39(2) or under Letters Patent. It is the correctness of this view that has been assailed in this appeal. 3. Section 39 of the Arbitration Act came up for consideration in Union of India v. Mohindra Supply Company, (1962) 3 SCR 497. The Court after going into detail and examining various authorities given by different High Courts held that no second appeal lay under Section 39(2) against a decision given by a Learned Single Judge under Section 39(1). In respect of the jurisdiction under Letters Patent the Court observed that since Arbitration Act was a consolidating and Amending Act relating to arbitration it must be construed without any assumption that it was not intended to alter the law relating to appeals. The Court held that in view of bar created by Sub- section (2) of Section 39 debarring any second appeal from an order passed in appeal under Sub-section (1) the ‘conclusion was inevitable that it was so done with a view to restrict the right of appeal within strict limits defined by Section 39. Therefore, so far the second part is concerned, namely, the maintainability of the appeal under Letters Patent it stands concluded by this decision. 4. The Learned Counsel for the appellant vehemently argued that since the decision by the Supreme Court was in respect of an appeal directed against an order passed by a Learned Single Judge in exercise of appellate jurisdiction no second appeal lay but that principle could not be applied where the order of Learned Single Judge was passed not in exercise of appellate jurisdiction but original jurisdiction. The argument appears to be with- out any substance as Sub-section (1) of Section 39 which is extracted below: “(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order:An order—(i) superseding an arbitration;(ii) on an award stated in the form of a special case;(iii) modifying or correcting an award;(iv) filing or refusing to file an arbitration agreement;(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;(vi) setting aside or refusing to set aside an award Provided that the provisions of this section? shall not apply to any order passed by a Small Cause Court.(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.” provides that an appeal could lie only from the orders mentioned in the sub- section itself. Since the order passed by Learned Single Judge revoking the authority of the Chief Engineer on his failure to act as an arbitrator was not covered in either of the six clauses mentioned in Section 39 it is obvious that no appeal could be filed against the order of the Learned Single Judge. 5. Reliance was placed on certain orders passed by this Court and it was urged that settlement of dispute under Clause 25 of the agreement being in exclusive domain of the Chief Engineer the High Court “was not empowered to appoint anyone else. The submission is devoid of any merit. It is not made out from the agreement. Rather clause 25 itself permits appointment of another arbitrator if the Chief Engineer fails or omits to act as such. Relevent portion of the agreement extracted below: “Should the Chief Engineer be for any reason unwilling or unable to act as such Arbitrator such questions and disputes shall be referred to an Arbitrator to be appointed by the Arbitrator shall be final, conclusive and binding on all the parties to this contract.” In one of the decisions given by this Court the order of the High Court was set aside as the dispute being technical in nature the appointment of a non-technical arbitrator was not justified. Here in this the High Court has appointed a retired Chief Engineer and not a non-technical man. No allegation has been made against him. Therefore, the order of the learned Single Judge also does not suffer from any infirmity.

0[ds]The argument appears to be with- out any substance as Sub-section (1) of Section 39 which is extractedAn appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order:An order—(i) superseding an arbitration;(ii) on an award stated in the form of a special case;(iii) modifying or correcting an award;(iv) filing or refusing to file an arbitration agreement;(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;(vi) setting aside or refusing to set aside an award Provided that the provisions of this section? shall not apply to any order passed by a Small Cause Court.(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supremeprovides that an appeal could lie only from the orders mentioned in the sub- section itself. Since the order passed by Learned Single Judge revoking the authority of the Chief Engineer on his failure to act as an arbitrator was not covered in either of the six clauses mentioned in Section 39 it is obvious that no appeal could be filed against the order of the Learned Single Judge.Reliance was placed on certain orders passed by this Court and it was urged that settlement of dispute under Clause 25 of the agreement being in exclusive domain of the Chief Engineer the High Courtnot empowered to appoint anyone else. The submission is devoid of any merit. It is not made out from the agreement. Rather clause 25 itself permits appointment of another arbitrator if the Chief Engineer fails or omits to act as such. Relevent portion of the agreement extractedthe Chief Engineer be for any reason unwilling or unable to act as such Arbitrator such questions and disputes shall be referred to an Arbitrator to be appointed by the Arbitrator shall be final, conclusive and binding on all the parties to thisone of the decisions given by this Court the order of the High Court was set aside as the dispute being technical in nature the appointment of a non-technical arbitrator was not justified. Here in this the High Court has appointed a retired Chief Engineer and not a non-technical man. No allegation has been made against him. Therefore, the order of the learned Single Judge also does not suffer from any infirmity.

### 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: R.M. Sahai, J. 1. The short and the only question of law that arises for consideration in this appeal is if an appeal was maintainable against an order passed by the Learned Single Judge under Section 39(1) of the Arbitration Act either under Section 39(2) of the Act or under the Letters Patent jurisdiction.2. Facts are not in dispute. Since the State did not appoint any Arbitrator as provided for in Clause 25 of the agreement despite letters by the respondent to the Chief Engineer, Public Works Department (P.W.D.) and the Secretary P.W.D. the respondent approached the High Court and a Learned Single Judge by order dated 6th September, 1991 revoked the authority of the Chief Engineer to act as an arbitrator and directed one Shri D.K. Roy Chowdhury to act as the sole arbitrator as suggested by the respondent. Against this order the State filed an appeal which has been dismissed by the Division Bench upholding the objection of the respondent as not maintainable. It has been held that the appeal was not maintainable either under Section 39(2) or under Letters Patent. It is the correctness of this view that has been assailed in this appeal. 3. Section 39 of the Arbitration Act came up for consideration in Union of India v. Mohindra Supply Company, (1962) 3 SCR 497. The Court after going into detail and examining various authorities given by different High Courts held that no second appeal lay under Section 39(2) against a decision given by a Learned Single Judge under Section 39(1). In respect of the jurisdiction under Letters Patent the Court observed that since Arbitration Act was a consolidating and Amending Act relating to arbitration it must be construed without any assumption that it was not intended to alter the law relating to appeals. The Court held that in view of bar created by Sub- section (2) of Section 39 debarring any second appeal from an order passed in appeal under Sub-section (1) the ‘conclusion was inevitable that it was so done with a view to restrict the right of appeal within strict limits defined by Section 39. Therefore, so far the second part is concerned, namely, the maintainability of the appeal under Letters Patent it stands concluded by this decision. 4. The Learned Counsel for the appellant vehemently argued that since the decision by the Supreme Court was in respect of an appeal directed against an order passed by a Learned Single Judge in exercise of appellate jurisdiction no second appeal lay but that principle could not be applied where the order of Learned Single Judge was passed not in exercise of appellate jurisdiction but original jurisdiction. The argument appears to be with- out any substance as Sub-section (1) of Section 39 which is extracted below: “(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order:An order—(i) superseding an arbitration;(ii) on an award stated in the form of a special case;(iii) modifying or correcting an award;(iv) filing or refusing to file an arbitration agreement;(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;(vi) setting aside or refusing to set aside an award Provided that the provisions of this section? shall not apply to any order passed by a Small Cause Court.(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.” provides that an appeal could lie only from the orders mentioned in the sub- section itself. Since the order passed by Learned Single Judge revoking the authority of the Chief Engineer on his failure to act as an arbitrator was not covered in either of the six clauses mentioned in Section 39 it is obvious that no appeal could be filed against the order of the Learned Single Judge. 5. Reliance was placed on certain orders passed by this Court and it was urged that settlement of dispute under Clause 25 of the agreement being in exclusive domain of the Chief Engineer the High Court “was not empowered to appoint anyone else. The submission is devoid of any merit. It is not made out from the agreement. Rather clause 25 itself permits appointment of another arbitrator if the Chief Engineer fails or omits to act as such. Relevent portion of the agreement extracted below: “Should the Chief Engineer be for any reason unwilling or unable to act as such Arbitrator such questions and disputes shall be referred to an Arbitrator to be appointed by the Arbitrator shall be final, conclusive and binding on all the parties to this contract.” In one of the decisions given by this Court the order of the High Court was set aside as the dispute being technical in nature the appointment of a non-technical arbitrator was not justified. Here in this the High Court has appointed a retired Chief Engineer and not a non-technical man. No allegation has been made against him. Therefore, the order of the learned Single Judge also does not suffer from any infirmity. ### Response: 0

Commissioner Of Income-Tax, U.P Vs. Kanpur Coal Syndicate

liable to the charge, under the head "every individual". Section 14 (2)(b) only says that if such an individual happens to be a member of an association of persons which has already been assessed, the tax would not be payable in respect of the share of his income again. That under the Act an assessment can be made on an association of persons as a unit or, alternatively, on the individual members thereof in respect of their respective shares of the income was assumed by this Court in commr, of Income-tax v. Raja Reddy Mallaram, (AIR 1964 SC 825 ). We, therefore, hold that S. 3 impliedly gives an option to an appropriate authority to assess the total income of either the association of persons or the members of such association individually.5. The next question is whether the said option is given only to the Income-tax Officer and is denied to the Appellate Assistant Commissioner and the Appellate Tribunal. Under the Act the Income-tax officer, after following the procedure prescribed, makes the assessment under S. 23 of the Act. Doubtless in making the assessment at the first instance he has to exercise the option whether he should assess the association of persons or, the members thereof individually. It is not because that any section of the Act confers an exclusive power on him to do so, but because it is part of the process of assessment; that is to say, he has to ascertain who is the person liable to be assessed for the tax. If he seeks to assess an association of persons as an assessable entity, the said entity can object to the assessment, inter alia, on the ground that in the circumstances of the case the assessment should be made on the members of the association individually. The Income-tax officer may reject its, contention and may assess the total income of the association as such and impose the tax on it. Under S. 30 an assessee objecting to the amount of income assessed under S. 23 or the amount of tax determined under the said section or denying his liability to be assessed under the Act can prefer an appeal against the order of the Income-tax Officer to the Appellate Assistant Commissioner. It is said that an order made by the Income-tax Officer rejecting the plea of an association of persons that the members thereof shall be assessed individually does not fall under one or other of the three heads mentioned above. What is the substance of the objection of the assessee? The assessee denies his liability to be assessed under the Act in the circumstances of the case and pleads that the members of the association shall be assessed only individually. The expression "denial of liability" is comprehensive enough to take in not only the total denial of liability but also the liability to tax under particular circumstances. In either case the denial is a denial of liability to be assessed under the provisions of the Act. In one case the assessee says that he is not liable to be assessed to tax under the Act, and in the other case the assessee denies his liability to tax under the provisions of the Act if the option given to the appropriate officer under the provisions of the Act is judicially exercised. We, therefore, hold that such an assessee has a right of appeal under S. 30 of the Act against the order of the Income-tax Officer assessing the association of members instead of the members thereof individually. If an appeal lies, S. 31 of the Act describes the powers of the Appellate Assistant Commissioner in such an appeal. Under S. 31 (3) (a) in disposing of such an appeal the Appellate Assistant Commissioner may, in the case of an order of assessment, confirm, reduce, enhance or annul the assessment; under cl. (b) thereof he may set aside the assessment and direct the Income-tax Officer to make a fresh assessment. The Appellate Assistant Commissioner has, therefore, plenary powers in disposing of an appeal. The scope of his power is conterminous with that of the Income-tax Officer. He can do what the Income-tax Officer can do and also direct him to do what he has failed to do. If the Income-tax Officer has the option to assess one or other of the entities in the alternative, the Appellate Assistant Commissioner can direct him to do that he should have done in the circumstances of a case. Under S. 33 (1); an assessee objecting to an order passed by an Appellate Assistant Commissioner under S. 28 or S. 31 may appeal to the Appellate Tribunal within 60 days. of the date on which such order is communicated to him. Under S. 33 (4) "The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the, Commissioner." Under S. 33 (5), "Where as the result of an appeal any change is made in the assessment of a firm or association of persons or a new assessment of a firm or association of persons is ordered to be made, the Appellate Tribunal may authoritse the Income-tax Officer to amend accordingly any assessment made on any partner of the firm or any member of the association". Under this section the Appellate Tribunal has ample power to set aside the assessment made on the association of persons and direct the Income-tax officer to assess the individuals or to direct the amendment of the assessment already made on the members. The comprehensive phraseology used, both in S. 31 and S. 33 of the Act does not countenance the attempt of the Revenue to restrict the power of the Appellate Assistant Commissioner or of the Appellate Tribunal: both of them have power to direct the appropriate authority to assess the members individually instead of the association of persons as a unit.

1[ds]Section 3 imposes a tax upon a person in respect of his total income. The persons on whom such tax can be imposed are particularized therein, namely, Hindu undivided family, company, local authority, firm, association of persons, partners of firm or members of association individually. The section, therefore, does not in terms confer any power on any particular officer to assess one of the persons described therein, but is only a charging section imposing the levy of tax on the total income of an assessable entity described therein. The section expressly treats an association of persons and the individual members of an association as two distinct and different assessable entities. On the terms of the section the tax can be levied on either of the said two entities according to the provisions of the Act. There is no scope for the argument that under S. 3, the assessment shall be only on the association of persons as a unit though after such assessment the share of the income of a member of that association may be added to his other income under S. 14(2) of the Act, This construction would make the last words of the section, viz., "members of the association individually" a surplusage. This argument is also contrary to the express provisions of S. 3, which mark out the members of the association individually as a separate entity from the association of persons. Income of every person whether he is a member of an association or not is liable to the charge, under the head "every individual". Section 14 (2)(b) only says that if such an individual happens to be a member of an association of persons which has already been assessed, the tax would not be payable in respect of the share of his income again. That under the Act an assessment can be made on an association of persons as a unit or, alternatively, on the individual members thereof in respect of their respective shares of the income was assumed by this Court in commr, of Income-tax v. Raja Reddy Mallaram, (AIR 1964 SC 825 ). We, therefore, hold that S. 3 impliedly gives an option to an appropriate authority to assess the total income of either the association of persons or the members of such associationAppellate Assistant Commissioner has, therefore, plenary powers in disposing of an appeal. The scope of his power is conterminous with that of the Income-tax Officer. He can do what the Income-tax Officer can do and also direct him to do what he has failed to do. If the Income-tax Officer has the option to assess one or other of the entities in the alternative, the Appellate Assistant Commissioner can direct him to do that he should have done in the circumstances of a case. Under S. 33 (1); an assessee objecting to an order passed by an Appellate Assistant Commissioner under S. 28 or S. 31 may appeal to the Appellate Tribunal within 60 days. of the date on which such order is communicated to him. Under S. 33 (4) "The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the, Commissioner." Under S. 33 (5), "Where as the result of an appeal any change is made in the assessment of a firm or association of persons or a new assessment of a firm or association of persons is ordered to be made, the Appellate Tribunal may authoritse the Income-tax Officer to amend accordingly any assessment made on any partner of the firm or any member of the association". Under this section the Appellate Tribunal has ample power to set aside the assessment made on the association of persons and direct the Income-tax officer to assess the individuals or to direct the amendment of the assessment already made on the members. The comprehensive phraseology used, both in S. 31 and S. 33 of the Act does not countenance the attempt of the Revenue to restrict the power of the Appellate Assistant Commissioner or of the Appellate Tribunal: both of them have power to direct the appropriate authority to assess the members individually instead of the association of persons as a unit.the Act theofficer, after following the procedure prescribed, makes the assessment under S. 23 of the Act. Doubtless in making the assessment at the first instance he has to exercise the option whether he should assess the association of persons or, the members thereof individually. It is not because that any section of the Act confers an exclusive power on him to do so, but because it is part of the process of assessment; that is to say, he has to ascertain who is the person liable to be assessed for the tax. If he seeks to assess an association of persons as an assessable entity, the said entity can object to the assessment, inter alia, on the ground that in the circumstances of the case the assessment should be made on the members of the association individually. Theofficer may reject its, contention and may assess the total income of the association as such and impose the tax on it. Under S. 30 an assessee objecting to the amount of income assessed under S. 23 or the amount of tax determined under the said section or denying his liability to be assessed under the Act can prefer an appeal against the order of theOfficer to the Appellate Assistant Commissioner. It is said that an order made by theOfficer rejecting the plea of an association of persons that the members thereof shall be assessed individually does not fall under one or other of the three heads mentioned above. What is the substance of the objection of the assessee? The assessee denies his liability to be assessed under the Act in the circumstances of the case and pleads that the members of the association shall be assessed only individually. The expression "denial of liability" is comprehensive enough to take in not only the total denial of liability but also the liability to tax under particular circumstances. In either case the denial is a denial of liability to be assessed under the provisions of the Act. In one case the assessee says that he is not liable to be assessed to tax under the Act, and in the other case the assessee denies his liability to tax under the provisions of the Act if the option given to the appropriate officer under the provisions of the Act is judicially exercised. We, therefore, hold that such an assessee has a right of appeal under S. 30 of the Act against the order of theOfficer assessing the association of members instead of the members thereof individually. If an appeal lies, S. 31 of the Act describes the powers of the Appellate Assistant Commissioner in such an appeal. Under S. 31 (3) (a) in disposing of such an appeal the Appellate Assistant Commissioner may, in the case of an order of assessment, confirm, reduce, enhance or annul the assessment; under cl. (b) thereof he may set aside the assessment and direct theOfficer to make a fresh assessment.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: liable to the charge, under the head "every individual". Section 14 (2)(b) only says that if such an individual happens to be a member of an association of persons which has already been assessed, the tax would not be payable in respect of the share of his income again. That under the Act an assessment can be made on an association of persons as a unit or, alternatively, on the individual members thereof in respect of their respective shares of the income was assumed by this Court in commr, of Income-tax v. Raja Reddy Mallaram, (AIR 1964 SC 825 ). We, therefore, hold that S. 3 impliedly gives an option to an appropriate authority to assess the total income of either the association of persons or the members of such association individually.5. The next question is whether the said option is given only to the Income-tax Officer and is denied to the Appellate Assistant Commissioner and the Appellate Tribunal. Under the Act the Income-tax officer, after following the procedure prescribed, makes the assessment under S. 23 of the Act. Doubtless in making the assessment at the first instance he has to exercise the option whether he should assess the association of persons or, the members thereof individually. It is not because that any section of the Act confers an exclusive power on him to do so, but because it is part of the process of assessment; that is to say, he has to ascertain who is the person liable to be assessed for the tax. If he seeks to assess an association of persons as an assessable entity, the said entity can object to the assessment, inter alia, on the ground that in the circumstances of the case the assessment should be made on the members of the association individually. The Income-tax officer may reject its, contention and may assess the total income of the association as such and impose the tax on it. Under S. 30 an assessee objecting to the amount of income assessed under S. 23 or the amount of tax determined under the said section or denying his liability to be assessed under the Act can prefer an appeal against the order of the Income-tax Officer to the Appellate Assistant Commissioner. It is said that an order made by the Income-tax Officer rejecting the plea of an association of persons that the members thereof shall be assessed individually does not fall under one or other of the three heads mentioned above. What is the substance of the objection of the assessee? The assessee denies his liability to be assessed under the Act in the circumstances of the case and pleads that the members of the association shall be assessed only individually. The expression "denial of liability" is comprehensive enough to take in not only the total denial of liability but also the liability to tax under particular circumstances. In either case the denial is a denial of liability to be assessed under the provisions of the Act. In one case the assessee says that he is not liable to be assessed to tax under the Act, and in the other case the assessee denies his liability to tax under the provisions of the Act if the option given to the appropriate officer under the provisions of the Act is judicially exercised. We, therefore, hold that such an assessee has a right of appeal under S. 30 of the Act against the order of the Income-tax Officer assessing the association of members instead of the members thereof individually. If an appeal lies, S. 31 of the Act describes the powers of the Appellate Assistant Commissioner in such an appeal. Under S. 31 (3) (a) in disposing of such an appeal the Appellate Assistant Commissioner may, in the case of an order of assessment, confirm, reduce, enhance or annul the assessment; under cl. (b) thereof he may set aside the assessment and direct the Income-tax Officer to make a fresh assessment. The Appellate Assistant Commissioner has, therefore, plenary powers in disposing of an appeal. The scope of his power is conterminous with that of the Income-tax Officer. He can do what the Income-tax Officer can do and also direct him to do what he has failed to do. If the Income-tax Officer has the option to assess one or other of the entities in the alternative, the Appellate Assistant Commissioner can direct him to do that he should have done in the circumstances of a case. Under S. 33 (1); an assessee objecting to an order passed by an Appellate Assistant Commissioner under S. 28 or S. 31 may appeal to the Appellate Tribunal within 60 days. of the date on which such order is communicated to him. Under S. 33 (4) "The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the, Commissioner." Under S. 33 (5), "Where as the result of an appeal any change is made in the assessment of a firm or association of persons or a new assessment of a firm or association of persons is ordered to be made, the Appellate Tribunal may authoritse the Income-tax Officer to amend accordingly any assessment made on any partner of the firm or any member of the association". Under this section the Appellate Tribunal has ample power to set aside the assessment made on the association of persons and direct the Income-tax officer to assess the individuals or to direct the amendment of the assessment already made on the members. The comprehensive phraseology used, both in S. 31 and S. 33 of the Act does not countenance the attempt of the Revenue to restrict the power of the Appellate Assistant Commissioner or of the Appellate Tribunal: both of them have power to direct the appropriate authority to assess the members individually instead of the association of persons as a unit. ### Response: 1

JAGJIT SINGH Vs. STATE OF PUNJAB

to the conclusion that soon before the death, the deceased was treated with cruelty or harassed for or in connection with demand for dowry. In this regard we have noticed that there is a material in the form of testimony of PW1 and PW3. The marriage between the accused-appellant and the deceased took place on 24.1.1998 and it survived only for a little over three (3) years. It is on 16.2.2001 that the deceased goes to the house of PW3, her elder sister, spent 5 to 7 minutes, according to the said witness, complained of cruelty or harassment by the accused and her own daughter was with her. On the same day, she goes to the PCO, phones her father PW1 and tells him about the harassment. PW4 the person working at the PCO has also stated that she was weeping and the she made a call. PW1 has spoken about the contents of the telephonic conversation namely, all the accused were maltreating and taunting her and that she was very much upset and the accused had thrown her out from their house with the daughter and that she will not be allowed to come back without a Maruti car or Rupees two lakhs. If he is to be believed (In fact, two courts have), this would amount to cruelty/harassment in connection with demand for dowry. Therefore, the law enjoins under Section 113-B of the Evidence Act drawing of the presumption that the accused has committed the dowry death. 27. Undoubtedly, the presumption is rebuttable at the hands of the accused by adducing evidence and discharging the reverse burden. Whether any such evidence in discharge with reverse burden has been successfully adduced and whether it has been considered, is the next question. The judgment of the trial Court would show that there is indeed a reference to the contents of the deposition of PW5, PW6 and PW8. 28. Power under Article 136 seemingly, transcends all limitations in regard to matters save where it is expressly excluded. However, by way of self imposed intrusions into such power, as also by way of deference to the scheme of the Constitution, the principles we have alluded to stand culled out. Apposite to the facts of this appeal, the following principles must inform us: 1. Credibility of witnesses as commended to Courts below is not ordinarily reappraised. 2. Is there misreading of evidence? 3. Is there any non-consideration of glaring inconsistency in the evidence which demolishes the prosecution’s case? 4. Are the findings inconsistent with the evidence? 5. Have the courts overlooked striking features in the evidence or is their failure to consider important piece of evidence? 6. Whether the evidence adduced by the prosecution fall short of the test of reliability and acceptability and it is therefore unsafe to act upon it? 29. The marriage took place on 24.1.1998. According to PW3 about 6 months after the marriage, demands were raised for dowry. Either a Maruti car or Rs.2 lakhs was the demand. There was physical cruelty according to PW1 father, and PW3 sister. In December, 2000 the deceased, meet both PW1 along with PW3 and complained about threats and beatings. The death took place in February, 2001. 30. The Troubling features - There is evidence, which establishes that the father of the appellant contributed to the continued higher education of the deceased. Is that compatible with treating his daughter-in-law with cruelty. The father-in-law stands acquitted by the trial Court. The mother-in-law even according to PW3 met her on 16.2.2001 and enquired about her daughter-in-law. PW3 told her that her sister was depressed and asked her to take her home. PW3 states that the deceased told her that on the night previous to 16.2.2001, the appellant had hurled abuse on her father and when she prevented the appellant from abusing her father, she was beaten even more. If this be true, indeed, it is cruelty near, in point of time and bearing a link proximate to the time of her death immediately thereafter. (The doctor has conducted post mortem on 28.2.2001. He has opined that the probable time which elapsed between death and post- mortem was about 12 days). This mean that the tragic death took place on the 16 th or 17 th of February, 2001. But PW1 does not depose a word about the telephone call made on the eve of 16.2.2001. There is evidence of PW3 that in their estimation the status of the appellant was lower and that they had represented that they had applied for an industrial connection and would start their own industry. That apart, Avtar Singh, the nephew of PW1, who is referred to by PW1, as having direct knowledge of certain aspects is not examined. 31. The trial Court has carefully discussed the two versions canvassed. The questions which we posed as troubling, most of them, was present in its mind. The High Court has also referred to the defence evidence including DW6 and DW8. 32. The trial Court, however, finds solace in rejecting the defence version on the score that it cannot be squared with the deceased visiting the home of PW3 on 16-02-2001, and it takes the view that she would have been the last person for her to visit. It is also found that the deceased did not go on being called by PW3. The trial Court had the advantage of watching the demeanor of the witnesses. We cannot hold that the view taken by the trial Court as affirmed by the High Court is not warranted as such by the materials on record. We cannot possibly hold that the view taken by the courts is manifestly perverse or that it is based on no evidence. Even if we are persuaded to take a different view as canvassed by the appellant we would not be justified in interfering. See the observations in Mst. Dalbir Kaurs case (supra). 33. The upshot of the above discussion is that we are not persuaded to interfere.

0[ds]12. We noticed that it was a case where the courts had acquitted all the accused for the offence under Sectionof the IPC.The Court noted that the case of the prosecution is that there is a demand for scooter and proceeded to hold inter alia as follows:18. Applying these principles to the instant case, we find that there is no evidence as to the demand of dowry or cruelty and that deceased Karamjit Kaur was subjected to dowry harassmentExcept the demand of scooter, there is nothing on record to substantiate the allegation of dowry demand. Assuming that there was demand of dowry, in our view, it can only be attributed to the husband Jagsir Singh who in all probability could have demanded the same for his use. In the absence of any evidence that the deceased was treated with cruelty or harassment in connection with the demand of dowryby the appellants, the conviction of the appellants under SectionIPC cannot be sustained. The trial court and the High Court have not analysed the evidence in the light of the essential ingredients of SectionIPC and the conviction of the appellants under SectionIPC is liable to be set4. We have already noticed that the essential ingredients of SectionIPC as noticed by this Court in Major Singh & Another vs. State of Punjab (supra). Parliament has inserted Sectionin the Evidence Act. In order that the presumption therein has to be applied it must be established that soon before her death, such woman must have been subjected by such person to cruelty or harassment for, or in connection with any demand of dowry. Upon this fact being established, undoubtedly, the court is mandated to assume that the person has indeed caused the dowry death as contemplated in SectionIPC. Therefore, the presumption cannot apply unless it is established that soon before her death, a woman has been subjected to cruelty or harassment for or in connection with any demand for dowry. The wordser death has also been considered in a large number of cases.In the perspective of aforesaid state of the law, two issues would arise. Whether there is material within the meaning of Sectionof the Evidence Act for the Court to have come to the conclusion that soon before the death, the deceased was treated with cruelty or harassed for or in connection with demand for dowry. In this regard we have noticed that there is a material in the form of testimony of PW1 and PW3. The marriage between theand the deceased took place on 24.1.1998 and it survived only for a little over three (3) years. It is on 16.2.2001 that the deceased goes to the house of PW3, her elder sister, spent 5 to 7 minutes, according to the said witness, complained of cruelty or harassment by the accused and her own daughter was with her. On the same day, she goes to the PCO, phones her father PW1 and tells him about the harassment. PW4 the person working at the PCO has also stated that she was weeping and the she made a call. PW1 has spoken about the contents of the telephonic conversation namely, all the accused were maltreating and taunting her and that she was very much upset and the accused had thrown her out from their house with the daughter and that she will not be allowed to come back without a Maruti car or Rupees two lakhs. If he is to be believed (In fact, two courts have), this would amount to cruelty/harassment in connection with demand for dowry. Therefore, the law enjoins under Sectionof the Evidence Act drawing of the presumption that the accused has committed the dowry death.The trial Court, however, finds solace in rejecting the defence version on the score that it cannot be squared with the deceased visiting the home of PW3 onand it takes the view that she would have been the last person for her to visit. It is also found that the deceased did not go on being called by PW3. The trial Court had the advantage of watching the demeanor of the witnesses. We cannot hold that the view taken by the trial Court as affirmed by the High Court is not warranted as such by the materials on record. We cannot possibly hold that the view taken by the courts is manifestly perverse or that it is based on no evidence. Even if we are persuaded to take a different view as canvassed by the appellant we would not be justified in interfering. See the observations in Mst. Dalbir

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: to the conclusion that soon before the death, the deceased was treated with cruelty or harassed for or in connection with demand for dowry. In this regard we have noticed that there is a material in the form of testimony of PW1 and PW3. The marriage between the accused-appellant and the deceased took place on 24.1.1998 and it survived only for a little over three (3) years. It is on 16.2.2001 that the deceased goes to the house of PW3, her elder sister, spent 5 to 7 minutes, according to the said witness, complained of cruelty or harassment by the accused and her own daughter was with her. On the same day, she goes to the PCO, phones her father PW1 and tells him about the harassment. PW4 the person working at the PCO has also stated that she was weeping and the she made a call. PW1 has spoken about the contents of the telephonic conversation namely, all the accused were maltreating and taunting her and that she was very much upset and the accused had thrown her out from their house with the daughter and that she will not be allowed to come back without a Maruti car or Rupees two lakhs. If he is to be believed (In fact, two courts have), this would amount to cruelty/harassment in connection with demand for dowry. Therefore, the law enjoins under Section 113-B of the Evidence Act drawing of the presumption that the accused has committed the dowry death. 27. Undoubtedly, the presumption is rebuttable at the hands of the accused by adducing evidence and discharging the reverse burden. Whether any such evidence in discharge with reverse burden has been successfully adduced and whether it has been considered, is the next question. The judgment of the trial Court would show that there is indeed a reference to the contents of the deposition of PW5, PW6 and PW8. 28. Power under Article 136 seemingly, transcends all limitations in regard to matters save where it is expressly excluded. However, by way of self imposed intrusions into such power, as also by way of deference to the scheme of the Constitution, the principles we have alluded to stand culled out. Apposite to the facts of this appeal, the following principles must inform us: 1. Credibility of witnesses as commended to Courts below is not ordinarily reappraised. 2. Is there misreading of evidence? 3. Is there any non-consideration of glaring inconsistency in the evidence which demolishes the prosecution’s case? 4. Are the findings inconsistent with the evidence? 5. Have the courts overlooked striking features in the evidence or is their failure to consider important piece of evidence? 6. Whether the evidence adduced by the prosecution fall short of the test of reliability and acceptability and it is therefore unsafe to act upon it? 29. The marriage took place on 24.1.1998. According to PW3 about 6 months after the marriage, demands were raised for dowry. Either a Maruti car or Rs.2 lakhs was the demand. There was physical cruelty according to PW1 father, and PW3 sister. In December, 2000 the deceased, meet both PW1 along with PW3 and complained about threats and beatings. The death took place in February, 2001. 30. The Troubling features - There is evidence, which establishes that the father of the appellant contributed to the continued higher education of the deceased. Is that compatible with treating his daughter-in-law with cruelty. The father-in-law stands acquitted by the trial Court. The mother-in-law even according to PW3 met her on 16.2.2001 and enquired about her daughter-in-law. PW3 told her that her sister was depressed and asked her to take her home. PW3 states that the deceased told her that on the night previous to 16.2.2001, the appellant had hurled abuse on her father and when she prevented the appellant from abusing her father, she was beaten even more. If this be true, indeed, it is cruelty near, in point of time and bearing a link proximate to the time of her death immediately thereafter. (The doctor has conducted post mortem on 28.2.2001. He has opined that the probable time which elapsed between death and post- mortem was about 12 days). This mean that the tragic death took place on the 16 th or 17 th of February, 2001. But PW1 does not depose a word about the telephone call made on the eve of 16.2.2001. There is evidence of PW3 that in their estimation the status of the appellant was lower and that they had represented that they had applied for an industrial connection and would start their own industry. That apart, Avtar Singh, the nephew of PW1, who is referred to by PW1, as having direct knowledge of certain aspects is not examined. 31. The trial Court has carefully discussed the two versions canvassed. The questions which we posed as troubling, most of them, was present in its mind. The High Court has also referred to the defence evidence including DW6 and DW8. 32. The trial Court, however, finds solace in rejecting the defence version on the score that it cannot be squared with the deceased visiting the home of PW3 on 16-02-2001, and it takes the view that she would have been the last person for her to visit. It is also found that the deceased did not go on being called by PW3. The trial Court had the advantage of watching the demeanor of the witnesses. We cannot hold that the view taken by the trial Court as affirmed by the High Court is not warranted as such by the materials on record. We cannot possibly hold that the view taken by the courts is manifestly perverse or that it is based on no evidence. Even if we are persuaded to take a different view as canvassed by the appellant we would not be justified in interfering. See the observations in Mst. Dalbir Kaurs case (supra). 33. The upshot of the above discussion is that we are not persuaded to interfere. ### Response: 0

Collector of Central Excise, Bombay Vs. Kohinoor Mills, Bombay

the appropriate tariff applicable at the time when such manufactured commodity is cleared by the manufacturer as per the provisions of the Excise Rules. In this connection, Rule 19(1) of the Central Excise Rules, 1944 becomes relevant. It reads as under "9. Time and manner of payment of duty. - (1) No excisable goods shall be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf, whether for consumption, export or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these Rules or as the Collector may require and except on presentation of an application in the proper form and on obtaining the permission of the proper officer on the form :" * 7. It, therefore, becomes obvious that the duty becomes payable on a manufactured item once it is removed from the place of manufacture for consumption, export or manufacture of any other commodity in or outside such place. There is an explanation of sub-rule (2) of Rule 9, which is relevant for the present purpose. It reads as under "Explanation. - For the purposes of this rule, excisable goods, produced, cured or manufactured in any place and consumed or utilised -(i) as such or after subjection to any process or processes; or(ii) for the manufacture of any other commodity;Whether in a continuous process or otherwise, in such place or any premises appurtenant thereto, specified by the Collector under sub-rule (1), shall be deemed to have been removed from such place or premises immediately before such consumption or utilisation." 8. A conjoint reading of Rule 9(1) and Explanation makes it clear that if a manufactured item covered by the charge of excise duty by the charging provisions of the Central Excise Act is captively consumed, it would amount to removal of such manufactured item. Consequently once the yarn is manufactured in the weaving department of the composite textile mills and is taken to the spinning department for being captively utilised by way of consumption in spinning department, and gets consumed, it is deemed to have been removed within the meaning of Rule 9(1). Once that happens, the liability of such manufactured yarn to pay excise duty at the then prevalent rate of duty is crystallised. Thereafter, the question as to when subsequently the fabric is manufactured or emerges or is removed from factory gate becomes irrelevant for the purpose of deciding the question of liability of excise duty on such captively consumed yarn. 9. It is not in dispute between the parties that in the present case captively consumed yarn was manufactured on and from 18-6-1977 and removed to spinning department and was utilised in the spinning department prior to 15-7-1977. Thus such yarn falls in the first category of yarn to which we have referred to earlier. The liability to pay excise duty on such yarn, therefore, has to be decided prior to 15-7-1977 in the light of Rule 9(1) read with Explanation and subject to the relevant exemption notification then holding the field. Once that happens, it has to be held that as at the relevant time the earlier Notification No. 132 of 1977 of 18-6-1977 was holding the field under which such yarn was wholly exempt from payment of excise duty, no excise duty was to be paid thereon. The view taken by the Tribunal, therefore, in Civil Appeals Nos. 103 and 104 of 1988 cannot be found fault with. That was in conformity with the view taken by the Gujarat and the Bombay High Courts in the earlier mentioned cases. We concur with the same. 10. The latter view taken by the Tribunal in judgment under appeal in Civil Appeal No. 5408 of 1990 seeks to rely to the decision of this Court in Wallace Flour Mills case ( 1989 (4) SCC 592 : 1990 SCC(Tax) 10 : 1989 (44) ELT 598 ). In that case this Court was not concerned with the manufacture and utilisation of a commodity by way of captive consumption. It was a case dealing with manufacture of food articles by an assessee company. After their manufacture but before they could be removed from the factory gate for home consumption, the rate of duty changed. It was, therefore, held that the said products had to bear the excise duty in the light of the prevailing tariff rate when such manufactured items were removed from the factory gate for home consumption. The said view was obviously based on operation of Rule 9(1). Explanation to Rule 9(1) was not attracted on the facts of the case. Such is not the present situation where the manufactured yarn is not removed in its then existing condition from the factory gate for home consumption. On the contrary, it was removed for being utilised for captive consumption prior to 18-7-1977. It is, therefore, not possible to uphold the view taken by the Tribunal in Civil Appeal No. 5408 of 1990. At this stage it is also appropriate to note that the Explanation to Rule 9(1) and Section 49 inserted with retrospective effect by the rule-making authorities were upheld by this Court in the case of J. K. Cotton Spg. & Wvg. Mills Ltd. v. Union of India 1987 Supp(SCC) 350 : 1988 SCC(Tax) 26). A later Bench of the Bombay High Court in the case of Union of India v. Hindustan Spg. & Wvg. Mills Ltd. ( 1992 (61) ELT 531 (Bom)) (ELT at p. 535) has taken the same view which has appealed to us. According to us no other view is possible on the scheme of the relevant provisions of the Act and the Rules. We respectfully concur with the view of the Division Bench of the Bombay High Court in Union of India v. Hindustan Spg. & Wvg. Mills case ( 1992 (61) ELT 531 (Bom)) .

0[ds]In our view the contention canvassed on behalf of the Revenue cannot be accepted. The reasons are obvious. It has to be kept in view that charge under the Central Excise Act is fastened on a manufactured item once manufacture takes place. But the liability to pay the duty thereon will have to be decided in the light of the appropriate tariff applicable at the time when such manufactured commodity is cleared by the manufacturer as per the provisions of the Excise Rules. In this connection, Rule 19(1) of the Central Excise Rules, 1944 becomes relevant. It reads asTime and manner of payment of duty.(1) No excisable goods shall be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf, whether for consumption, export or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these Rules or as the Collector may require and except on presentation of an application in the proper form and on obtaining the permission of the proper officer on the form :"It, therefore, becomes obvious that the duty becomes payable on a manufactured item once it is removed from the place of manufacture for consumption, export or manufacture of any other commodity in or outside such place. There is an explanation of(2) of Rule 9, which is relevant for the present purpose. It reads asFor the purposes of this rule, excisable goods, produced, cured or manufactured in any place and consumed oras such or after subjection to any process or processes; or(ii) for the manufacture of any other commodity;Whether in a continuous process or otherwise, in such place or any premises appurtenant thereto, specified by the Collector under(1), shall be deemed to have been removed from such place or premises immediately before such consumption or utilisation.A conjoint reading of Rule 9(1) and Explanation makes it clear that if a manufactured item covered by the charge of excise duty by the charging provisions of the Central Excise Act is captively consumed, it would amount to removal of such manufactured item. Consequently once the yarn is manufactured in the weaving department of the composite textile mills and is taken to the spinning department for being captively utilised by way of consumption in spinning department, and gets consumed, it is deemed to have been removed within the meaning of Rule 9(1). Once that happens, the liability of such manufactured yarn to pay excise duty at the then prevalent rate of duty is crystallised. Thereafter, the question as to when subsequently the fabric is manufactured or emerges or is removed from factory gate becomes irrelevant for the purpose of deciding the question of liability of excise duty on such captively consumedIt is not in dispute between the parties that in the present case captively consumed yarn was manufactured on and fromand removed to spinning department and was utilised in the spinning department prior toThus such yarn falls in the first category of yarn to which we have referred to earlier. The liability to pay excise duty on such yarn, therefore, has to be decided prior toin the light of Rule 9(1) read with Explanation and subject to the relevant exemption notification then holding the field. Once that happens, it has to be held that as at the relevant time the earlier Notification No. 132 of 1977 ofwas holding the field under which such yarn was wholly exempt from payment of excise duty, no excise duty was to be paid thereon. The view taken by the Tribunal, therefore, in Civil Appeals Nos. 103 and 104 of 1988 cannot be found fault with. That was in conformity with the view taken by the Gujarat and the Bombay High Courts in the earlier mentioned cases. We concur with theThe latter view taken by the Tribunal in judgment under appeal in Civil Appeal No. 5408 of 1990 seeks to rely to the decision of this Court in Wallace Flour Mills case ( 1989 (4) SCC 592 : 1990 SCC(Tax) 10 : 1989 (44) ELT 598 ). In that case this Court was not concerned with the manufacture and utilisation of a commodity by way of captive consumption. It was a case dealing with manufacture of food articles by an assessee company. After their manufacture but before they could be removed from the factory gate for home consumption, the rate of duty changed. It was, therefore, held that the said products had to bear the excise duty in the light of the prevailing tariff rate when such manufactured items were removed from the factory gate for home consumption. The said view was obviously based on operation of Rule 9(1). Explanation to Rule 9(1) was not attracted on the facts of the case. Such is not the present situation where the manufactured yarn is not removed in its then existing condition from the factory gate for home consumption. On the contrary, it was removed for being utilised for captive consumption prior toIt is, therefore, not possible to uphold the view taken by the Tribunal in Civil Appeal No. 5408 of 1990. At this stage it is also appropriate to note that the Explanation to Rule 9(1) and Section 49 inserted with retrospective effect by theauthorities were upheld by this Court in the case of J. K. Cotton Spg. & Wvg. Mills Ltd. v. Union of India 1987 Supp(SCC) 350 : 1988 SCC(Tax) 26). A later Bench of the Bombay High Court in the case of Union of India v. Hindustan Spg. & Wvg. Mills Ltd. ( 1992 (61) ELT 531 (Bom)) (ELT at p. 535) has taken the same view which has appealed to us. According to us no other view is possible on the scheme of the relevant provisions of the Act and the Rules. We respectfully concur with the view of the Division Bench of the Bombay High Court in Union of India v. Hindustan Spg. & Wvg. Mills case ( 1992 (61) ELT 531 (Bom))

### 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 appropriate tariff applicable at the time when such manufactured commodity is cleared by the manufacturer as per the provisions of the Excise Rules. In this connection, Rule 19(1) of the Central Excise Rules, 1944 becomes relevant. It reads as under "9. Time and manner of payment of duty. - (1) No excisable goods shall be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf, whether for consumption, export or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these Rules or as the Collector may require and except on presentation of an application in the proper form and on obtaining the permission of the proper officer on the form :" * 7. It, therefore, becomes obvious that the duty becomes payable on a manufactured item once it is removed from the place of manufacture for consumption, export or manufacture of any other commodity in or outside such place. There is an explanation of sub-rule (2) of Rule 9, which is relevant for the present purpose. It reads as under "Explanation. - For the purposes of this rule, excisable goods, produced, cured or manufactured in any place and consumed or utilised -(i) as such or after subjection to any process or processes; or(ii) for the manufacture of any other commodity;Whether in a continuous process or otherwise, in such place or any premises appurtenant thereto, specified by the Collector under sub-rule (1), shall be deemed to have been removed from such place or premises immediately before such consumption or utilisation." 8. A conjoint reading of Rule 9(1) and Explanation makes it clear that if a manufactured item covered by the charge of excise duty by the charging provisions of the Central Excise Act is captively consumed, it would amount to removal of such manufactured item. Consequently once the yarn is manufactured in the weaving department of the composite textile mills and is taken to the spinning department for being captively utilised by way of consumption in spinning department, and gets consumed, it is deemed to have been removed within the meaning of Rule 9(1). Once that happens, the liability of such manufactured yarn to pay excise duty at the then prevalent rate of duty is crystallised. Thereafter, the question as to when subsequently the fabric is manufactured or emerges or is removed from factory gate becomes irrelevant for the purpose of deciding the question of liability of excise duty on such captively consumed yarn. 9. It is not in dispute between the parties that in the present case captively consumed yarn was manufactured on and from 18-6-1977 and removed to spinning department and was utilised in the spinning department prior to 15-7-1977. Thus such yarn falls in the first category of yarn to which we have referred to earlier. The liability to pay excise duty on such yarn, therefore, has to be decided prior to 15-7-1977 in the light of Rule 9(1) read with Explanation and subject to the relevant exemption notification then holding the field. Once that happens, it has to be held that as at the relevant time the earlier Notification No. 132 of 1977 of 18-6-1977 was holding the field under which such yarn was wholly exempt from payment of excise duty, no excise duty was to be paid thereon. The view taken by the Tribunal, therefore, in Civil Appeals Nos. 103 and 104 of 1988 cannot be found fault with. That was in conformity with the view taken by the Gujarat and the Bombay High Courts in the earlier mentioned cases. We concur with the same. 10. The latter view taken by the Tribunal in judgment under appeal in Civil Appeal No. 5408 of 1990 seeks to rely to the decision of this Court in Wallace Flour Mills case ( 1989 (4) SCC 592 : 1990 SCC(Tax) 10 : 1989 (44) ELT 598 ). In that case this Court was not concerned with the manufacture and utilisation of a commodity by way of captive consumption. It was a case dealing with manufacture of food articles by an assessee company. After their manufacture but before they could be removed from the factory gate for home consumption, the rate of duty changed. It was, therefore, held that the said products had to bear the excise duty in the light of the prevailing tariff rate when such manufactured items were removed from the factory gate for home consumption. The said view was obviously based on operation of Rule 9(1). Explanation to Rule 9(1) was not attracted on the facts of the case. Such is not the present situation where the manufactured yarn is not removed in its then existing condition from the factory gate for home consumption. On the contrary, it was removed for being utilised for captive consumption prior to 18-7-1977. It is, therefore, not possible to uphold the view taken by the Tribunal in Civil Appeal No. 5408 of 1990. At this stage it is also appropriate to note that the Explanation to Rule 9(1) and Section 49 inserted with retrospective effect by the rule-making authorities were upheld by this Court in the case of J. K. Cotton Spg. & Wvg. Mills Ltd. v. Union of India 1987 Supp(SCC) 350 : 1988 SCC(Tax) 26). A later Bench of the Bombay High Court in the case of Union of India v. Hindustan Spg. & Wvg. Mills Ltd. ( 1992 (61) ELT 531 (Bom)) (ELT at p. 535) has taken the same view which has appealed to us. According to us no other view is possible on the scheme of the relevant provisions of the Act and the Rules. We respectfully concur with the view of the Division Bench of the Bombay High Court in Union of India v. Hindustan Spg. & Wvg. Mills case ( 1992 (61) ELT 531 (Bom)) . ### Response: 0

Government of Andhra Pradesh and Another Vs. Hindustan Machine Tools Limited

122 and s. 131 of the Act also provide for the imposition of specific fees. There is no provision in the Act empowering the Gram Panchayats to levy fees on the permission to construct a building, which is what the second Appellant has purported to do in the instant case.18. In fact, there is no provision in the Act under which it is necessary to obtain the permission of the Gram Panchayat for constructing a building. Sec. 131(2) of the Act which authorises the levy of fees for every licence or permission is therefore not attracted. Sec. 125(1) requires that the permission of the Gram Panchayat must be obtained for constructing or establishing a factory, workshop or workplace in which it is proposed to employ steam power water power or other mechanical power electrical power or in which it is proposed to install any machinery or manufacturing plant driven by steam water or other power as aforesaid. This provision may possibly support a levy of Permission Fee on the factory buildings, but there is no provision in the Act at all requiring the permission of the Gram Panchayat for the construction of other building. Counsel for the appellants wanted to derive sustenance to the imposition of Permission Fee from the provision contained in s. 217(2)(xvi) but that clause only empowers, the Government to make rules "as to the regulation or restriction of building and the use of sites for building". In the absence of any provision in the parent Statute requiring the permission of the Gram Panchayat for the construction of non-factory buildings, the rule-making power of the Government cannot be exercised so as to impose the requirement of a permission, in respect of such buildings.19. But there is a broader ground on which the levy of Permission Fee must be struck down. Fees are a sort of return or consideration for services rendered, which makes it necessary that there should be an element of quid pro quo in the imposition of a fee. There has to be a co-relationship between the fee levied by an authority and the services rendered by it to the person who is required to pay the fee. There is, in this case, not a word showing such a co-relationship. In the counter-affidavit which the appellants filed in the High Court in reply to the respondents writ petition, nothing at all was stated as to the expenses incurred or likely to be incurred by the Gram Panchayat in rendering any actual or intended service to the respondent. There may be something in the grievance of the Gram Panchayat that the mighty respondent and others following the respondents lead have been persistently refusing to pay taxes which has made it impossible for the Gram Panchayat to render any services. But the true legal position as stated by Mukherjea J. in the Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmendra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR 1005 ) is that "it is absolutely necessary that the levy of fees should on the face of the legislative provision, be co-related to the expenses incurred by Government in rendering the services". In the total absence of any data showing such a co-relationship, the levy of Permission Fee has to fail.20. One cannot take into account the sum-total of the activities of a public body like a Gram Panchayat to seek justification for the fees imposed by it. The expenses incurred by a Gram Panchayat or a Municipality in discharging its obligatory functions are usually met by the imposition of a variety of taxes. For justifying the imposition of fees the public authority has to show what services are rendered or intended to be rendered individually to the particular person on whom the fee is imposed. The Gram Panchayat here has not even prepared an estimate of what the intended services would cost it.21. Learned counsel for the appellants contended that the Gram Panchayat lays roads for providing access to new buildings, that it provides for drainage and lights and that it scrutinises the plans submitted for intended constructions and, if necessary, it advises the applicants in order that the proposed construction may conform to the regulations. We are unable to accept that these services are rendered individually to the respondents. The laying of roads and drainage or the supply of street-lights are a statutory function of public authorities and it is difficult to hold, in the absence of any material, that any of such services as have been mentioned to us have in fact been rendered to the respondent. The very circumstance that the Permission Fee is levied at a certain percentage of the capital value of the buildings shows that the Gram Panchayat itself never intended to co-relate the fee with the services rendered or intended to be rendered by it. There is therefore no warrant for the levy of Permission Fee, not even on factory buildings assuming for the sake of argument that the permission of Gram Panchayat is necessary for the construction of factory buildings.22. It was alternatively contended on behalf of the appellants that the Permission Fee though called a fee is really in the nature of a tax on buildings and may be upheld as such. It is impossible to accept this contention. That the Permission. Fee is not a tax on buildings is clear from the fact that the fee may be required to be paid even if a building does not eventually come into existence. The scheme under which the Permission Fee is attempt to be levied is that it becomes payable at the time when the permission to construct a building is applied for. The levy does not depend upon whether a building has been in fact constructed with the result that whether a building is constructed or not, the fee has to be paid. In other words, the Permission Fee is in the nature of a levy on a proposed activity and is not a tax on buildings.

1[ds]It is clear and is undisputed that the buildings constructed by the respondent the colony buildings as well as the factory buildings answer fully the description of a house and are squarely within the new definition contained in s. 2(15).8. We see no substance in the respondents contention that by redefining the term house with retrospective effect, and by validating the levies imposed under the unamended Act as if, notwithstanding anything contained in any judgment, decree or order of any Court, that Act as amended was in force on the date when the tax was levied, the Legislature has encroached upon a judicial function. The power of the Legislature to pass a law postulates the power to pass it prospectively as well as retrospectively, the one no less than the other. Within the scope of its legislative competence and subject to other constitutional limitations, the power of the Legislatures to enact laws is plenary.The State legislature, it is significant, has not overruled or set aside the judgment of the High Court. It has amended the definition of house by the substitution of a new s. 2(15) for the old section and it has provided that the new definition shall have retrospective effect, notwithstanding anything contained in any judgment decree or order of any Court or other authority. In other words, it has removed the basis of the decision rendered by the High Court so that the decision could not have been given in the altered circumstances. If the old s. 2(15) were to define house in the manner that the amended s. 2(15) does, there is no doubt that the decision of the High Court would have been otherwise. In fact, it was not disputed before us that the buildings constructed by the respondent meet fully the requirements of s. 2(15) as amended by the Act of 1974.In the instant case, the Amending Act of 1974 cures the old definition contained in s. 2(15) of the vice from which it suffered. The amendment has been given retrospective effect and as stated earlier the Legislature has the power to make the laws passed by it retro-active. As the Amending Act does not ask the instrumentalities of the State to disobey or disregard the decision given by the High Court but removes the basis of its decision, the challenge made by the respondent to the Amending Act must fail. The levy of the house-tax must therefore beneeds to be clarified that by r. 6 of the "Rules relating to levy of House-Tax" machinery and furniture are to be excluded from consideration for the purpose of assessment to income-tax. Thus, the tax is on buildings only and does not transgress the scope of Entryis true that the various Entries in the Legislative List must receive a broad and liberal construction and Entry 36 in List III may therefore cover every aspect of subject matter of "Factories". But the State Legislature has not authorised the levy of house-tax on factories in the compendious sense. The new definition of house includes a factory but the house-tax is levied only on the buildings occupied by the factory and not on the machinery and furniture. The State Legislature has the legislative competence to do so under Entry 49 in Listis no substance in this contention because the power to tax a building can be exercised without reference to the use to which the building is put and it is irrelevant that the building is occupied by a factory which cannot conduct its activities without the machinery and furniture. What falls legitimately within the scope of a legislative Entry can lawfully from the subject matter of legislation.16. We cannot entertain the respondents argument that without a proper budget, the Gram Panchayat cannot impose a tax. Such an argument was not made in the High Court and it involves an investigation into the fact whether the Gram Panchayat had or had not prepared a budget. Nor can we entertain the respondents submission that s. 4(b) and (c) of the Act of 1974 are invalid. Under cl. (b), no suit or other proceeding is maintainable or can be continued in any Court or before any authority for the refund of any tax. Under cl. (c), no Court shall enforce any decree or order directing the refund of any such tax. No suit has been filed by the respondent for the refund of tax and no decree or order has been passed by any Court or any authority or the refund of any tax. This Court does not answer academic questions.17. The position in regard to the so-called Permission Fee is entirely different. In the first place, the Act of 1964 itself makes a distinction between the power to impose a tax and the power to impose a fee. Sec. 69(1) and s. 69(3)(i), (ii), (iii) empower the Gram Panchayats to levy taxes while s. 69(3)(v) and (vi) provide for the levy of fees. Secs. 102, 109(2), 111, 121(3), 122 and s. 131 of the Act also provide for the imposition of specific fees. There is no provision in the Act empowering the Gram Panchayats to levy fees on the permission to construct a building, which is what the second Appellant has purported to do in the instant case.18. In fact, there is no provision in the Act under which it is necessary to obtain the permission of the Gram Panchayat for constructing a building. Sec. 131(2) of the Act which authorises the levy of fees for every licence or permission is therefore not attracted. Sec. 125(1) requires that the permission of the Gram Panchayat must be obtained for constructing or establishing a factory, workshop or workplace in which it is proposed to employ steam power water power or other mechanical power electrical power or in which it is proposed to install any machinery or manufacturing plant driven by steam water or other power as aforesaid. This provision may possibly support a levy of Permission Fee on the factory buildings, but there is no provision in the Act at all requiring the permission of the Gram Panchayat for the construction of other building.19. But there is a broader ground on which the levy of Permission Fee must be struck down. Fees are a sort of return or consideration for services rendered, which makes it necessary that there should be an element of quid pro quo in the imposition of a fee. There has to be a co-relationship between the fee levied by an authority and the services rendered by it to the person who is required to pay the fee. There is, in this case, not a word showing such a co-relationship. In the counter-affidavit which the appellants filed in the High Court in reply to the respondents writ petition, nothing at all was stated as to the expenses incurred or likely to be incurred by the Gram Panchayat in rendering any actual or intended service to the respondent. There may be something in the grievance of the Gram Panchayat that the mighty respondent and others following the respondents lead have been persistently refusing to pay taxes which has made it impossible for the Gram Panchayat to render any services. But the true legal position as stated by Mukherjea J. in the Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmendra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR 1005 ) is that "it is absolutely necessary that the levy of fees should on the face of the legislative provision, be co-related to the expenses incurred by Government in rendering the services". In the total absence of any data showing such a co-relationship, the levy of Permission Fee has to fail.20. One cannot take into account the sum-total of the activities of a public body like a Gram Panchayat to seek justification for the fees imposed by it. The expenses incurred by a Gram Panchayat or a Municipality in discharging its obligatory functions are usually met by the imposition of a variety of taxes. For justifying the imposition of fees the public authority has to show what services are rendered or intended to be rendered individually to the particular person on whom the fee is imposed. The Gram Panchayat here has not even prepared an estimate of what the intended services would costl for the appellantswanted to derive sustenance to the imposition of Permission Fee from the provision contained in s. 217(2)(xvi)but that clause only empowers, the Government to make rules "as to the regulation or restriction of building and the use of sites for building". In the absence of any provision in the parent Statute requiring the permission of the Gram Panchayat for the construction of non-factory buildings, the rule-making power of the Government cannot be exercised so as to impose the requirement of a permission, in respect of suchare unable to accept that these services are rendered individually to the respondents. The laying of roads and drainage or the supply of street-lights are a statutory function of public authorities and it is difficult to hold, in the absence of any material, that any of such services as have been mentioned to us have in fact been rendered to the respondent. The very circumstance that the Permission Fee is levied at a certain percentage of the capital value of the buildings shows that the Gram Panchayat itself never intended to co-relate the fee with the services rendered or intended to be rendered by it. There is therefore no warrant for the levy of Permission Fee, not even on factory buildings assuming for the sake of argument that the permission of Gram Panchayat is necessary for the construction of factoryis impossible to accept this contention. That the Permission. Fee is not a tax on buildings is clear from the fact that the fee may be required to be paid even if a building does not eventually come into existence. The scheme under which the Permission Fee is attempt to be levied is that it becomes payable at the time when the permission to construct a building is applied for. The levy does not depend upon whether a building has been in fact constructed with the result that whether a building is constructed or not, the fee has to be paid. In other words, the Permission Fee is in the nature of a levy on a proposed activity and is not a tax on buildings.

### 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: 122 and s. 131 of the Act also provide for the imposition of specific fees. There is no provision in the Act empowering the Gram Panchayats to levy fees on the permission to construct a building, which is what the second Appellant has purported to do in the instant case.18. In fact, there is no provision in the Act under which it is necessary to obtain the permission of the Gram Panchayat for constructing a building. Sec. 131(2) of the Act which authorises the levy of fees for every licence or permission is therefore not attracted. Sec. 125(1) requires that the permission of the Gram Panchayat must be obtained for constructing or establishing a factory, workshop or workplace in which it is proposed to employ steam power water power or other mechanical power electrical power or in which it is proposed to install any machinery or manufacturing plant driven by steam water or other power as aforesaid. This provision may possibly support a levy of Permission Fee on the factory buildings, but there is no provision in the Act at all requiring the permission of the Gram Panchayat for the construction of other building. Counsel for the appellants wanted to derive sustenance to the imposition of Permission Fee from the provision contained in s. 217(2)(xvi) but that clause only empowers, the Government to make rules "as to the regulation or restriction of building and the use of sites for building". In the absence of any provision in the parent Statute requiring the permission of the Gram Panchayat for the construction of non-factory buildings, the rule-making power of the Government cannot be exercised so as to impose the requirement of a permission, in respect of such buildings.19. But there is a broader ground on which the levy of Permission Fee must be struck down. Fees are a sort of return or consideration for services rendered, which makes it necessary that there should be an element of quid pro quo in the imposition of a fee. There has to be a co-relationship between the fee levied by an authority and the services rendered by it to the person who is required to pay the fee. There is, in this case, not a word showing such a co-relationship. In the counter-affidavit which the appellants filed in the High Court in reply to the respondents writ petition, nothing at all was stated as to the expenses incurred or likely to be incurred by the Gram Panchayat in rendering any actual or intended service to the respondent. There may be something in the grievance of the Gram Panchayat that the mighty respondent and others following the respondents lead have been persistently refusing to pay taxes which has made it impossible for the Gram Panchayat to render any services. But the true legal position as stated by Mukherjea J. in the Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmendra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR 1005 ) is that "it is absolutely necessary that the levy of fees should on the face of the legislative provision, be co-related to the expenses incurred by Government in rendering the services". In the total absence of any data showing such a co-relationship, the levy of Permission Fee has to fail.20. One cannot take into account the sum-total of the activities of a public body like a Gram Panchayat to seek justification for the fees imposed by it. The expenses incurred by a Gram Panchayat or a Municipality in discharging its obligatory functions are usually met by the imposition of a variety of taxes. For justifying the imposition of fees the public authority has to show what services are rendered or intended to be rendered individually to the particular person on whom the fee is imposed. The Gram Panchayat here has not even prepared an estimate of what the intended services would cost it.21. Learned counsel for the appellants contended that the Gram Panchayat lays roads for providing access to new buildings, that it provides for drainage and lights and that it scrutinises the plans submitted for intended constructions and, if necessary, it advises the applicants in order that the proposed construction may conform to the regulations. We are unable to accept that these services are rendered individually to the respondents. The laying of roads and drainage or the supply of street-lights are a statutory function of public authorities and it is difficult to hold, in the absence of any material, that any of such services as have been mentioned to us have in fact been rendered to the respondent. The very circumstance that the Permission Fee is levied at a certain percentage of the capital value of the buildings shows that the Gram Panchayat itself never intended to co-relate the fee with the services rendered or intended to be rendered by it. There is therefore no warrant for the levy of Permission Fee, not even on factory buildings assuming for the sake of argument that the permission of Gram Panchayat is necessary for the construction of factory buildings.22. It was alternatively contended on behalf of the appellants that the Permission Fee though called a fee is really in the nature of a tax on buildings and may be upheld as such. It is impossible to accept this contention. That the Permission. Fee is not a tax on buildings is clear from the fact that the fee may be required to be paid even if a building does not eventually come into existence. The scheme under which the Permission Fee is attempt to be levied is that it becomes payable at the time when the permission to construct a building is applied for. The levy does not depend upon whether a building has been in fact constructed with the result that whether a building is constructed or not, the fee has to be paid. In other words, the Permission Fee is in the nature of a levy on a proposed activity and is not a tax on buildings. ### Response: 1

Smt. Masuma Vs. State Of Maharashtra & Anr

fails to do so, the continuance of the detention after the expiration of the period of five weeks would be rendered invalid. The Advisory Board is, in every such case where a reference is made, required to submit its report within eleven weeks from the date of detention and if it reports that there is in its opinion no. sufficient cause for detention, the detaining authority is bound to release the detenu forthwith even though a period of three months may not have expired since the date of detention. This is a safeguard provided by the COFEPOSA Act, which is applicable in all cases of detention, whether the detention is to be continued beyond a period of three months or not and whether or not the detaining authority has applied its mind and determined, before making a reference to the Advisory Board, as to what shall be the period of detention. We are clearly of the view that it is not at all necessary for the detaining authority to apply its mind and consider at the time of passing the order of detention or before making a reference to the Advisory Board, as to what shall be the period of detention and whether the detention is to be continued beyond a period of three months or not. The only inhibition on the detaining authority is that it cannot lawfully continue the detention for a period longer than three months unless the Advisory Board has, before the expiration of the period of three months, reported that there is in its opinion sufficient cause for such detention. We must therefore hold that the State Government did not commit any breach of its constitutional or legal obligation in making a reference to the Advisory Board without first determining the period for which the detenu was to be detained.6. Mr. Jethmalani on behalf of the petitioner lastly submitted that there was unreasonable delay on the part of the State Government in considering the representation of the detenu and this delay was fatal to the validity of the continuance of the detention. This contention is also without substance and must be rejected, It is no. doubt true that the advocate of the detenu sent nine copies of the representation to the detenu on 6th Feb. 1981 and these nine copies came to be forwarded to the various authorities only on 10th Feb. 1981, but the affidavit of B. B. Mulay, Jailor attached to the Bombay Central Prison, shows that these nine copies were handed over by B. B. Mulay to the detenu as soon as they were received by him from the emissary of the detenus advocate and the detenu got these documents on the same day, namely, 6th Feb. 1981. B. B. Mulay asked the detenu to sign the representation and hand over the same for being forwarded to the State Government but the detenu stated that he would sign the representation only after going through it and he therefore carried the nine copies of the representation with him to the Nasik Central Jail where he was shifted in the evening of 6th Feb, 1981 and it was only on 10th Feb. 1981 that he signed all the nine copies of the representation and handed over the same to C. P. Gaekwad, Jailor, in-charge of the Nasik Central Prison and according to the affidavit of C. P. Gaekwad these nine copies of the representation duly signed by the detenu were forwarded to the respective authorities on the same day. There was therefore no. unreasonable delay on the part of the State authorities at this stage.7. Proceeding further we find that the representation sent by the detenu was received in the Home Department of the State Government on 13th Feb. 1981 and on the same day, a letter was addressed by the Home Department to the Collector of Customs calling for his remarks in regard to the various allegations contained in the representation and parawise comments were received from the Customs Department on 21st Feb. 1981. Now, it cannot be said that the Government acted unreasonably in forwarding the representation of the detenu to the Collector of Customs and waiting for the parawise comments of the Customs Authorities, since there were various allegations made in the representation which called for the comments of the Customs Department and without such comments, the State Government could not fairly and properly consider the representation of the detenu. It may be noted that the communication from the Home Department dated 13th February, 1981 could not have reached the Collector of Customs until 16th Feb. 1981 because 14th and 15th February were Saturday and Sunday and therefore closed holidays. The reply of the Customs Authorities which was received on 21st February 1981 must have been despatched on 20th Feb. and therefore the Customs Authorities did not have more than four or five days within which to give their comments in regard to the various allegations contained in the representation of the detenu and this time taken by the Customs Authorities cannot be regarded as unreasonable. We do not think that in these circumstances the State Government could be said to be guilty of any unreasonable delay so far as the period between 13th February and 21st February, 1981 is concerned.8. There was also no. unreasonable delay after 21st February, 1981. The affidavit of C. V. Karnik shows that the representation of the detenu was immediately put up before the Minister of State for Home for consideration, in the light of the comments received from the Customs Authorities and the representation was considered and rejected by the Minister of State for Home on 23rd Feb. 1981 and necessary intimation to that effect was conveyed to the detenu by a letter dated 25th February, 1981. It is impossible to hold in these circumstances that there was any unreasonable delay on the part of the State Government in considering the representation of the detenu and this contention of Mr. Jethmalani must be rejected.9.

0[ds]We do not think there is any substance in either of these two grounds.If we look at the order of the detention, it is clear that it was not made by P. V. Nayak in his individual capacity # as an officer of the State Government but it was made by him as representing the State Government. It was the State Government which made the order of detention acting through the instrumentality of P. V. Nayak, Secretary to Government who was authorised so to act for and on behalf of and in the name of the State Government under the Rules of Business. # Rule 15 of the Rules of Business of the Government of Maharashtra provided that those Rules may "to such extent as necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister" and in exercise of the powers conferred under this Rule, the Governor of Maharashtra issued instructions for the more convenient transaction of the business of the Government Cls. (4), (5) and (6) of these instructions as they stood at the material time provided inter alia asExcept as otherwise provided in these Instructions, cases shall ordinarily be disposed of by, or under the authority, of the Minister-in-charge, who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department, copies of such standing orders shall be sent to the Governor and the Chiefis clear from the annexures to the writ petition that after receipt of the opinion of the Advisory Board that there was in its opinion sufficient cause for the detention of the detenu, the State Government, in exercise of the powers conferred under cl. (f) of S. 8, made an order dated 23rd March 1981 confirming the detention order and continuing the detention of theMr. Jethmalani on behalf of the petitioner lastly submitted that there was unreasonable delay on the part of the State Government in considering the representation of the detenu and this delay was fatal to the validity of the continuance of the detention.This contention is also without substance and must be rejected, It is no. doubt true that the advocate of the detenu sent nine copies of the representation to the detenu on 6th Feb. 1981 and these nine copies came to be forwarded to the various authorities only on 10th Feb. 1981, but the affidavit of B. B. Mulay, Jailor attached to the Bombay Central Prison, shows that these nine copies were handed over by B. B. Mulay to the detenu as soon as they were received by him from the emissary of the detenus advocate and the detenu got these documents on the same day, namely, 6th Feb. 1981. B. B. Mulay asked the detenu to sign the representation and hand over the same for being forwarded to the State Government but the detenu stated that he would sign the representation only after going through it and he therefore carried the nine copies of the representation with him to the Nasik Central Jail where he was shifted in the evening of 6th Feb, 1981 and it was only on 10th Feb. 1981 that he signed all the nine copies of the representation and handed over the same to C. P. Gaekwad, Jailor, in-charge of the Nasik Central Prison and according to the affidavit of C. P. Gaekwad these nine copies of the representation duly signed by the detenu were forwarded to the respective authorities on the same day. There was therefore no. unreasonable delay on the part of the State authorities at this stage.7.There was also no. unreasonable delay after 21st February, 1981. The affidavit of C. V. Karnik shows that the representation of the detenu was immediately put up before the Minister of State for Home for consideration, in the light of the comments received from the Customs Authorities and the representation was considered and rejected by the Minister of State for Home on 23rd Feb. 1981 and necessary intimation to that effect was conveyed to the detenu by a letter dated 25th February, 1981. It is impossible to hold in these circumstances that there was any unreasonable delay on the part of the State Government in considering the representation of the detenu and this contention of Mr. Jethmalani must be rejected.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: fails to do so, the continuance of the detention after the expiration of the period of five weeks would be rendered invalid. The Advisory Board is, in every such case where a reference is made, required to submit its report within eleven weeks from the date of detention and if it reports that there is in its opinion no. sufficient cause for detention, the detaining authority is bound to release the detenu forthwith even though a period of three months may not have expired since the date of detention. This is a safeguard provided by the COFEPOSA Act, which is applicable in all cases of detention, whether the detention is to be continued beyond a period of three months or not and whether or not the detaining authority has applied its mind and determined, before making a reference to the Advisory Board, as to what shall be the period of detention. We are clearly of the view that it is not at all necessary for the detaining authority to apply its mind and consider at the time of passing the order of detention or before making a reference to the Advisory Board, as to what shall be the period of detention and whether the detention is to be continued beyond a period of three months or not. The only inhibition on the detaining authority is that it cannot lawfully continue the detention for a period longer than three months unless the Advisory Board has, before the expiration of the period of three months, reported that there is in its opinion sufficient cause for such detention. We must therefore hold that the State Government did not commit any breach of its constitutional or legal obligation in making a reference to the Advisory Board without first determining the period for which the detenu was to be detained.6. Mr. Jethmalani on behalf of the petitioner lastly submitted that there was unreasonable delay on the part of the State Government in considering the representation of the detenu and this delay was fatal to the validity of the continuance of the detention. This contention is also without substance and must be rejected, It is no. doubt true that the advocate of the detenu sent nine copies of the representation to the detenu on 6th Feb. 1981 and these nine copies came to be forwarded to the various authorities only on 10th Feb. 1981, but the affidavit of B. B. Mulay, Jailor attached to the Bombay Central Prison, shows that these nine copies were handed over by B. B. Mulay to the detenu as soon as they were received by him from the emissary of the detenus advocate and the detenu got these documents on the same day, namely, 6th Feb. 1981. B. B. Mulay asked the detenu to sign the representation and hand over the same for being forwarded to the State Government but the detenu stated that he would sign the representation only after going through it and he therefore carried the nine copies of the representation with him to the Nasik Central Jail where he was shifted in the evening of 6th Feb, 1981 and it was only on 10th Feb. 1981 that he signed all the nine copies of the representation and handed over the same to C. P. Gaekwad, Jailor, in-charge of the Nasik Central Prison and according to the affidavit of C. P. Gaekwad these nine copies of the representation duly signed by the detenu were forwarded to the respective authorities on the same day. There was therefore no. unreasonable delay on the part of the State authorities at this stage.7. Proceeding further we find that the representation sent by the detenu was received in the Home Department of the State Government on 13th Feb. 1981 and on the same day, a letter was addressed by the Home Department to the Collector of Customs calling for his remarks in regard to the various allegations contained in the representation and parawise comments were received from the Customs Department on 21st Feb. 1981. Now, it cannot be said that the Government acted unreasonably in forwarding the representation of the detenu to the Collector of Customs and waiting for the parawise comments of the Customs Authorities, since there were various allegations made in the representation which called for the comments of the Customs Department and without such comments, the State Government could not fairly and properly consider the representation of the detenu. It may be noted that the communication from the Home Department dated 13th February, 1981 could not have reached the Collector of Customs until 16th Feb. 1981 because 14th and 15th February were Saturday and Sunday and therefore closed holidays. The reply of the Customs Authorities which was received on 21st February 1981 must have been despatched on 20th Feb. and therefore the Customs Authorities did not have more than four or five days within which to give their comments in regard to the various allegations contained in the representation of the detenu and this time taken by the Customs Authorities cannot be regarded as unreasonable. We do not think that in these circumstances the State Government could be said to be guilty of any unreasonable delay so far as the period between 13th February and 21st February, 1981 is concerned.8. There was also no. unreasonable delay after 21st February, 1981. The affidavit of C. V. Karnik shows that the representation of the detenu was immediately put up before the Minister of State for Home for consideration, in the light of the comments received from the Customs Authorities and the representation was considered and rejected by the Minister of State for Home on 23rd Feb. 1981 and necessary intimation to that effect was conveyed to the detenu by a letter dated 25th February, 1981. It is impossible to hold in these circumstances that there was any unreasonable delay on the part of the State Government in considering the representation of the detenu and this contention of Mr. Jethmalani must be rejected.9. ### Response: 0

State Of Uttar Pradesh And Others Vs. Basti Sugar Mills Co., Ltd

Government under this provision of law, to sit as an adjudicator to decide a dispute that might have arisen relating to the working and actual application of terms and conditions of employment already in force. The provision was for the purpose of enabling the State Government to vary the agreed terms and conditions of employment for purposes specified in S. 3 of U. P. Industrial Disputes Act, 1947, under the pressing necessities or expediency justifying such course of action." 9. We entirely agree with Mr. Pathak that the normal way of dealing with an industrial dispute under the Act would be to have it dealt with judicially either by conciliation or by adjudication and that judicial process cannot be circumvented by resort to executive action. The proceeding before a conciliator or an adjudicator is, in a sense, a judicial proceeding because therein both the parties to the dispute would have the opportunity of being heard and of placing the relevant material before the conciliator or adjudicator. But there may be an emergency and the Government may have to act promptly "for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community or maintaining employment." It was, therefore, necessary to arm it with additional powers for dealing with such an emergency. Clause (b) of S. 3 was apparently enacted for this purpose. An order made thereunder would be in the nature of a temporary or interim order as would be clear from the words "for such period as may be specified" appearing therein and from the second proviso to S. 3. Under this proviso where an industrial dispute is referred for adjudication under cl. (d) an order made under cl. (b) cannot be enforced after the decision of the adjudicating authority is announced by or with the consent of the State Government. It would, therefore, follow from this that where the Government has made an executive order, as it did in this case, under cl. (b) of S. 3, it is open to the aggrieved party to move the Government to refer the industrial dispute for conciliation or adjudication under cl. (d) of S. 3. Mr.Pathak, however, stated that under this section, the Government has a discretion whether or not to refer a dispute for conciliation or adjudication under cl. (d). But in our opinion where once the Government has acted under cl. (b) on the ground that it was in the public interest to do so, it would not be open to the Government to refuse to refer the dispute under cl. (d) for conciliation or adjudication. Mr. C. B. Agarwal, who appeared for the State of Uttar Pradesh conceded, and we think rightly, that this would be so and added that in case the State Government was recalcitrant it could be forced to do its duty by the issue of a writ of mandamus by the High Court under Art. 226 of the Constitution. 10. There is a further argument of Mr. Pathak which must be noticed and that argument is that there is nothing in cl. (b) which limits its operation to an emergency and that it is, therefore, not open to us to place a construction thereon of the kind we are placing. The opening words of S. 3 themselves indicate that the provisions thereof are to be availed of in an emergency. It is true that even a reference to an arbitrator or a conciliator could be made only if there is an emergency. But then an emergency may be acute. Such an emergency may necessitate the exercise of powers under cl. (b) and a mere resort to those under cl. (d) may be inadequate to meet this situation. Whether to resort to one provision or other must depend upon the subjective satisfaction of the State Government upon which powers to act under S. 3 have been conferred by the legislature. No doubt, this result is arrived at by placing a particular construction on the provisions of that section but we think we are justified in doing so. As Mr. Pathak himself suggested in the course of his arguments, we must try and construe a statute in such a way, where it is possible to so construe it, as to obviate a conflict between its various provisions and also so as to render the statute or any of its provisions constitutional. By limiting the operation of the provisions of cl. (b) to an emergency we do not think that we are doing violence to the language used by the legislature. Further, assuming that the width of the language could not be limited by construction it can be said that after the coming into force of the Constitution the provisions can, by virtue of Art. 13, have only a limited effect as stated above and to the extent that they are inconsistent with the Constitution, they have been rendered void. 11. In our view, therefore, the provisions of cl. (b) of S. 3 are not in any sense alternative to those of cl. (d) and that the former could be availed of by the State Government only in an emergency and as a temporary measure. The right of the employer or the employee to require the dispute to be referred for conciliation or adjudication would still be there and could be exercised by them by taking appropriate steps. Upon the construction we place on the provisions of cl. (b) of S. 3 it is clear that no question of discrimination at all arises. Similarly the fact that action was taken by the Government in an emergency in the public interest would be a complete answer to the argument that that action is violative of the provisions of Art. 19(1)(g). The restriction placed upon the employer by such an order is only a temporary one and having been placed in the public interest would fall under cl. (6) of Art. 19 of the Constitution. 1

1[ds]4. We entirely agree with the learned judges of the Allahabad High Court that cl. (b) of S. 3 cannot be given a retrospective effect. But we are unable to agree with them that the State Government in making a direction to the employers to pay bonus for the years in question purported to give a retrospective operation to the provisions of that clause. The order made by the State Government in regard to bonus is to the effect that it shall be paid for the year 1947-48 to those persons who worked during that year and for the year 1948-49 to those persons who worked in that year. This payment was directed to be made within six weeks of the making of the order. By giving this direction the State Government did no more than attach a condition to the employment of workmen in the year 1950-51 in sugar factories affected by the order. That is all that it has done. Mr. Pathak contended that bonus has certain attributes of a wage and wage being a matter of contract can only be a term of employment agreed to between the employer and the employee but could not be a condition of employment which could be imposed by a Government acting under a statute.We agree that normally wage is a term of contract but it would be futile to say that it cannot be made a condition of employment. The Minimum Wages Act provides for the fixation of a statutory minimum wage payable to a worker in respect of certain types of employments and is an instance of wage being made a condition of employment. That apart, whether wage or bonus is a terms of a contract or a condition of employment it is clear that section 3 empowers the State Government to require the employers and workmen or both to observe any term or condition of employment for a specified period. Since the law enables the State Government to impose a term it is apparent that the legislature which enacted that law did not import into that word a consensual sense. We cannot, therefore, accept the argument that under cl. (b) it was not open to the State Government to make the payment of bonus to workmen a condition of their employment in future and thus augment their past wagesThe effect of that order is merely to require the employer to pay an additional sum of money to his employees as a term and condition of work in futureThe answer to that is that under the order of the Government such bonus is payable only to those workers who had worked during the years in question and not to new employees. It is further to be borne in mind that in the dispute in question the employees were bargaining in their collective capacity and, therefore, the question whether the personnel forming the employees of the factories in July, 1950, when the order was made by the Government, and in the years 1947-48 and 1948-49 to which the dispute relates was the same is quite immaterialWe also concur with the observations of the learned judge that by coming to the conclusion that the State Government was not passing an order which will have retrospective effect but was passing an order which was to ensure that the workmen to be employed in the year 1950 would work in a contented manner. It must not be forgotten that the dispute was in the present, that is, it existed when the impugned order was made, though its origin was in the past. What the order did was to resolve that dispute and this it could only do by removing its cause9. We entirely agree with Mr. Pathak that the normal way of dealing with an industrial dispute under the Act would be to have it dealt with judicially either by conciliation or by adjudication and that judicial process cannot be circumvented by resort to executive action. The proceeding before a conciliator or an adjudicator is, in a sense, a judicial proceeding because therein both the parties to the dispute would have the opportunity of being heard and of placing the relevant material before the conciliator or adjudicator. But there may be an emergency and the Government may have to act promptly "for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community or maintaining employment." It was, therefore, necessary to arm it with additional powers for dealing with such an emergency. Clause (b) of S. 3 was apparently enacted for this purpose. An order made thereunder would be in the nature of a temporary or interim order as would be clear from the words "for such period as may be specified" appearing therein and from the second proviso to S3. Under this proviso where an industrial dispute is referred for adjudication under cl. (d) an order made under cl. (b) cannot be enforced after the decision of the adjudicating authority is announced by or with the consent of the State Government. It would, therefore, follow from this that where the Government has made an executive order, as it did in this case, under cl. (b) of S. 3, it is open to the aggrieved party to move the Government to refer the industrial dispute for conciliation or adjudication under cl. (d) of S. 31. In our view, therefore, the provisions of cl. (b) of S. 3 are not in any sense alternative to those of cl. (d) and that the former could be availed of by the State Government only in an emergency and as a temporary measure. The right of the employer or the employee to require the dispute to be referred for conciliation or adjudication would still be there and could be exercised by them by taking appropriate steps. Upon the construction we place on the provisions of cl. (b) of S. 3 it is clear that no question of discrimination at all arises. Similarly the fact that action was taken by the Government in an emergency in the public interest would be a complete answer to the argument that that action is violative of the provisions of Art. 19(1)(g). The restriction placed upon the employer by such an order is only a temporary one and having been placed in the public interest would fall under cl. (6) of Art. 19 of the Constitution.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: Government under this provision of law, to sit as an adjudicator to decide a dispute that might have arisen relating to the working and actual application of terms and conditions of employment already in force. The provision was for the purpose of enabling the State Government to vary the agreed terms and conditions of employment for purposes specified in S. 3 of U. P. Industrial Disputes Act, 1947, under the pressing necessities or expediency justifying such course of action." 9. We entirely agree with Mr. Pathak that the normal way of dealing with an industrial dispute under the Act would be to have it dealt with judicially either by conciliation or by adjudication and that judicial process cannot be circumvented by resort to executive action. The proceeding before a conciliator or an adjudicator is, in a sense, a judicial proceeding because therein both the parties to the dispute would have the opportunity of being heard and of placing the relevant material before the conciliator or adjudicator. But there may be an emergency and the Government may have to act promptly "for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community or maintaining employment." It was, therefore, necessary to arm it with additional powers for dealing with such an emergency. Clause (b) of S. 3 was apparently enacted for this purpose. An order made thereunder would be in the nature of a temporary or interim order as would be clear from the words "for such period as may be specified" appearing therein and from the second proviso to S. 3. Under this proviso where an industrial dispute is referred for adjudication under cl. (d) an order made under cl. (b) cannot be enforced after the decision of the adjudicating authority is announced by or with the consent of the State Government. It would, therefore, follow from this that where the Government has made an executive order, as it did in this case, under cl. (b) of S. 3, it is open to the aggrieved party to move the Government to refer the industrial dispute for conciliation or adjudication under cl. (d) of S. 3. Mr.Pathak, however, stated that under this section, the Government has a discretion whether or not to refer a dispute for conciliation or adjudication under cl. (d). But in our opinion where once the Government has acted under cl. (b) on the ground that it was in the public interest to do so, it would not be open to the Government to refuse to refer the dispute under cl. (d) for conciliation or adjudication. Mr. C. B. Agarwal, who appeared for the State of Uttar Pradesh conceded, and we think rightly, that this would be so and added that in case the State Government was recalcitrant it could be forced to do its duty by the issue of a writ of mandamus by the High Court under Art. 226 of the Constitution. 10. There is a further argument of Mr. Pathak which must be noticed and that argument is that there is nothing in cl. (b) which limits its operation to an emergency and that it is, therefore, not open to us to place a construction thereon of the kind we are placing. The opening words of S. 3 themselves indicate that the provisions thereof are to be availed of in an emergency. It is true that even a reference to an arbitrator or a conciliator could be made only if there is an emergency. But then an emergency may be acute. Such an emergency may necessitate the exercise of powers under cl. (b) and a mere resort to those under cl. (d) may be inadequate to meet this situation. Whether to resort to one provision or other must depend upon the subjective satisfaction of the State Government upon which powers to act under S. 3 have been conferred by the legislature. No doubt, this result is arrived at by placing a particular construction on the provisions of that section but we think we are justified in doing so. As Mr. Pathak himself suggested in the course of his arguments, we must try and construe a statute in such a way, where it is possible to so construe it, as to obviate a conflict between its various provisions and also so as to render the statute or any of its provisions constitutional. By limiting the operation of the provisions of cl. (b) to an emergency we do not think that we are doing violence to the language used by the legislature. Further, assuming that the width of the language could not be limited by construction it can be said that after the coming into force of the Constitution the provisions can, by virtue of Art. 13, have only a limited effect as stated above and to the extent that they are inconsistent with the Constitution, they have been rendered void. 11. In our view, therefore, the provisions of cl. (b) of S. 3 are not in any sense alternative to those of cl. (d) and that the former could be availed of by the State Government only in an emergency and as a temporary measure. The right of the employer or the employee to require the dispute to be referred for conciliation or adjudication would still be there and could be exercised by them by taking appropriate steps. Upon the construction we place on the provisions of cl. (b) of S. 3 it is clear that no question of discrimination at all arises. Similarly the fact that action was taken by the Government in an emergency in the public interest would be a complete answer to the argument that that action is violative of the provisions of Art. 19(1)(g). The restriction placed upon the employer by such an order is only a temporary one and having been placed in the public interest would fall under cl. (6) of Art. 19 of the Constitution. 1 ### Response: 1

The State Of West Bengal Vs. Shaikh Serajuddin Batley

extent to which they would have been rights or liabilities of the Province of Bengal, be rights or liabilities of the Province of West Bengal or the Province of East Bengal, as the case may be."Clause (6) of Article 8 provided that the provisions of that Article would have effect subject to the provisions of Article 9 of that Order. The relevant portion of Article 9 was as follows :"9. All liabilities in respect of such loans, guarantee and other financial obligations of the Governor-General in Council or of a Province as are outstanding immediately before the appointed day shall as from that day-(a) ........................(b) in the case of liabilities of the Province of Bengal, be liabilities of the Province of East Bengal."3. On the 8th May 1948 the respondent filed a suit in the Calcutta High Court against the appellant claiming Rs. 21,600 as arrears of rent at Rs. 1,800/- per month from February 1947 to January 1948, Rs. 600/- as occupiers share of municipal tax for the same period and Rs. 523/9/3 being the costs of and incidental to the lease, aggregating to Rs. 22,723/9/3. During the pendency of this suit, the appellant paid Rs. 9,250/- being the arrears of rent and taxes from the 15th August 1947 but denied liability for the arrears of rent or taxes for any period prior to that date or for the costs of the lease.4. The case was heard by Sinha, J., who by his judgment dated the 10th August 1947 held, amongst other things, that the lease was entered into for purposes which as from the 15th August 1947 were exclusively purposes of the Province of West Bengal and that under Article 8(2)(a) of the said Order the appellant was clearly liable for the rents which has accrued previous to the appointed day, that is to say, the 15th August 1947, and decreed the suit for Rs. 13,473/9/3 with costs and interest on judgment at 6 per cent. The Province of West Bengal preferred an appeal from that judgment but a Division Bench of the said High Court (Harries, C. J., and Banerjee, J.) affirmed the decree and dismissed the appeal with costs. The State of West Bengal which took the place of the Province of Went Bengal applied for leave to appeal but that application was dismissed. The State of West Bengal thereafter applied for and obtained special leave to appeal from this Court and the appeal has now come up before us for final disposal.5. The learned Advocate-General of West Bengal appearing in support of this appeal fairly and frankly conceded that in the absence of anything else this case would be wholly covered by Article 8(2)(a) but contended that by virtue of Article 8(6) that Article was to have effect subject to the provisions of Article9. In the circumstances, the question whether the contract was for purposes which as from the appointed day were exclusively purposes of the Province of West Bengal and whether Article 8(2) made any distinction between liabilities which had accrued or which might accrue need not be considered.6. The argument before us has been confined only to the interpretation of Article9. Learned Advocate-General contends that the liability to pay rent under the lease comes within the expression "other financial obligations" to be found in that Article. According to him all obligations to pay money under a contract whether by reason of covenant to pay money or by way of damages for breach of contract may be properly described as "financial obligations". It is no doubt true an obligation to pay money under a contract or for breach thereof is in a sense a "financial obligation" but the question is not what may popularly be described as "financial obligation" but what is the meaning of the expression "other financial obligations" in the context in which it has been used. To accept the argument of the learned Advocate-General will be to rob Article 8 of practically the whole of its content excepting claims for injunction or specific performance of the contract or the like.Such, we apprehend, could not have been the intention of the framers of that Article. This difficulty does not arise if the expression be construed ejusdem generis, for so construed it implies an obligation in the nature of an obligation in respect of loans and guarantees incurred or undertaken by the Stateas held by Harries, C. J., in - "Province of West Bengal v. Midnapur Zemindary Co. Ltd.. AIR 1950 Cal 159 (A), which has been followed by Chunder. J., in - Iswar Madan Gopal Jiu v. Province of West Bengal, AIR 1950 Cal 463 (B) and by Kapur J., in - The State of Punjab v. Mohan Lall, AIR 1951 Punjab 382 (C).The phrase "loans, guarantees and other financial obligations" occurred in Section 178 in Part VII of the Government of India Act. 1935 and there cannot be any doubt that those expression used in that section did not refer to all and sundry pecuniary obligations of the State arising out of contracts of every description. The loans and guarantees there referred to meant, it would seem, the special kinds of contracts relating to State loans and State guarantees. In that context "financial obligations" would mean obligations arising out of arrangement or agreements relating to State finance such as distribution of revenue, the obligation to grant financial assistance by the Union to any State or the obligation of a State to make contributions and the like. It is, however, not necessary or desirable to attempt an exhaustive definition of the expression "financial obligations". The Court will have to consider in each case whether a particular obligation which may be the subject-matter of discussion fails within the expression "financial obligations" within the meaning of Article9. Whatever liabilities may or may not come within that expression we are clearly of opinion, in agreement with the High Court, that the liability to pay rent under a lease certainly does not come within that expression.

0[ds]To accept the argument of the learned Advocate-General will be to rob Article 8 of practically the whole of its content excepting claims for injunction or specific performance of the contract or the like.Such, we apprehend, could not have been the intention of the framers of that Article. This difficulty does not arise if the expression be construed ejusdem generis, for so construed it implies an obligation in the nature of an obligation in respect of loans and guarantees incurred or undertaken by the Stateas held by Harries, C. J., in - "Province of West Bengal v. Midnapur Zemindary Co. Ltd.. AIR 1950 Cal 159 (A), which has been followed by Chunder. J., in - Iswar Madan Gopal Jiu v. Province of West Bengal, AIR 1950 Cal 463 (B) and by Kapur J., in - The State of Punjab v. Mohan Lall, AIR 1951 Punjab 382 (C).The phrase "loans, guarantees and other financial obligations" occurred in Section 178 in Part VII of the Government of India Act. 1935 and there cannot be any doubt that those expression used in that section did not refer to all and sundry pecuniary obligations of the State arising out of contracts of every description. The loans and guarantees there referred to meant, it would seem, the special kinds of contracts relating to State loans and State guarantees. In that context "financial obligations" would mean obligations arising out of arrangement or agreements relating to State finance such as distribution of revenue, the obligation to grant financial assistance by the Union to any State or the obligation of a State to make contributions and the like. It is, however, not necessary or desirable to attempt an exhaustive definition of the expression "financial obligations". The Court will have to consider in each case whether a particular obligation which may be the subject-matter of discussion fails within the expression "financial obligations" within the meaning ofWhatever liabilities may or may not come within that expression we are clearly of opinion, in agreement with the High Court, that the liability to pay rent under a lease certainly does not come within that expression.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: extent to which they would have been rights or liabilities of the Province of Bengal, be rights or liabilities of the Province of West Bengal or the Province of East Bengal, as the case may be."Clause (6) of Article 8 provided that the provisions of that Article would have effect subject to the provisions of Article 9 of that Order. The relevant portion of Article 9 was as follows :"9. All liabilities in respect of such loans, guarantee and other financial obligations of the Governor-General in Council or of a Province as are outstanding immediately before the appointed day shall as from that day-(a) ........................(b) in the case of liabilities of the Province of Bengal, be liabilities of the Province of East Bengal."3. On the 8th May 1948 the respondent filed a suit in the Calcutta High Court against the appellant claiming Rs. 21,600 as arrears of rent at Rs. 1,800/- per month from February 1947 to January 1948, Rs. 600/- as occupiers share of municipal tax for the same period and Rs. 523/9/3 being the costs of and incidental to the lease, aggregating to Rs. 22,723/9/3. During the pendency of this suit, the appellant paid Rs. 9,250/- being the arrears of rent and taxes from the 15th August 1947 but denied liability for the arrears of rent or taxes for any period prior to that date or for the costs of the lease.4. The case was heard by Sinha, J., who by his judgment dated the 10th August 1947 held, amongst other things, that the lease was entered into for purposes which as from the 15th August 1947 were exclusively purposes of the Province of West Bengal and that under Article 8(2)(a) of the said Order the appellant was clearly liable for the rents which has accrued previous to the appointed day, that is to say, the 15th August 1947, and decreed the suit for Rs. 13,473/9/3 with costs and interest on judgment at 6 per cent. The Province of West Bengal preferred an appeal from that judgment but a Division Bench of the said High Court (Harries, C. J., and Banerjee, J.) affirmed the decree and dismissed the appeal with costs. The State of West Bengal which took the place of the Province of Went Bengal applied for leave to appeal but that application was dismissed. The State of West Bengal thereafter applied for and obtained special leave to appeal from this Court and the appeal has now come up before us for final disposal.5. The learned Advocate-General of West Bengal appearing in support of this appeal fairly and frankly conceded that in the absence of anything else this case would be wholly covered by Article 8(2)(a) but contended that by virtue of Article 8(6) that Article was to have effect subject to the provisions of Article9. In the circumstances, the question whether the contract was for purposes which as from the appointed day were exclusively purposes of the Province of West Bengal and whether Article 8(2) made any distinction between liabilities which had accrued or which might accrue need not be considered.6. The argument before us has been confined only to the interpretation of Article9. Learned Advocate-General contends that the liability to pay rent under the lease comes within the expression "other financial obligations" to be found in that Article. According to him all obligations to pay money under a contract whether by reason of covenant to pay money or by way of damages for breach of contract may be properly described as "financial obligations". It is no doubt true an obligation to pay money under a contract or for breach thereof is in a sense a "financial obligation" but the question is not what may popularly be described as "financial obligation" but what is the meaning of the expression "other financial obligations" in the context in which it has been used. To accept the argument of the learned Advocate-General will be to rob Article 8 of practically the whole of its content excepting claims for injunction or specific performance of the contract or the like.Such, we apprehend, could not have been the intention of the framers of that Article. This difficulty does not arise if the expression be construed ejusdem generis, for so construed it implies an obligation in the nature of an obligation in respect of loans and guarantees incurred or undertaken by the Stateas held by Harries, C. J., in - "Province of West Bengal v. Midnapur Zemindary Co. Ltd.. AIR 1950 Cal 159 (A), which has been followed by Chunder. J., in - Iswar Madan Gopal Jiu v. Province of West Bengal, AIR 1950 Cal 463 (B) and by Kapur J., in - The State of Punjab v. Mohan Lall, AIR 1951 Punjab 382 (C).The phrase "loans, guarantees and other financial obligations" occurred in Section 178 in Part VII of the Government of India Act. 1935 and there cannot be any doubt that those expression used in that section did not refer to all and sundry pecuniary obligations of the State arising out of contracts of every description. The loans and guarantees there referred to meant, it would seem, the special kinds of contracts relating to State loans and State guarantees. In that context "financial obligations" would mean obligations arising out of arrangement or agreements relating to State finance such as distribution of revenue, the obligation to grant financial assistance by the Union to any State or the obligation of a State to make contributions and the like. It is, however, not necessary or desirable to attempt an exhaustive definition of the expression "financial obligations". The Court will have to consider in each case whether a particular obligation which may be the subject-matter of discussion fails within the expression "financial obligations" within the meaning of Article9. Whatever liabilities may or may not come within that expression we are clearly of opinion, in agreement with the High Court, that the liability to pay rent under a lease certainly does not come within that expression. ### Response: 0

Commissioner Of Income-Tax, Lucknow Vs. Bazpur Co-Operative Sugar Factory Ltd

held that the amounts were deposited by way of security taken for the due performance of the obligation of a member under the rules of the Association for the discharge of his obligations to the Association and to the other members of the Association. There was no loan or borrowing at all. This question had in fact been considered by the Calcutta High Court as long ago as Commissioner of Excess Profit Tax v. Bhartia Electric Steel Co. Ltd. ((1954) 25 ITR 192 : AIR 1954 Cal 526 ) in the context of the third proviso to Rule 5-A of Schedule I to the Excess Profits Tax Act, 1940. The money in question in that case had been obtained by the issue of shares, and it was held that it could not possibly be said that the persons who had taken up the deferred shares had ever intended to grant a loan or that the company which had money on the shares had ever intended to borrow. This Court in Bombay Steam Navigation Co. (1953) (P) Ltd. v. CIT ((1965) 56 ITR 52 : (1965) 1 SCR 770 : AIR 1965 SC 1201 ), was dealing with a claim to deduction under Section 10(2)(iii) of the Indian Income Tax Act, 1922 in a case where under an agreement certain assets were to be taken over by the assessee from the Scindia Steam Navigation Company Ltd., and part of the consideration was paid by the assessee while the balance remained unpaid. For agreeing to deferred payment of the balance of the consideration, the Scindias were to be paid interest. This Court observed : (SCR pp. 774-75) "An agreement to pay the balance of consideration due by the purchaser does not in truth give rise to a loan. A loan of money undoubtedly results in a debt, but every debt does not involve a loan. Liability to pay a debt may arise from diverse sources, and a loan is only one of such sources. Every creditor who is entitled to receive a debt cannot be regarded as a lender. If the requisite amount of consideration had been borrowed from a stranger interest paid thereon for the purpose of carrying on the business would have been regarded as a permissible allowance; but that is wholly irrelevant in considering the applicability of clause (iii) of sub-section (2) to the problem arising in this case. The Legislature has under clause (iii) permitted as an allowance interest paid on capital borrowed for the purposes of the business; if interest be paid, but not on capital borrowed, clause (iii) will have no application." 14. The point was also discussed by this Court in Madhav Prasad Jatia v. CIT ((1979) 3 SCC 634 : 1979 SCC (Tax) 279 : (1979) 118 ITR 200 ) where the question was whether the interest claimed under Section 10(2)(iii) of the Indian Income Tax Act, 1922 related to borrowing for the purpose of the business. 15. In the present case, Bye-law 50 indicates that deposits were to be made by the producer members in the Loss Equalisation and Capital Redemption Reserve Fund for the purpose of making the partly paid shares fully paid up, and it was understood that the balance of the amount would be applied to the loan taken from the Industrial Finance Corporation of India and thereafter whatever remained would be refunded to the depositing members resulting in the extinction of the fund. It is apparent that the deposits made by the members cannot be regarded as loans advanced by the members for conversion the partly paid up shares into fully paid up shares and thereafter for defraying the loan taken from the Industrial Finance Corporation of India. Any balance remaining was to be refunded to the members. The circumstance that there was no certainty that any balance would remain for refund to the members would in itself indicate that the deposits could not be regarded as loans. A loan necessarily supposes return of the money loaned. Even under the original Bye-law 50, which provided for deposits by the members to the Loss Equalisation and Capital Redemption Reserve Fund, it was contemplated that the deposits would be accumulated and be utilised for repayment of the initial loan taken from the Industrial Finance Corporation of India and thereafter for redeeming the government share, and the balance of the deposit after meeting losses would be converted into share capital and each producer member would be issued shares of the assessee. There was never any intention between the assessee and its members to treat the deposits made by the members as loans and that the relationship between the assessee and the members should be that of borrower and lender. The High Court erred in holding that the claim to deduction on account of interest paid by the holding that the claim to deduction on account of interest paid by the assessee to its members was admissible under Section 36(1)(iii) of the Act. 16. It is urged by learned counsel for the assessee that if the claim to deduction cannot be rested on Section 36(1)(iii) of the Act, it should be regarded as admissible under Section 37 of the Act. We are not satisfied that all the facts necessary for considering a claim for deduction under Section 37 are before us. It will be noticed that in Madhav Prasad Jatia ((1979) 3 SCC 634 : 1979 SCC (Tax) 279 : (1979) 118 ITR 200 ) that the question of law expressly took in the claim to diction not only with reference to Section 10(1)(iii) but alternatively with reference to Section 10(2)(xv) of the Indian Income Tax Act, 1922. Whether or not it is still open to the assessee to raise that question before the Appellate Tribunal when the case goes back to it for disposing of it in conformity with the opinion expressed by this court in these appeals is a question on which we propose to express no view at this stage.

1[ds]Section 36(1)(iii) of the Act provides that in computing the income chargeable under the head profits and gains of business or profession a deduction shall be allowed of the amount of interest paid in respect of capital borrowed for the purposes of the business or profession. Can it be said that the credit balance in the Loss Equalisation and Capital Redemption Reserve Fund represents capital borrowed by the assessee for the purposes of its business ? What is borrowed money has been construed by the courts in England in a number of cases. In Port ofLondon Authority v. IRC ((1922) 2 KB 599 (CA) : 12 TC, Lord Strendale, M. R. observed that in order that there be borrowed money there must be a borrowed and a lender, and later, when the Revenue took the case in appeal to the House of Lords, the House of Lords laid down inIRC v. Port of London Authority ((1923) AC 507 (HL))that to constitute borrowed money there must be "a real borrowing and a real lending". Again inIRC v. Rowntree and Co. Ltd. ((1948) 1 All ER 482, the Court of Appeal considered the meaning of the words borrowed money and observed that the words should not be given a strained meaning and that it should be considered whether in ordinary commercial usage the relationship was that of a borrower and a lender and the transactions were loan transactions. These cases were relied upon by the Gujarat High Court in CIT v. Rajkot Seeds, Oil and Bullion Merchants Association Ltd. ((1975) 101 ITR 748 (Guj HC) in support of the conclusion that on the facts of the case before the High Court there was no relationship of borrower and lender between the Rajkot Seeds and Oil and Bullion Merchants Association and its members insofar as deposits by the members were concerned. It was held that the amounts were deposited by way of security taken for the due performance of the obligation of a member under the rules of the Association for the discharge of his obligations to the Association and to the other members of the Association. There was no loan or borrowing at all. This question had in fact been considered by the Calcutta High Court as long ago as Commissioner of Excess Profit Tax v. Bhartia Electric Steel Co. Ltd. ((1954) 25 ITR 192 : AIR 1954 Cal 526 ) in the context of the third proviso to Rule 5-A of Schedule I to the Excess Profits Tax Act, 1940. The money in question in that case had been obtained by the issue of shares, and it was held that it could not possibly be said that the persons who had taken up the deferred shares had ever intended to grant a loan or that the company which had money on the shares had ever intended to borrow. This Court in Bombay Steam Navigation Co. (1953) (P) Ltd. v. CIT ((1965) 56 ITR 52 : (1965) 1 SCR 770 : AIR 1965 SC 1201 ), was dealing with a claim to deduction under Section 10(2)(iii) of the Indian Income Tax Act, 1922 in a case where under an agreement certain assets were to be taken over by the assessee from the Scindia Steam Navigation Company Ltd., and part of the consideration was paid by the assessee while the balance remained unpaid. For agreeing to deferred payment of the balance of the consideration, the Scindias were to be paid interest. This Court observed : (SCR pp.n agreement to pay the balance of consideration due by the purchaser does not in truth give rise to a loan. A loan of money undoubtedly results in a debt, but every debt does not involve a loan. Liability to pay a debt may arise from diverse sources, and a loan is only one of such sources. Every creditor who is entitled to receive a debt cannot be regarded as a lender. If the requisite amount of consideration had been borrowed from a stranger interest paid thereon for the purpose of carrying on the business would have been regarded as a permissible allowance; but that is wholly irrelevant in considering the applicability of clause (iii) of sub-section (2) to the problem arising in this case. The Legislature has under clause (iii) permitted as an allowance interest paid on capital borrowed for the purposes of the business; if interest be paid, but not on capital borrowed, clause (iii) will have no application."14. The point was also discussed by this Court in Madhav Prasad Jatia v. CIT ((1979) 3 SCC 634 : 1979 SCC (Tax) 279 : (1979) 118 ITR 200 ) where the question was whether the interest claimed under Section 10(2)(iii) of the Indian Income Tax Act, 1922 related to borrowing for the purpose of the business15. In the present case, Bye-law 50 indicates that deposits were to be made by the producer members in the Loss Equalisation and Capital Redemption Reserve Fund for the purpose of making the partly paid shares fully paid up, and it was understood that the balance of the amount would be applied to the loan taken from the Industrial Finance Corporation of India and thereafter whatever remained would be refunded to the depositing members resulting in the extinction of the fund. It is apparent that the deposits made by the members cannot be regarded as loans advanced by the members for conversion the partly paid up shares into fully paid up shares and thereafter for defraying the loan taken from the Industrial Finance Corporation of India. Any balance remaining was to be refunded to the members. The circumstance that there was no certainty that any balance would remain for refund to the members would in itself indicate that the deposits could not be regarded as loans. A loan necessarily supposes return of the money loaned. Even under the original Bye-law 50, which provided for deposits by the members to the Loss Equalisation and Capital Redemption Reserve Fund, it was contemplated that the deposits would be accumulated and be utilised for repayment of the initial loan taken from the Industrial Finance Corporation of India and thereafter for redeeming the government share, and the balance of the deposit after meeting losses would be converted into share capital and each producer member would be issued shares of the assessee. There was never any intention between the assessee and its members to treat the deposits made by the members as loans and that the relationship between the assessee and the members should be that of borrower and lender. The High Court erred in holding that the claim to deduction on account of interest paid by the holding that the claim to deduction on account of interest paid by the assessee to its members was admissible under Section 36(1)(iii) of the Act16. It is urged by learned counsel for the assessee that if the claim to deduction cannot be rested on Section 36(1)(iii) of the Act, it should be regarded as admissible under Section 37 of the Act. We are not satisfied that all the facts necessary for considering a claim for deduction under Section 37 are before us. It will be noticed that in Madhav Prasad Jatia ((1979) 3 SCC 634 : 1979 SCC (Tax) 279 : (1979) 118 ITR 200 ) that the question of law expressly took in the claim to diction not only with reference to Section 10(1)(iii) but alternatively with reference to Section 10(2)(xv) of the Indian Income Tax Act, 1922. Whether or not it is still open to the assessee to raise that question before the Appellate Tribunal when the case goes back to it for disposing of it in conformity with the opinion expressed by this court in these appeals is a question on which we propose to express no view at this stage

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: held that the amounts were deposited by way of security taken for the due performance of the obligation of a member under the rules of the Association for the discharge of his obligations to the Association and to the other members of the Association. There was no loan or borrowing at all. This question had in fact been considered by the Calcutta High Court as long ago as Commissioner of Excess Profit Tax v. Bhartia Electric Steel Co. Ltd. ((1954) 25 ITR 192 : AIR 1954 Cal 526 ) in the context of the third proviso to Rule 5-A of Schedule I to the Excess Profits Tax Act, 1940. The money in question in that case had been obtained by the issue of shares, and it was held that it could not possibly be said that the persons who had taken up the deferred shares had ever intended to grant a loan or that the company which had money on the shares had ever intended to borrow. This Court in Bombay Steam Navigation Co. (1953) (P) Ltd. v. CIT ((1965) 56 ITR 52 : (1965) 1 SCR 770 : AIR 1965 SC 1201 ), was dealing with a claim to deduction under Section 10(2)(iii) of the Indian Income Tax Act, 1922 in a case where under an agreement certain assets were to be taken over by the assessee from the Scindia Steam Navigation Company Ltd., and part of the consideration was paid by the assessee while the balance remained unpaid. For agreeing to deferred payment of the balance of the consideration, the Scindias were to be paid interest. This Court observed : (SCR pp. 774-75) "An agreement to pay the balance of consideration due by the purchaser does not in truth give rise to a loan. A loan of money undoubtedly results in a debt, but every debt does not involve a loan. Liability to pay a debt may arise from diverse sources, and a loan is only one of such sources. Every creditor who is entitled to receive a debt cannot be regarded as a lender. If the requisite amount of consideration had been borrowed from a stranger interest paid thereon for the purpose of carrying on the business would have been regarded as a permissible allowance; but that is wholly irrelevant in considering the applicability of clause (iii) of sub-section (2) to the problem arising in this case. The Legislature has under clause (iii) permitted as an allowance interest paid on capital borrowed for the purposes of the business; if interest be paid, but not on capital borrowed, clause (iii) will have no application." 14. The point was also discussed by this Court in Madhav Prasad Jatia v. CIT ((1979) 3 SCC 634 : 1979 SCC (Tax) 279 : (1979) 118 ITR 200 ) where the question was whether the interest claimed under Section 10(2)(iii) of the Indian Income Tax Act, 1922 related to borrowing for the purpose of the business. 15. In the present case, Bye-law 50 indicates that deposits were to be made by the producer members in the Loss Equalisation and Capital Redemption Reserve Fund for the purpose of making the partly paid shares fully paid up, and it was understood that the balance of the amount would be applied to the loan taken from the Industrial Finance Corporation of India and thereafter whatever remained would be refunded to the depositing members resulting in the extinction of the fund. It is apparent that the deposits made by the members cannot be regarded as loans advanced by the members for conversion the partly paid up shares into fully paid up shares and thereafter for defraying the loan taken from the Industrial Finance Corporation of India. Any balance remaining was to be refunded to the members. The circumstance that there was no certainty that any balance would remain for refund to the members would in itself indicate that the deposits could not be regarded as loans. A loan necessarily supposes return of the money loaned. Even under the original Bye-law 50, which provided for deposits by the members to the Loss Equalisation and Capital Redemption Reserve Fund, it was contemplated that the deposits would be accumulated and be utilised for repayment of the initial loan taken from the Industrial Finance Corporation of India and thereafter for redeeming the government share, and the balance of the deposit after meeting losses would be converted into share capital and each producer member would be issued shares of the assessee. There was never any intention between the assessee and its members to treat the deposits made by the members as loans and that the relationship between the assessee and the members should be that of borrower and lender. The High Court erred in holding that the claim to deduction on account of interest paid by the holding that the claim to deduction on account of interest paid by the assessee to its members was admissible under Section 36(1)(iii) of the Act. 16. It is urged by learned counsel for the assessee that if the claim to deduction cannot be rested on Section 36(1)(iii) of the Act, it should be regarded as admissible under Section 37 of the Act. We are not satisfied that all the facts necessary for considering a claim for deduction under Section 37 are before us. It will be noticed that in Madhav Prasad Jatia ((1979) 3 SCC 634 : 1979 SCC (Tax) 279 : (1979) 118 ITR 200 ) that the question of law expressly took in the claim to diction not only with reference to Section 10(1)(iii) but alternatively with reference to Section 10(2)(xv) of the Indian Income Tax Act, 1922. Whether or not it is still open to the assessee to raise that question before the Appellate Tribunal when the case goes back to it for disposing of it in conformity with the opinion expressed by this court in these appeals is a question on which we propose to express no view at this stage. ### Response: 1

Ms Chelmsford Club Vs. Commissioner of Income Tax, Delhi

the levy of income-tax from the income of such business to which the above principle is applicable. In the above case, this court quoted with approval the three conditions stipulated by the Judicial Committee in the case of English & Scottish Joint Cooperative Wholesale Society Ltd. v. Commissioner of Agriculture Income-tax, Assam, 1948 AC 405 at 419, existence of which establishes the doctrine of mutuality. They are as follows:- "(1) the identity of the contributors to the fund and the recipients from the fund, (2) the treatment of the company, though incorporated as a mere entity for the convenience of the members and policy holders, in other words, as an instrument obedient to their mandate and (3) the impossibility that contributors should derive profits from contributions made by themselves to a fund which could only be expended or returned to themselves." 14. If we apply the above three criteria to the facts of the case in hand then we find that the appellants business is governed by the doctrine of mutuality. 15. That apart, this Court in the Case or C.I.T. v. Bankipur Club Limited (supra) also had an occasion to deal with the claims of a number of clubs seeking benefits based on the principle of mutuality. In that case, this court held :- "Under the Income-Tax Act, what is taxed is, the income, profits or gains" earned or "arising", "accruing" to a "person". Where a number of persons combine together and contribute to a common fund for the financing of some venture or object and in this respect have no dealings or relations with any outside body, then any surplus returned to those persons cannot be regarded in any sense as profit. there must be complete identity between the contributors and the participators. If these requirements are fulfilled, it is immaterial what particular form the association takes. Trading between persons associating together in this way does not give rise to profits which are chargeable to tax. Where the trade or activity is mutual, the fact that, as regards certain activities, certain members only of the association take advantage of th facilities which it offers does not affect the mutuality of the enterprise." 16. In the same case while considering the case of the Cricket Club of India arising out of C.A. No. 10194 of 1995 and C.A. No. 3382 of 1997 (the facts of which cases are similar to the case with which we are concerned), it was held:- "Amongst others, the Cricket Club of India was in receipt of income from property owned by it - Chambers in the building of the assessee let out to members, annual value of the club house and annual value of Patiala Pavilion. The above facilities were provided only to members of the association and that too temporary accommodation. The arrangement was essentially for the benefit of the members. following the decision rendered by the Appellate Tribunal, Bombay Bench-A, for the assessment years 1974-75 and 1976-77 rendered in I.T.As Nos. 1730 and 1913(Bombay) of 1980, the Appellate Tribnunal held that no portion of the club house, Patiala Pavilion, etc. is let out to strangers and that these portions are let out only to the members and so, even if any income had actually accrued due from the members on the above counts, it will not be taxable on the principle of mutuality. In the application filed under section 256(2) of the Act, the High Court declined to refer the question of law posed by the Revenue to the effect, "whether the Appellate tribunal was justified in law in holding that the income from the property held by the assessee could not be brought to charge under the provisions of sections 22 to 26 of the Act ?" The decision was followed for the assessment year 1978-79-C.A. No. 10194 of 1995 and the High Court declined to refer any question of law for this year as well. In fact, for both the years, the decision of the Appellate Tribunal to the effect that the income received from the aforesaid counts is exempt under the principle of mutuality, was not doubted by the High Court, holding that no referable question of law arose for its decision. (emphasis supplied)." 17. From the above observations of this Court, it is clear that it is not only the surplus from the activities of the business of the Club that is excluded from the levy of income-tax even the annual value of the Club House, as contemplated in Section 22 of the Act, will be outside the purview of the levy of income-tax. to this extent also, we find that the judgment of the Allahabad High Court in the case of Wheeler Club (supra) is not a good law. 18. The High Court in the impugned judgment, apart from relying on the judgment of the Allahabad High Court in Veheeler Clubs case (supra) also relied on certain observations made by the same court in the case of C.I.T. v. Delhi Gymkhana club Ltd., 155 ITR 373 at 376 which reads thus : "Letting out of the premises is merely a provision of a facility for members. the principle of mutuality clearly applies to the surplus earned as a result of such activities. It may be that if the income can be treated as rent derived from house property, the rent or the income derived from house property will be assessable under section 22. That may be so because of the statutory fiction contained in section 22 of the Act and the scheme of the I.T. Act, that the income from house property will be assessable on notional basis." 19. In our opinion, the High Court in Delhi Gyumkhana case (supra) has not laid down any principle of law. It has merely proceeded on a hypothesis. At any rate the conclusion based on that hypothesis, in our opinion, being opposed to the principle accepted by us in this judgment will not be of any assistance to the Revence.

1[ds]8. It is to be noticed that this judgment was delivered under the provisions of theAct, 1922 and Section 9 of that Act is similar to Section 22 of the present Act. A perusal of the above judgment shows that the High court in that case proceeded on the basis that the liability to payunder Section 9 arises from the mere fact of the assessee owning the property having an annual letting value and not from his deriving any income from it. It also held that the principle of mutuality does not apply to such measure of taxation. We find it difficult to agree with the High Court on this point. In our opinion, the High court erred in coming to the conclusion that the tax levied under Section 9 of the Act (Section 22 of the new Act) is a tax on property, for more than one reason. Under the Act; be it the 1922 Act or the 1961 Act, the same does not permit the levy of tax on anything other than the `income. It is so held by the courts in India.Though the above judgment was also delivered considering the provisions of the 1922 Act, in our opinion, the legal position remains to be the same under the 1961 Act also. even if we examine this position independent of the High Courts decision referred to above, we find that the legislative competence to levyis traceable to Entry 82 of List I of Schedule VII to the Constitution which reads : "Taxes on income other than agricultural income". Therefore, any law made under this Legislative Entry can impose a tax only on income and not under any other head, there is also no dispute that the Income Tax Act of 1961 is a law made under this Entry. Hence, it is futile to contend that the levy of tax under Section 22 of the Act is a tax levied on property and not on income from property. this view of ours further finds support from a reading of Section 4 of the Act which is the charging Section. This Section unequivocally shows that the levy is on income. A conjoint reading of Sections 2(24), 14, 22 and 23 of the Act also makes it abundantly clear that what is being taxed under Section 22 is the `deemed income of an assessee from the property owned by him. At any rate, this question is no more res integral in view of the judgment of this court in Bhagwan Dass Jain (supra) where this Court had an occasion to deal with this question where the levy of tax on income from house property came to be challenged on the ground of want of legislative competence, negativing the contention raised therein and rejecting the challenge, the Court held that what is being taxed under Section 22 of the Act is, in fact, an income and not the property.The above case, in our opinion, squarely answers the arguments advanced on behalf of the Revenue. therefore, the judgment of the Allahabad High Court in the case of Wheeler Club (supra) with regard to the nature of levy under Section 22 is not a good law.11. Having come to the conclusion that Section 22 of the Act taxes only the income from property, we will now examine whether such income so far as the appellant is concerned, is not exigible to tax on the ground that such income is excluded from the purview of tax, based on the principle of mutuality. Theappellant contends that its business is governed by the principle of mutuality which, in turn, is based on a doctrine that no person can earn from himself. It is the contention of the appellant that in the business undertaken by it, every member pays for his own expenses and there is no profit motivation or sharing of profits as such amongst the members. the surplus, if any, from the business is not shared by the members but is used for providing better facilities to the members. The appellant further contends that all the factors necessary for establishing the principle of mutuality in its business is seen from the admitted facts pertaining to its business. It is argued that unlike in the case of RWITC, in the business of the appellant, no outsider is allowed to take part and the facilities provided by the appellant is exclusively for its members and their guests. therefore, there is a clear identity between the contributors and the participators to the fund and the recipients thereof respectively.A perusal of Section 2(24) shows that the Act recognises principle of mutuality and has excused all businesses involving such principle from the purview of the Act, except those mentioned in Clause (vii) of that Section. It is also an admitted fact that the business of the appellant does not come within the scope of business referred to in Section 2(24)(vii). This Court in the case of RWITC (supra) on facts came to the conclusion that the Club in that case had kept open its business not only to its members but also to outsiders who would participate in the Clubs business on payment which income from the outsiders would go to the same kitty as that of the members, consequently, the identity between the contributors and the recipients was lost. therefore, this Court held that the doctrine of mutuality did not apply in the case of RWITC (supra), otherwise this Court in that judgment had accepted that, in regard to the businesses governed by the doctrine of mutuality, the levy of tax under theAct did not arise.From the above extract of the judgment, it is crystal clear that the law recognises the principle of mutuality excluding the levy offrom the income of such business to which the above principle is applicable. In the above case, this court quoted with approval the three conditions stipulated by the Judicial Committee in the case of English & Scottish Joint Cooperative Wholesale Society Ltd. v. Commissioner of AgricultureAssam, 1948 AC 405 at 419, existence of which establishes the doctrine of mutuality.If we apply the above three criteria to the facts of the case in hand then we find that the appellants business is governed by the doctrine of mutuality.From the above observations of this Court, it is clear that it is not only the surplus from the activities of the business of the Club that is excluded from the levy ofeven the annual value of the Club House, as contemplated in Section 22 of the Act, will be outside the purview of the levy ofto this extent also, we find that the judgment of the Allahabad High Court in the case of Wheeler Club (supra) is not a good law.In our opinion, the High Court in Delhi Gyumkhana case (supra) has not laid down any principle of law. It has merely proceeded on a hypothesis. At any rate the conclusion based on that hypothesis, in our opinion, being opposed to the principle accepted by us in this judgment will not be of any assistance to the Revence.

### Instruction: Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)? ### Input: the levy of income-tax from the income of such business to which the above principle is applicable. In the above case, this court quoted with approval the three conditions stipulated by the Judicial Committee in the case of English & Scottish Joint Cooperative Wholesale Society Ltd. v. Commissioner of Agriculture Income-tax, Assam, 1948 AC 405 at 419, existence of which establishes the doctrine of mutuality. They are as follows:- "(1) the identity of the contributors to the fund and the recipients from the fund, (2) the treatment of the company, though incorporated as a mere entity for the convenience of the members and policy holders, in other words, as an instrument obedient to their mandate and (3) the impossibility that contributors should derive profits from contributions made by themselves to a fund which could only be expended or returned to themselves." 14. If we apply the above three criteria to the facts of the case in hand then we find that the appellants business is governed by the doctrine of mutuality. 15. That apart, this Court in the Case or C.I.T. v. Bankipur Club Limited (supra) also had an occasion to deal with the claims of a number of clubs seeking benefits based on the principle of mutuality. In that case, this court held :- "Under the Income-Tax Act, what is taxed is, the income, profits or gains" earned or "arising", "accruing" to a "person". Where a number of persons combine together and contribute to a common fund for the financing of some venture or object and in this respect have no dealings or relations with any outside body, then any surplus returned to those persons cannot be regarded in any sense as profit. there must be complete identity between the contributors and the participators. If these requirements are fulfilled, it is immaterial what particular form the association takes. Trading between persons associating together in this way does not give rise to profits which are chargeable to tax. Where the trade or activity is mutual, the fact that, as regards certain activities, certain members only of the association take advantage of th facilities which it offers does not affect the mutuality of the enterprise." 16. In the same case while considering the case of the Cricket Club of India arising out of C.A. No. 10194 of 1995 and C.A. No. 3382 of 1997 (the facts of which cases are similar to the case with which we are concerned), it was held:- "Amongst others, the Cricket Club of India was in receipt of income from property owned by it - Chambers in the building of the assessee let out to members, annual value of the club house and annual value of Patiala Pavilion. The above facilities were provided only to members of the association and that too temporary accommodation. The arrangement was essentially for the benefit of the members. following the decision rendered by the Appellate Tribunal, Bombay Bench-A, for the assessment years 1974-75 and 1976-77 rendered in I.T.As Nos. 1730 and 1913(Bombay) of 1980, the Appellate Tribnunal held that no portion of the club house, Patiala Pavilion, etc. is let out to strangers and that these portions are let out only to the members and so, even if any income had actually accrued due from the members on the above counts, it will not be taxable on the principle of mutuality. In the application filed under section 256(2) of the Act, the High Court declined to refer the question of law posed by the Revenue to the effect, "whether the Appellate tribunal was justified in law in holding that the income from the property held by the assessee could not be brought to charge under the provisions of sections 22 to 26 of the Act ?" The decision was followed for the assessment year 1978-79-C.A. No. 10194 of 1995 and the High Court declined to refer any question of law for this year as well. In fact, for both the years, the decision of the Appellate Tribunal to the effect that the income received from the aforesaid counts is exempt under the principle of mutuality, was not doubted by the High Court, holding that no referable question of law arose for its decision. (emphasis supplied)." 17. From the above observations of this Court, it is clear that it is not only the surplus from the activities of the business of the Club that is excluded from the levy of income-tax even the annual value of the Club House, as contemplated in Section 22 of the Act, will be outside the purview of the levy of income-tax. to this extent also, we find that the judgment of the Allahabad High Court in the case of Wheeler Club (supra) is not a good law. 18. The High Court in the impugned judgment, apart from relying on the judgment of the Allahabad High Court in Veheeler Clubs case (supra) also relied on certain observations made by the same court in the case of C.I.T. v. Delhi Gymkhana club Ltd., 155 ITR 373 at 376 which reads thus : "Letting out of the premises is merely a provision of a facility for members. the principle of mutuality clearly applies to the surplus earned as a result of such activities. It may be that if the income can be treated as rent derived from house property, the rent or the income derived from house property will be assessable under section 22. That may be so because of the statutory fiction contained in section 22 of the Act and the scheme of the I.T. Act, that the income from house property will be assessable on notional basis." 19. In our opinion, the High Court in Delhi Gyumkhana case (supra) has not laid down any principle of law. It has merely proceeded on a hypothesis. At any rate the conclusion based on that hypothesis, in our opinion, being opposed to the principle accepted by us in this judgment will not be of any assistance to the Revence. ### Response: 1

Chhote Lal Nishad (D) Vs. Ravinder Kumar Srivastava

R. Banumathi, J.1. This appeal arises out of the impugned order passed by the High Court of judicature at Allahabad in Writ Petition No. 11 of 2007 (R/C) dated 05.02.2007 in and by which, the High Court has set aside the order passed by the Rent Control Authority as well as by the Appellate Authority, dismissing the Eviction Petition filed by the respondent-landlord.2. The respondent-landlord, a practising advocate, filed an eviction suit, being Suit No. 2 of 2000 and the same was dismissed by the Rent Control/Eviction Officer by order dated 09.01.2001.3. Being aggrieved, the respondent-landlord filed Civil Revision Petition No. 24 of 2001 before the Additional District Magistrate against the order dated 09.01.2001, which also came to be dismissed on 08.02.2002.4. Being aggrieved, the respondent-landlord took the matter to the High Court in Writ Petition No. 11 of 2007 (R/C).5. In the writ petition, the High Court quashed the impugned order passed by the District Judge, Faizabad dated 04.05.1998 as well as the orders passed by the Rent Controller and allowed the writ petition, holding that the courts below ignored the fact and evidence that the landlord bonafide requires the house for himself and his family members and for his legal profession. Though the High Court allowed the writ petition, the High Court granted liberty to the respondent-landlord to file a fresh application before the Rent Control Officer, Faizabad or any other duly authorised officer by the District Magistrate, Faizabad, highlighting all the facts/details of family members, his legal practice etc. and issued further direction to the Rent Control Officer.6. We may usefully extract the impugned order of the High Court, which reads as under :-"This Court has appreciated the bonafide need of a lawyer in various judgments as reported in 1995 (1) ARC 200, Surjan Sing v. IX A.D.J. Kapur (Para6), 1984(2) ARC 548, Prem Nath Bhatia v. Munsi Lal Nigam and others (Para 8) and 1993(1) ARC 362, Shobha Ram and others v. VII Additional District Judge, Deoria. The learned court below ought to have taken into consideration the landlords status, number of members of the family and arrival and entertainment of guests, relatives and clients, etc. In view of the law laid down by the Honble Supreme Court of India in 2005(2) R.C.R.(Rent) 436 : (2005) 8 SCC 252 , Sait Nagjee Purshotham & Co. Ltd. v. Vimalabai Prabhulal and others and 1996(2) R.C.R.(Rent) 233 : JT 1996(6) SC 468 Mrs. Meenal Eknath Kshisagar v. M/s Traders & Agencies and others as also a decision of this Court as reported in 1988 AWC 1063 Cappanal v. A.D.J. Moradabad, the bona fide and genuine need of landlord cannot be ignored.In view of above, the writ petition is allowed and the impugned order passed by the District Judge, Faizabad on 04.05.1998 and the rent control authorities orders are quashed. The Petitioner is directed to file a fresh application before the Rent Control Officer, Faizabad or other competent authority duly authorised by the District Magistrate, Faizabad highlighing all the facts/details of family members, his legal practice etc. On receiving such an application, the Rent Control Officer shall dispose of the same by passing appropriate orders after following due procedure as provided under the act No. XIII of 1972 and after giving opportunity of hearing to the present tenant. The Petitioner is expected to place all the cases cited in this judgment and the decisions given by this court as reported in 2005-2006 Allahabad Rent Cases. This exercise shall be completed within three months of filing of release application before the Rent Control Officer, competent authority etc. along with Judgment of this court."7. Being aggrieved by the order passed by the High Court, the appellant-tenant is before this Court. The only contention urged by the learned counsel for the appellant-tenant is that, while quashing the orders passed by the District Judge as well as the Rent Controller, the High Court had not chosen to issue notice to the appellant-tenant and the High Court, while setting aside the orders, ought to have issued notice to the tenant.8. In the facts and circumstances of the case and in the light of the order passed by the High Court, we do not think that the contention of the appellant-tenant merits acceptance. The High Court has, while setting aside the orders passed by the District Judge as well as the Rent Controller, only granted liberty to the respondent-landlord to file fresh application setting out all the grounds/requirements. By the impugned order passed by the High Court, in our view, no prejudice has been caused to the appellant-tenant as the eviction application to be filed by the respondent-landlord will be proceeded denovo.

0[ds]8. In the facts and circumstances of the case and in the light of the order passed by the High Court, we do not think that the contention of themerits acceptance. The High Court has, while setting aside the orders passed by the District Judge as well as the Rent Controller, only granted liberty to theto file fresh application setting out all the grounds/requirements. By the impugned order passed by the High Court, in our view, no prejudice has been caused to theas the eviction application to be filed by thewill be proceeded denovo.

### 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: R. Banumathi, J.1. This appeal arises out of the impugned order passed by the High Court of judicature at Allahabad in Writ Petition No. 11 of 2007 (R/C) dated 05.02.2007 in and by which, the High Court has set aside the order passed by the Rent Control Authority as well as by the Appellate Authority, dismissing the Eviction Petition filed by the respondent-landlord.2. The respondent-landlord, a practising advocate, filed an eviction suit, being Suit No. 2 of 2000 and the same was dismissed by the Rent Control/Eviction Officer by order dated 09.01.2001.3. Being aggrieved, the respondent-landlord filed Civil Revision Petition No. 24 of 2001 before the Additional District Magistrate against the order dated 09.01.2001, which also came to be dismissed on 08.02.2002.4. Being aggrieved, the respondent-landlord took the matter to the High Court in Writ Petition No. 11 of 2007 (R/C).5. In the writ petition, the High Court quashed the impugned order passed by the District Judge, Faizabad dated 04.05.1998 as well as the orders passed by the Rent Controller and allowed the writ petition, holding that the courts below ignored the fact and evidence that the landlord bonafide requires the house for himself and his family members and for his legal profession. Though the High Court allowed the writ petition, the High Court granted liberty to the respondent-landlord to file a fresh application before the Rent Control Officer, Faizabad or any other duly authorised officer by the District Magistrate, Faizabad, highlighting all the facts/details of family members, his legal practice etc. and issued further direction to the Rent Control Officer.6. We may usefully extract the impugned order of the High Court, which reads as under :-"This Court has appreciated the bonafide need of a lawyer in various judgments as reported in 1995 (1) ARC 200, Surjan Sing v. IX A.D.J. Kapur (Para6), 1984(2) ARC 548, Prem Nath Bhatia v. Munsi Lal Nigam and others (Para 8) and 1993(1) ARC 362, Shobha Ram and others v. VII Additional District Judge, Deoria. The learned court below ought to have taken into consideration the landlords status, number of members of the family and arrival and entertainment of guests, relatives and clients, etc. In view of the law laid down by the Honble Supreme Court of India in 2005(2) R.C.R.(Rent) 436 : (2005) 8 SCC 252 , Sait Nagjee Purshotham & Co. Ltd. v. Vimalabai Prabhulal and others and 1996(2) R.C.R.(Rent) 233 : JT 1996(6) SC 468 Mrs. Meenal Eknath Kshisagar v. M/s Traders & Agencies and others as also a decision of this Court as reported in 1988 AWC 1063 Cappanal v. A.D.J. Moradabad, the bona fide and genuine need of landlord cannot be ignored.In view of above, the writ petition is allowed and the impugned order passed by the District Judge, Faizabad on 04.05.1998 and the rent control authorities orders are quashed. The Petitioner is directed to file a fresh application before the Rent Control Officer, Faizabad or other competent authority duly authorised by the District Magistrate, Faizabad highlighing all the facts/details of family members, his legal practice etc. On receiving such an application, the Rent Control Officer shall dispose of the same by passing appropriate orders after following due procedure as provided under the act No. XIII of 1972 and after giving opportunity of hearing to the present tenant. The Petitioner is expected to place all the cases cited in this judgment and the decisions given by this court as reported in 2005-2006 Allahabad Rent Cases. This exercise shall be completed within three months of filing of release application before the Rent Control Officer, competent authority etc. along with Judgment of this court."7. Being aggrieved by the order passed by the High Court, the appellant-tenant is before this Court. The only contention urged by the learned counsel for the appellant-tenant is that, while quashing the orders passed by the District Judge as well as the Rent Controller, the High Court had not chosen to issue notice to the appellant-tenant and the High Court, while setting aside the orders, ought to have issued notice to the tenant.8. In the facts and circumstances of the case and in the light of the order passed by the High Court, we do not think that the contention of the appellant-tenant merits acceptance. The High Court has, while setting aside the orders passed by the District Judge as well as the Rent Controller, only granted liberty to the respondent-landlord to file fresh application setting out all the grounds/requirements. By the impugned order passed by the High Court, in our view, no prejudice has been caused to the appellant-tenant as the eviction application to be filed by the respondent-landlord will be proceeded denovo. ### Response: 0

Modi Rubber Limited Vs. Union of India and Another

foreign collaborators. The dispute in this case relates to Polypropylene Liner Fabric (PPLF). According to the appellant, PPLF was supplied by the foreign collaborators for use as Liner components to various machinery units. PPLF is basically a linear Fabric which protect the rubber coated tyre fabric from atmospheric moisture and dust. The Liner Fabric is fed into various machinery units and at each stage, it is rolled with a layer of the Liner Fabric Component in between. This has the effect of protecting and preserving the thickness, surface and elongation etc. during the manufacturing process could not be carried out unless it was used in the various machinery units. It is not a consumable raw material nor does it form part of the finished products like automobile tubes and tyres. 2. On behalf of the appellant, it has further been contended that the plant and machineries imported by it included PPLF as a part thereof and formed part of "project Import". The appellants import licence was likewise endorsed. However, the appellant thought that the capital goods import licence might not be adequate to cover all the requirements of PPLF for setting up of the said factory and applied to the Director General, Trade and Development, for inclusion of PPLF in another import licence for Raw material which was duly allowed.The grievance of the appellant is that the Customs Department has levied duty at the rate of nearly 305 per cent under Item 53 ICT. The only reason for classifying the goods imported by the appellant under Item 53 ICT was that PPLF had been imported under a separate and subsequent licence and not under the project Import licence. The appellant is aggrieved by the levy of duty under Item 53 ICT on PPLF imported by it. The contention of the appellant is that in the facts of this case, duty should have been levied under item 72(3) ICT as component part of the machinery imported by it and not under Item 53 ICT as "Textile manufactures not otherwise specified". The relevant entries are as under: "MACHINERIES AND APPARATUS; ELECTRICAL MATERIAL 72(3). Component parts of machinery as defined in item 72, 72(1) and 72(2) and not otherwise specified, namely, such parts only as are essential for the working of the machine or apparatus and have been given for that purpose some special shape or quality which would not be essential for their use for any other purpose but excluding small tools like twist drills and rea mers, dies and taps, gear cutters and backsaw blades: Provided that articles which do not satisfy this condition shall also be deemed to be component parts of the machine to which they belong if they are essential to its operation and are imported with it in such quantities as may appear to the Collector of Customs to be reasonable" * 53. Textile manufactures, not otherwise specified." 3. In the revisional order passed by the Government of India which is now under challenge in this Court, it was held that the term "component part" as defined under item 72(3) ICT referred to such parts only as were essential for the working of the machine or the apparatus and had been given for that purpose some shape or quality which would not be essential for their use for any other purpose. The appellant in its letter to the Assistant Collector of Customs had itself described the goods as "accessory" and had stated that;-"Polypropylene liner fabric is however not a raw material which goes into the finished product, namely, tyres and tubes." 4. The Government was of the view that ordinarily "component Part" should go into the assembly of a machinery itself. The Government of India, thereafter, had elaborately discussed the functions of PPLF and came to the conclusion that it was more properly in the nature of an accessory to the equipment. It was further noticed that perform invoice and the list of machineries supplied, forwarded by the appellant to DGTD and CCI and E did not indicate that the Liner Fabric was a component. It was also noted that the fabric imported by the appellant was in running lengths of different sizes and width. In the form in which they were imported, these fabrics could not be considered as "component parts" of any machine. 5. On behalf of the appellant, affidavits of some experts were give, Mr. Ram Mohan Rai and Mr. Waldemar Lange filed affidavits to establish that PPLF imported by the appellant was " component of machine". 6. After taking into consideration the facts of this case as well as the affidavits, it was ultimately held that PPLF imported by the appellant could not be treated as component of the machinery installed by the petitioner. 7. Having regard to the facts of the case, we are of the view that no error of law has been committed in the revisional order. The appellant had imported plants and machineries. While using the plants and machineries, PPLF was used as a device to protect the rubber coated tyre fabric from atmospheric moisture and dust. PPLF was not a component of the machine itself. It was not a constituent a part. it was used as a Liner Fabric not only in tyre production but also in similar other industrial processes. for this finding of fact reliance was placed on the affidavits of Shri Ram Mohan Rai and Shri Waldemar lange where it was stated that PPLF was used as Liner component of tyre manufacturing machines and in similar other industrial uses.In Item 72(3), it has been categorically stated that the components imported must have some special shape or quality which would not be essential for their use for any other purpose." The finding of the Tribunal is that PPLF came in various sizes and forms and not in any particular shape suitable for any particular machine. Moreover, it could be used not only in the machines imported by the appellant but also in other similar machines. 8.

0[ds]Having regard to the facts of the case, we are of the view that no error of law has been committed in the revisional order. The appellant had imported plants and machineries. While using the plants and machineries, PPLF was used as a device to protect the rubber coated tyre fabric from atmospheric moisture and dust. PPLF was not a component of the machine itself. It was not a constituent a part. it was used as a Liner Fabric not only in tyre production but also in similar other industrial processes. for this finding of fact reliance was placed on the affidavits of Shri Ram Mohan Rai and Shri Waldemar lange where it was stated that PPLF was used as Liner component of tyre manufacturing machines and in similar other industrial uses.In Item 72(3), it has been categorically stated that the components imported must have some special shape or quality which would not be essential for their use for any other purpose." The finding of the Tribunal is that PPLF came in various sizes and forms and not in any particular shape suitable for any particular machine. Moreover, it could be used not only in the machines imported by the appellant but also in other similar machines.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: foreign collaborators. The dispute in this case relates to Polypropylene Liner Fabric (PPLF). According to the appellant, PPLF was supplied by the foreign collaborators for use as Liner components to various machinery units. PPLF is basically a linear Fabric which protect the rubber coated tyre fabric from atmospheric moisture and dust. The Liner Fabric is fed into various machinery units and at each stage, it is rolled with a layer of the Liner Fabric Component in between. This has the effect of protecting and preserving the thickness, surface and elongation etc. during the manufacturing process could not be carried out unless it was used in the various machinery units. It is not a consumable raw material nor does it form part of the finished products like automobile tubes and tyres. 2. On behalf of the appellant, it has further been contended that the plant and machineries imported by it included PPLF as a part thereof and formed part of "project Import". The appellants import licence was likewise endorsed. However, the appellant thought that the capital goods import licence might not be adequate to cover all the requirements of PPLF for setting up of the said factory and applied to the Director General, Trade and Development, for inclusion of PPLF in another import licence for Raw material which was duly allowed.The grievance of the appellant is that the Customs Department has levied duty at the rate of nearly 305 per cent under Item 53 ICT. The only reason for classifying the goods imported by the appellant under Item 53 ICT was that PPLF had been imported under a separate and subsequent licence and not under the project Import licence. The appellant is aggrieved by the levy of duty under Item 53 ICT on PPLF imported by it. The contention of the appellant is that in the facts of this case, duty should have been levied under item 72(3) ICT as component part of the machinery imported by it and not under Item 53 ICT as "Textile manufactures not otherwise specified". The relevant entries are as under: "MACHINERIES AND APPARATUS; ELECTRICAL MATERIAL 72(3). Component parts of machinery as defined in item 72, 72(1) and 72(2) and not otherwise specified, namely, such parts only as are essential for the working of the machine or apparatus and have been given for that purpose some special shape or quality which would not be essential for their use for any other purpose but excluding small tools like twist drills and rea mers, dies and taps, gear cutters and backsaw blades: Provided that articles which do not satisfy this condition shall also be deemed to be component parts of the machine to which they belong if they are essential to its operation and are imported with it in such quantities as may appear to the Collector of Customs to be reasonable" * 53. Textile manufactures, not otherwise specified." 3. In the revisional order passed by the Government of India which is now under challenge in this Court, it was held that the term "component part" as defined under item 72(3) ICT referred to such parts only as were essential for the working of the machine or the apparatus and had been given for that purpose some shape or quality which would not be essential for their use for any other purpose. The appellant in its letter to the Assistant Collector of Customs had itself described the goods as "accessory" and had stated that;-"Polypropylene liner fabric is however not a raw material which goes into the finished product, namely, tyres and tubes." 4. The Government was of the view that ordinarily "component Part" should go into the assembly of a machinery itself. The Government of India, thereafter, had elaborately discussed the functions of PPLF and came to the conclusion that it was more properly in the nature of an accessory to the equipment. It was further noticed that perform invoice and the list of machineries supplied, forwarded by the appellant to DGTD and CCI and E did not indicate that the Liner Fabric was a component. It was also noted that the fabric imported by the appellant was in running lengths of different sizes and width. In the form in which they were imported, these fabrics could not be considered as "component parts" of any machine. 5. On behalf of the appellant, affidavits of some experts were give, Mr. Ram Mohan Rai and Mr. Waldemar Lange filed affidavits to establish that PPLF imported by the appellant was " component of machine". 6. After taking into consideration the facts of this case as well as the affidavits, it was ultimately held that PPLF imported by the appellant could not be treated as component of the machinery installed by the petitioner. 7. Having regard to the facts of the case, we are of the view that no error of law has been committed in the revisional order. The appellant had imported plants and machineries. While using the plants and machineries, PPLF was used as a device to protect the rubber coated tyre fabric from atmospheric moisture and dust. PPLF was not a component of the machine itself. It was not a constituent a part. it was used as a Liner Fabric not only in tyre production but also in similar other industrial processes. for this finding of fact reliance was placed on the affidavits of Shri Ram Mohan Rai and Shri Waldemar lange where it was stated that PPLF was used as Liner component of tyre manufacturing machines and in similar other industrial uses.In Item 72(3), it has been categorically stated that the components imported must have some special shape or quality which would not be essential for their use for any other purpose." The finding of the Tribunal is that PPLF came in various sizes and forms and not in any particular shape suitable for any particular machine. Moreover, it could be used not only in the machines imported by the appellant but also in other similar machines. 8. ### Response: 0

The State Of Maharashtra & Anr Vs. B. K. Takkamore & Ors

some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of the statutory authority. In applying these principles, however, the court must be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The Court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders." In Naursinha v. State of Madhya Pradesh, AIR 1958 Madh Pra 397 the Madhya Pradesh High Court, following the principle of the preventive detention cases, held that an order of supersession of the municipalities under S. 208 of the Madhya Bharat Municipalities Act 1954, based on several grounds most of which were found to be irrelevant, was invalid. In Dhirajlal Girdharilal v. Commissioner of Income-tax Bombay, AIR 1955 SC 271 at p. 273. Mahajan, C. J., said with reference to the order of an income tax tribunal, that:"The learned Attorney-General frankly conceded that it could not be denied that to a certain extent the Tribunal had drawn upon its own imagination and had made use of a number of surmises and conjectures in reaching its result. He, however, contended that eliminating the irrelevant material employed by the Tribunal in arriving at its conclusion, there was sufficient material on which the finding of fact could be supported. In our opinion, this contention is not well founded. It is well established that when a court of facts acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated because of the use inadmissible material and thereby an issue of law arises." In State of Orissa v. Bidyabhushan Mahapatra 1963 Sup (1) SCR 648 at p. 665-6: (AIR 1963 SC 779 at p. 786) an administrative tribunal in a disciplinary proceeding against a public servant found the second charge and four out of the five heads under the first charge proved and recommended his dismissal. The Governor after giving him a reasonable opportunity to show cause against the proposed punishment dismissed him. The High Court held that the findings on two of the heads under the first charge would not be sustained as in arriving at those findings the tribunal had violated rules of natural justice. It held that the second charge and only two heads of the first charge were established and directed the Governor to reconsider whether on the basis of these charges the punishment of dismissal should be maintained. On appeal, this Court set aside the order of the High Court. In the course of the judgment. Shah, J, observed:"If the High Court is satisfied that if some but not all of the findings of the Tribunal were unassailable, the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty, for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment on lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice." The principle underlying these decisions appears to be this. An administrative or quasi-judicial order based on several grounds, all taken together, cannot be sustained if it be found that some of the grounds are non-existent or irrelevant, and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds some of which are found to be non-existent or irrelevant, can be sustained would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existent grounds could not have affected the ultimate opinion or decision. 16. Now the opinion of the State Government that the corporation was not competent to perform the duties imposed on it by or under the Act, was based on two grounds one of which is relevant and the other irrelevant. Both the grounds as also other grounds were set out in paragraphs 1 and 2 read with the annexures 1 and 2 of the show-cause notice dated July 21, 1965. Para 3 of the show-cause notice stated, "And whereas the grounds aforesaid jointly as well as severally appear serious enough to warrant action under Section 408 (1) of the said Act." The order dated September 29, 1965, read with the notice dated July 21, 1963 shows that in the opinion of the State Government the second ground above was serious enough to warrant action under S. 408 (1) and was sufficient to establish that the corporation was not competent to perform its duties under the Act.The fact that the first ground mentioned in the order is now found not to exist and is irrelevant, does not affect the order. We are reasonably certain that the State Government would have passed the order on the basis of the second ground alone. The order is, therefore, valid and cannot be set aside.

1[ds]The point whether the order under S. 408 is quasi-judicial or administrative act is not very material, for it is common ground that the present case was not one of emergency and the State Government was bound to give opportunity to the corporation to show cause why the order should not be made7. From this order it appears that there were two grounds on which the State Government formed the opinion that the corporation was not competent to perform the duties imposed on it by or under the Nagpur Municipal Corporation Act, 19489. The opinion of the State Government so far as it is based on the first ground cannot be supported. The show-cause notice did not mention the charge that the councillors planned the expenditure on the basis of uncertain receipts or that they did not exercise proper controls provided by or under the Act. No opportunity was given to the Corporation to explain the charge. Without giving such an opportunity, the State Government could not lawfully find that the charge was proved. The cash balances the corporation vary from day to day. No reasonable person could possibly come to the conclusion that the financial position of the corporation had deteriorated from the fact that the cash balances were Rs. 5,81,000 in March 1962 and Rs. 53,000 on July 12, 1965. The statement that the corporation had no funds to disburse the salaries of its officers and servants had no factual basis. As a matter of fact, the corporation paid the salaries. The dearness allowance was not paid because the bills were not scrutinized. The resolution dated September 4, 1965 referred to in the order was passed long after the show-cause notice was issued, and the corporation was not given an opportunity to explain it. The resolution did not say that the corporation had no funds even to disburse the salaries of its officers and servants. The corporation resolved to raise a loan of Rs. 15 lacs from the State Government, but the loan was not raised. The High Court also pointed out that many of the statements in the statement "A" referred to in the show-cause notice were factually incorrect. The opinion of the State Government based on the first ground cannot be sustained, firstly because the corporation had no opportunity to show-cause against the charge, and secondly, because no reasonable person on the materials before the State Government could possibly form the opinion that the charge was provedIn this background, the State Government could reasonably hold that the passing of the resolution excluding the office note amounted to virtual rejection the conditions mentioned in the note. The High Court was in error in accepting the first contention14. The High Court was also in error in holding that the Government passed the order of September 29, 1965 without considering that universal meterisation posed a formidable problem which could not be overcome without a loan of Rs. 52 lacs in addition to the loan of Rs. 70 lacs. The resolution of July 12, 1965 did not state that the corporation wanted an additional loan of Rs. 52 lacs for meeting the cost of universal meterisation. Even in the answer to the show-cause notice, the corporation did not say that it wanted to raise an additional loan of Rs. 52 lacs. The answer stated that the raising of this sum for the present was an impossibility. There is nothing to show that the State Government would not have guaranteed repayment of this additional loan or that it was not possible to raise the loan backed by a Government guarantee. In the writ petition respondent No. 1 gave a summary of the reply to the show-cause notice. But there was no specific averment in the petition supported by affidavit that Rs. 52 lacs was necessary for the meterisation and that the raising of this sum was an impossibility. That is why the point was not dealt with in the return to the writ petition. Even assuming that the meterisation would cost Rs. 52 lacs, there is nothing to show that the government would not have guaranteed the loan for this sum or that the corporation could not have raised the loan with this guarantee. Moreover, if the government was right in assuming that the corporation had refused to entertain the proposal of meterisation, the question of raising funds for the meterisation would not arise and would be irrelevant. The government passed the order after taking into consideration the reply to the show-cause notice. There were materials before the State Government upon which it could find that the corporation had neglected to undertake an improvement of water supply and to provide a sufficient supply of water for private and public purposes. On the basis of this finding, the State government could form the opinion that the corporation was not competent to perform the duties imposed on it by or under the ActThe principle underlying these decisions appears to be this. An administrative or quasi-judicial order based on several grounds, all taken together, cannot be sustained if it be found that some of the grounds are non-existent or irrelevant, and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds some of which are found to be non-existent or irrelevant, can be sustained would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existent grounds could not have affected the ultimate opinion or decision16. Now the opinion of the State Government that the corporation was not competent to perform the duties imposed on it by or under the Act, was based on two grounds one of which is relevant and the other irrelevantThe order dated September 29, 1965, read with the notice dated July 21, 1963 shows that in the opinion of the State Government the second ground above was serious enough to warrant action under S. 408 (1) and was sufficient to establish that the corporation was not competent to perform its duties under the Act.The fact that the first ground mentioned in the order is now found not to exist and is irrelevant, does not affect the order. We are reasonably certain that the State Government would have passed the order on the basis of the second ground alone. The order is, therefore, valid and cannot be set aside3. The consequence of supersession of the corporation under S. 408 is that all its members vacate their office, all powers and duties of the corporation, the Standing Committee and the chief executive officer may be exercised by the administrator of the city appointed by the State Government, and all property vested in the corporation vests in the administrator (S. 408).

### 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: some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of the statutory authority. In applying these principles, however, the court must be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The Court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders." In Naursinha v. State of Madhya Pradesh, AIR 1958 Madh Pra 397 the Madhya Pradesh High Court, following the principle of the preventive detention cases, held that an order of supersession of the municipalities under S. 208 of the Madhya Bharat Municipalities Act 1954, based on several grounds most of which were found to be irrelevant, was invalid. In Dhirajlal Girdharilal v. Commissioner of Income-tax Bombay, AIR 1955 SC 271 at p. 273. Mahajan, C. J., said with reference to the order of an income tax tribunal, that:"The learned Attorney-General frankly conceded that it could not be denied that to a certain extent the Tribunal had drawn upon its own imagination and had made use of a number of surmises and conjectures in reaching its result. He, however, contended that eliminating the irrelevant material employed by the Tribunal in arriving at its conclusion, there was sufficient material on which the finding of fact could be supported. In our opinion, this contention is not well founded. It is well established that when a court of facts acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated because of the use inadmissible material and thereby an issue of law arises." In State of Orissa v. Bidyabhushan Mahapatra 1963 Sup (1) SCR 648 at p. 665-6: (AIR 1963 SC 779 at p. 786) an administrative tribunal in a disciplinary proceeding against a public servant found the second charge and four out of the five heads under the first charge proved and recommended his dismissal. The Governor after giving him a reasonable opportunity to show cause against the proposed punishment dismissed him. The High Court held that the findings on two of the heads under the first charge would not be sustained as in arriving at those findings the tribunal had violated rules of natural justice. It held that the second charge and only two heads of the first charge were established and directed the Governor to reconsider whether on the basis of these charges the punishment of dismissal should be maintained. On appeal, this Court set aside the order of the High Court. In the course of the judgment. Shah, J, observed:"If the High Court is satisfied that if some but not all of the findings of the Tribunal were unassailable, the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty, for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment on lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice." The principle underlying these decisions appears to be this. An administrative or quasi-judicial order based on several grounds, all taken together, cannot be sustained if it be found that some of the grounds are non-existent or irrelevant, and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds some of which are found to be non-existent or irrelevant, can be sustained would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existent grounds could not have affected the ultimate opinion or decision. 16. Now the opinion of the State Government that the corporation was not competent to perform the duties imposed on it by or under the Act, was based on two grounds one of which is relevant and the other irrelevant. Both the grounds as also other grounds were set out in paragraphs 1 and 2 read with the annexures 1 and 2 of the show-cause notice dated July 21, 1965. Para 3 of the show-cause notice stated, "And whereas the grounds aforesaid jointly as well as severally appear serious enough to warrant action under Section 408 (1) of the said Act." The order dated September 29, 1965, read with the notice dated July 21, 1963 shows that in the opinion of the State Government the second ground above was serious enough to warrant action under S. 408 (1) and was sufficient to establish that the corporation was not competent to perform its duties under the Act.The fact that the first ground mentioned in the order is now found not to exist and is irrelevant, does not affect the order. We are reasonably certain that the State Government would have passed the order on the basis of the second ground alone. The order is, therefore, valid and cannot be set aside. ### Response: 1

India Marine Service Private Ltd Vs. Their Workmen

that the workmen had resorted to go slow tactics which adversely affected their business which was of repairing ships and then observed:"We should also strongly suggest that the management and the union jointly approach the Labour Directorate at once on the following issues:1. Whether the workmen are justified in stopping overtime as and when they like.2. Bonus.In consideration of this we may even agree to pay the workmen certain sum of money, as may be recommended by the Conciliation Officer, on advance account pending the adjudication by the Tribunal of the issue of bonus. It should, however, be clearly understood, that if the Tribunal decides against payment of bonus or allows bonus less than the amount advanced to them, the entire advance money or the difference will be recovered from the wages of the workmen by instalments as may be directed by the Tribunal".This suggestion was peremptorily rejected by the respondent union by its letter dated October 15, 1958 the relevant portion of which is as follows :"We would simply ask where had your good sense for tripartite conference before which you have adopted now we think as a measure of delaying tactics. We know better what to do when we will be asked to attend tripartite conferences."On October 16, 1958, the company wrote to the Labour Commissioner, West Bengal, apprising him of the situation in the factory and requesting him to intervene. It seems that on that day a representative of the company discussed the situation with Mr. Basu, the Assistant Labour Commissioner. Next day the company wrote to Mr. Basu in which it observed that although the financial position of the company does not justify the demand of bonus the company was prepared to make ex-gratia payment of bonus on the same basis as in the previous year subject to three conditions :"(i) the Union condemns the workmens conduct in stopping overtime since 10th October 1958 and putting the company to considerable loss.(ii) the Union undertakes to see that the workmen do not stop doing overtime in future.(iii) the bonus is not to be considered as a condition of service".On November 5, 1958, the respondent union wrote to the company a letter in which they made ten demands, the first of which was that 37 days wages as bonus should be paid to all workmen at the works and head office. They then went on a partial strike on November 13, 1958. On that very day the company published a lock-out notice on its notice board and served copy thereof on the union. That notice reads thus :"For sometime past the workmen by taking resort to organised slow down and by refusing to work overtime and by keeping a strike notice hanging on us have to a great extent crippled our ship repairing business and have made it difficult for us to accept major ship repairs or large orders. Today the workmen have resorted to a strike when we have on our hands, a ship in dry dock awaiting unlocking today and another ship is due to sail in two days time. This strike is definitely illegal and in consequence of this illegal strike we have no choice but hereby to declare lock-out".The lock-out continued till January 5, 1959, on which date the companys works were reopened. The termination of the lock-out was brought by a settlement made between the parties on January 3, 1959. In that settlement it was agreed that 1% of the sale proceeds of the ship repairing section less sales tax, for the whole year will be paid as bonus to the workmen irrespective of profit and loss of the company and 15 days wages will be paid as Puja bonus to the workmen every year irrespective of profit and loss of the company. It is not necessary to refer to the other terms of the agreement.8. It seems to us that the attitude of the company was a reasonable one and that it even proposed to the union and through it to its workmen that work should go on, that the dispute should be taken before the Conciliation Officer for conciliation and that in the meanwhile they were prepared to grant some interim relief to the workmen. But instead of accepting this reasonable offer the union spurned it contemptuously and for coercing the company encouraged its members to strike work on November 13, 1958. It is true that the strike was intended to be a token one. But the object of that strike being to circumvent settlement in an amicable manner, even though the company was ready for such settlement we have no doubt that the strike was unjustified. It is in the light of this finding that the lock-out has to be judged. In our opinion, while the strike was unjustifiable lock-out when it was ordered on November 13, 1958, was justified. It seems to us, however, that though the lock-out was justified at its commencement its continuance for 53 days was wholly unreasonable and therefore, unjustified. In a case where a strike is unjustified and is followed by a lock-out which has, because of its long duration, become unjustified it would not be a proper course for an industrial tribunal to direct the payment of the whole of the wages for the period of the lock-out. We would like to make it clear that in a case where the strike is unjustified and the lock-out is justified the workmen would not be entitled to any wages at all. Similarly, where the strike is justified and the lock-out is unjustified the workmen would be entitled to the entire wages for the period of strike and lock-out. Where, however, a strike is unjustified and is followed by a lock-out which becomes unjustified a case for apportionment of blame arises. In our opinion in the case before us the blame for the situation which resulted after the strike and the lock-out can be apportioned roughly half and half between the company and its workers.

1[ds]6. It is no doubt true that no enquiry was held on the charges contained in the second charge-sheet and, therefore, that charge-sheet was rightly kept out of consideration by the Managing Director and the Tribunal. It is true that a reference is made to certain extraneous matters in the letter of the Managing Director dated October 29,1958 addressed to Bose. But considering the letter as a whole and particularly the last paragraph it seems to us to be abundantly lear that the decision of the Managing Director to dismiss Bose was based only on the charge ofis true that the last sentence suggests that the past record of Bose has also been taken into consideration. But it does not follow from this that that was the effective reason for dismissing him. The Managing Director having arrived at the conclusion that Boses services must be terminated in the interest of discipline he added one sentence to give additional weight to the decision already arrived at. Upon this view it would follow that the Tribunal was not competent to go behind the finding of the Managing Director and consider for itself the evidence adduced before him. The order of the Tribunal quashing the dismissal of Bose and directing his re-instatement is, therefore, set aside as being contrary tolock-out continued till January 5, 1959, on which date the companys works were reopened. The termination of the lock-out was brought by a settlement made between the parties on January 3, 1959. In that settlement it was agreed that 1% of the sale proceeds of the ship repairing section less sales tax, for the whole year will be paid as bonus to the workmen irrespective of profit and loss of the company and 15 days wages will be paid as Puja bonus to the workmen every year irrespective of profit and loss of the company. It is not necessary to refer to the other terms of the agreement.8. It seems to us that the attitude of the company was a reasonable one and that it even proposed to the union and through it to its workmen that work should go on, that the dispute should be taken before the Conciliation Officer for conciliation and that in the meanwhile they were prepared to grant some interim relief to the workmen. But instead of accepting this reasonable offer the union spurned it contemptuously and for coercing the company encouraged its members to strike work on November 13, 1958. It is true that the strike was intended to be a token one. But the object of that strike being to circumvent settlement in an amicable manner, even though the company was ready for such settlement we have no doubt that the strike was unjustified. It is in the light of this finding that the lock-out has to be judged. In our opinion, while the strike was unjustifiable lock-out when it was ordered on November 13, 1958, was justified. It seems to us, however, that though the lock-out was justified at its commencement its continuance for 53 days was wholly unreasonable and therefore, unjustified. In a case where a strike is unjustified and is followed by a lock-out which has, because of its long duration, become unjustified it would not be a proper course for an industrial tribunal to direct the payment of the whole of the wages for the period of the lock-out. We would like to make it clear that in a case where the strike is unjustified and the lock-out is justified the workmen would not be entitled to any wages at all. Similarly, where the strike is justified and the lock-out is unjustified the workmen would be entitled to the entire wages for the period of strike and lock-out. Where, however, a strike is unjustified and is followed by a lock-out which becomes unjustified a case for apportionment of blame arises. In our opinion in the case before us the blame for the situation which resulted after the strike and the lock-out can be apportioned roughly half and half between the company and its workers.

### 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: that the workmen had resorted to go slow tactics which adversely affected their business which was of repairing ships and then observed:"We should also strongly suggest that the management and the union jointly approach the Labour Directorate at once on the following issues:1. Whether the workmen are justified in stopping overtime as and when they like.2. Bonus.In consideration of this we may even agree to pay the workmen certain sum of money, as may be recommended by the Conciliation Officer, on advance account pending the adjudication by the Tribunal of the issue of bonus. It should, however, be clearly understood, that if the Tribunal decides against payment of bonus or allows bonus less than the amount advanced to them, the entire advance money or the difference will be recovered from the wages of the workmen by instalments as may be directed by the Tribunal".This suggestion was peremptorily rejected by the respondent union by its letter dated October 15, 1958 the relevant portion of which is as follows :"We would simply ask where had your good sense for tripartite conference before which you have adopted now we think as a measure of delaying tactics. We know better what to do when we will be asked to attend tripartite conferences."On October 16, 1958, the company wrote to the Labour Commissioner, West Bengal, apprising him of the situation in the factory and requesting him to intervene. It seems that on that day a representative of the company discussed the situation with Mr. Basu, the Assistant Labour Commissioner. Next day the company wrote to Mr. Basu in which it observed that although the financial position of the company does not justify the demand of bonus the company was prepared to make ex-gratia payment of bonus on the same basis as in the previous year subject to three conditions :"(i) the Union condemns the workmens conduct in stopping overtime since 10th October 1958 and putting the company to considerable loss.(ii) the Union undertakes to see that the workmen do not stop doing overtime in future.(iii) the bonus is not to be considered as a condition of service".On November 5, 1958, the respondent union wrote to the company a letter in which they made ten demands, the first of which was that 37 days wages as bonus should be paid to all workmen at the works and head office. They then went on a partial strike on November 13, 1958. On that very day the company published a lock-out notice on its notice board and served copy thereof on the union. That notice reads thus :"For sometime past the workmen by taking resort to organised slow down and by refusing to work overtime and by keeping a strike notice hanging on us have to a great extent crippled our ship repairing business and have made it difficult for us to accept major ship repairs or large orders. Today the workmen have resorted to a strike when we have on our hands, a ship in dry dock awaiting unlocking today and another ship is due to sail in two days time. This strike is definitely illegal and in consequence of this illegal strike we have no choice but hereby to declare lock-out".The lock-out continued till January 5, 1959, on which date the companys works were reopened. The termination of the lock-out was brought by a settlement made between the parties on January 3, 1959. In that settlement it was agreed that 1% of the sale proceeds of the ship repairing section less sales tax, for the whole year will be paid as bonus to the workmen irrespective of profit and loss of the company and 15 days wages will be paid as Puja bonus to the workmen every year irrespective of profit and loss of the company. It is not necessary to refer to the other terms of the agreement.8. It seems to us that the attitude of the company was a reasonable one and that it even proposed to the union and through it to its workmen that work should go on, that the dispute should be taken before the Conciliation Officer for conciliation and that in the meanwhile they were prepared to grant some interim relief to the workmen. But instead of accepting this reasonable offer the union spurned it contemptuously and for coercing the company encouraged its members to strike work on November 13, 1958. It is true that the strike was intended to be a token one. But the object of that strike being to circumvent settlement in an amicable manner, even though the company was ready for such settlement we have no doubt that the strike was unjustified. It is in the light of this finding that the lock-out has to be judged. In our opinion, while the strike was unjustifiable lock-out when it was ordered on November 13, 1958, was justified. It seems to us, however, that though the lock-out was justified at its commencement its continuance for 53 days was wholly unreasonable and therefore, unjustified. In a case where a strike is unjustified and is followed by a lock-out which has, because of its long duration, become unjustified it would not be a proper course for an industrial tribunal to direct the payment of the whole of the wages for the period of the lock-out. We would like to make it clear that in a case where the strike is unjustified and the lock-out is justified the workmen would not be entitled to any wages at all. Similarly, where the strike is justified and the lock-out is unjustified the workmen would be entitled to the entire wages for the period of strike and lock-out. Where, however, a strike is unjustified and is followed by a lock-out which becomes unjustified a case for apportionment of blame arises. In our opinion in the case before us the blame for the situation which resulted after the strike and the lock-out can be apportioned roughly half and half between the company and its workers. ### Response: 1

State of Maharashtra Vs. Subhaiya Kanak Maniah and Others

seated himself in the front left side window of the car, deposed that while the car was moving slowly, he saw one worker of the Company watching the car. The told P.W. 34 that somebody was watching. When the car moved further, the said person was giving signal. Thereafter somebody threw a tin containing petrol at the car. The tin dashed at the left door and some fell inside the car. Thereafter two other persons threw petrol in the rear side and A-7 was one of them. He also identified A-5 as one of the persons giving instructions to the man holding the petrol tin. Then a lighted substance was thrown into the car by Balan, whom he knew and the car got burnt. The version given by P.W. 38 is more or less the same. P.W. 34 Suvarna, an Officer of the Company in general gave the same version. He, however, in the cross-examination stated that he came out with an explanation that the had not given the descriptions of any person in the statement recorded on 3-11-73 as he was in a terrific pain. The evidence of these three eyewitnesses was not found to be acceptable by the High Court5. Learned counsel for the appellant submitted that these witnesses who received burns are the most natural witnesses and the respondents who were identified by them as having participated in the occurrence ought to have been convicted. We, have gone through the entire bulky record. As noted by the High Court, the case mainly rests on the evidence of these three eyewitnesses. The identification of the alleged culprits by these witnesses assumes lot of importance in the case. Admittedly these injured witnesses did give some statements to the police but further recording was stopped. The explanation given is that they were in serious condition and therefore further recording could not have proceeded with. It is only again at a subsequent stage that their statements were recorded in which they gave some particulars of the assailants. Throughout the contention of the defence had been that these witnesses did not give any descriptive particulars of the accused and therefore they had not seen the person concerned. It is only at a later stage after being tutored that they gave some particulars and proceeded to identify some of the assailants in the identification parade. The plea taken by the defence that some of them only had minor burns and that at least the evidence of Dr. Nuriyani, P.W. 41 shows that they were in a position to make the statements and that the Medical Officer of the Sion Hospital had no objection to their statements being taken at that time and in fact some part of the statements was recorded. P.W. 74, the Sub-Inspector who recorded the first statement of Barve, further stated that the Doctor asked him not to talk to Barve as he was under severe shock. P.W. 74 came out with another story in the deposition that the same night he visited Bhatia Hospital where he could record the statements of P.Ws. 28, 34, 38 and 39 who received burns. According to him, he had not completed their statements earlier. It therefore emerges that the statements of these witnesses recorded on 3-11-73 were not complete and by them descriptive particulars were not given. As a matter of fact, the statements of each of the witnesses recorded by the police at that stage ran into two or three full-scape sheets but in spite of such lengthy statements, the names and the descriptions of the culprits did not find place. Only P.W. 38, the Driver mentioned Balan as the main culprit. Except his name, no other names were mentioned. The High Court examined this position and observed that except the name of Balan, the names or descriptive particulars of no other accused were mentioned and that leads to an inference that these witnesses have not actually seen the culprits and their subsequent identification either in the parade or in the Court does not inspire confidence. Admittedly A-7 had deformity in his hand and Kadam, P.W. 39 knew Accused Nos. 6, 7, 8 and 9 by face and A-5 by both name and face for a long time before the incident but still no descriptive particulars were mentioned. In spite of his claim that he had known Accused Nos. 6, 7, 8 and 9, surprisingly he did not identify A-7 in the parade. The circumstance that the statements of these witnesses were recorded on 5-11-73 and 8-11-73 supports the plea of the defence that these witnessed have not seen actually who the culprits were and for that reason they could not give descriptive particulars earlier. In this context it is also important to note that the prosecution filed to examine the two female employees Miss Leela Ramaswamy and Miss Leela Chandane, who has escaped with negligible or no burns and who would have been in a better position to give the particulars. The High Court has also given good reasons for coming to the conclusion that a deliberate attempt to implicate A-6 was made by Suvarna, P.W. 34. It is rather strange that these witnesses gave some of the descriptive particulars only in their later statements. Further the circumstances show that the incident must have occurred with in seconds rather in a flash of time and it is highly doubtful whether these witnesses would have been in a position to identify any of the culprits. We cannot say that the reasons given by the High Court for not relying on the evidence of these witnesses are unsound and if the evidence of these main witnesses becomes doubtful and not acceptable, then the other circumstances relied upon by the prosecution do not advance the prosecution case. We do see that the culprits have acted high-handedly without any concern for law and order. But there is paucity of evidence and the prosecution could not establish the guilt of the respondents beyond all reasonable doubt.

0[ds]We, have gone through the entire bulky record. As noted by the High Court, the case mainly rests on the evidence of these three eyewitnesses. The identification of the alleged culprits by these witnesses assumes lot of importance in the case. Admittedly these injured witnesses did give some statements to the police but further recording was stopped. The explanation given is that they were in serious condition and therefore further recording could not have proceeded with. It is only again at a subsequent stage that their statements were recorded in which they gave some particulars of the assailants. Throughout the contention of the defence had been that these witnesses did not give any descriptive particulars of the accused and therefore they had not seen the person concerned. It is only at a later stage after being tutored that they gave some particulars and proceeded to identify some of the assailants in the identification parade. The plea taken by the defence that some of them only had minor burns and that at least the evidence of Dr. Nuriyani, P.W. 41 shows that they were in a position to make the statements and that the Medical Officer of the Sion Hospital had no objection to their statements being taken at that time and in fact some part of the statements was recorded. P.W. 74, thewho recorded the first statement of Barve, further stated that the Doctor asked him not to talk to Barve as he was under severe shock. P.W. 74 came out with another story in the deposition that the same night he visited Bhatia Hospital where he could record the statements of P.Ws. 28, 34, 38 and 39 who received burns. According to him, he had not completed their statements earlier. It therefore emerges that the statements of these witnesses recorded onwere not complete and by them descriptive particulars were not given. As a matter of fact, the statements of each of the witnesses recorded by the police at that stage ran into two or threesheets but in spite of such lengthy statements, the names and the descriptions of the culprits did not find place. Only P.W. 38, the Driver mentioned Balan as the main culprit. Except his name, no other names were mentioned. The High Court examined this position and observed that except the name of Balan, the names or descriptive particulars of no other accused were mentioned and that leads to an inference that these witnesses have not actually seen the culprits and their subsequent identification either in the parade or in the Court does not inspire confidence. Admittedlyhad deformity in his hand and Kadam, P.W. 39 knew Accused Nos. 6, 7, 8 and 9 by face andby both name and face for a long time before the incident but still no descriptive particulars were mentioned. In spite of his claim that he had known Accused Nos. 6, 7, 8 and 9, surprisingly he did not identifyin the parade. The circumstance that the statements of these witnesses were recorded on73 supports the plea of the defence that these witnessed have not seen actually who the culprits were and for that reason they could not give descriptive particulars earlier. In this context it is also important to note that the prosecution filed to examine the two female employees Miss Leela Ramaswamy and Miss Leela Chandane, who has escaped with negligible or no burns and who would have been in a better position to give the particulars. The High Court has also given good reasons for coming to the conclusion that a deliberate attempt to implicatewas made by Suvarna, P.W. 34. It is rather strange that these witnesses gave some of the descriptive particulars only in their later statements. Further the circumstances show that the incident must have occurred with in seconds rather in a flash of time and it is highly doubtful whether these witnesses would have been in a position to identify any of the culprits. We cannot say that the reasons given by the High Court for not relying on the evidence of these witnesses are unsound and if the evidence of these main witnesses becomes doubtful and not acceptable, then the other circumstances relied upon by the prosecution do not advance the prosecution case. We do see that the culprits have actedwithout any concern for law and order. But there is paucity of evidence and the prosecution could not establish the guilt of the respondents beyond all reasonable doubt.

### 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: seated himself in the front left side window of the car, deposed that while the car was moving slowly, he saw one worker of the Company watching the car. The told P.W. 34 that somebody was watching. When the car moved further, the said person was giving signal. Thereafter somebody threw a tin containing petrol at the car. The tin dashed at the left door and some fell inside the car. Thereafter two other persons threw petrol in the rear side and A-7 was one of them. He also identified A-5 as one of the persons giving instructions to the man holding the petrol tin. Then a lighted substance was thrown into the car by Balan, whom he knew and the car got burnt. The version given by P.W. 38 is more or less the same. P.W. 34 Suvarna, an Officer of the Company in general gave the same version. He, however, in the cross-examination stated that he came out with an explanation that the had not given the descriptions of any person in the statement recorded on 3-11-73 as he was in a terrific pain. The evidence of these three eyewitnesses was not found to be acceptable by the High Court5. Learned counsel for the appellant submitted that these witnesses who received burns are the most natural witnesses and the respondents who were identified by them as having participated in the occurrence ought to have been convicted. We, have gone through the entire bulky record. As noted by the High Court, the case mainly rests on the evidence of these three eyewitnesses. The identification of the alleged culprits by these witnesses assumes lot of importance in the case. Admittedly these injured witnesses did give some statements to the police but further recording was stopped. The explanation given is that they were in serious condition and therefore further recording could not have proceeded with. It is only again at a subsequent stage that their statements were recorded in which they gave some particulars of the assailants. Throughout the contention of the defence had been that these witnesses did not give any descriptive particulars of the accused and therefore they had not seen the person concerned. It is only at a later stage after being tutored that they gave some particulars and proceeded to identify some of the assailants in the identification parade. The plea taken by the defence that some of them only had minor burns and that at least the evidence of Dr. Nuriyani, P.W. 41 shows that they were in a position to make the statements and that the Medical Officer of the Sion Hospital had no objection to their statements being taken at that time and in fact some part of the statements was recorded. P.W. 74, the Sub-Inspector who recorded the first statement of Barve, further stated that the Doctor asked him not to talk to Barve as he was under severe shock. P.W. 74 came out with another story in the deposition that the same night he visited Bhatia Hospital where he could record the statements of P.Ws. 28, 34, 38 and 39 who received burns. According to him, he had not completed their statements earlier. It therefore emerges that the statements of these witnesses recorded on 3-11-73 were not complete and by them descriptive particulars were not given. As a matter of fact, the statements of each of the witnesses recorded by the police at that stage ran into two or three full-scape sheets but in spite of such lengthy statements, the names and the descriptions of the culprits did not find place. Only P.W. 38, the Driver mentioned Balan as the main culprit. Except his name, no other names were mentioned. The High Court examined this position and observed that except the name of Balan, the names or descriptive particulars of no other accused were mentioned and that leads to an inference that these witnesses have not actually seen the culprits and their subsequent identification either in the parade or in the Court does not inspire confidence. Admittedly A-7 had deformity in his hand and Kadam, P.W. 39 knew Accused Nos. 6, 7, 8 and 9 by face and A-5 by both name and face for a long time before the incident but still no descriptive particulars were mentioned. In spite of his claim that he had known Accused Nos. 6, 7, 8 and 9, surprisingly he did not identify A-7 in the parade. The circumstance that the statements of these witnesses were recorded on 5-11-73 and 8-11-73 supports the plea of the defence that these witnessed have not seen actually who the culprits were and for that reason they could not give descriptive particulars earlier. In this context it is also important to note that the prosecution filed to examine the two female employees Miss Leela Ramaswamy and Miss Leela Chandane, who has escaped with negligible or no burns and who would have been in a better position to give the particulars. The High Court has also given good reasons for coming to the conclusion that a deliberate attempt to implicate A-6 was made by Suvarna, P.W. 34. It is rather strange that these witnesses gave some of the descriptive particulars only in their later statements. Further the circumstances show that the incident must have occurred with in seconds rather in a flash of time and it is highly doubtful whether these witnesses would have been in a position to identify any of the culprits. We cannot say that the reasons given by the High Court for not relying on the evidence of these witnesses are unsound and if the evidence of these main witnesses becomes doubtful and not acceptable, then the other circumstances relied upon by the prosecution do not advance the prosecution case. We do see that the culprits have acted high-handedly without any concern for law and order. But there is paucity of evidence and the prosecution could not establish the guilt of the respondents beyond all reasonable doubt. ### Response: 0

KRISHAN KUMAR MADAN Vs. ASHOK KUMAR

order dated 22 November 2004 stated that the appellants could not be allocated to the State of Uttarakhand.14. In response, the State of Uttarakhand in its counter stated that:(i) The State Reorganization Committee advised that with the consent of the State of U.P., the appellants can be taken on transfer to the State of Uttarakhand as there was an acute shortage of officers in the newly constituted State of Uttarakhand;(ii) Transfer was done only with the mutual consent of both the States and the appellants; and(iii) Transfer of the services of the appellants was affected after the creation of the State of Uttarakhand is, therefore, not covered by any of the provisions of the U.P. Reorganization Act, 2000, which has also been mentioned in the letter dated 3 September 2009 of the Government of India; andiv) The Guidelines dated 13 September 2000 clearly envisage in respect of recruitment against vacancies, that wherever panels have been drawn but not published, they may be kept in abeyance till reorganization is given effect to. But these guidelines did not contemplate what action is to be taken in a situation where the selection has been made. Hence, in the absence of any specific provision in the guidelines provided by the Government of India, the decision arrived with the mutual consent of the two State governments does not suffer from any infirmity and is justified.15. In the counter affidavit filed on behalf of Union of India by the Under Secretary, Department of Personnel & Training, Government of India, it was stated that:(i) Although the Central Government was made a party to Writ Petition no 1313 of 2005, before the High Court, it did not file a Counter affidavit as none of its decisions was under challenge; and(ii) The case was contested between private parties where the State Governments were to furnish a reply. The Central Government has nothing to say in the matter except that the appellants could not be allocated as they were out of the purview of the U.P. Reorganisation Act, 2000 as they were inducted into service in 2001, which is after the appointed day, 9 November 2000.16. The State of Uttar Pradesh and the State Advisory Committee, who have been arrayed as Respondent 8 and 9 in the instant appeals, have not filed counter affidavits. No counter affidavit has been filed on behalf of Respondent 4 who was one of the petitioners before the High Court.17. The U.P. Reorganisation Act, 2000 empowered the Central Government to issue directions to the State Governments of Uttar Pradesh and Uttarakhand from time to time to resolve any issues envisaged under the Act. The power of the Central Government under Section 77 of U.P. Reorganisation Act, 2000 is in the following terms:"77. Power of Central Government to give directions. - The Central Government may give such directions to the State Government of Uttar Pradesh and the State Government of Uttaranchal as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions. "18. The High Court has overlooked the guidelines issued by the Central Government on 13 September 2000. Para (5)(c) of the guidelines refers to cases of selections where results were published prior to the cut-off date but appointment letters were not issued to candidates. Para (5) (c) contemplates that recruitments would be kept in abeyance until final allocation orders were made. This was to be so even where panels were drawn but not given effect to.The High Court has directed its attention to a sole consideration, namely whether there existed any statutory provision for transferring an employee from one state to another state. The appellants were declared to be employees of the State of Uttar Pradesh by the High Court without noticing that the appointment letters issued to them clearly stipulated that their services could transferred to the successor state of Uttarakhand. Such a transfer took place with the consent of both the states.19. The State of Uttarakhand was created with the enactment of the U.P.Reorganisation Act, 2000 which reorganized the State of Uttar Pradesh into two states namely, the successor State of Uttar Pradesh and the State of Uttarakhand. Under the Act, 9 November 2000 was the appointed day. During the initial days after its formation, the State of Uttarakhand was facing an acute shortage of officers in various departments including the Secretariat. The State of Uttarakhand was seeking help from the State of Uttar Pradesh and the Central Government to provide human resources. The Central Government, by its letter dated 15 September 2004, permitted the transfer of employees on the basis of the mutual consent of both the States.The State of U.P. gave options to existing employees appointed before 9 November 2000 for transfer of their services to the State of Uttarakhand. However, despite those efforts, a number of vacancies continued in the newly formed State of Uttarakhand. Hence, various employees who were already employed with the State of U.P. prior to the appointed day were provided with a choice of permanent transfer of service to the State of Uttarakhand.In the meantime, in the case of persons such as the appellants where recruitments were completed but appointment letters were not issued the appointment letters indicated that their services may be allotted either to the State of Uttar Pradesh or the State of Uttarakhand after the appointed day. The services of the appellants were transferred and absorbed by the State of Uttarakhand with the mutual consent of both the states. Since then the appellants have been continuing as employees of the State of Uttarakhand.20. There is no infirmity in the procedure adopted by both the states in the transfer of employees, on the basis of mutual consent. This was clearly contemplated by the letter dated 15 September 2014 of the Government of India in the Ministry of Personnel, Public Grievances and Pensions. Hence, we are unable to agree with the view of High Court.

1[ds]18. The High Court has overlooked the guidelines issued by the Central Government on 13 September 2000. Para (5)(c) of the guidelines refers to cases of selections where results were published prior to thedate but appointment letters were not issued to candidates. Para (5) (c) contemplates that recruitments would be kept in abeyance until final allocation orders were made. This was to be so even where panels were drawn but not given effectHigh Court has directed its attention to a sole consideration, namely whether there existed any statutory provision for transferring an employee from one state to another state. The appellants were declared to be employees of the State of Uttar Pradesh by the High Court without noticing that the appointment letters issued to them clearly stipulated that their services could transferred to the successor state of Uttarakhand. Such a transfer took place with the consent of both theState of U.P. gave options to existing employees appointed before 9 November 2000 for transfer of their services to the State of Uttarakhand. However, despite those efforts, a number of vacancies continued in the newly formed State of Uttarakhand. Hence, various employees who were already employed with the State of U.P. prior to the appointed day were provided with a choice of permanent transfer of service to the State ofthe meantime, in the case of persons such as the appellants where recruitments were completed but appointment letters were not issued the appointment letters indicated that their services may be allotted either to the State of Uttar Pradesh or the State of Uttarakhand after the appointed day. The services of the appellants were transferred and absorbed by the State of Uttarakhand with the mutual consent of both the states. Since then the appellants have been continuing as employees of the State of Uttarakhand.There is no infirmity in the procedure adopted by both the states in the transfer of employees, on the basis of mutual consent. This was clearly contemplated by the letter dated 15 September 2014 of the Government of India in the Ministry of Personnel, Public Grievances and Pensions. Hence, we are unable to agree with the view of High Court.

### 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: order dated 22 November 2004 stated that the appellants could not be allocated to the State of Uttarakhand.14. In response, the State of Uttarakhand in its counter stated that:(i) The State Reorganization Committee advised that with the consent of the State of U.P., the appellants can be taken on transfer to the State of Uttarakhand as there was an acute shortage of officers in the newly constituted State of Uttarakhand;(ii) Transfer was done only with the mutual consent of both the States and the appellants; and(iii) Transfer of the services of the appellants was affected after the creation of the State of Uttarakhand is, therefore, not covered by any of the provisions of the U.P. Reorganization Act, 2000, which has also been mentioned in the letter dated 3 September 2009 of the Government of India; andiv) The Guidelines dated 13 September 2000 clearly envisage in respect of recruitment against vacancies, that wherever panels have been drawn but not published, they may be kept in abeyance till reorganization is given effect to. But these guidelines did not contemplate what action is to be taken in a situation where the selection has been made. Hence, in the absence of any specific provision in the guidelines provided by the Government of India, the decision arrived with the mutual consent of the two State governments does not suffer from any infirmity and is justified.15. In the counter affidavit filed on behalf of Union of India by the Under Secretary, Department of Personnel & Training, Government of India, it was stated that:(i) Although the Central Government was made a party to Writ Petition no 1313 of 2005, before the High Court, it did not file a Counter affidavit as none of its decisions was under challenge; and(ii) The case was contested between private parties where the State Governments were to furnish a reply. The Central Government has nothing to say in the matter except that the appellants could not be allocated as they were out of the purview of the U.P. Reorganisation Act, 2000 as they were inducted into service in 2001, which is after the appointed day, 9 November 2000.16. The State of Uttar Pradesh and the State Advisory Committee, who have been arrayed as Respondent 8 and 9 in the instant appeals, have not filed counter affidavits. No counter affidavit has been filed on behalf of Respondent 4 who was one of the petitioners before the High Court.17. The U.P. Reorganisation Act, 2000 empowered the Central Government to issue directions to the State Governments of Uttar Pradesh and Uttarakhand from time to time to resolve any issues envisaged under the Act. The power of the Central Government under Section 77 of U.P. Reorganisation Act, 2000 is in the following terms:"77. Power of Central Government to give directions. - The Central Government may give such directions to the State Government of Uttar Pradesh and the State Government of Uttaranchal as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions. "18. The High Court has overlooked the guidelines issued by the Central Government on 13 September 2000. Para (5)(c) of the guidelines refers to cases of selections where results were published prior to the cut-off date but appointment letters were not issued to candidates. Para (5) (c) contemplates that recruitments would be kept in abeyance until final allocation orders were made. This was to be so even where panels were drawn but not given effect to.The High Court has directed its attention to a sole consideration, namely whether there existed any statutory provision for transferring an employee from one state to another state. The appellants were declared to be employees of the State of Uttar Pradesh by the High Court without noticing that the appointment letters issued to them clearly stipulated that their services could transferred to the successor state of Uttarakhand. Such a transfer took place with the consent of both the states.19. The State of Uttarakhand was created with the enactment of the U.P.Reorganisation Act, 2000 which reorganized the State of Uttar Pradesh into two states namely, the successor State of Uttar Pradesh and the State of Uttarakhand. Under the Act, 9 November 2000 was the appointed day. During the initial days after its formation, the State of Uttarakhand was facing an acute shortage of officers in various departments including the Secretariat. The State of Uttarakhand was seeking help from the State of Uttar Pradesh and the Central Government to provide human resources. The Central Government, by its letter dated 15 September 2004, permitted the transfer of employees on the basis of the mutual consent of both the States.The State of U.P. gave options to existing employees appointed before 9 November 2000 for transfer of their services to the State of Uttarakhand. However, despite those efforts, a number of vacancies continued in the newly formed State of Uttarakhand. Hence, various employees who were already employed with the State of U.P. prior to the appointed day were provided with a choice of permanent transfer of service to the State of Uttarakhand.In the meantime, in the case of persons such as the appellants where recruitments were completed but appointment letters were not issued the appointment letters indicated that their services may be allotted either to the State of Uttar Pradesh or the State of Uttarakhand after the appointed day. The services of the appellants were transferred and absorbed by the State of Uttarakhand with the mutual consent of both the states. Since then the appellants have been continuing as employees of the State of Uttarakhand.20. There is no infirmity in the procedure adopted by both the states in the transfer of employees, on the basis of mutual consent. This was clearly contemplated by the letter dated 15 September 2014 of the Government of India in the Ministry of Personnel, Public Grievances and Pensions. Hence, we are unable to agree with the view of High Court. ### Response: 1

M/S. Shree Siddharth Construction Builders and Developers Vs. Shree Saraswati Apartment Co-Operative Housing Society Limited & Others

of the above discussion the respondent No.2 was under an obligation to convey the said property to respondent Nos. 1 and 3 societies in accordance with the agreement entered into with individual flat purchasers therein under Section 4 of MOFA. However, as the respondent No.2 failed to discharge its obligation, respondent No.1 was entitled to move respondent No.4 under Section 11 of the MOFA for deemed conveyance to enforce the obligation of the respondent No.2-Promoter under MOFA to convey all rights, title and interest in the land and building in accordance with the agreement executed under Section 4 of MOFA. In the present facts, respondent No.2-Promoter had executed identical agreements in respect of the flats sold in the building of respondent No.1 and flats sold in the building of respondent No.3. In fact while executing agreement for sale with flat purchasers in respondent No.3 Society respondent No.2 ought to have excluded an area from the said property which would be conveyed along with building to respondent No.1 society. However, the respondent No.2 Promoter did not do the same and undertook to convey to both respondent Nos. 1 and 3 Societies the said property admeasuring 4739.78 sq. mtrs. It was in these circumstances that respondent No.4 adopted the FSI distribution between the constructed properties existing on the said property so as to convey the said property to the claimants thereof in a reasonable manner. This distribution between the different claimants to the said property on the basis of FSI consumed became necessary only because respondent No.2 while entering into two agreements with the purchasers of premises in Shree Saraswati Apartment i.e. respondent No.1 in 1982 and the purchasers of premises in Saraswati Co-operative Housing Society i.e. respondent No.3 in 1992 had not allocated the land to be conveyed between the two buildings but had undertaken to convey the said property to both of them. In this view of the matter, it is not open to the petitioner (successor to respondent No.2-Promoter) to take advantage of its own wrong and frustrate the rights of buyers of the flats under Section 4 of MOFA. In these circumstances, we find that the impugned order of respondent No.4 is reasonable and in accordance with law. Therefore, the impugned order calls for no interference on the above account.13) The petitioners next grievance is that the impugned order of respondent No.4 has ignored the fact that benefit of FSI was available to the petitioner having got into the shoes of the original owners and respondent No.2. So far as the original owners right to FSI is concerned, the agreement dated 11 November 1980 itself very clearly provides in clause 9 thereof that the original owners save and except retaining the chawl on the said property do not retain any FSI available in respect of the said property including the chawl and the right of FSI would be available only if purchaser-respondent No.2 shall give it to the original owner for consideration. The conveyance dated 19 December 1986 also conveyed to respondent No.2 the said property with its all rights, liberties and appurtenances to the use and benefit of respondent No.2. Therefore, even the rights in respect of the FSI of the original owners are concerned the same stands transferred to respondent No.2.14) So far as the petitioners acquisition of rights of respondent No.2 are concerned, the same has been acquired under conveyance dated 29 February 2008. However, the preamble to the aforesaid conveyance dated 29 February 2008 very clearly states that the rights being acquired by the petitioner under the aforesaid conveyance is subject to right already created by the original promoters in respect of the purchasers of the said flats under the MOFA. Consequently when the building and the land on which the buildings are constructed, it follows that the rights in the land and the buildings including the FSI and all future advantages and/or accrual of any further rights are also acquired by the two societies to whom the land is being conveyed. The agreement entered into by respondent No.2-promoter with the individual purchasers of the flats in respondent Nos. 2 and 3-societies does not provide therein that respondent No.2 promoters would continue to have rights in respect of land even after the same is conveyed to Respondent Nos. 1 and 3 societies under the agreement with the buyers of the flats therein under Section 4 of MOFA. In the above view of the matter, it is not open to the petitioners to claim any right/entitlement with regard to FSI attributable to the said property. Therefore the above grievance of the petitioner is also not sustainable.15) The next grievance of the petitioner that the application made by respondent No.1 for deemed conveyance under Section 11 of the MOFA is premature inasmuch as the same should have been made by federal society consisting of respondent Nos. 1 and 3 collectively. This objection is misconceived in law. The two societies viz. Respondent Nos.1 and 3 cannot together form a federal society. This is so as a federal society would require at the minimum not less than five members all of whom are in turn themselves societies. This is so provided in Section-2(13) of the Maharashtra Co-operative Societies Act, 1960. In the present case there are only two societies and both have been independently formed. Consequently even if they come together they cannot be classified as federal society. In any event, even if, the deemed conveyance is made in favour of two societies collectively, they would be entitled to aggregate 4568.70 sq. mtrs. and the petitioner would continue to be entitled to balance of 415.76 sq. mtrs. of the said property. The deemed conveyance being made either individually or collectively to the two societies does not in any manner cause any prejudice to the petitioner. It must be pointed out that there is no grievance before us by either respondent No.1 and/or respondent No.3 on that account. Thus, we see no merits in this grievance of the petitioner.

0[ds]11) In view of the above there is no obligation on the part of theSociety to whom the deemed conveyance is being granted by respondent No.4 to convey 1300 sq. yards around the chawls in favour of the original owners and/or its successors i.e. the petitioner. It was in the aforesaid circumstances the view of respondent No.4 that there was no obligation on respondent Nos.1 and 3 to execute a lease in favour of the original owners with regard to 1300 sq. yards of land surrounding the existing chawl on the said property is neither arbitrary and/or perverse.12) In the light of the above discussion the respondent No.2 was under an obligation to convey the said property to respondent Nos. 1 and 3 societies in accordance with the agreement entered into with individual flat purchasers therein under Section 4 of MOFA. However, as the respondent No.2 failed to discharge its obligation, respondent No.1 was entitled to move respondent No.4 under Section 11 of the MOFA for deemed conveyance to enforce the obligation of the respondentunder MOFA to convey all rights, title and interest in the land and building in accordance with the agreement executed under Section 4 of MOFA. In the present facts, respondenthad executed identical agreements in respect of the flats sold in the building of respondent No.1 and flats sold in the building of respondent No.3. In fact while executing agreement for sale with flat purchasers in respondent No.3 Society respondent No.2 ought to have excluded an area from the said property which would be conveyed along with building to respondent No.1 society. However, the respondent No.2 Promoter did not do the same and undertook to convey to both respondent Nos. 1 and 3 Societies the said property admeasuring 4739.78 sq. mtrs. It was in these circumstances that respondent No.4 adopted the FSI distribution between the constructed properties existing on the said property so as to convey the said property to the claimants thereof in a reasonable manner. This distribution between the different claimants to the said property on the basis of FSI consumed became necessary only because respondent No.2 while entering into two agreements with the purchasers of premises in Shree Saraswati Apartment i.e. respondent No.1 in 1982 and the purchasers of premises in SaraswatiHousing Society i.e. respondent No.3 in 1992 had not allocated the land to be conveyed between the two buildings but had undertaken to convey the said property to both of them. In this view of the matter, it is not open to the petitioner (successor to respondentto take advantage of its own wrong and frustrate the rights of buyers of the flats under Section 4 of MOFA. In these circumstances, we find that the impugned order of respondent No.4 is reasonable and in accordance with law. Therefore, the impugned order calls for no interference on the above account.13) The petitioners next grievance is that the impugned order of respondent No.4 has ignored the fact that benefit of FSI was available to the petitioner having got into the shoes of the original owners and respondent No.2. So far as the original owners right to FSI is concerned, the agreement dated 11 November 1980 itself very clearly provides in clause 9 thereof that the original owners save and except retaining the chawl on the said property do not retain any FSI available in respect of the said property including the chawl and the right of FSI would be available only ifNo.2 shall give it to the original owner for consideration. The conveyance dated 19 December 1986 also conveyed to respondent No.2 the said property with its all rights, liberties and appurtenances to the use and benefit of respondent No.2. Therefore, even the rights in respect of the FSI of the original owners are concerned the same stands transferred to respondent No.2.14) So far as the petitioners acquisition of rights of respondent No.2 are concerned, the same has been acquired under conveyance dated 29 February 2008. However, the preamble to the aforesaid conveyance dated 29 February 2008 very clearly states that the rights being acquired by the petitioner under the aforesaid conveyance is subject to right already created by the original promoters in respect of the purchasers of the said flats under the MOFA. Consequently when the building and the land on which the buildings are constructed, it follows that the rights in the land and the buildings including the FSI and all future advantages and/or accrual of any further rights are also acquired by the two societies to whom the land is being conveyed. The agreement entered into by respondentwith the individual purchasers of the flats in respondent Nos. 2 anddoes not provide therein that respondent No.2 promoters would continue to have rights in respect of land even after the same is conveyed to Respondent Nos. 1 and 3 societies under the agreement with the buyers of the flats therein under Section 4 of MOFA. In the above view of the matter, it is not open to the petitioners to claim any right/entitlement with regard to FSI attributable to the said property. Therefore the above grievance of the petitioner is also notThe next grievance of the petitioner that the application made by respondent No.1 for deemed conveyance under Section 11 of the MOFA is premature inasmuch as the same should have been made by federal society consisting of respondent Nos. 1 and 3 collectively. This objection is misconceived in law. The two societies viz. Respondent Nos.1 and 3 cannot together form a federal society. This is so as a federal society would require at the minimum not less than five members all of whom are in turn themselves societies. This is so provided inof the MaharashtraSocieties Act, 1960. In the present case there are only two societies and both have been independently formed. Consequently even if they come together they cannot be classified as federal society. In any event, even if, the deemed conveyance is made in favour of two societies collectively, they would be entitled to aggregate 4568.70 sq. mtrs. and the petitioner would continue to be entitled to balance of 415.76 sq. mtrs. of the said property. The deemed conveyance being made either individually or collectively to the two societies does not in any manner cause any prejudice to the petitioner. It must be pointed out that there is no grievance before us by either respondent No.1 and/or respondent No.3 on that account. Thus, we see no merits in this grievance of the petitioner.

### 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 above discussion the respondent No.2 was under an obligation to convey the said property to respondent Nos. 1 and 3 societies in accordance with the agreement entered into with individual flat purchasers therein under Section 4 of MOFA. However, as the respondent No.2 failed to discharge its obligation, respondent No.1 was entitled to move respondent No.4 under Section 11 of the MOFA for deemed conveyance to enforce the obligation of the respondent No.2-Promoter under MOFA to convey all rights, title and interest in the land and building in accordance with the agreement executed under Section 4 of MOFA. In the present facts, respondent No.2-Promoter had executed identical agreements in respect of the flats sold in the building of respondent No.1 and flats sold in the building of respondent No.3. In fact while executing agreement for sale with flat purchasers in respondent No.3 Society respondent No.2 ought to have excluded an area from the said property which would be conveyed along with building to respondent No.1 society. However, the respondent No.2 Promoter did not do the same and undertook to convey to both respondent Nos. 1 and 3 Societies the said property admeasuring 4739.78 sq. mtrs. It was in these circumstances that respondent No.4 adopted the FSI distribution between the constructed properties existing on the said property so as to convey the said property to the claimants thereof in a reasonable manner. This distribution between the different claimants to the said property on the basis of FSI consumed became necessary only because respondent No.2 while entering into two agreements with the purchasers of premises in Shree Saraswati Apartment i.e. respondent No.1 in 1982 and the purchasers of premises in Saraswati Co-operative Housing Society i.e. respondent No.3 in 1992 had not allocated the land to be conveyed between the two buildings but had undertaken to convey the said property to both of them. In this view of the matter, it is not open to the petitioner (successor to respondent No.2-Promoter) to take advantage of its own wrong and frustrate the rights of buyers of the flats under Section 4 of MOFA. In these circumstances, we find that the impugned order of respondent No.4 is reasonable and in accordance with law. Therefore, the impugned order calls for no interference on the above account.13) The petitioners next grievance is that the impugned order of respondent No.4 has ignored the fact that benefit of FSI was available to the petitioner having got into the shoes of the original owners and respondent No.2. So far as the original owners right to FSI is concerned, the agreement dated 11 November 1980 itself very clearly provides in clause 9 thereof that the original owners save and except retaining the chawl on the said property do not retain any FSI available in respect of the said property including the chawl and the right of FSI would be available only if purchaser-respondent No.2 shall give it to the original owner for consideration. The conveyance dated 19 December 1986 also conveyed to respondent No.2 the said property with its all rights, liberties and appurtenances to the use and benefit of respondent No.2. Therefore, even the rights in respect of the FSI of the original owners are concerned the same stands transferred to respondent No.2.14) So far as the petitioners acquisition of rights of respondent No.2 are concerned, the same has been acquired under conveyance dated 29 February 2008. However, the preamble to the aforesaid conveyance dated 29 February 2008 very clearly states that the rights being acquired by the petitioner under the aforesaid conveyance is subject to right already created by the original promoters in respect of the purchasers of the said flats under the MOFA. Consequently when the building and the land on which the buildings are constructed, it follows that the rights in the land and the buildings including the FSI and all future advantages and/or accrual of any further rights are also acquired by the two societies to whom the land is being conveyed. The agreement entered into by respondent No.2-promoter with the individual purchasers of the flats in respondent Nos. 2 and 3-societies does not provide therein that respondent No.2 promoters would continue to have rights in respect of land even after the same is conveyed to Respondent Nos. 1 and 3 societies under the agreement with the buyers of the flats therein under Section 4 of MOFA. In the above view of the matter, it is not open to the petitioners to claim any right/entitlement with regard to FSI attributable to the said property. Therefore the above grievance of the petitioner is also not sustainable.15) The next grievance of the petitioner that the application made by respondent No.1 for deemed conveyance under Section 11 of the MOFA is premature inasmuch as the same should have been made by federal society consisting of respondent Nos. 1 and 3 collectively. This objection is misconceived in law. The two societies viz. Respondent Nos.1 and 3 cannot together form a federal society. This is so as a federal society would require at the minimum not less than five members all of whom are in turn themselves societies. This is so provided in Section-2(13) of the Maharashtra Co-operative Societies Act, 1960. In the present case there are only two societies and both have been independently formed. Consequently even if they come together they cannot be classified as federal society. In any event, even if, the deemed conveyance is made in favour of two societies collectively, they would be entitled to aggregate 4568.70 sq. mtrs. and the petitioner would continue to be entitled to balance of 415.76 sq. mtrs. of the said property. The deemed conveyance being made either individually or collectively to the two societies does not in any manner cause any prejudice to the petitioner. It must be pointed out that there is no grievance before us by either respondent No.1 and/or respondent No.3 on that account. Thus, we see no merits in this grievance of the petitioner. ### Response: 0

Union of India Vs. Lt. General Rajendra Singh Kadyan

eligible candidates in that cadre should have been considered and consideration of only two candidates, namely, the appellant in one of the cases and respondent No. 1, alone could not meet the necessary criteria. This contention does not also hold water because no one else has made a complaint and the case of respondent No. 1 has been duly considered. Thus the argument advanced by Shri P.P. Rao on this aspect does not stand to reason. 28. Now we come to the last aspect of the matter, namely, the manner in which the Cabinet Secretary examined the service profiles of the two officers in question. For purposes of convenience, we may set out the relevant portion of the note : "Lt. Gen. R.S. Kadyan :- He was commissioned in the Rajputana rifles regiment of the Infantry in June, 1962 and has held various Command, Staff and Instructional appointments. He picked up the rank of Lt. Gen. on 24th September, 1997 and started functioning as regular Corps Commander. The General Officer has a balanced exposure in Command, Staff and Instructional appointments. However, his staff experience in senior ranks from Brig. onwards is only limited to that of Military Attache. He has no experience of working in Northern Command and Army Headquarters. Since 1980 he has worked for about 4 years in field areas. It also appears from his records that he did not participate in 1962, 1965 operations. In his report of 1971, when he participated in the operations, there are some advisory remarks both by the IO and RO as below :-"...... should be bold and aggressive in operation..... Should lead his men personally to difficult objectives." (Remarks by IO)."..... his performance as a Rifle Coy Commander in the recent operations has been satisfactory though not upto the expected level." (Remarks by RO). The overall profile of the officer, especially in senior ranks has been clearly above average. All the reporting officers gave him above average ratings with sprinkling of outstanding ratings. "As regards CI operations, the officer has handled the same as IG North, Assam Rifles, but he has not had experience of commanding a regular Army Division. His experience as Corps Commanders is also limited. He is a graduate of Staff Collage and has also done higher command courses. He is recipient of Chiefs Commendation, VSM and AVSM. He is medical category SHAPE-1." "Lt. Gen HRS Kalkat :- He was commissioned in Maratha Light Infantry in June, 1962. He became Lt. Gen in Feb. 1996 and since then he is commanding 33 Corps in the Eastern Sector. The general officer has rich experience in Command and Staff appointments. He has worked both in Eastern and Northern Commands including high altitude areas. Since 1982 he has worked for about 4 years in remote field areas in the Eastern and Northern Commands including high altitude areas. Since 1982 he has worked for about 4 years in remote field areas in the Eastern Secor or, especially the border areas with China. He has also held important staff assignments in Military Operations, Infantry and Staff Duties, Directorates in the Army Headquarters. His instructional experience is however limited to junior ranks only and he has practically no experience of CI operations.The officer did not participate in 1962 and 1965 operations. His report of 1971, the year in which operations took place is quite laudatory. The overall profile of the officer, especially in senior ranks has been clearly above average. All reporting officers have given him above average ratings with sprinklings of outstanding ratings. He is a graduate of Staff College and has also done Senior Commands and NDS Courses. He is also a recipient of AVSM. He is medical category SHAPE-1." 29. The contention put forth before us is that there are factual inaccuracies in the statement recorded by the Cabinet Secretary in his note and, therefore, must be deemed to be vitiated so as to reach a conclusion that the decision of the Government in this regard is not based on proper material. The learned Attorney General, therefore, took great pains to bring the entire records relating to the relevant period which was considered by the Cabinet Secretary and sought to point out that there were notings available on those files which justify these remarks. Prima facie, we cannot say, having gone through those records, that these notings are baseless. Critical analysis or appraisal of the file by the Court may neither be conducive to the interests of the officers concerned or for the morale of the entire force. May be one may emphasize one aspect rather than the other but in the appraisal of the total profile, the entire service profile has been taken care of by the authorities concerned and we cannot substitute our view to that of the authorities. It is a well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decision has nexus to the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether process in reaching decision has been observed correctly and not the decision as such. In that view of the matter, we think there is no justification for the High Court to have interfered with the order made by the Goverment. 30. Before parting with the case we need to observe that considering the nature of the sensitivity of the posts involved and that each of the officer feeling that he did not get the best of the deal at the hands of the Government or that the members of the force being aware who is the best is not heading them will certainly weaken the esteem and morale of the force. Therefore, the standards to be adopted and applied should be of the highest order so as to avoid such an impression in the force. 31. In t

1[ds]Before parting with the case we need to observe that considering the nature of the sensitivity of the posts involved and that each of the officer feeling that he did not get the best of the deal at the hands of the Government or that the members of the force being aware who is the best is not heading them will certainly weaken the esteem and morale of the force. Therefore, the standards to be adopted and applied should be of the highest order so as to avoid such an impression in thethe result, we allow the appeals filed by the Union of India and Lt. Gen. H.R.S. Kalkat and set aside the orders made by the High Court and dismiss the writ petition filed by respondent No. 1.

### 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: eligible candidates in that cadre should have been considered and consideration of only two candidates, namely, the appellant in one of the cases and respondent No. 1, alone could not meet the necessary criteria. This contention does not also hold water because no one else has made a complaint and the case of respondent No. 1 has been duly considered. Thus the argument advanced by Shri P.P. Rao on this aspect does not stand to reason. 28. Now we come to the last aspect of the matter, namely, the manner in which the Cabinet Secretary examined the service profiles of the two officers in question. For purposes of convenience, we may set out the relevant portion of the note : "Lt. Gen. R.S. Kadyan :- He was commissioned in the Rajputana rifles regiment of the Infantry in June, 1962 and has held various Command, Staff and Instructional appointments. He picked up the rank of Lt. Gen. on 24th September, 1997 and started functioning as regular Corps Commander. The General Officer has a balanced exposure in Command, Staff and Instructional appointments. However, his staff experience in senior ranks from Brig. onwards is only limited to that of Military Attache. He has no experience of working in Northern Command and Army Headquarters. Since 1980 he has worked for about 4 years in field areas. It also appears from his records that he did not participate in 1962, 1965 operations. In his report of 1971, when he participated in the operations, there are some advisory remarks both by the IO and RO as below :-"...... should be bold and aggressive in operation..... Should lead his men personally to difficult objectives." (Remarks by IO)."..... his performance as a Rifle Coy Commander in the recent operations has been satisfactory though not upto the expected level." (Remarks by RO). The overall profile of the officer, especially in senior ranks has been clearly above average. All the reporting officers gave him above average ratings with sprinkling of outstanding ratings. "As regards CI operations, the officer has handled the same as IG North, Assam Rifles, but he has not had experience of commanding a regular Army Division. His experience as Corps Commanders is also limited. He is a graduate of Staff Collage and has also done higher command courses. He is recipient of Chiefs Commendation, VSM and AVSM. He is medical category SHAPE-1." "Lt. Gen HRS Kalkat :- He was commissioned in Maratha Light Infantry in June, 1962. He became Lt. Gen in Feb. 1996 and since then he is commanding 33 Corps in the Eastern Sector. The general officer has rich experience in Command and Staff appointments. He has worked both in Eastern and Northern Commands including high altitude areas. Since 1982 he has worked for about 4 years in remote field areas in the Eastern and Northern Commands including high altitude areas. Since 1982 he has worked for about 4 years in remote field areas in the Eastern Secor or, especially the border areas with China. He has also held important staff assignments in Military Operations, Infantry and Staff Duties, Directorates in the Army Headquarters. His instructional experience is however limited to junior ranks only and he has practically no experience of CI operations.The officer did not participate in 1962 and 1965 operations. His report of 1971, the year in which operations took place is quite laudatory. The overall profile of the officer, especially in senior ranks has been clearly above average. All reporting officers have given him above average ratings with sprinklings of outstanding ratings. He is a graduate of Staff College and has also done Senior Commands and NDS Courses. He is also a recipient of AVSM. He is medical category SHAPE-1." 29. The contention put forth before us is that there are factual inaccuracies in the statement recorded by the Cabinet Secretary in his note and, therefore, must be deemed to be vitiated so as to reach a conclusion that the decision of the Government in this regard is not based on proper material. The learned Attorney General, therefore, took great pains to bring the entire records relating to the relevant period which was considered by the Cabinet Secretary and sought to point out that there were notings available on those files which justify these remarks. Prima facie, we cannot say, having gone through those records, that these notings are baseless. Critical analysis or appraisal of the file by the Court may neither be conducive to the interests of the officers concerned or for the morale of the entire force. May be one may emphasize one aspect rather than the other but in the appraisal of the total profile, the entire service profile has been taken care of by the authorities concerned and we cannot substitute our view to that of the authorities. It is a well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decision has nexus to the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether process in reaching decision has been observed correctly and not the decision as such. In that view of the matter, we think there is no justification for the High Court to have interfered with the order made by the Goverment. 30. Before parting with the case we need to observe that considering the nature of the sensitivity of the posts involved and that each of the officer feeling that he did not get the best of the deal at the hands of the Government or that the members of the force being aware who is the best is not heading them will certainly weaken the esteem and morale of the force. Therefore, the standards to be adopted and applied should be of the highest order so as to avoid such an impression in the force. 31. In t ### Response: 1

National Medical Commission Vs. Mothukuru Sriyah Koumudi & Ors

had occasion to consider the nature of relief to be granted to a student after the last date of admissions in case it is found that he or she was denied admission illegally. The conflicting in the judgments of this Court in Asha v. Pt. D.B. Sharma University of Health Sciences & Ors. (2012) 7 SCC 389 and Chandigarh Administration & Anr. v. Jasmine Kaur & Ors. (2014) 10 SCC 521 was resolved by this Court in the judgment of S. Krishna Sradha (supra). In the case of Asha (supra), it was held by this Court that the rule of merit for preference of medical courses and colleges admits no exception and that the said rule has to be followed strictly and without demur. The last date for admissions has to be strictly followed except in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency. In such cases, admission can be granted by courts even after the last date. A contrary view was taken in Jasmine Kaur case (supra) wherein this Court was of the opinion that a student is only entitled to a compensation in cases of illegal denial of admission and no admission can be directed after the last date. In S. Krishna Sradha case (supra), this Court held as follows: 33. In light of the discussion/observations made hereinabove, a meritorious candidate/student who has been denied an admission in MBBS Course illegally or irrationally by the authorities for no fault of his/her and who has approached the Court in time and so as to see that such a meritorious candidate may not have to suffer for no fault of his/her, we answer the reference as under: (i) That in a case where candidate/student has approached the court at the earliest and without any delay and that the question is with respect to the admission in medical course all the efforts shall be made by the concerned court to dispose of the proceedings by giving priority and at the earliest. (ii) Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate and the candidate has pursued his/her legal right expeditiously without any delay and there is fault only on the part of the authorities and/or there is apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right of equality and equal treatment to the competing candidates and if the time schedule prescribed - 30th September, is over, to do the complete justice, the Court under exceptional circumstances and in rarest of rare cases direct the admission in the same year by directing to increase the seats, however, it should not be more than one or two seats and such admissions can be ordered within reasonable time, i.e., within one month from 30th September, i.e., cut off date and under no circumstances, the Court shall order any Admission in the same year beyond 30th October. However, it is observed that such relief can be granted only in exceptional circumstances and in the rarest of rare cases. In case of such an eventuality, the Court may also pass an order cancelling the admission given to a candidate who is at the bottom of the merit list of the category who, if the admission would have been given to a more meritorious candidate who has been denied admission illegally, would not have got the admission, if the Court deems it fit and proper, however, after giving an opportunity of hearing to a student whose admission is sought to be cancelled. (iii) In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate/student has approached the court at the earliest and without any delay, the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management was at fault and wrongly denied the admission to the meritorious candidate, in that case, the Court may direct to reduce the number of seats in the management quota of that year, meaning thereby the student/students who was/were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the management quota. (iv) Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore, in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year. (v) It is clarified that the aforesaid directions pertain for Admission in MBBS Course only and we have not dealt with Post Graduate Medical Course. 11. As the dispute in S. Krishna Sradha case (supra) pertained to admission to the undergraduate MBBS Course, this Court held that they have not dealt with the Post Graduate Medical Courses. Mr. Parameshwar argued that there is no reason why the logic behind the judgment in S. Krishna Sradha case (supra) should not be made applicable to Post Graduate Courses. We find force in the said argument of Mr. Parameshwar. This Court was only dealing with the admission to the MBBS Course for which reason directions given in the said judgment were restricted to the MBBS Course. Directions issued in S. Krishna Sradha case (supra) can be made applicable to admission to Post Graduate Courses as well.

1[ds]7. There is no dispute that Respondent No.1 was provisionally granted admission to MS (General Surgery) Course in Respondent No.2- College on the basis of her merit in the NEET PG Examination. The dispute before the High Court was whether Respondent No.1 approached Respondent No.2-College before the last date prescribed for admission i.e. 30.07.2020. Respondent No.1 asserted that she visited Respondent No. 2-College with her father on 29.07.2020 and 30.07.2020 but her admission process was not completed. On the contrary, Respondent No. 2-College insisted before the High Court that Respondent No.1 did not turn up for the admission before the last date. The High Court recorded a finding that it is clear from the counter affidavit filed by Respondent No.2-College that Respondent No.1 visited the College on 29.07.2020. The High Court also took note of the fact that Respondent No.1 paid the University Fee of Rs.49,600/- on 29.07.2020, and she was given a check list and also a PG Student Personnel Data Form by Respondent No.2- College. After taking into account the material on record and considering the submissions made on behalf of the parties, the High Court arrived at a conclusion that Respondent No.2-College had intentionally and illegally denied admission to GS-MS (General Surgery) seat to Respondent No.1 for the academic year 2020-2021.8. We are in agreement with the said finding of the High Court. A perusal of the counter affidavit filed by Respondent No.2-College in the High Court would show that there is a contradiction in the pleadings by Respondent No.2-College. On one hand, it is stated that Respondent No.1 and her father did not approach Respondent No. 2-College either on 29.07.2020 or 30.07.2020 for the purpose of admission. Having said so, Respondent No.2-College in its counter also stated Respondent No.1 had approached the College on 29.07.2020 to enquire about the admission procedure and the requisite fee. There is no reason to believe that Respondent No.1 did not approach Respondent No. 2- College for admission, especially after paying the University Fee on 29.07.2020. The last date for admission to the PG Medical Courses for the academic year 2020-2021 was extended from 30.07.2020 to 30.08.2020. Respondent No.5 was granted admission on 11.08.2020 to the seat which was provisionally allotted to Respondent No.1. He is 2000 ranks below Respondent No.1. There is nothing on record to show that Respondent No. 2-College followed the procedure prescribed by the Regulations for filling up the seat due to non-joining. As the last date for admission has been extended beyond 30.07.2020, there was sufficient time for Respondent No.2-College to have intimated Respondent No.1 to come and join in the seat that was allotted to her provisionally. In case of refusal by Respondent No.1 to join, it was incumbent upon Respondent No.2-College to have followed the merit list and offered the seat to doctors who were immediately ranked below Respondent No.1. The manner in which Respondent No.2-College acted in depriving admission to Respondent No.1 and giving admission to Respondent No.5 on 11.08.2020 is deplorable. The Managements of the Medical Colleges are not expected to indulge in such illegalities in making admissions to Medical Courses.It has been repeatedly held by this Court that directions cannot be issued for increasing annual intake capacity and to create seats. The annual intake capacity is fixed by the Medical Council of India (now National Medical Commission) which has to be strictly adhered. Admissions to Medical Colleges cannot be permitted to be made beyond the sanctioned annual intake capacity of a medical college as has been repeatedly held by this Court.This Court in S. Krishna Sradha (supra) had occasion to consider the nature of relief to be granted to a student after the last date of admissions in case it is found that he or she was denied admission illegally. The conflicting in the judgments of this Court in Asha v. Pt. D.B. Sharma University of Health Sciences & Ors. (2012) 7 SCC 389 and Chandigarh Administration & Anr. v. Jasmine Kaur & Ors. (2014) 10 SCC 521 was resolved by this Court in the judgment of S. Krishna Sradha (supra). In the case of Asha (supra), it was held by this Court that the rule of merit for preference of medical courses and colleges admits no exception and that the said rule has to be followed strictly and without demur. The last date for admissions has to be strictly followed except in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency. In such cases, admission can be granted by courts even after the last date. A contrary view was taken in Jasmine Kaur case (supra) wherein this Court was of the opinion that a student is only entitled to a compensation in cases of illegal denial of admission and no admission can be directed after the last date. In S. Krishna Sradha case (supra), this Court held as follows:33. In light of the discussion/observations made hereinabove, a meritorious candidate/student who has been denied an admission in MBBS Course illegally or irrationally by the authorities for no fault of his/her and who has approached the Court in time and so as to see that such a meritorious candidate may not have to suffer for no fault of his/her, we answer the reference as under:(i) That in a case where candidate/student has approached the court at the earliest and without any delay and that the question is with respect to the admission in medical course all the efforts shall be made by the concerned court to dispose of the proceedings by giving priority and at the earliest.(ii) Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate and the candidate has pursued his/her legal right expeditiously without any delay and there is fault only on the part of the authorities and/or there is apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right of equality and equal treatment to the competing candidates and if the time schedule prescribed - 30th September, is over, to do the complete justice, the Court under exceptional circumstances and in rarest of rare cases direct the admission in the same year by directing to increase the seats, however, it should not be more than one or two seats and such admissions can be ordered within reasonable time, i.e., within one month from 30th September, i.e., cut off date and under no circumstances, the Court shall order any Admission in the same year beyond 30th October. However, it is observed that such relief can be granted only in exceptional circumstances and in the rarest of rare cases. In case of such an eventuality, the Court may also pass an order cancelling the admission given to a candidate who is at the bottom of the merit list of the category who, if the admission would have been given to a more meritorious candidate who has been denied admission illegally, would not have got the admission, if the Court deems it fit and proper, however, after giving an opportunity of hearing to a student whose admission is sought to be cancelled.(iii) In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate/student has approached the court at the earliest and without any delay, the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management was at fault and wrongly denied the admission to the meritorious candidate, in that case, the Court may direct to reduce the number of seats in the management quota of that year, meaning thereby the student/students who was/were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the management quota.(iv) Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore, in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year.(v) It is clarified that the aforesaid directions pertain for Admission in MBBS Course only and we have not dealt with Post Graduate Medical Course.11. As the dispute in S. Krishna Sradha case (supra) pertained to admission to the undergraduate MBBS Course, this Court held that they have not dealt with the Post Graduate Medical Courses. Mr. Parameshwar argued that there is no reason why the logic behind the judgment in S. Krishna Sradha case (supra) should not be made applicable to Post Graduate Courses. We find force in the said argument of Mr. Parameshwar. This Court was only dealing with the admission to the MBBS Course for which reason directions given in the said judgment were restricted to the MBBS Course. Directions issued in S. Krishna Sradha case (supra) can be made applicable to admission to Post Graduate Courses as well.

### 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: had occasion to consider the nature of relief to be granted to a student after the last date of admissions in case it is found that he or she was denied admission illegally. The conflicting in the judgments of this Court in Asha v. Pt. D.B. Sharma University of Health Sciences & Ors. (2012) 7 SCC 389 and Chandigarh Administration & Anr. v. Jasmine Kaur & Ors. (2014) 10 SCC 521 was resolved by this Court in the judgment of S. Krishna Sradha (supra). In the case of Asha (supra), it was held by this Court that the rule of merit for preference of medical courses and colleges admits no exception and that the said rule has to be followed strictly and without demur. The last date for admissions has to be strictly followed except in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency. In such cases, admission can be granted by courts even after the last date. A contrary view was taken in Jasmine Kaur case (supra) wherein this Court was of the opinion that a student is only entitled to a compensation in cases of illegal denial of admission and no admission can be directed after the last date. In S. Krishna Sradha case (supra), this Court held as follows: 33. In light of the discussion/observations made hereinabove, a meritorious candidate/student who has been denied an admission in MBBS Course illegally or irrationally by the authorities for no fault of his/her and who has approached the Court in time and so as to see that such a meritorious candidate may not have to suffer for no fault of his/her, we answer the reference as under: (i) That in a case where candidate/student has approached the court at the earliest and without any delay and that the question is with respect to the admission in medical course all the efforts shall be made by the concerned court to dispose of the proceedings by giving priority and at the earliest. (ii) Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate and the candidate has pursued his/her legal right expeditiously without any delay and there is fault only on the part of the authorities and/or there is apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right of equality and equal treatment to the competing candidates and if the time schedule prescribed - 30th September, is over, to do the complete justice, the Court under exceptional circumstances and in rarest of rare cases direct the admission in the same year by directing to increase the seats, however, it should not be more than one or two seats and such admissions can be ordered within reasonable time, i.e., within one month from 30th September, i.e., cut off date and under no circumstances, the Court shall order any Admission in the same year beyond 30th October. However, it is observed that such relief can be granted only in exceptional circumstances and in the rarest of rare cases. In case of such an eventuality, the Court may also pass an order cancelling the admission given to a candidate who is at the bottom of the merit list of the category who, if the admission would have been given to a more meritorious candidate who has been denied admission illegally, would not have got the admission, if the Court deems it fit and proper, however, after giving an opportunity of hearing to a student whose admission is sought to be cancelled. (iii) In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate/student has approached the court at the earliest and without any delay, the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management was at fault and wrongly denied the admission to the meritorious candidate, in that case, the Court may direct to reduce the number of seats in the management quota of that year, meaning thereby the student/students who was/were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the management quota. (iv) Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore, in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year. (v) It is clarified that the aforesaid directions pertain for Admission in MBBS Course only and we have not dealt with Post Graduate Medical Course. 11. As the dispute in S. Krishna Sradha case (supra) pertained to admission to the undergraduate MBBS Course, this Court held that they have not dealt with the Post Graduate Medical Courses. Mr. Parameshwar argued that there is no reason why the logic behind the judgment in S. Krishna Sradha case (supra) should not be made applicable to Post Graduate Courses. We find force in the said argument of Mr. Parameshwar. This Court was only dealing with the admission to the MBBS Course for which reason directions given in the said judgment were restricted to the MBBS Course. Directions issued in S. Krishna Sradha case (supra) can be made applicable to admission to Post Graduate Courses as well. ### Response: 1

M/S N RAMACHANDRA REDDY Vs. THE STATE OF TELANGANA

of the tender conditions, in view of the dispute raised by the fourth respondent/writ petitioner and the report dated 30.05.2018, the Chief Engineer got re-verified from an independent authority by addressing to Superintendent Engineer, Karimnagar. In absence of any prescribed procedure for verification, it was fair on the part of the Chief Engineer to call for a report from an independent Superintending Engineer i.e. the Superintending Engineer, Karimnagar. There is no definite procedure for verification in the event of any complaint filed by any of the bidders, as contemplated under clause 22.6 of the tender conditions. The Division Bench has committed an error, in recording a finding that, calling for a report from the Superintending Engineer, Karimnagar, by the Chief Engineer, is not in accordance with the procedure. 34. Having regard to the nature of dispute, it was always open for the Chief Engineer to call for a report from an independent authority i.e. Superintending Engineer, Karimnagar. Such a procedure adopted by the Chief Engineer was fair and cannot be said to be either illegal or arbitrary. Such a report is made basis in the decision-making process, to open the bid of the appellant in Part-II. 35. In the case of Tata Cellular v. Union of India 1994(6) SCC 651, while considering the scope of judicial review, in matters relating to Government contracts-tenders, this Court has held that the States decision/action must be in consonance of Article 14 of the Constitution of India. The scope is confined to examine only the decision-making process and not the merits of the decision itself. It is specifically held that courts cannot sit as appellate court while exercising power of review in matters relating to contracts and tenders. 36. In the case of Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited and Another 2016(16) SCC 818, this Court found fault in the High Court, in interfering with the decision of the authority in a matter relating to contracts and tenders, without there being any mala fides or irrationality or perversity in the procedure adopted by the authorities. 37. In the case of Consortium of Titagarh Firema Adler v. Nagpur Metro Rail Corporation Ltd. 2017(7) SCC 486, while considering the scope of judicial review, in matters relating to power of contracts, this Court has held that exercise of power of judicial review is called for, if the approach is arbitrary or mala fide or procedure adopted is meant to favour someone. 38. Further, in the case of Municipal Corporation, Ujjain and Anr. v. BVG India Ltd. & Ors. 2018(5) SCC 462, this Court has held that, while considering the scope of judicial review, in matters relating to contracts, it is held that the same is restricted to decision-making process but not the decision itself. It is held that the High Court cannot act as appellate court to review tender evaluation and set aside the award of tender. 39. All the judgments referred above, support the case of the appellant, as much as, we are of the view that the procedure adopted by the tendering authority is fair, just and reasonable. In absence of any specific mala fides and grant of exemption from any essential conditions of tender, authorities have acted within their authority, as such, it cannot be construed either as a relaxation or violation of tender conditions. 40. The learned senior counsel, Sri Basant, appearing for the fourth respondent/writ petitioner, has relied on the judgments in the case of Poddar Steel Corporation v. Ganesh Engineering Works (1991)3 SCC 273 , BSN Joshi & SWons Ltd. v. Nmair Coal Services Ltd. and Ors (2006)11 SCC 548 Bakshi Security and Personnel Services Pvt. Ltd. v. Devkishan Computed Private Limited and Ors.(2016)8 SCC 446 Central Coalfields Limited and others v. SLL-SML and others (2016)8 SCC 622 , in support of his arguments that the essential clauses of a tender should be enforced strictly and no deviation is permissible under law. 41. We are of the view that the above said judgments have no application to the facts of this case, for the reason that, it is not a case of violation of any tender conditions. Further, pleading that no case is made out by the appellant for interference under Article 136 of the Constitution of India, learned counsel, in support of his argument, has relied on judgment in the case of Pritam Singh v. State AIR 1950 SC 169 ; Penu Balakrishna Iyer & Ors. v. Ariya M. Ramaswamy Iyer & Ors. AIR 1965 SC 195 ; Shaikh Ali Hossain & Ors. v. Shaikh Showkat Ali & Anr. (2008)8 SCC 180 . 42. With reference to the same, it is to be noticed that the power conferred on this Court, under Article 136 of the Constitution of India, is the corrective jurisdiction to settle the law. Further, it is to be noticed that when the learned Single Judge of the High Court has found that the process of re-verification done by the Chief Engineer, on the dispute in question, is fair and acceptable for arriving at a decision, but the Division Bench has set aside such order, only on the ground that the report is called for from the Superintending Engineer, Karimnagar, who is not the concerned Engineer, as per the procedure. In absence of any prescribed procedure to deal with complaints, it was fair on the part of the Chief Engineer, in calling a report from the independent authority, other than the jurisdictional officers. As the issue does not relate to strict construction of territorial jurisdiction, it is always open for the decision-making authority, to have a report from the independent authority, to arrive at the just decision. 43. Further, in the case of Management of Narendra & Company Pvt. Ltd. v. Workmen of Narendra & Company (2016) 3 SCC 340 , while considering the scope of the intra court appeal, this Court has held that, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same.

1[ds]31. From a reading of the impugned order, it appears that the Division Bench has reversed the order of the learned Single Judge, only on the ground that the report received from the Superintending Engineer, Karimnagar, is not in accordance with the procedure. The Division Bench of the High Court has also held that the Chief Engineer had stepped out of his jurisdiction, when he called a report from the Superintending Engineer, Karimnagar32. We are not convinced, with such a view, as expressed above, by the Division Bench of the High Court. First of all, it is to be noticed that there is no dispute that appellant owns a Hot Mix Plant, as required in the tender conditions. It is his specific case that the location of such Hot Mix Plant is within 100 kilometers, as required. It is true that when a complaint is made by the fourth respondent/writ petitioner, it was found that the distance is 101.50 kilometers from one route and 99.90 kilometers from the other route. From the alternate route, shown in the report dated 30.05.2018, submitted by the Superintending Engineer, Warangal, it is at a distance less than 100 kilometers33. We find nothing wrong in the first report, mentioning the distance from the alternate route. In view of such discrepancy in the report, the Chief Engineer has further called for a report from the Superintending Engineer, Karimnagar, an independent authority, who has further, after re-verification, submitted a report dated 04.07.2018, stating that the distance is only 98.1 kilometers. To make sure whether the plant of the appellant is within the distance of 100 kilometers or not, in compliance of the tender conditions, in view of the dispute raised by the fourth respondent/writ petitioner and the report dated 30.05.2018, the Chief Engineer got re-verified from an independent authority by addressing to Superintendent Engineer, Karimnagar. In absence of any prescribed procedure for verification, it was fair on the part of the Chief Engineer to call for a report from an independent Superintending Engineer i.e. the Superintending Engineer, Karimnagar. There is no definite procedure for verification in the event of any complaint filed by any of the bidders, as contemplated under clause 22.6 of the tender conditions. The Division Bench has committed an error, in recording a finding that, calling for a report from the Superintending Engineer, Karimnagar, by the Chief Engineer, is not in accordance with the procedure34. Having regard to the nature of dispute, it was always open for the Chief Engineer to call for a report from an independent authority i.e. Superintending Engineer, Karimnagar. Such a procedure adopted by the Chief Engineer was fair and cannot be said to be either illegal or arbitrary. Such a report is made basis in the decision-making process, to open the bid of the appellant in Part-II39. All the judgments referred above, support the case of the appellant, as much as, we are of the view that the procedure adopted by the tendering authority is fair, just and reasonable. In absence of any specific mala fides and grant of exemption from any essential conditions of tender, authorities have acted within their authority, as such, it cannot be construed either as a relaxation or violation of tender conditions40. The learned senior counsel, Sri Basant, appearing for the fourth respondent/writ petitioner, has relied on the judgments in the case of Poddar Steel Corporation v. Ganesh Engineering Works (1991)3 SCC 273 , BSN Joshi & SWons Ltd. v. Nmair Coal Services Ltd. and Ors (2006)11 SCC 548 Bakshi Security and Personnel Services Pvt. Ltd. v. Devkishan Computed Private Limited and Ors.(2016)8 SCC 446 Central Coalfields Limited and others v. SLL-SML and others (2016)8 SCC 622 , in support of his arguments that the essential clauses of a tender should be enforced strictly and no deviation is permissible under law41. We are of the view that the above said judgments have no application to the facts of this case, for the reason that, it is not a case of violation of any tender conditions. Further, pleading that no case is made out by the appellant for interference under Article 136 of the Constitution of India, learned counsel, in support of his argument, has relied on judgment in the case of Pritam Singh v. State AIR 1950 SC 169 ; Penu Balakrishna Iyer & Ors. v. Ariya M. Ramaswamy Iyer & Ors. AIR 1965 SC 195 ; Shaikh Ali Hossain & Ors. v. Shaikh Showkat Ali & Anr. (2008)8 SCC 180 42. With reference to the same, it is to be noticed that the power conferred on this Court, under Article 136 of the Constitution of India, is the corrective jurisdiction to settle the law. Further, it is to be noticed that when the learned Single Judge of the High Court has found that the process of re-verification done by the Chief Engineer, on the dispute in question, is fair and acceptable for arriving at a decision, but the Division Bench has set aside such order, only on the ground that the report is called for from the Superintending Engineer, Karimnagar, who is not the concerned Engineer, as per the procedure. In absence of any prescribed procedure to deal with complaints, it was fair on the part of the Chief Engineer, in calling a report from the independent authority, other than the jurisdictional officers. As the issue does not relate to strict construction of territorial jurisdiction, it is always open for the decision-making authority, to have a report from the independent authority, to arrive at the just decision43. Further, in the case of Management of Narendra & Company Pvt. Ltd. v. Workmen of Narendra & Company (2016) 3 SCC 340 , while considering the scope of the intra court appeal, this Court has held that, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: of the tender conditions, in view of the dispute raised by the fourth respondent/writ petitioner and the report dated 30.05.2018, the Chief Engineer got re-verified from an independent authority by addressing to Superintendent Engineer, Karimnagar. In absence of any prescribed procedure for verification, it was fair on the part of the Chief Engineer to call for a report from an independent Superintending Engineer i.e. the Superintending Engineer, Karimnagar. There is no definite procedure for verification in the event of any complaint filed by any of the bidders, as contemplated under clause 22.6 of the tender conditions. The Division Bench has committed an error, in recording a finding that, calling for a report from the Superintending Engineer, Karimnagar, by the Chief Engineer, is not in accordance with the procedure. 34. Having regard to the nature of dispute, it was always open for the Chief Engineer to call for a report from an independent authority i.e. Superintending Engineer, Karimnagar. Such a procedure adopted by the Chief Engineer was fair and cannot be said to be either illegal or arbitrary. Such a report is made basis in the decision-making process, to open the bid of the appellant in Part-II. 35. In the case of Tata Cellular v. Union of India 1994(6) SCC 651, while considering the scope of judicial review, in matters relating to Government contracts-tenders, this Court has held that the States decision/action must be in consonance of Article 14 of the Constitution of India. The scope is confined to examine only the decision-making process and not the merits of the decision itself. It is specifically held that courts cannot sit as appellate court while exercising power of review in matters relating to contracts and tenders. 36. In the case of Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited and Another 2016(16) SCC 818, this Court found fault in the High Court, in interfering with the decision of the authority in a matter relating to contracts and tenders, without there being any mala fides or irrationality or perversity in the procedure adopted by the authorities. 37. In the case of Consortium of Titagarh Firema Adler v. Nagpur Metro Rail Corporation Ltd. 2017(7) SCC 486, while considering the scope of judicial review, in matters relating to power of contracts, this Court has held that exercise of power of judicial review is called for, if the approach is arbitrary or mala fide or procedure adopted is meant to favour someone. 38. Further, in the case of Municipal Corporation, Ujjain and Anr. v. BVG India Ltd. & Ors. 2018(5) SCC 462, this Court has held that, while considering the scope of judicial review, in matters relating to contracts, it is held that the same is restricted to decision-making process but not the decision itself. It is held that the High Court cannot act as appellate court to review tender evaluation and set aside the award of tender. 39. All the judgments referred above, support the case of the appellant, as much as, we are of the view that the procedure adopted by the tendering authority is fair, just and reasonable. In absence of any specific mala fides and grant of exemption from any essential conditions of tender, authorities have acted within their authority, as such, it cannot be construed either as a relaxation or violation of tender conditions. 40. The learned senior counsel, Sri Basant, appearing for the fourth respondent/writ petitioner, has relied on the judgments in the case of Poddar Steel Corporation v. Ganesh Engineering Works (1991)3 SCC 273 , BSN Joshi & SWons Ltd. v. Nmair Coal Services Ltd. and Ors (2006)11 SCC 548 Bakshi Security and Personnel Services Pvt. Ltd. v. Devkishan Computed Private Limited and Ors.(2016)8 SCC 446 Central Coalfields Limited and others v. SLL-SML and others (2016)8 SCC 622 , in support of his arguments that the essential clauses of a tender should be enforced strictly and no deviation is permissible under law. 41. We are of the view that the above said judgments have no application to the facts of this case, for the reason that, it is not a case of violation of any tender conditions. Further, pleading that no case is made out by the appellant for interference under Article 136 of the Constitution of India, learned counsel, in support of his argument, has relied on judgment in the case of Pritam Singh v. State AIR 1950 SC 169 ; Penu Balakrishna Iyer & Ors. v. Ariya M. Ramaswamy Iyer & Ors. AIR 1965 SC 195 ; Shaikh Ali Hossain & Ors. v. Shaikh Showkat Ali & Anr. (2008)8 SCC 180 . 42. With reference to the same, it is to be noticed that the power conferred on this Court, under Article 136 of the Constitution of India, is the corrective jurisdiction to settle the law. Further, it is to be noticed that when the learned Single Judge of the High Court has found that the process of re-verification done by the Chief Engineer, on the dispute in question, is fair and acceptable for arriving at a decision, but the Division Bench has set aside such order, only on the ground that the report is called for from the Superintending Engineer, Karimnagar, who is not the concerned Engineer, as per the procedure. In absence of any prescribed procedure to deal with complaints, it was fair on the part of the Chief Engineer, in calling a report from the independent authority, other than the jurisdictional officers. As the issue does not relate to strict construction of territorial jurisdiction, it is always open for the decision-making authority, to have a report from the independent authority, to arrive at the just decision. 43. Further, in the case of Management of Narendra & Company Pvt. Ltd. v. Workmen of Narendra & Company (2016) 3 SCC 340 , while considering the scope of the intra court appeal, this Court has held that, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same. ### Response: 1

Sri Srinivas K Gouda Vs. Karnataka Institute of Medical Sciences & Ors

Selection Committee on differentiating between work experience in a private and government institute was that those who had worked in a government institute would be more suitable for the post due to the similarity of working conditions owing to the fact that the first respondent is a government medical institution. 16. It is in this background that we need to determine whether the marks allotted to the appellant in the category of experience and personality are arbitrary. The appellant at the time of submitting the application had a one year work experience in Babuji Medical College, Devanagere (a private institution) and three years of work experience with the first respondent. On the other hand, the respondent at the time of the application, had six months experience of working under a doctor who was undertaking private practice. Not only did the appellant have more years of work experience, he had work experience in a governmental institution. Hence, the marks awarded to the third respondent and the appellant bore a nexus to the yardstick determined by the Selection Committee. It is not the case of the third respondent that the appellant was given more marks for experience despite having less work experience. On a comparison of the marks allotted to both the candidates with reference to the yardstick determined by the Selection Committee, no mala fides could be imputed to the Selection Committee. Nor is there an obvious or glaring error or perversity. The Court does not sit in appeal over the decision of the Selection Committee. 17. During the course of his submissions, counsel for the third respondent referred to the judgments of this Court in K Manjusree v. State of Andhra Pradesh (2008) 3 SCC 512 and Bishnu Biswas v. Union of India (2014) 5 SCC 774 . In K Manjusree, in issue was the selection of candidates to ten posts of District and Sessions Judge (Grade II) in the Andhra Pradesh State Higher Judicial Service. The first merit list was prepared by cumulating the marks obtained in the written examination out of hundred and the interview marks out of twenty five. However, when the merit list was placed before the committee, the list was sent back for reconsideration on the ground that the marks for the written test were to be converted to eighty five. Further, the committee also introduced a minimum mark qualification for the interview. Therefore, the ratio of written (examination) and oral (interview) marks was changed from 4:1 to 3:1 and an additional requirement of minimum marks for the interview was introduced. This was challenged by candidates who were in the first merit list but were left out in the second merit list. The change in the ratio of marks from 4:1 to 3:1 was upheld by this Court on the ground that the resolution of the committee was misinterpreted while publishing the first merit list based on the 4:1 ratio. However, the Court held that the prescription of minimum marks for interview was illegal since such an additional requirement was prescribed after the commencement of the selection process. In this regard, Justice Raveendran writing for a three judge Bench observed: 33. […] We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for the written examination and interviews, or prescribe minimum marks for written exam but not for the interview[…]. But if the Selection Committee wants to prescribe minimum marks, it should do so before the commencement of selection process. If the Selection Committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement.[…]. 18. In Bishnu Biswas (supra), the rules had provided that candidates for eight Group D posts would be selected based on the written exam of fifty marks. However, after the written exam was held, a press notice was issued calling successful candidates for an interview for which fifty marks were allotted. Referring to various judgments of this Court including Manjusree (supra), the selection list was quashed on the ground that the rules of the game (by including the interview component) had changed after the selection process was initiated. 19. As we have noted earlier, the respondent had not challenged the selection list or the inclusion of the experience and the interview component for the determination of the merit list in the Writ Petition but had only sought his appointment within the criteria prescribed. Hence, the reliance placed by the respondent on Bishnu Biswas and Manjusree would not aid the case of the third respondent. 20. The Division Bench of the High Court set aside the appointment of the appellant on two grounds. First, the marks provided for candidates at the interview and for experience category were held to be arbitrary. To arrive at this conclusion, the Division Bench referred to the entire select list and found alleged discrepancies in the allotment of the marks for experience and a pattern where all the selected candidates were given higher marks for experience and at the interview. Second, the Division Bench held that the advertisement issued by the first respondent did not mention the criterion of work experience but only provided the minimum educational qualifications. Thus, it held that the rules of the game were changed after the process had started. The appointment of the appellant was set aside by the Division Bench by finding that the additional selection criteria devised and the marks provided in those criteria were arbitrary. As observed earlier, the selection list was not challenged by the respondent. His only ground for challenge was that he had to be selected since he was more meritorious as he had better qualifying marks. Therefore, determining the legality of the selection list and perusing the entire selection list to determine whether the selection of the appellant was arbitrary was erroneous as the Division Bench transgressed the limits of challenge in the writ petition.

1[ds]The third respondent did not challenge the entire selection list dated 20 April 2009. He challenged the appellants selection and sought a direction for his appointment in place of the appellant. The third respondent did not challenge the entire selection since he and the appellant had applied under the same category, namely Category 1 – OBC. The basis of the claim of the third respondent to the post was that since he had secured higher marks as compared to the appellant in the qualifying examination in the Lab Technicians course, he ought to have been selected for the post.Since the order of the Single Judge in Nagaraj has not been appealed, it has attained finality and thus the marks allotted to candidates in other categories cannot be scrutinised to cast doubt on the selection in Category 1.The appellant at the time of submitting the application had a one year work experience in Babuji Medical College, Devanagere (a private institution) and three years of work experience with the first respondent. On the other hand, the respondent at the time of the application, had six months experience of working under a doctor who was undertaking private practice. Not only did the appellant have more years of work experience, he had work experience in a governmental institution. Hence, the marks awarded to the third respondent and the appellant bore a nexus to the yardstick determined by the Selection Committee. It is not the case of the third respondent that the appellant was given more marks for experience despite having less work experience. On a comparison of the marks allotted to both the candidates with reference to the yardstick determined by the Selection Committee, no mala fides could be imputed to the Selection Committee. Nor is there an obvious or glaring error or perversity. The Court does not sit in appeal over the decision of the Selection Committee.In K Manjusree, in issue was the selection of candidates to ten posts of District and Sessions Judge (Grade II) in the Andhra Pradesh State Higher Judicial Service. The first merit list was prepared by cumulating the marks obtained in the written examination out of hundred and the interview marks out of twenty five. However, when the merit list was placed before the committee, the list was sent back for reconsideration on the ground that the marks for the written test were to be converted to eighty five. Further, the committee also introduced a minimum mark qualification for the interview. Therefore, the ratio of written (examination) and oral (interview) marks was changed from 4:1 to 3:1 and an additional requirement of minimum marks for the interview was introduced. This was challenged by candidates who were in the first merit list but were left out in the second merit list. The change in the ratio of marks from 4:1 to 3:1 was upheld by this Court on the ground that the resolution of the committee was misinterpreted while publishing the first merit list based on the 4:1 ratio. However, the Court held that the prescription of minimum marks for interview was illegal since such an additional requirement was prescribed after the commencement of the selection process. In this regard, Justice Raveendran writing for a three judge Bench observed:33. […] We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for the written examination and interviews, or prescribe minimum marks for written exam but not for the interview[…]. But if the Selection Committee wants to prescribe minimum marks, it should do so before the commencement of selection process. If the Selection Committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement.[…].18. In Bishnu Biswas (supra), the rules had provided that candidates for eight Group D posts would be selected based on the written exam of fifty marks. However, after the written exam was held, a press notice was issued calling successful candidates for an interview for which fifty marks were allotted. Referring to various judgments of this Court including Manjusree (supra), the selection list was quashed on the ground that the rules of the game (by including the interview component) had changed after the selection process was initiated.19. As we have noted earlier, the respondent had not challenged the selection list or the inclusion of the experience and the interview component for the determination of the merit list in the Writ Petition but had only sought his appointment within the criteria prescribed. Hence, the reliance placed by the respondent on Bishnu Biswas and Manjusree would not aid the case of the third respondent.20. The Division Bench of the High Court set aside the appointment of the appellant on two grounds. First, the marks provided for candidates at the interview and for experience category were held to be arbitrary. To arrive at this conclusion, the Division Bench referred to the entire select list and found alleged discrepancies in the allotment of the marks for experience and a pattern where all the selected candidates were given higher marks for experience and at the interview. Second, the Division Bench held that the advertisement issued by the first respondent did not mention the criterion of work experience but only provided the minimum educational qualifications. Thus, it held that the rules of the game were changed after the process had started. The appointment of the appellant was set aside by the Division Bench by finding that the additional selection criteria devised and the marks provided in those criteria were arbitrary. As observed earlier, the selection list was not challenged by the respondent. His only ground for challenge was that he had to be selected since he was more meritorious as he had better qualifying marks. Therefore, determining the legality of the selection list and perusing the entire selection list to determine whether the selection of the appellant was arbitrary was erroneous as the Division Bench transgressed the limits of challenge in the writ petition.

### 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: Selection Committee on differentiating between work experience in a private and government institute was that those who had worked in a government institute would be more suitable for the post due to the similarity of working conditions owing to the fact that the first respondent is a government medical institution. 16. It is in this background that we need to determine whether the marks allotted to the appellant in the category of experience and personality are arbitrary. The appellant at the time of submitting the application had a one year work experience in Babuji Medical College, Devanagere (a private institution) and three years of work experience with the first respondent. On the other hand, the respondent at the time of the application, had six months experience of working under a doctor who was undertaking private practice. Not only did the appellant have more years of work experience, he had work experience in a governmental institution. Hence, the marks awarded to the third respondent and the appellant bore a nexus to the yardstick determined by the Selection Committee. It is not the case of the third respondent that the appellant was given more marks for experience despite having less work experience. On a comparison of the marks allotted to both the candidates with reference to the yardstick determined by the Selection Committee, no mala fides could be imputed to the Selection Committee. Nor is there an obvious or glaring error or perversity. The Court does not sit in appeal over the decision of the Selection Committee. 17. During the course of his submissions, counsel for the third respondent referred to the judgments of this Court in K Manjusree v. State of Andhra Pradesh (2008) 3 SCC 512 and Bishnu Biswas v. Union of India (2014) 5 SCC 774 . In K Manjusree, in issue was the selection of candidates to ten posts of District and Sessions Judge (Grade II) in the Andhra Pradesh State Higher Judicial Service. The first merit list was prepared by cumulating the marks obtained in the written examination out of hundred and the interview marks out of twenty five. However, when the merit list was placed before the committee, the list was sent back for reconsideration on the ground that the marks for the written test were to be converted to eighty five. Further, the committee also introduced a minimum mark qualification for the interview. Therefore, the ratio of written (examination) and oral (interview) marks was changed from 4:1 to 3:1 and an additional requirement of minimum marks for the interview was introduced. This was challenged by candidates who were in the first merit list but were left out in the second merit list. The change in the ratio of marks from 4:1 to 3:1 was upheld by this Court on the ground that the resolution of the committee was misinterpreted while publishing the first merit list based on the 4:1 ratio. However, the Court held that the prescription of minimum marks for interview was illegal since such an additional requirement was prescribed after the commencement of the selection process. In this regard, Justice Raveendran writing for a three judge Bench observed: 33. […] We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for the written examination and interviews, or prescribe minimum marks for written exam but not for the interview[…]. But if the Selection Committee wants to prescribe minimum marks, it should do so before the commencement of selection process. If the Selection Committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement.[…]. 18. In Bishnu Biswas (supra), the rules had provided that candidates for eight Group D posts would be selected based on the written exam of fifty marks. However, after the written exam was held, a press notice was issued calling successful candidates for an interview for which fifty marks were allotted. Referring to various judgments of this Court including Manjusree (supra), the selection list was quashed on the ground that the rules of the game (by including the interview component) had changed after the selection process was initiated. 19. As we have noted earlier, the respondent had not challenged the selection list or the inclusion of the experience and the interview component for the determination of the merit list in the Writ Petition but had only sought his appointment within the criteria prescribed. Hence, the reliance placed by the respondent on Bishnu Biswas and Manjusree would not aid the case of the third respondent. 20. The Division Bench of the High Court set aside the appointment of the appellant on two grounds. First, the marks provided for candidates at the interview and for experience category were held to be arbitrary. To arrive at this conclusion, the Division Bench referred to the entire select list and found alleged discrepancies in the allotment of the marks for experience and a pattern where all the selected candidates were given higher marks for experience and at the interview. Second, the Division Bench held that the advertisement issued by the first respondent did not mention the criterion of work experience but only provided the minimum educational qualifications. Thus, it held that the rules of the game were changed after the process had started. The appointment of the appellant was set aside by the Division Bench by finding that the additional selection criteria devised and the marks provided in those criteria were arbitrary. As observed earlier, the selection list was not challenged by the respondent. His only ground for challenge was that he had to be selected since he was more meritorious as he had better qualifying marks. Therefore, determining the legality of the selection list and perusing the entire selection list to determine whether the selection of the appellant was arbitrary was erroneous as the Division Bench transgressed the limits of challenge in the writ petition. ### Response: 1

Commr.Of Income Tax,Rajkot Vs. Govindbhai Mamaiya

even the income which is earned in the form of interest is not because of any business venture of the three assessees but it is the result of the act of the Government in compulsorily acquiring the said land. In these circumstances, the case is squarely covered by the ratio of the judgment laid down in Meera & Company (supra) inasmuch as it is not a case where any “Association of Persons” was formed by volition of the parties for the purpose of generation of income. This basic test to determine the status of AoP is absent in the present case. 7. Insofar as the second question is concerned, that is also covered by another judgment of this Court in Commissioner of Income Tax, Faridabad vs. Ghanshyam (HUF) reported in (2009) 8 SCC 412 , albeit, in favour of the Revenue. In that case, the court drew distinction between the “interest” earned under Section 28 of the Land Acquisition Act and the “interest” which is under Section 34 of the said Act. The Court clarified that whereas compensation given to the assessee of the land acquired would be income, the enhanced compensation/consideration becomes income by virtue of Section 45(5)(b) of the Income Tax Act. The question was whether it will cover “interest” and if so, what would be the year of taxability. The position in this respect is explained in paras 49 and 50 of the judgment which make the following reading: “49. As discussed hereinabove, Section 23(1-A) provides for additional amount. It takes care of the increase in the value at the rate of 12% per annum. Similarly, under Section 23(2) of the 1894 Act there is a provision for solatium which also represents part of the enhanced compensation.Similarly, Section 28 empowers the court in its discretion to award interest on the excess amount of compensation over and above what is awarded by the Collector. It includes additional amount under Section 23(1-A) and solatium under Section 23(2) of the said Act. Section 28 of the 1894 Act applies only in respect of the excess amount determined by the court after reference under Section 18 of the 1894 Act. It depends upon the claim, unlike interest under section 34 which depends on undue delay in making the award.50. It is true that “interest” is not compensation. It is equally true that Section 45(5) of the 1961 Act refers to compensation. But as discussed hereinabove, we have to go by the provisions of the 1894 Act which awards “interest” both as an accretion in the value of the lands acquired and interest for undue delay. Interest under Section 28 unlike interest under Section 34 is an accretion to the value, hence it is a part of enhanced compensation or consideration which is not the case with interest under Section 34 of the 1894 Act. So also additional amount under Section 23 (1-A) and solatium under Section 23(2) of the 1961 Act forms part of enhanced compensation under Section 45(5)(b) of the 1961 Act.” 8. It is clear from the above that whereas interest under Section 34 is not treated as a part of income subject to tax, the interest earned under Section 28, which is on enhanced compensation, is treated as a accretion to the value and therefore, part of the enhanced compensation or consideration making it exigible to tax. After holding that interest on enhanced compensation under Section 28 of 1894 Act is taxable, the Court dealt with the other aspect namely, the year of tax and answered this question by holding that it has to be tested on receipt basis, which means it would be taxed in the year in which it is received. It would mean that converse position i.e. spread over of this interest on accrual basis is not permissible. Here again, we would like to reproduce the discussion contained in paras 53 and 54 which gives the rational in coming to the said conclusion. Paras 53 and 54 read as under: “53. The scheme of Section 45(5) of the 1961 Act was inserted w.e.f. 1-4- 1988 as an overriding provision. As stated above, compensation under the L.A.Act, 1894, arises and is payable in multiple stages which does not happen in cases of transfers by sale, etc. Hence, the legislature had to step in and say that as and when the assessee claimant is in receipt of enhanced compensation it shall be treated as “deemed income” and taxed on receipt basis. Our above understanding is supported by insertion of clause (c) in Section 45(5) w.e.f. 1-4-2004 and Section 155(16) which refers to a situation of a subsequent reduction by the court, tribunal or other authority and recomputation/ amendment of the assessment order.54. Section 45 (5) read as a whole [including clause (c)] not only deals with reworking as urged on behalf of the assessee but also with the change in the full value of the consideration (computation) and since the enhanced compensation/consideration (including interest under Section 28 of the 1894 Act) becomes payable/ paid under the 1894 Act at different stages, the receipt of such enhanced compensation/ consideration is to be taxed in the year of receipt subject to adjustment, if any, under Section 155(16) of the 1961 Act, later on. Hence, the year in which enhanced compensation is received is the year of taxability. Consequently, even in cases where pending appeal, the court/tribunal/authority before which appeal is pending, permits the claimant to withdraw against security or otherwise the enhanced compensation (which is in dispute), the same is liable to be taxed under Section 45(5) of the 1961 Act. This is the scheme of Section 45(5) and Section 155(16) of the 1961 Act. We may clarify that even before the insertion of Section 45(5)(c) and Section 155(16) w.e.f. 1-4-2004, the receipt of enhanced compensation under Section 45(5)(b) was taxable in the year of receipt which is only reinforced by insertion of clause (c) because the right to receive payment under the 1894 Act is not in doubt.”

1[ds]8. It is clear from the above that whereas interest under Section 34 is not treated as a part of income subject to tax, the interest earned under Section 28, which is on enhanced compensation, is treated as a accretion to the value and therefore, part of the enhanced compensation or consideration making it exigible to tax. After holding that interest on enhanced compensation under Section 28 of 1894 Act is taxable, the Court dealt with the other aspect namely, the year of tax and answered this question by holding that it has to be tested on receipt basis, which means it would be taxed in the year in which it is received.Insofar as the second question is concerned, that is also covered by another judgment of this Court in Commissioner of Income Tax, Faridabad vs. Ghanshyam (HUF) reported in (2009) 8 SCC 412 , albeit, in favour of the Revenue. In that case, the court drew distinction between theearned under Section 28 of the Land Acquisition Act and thewhich is under Section 34 of the said Act. The Court clarified that whereas compensation given to the assessee of the land acquired would be income, the enhanced compensation/consideration becomes income by virtue of Section 45(5)(b) of the Income Tax Act. The question was whether it will coverand if so, what would be the year of taxability. The position in this respect is explained in paras 49 and 50 of the judgment which make the followingAs discussed hereinabove, Sectionprovides for additional amount. It takes care of the increase in the value at the rate of 12% per annum. Similarly, under Section 23(2) of the 1894 Act there is a provision for solatium which also represents part of the enhanced compensation.Similarly, Section 28 empowers the court in its discretion to award interest on the excess amount of compensation over and above what is awarded by the Collector. It includes additional amount under Sectionand solatium under Section 23(2) of the said Act. Section 28 of the 1894 Act applies only in respect of the excess amount determined by the court after reference under Section 18 of the 1894 Act. It depends upon the claim, unlike interest under section 34 which depends on undue delay in making the award.50. It is true thatis not compensation. It is equally true that Section 45(5) of the 1961 Act refers to compensation. But as discussed hereinabove, we have to go by the provisions of the 1894 Act which awardsboth as an accretion in the value of the lands acquired and interest for undue delay. Interest under Section 28 unlike interest under Section 34 is an accretion to the value, hence it is a part of enhanced compensation or consideration which is not the case with interest under Section 34 of the 1894 Act. So also additional amount under Section 23and solatium under Section 23(2) of the 1961 Act forms part of enhanced compensation under Section 45(5)(b) of the 1961

### 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: even the income which is earned in the form of interest is not because of any business venture of the three assessees but it is the result of the act of the Government in compulsorily acquiring the said land. In these circumstances, the case is squarely covered by the ratio of the judgment laid down in Meera & Company (supra) inasmuch as it is not a case where any “Association of Persons” was formed by volition of the parties for the purpose of generation of income. This basic test to determine the status of AoP is absent in the present case. 7. Insofar as the second question is concerned, that is also covered by another judgment of this Court in Commissioner of Income Tax, Faridabad vs. Ghanshyam (HUF) reported in (2009) 8 SCC 412 , albeit, in favour of the Revenue. In that case, the court drew distinction between the “interest” earned under Section 28 of the Land Acquisition Act and the “interest” which is under Section 34 of the said Act. The Court clarified that whereas compensation given to the assessee of the land acquired would be income, the enhanced compensation/consideration becomes income by virtue of Section 45(5)(b) of the Income Tax Act. The question was whether it will cover “interest” and if so, what would be the year of taxability. The position in this respect is explained in paras 49 and 50 of the judgment which make the following reading: “49. As discussed hereinabove, Section 23(1-A) provides for additional amount. It takes care of the increase in the value at the rate of 12% per annum. Similarly, under Section 23(2) of the 1894 Act there is a provision for solatium which also represents part of the enhanced compensation.Similarly, Section 28 empowers the court in its discretion to award interest on the excess amount of compensation over and above what is awarded by the Collector. It includes additional amount under Section 23(1-A) and solatium under Section 23(2) of the said Act. Section 28 of the 1894 Act applies only in respect of the excess amount determined by the court after reference under Section 18 of the 1894 Act. It depends upon the claim, unlike interest under section 34 which depends on undue delay in making the award.50. It is true that “interest” is not compensation. It is equally true that Section 45(5) of the 1961 Act refers to compensation. But as discussed hereinabove, we have to go by the provisions of the 1894 Act which awards “interest” both as an accretion in the value of the lands acquired and interest for undue delay. Interest under Section 28 unlike interest under Section 34 is an accretion to the value, hence it is a part of enhanced compensation or consideration which is not the case with interest under Section 34 of the 1894 Act. So also additional amount under Section 23 (1-A) and solatium under Section 23(2) of the 1961 Act forms part of enhanced compensation under Section 45(5)(b) of the 1961 Act.” 8. It is clear from the above that whereas interest under Section 34 is not treated as a part of income subject to tax, the interest earned under Section 28, which is on enhanced compensation, is treated as a accretion to the value and therefore, part of the enhanced compensation or consideration making it exigible to tax. After holding that interest on enhanced compensation under Section 28 of 1894 Act is taxable, the Court dealt with the other aspect namely, the year of tax and answered this question by holding that it has to be tested on receipt basis, which means it would be taxed in the year in which it is received. It would mean that converse position i.e. spread over of this interest on accrual basis is not permissible. Here again, we would like to reproduce the discussion contained in paras 53 and 54 which gives the rational in coming to the said conclusion. Paras 53 and 54 read as under: “53. The scheme of Section 45(5) of the 1961 Act was inserted w.e.f. 1-4- 1988 as an overriding provision. As stated above, compensation under the L.A.Act, 1894, arises and is payable in multiple stages which does not happen in cases of transfers by sale, etc. Hence, the legislature had to step in and say that as and when the assessee claimant is in receipt of enhanced compensation it shall be treated as “deemed income” and taxed on receipt basis. Our above understanding is supported by insertion of clause (c) in Section 45(5) w.e.f. 1-4-2004 and Section 155(16) which refers to a situation of a subsequent reduction by the court, tribunal or other authority and recomputation/ amendment of the assessment order.54. Section 45 (5) read as a whole [including clause (c)] not only deals with reworking as urged on behalf of the assessee but also with the change in the full value of the consideration (computation) and since the enhanced compensation/consideration (including interest under Section 28 of the 1894 Act) becomes payable/ paid under the 1894 Act at different stages, the receipt of such enhanced compensation/ consideration is to be taxed in the year of receipt subject to adjustment, if any, under Section 155(16) of the 1961 Act, later on. Hence, the year in which enhanced compensation is received is the year of taxability. Consequently, even in cases where pending appeal, the court/tribunal/authority before which appeal is pending, permits the claimant to withdraw against security or otherwise the enhanced compensation (which is in dispute), the same is liable to be taxed under Section 45(5) of the 1961 Act. This is the scheme of Section 45(5) and Section 155(16) of the 1961 Act. We may clarify that even before the insertion of Section 45(5)(c) and Section 155(16) w.e.f. 1-4-2004, the receipt of enhanced compensation under Section 45(5)(b) was taxable in the year of receipt which is only reinforced by insertion of clause (c) because the right to receive payment under the 1894 Act is not in doubt.” ### Response: 1

Skyline Education Institute (Pvt) Ltd Vs. S.L.Vaswani

that it is not a fit case for restraining the respondents from using the word `Skyline in the name of the institute established by them. It has not been disputed on behalf of the appellant that the word `Skyline is being used as trade name by various companies / organizations / business concerns and also for describing different types of institute/institutions. The voluminous record produced by the respondents before this Court shows that in India as many as 117 companies including computer and software companies and institutions are operating by using word `Skyline as part of their name/nomenclature. In United States of America, at least 10 educational/training institutions are operating with different names using `Skyline as the first word. In United Kingdom also two such institutions are operating. In view of this, it is not possible to agree with the learned counsel for the appellant that the Skyline is not a generic word but is a specific word and his client has right to use that word to the exclusion of others. 19. There is another reason for declining the appellants prayer for grant of temporary injunction. The appellant is shown to have started Skyline Business School in 1997 as one of its division but has conveniently not mentioned that it had started another institution under the aegis of Asian Educational Society housed in the same building where the appellant claims to have its registered office. After three years of starting Skyline Business School, the Director of the appellant vide his letter dated January 4, 2000 permitted the President, Asian Educational Society to use the trade mark Skyline Business School, name and the logo albeit without disclosing as to when Skyline Business School was registered under the Trademarks Act, 1999. Thereafter, Skyline Groups Asian Educational Society through its President, Shri Kamal Puri entered into an agreement dated 9.12.2001 with Manipal Academy of Higher Education (deemed university) for establishing a branch campus at Skyline Business School, Delhi. Sikkim Manipal University also approved Skyline Business School as a University Study Center for taking management programme under distance education despite the fact that the Skyline Business School is not recognized or approved by AICTE/UGC. In 1996, University of Oxford approved the appointment of a center in the premises of the appellant at Laxman Public School, Hauz Khas Enclave, New Delhi for Certification in Leisure Studies and in Travel and Tourism. In 1997, Skyline Business School entered into a Memorandum of Cooperation with University of Lincolnshire and Humberside, U.K. whereby the latter agreed to offer its BBA (Hons.) Tourism course through a center established at the appellants campus. In large number of advertisements issued in the name of the appellant or Skyline Business School, it has not been made clear that they are neither approved nor recognized by any of the statutory bodies like, AICTE, UGC, etc. Of course, in some of advertisements, it has been mentioned that the degrees/diplomas purported to be awarded by the Skyline Business School are not recognized by Government of India, State Government, UGC/AICTE. All this lends sufficient credibility to the observations made by the Division Bench of the High Court that the present litigation is to have more commerce in education and less education in commerce and gives an impression that functioning of the appellant is shrouded in mystery and those seeking admission in the courses organised by it may find themselves in serious trouble at any given point of time because the degrees and diplomas awarded in the name of foreign universities are not recognised by statutory bodies/authorities in India. 20. Shri Sudhir Chandra may be right in his submission that even an unregistered prior user of a name can institute action for passing off and seek injunction against the subsequent user of the same name by proving that misrepresentation by the defendant to the public that the goods/services offered by him are that of the plaintiff and such misrepresentation has caused harm to the goodwill and reputation of the plaintiff or the plaintiff demonstrates that it has suffered loss due to such representation, but, in view of our conclusion that the appellant has failed to make out a case for interference with the discretion exercised by the High Court not to entertain its prayer for temporary injunction, we do not find any valid ground to entertain and accept the argument of the learned senior counsel. For the same reason, we do not consider it necessary to discuss the judgments on which reliance has been placed by Shri Sudhir Chandra. 21. Although, during the pendency of the suit, the appellant got registration of trade marks `Skyline MEDALLIST under No. 795085 and `Skyline Institute under No. 795086 in class 16 and its prayer for amendment of the plaint was granted by the High Court on 24.8.2006, but, that by itself, is not sufficient for entertaining the appellants prayer for temporary injunction to restrain the respondents from using the word `Skyline as part of the Institute of Engineering and Technology established by them. 22. We may now advert to C.A. No. 1362/2005. The respondents grievance is that after having reached the conclusion that the learned Single Judge was not justified in restraining the respondents from starting new courses in business management, etc. and directing them to append a note in the advertisement that they are in no way related to the appellant, the Division Bench should have set aside all the directions impugned before it. We find merit in the contention of the respondents. When the Division Bench found that the learned Single Judge ought not to have given direction restraining the respondents from starting new courses in business management etc. and directed them to append a note in the advertisement that they are not related to the appellant, then it should have set aside the order of the learned Single Judge in its entirety. The omission on the part of the Division Bench of the High Court to do so calls for a corrective action by this Court.

0[ds]18. In our opinion, the findings recorded by the learned Single Judge and Division Bench on the crucial factors like prima facie case, balance of convenience and equity are based on a correct and balanced consideration of various facets of the case and it is not possible to find any fault with the conclusions recorded by them that it is not a fit case for restraining the respondents from using the word `Skyline in the name of the institute established by them. It has not been disputed on behalf of the appellant that the word `Skyline is being used as trade name by various companies / organizations / business concerns and also for describing different types of institute/institutions. The voluminous record produced by the respondents before this Court shows that in India as many as 117 companies including computer and software companies and institutions are operating by using word `Skyline as part of their name/nomenclature. In United States of America, at least 10 educational/training institutions are operating with different names using `Skyline as the first word. In United Kingdom also two such institutions are operating. In view of this, it is not possible to agree with the learned counsel for the appellant that the Skyline is not a generic word but is a specific word and his client has right to use that word to the exclusion of others19. There is another reason for declining the appellants prayer for grant of temporary injunction. The appellant is shown to have started Skyline Business School in 1997 as one of its division but has conveniently not mentioned that it had started another institution under the aegis of Asian Educational Society housed in the same building where the appellant claims to have its registered office. After three years of starting Skyline Business School, the Director of the appellant vide his letter dated January 4, 2000 permitted the President, Asian Educational Society to use the trade mark Skyline Business School, name and the logo albeit without disclosing as to when Skyline Business School was registered under the Trademarks Act, 1999. Thereafter, Skyline Groups Asian Educational Society through its President, Shri Kamal Puri entered into an agreement dated 9.12.2001 with Manipal Academy of Higher Education (deemed university) for establishing a branch campus at Skyline Business School, Delhi. Sikkim Manipal University also approved Skyline Business School as a University Study Center for taking management programme under distance education despite the fact that the Skyline Business School is not recognized or approved by AICTE/UGC. In 1996, University of Oxford approved the appointment of a center in the premises of the appellant at Laxman Public School, Hauz Khas Enclave, New Delhi for Certification in Leisure Studies and in Travel and Tourism. In 1997, Skyline Business School entered into a Memorandum of Cooperation with University of Lincolnshire and Humberside, U.K. whereby the latter agreed to offer its BBA (Hons.) Tourism course through a center established at the appellants campus. In large number of advertisements issued in the name of the appellant or Skyline Business School, it has not been made clear that they are neither approved nor recognized by any of the statutory bodies like, AICTE, UGC, etc. Of course, in some of advertisements, it has been mentioned that the degrees/diplomas purported to be awarded by the Skyline Business School are not recognized by Government of India, State Government, UGC/AICTE. All this lends sufficient credibility to the observations made by the Division Bench of the High Court that the present litigation is to have more commerce in education and less education in commerce and gives an impression that functioning of the appellant is shrouded in mystery and those seeking admission in the courses organised by it may find themselves in serious trouble at any given point of time because the degrees and diplomas awarded in the name of foreign universities are not recognised by statutory bodies/authorities in India20. Shri Sudhir Chandra may be right in his submission that even an unregistered prior user of a name can institute action for passing off and seek injunction against the subsequent user of the same name by proving that misrepresentation by the defendant to the public that the goods/services offered by him are that of the plaintiff and such misrepresentation has caused harm to the goodwill and reputation of the plaintiff or the plaintiff demonstrates that it has suffered loss due to such representation, but, in view of our conclusion that the appellant has failed to make out a case for interference with the discretion exercised by the High Court not to entertain its prayer for temporary injunction, we do not find any valid ground to entertain and accept the argument of the learned senior counsel. For the same reason, we do not consider it necessary to discuss the judgments on which reliance has been placed by Shri Sudhir Chandra21. Although, during the pendency of the suit, the appellant got registration of trade marks `Skyline MEDALLIST under No. 795085 and `Skyline Institute under No. 795086 in class 16 and its prayer for amendment of the plaint was granted by the High Court on 24.8.2006, but, that by itself, is not sufficient for entertaining the appellants prayer for temporary injunction to restrain the respondents from using the word `Skyline as part of the Institute of Engineering and Technology established by them22. We may now advert to C.A. No. 1362/2005. The respondents grievance is that after having reached the conclusion that the learned Single Judge was not justified in restraining the respondents from starting new courses in business management, etc. and directing them to append a note in the advertisement that they are in no way related to the appellant, the Division Bench should have set aside all the directions impugned before it. We find merit in the contention of the respondents. When the Division Bench found that the learned Single Judge ought not to have given direction restraining the respondents from starting new courses in business management etc. and directed them to append a note in the advertisement that they are not related to the appellant, then it should have set aside the order of the learned Single Judge in its entirety. The omission on the part of the Division Bench of the High Court to do so calls for a corrective action by this Court.

### Instruction: Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant? ### Input: that it is not a fit case for restraining the respondents from using the word `Skyline in the name of the institute established by them. It has not been disputed on behalf of the appellant that the word `Skyline is being used as trade name by various companies / organizations / business concerns and also for describing different types of institute/institutions. The voluminous record produced by the respondents before this Court shows that in India as many as 117 companies including computer and software companies and institutions are operating by using word `Skyline as part of their name/nomenclature. In United States of America, at least 10 educational/training institutions are operating with different names using `Skyline as the first word. In United Kingdom also two such institutions are operating. In view of this, it is not possible to agree with the learned counsel for the appellant that the Skyline is not a generic word but is a specific word and his client has right to use that word to the exclusion of others. 19. There is another reason for declining the appellants prayer for grant of temporary injunction. The appellant is shown to have started Skyline Business School in 1997 as one of its division but has conveniently not mentioned that it had started another institution under the aegis of Asian Educational Society housed in the same building where the appellant claims to have its registered office. After three years of starting Skyline Business School, the Director of the appellant vide his letter dated January 4, 2000 permitted the President, Asian Educational Society to use the trade mark Skyline Business School, name and the logo albeit without disclosing as to when Skyline Business School was registered under the Trademarks Act, 1999. Thereafter, Skyline Groups Asian Educational Society through its President, Shri Kamal Puri entered into an agreement dated 9.12.2001 with Manipal Academy of Higher Education (deemed university) for establishing a branch campus at Skyline Business School, Delhi. Sikkim Manipal University also approved Skyline Business School as a University Study Center for taking management programme under distance education despite the fact that the Skyline Business School is not recognized or approved by AICTE/UGC. In 1996, University of Oxford approved the appointment of a center in the premises of the appellant at Laxman Public School, Hauz Khas Enclave, New Delhi for Certification in Leisure Studies and in Travel and Tourism. In 1997, Skyline Business School entered into a Memorandum of Cooperation with University of Lincolnshire and Humberside, U.K. whereby the latter agreed to offer its BBA (Hons.) Tourism course through a center established at the appellants campus. In large number of advertisements issued in the name of the appellant or Skyline Business School, it has not been made clear that they are neither approved nor recognized by any of the statutory bodies like, AICTE, UGC, etc. Of course, in some of advertisements, it has been mentioned that the degrees/diplomas purported to be awarded by the Skyline Business School are not recognized by Government of India, State Government, UGC/AICTE. All this lends sufficient credibility to the observations made by the Division Bench of the High Court that the present litigation is to have more commerce in education and less education in commerce and gives an impression that functioning of the appellant is shrouded in mystery and those seeking admission in the courses organised by it may find themselves in serious trouble at any given point of time because the degrees and diplomas awarded in the name of foreign universities are not recognised by statutory bodies/authorities in India. 20. Shri Sudhir Chandra may be right in his submission that even an unregistered prior user of a name can institute action for passing off and seek injunction against the subsequent user of the same name by proving that misrepresentation by the defendant to the public that the goods/services offered by him are that of the plaintiff and such misrepresentation has caused harm to the goodwill and reputation of the plaintiff or the plaintiff demonstrates that it has suffered loss due to such representation, but, in view of our conclusion that the appellant has failed to make out a case for interference with the discretion exercised by the High Court not to entertain its prayer for temporary injunction, we do not find any valid ground to entertain and accept the argument of the learned senior counsel. For the same reason, we do not consider it necessary to discuss the judgments on which reliance has been placed by Shri Sudhir Chandra. 21. Although, during the pendency of the suit, the appellant got registration of trade marks `Skyline MEDALLIST under No. 795085 and `Skyline Institute under No. 795086 in class 16 and its prayer for amendment of the plaint was granted by the High Court on 24.8.2006, but, that by itself, is not sufficient for entertaining the appellants prayer for temporary injunction to restrain the respondents from using the word `Skyline as part of the Institute of Engineering and Technology established by them. 22. We may now advert to C.A. No. 1362/2005. The respondents grievance is that after having reached the conclusion that the learned Single Judge was not justified in restraining the respondents from starting new courses in business management, etc. and directing them to append a note in the advertisement that they are in no way related to the appellant, the Division Bench should have set aside all the directions impugned before it. We find merit in the contention of the respondents. When the Division Bench found that the learned Single Judge ought not to have given direction restraining the respondents from starting new courses in business management etc. and directed them to append a note in the advertisement that they are not related to the appellant, then it should have set aside the order of the learned Single Judge in its entirety. The omission on the part of the Division Bench of the High Court to do so calls for a corrective action by this Court. ### Response: 0

Incable Net(Andhra) Limited Vs. Ap Aksh Broadband Ltd

estops him from alleging that the Respondent No.2 Company had been siphoning off the funds of the Respondent No.1 Company without diligently performing its part of the contract. There is substance in Mr. Raghavans submissions that the EPC Contract given to the Respondent No.5 by the Respondent No.1 was a commercial contract and stands outside the ambit of Sections 397 and 398 of the Companies Act. Failure to act in terms of the contract cannot be said to have amounted to either oppression or mismanagement by the Respondent No.1. At best it can be said that the Respondent No.1 had been used as a tool or mechanism by the Respondent No.5 to acquire benefits for itself, which in the instant case, does not appear to be so, having regard to the fact that one of the Petitioners in the Company Petition was himself responsible for such payments being made.34. Both the parties have placed reliance on the decision of this Court in Needle Industries (India) Ltd. (supra). Mr. Gupta relied on the said decision in support of his submission that by denying an opportunity to the Petitioners to adduce oral evidence, the CLB had shut out vital evidence which would have strengthened the case of the Petitioners. The views expressed in paragraph 63 of the said decision is the expression of a general principle of law and only confirms the principle of adducing evidence, but does not lay down a hard and fast rule that in all cases the Court or the CLB is bound to allow oral evidence to be led as otherwise there is a risk that the person accused of wrongful conduct is denied an opportunity to controvert the inference said to have been arrived at from the evidence produced before the Court alone. As a proposition of law there can be no disagreement with the same, but the question is as to whether the same is required to be applied in the facts of the instant case.35. From the submissions made on behalf of the respective parties and the materials on record, the point which falls for consideration in this appeal is as to whether a case of oppression and mismanagement by the majority shareholders against the minority shareholders had been established or not. 36. Whether there is any truth in Mr. Guptas submissions as to the siphoning of funds by the Respondent No.5 Company from the Respondent No.1 Company, which had been set up as a Special Purpose Vehicle and in which the Respondent No.5 was a majority shareholder, holding about 60% of the equity shares has not been properly established. On the other hand, the materials on record indicate that the Petitioner No.2, who is a Director of the Petitioner No.1 Company, which is also a shareholder in the Respondent No.1 Company, had functioned as a Vice President of the Respondent No.1 Company and had also chaired 8 of its Meetings including the Meeting held on 21st April, 2005, in which the decision was taken to award the EPC Contract to the Respondent No.5 Company. Further more, the Petitioner No.2 had signed most of the cheques by which payments were made to the Respondent No.5 Company for supply of materials under the EPC contract. It does not lie in the mouth of the Petitioner to now contend that the funds of the Respondent No.1 Company had been siphoned by the Respondent No.5.37. From the facts as revealed, the only conclusion that can be arrived at is that the Respondent No.5 had committed a breach of contract in regard to supply of materials to the Respondent No.1 Company in terms of the EPC contract. Such lapse, in our view, would not constitute the ingredients of a complaint under Section 397, 398, 402 and 403 of the Companies Act, 1956. Such breach could give rise to an action of breach of contract under Section 73 of the Indian Contract Act, 1872.38. The decisions cited on behalf of the respective parties and in particular, the decision in Needle Industries (India) Ltd. (supra), in support of the claim of the Petitioners for being allowed to lead oral evidence, does not really come to the aid of the Petitioners, since from the materials on record itself it has been established that at best the Respondent No.5 had failed to abide by its commitments in the EPC contract executed in its favour by the Respondent No.1 Company.39. We are unable to understand as to how the decisions in the above case are of any help to the Petitioners, since nothing concrete has been established by them in regard to either oppression or mismanagement by the Respondent No.5 as far as the Petitioners are concerned. On the other hand, the conduct of the Petitioner No.2 provides a different picture since at the relevant point of time he was at the helm of affairs of the Respondent No.1 Company, despite being a Director on the Board of the Petitioner No.1 Company. The decision in V.S. Krishnans case (supra) is more apposite to the facts of the case. Quoting Halsbury, this Court observed that the expression "oppression" within the meaning of the Sections 398, 399 and 402 of the Companies Act had been interpreted to mean that the conduct of the majority shareholders towards the minority shareholders was harsh, burdensome and wrong and that such conduct was mala fide and was for a collateral purpose which would result in an advantage for some shareholders over others, although, the ultimate object might be in the interest of the Company. However, the facts disclosed in this case do not establish such conduct on the part of the Respondent No.5. Until the conduct of the majority shareholders was found to be oppressive in terms of the above description, under Sections 397 and 398 of the Companies Act, 1956, the Company Law Board was not competent to invoke its jurisdiction under Section 402 of the said Act to set right, or put an end to such oppression.

0[ds]31. The allegation on the basis of which such reliefs have been prayed for basically is that the EPC Contractor AKSH, the Respondent No.5, which is also the majority shareholder in the Respondent No.1 Company, had mismanaged the funds and operations of the Company and the work on the project was delayed on account of the various acts of omission and commission on the part of AKSH. The reliefs prayed for have been opposed on behalf of the Respondents contending that the contractual obligations under the EPC Contract did not fall within the scope of Sections 397 and 398 of the above Act and the right of the Petitioners as shareholders was in no way affected, particularly, when the Petitioner No.2 was a Director andand a member of the Managing Committee constituted to monitor the implementation of work of the project and at no point of time had he made any grievance with regard to the EPC Contract. That apart, he had chaired the meetings of the Board and operated the bank accounts and payments made to AKSH by the Respondent No.1 Company had in most cases been done by him on behalf of the Company.32. It is on the said foundation that a case of oppression and mismanagement has been attempted to be made out by the Petitioners. However, in the facts of the case it becomes difficult to take a different view as has been expressed both by the CLB as also by the High Court.33. Admittedly, the Respondent No.5 is a majority shareholder in the Respondent No.1 Company and at the same time the EPC Contract has also been given by the Respondent No.1 Company to the Respondent No.5, to which transaction the Petitioner No.2, Shri R.V.R. Chowdary, was also a party in his capacity asof the Respondent No.1 Company. Besides being a party to the decision to give the EPC Contract to the Respondent No.5, the Petitioner No.2 was also instrumental in payment of large sums of money being made to the Respondent No.5 which estops him from alleging that the Respondent No.2 Company had been siphoning off the funds of the Respondent No.1 Company without diligently performing its part of the contract. There is substance in Mr. Raghavans submissions that the EPC Contract given to the Respondent No.5 by the Respondent No.1 was a commercial contract and stands outside the ambit of Sections 397 and 398 of the Companies Act. Failure to act in terms of the contract cannot be said to have amounted to either oppression or mismanagement by the Respondent No.1. At best it can be said that the Respondent No.1 had been used as a tool or mechanism by the Respondent No.5 to acquire benefits for itself, which in the instant case, does not appear to be so, having regard to the fact that one of the Petitioners in the Company Petition was himself responsible for such payments being made.34. Both the parties have placed reliance on the decision of this Court in Needle Industries (India) Ltd. (supra). Mr. Gupta relied on the said decision in support of his submission that by denying an opportunity to the Petitioners to adduce oral evidence, the CLB had shut out vital evidence which would have strengthened the case of the Petitioners. The views expressed in paragraph 63 of the said decision is the expression of a general principle of law and only confirms the principle of adducing evidence, but does not lay down a hard and fast rule that in all cases the Court or the CLB is bound to allow oral evidence to be led as otherwise there is a risk that the person accused of wrongful conduct is denied an opportunity to controvert the inference said to have been arrived at from the evidence produced before the Court alone. As a proposition of law there can be no disagreement with the same, but the question is as to whether the same is required to be applied in the facts of the instant case.35. From the submissions made on behalf of the respective parties and the materials on record, the point which falls for consideration in this appeal is as to whethera case of oppression and mismanagement by the majority shareholders against the minority shareholders had been established or not.Whether there is any truth in Mr. Guptas submissions as to the siphoning of funds by the Respondent No.5 Company from the Respondent No.1 Company, which had been set up as a Special Purpose Vehicle and in which the Respondent No.5 was a majority shareholder, holding about 60% of the equity shares has not been properly established. On the other hand, the materials on record indicate that the Petitioner No.2, who is a Director of the Petitioner No.1 Company, which is also a shareholder in the Respondent No.1 Company, had functioned as a Vice President of the Respondent No.1 Company and had also chaired 8 of its Meetings including the Meeting held on 21st April, 2005, in which the decision was taken to award the EPC Contract to the Respondent No.5 Company. Further more, the Petitioner No.2 had signed most of the cheques by which payments were made to the Respondent No.5 Company for supply of materials under the EPC contract. It does not lie in the mouth of the Petitioner to now contend that the funds of the Respondent No.1 Company had been siphoned by the Respondent No.5.37. From the facts as revealed, the only conclusion that can be arrived at is that the Respondent No.5 had committed a breach of contract in regard to supply of materials to the Respondent No.1 Company in terms of the EPC contract. Such lapse, in our view, would not constitute the ingredients of a complaint under Section 397, 398, 402 and 403 of the Companies Act, 1956. Such breach could give rise to an action of breach of contract under Section 73 of the Indian Contract Act, 1872.38. The decisions cited on behalf of the respective parties and in particular, the decision in Needle Industries (India) Ltd. (supra), in support of the claim of the Petitioners for being allowed to lead oral evidence, does not really come to the aid of the Petitioners, since from the materials on record itself it has been established that at best the Respondent No.5 had failed to abide by its commitments in the EPC contract executed in its favour by the Respondent No.1 Company.39. We are unable to understand as to how the decisions in the above case are of any help to the Petitioners, since nothing concrete has been established by them in regard to either oppression or mismanagement by the Respondent No.5 as far as the Petitioners are concerned. On the other hand, the conduct of the Petitioner No.2 provides a different picture since at the relevant point of time he was at the helm of affairs of the Respondent No.1 Company, despite being a Director on the Board of the Petitioner No.1 Company. The decision in V.S. Krishnans case (supra) is more apposite to the facts of the case. Quoting Halsbury, this Court observed that the expression "oppression" within the meaning of the Sections 398, 399 and 402 of the Companies Act had been interpreted to mean that the conduct of the majority shareholders towards the minority shareholders was harsh, burdensome and wrong and that such conduct was mala fide and was for a collateral purpose which would result in an advantage for some shareholders over others, although, the ultimate object might be in the interest of the Company. However, the facts disclosed in this case do not establish such conduct on the part of the Respondent No.5. Until the conduct of the majority shareholders was found to be oppressive in terms of the above description, under Sections 397 and 398 of the Companies Act, 1956, the Company Law Board was not competent to invoke its jurisdiction under Section 402 of the said Act to set right, or put an end to such oppression.

### 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: estops him from alleging that the Respondent No.2 Company had been siphoning off the funds of the Respondent No.1 Company without diligently performing its part of the contract. There is substance in Mr. Raghavans submissions that the EPC Contract given to the Respondent No.5 by the Respondent No.1 was a commercial contract and stands outside the ambit of Sections 397 and 398 of the Companies Act. Failure to act in terms of the contract cannot be said to have amounted to either oppression or mismanagement by the Respondent No.1. At best it can be said that the Respondent No.1 had been used as a tool or mechanism by the Respondent No.5 to acquire benefits for itself, which in the instant case, does not appear to be so, having regard to the fact that one of the Petitioners in the Company Petition was himself responsible for such payments being made.34. Both the parties have placed reliance on the decision of this Court in Needle Industries (India) Ltd. (supra). Mr. Gupta relied on the said decision in support of his submission that by denying an opportunity to the Petitioners to adduce oral evidence, the CLB had shut out vital evidence which would have strengthened the case of the Petitioners. The views expressed in paragraph 63 of the said decision is the expression of a general principle of law and only confirms the principle of adducing evidence, but does not lay down a hard and fast rule that in all cases the Court or the CLB is bound to allow oral evidence to be led as otherwise there is a risk that the person accused of wrongful conduct is denied an opportunity to controvert the inference said to have been arrived at from the evidence produced before the Court alone. As a proposition of law there can be no disagreement with the same, but the question is as to whether the same is required to be applied in the facts of the instant case.35. From the submissions made on behalf of the respective parties and the materials on record, the point which falls for consideration in this appeal is as to whether a case of oppression and mismanagement by the majority shareholders against the minority shareholders had been established or not. 36. Whether there is any truth in Mr. Guptas submissions as to the siphoning of funds by the Respondent No.5 Company from the Respondent No.1 Company, which had been set up as a Special Purpose Vehicle and in which the Respondent No.5 was a majority shareholder, holding about 60% of the equity shares has not been properly established. On the other hand, the materials on record indicate that the Petitioner No.2, who is a Director of the Petitioner No.1 Company, which is also a shareholder in the Respondent No.1 Company, had functioned as a Vice President of the Respondent No.1 Company and had also chaired 8 of its Meetings including the Meeting held on 21st April, 2005, in which the decision was taken to award the EPC Contract to the Respondent No.5 Company. Further more, the Petitioner No.2 had signed most of the cheques by which payments were made to the Respondent No.5 Company for supply of materials under the EPC contract. It does not lie in the mouth of the Petitioner to now contend that the funds of the Respondent No.1 Company had been siphoned by the Respondent No.5.37. From the facts as revealed, the only conclusion that can be arrived at is that the Respondent No.5 had committed a breach of contract in regard to supply of materials to the Respondent No.1 Company in terms of the EPC contract. Such lapse, in our view, would not constitute the ingredients of a complaint under Section 397, 398, 402 and 403 of the Companies Act, 1956. Such breach could give rise to an action of breach of contract under Section 73 of the Indian Contract Act, 1872.38. The decisions cited on behalf of the respective parties and in particular, the decision in Needle Industries (India) Ltd. (supra), in support of the claim of the Petitioners for being allowed to lead oral evidence, does not really come to the aid of the Petitioners, since from the materials on record itself it has been established that at best the Respondent No.5 had failed to abide by its commitments in the EPC contract executed in its favour by the Respondent No.1 Company.39. We are unable to understand as to how the decisions in the above case are of any help to the Petitioners, since nothing concrete has been established by them in regard to either oppression or mismanagement by the Respondent No.5 as far as the Petitioners are concerned. On the other hand, the conduct of the Petitioner No.2 provides a different picture since at the relevant point of time he was at the helm of affairs of the Respondent No.1 Company, despite being a Director on the Board of the Petitioner No.1 Company. The decision in V.S. Krishnans case (supra) is more apposite to the facts of the case. Quoting Halsbury, this Court observed that the expression "oppression" within the meaning of the Sections 398, 399 and 402 of the Companies Act had been interpreted to mean that the conduct of the majority shareholders towards the minority shareholders was harsh, burdensome and wrong and that such conduct was mala fide and was for a collateral purpose which would result in an advantage for some shareholders over others, although, the ultimate object might be in the interest of the Company. However, the facts disclosed in this case do not establish such conduct on the part of the Respondent No.5. Until the conduct of the majority shareholders was found to be oppressive in terms of the above description, under Sections 397 and 398 of the Companies Act, 1956, the Company Law Board was not competent to invoke its jurisdiction under Section 402 of the said Act to set right, or put an end to such oppression. ### Response: 0

Haridas Girdhardas & Others Vs. Varadaraja Pillai & Another

years from March 1, 1954 expiring with the month of February, 1964.5. In accordance with the terms of Clause 4 (d) of the lease deed, the plaintiffs exercised the option of buying the buildings erected on the demised land by letter dated February 27, 1964 and sent along with the full amount of Rupees 50,000/- by cheque in payment for all the superstructure without deducting any amount for depreciation, as provided in the. said clause of the lease deed, stating that they had decided not to stand on their strict legal rights to deduct depreciation but to pay the full price of Rupees 50,000/- as the buildings had been maintained and kept in good repair. Defendant No. 1 however, refused the sum of Rupees 50,000/- and contended that the plaintiffs were not entitled to claim any rights on the footing of Clause 4 (d) of the lease deed or to offer the sum of Rupees 50,000/- as the price for purchasing the superstructure put up by him on the land leased to him.6. The question that arises before us is whether the plaintiffs were entitled to enforce Clause 4 (d) of the lease deed in view of the Madras City Tenants Protection Act, 1921, as amended by the Amending Act of 1955.7. This Court construed the said Act and its various provisions in N. Vajrapani Naidu v. New Theatre Carnatic Talkies, (1964) 6 SCR 1015 = (AIR 1964 SC 1440 ) and in The Mylapore Hindu Permanent Fund Ltd. v. K. S. Subramania Iyer, AIR 1970 SC 1683 at pp. 1691-92. The second decision was not before the High Court when the Letters Patent Bench rendered its judgment. It seems to us that the case is covered by the judgment in the Mylapore Hindu Permanent Fund case. In that case Vaidialingam J., speaking for the Court, observed :-"Therefore, in our opinion, the decision in Vairapanis case (supra) has been misunderstood by the learned Judges of the Letters Patent Bench and the said decision is no authority for the proposition that the stipulation contained in the lease deed before us cannot come within the proviso to Section 12. The case before us is not one under which the tenant has in any manner contracted himself out of the rights conferred on him by the statute. On the other hand by allowing the building to stand on the property and agreeing to receive the amount of compensation provided for in the lease deed, the object of the legislation is fully satisfied. It must also be emphasised that the first part of S. 12 protects a tenant against the deprivation or limitation of his rights under the Act and the rights conferred by the Act do not directly relate to covenants relating to erection of buildings."8. Considering the facts of that case this Court held that Clause 2, in he deed, read with Clause 4, amounted to stipulations as to the erection of buildings and, in this view the proviso to Section 12 applied.9. We have set out the relevant clauses of the lease deed in this case and it seems to us that these clauses amount to a stipulation as to the erection of buildings and consequently the proviso to Section 12 applies.10. Mylapore Hindu Permanent Fund case, AIR 1970 SC 1683 was sought to be distinguished by the learned counsel for the respondent on the ground that in the present case the defendant was entitled to put up the building beyond the value of Rupees 50,000/-. But Clause 2 (c) of the lease deed, set out above, clearly shows that the plaintiffs required "a theatre with all proper offices and out buildings such as bazars, restaurants, motor and dunamo sheds etc., and fences, drains, sewers to be used for production and exhibition of films and for staging drama therein" to be erected. The plaintiffs wanted to ensure that the cost of the building would not be less than Rupees 50,000/- in order that the building would be of a proper quality of construction. There is no evidence as to what other buildings the defendant had put up. On these facts we cannot say that these were not stipulations as to the erection of buildings within the meaning of the proviso to Section 12.11. It must be remembered that the Madras City Tenants Protection Act, 1921, was passed in 1922 to give protection to certain classes of tenants who had constructed buildings on others lands in the hope that they would not be evicted so long as they paid a fair rent for the land. It was not the object of the Act to cover hope if the hope was entertained contrary to express stipulations as erection of buildings. Accordingly proviso to Section 12 exempted and stipulations made by the tenant in writing registered as to the erection of buildings, in so far as they related to buildings erected after the date of the contract.12. The plaintiffs-appellants applied for amendment of their plaint dated April 15, 1964, by adding the following words in the Prayer Clause:"(a) after the words: as from 1-3-1964 "and direct the defendant No. 1 to deliver possession to the Plaintiffs of the sites leased out to the defendant No. 1 under the aforesaid lease deeds and the buildings and superstructures built thereupon in good and satisfactory condition."(b) Delete Prayer (b) and in its place substitute the following :-"That the defendants do pay the plaintiffs the sum of Rupees 12,000 (twelve thousand) per month as mesne profits for use and occupation of the buildings and superstructures built upon the demised premises from 4-8-1968 till possession is handed over to the plaintiffs."We allowed the amendment to be made. The learned counsel for the defendant objected to the prayer regarding mesne profits but as the plaintiffs are limiting the mesne profits for use and occupation from August 4, 1968, i.e. three years before the date of the application for amending the plaint, the defendant can have no just cause to complain.

1[ds]7. This Court construed the said Act and its various provisions in N. Vajrapani Naidu v. New Theatre Carnatic Talkies, (1964) 6 SCR 1015 = (AIR 1964 SC 1440 ) and in The Mylapore Hindu Permanent Fund Ltd. v. K. S. Subramania Iyer, AIR 1970 SC 1683 at pp. 1691-92. The second decision was not before the High Court when the Letters Patent Bench rendered its judgment. It seems to us that the case is covered by the judgment in the Mylapore Hindu Permanent Fund case. In that case Vaidialingam J., speaking for the Court, observedin our opinion, the decision in Vairapanis case (supra) has been misunderstood by the learned Judges of the Letters Patent Bench and the said decision is no authority for the proposition that the stipulation contained in the lease deed before us cannot come within the proviso to Section 12. The case before us is not one under which the tenant has in any manner contracted himself out of the rights conferred on him by the statute. On the other hand by allowing the building to stand on the property and agreeing to receive the amount of compensation provided for in the lease deed, the object of the legislation is fully satisfied. It must also be emphasised that the first part of S. 12 protects a tenant against the deprivation or limitation of his rights under the Act and the rights conferred by the Act do not directly relate to covenants relating to erection of buildings.Considering the facts of that case this Court held that Clause 2, in he deed, read with Clause 4, amounted to stipulations as to the erection of buildings and, in this view the proviso to Section 12 applied.9. We have set out the relevant clauses of the lease deed in this case and it seems to us that these clauses amount to a stipulation as to the erection of buildings and consequently the proviso to Section 12 applies.10. Mylapore Hindu Permanent Fund case, AIR 1970 SC 1683 was sought to be distinguished by the learned counsel for the respondent on the ground that in the present case the defendant was entitled to put up the building beyond the value of Rupees 50,000/-. But Clause 2 (c) of the lease deed, set out above, clearly shows that the plaintiffs required "a theatre with all proper offices and out buildings such as bazars, restaurants, motor and dunamo sheds etc., and fences, drains, sewers to be used for production and exhibition of films and for staging drama therein" to be erected. The plaintiffs wanted to ensure that the cost of the building would not be less than Rupees 50,000/- in order that the building would be of a proper quality of construction. There is no evidence as to what other buildings the defendant had put up. On these facts we cannot say that these were not stipulations as to the erection of buildings within the meaning of the proviso to Section 12.11. It must be remembered that the Madras City Tenants Protection Act, 1921, was passed in 1922 to give protection to certain classes of tenants who had constructed buildings on others lands in the hope that they would not be evicted so long as they paid a fair rent for the land. It was not the object of the Act to cover hope if the hope was entertained contrary to express stipulations as erection of buildings. Accordingly proviso to Section 12 exempted and stipulations made by the tenant in writing registered as to the erection of buildings, in so far as they related to buildings erected after the date of the contract.

### 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: years from March 1, 1954 expiring with the month of February, 1964.5. In accordance with the terms of Clause 4 (d) of the lease deed, the plaintiffs exercised the option of buying the buildings erected on the demised land by letter dated February 27, 1964 and sent along with the full amount of Rupees 50,000/- by cheque in payment for all the superstructure without deducting any amount for depreciation, as provided in the. said clause of the lease deed, stating that they had decided not to stand on their strict legal rights to deduct depreciation but to pay the full price of Rupees 50,000/- as the buildings had been maintained and kept in good repair. Defendant No. 1 however, refused the sum of Rupees 50,000/- and contended that the plaintiffs were not entitled to claim any rights on the footing of Clause 4 (d) of the lease deed or to offer the sum of Rupees 50,000/- as the price for purchasing the superstructure put up by him on the land leased to him.6. The question that arises before us is whether the plaintiffs were entitled to enforce Clause 4 (d) of the lease deed in view of the Madras City Tenants Protection Act, 1921, as amended by the Amending Act of 1955.7. This Court construed the said Act and its various provisions in N. Vajrapani Naidu v. New Theatre Carnatic Talkies, (1964) 6 SCR 1015 = (AIR 1964 SC 1440 ) and in The Mylapore Hindu Permanent Fund Ltd. v. K. S. Subramania Iyer, AIR 1970 SC 1683 at pp. 1691-92. The second decision was not before the High Court when the Letters Patent Bench rendered its judgment. It seems to us that the case is covered by the judgment in the Mylapore Hindu Permanent Fund case. In that case Vaidialingam J., speaking for the Court, observed :-"Therefore, in our opinion, the decision in Vairapanis case (supra) has been misunderstood by the learned Judges of the Letters Patent Bench and the said decision is no authority for the proposition that the stipulation contained in the lease deed before us cannot come within the proviso to Section 12. The case before us is not one under which the tenant has in any manner contracted himself out of the rights conferred on him by the statute. On the other hand by allowing the building to stand on the property and agreeing to receive the amount of compensation provided for in the lease deed, the object of the legislation is fully satisfied. It must also be emphasised that the first part of S. 12 protects a tenant against the deprivation or limitation of his rights under the Act and the rights conferred by the Act do not directly relate to covenants relating to erection of buildings."8. Considering the facts of that case this Court held that Clause 2, in he deed, read with Clause 4, amounted to stipulations as to the erection of buildings and, in this view the proviso to Section 12 applied.9. We have set out the relevant clauses of the lease deed in this case and it seems to us that these clauses amount to a stipulation as to the erection of buildings and consequently the proviso to Section 12 applies.10. Mylapore Hindu Permanent Fund case, AIR 1970 SC 1683 was sought to be distinguished by the learned counsel for the respondent on the ground that in the present case the defendant was entitled to put up the building beyond the value of Rupees 50,000/-. But Clause 2 (c) of the lease deed, set out above, clearly shows that the plaintiffs required "a theatre with all proper offices and out buildings such as bazars, restaurants, motor and dunamo sheds etc., and fences, drains, sewers to be used for production and exhibition of films and for staging drama therein" to be erected. The plaintiffs wanted to ensure that the cost of the building would not be less than Rupees 50,000/- in order that the building would be of a proper quality of construction. There is no evidence as to what other buildings the defendant had put up. On these facts we cannot say that these were not stipulations as to the erection of buildings within the meaning of the proviso to Section 12.11. It must be remembered that the Madras City Tenants Protection Act, 1921, was passed in 1922 to give protection to certain classes of tenants who had constructed buildings on others lands in the hope that they would not be evicted so long as they paid a fair rent for the land. It was not the object of the Act to cover hope if the hope was entertained contrary to express stipulations as erection of buildings. Accordingly proviso to Section 12 exempted and stipulations made by the tenant in writing registered as to the erection of buildings, in so far as they related to buildings erected after the date of the contract.12. The plaintiffs-appellants applied for amendment of their plaint dated April 15, 1964, by adding the following words in the Prayer Clause:"(a) after the words: as from 1-3-1964 "and direct the defendant No. 1 to deliver possession to the Plaintiffs of the sites leased out to the defendant No. 1 under the aforesaid lease deeds and the buildings and superstructures built thereupon in good and satisfactory condition."(b) Delete Prayer (b) and in its place substitute the following :-"That the defendants do pay the plaintiffs the sum of Rupees 12,000 (twelve thousand) per month as mesne profits for use and occupation of the buildings and superstructures built upon the demised premises from 4-8-1968 till possession is handed over to the plaintiffs."We allowed the amendment to be made. The learned counsel for the defendant objected to the prayer regarding mesne profits but as the plaintiffs are limiting the mesne profits for use and occupation from August 4, 1968, i.e. three years before the date of the application for amending the plaint, the defendant can have no just cause to complain. ### Response: 1

Raj Dadarkar Associates Vs. Acit -Cc-46

factor. Matter has to be examined on the facts of each case as held in Sultan Bros. (P) Ltd. case. Even otherwise, the object clause which is contained in the partnership firm is to take the premises on rent and to sub-let. In the present case, reading of the object clause would bring out two discernible facts, which are as follows:(a) The appellant which is a partnership firm is to take the premises on rent and to sub-let those premises. Thus, the business activity is of taking the premises on rent and sub-letting them.In the instant case, by legal fiction contained in Section 27(iiib) of the Act, the appellant is treated as "deemed owner".(b) The aforesaid clause also mentions that partnership firm may take any other business as may be mutually agreed upon by the partners.17. In the instant case, therefore, it is to be seen as to whether the activity in question was in the nature of business by which it could be said that income received by the appellant was to be treated as income from the business. Before us, apart from relying upon the aforesaid clause in the partnership deed to show its objective, the learned counsel for the appellant has not produced or referred to any material. On the other hand, we find that ITAT had specifically adverted to this issue and recorded the findings on this aspect in the following manner:"26. ...On this issue facts available on record are that the assessee let out shops/stalls to various occupants on a monthly rent. The assessee collected charges for minor repairs, maintenance, water and electricity. As per the terms of allotment by the BMC, the assessee was bound to incur all these expenses. The assessee, in turn, collected extra money from the allottees. The assessee collected 20% of monthly rent as service charges. Such service charges were also used for providing services like watch and ward, electricity, water etc. This in our opinion was inseparable from basic charges of rent. The assessee has made bifurcation of the receipt from the, occupiers of the shops/stalls as rent and service charges. As rightly held by the Assessing Officer, decision of Honble Supreme Court in the case of Shambu Investment Pvt. Ltd., 263 ITR 143 will apply. The assessee has not established that he was engaged in any systematic or organized activity of providing service to the occupiers of the shops/stalls so as to constitute the receipts from them as business income. In our opinion, the assessee received income by letting out shops/stalls; and therefore, the same has to be held as income from house property."18. The ITAT being the last forum insofar as factual determination is concerned, these findings have attained finality. In any case, as mentioned above, the learned counsel for the appellant did not argue on this aspect and did not make any efforts to show as to how the aforesaid findings were perverse. It was for the appellant to produce sufficient material on record to show that its entire income or substantial income was from letting out of the property which was the principal business activity of the appellant. No such effort was made.19. Reliance placed by the appellant on the judgments of this Court in Chennai Properties & Investments Ltd. and Rayala Corporation (P) Ltd. would be of no avail. In Chennai Properties & Investments Ltd. where one of us (Sikri, J.) was a part of the Bench found that the entire income of the appellant was through letting out of the two properties it owned and there was no other income of the assessee except the income from letting out of the said properties, which was the business of the assessee. On those facts, this Court came to the conclusion that judgment of this Court in Karanpura Development Co. Ltd. v. CIT, (1962) 44 ITR 362 was applicable and the judgment of this Court in East India Housing and Land Development Trust Ltd. v. CIT, (1961) 42 ITR 49 was held to be distinguishable. In the present case, we find that situation is just the reverse. The judgment in East India Housing and Land Development Trust Ltd. which would be applicable which is discussed in para 8 of Chennai Properties & Investments Ltd. case and the reproduction thereof would bring home the point we are canvassing:"8. With this background, we first refer to the judgment of this Court in East India Housing and Land Development Trust Ltd. case [East India Housing and Land Development Trust Ltd. v. CIT, (1961) 42 ITR 49 (SC)] which has been relied upon by the High Court. That was a case where the company was incorporated with the object of buying and developing landed properties and promoting and developing markets. Thus, the main objective of the company was to develop the landed properties into markets. It so happened that some shops and stalls, which were developed by it, had been rented out and income was derived from the renting of the said shops and stalls. In those facts, the question which arose for consideration was: whether the rental income that is received was to be treated as income from the house property or the income from the business? This Court while holding that the income shall be treated as income from the house property, rested its decision in the context of the main objective of the company and took note of the fact that letting out of the property was not the object of the company at all. The Court was therefore, of the opinion that the character of that income which was from the house property had not altered because it was received by the company formed with the object of developing and setting up properties."20. In Rayala Corporation (P) Ltd., fact situation was identical to the case of Chennai Properties & Investments Ltd. and for this reason, Rayala Corporation (P) Ltd. followed Chennai Properties & Investments Ltd., which is held to be inapplicable in the instant case.

0[ds]10. We have considered the aforesaid submissions of counsel for the parties in the light of legal provisions contained in the Act. We may remark at the outset that it is not in dispute that having regard to the terms and conditions on which the leasehold rights were taken by the appellant in auction, constructed the market area thereupon and gave the same to various persons onbasis, the appellant would be treated as deemed owner of these premises in terms of Section 27(iiib) of thethe present case, the appellant is held to be "deemed owner" of the property in question by virtue of Section 27(iiib) of the Act. On the other hand, under certain circumstances, where the income may have been derived from letting out of the premises, it can still be treated as business income if letting out of the premises itself is the business of the assessee.The ITAT being the last forum insofar as factual determination is concerned, these findings have attained finality. In any case, as mentioned above, the learned counsel for the appellant did not argue on this aspect and did not make any efforts to show as to how the aforesaid findings were perverse. It was for the appellant to produce sufficient material on record to show that its entire income or substantial income was from letting out of the property which was the principal business activity of the appellant. No such effort was made.19. Reliance placed by the appellant on the judgments of this Court in Chennai Properties & Investments Ltd. and Rayala Corporation (P) Ltd. would be of no avail. In Chennai Properties & Investments Ltd. where one of us (Sikri, J.) was a part of the Bench found that the entire income of the appellant was through letting out of the two properties it owned and there was no other income of the assessee except the income from letting out of the said properties, which was the business of the assessee. On those facts, this Court came to the conclusion that judgment of this Court in Karanpura Development Co. Ltd. v. CIT, (1962) 44 ITR 362 was applicable and the judgment of this Court in East India Housing and Land Development Trust Ltd. v. CIT, (1961) 42 ITR 49 was held to be distinguishable. In the present case, we find that situation is just the reverse. The judgment in East India Housing and Land Development Trust Ltd. which would be applicable which is discussed in para 8 of Chennai Properties & Investments Ltd. case and the reproduction thereof would bring home the point we areWith this background, we first refer to the judgment of this Court in East India Housing and Land Development Trust Ltd. case [East India Housing and Land Development Trust Ltd. v. CIT, (1961) 42 ITR 49 (SC)] which has been relied upon by the High Court. That was a case where the company was incorporated with the object of buying and developing landed properties and promoting and developing markets. Thus, the main objective of the company was to develop the landed properties into markets. It so happened that some shops and stalls, which were developed by it, had been rented out and income was derived from the renting of the said shops and stalls. In those facts, the question which arose for consideration was: whether the rental income that is received was to be treated as income from the house property or the income from the business? This Court while holding that the income shall be treated as income from the house property, rested its decision in the context of the main objective of the company and took note of the fact that letting out of the property was not the object of the company at all. The Court was therefore, of the opinion that the character of that income which was from the house property had not altered because it was received by the company formed with the object of developing and setting up properties.In Rayala Corporation (P) Ltd., fact situation was identical to the case of Chennai Properties & Investments Ltd. and for this reason, Rayala Corporation (P) Ltd. followed Chennai Properties & Investments Ltd., which is held to be inapplicable in the instant case.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: factor. Matter has to be examined on the facts of each case as held in Sultan Bros. (P) Ltd. case. Even otherwise, the object clause which is contained in the partnership firm is to take the premises on rent and to sub-let. In the present case, reading of the object clause would bring out two discernible facts, which are as follows:(a) The appellant which is a partnership firm is to take the premises on rent and to sub-let those premises. Thus, the business activity is of taking the premises on rent and sub-letting them.In the instant case, by legal fiction contained in Section 27(iiib) of the Act, the appellant is treated as "deemed owner".(b) The aforesaid clause also mentions that partnership firm may take any other business as may be mutually agreed upon by the partners.17. In the instant case, therefore, it is to be seen as to whether the activity in question was in the nature of business by which it could be said that income received by the appellant was to be treated as income from the business. Before us, apart from relying upon the aforesaid clause in the partnership deed to show its objective, the learned counsel for the appellant has not produced or referred to any material. On the other hand, we find that ITAT had specifically adverted to this issue and recorded the findings on this aspect in the following manner:"26. ...On this issue facts available on record are that the assessee let out shops/stalls to various occupants on a monthly rent. The assessee collected charges for minor repairs, maintenance, water and electricity. As per the terms of allotment by the BMC, the assessee was bound to incur all these expenses. The assessee, in turn, collected extra money from the allottees. The assessee collected 20% of monthly rent as service charges. Such service charges were also used for providing services like watch and ward, electricity, water etc. This in our opinion was inseparable from basic charges of rent. The assessee has made bifurcation of the receipt from the, occupiers of the shops/stalls as rent and service charges. As rightly held by the Assessing Officer, decision of Honble Supreme Court in the case of Shambu Investment Pvt. Ltd., 263 ITR 143 will apply. The assessee has not established that he was engaged in any systematic or organized activity of providing service to the occupiers of the shops/stalls so as to constitute the receipts from them as business income. In our opinion, the assessee received income by letting out shops/stalls; and therefore, the same has to be held as income from house property."18. The ITAT being the last forum insofar as factual determination is concerned, these findings have attained finality. In any case, as mentioned above, the learned counsel for the appellant did not argue on this aspect and did not make any efforts to show as to how the aforesaid findings were perverse. It was for the appellant to produce sufficient material on record to show that its entire income or substantial income was from letting out of the property which was the principal business activity of the appellant. No such effort was made.19. Reliance placed by the appellant on the judgments of this Court in Chennai Properties & Investments Ltd. and Rayala Corporation (P) Ltd. would be of no avail. In Chennai Properties & Investments Ltd. where one of us (Sikri, J.) was a part of the Bench found that the entire income of the appellant was through letting out of the two properties it owned and there was no other income of the assessee except the income from letting out of the said properties, which was the business of the assessee. On those facts, this Court came to the conclusion that judgment of this Court in Karanpura Development Co. Ltd. v. CIT, (1962) 44 ITR 362 was applicable and the judgment of this Court in East India Housing and Land Development Trust Ltd. v. CIT, (1961) 42 ITR 49 was held to be distinguishable. In the present case, we find that situation is just the reverse. The judgment in East India Housing and Land Development Trust Ltd. which would be applicable which is discussed in para 8 of Chennai Properties & Investments Ltd. case and the reproduction thereof would bring home the point we are canvassing:"8. With this background, we first refer to the judgment of this Court in East India Housing and Land Development Trust Ltd. case [East India Housing and Land Development Trust Ltd. v. CIT, (1961) 42 ITR 49 (SC)] which has been relied upon by the High Court. That was a case where the company was incorporated with the object of buying and developing landed properties and promoting and developing markets. Thus, the main objective of the company was to develop the landed properties into markets. It so happened that some shops and stalls, which were developed by it, had been rented out and income was derived from the renting of the said shops and stalls. In those facts, the question which arose for consideration was: whether the rental income that is received was to be treated as income from the house property or the income from the business? This Court while holding that the income shall be treated as income from the house property, rested its decision in the context of the main objective of the company and took note of the fact that letting out of the property was not the object of the company at all. The Court was therefore, of the opinion that the character of that income which was from the house property had not altered because it was received by the company formed with the object of developing and setting up properties."20. In Rayala Corporation (P) Ltd., fact situation was identical to the case of Chennai Properties & Investments Ltd. and for this reason, Rayala Corporation (P) Ltd. followed Chennai Properties & Investments Ltd., which is held to be inapplicable in the instant case. ### Response: 0

Welcome Hotel and Others Vs. State of Andhra Pradesh and Others

Mr. Kanta Rao, therefore, must be negatived.6. It was next contended that the maximum price of scheduled items fixed under the impugned orders is economically unprofitable and the same have been arrived at without scientifically examining the price of inputs and overhead charges and the reasonable return on investment and therefore, the exercise of fixing maximum price suffers fro m the vice of arbitrariness and must be declared unconstitutional as being violative of Art. 14. While canvassing the submission, some attempt was made both on the side of the petitioners as well as on the side of the State to take u s through the labyrinth of the tables drawn up by both side showing prices of inputs and overhead charges. We declined to be involved in the vortex of this cost accountants exercise as we are neither experts of the subject nor we consider it necessary to undertake this exercise. The argument proceeded that the prices of inputs have escalated so high that the maximum prices determined by the impugned orders have become uneconomical. For this malaise, petitioners have to thank themselves because it was an integral part of their agreement with the Minister of Civil Supplies on December 31, 1980 that the maximum prices fixed by the impugned orders would be re-examined on the expiration of the three months from the date of the agreement. Instead of honoring this agreement, the petitioners within a span of 12 days rushed to this Court and obtained ex-parte stay order wholly suppressing the fact that the orders impugned in these petitions have already been replaced by the latest order dated January 5, 1981. Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court.In order to illustrate how the Court is not the forum for scientifically structuring prices of commodities, it may be pointed out that the petitioners in their price structure tables have added in respect of each scheduled item 24% of wages. Totalling the wages for seven items the wage bill accumulates at 175%. And that is equally true of other overhead charges. Add to this numerous other items of food sold by petitioners in their establishments and the utter unsustainability of their claim becomes manifest.7. We would however, reject the contention about the mechanics of price fixation on the short ground that petitioners, ordinarily do not serve only the scheduled items, but they have large establishments catering to various tastes and delicacies. No price fixation order need guarantee profit to an establishment in respect of each unit of article served or sold. It is the over all picture in the trade or commerce that needs to be examined. Petitioners have not shown that in their over all turnover they have since the promulgation of impugned orders suffered losses. And this situation never fructified because the 1978 Order was kept in suspended animation for a period of two years and when the latest order dated January 5, 1981 was promulgated, it was still-born at the hands of the Court because of the ex-parte stay order obtained by the petitioners. And we reject this contention for the additional reason as laid down by a Constitution Bench of seven learned Judges of this Court in Prag Ic e &Oil Mills &Anr. etc. v. Union of India(1) where Chandrachud, C.J. observed as under;"In the ultimate analysis, the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid."Not the slightest case is made out for departure fro m the proposition laid down by this Court as extracted hereinabove.8. Before we conclude, we would like to pin-point the unfair advantage which the petitioners have obtained by ex- parte stay suppressing the material fact that the later order had already replaced the earlier orders and the latest order was issued with their consent. In the Writ Petition No. 43/81 the prayer clause reads as under:"Issue a writ of mandamus or any other appropriate writ or order holding that G.O. Ms. No. 548 dated 8.9.1978 and G.O. Ms. No. 626 dated 11.12.1980 of the Government of Andhra Pradesh and the notification issued by the Collector, the second respondent herein dated 16.12.1980 in pursuance of the said impugned Orders as ultra vires, unconstitutional and void and quash the same."9. The bone of contention was not the power exercised by the State Government but the maximum prices fixed in exercise of the power conferred on the State Government. The maximum prices were to be regulated as per the order dated January 5, 1981, and even though this Court was moved for ex-parte stay on January 12, 1981, the fact that the latest order dated January 5, 1981 has replaced the earlier orders was suppressed from the Court. And peculiarly the State Government did not pursue vigorously its latest notification dated January 5, 1981 because its operation was not stayed by the Court. However, the entire notification fixing the price of the menu of the poormen was put under suspended animation leaving the hoteliers to extort any price to suit their greed. Now that we are dismissing these petitions and vacate the stay orders, the notification fixing the maximum prices will revive and can be enforced. But in the meantime the poor of Andhra Pradesh were made to pay by their nose for their simplest menu and the difference between maximum price fixed by the impugned notification and the prices charged by the hoteliers would be unjust enrichment of the hoteliers undeservedly enjoyed with the assistance of the court by the exercise of the constitutional power under Art. 32 of the Constitution, and there is no way of depriving this unjust enrichment The Court set up for justice, including socio-economic justice, unfortunately lent its assistance to such unjust enrichment and yet we are helpless.Fo

0[ds]We declined to be involved in the vortex of this cost accountants exercise as we are neither experts of the subject nor we consider it necessary to undertake this exercise. The argument proceeded that the prices of inputs have escalated so high that the maximum prices determined by the impugned orders have become uneconomical. For this malaise, petitioners have to thank themselves because it was an integral part of their agreement with the Minister of Civil Supplies on December 31, 1980 that the maximum prices fixed by the impugned orders would be re-examined on the expiration of the three months from the date of the agreement. Instead of honoring this agreement, the petitioners within a span of 12 days rushed to this Court and obtained ex-parte stay order wholly suppressing the fact that the orders impugned in these petitions have already been replaced by the latest order dated January 5, 1981. Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court.In order to illustrate how the Court is not the forum for scientifically structuring prices of commodities, it may be pointed out that the petitioners in their price structure tables have added in respect of each scheduled item 24% of wages. Totalling the wages for seven items the wage bill accumulates at 175%. And that is equally true of other overhead charges. Add to this numerous other items of food sold by petitioners in their establishments and the utter unsustainability of their claim becomeswould however, reject the contention about the mechanics of price fixation on the short ground that petitioners, ordinarily do not serve only the scheduled items, but they have large establishments catering to various tastes and delicacies. No price fixation order need guarantee profit to an establishment in respect of each unit of article served or sold. It is the over all picture in the trade or commerce that needs to be examined. Petitioners have not shown that in their over all turnover they have since the promulgation of impugned orders suffered losses. And this situation never fructified because the 1978 Order was kept in suspended animation for a period of two years and when the latest order dated January 5, 1981 was promulgated, it was still-born at the hands of the Court because of the ex-parte stay order obtained by the petitioners. And we reject this contention for the additional reason as laid down by a Constitution Bench of seven learned Judges of this Court in Prag Ic e &Oil Mills &Anr. etc. v. Union of India(1) where Chandrachud, C.J. observed asthe ultimate analysis, the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases asthe slightest case is made out for departure fro m the proposition laid down by this Court as extractedwe conclude, we would like to pin-point the unfair advantage which the petitioners have obtained by ex- parte stay suppressing the material fact that the later order had already replaced the earlier orders and the latest order was issued with their consent. In the Writ Petition No. 43/81 the prayer clause reads asa writ of mandamus or any other appropriate writ or order holding that G.O. Ms. No. 548 dated 8.9.1978 and G.O. Ms. No. 626 dated 11.12.1980 of the Government of Andhra Pradesh and the notification issued by the Collector, the second respondent herein dated 16.12.1980 in pursuance of the said impugned Orders as ultra vires, unconstitutional and void and quash thebone of contention was not the power exercised by the State Government but the maximum prices fixed in exercise of the power conferred on the State Government. The maximum prices were to be regulated as per the order dated January 5, 1981, and even though this Court was moved for ex-parte stay on January 12, 1981, the fact that the latest order dated January 5, 1981 has replaced the earlier orders was suppressed from the Court. And peculiarly the State Government did not pursue vigorously its latest notification dated January 5, 1981 because its operation was not stayed by the Court. However, the entire notification fixing the price of the menu of the poormen was put under suspended animation leaving the hoteliers to extort any price to suit their greed. Now that we are dismissing these petitions and vacate the stay orders, the notification fixing the maximum prices will revive and can be enforced. But in the meantime the poor of Andhra Pradesh were made to pay by their nose for their simplest menu and the difference between maximum price fixed by the impugned notification and the prices charged by the hoteliers would be unjust enrichment of the hoteliers undeservedly enjoyed with the assistance of the court by the exercise of the constitutional power under Art. 32 of the Constitution, and there is no way of depriving this unjust enrichment The Court set up for justice, including socio-economic justice, unfortunately lent its assistance to such unjust enrichment and yet we are helpless.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: Mr. Kanta Rao, therefore, must be negatived.6. It was next contended that the maximum price of scheduled items fixed under the impugned orders is economically unprofitable and the same have been arrived at without scientifically examining the price of inputs and overhead charges and the reasonable return on investment and therefore, the exercise of fixing maximum price suffers fro m the vice of arbitrariness and must be declared unconstitutional as being violative of Art. 14. While canvassing the submission, some attempt was made both on the side of the petitioners as well as on the side of the State to take u s through the labyrinth of the tables drawn up by both side showing prices of inputs and overhead charges. We declined to be involved in the vortex of this cost accountants exercise as we are neither experts of the subject nor we consider it necessary to undertake this exercise. The argument proceeded that the prices of inputs have escalated so high that the maximum prices determined by the impugned orders have become uneconomical. For this malaise, petitioners have to thank themselves because it was an integral part of their agreement with the Minister of Civil Supplies on December 31, 1980 that the maximum prices fixed by the impugned orders would be re-examined on the expiration of the three months from the date of the agreement. Instead of honoring this agreement, the petitioners within a span of 12 days rushed to this Court and obtained ex-parte stay order wholly suppressing the fact that the orders impugned in these petitions have already been replaced by the latest order dated January 5, 1981. Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court.In order to illustrate how the Court is not the forum for scientifically structuring prices of commodities, it may be pointed out that the petitioners in their price structure tables have added in respect of each scheduled item 24% of wages. Totalling the wages for seven items the wage bill accumulates at 175%. And that is equally true of other overhead charges. Add to this numerous other items of food sold by petitioners in their establishments and the utter unsustainability of their claim becomes manifest.7. We would however, reject the contention about the mechanics of price fixation on the short ground that petitioners, ordinarily do not serve only the scheduled items, but they have large establishments catering to various tastes and delicacies. No price fixation order need guarantee profit to an establishment in respect of each unit of article served or sold. It is the over all picture in the trade or commerce that needs to be examined. Petitioners have not shown that in their over all turnover they have since the promulgation of impugned orders suffered losses. And this situation never fructified because the 1978 Order was kept in suspended animation for a period of two years and when the latest order dated January 5, 1981 was promulgated, it was still-born at the hands of the Court because of the ex-parte stay order obtained by the petitioners. And we reject this contention for the additional reason as laid down by a Constitution Bench of seven learned Judges of this Court in Prag Ic e &Oil Mills &Anr. etc. v. Union of India(1) where Chandrachud, C.J. observed as under;"In the ultimate analysis, the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid."Not the slightest case is made out for departure fro m the proposition laid down by this Court as extracted hereinabove.8. Before we conclude, we would like to pin-point the unfair advantage which the petitioners have obtained by ex- parte stay suppressing the material fact that the later order had already replaced the earlier orders and the latest order was issued with their consent. In the Writ Petition No. 43/81 the prayer clause reads as under:"Issue a writ of mandamus or any other appropriate writ or order holding that G.O. Ms. No. 548 dated 8.9.1978 and G.O. Ms. No. 626 dated 11.12.1980 of the Government of Andhra Pradesh and the notification issued by the Collector, the second respondent herein dated 16.12.1980 in pursuance of the said impugned Orders as ultra vires, unconstitutional and void and quash the same."9. The bone of contention was not the power exercised by the State Government but the maximum prices fixed in exercise of the power conferred on the State Government. The maximum prices were to be regulated as per the order dated January 5, 1981, and even though this Court was moved for ex-parte stay on January 12, 1981, the fact that the latest order dated January 5, 1981 has replaced the earlier orders was suppressed from the Court. And peculiarly the State Government did not pursue vigorously its latest notification dated January 5, 1981 because its operation was not stayed by the Court. However, the entire notification fixing the price of the menu of the poormen was put under suspended animation leaving the hoteliers to extort any price to suit their greed. Now that we are dismissing these petitions and vacate the stay orders, the notification fixing the maximum prices will revive and can be enforced. But in the meantime the poor of Andhra Pradesh were made to pay by their nose for their simplest menu and the difference between maximum price fixed by the impugned notification and the prices charged by the hoteliers would be unjust enrichment of the hoteliers undeservedly enjoyed with the assistance of the court by the exercise of the constitutional power under Art. 32 of the Constitution, and there is no way of depriving this unjust enrichment The Court set up for justice, including socio-economic justice, unfortunately lent its assistance to such unjust enrichment and yet we are helpless.Fo ### Response: 0

Rai Ramkrishna & Others Vs. State of Bihar

altogether ignored. Mr. Sastri contends that the two suits filed by the appellants and the passengers and the owners of goods respectively disclose a common design and can be treated as friendly suits actuated by the same motive and we do not think that this contention can be rejected as wholly unjustified. Apart from it, when the injunction was issued against the respondent in the appellants, suit, the appellants gave an undertaking in writing to levy the taxes payable on the Fares and freights as provided by the law in case their suit failed. As we have already seen, their suit was dismissed by the High Court on May 8, 1952, so that it was then open to the respondent to call upon the appellants to pay the taxes for the period covered by the orders of injunction and to require them to pay future taxes because the earlier Act under which the taxes were recovered was held to be valid by the High Court. It is no doubt suggested by Mr. Setalvad that the spirit of the undertaking required that no recovery should be made until the final disposal of the proceeding between the parties. We do not see how this argument about the spirit of the undertaking can avail the appellants.20. As soon as their suit against the respondent was dismissed, the respondent was at liberty to enforce the provisions of the Act and the dismissal of the suit made it possible for the respondent to claim the taxes even for the period covered by the order of injunction. We do not think that in the context, the dismissal of the suit can legitimately refer to the final disposal of the appeal filed by the appellants before this Court. In any event, having regard to the genesis of the two suits, the nature of the orders of injunction issued in them and the character of the undertaking given by the appellants, we do not think it would be possible to sustain Mr. Setalvads argument that for the period of the injunction the retrospective operation of the Act should be held to be invalid.21. In this connection, it would be relevant to refer to another fact which appears on the record. Along with the appellants, 18 other bus owners had filed writ petitions challenging the validity of the Act. These petitioners have not appealed to this Court presumably because their cases fall under the provisions of Section 23(a) of the Act. It is likely that they had paid the amounts, and since the amounts paid under the provisions of the earlier Act are now deemed to have been paid under the provisions of this Act, they did not think it worthwhile to come to this Court against the decision of the High Court. Apart from that, it is not unlikely that other bus owners may have made similar payments and the appellants have, therefore, come to this Court because they have made no payments and so, their cases do not fall under S. 23(a) or may be, their cases fall under Section 23(b). The position therefore, is that the retrospective operation of Section 23(a) and (b) covers respectively cases of payments actually made under the provisions of the earlier Act, and cases pending inquiry, and the retrospective operation of Section 3(3) read with Section 1(3) only applies to cases of persons who did not pay the tax during the whole of the period, or whose cases were not pending; and it is this limited class of persons whose interests are represented by the appellants before us.Having regard to the somewhat unusual circumstances which furnish the background for the enactment of the impugned statute, we do not think that we could accept Mr. Setalvads argument that the retrospective operation of the Act imposes restriction on the appellants which contravene the provisions of Article 19(1) (f) and (g). In our opinion, having regard to all the relevant facts of this case, the restrictions imposed by the said retrospective operation must be held to be reasonable and in the public interest under Article 19(5) and (6) and also reasonable under Article 304(b).22. There is only one more point to which reference must be made. We have already noticed that the High Court has rejected the argument urged on behalf of the State that the tax imposed by the Act is of a compensatory or regulatory character and therefore, is valid. Mr. Sastri wanted to press that part of the case of the State before us. He urged that according to the majority decision of this Court in the case of the Automobile Transport (Rajasthan) Ltd., AIR 1961 SC 1406 it must now be taken to be settled that"regulatory measures or measures imposing compensatory taxes for the use of trading facilities do not come within the purview of the restrictions contemplated by Article 301 and such measures need not comply with the requirements of the proviso to Article 304(b) of the Constitution."23. On the other hand, Mr. Setalvad had argued that the doctrine of compensatory or regulatory taxation which is mainly based on Australian decisions cannot be extended to the present case, and he contends that if the doctrine of regulatory or compensatory taxes is very liberally construed, it would tend to cover all taxes, because in a loose sense, all taxes raised by the State can ultimately be said to be compensatory in a far-fetched manner, and in that way, the well-recognised constitutional difference between a tax and a fee will be obliterated and the provisions of Part XIII of the Constitution will lose all their significance. Part XIII contains provisions which constitute a self-contained Code and we need not really travel outside the said provisions in determining the validity of the tax imposed by the Act. Since we have come to the conclusion that the challenge to the validity of the retrospective operation of the Act cannot be sustained, we do not think it necessary to pursue this matter any further.24.

0[ds]11. It is also true that though the Legislature can pass a law and make its provisions retrospective, it would be relevant to consider the effect of the said retrospective operation of the law both in respect of the legislative competence of the Legislature and the reasonableness of the restrictions imposed by it. In other words, it may be open to a party affected by the provisions of the Act to contend that the retrospective operation of the Act so completely alters the character of the tax imposed by it as to take it outside the limits of the entry which gives the Legislature competence to enact the law; or it may be open to it to contend in the alternative that the restrictions imposed by the Act are so unreasonable that they should be struck down on the ground that they contravene his fundamental rights guaranteed under Art. 19(1) (f) and (g).It is, of course, true that the power of taxing the people and their property is an essential attribute of the Government and Government may legitimately exercise the said power by reference to the objects to which it is applicable to the utmost extent to which Government thinks it expedient to do so. The objects to be taxed so long as they happen to be within the legislative competence of the Legislature can be taxed by the Legislature according to the exigencies of its needs because there can be no doubt that the State is entitled to raise revenue by taxation. The quantum of tax levied by the taxing statute, the conditions subject to which it is levied the manner in which it is sought to be recovered, are all matters within the competence of the Legislature, and in dealing with the contention raised by a citizen that the taxing statute contravenes Art. 19, Courts would naturally be circumspect and cautious. Where for instance it appears that the taxing statute is plainly discriminatory, or provides no procedural machinery for assessment and levy of the tax, or that it is confiscatory, Courts would be justified in striking down the impugned statute as unconstitutional. In such cases, the character of the material provisions of the impugned statute is such that the Court would feel justified in taking the view that, in substance the taxing statute is a cloak adopted by the Legislature for achieving its confiscatoryapart from that, it seems to us that the nature of the tax in the present case is the same both in regard to prospective and retrospective operations, and so, it is difficult to entertain the argument that the tax has ceased to be tax on passengers and is, therefore outside Entryargument that the retrospective operation of the Act is beyond the legislative competence of the Bihar legislature must, therefore, beposition therefore, appears to be well settled that if in its essential features a taxing statute is within the legislative competence of the Legislature which passed it by reference to the relevant entry in the List, its character is not necessarily changed merely by its retrospective operation so as to make (sic take) the said retrospective operation outside the legislative competence of the said Legislature, and so, we must hold that the challenge to the validity of the retrospective operation of the Act on the ground that the provision in that behalf is beyond the legislative competence of the Bihar Legislature must be rejected.We do not think that such a mechanical test can be applied in determining the validity of the retrospective operation of the Act. It is conceivable that cases may arise in which the retrospective operation of a taxing or other statute may introduce such an element of unreasonableness that the restrictions imposed by it may be open to serious challenge as unconstitutional; but the test of the Length of time covered by the retrospective operation cannot, by itself, necessarily be a decisive test.We may have a statute whose retrospective operation covers a comparatively short period and yet it is possible that the nature of the restriction imposed by it may be of such a character as to introduce a serious infirmity in the retrospective operation.On the other hand, we may get cases where the period covered by the retrospective operation of the statute, though long, will not introduce any such infirmity. Take the case of a Validating Act. If a statute passed by The Legislature is challenged in proceedings before a Court and the challenge is ultimately sustained and the statute is struck down, it is not unlikely that the judicial proceedings may occupy a fairly long period and the Legislature may well decide to await the final decision in said proceedings before it uses its legislative power to cure the alleged infirmity in the earlier Act. In such a case, if after the final judicial verdict is pronounced in the matter the Legislature passes a validating Act, it may well cover a long period taken by the Judicial proceedings in Court and yet it would be inappropriate to hold that because the retrospective operation covers a long period, therefore, the restriction imposed by it is unreasonable. That is why we think the test of the length of time covered by the retrospective operation cannot be treated as a decisive test.18. Take the present case. The earlier Act was passed in 1950 and came into force on the 1st of April 1950, and the tax imposed by it was being collected until an order of injunction was passed in the two suits to which we have already referred. The said suits were dismissed on the 8th May, 1952, but the appeals preferred by the appellants were pending in this Court until the 12th December 1960. In other words between 1950 and 1960 proceedings were pending in Court in which this validity of the Act was being examined, and if a Validating Act had to be passed, the Legislature cannot be blamed for having awaited the final decision of this Court in the said proceedings. Thus, the period covered between the institution of the said two suits and their final disposal by this Court cannot be pressed into service for challenging the reasonableness of the retrospective operation of theposition therefore, is that the retrospective operation of Section 23(a) and (b) covers respectively cases of payments actually made under the provisions of the earlier Act, and cases pending inquiry, and the retrospective operation of Section 3(3) read with Section 1(3) only applies to cases of persons who did not pay the tax during the whole of the period, or whose cases were not pending; and it is this limited class of persons whose interests are represented by the appellants before us.Having regard to the somewhat unusual circumstances which furnish the background for the enactment of the impugned statute, we do not think that we could accept Mr. Setalvads argument that the retrospective operation of the Act imposes restriction on the appellants which contravene the provisions of Article 19(1) (f) and (g). In our opinion, having regard to all the relevant facts of this case, the restrictions imposed by the said retrospective operation must be held to be reasonable and in the public interest under Article 19(5) and (6) and also reasonable under Articlemeasures or measures imposing compensatory taxes for the use of trading facilities do not come within the purview of the restrictions contemplated by Article 301 and such measures need not comply with the requirements of the proviso to Article 304(b) of the Constitution.

### 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: altogether ignored. Mr. Sastri contends that the two suits filed by the appellants and the passengers and the owners of goods respectively disclose a common design and can be treated as friendly suits actuated by the same motive and we do not think that this contention can be rejected as wholly unjustified. Apart from it, when the injunction was issued against the respondent in the appellants, suit, the appellants gave an undertaking in writing to levy the taxes payable on the Fares and freights as provided by the law in case their suit failed. As we have already seen, their suit was dismissed by the High Court on May 8, 1952, so that it was then open to the respondent to call upon the appellants to pay the taxes for the period covered by the orders of injunction and to require them to pay future taxes because the earlier Act under which the taxes were recovered was held to be valid by the High Court. It is no doubt suggested by Mr. Setalvad that the spirit of the undertaking required that no recovery should be made until the final disposal of the proceeding between the parties. We do not see how this argument about the spirit of the undertaking can avail the appellants.20. As soon as their suit against the respondent was dismissed, the respondent was at liberty to enforce the provisions of the Act and the dismissal of the suit made it possible for the respondent to claim the taxes even for the period covered by the order of injunction. We do not think that in the context, the dismissal of the suit can legitimately refer to the final disposal of the appeal filed by the appellants before this Court. In any event, having regard to the genesis of the two suits, the nature of the orders of injunction issued in them and the character of the undertaking given by the appellants, we do not think it would be possible to sustain Mr. Setalvads argument that for the period of the injunction the retrospective operation of the Act should be held to be invalid.21. In this connection, it would be relevant to refer to another fact which appears on the record. Along with the appellants, 18 other bus owners had filed writ petitions challenging the validity of the Act. These petitioners have not appealed to this Court presumably because their cases fall under the provisions of Section 23(a) of the Act. It is likely that they had paid the amounts, and since the amounts paid under the provisions of the earlier Act are now deemed to have been paid under the provisions of this Act, they did not think it worthwhile to come to this Court against the decision of the High Court. Apart from that, it is not unlikely that other bus owners may have made similar payments and the appellants have, therefore, come to this Court because they have made no payments and so, their cases do not fall under S. 23(a) or may be, their cases fall under Section 23(b). The position therefore, is that the retrospective operation of Section 23(a) and (b) covers respectively cases of payments actually made under the provisions of the earlier Act, and cases pending inquiry, and the retrospective operation of Section 3(3) read with Section 1(3) only applies to cases of persons who did not pay the tax during the whole of the period, or whose cases were not pending; and it is this limited class of persons whose interests are represented by the appellants before us.Having regard to the somewhat unusual circumstances which furnish the background for the enactment of the impugned statute, we do not think that we could accept Mr. Setalvads argument that the retrospective operation of the Act imposes restriction on the appellants which contravene the provisions of Article 19(1) (f) and (g). In our opinion, having regard to all the relevant facts of this case, the restrictions imposed by the said retrospective operation must be held to be reasonable and in the public interest under Article 19(5) and (6) and also reasonable under Article 304(b).22. There is only one more point to which reference must be made. We have already noticed that the High Court has rejected the argument urged on behalf of the State that the tax imposed by the Act is of a compensatory or regulatory character and therefore, is valid. Mr. Sastri wanted to press that part of the case of the State before us. He urged that according to the majority decision of this Court in the case of the Automobile Transport (Rajasthan) Ltd., AIR 1961 SC 1406 it must now be taken to be settled that"regulatory measures or measures imposing compensatory taxes for the use of trading facilities do not come within the purview of the restrictions contemplated by Article 301 and such measures need not comply with the requirements of the proviso to Article 304(b) of the Constitution."23. On the other hand, Mr. Setalvad had argued that the doctrine of compensatory or regulatory taxation which is mainly based on Australian decisions cannot be extended to the present case, and he contends that if the doctrine of regulatory or compensatory taxes is very liberally construed, it would tend to cover all taxes, because in a loose sense, all taxes raised by the State can ultimately be said to be compensatory in a far-fetched manner, and in that way, the well-recognised constitutional difference between a tax and a fee will be obliterated and the provisions of Part XIII of the Constitution will lose all their significance. Part XIII contains provisions which constitute a self-contained Code and we need not really travel outside the said provisions in determining the validity of the tax imposed by the Act. Since we have come to the conclusion that the challenge to the validity of the retrospective operation of the Act cannot be sustained, we do not think it necessary to pursue this matter any further.24. ### Response: 0

Ramvallabh Tibrewalla Vs. Dwarkadas & Co

words "instead of proceeding under Chapter II" in S. 20 suggest that the parties may proceed under Chap. III where they could proceed under Chap. II. Reading Chap. II with S. 2(a), it is plain that an arbitration agreement entered into while no suit with respect to its subject-matter is pending may be enforced under Chap II. Since such an agreement is enforceable under Chap. II, prima facie it is also enforceable under Chap. III. 10. The opening words of S. 20 contemplate that a suit with respect to the subject-matter of the arbitration agreement may or may not be filed. In order to attract S. 20, it is not, therefore, necessary that the arbitration agreement should be followed by a suit with respect to its subject-matter. The word "before is not used in the strict grammatical sense of priority in order of time. In the light of the other parts of S. 20, its heading and the general scheme of the Act, we think that the legislature used the words "before the institution of any suit" in the sense of "while no suit is pending" and not in the sense of "where no suit has been instituted. The former meaning is more in harmony with the real intention of the legislature. If the agreement is entered into while no suit with respect to its subject-matter is pending, the fact that its subject-matter was the subject-matter of a previously instituted suit would not preclude its enforcement under Chaps. II and III. We think, therefore, that the words "before the institution of any suit with respect to the subject-matter of the agreement or any part of it" mean "while no suit with respect to the subject-matter of the agreement or any part of it is pending". These words qualify the preceding words "an arbitration agreement" and not the succeeding words "may apply". In other words S. 20 is attracted to an arbitration agreement entered into while no suit with respect to its subject-matter is pending. If it is entered into while such a suit is pending, it cannot be enforced by an application under S. 20, though the application is made when the suit is no longer pending. 11. Learned counsel for the parties cited before us the following cases decided under paragraph 17 of Sch. II of the Code of 1908, viz., Kokil Singh v. Ramasray Prasad Chaoudhary, ILR 3 pat 443: (AIR 1924 Pat 488 ), Lal Chand v. Sri Ram, AIR 1930 Lah 1066, Hira ram v. Ram Ditta, AIR 1935 Lah 59, and Dinkarrai Lakshmiprasad v. Yeshwantrial Hariprasad, ILR 54 Bom 197: (AIR 1930 Bom 98 , It is to be noticed that the heading of Chap. III "Arbitration with intervention of a Court where there is no suit pending" and the words in S. 20 "before the institution of any suit with respect to the subject-matter of the agreement or any part of it" and "instead of proceeding under Chapter II" do not find any counterpart in the corresponding provision of Sch. II of the Code of Civil Procedure, 1908. In the circumstances, we think that the cases decided under paragraph 17 of Sch. II of the Code of 1908 are not decisive on the question of construction of S. 20 of the present Act, and that section must be construed in the light of its own language and the scheme of the present Act. 12. Now, the question is whether the agreement dated February 18, 1954 is an agreement, to which S. 20 is attracted. The relevant operative portion of the agreement reads:"All matters in disputes in suit No. 1712 of 1949 (Ramvallabh Tibrewalla v. Messers. Dwarkadas and Co.) in Bombay High Court including the question of whether the accounts were made up and adjusted and/or settled between the parties as pleaded in the written statement of the Defendants and the costs of the suit be referred to the sole arbitration of Ramrikhdas Parasrampuria...... . The intention of the parties is that the said matters in dispute between them be decided by arbitration and it is agreed that the said suit will therefore be withdrawn." The agreement was signed on February 18, 1954, while the suit was pending. Before us, it is admitted by counsel for both parties that the suit was withdrawn on or about the same date. The parties obviously intended that the pending suit would be withdrawn immediately so that the disputes might be resolved by arbitration without recourse to litigation. On a proper interpretation of the agreement, the withdrawal of the suit was the essential condition, upon the fulfilment of which the agreement would become operative. Thus, the effective arbitration agreement came into existence when the suit was withdrawn and may property be said to have been entered into while no suit with respect to its subject-matter was pending. The agreement can therefore, be filed under S. 20. 13. The ground upon which the Courts below dismissed the application for filing the arbitration agreement under S. 20 cannot, therefore, be upheld. A technical objection as to the frame of the application based on Rule 391 of the High Court Rules is no longer pressed. But the respondent also contends that (1) the appellant elected to proceed with the arbitration under Chap. II, and having so elected, he cannot now claim arbitration under Chap. III; (2) the application is barred by limitation, and the prayer for exclusion of time under S. 37 ought not to be allowed; and (3) the parties intended that the arbitration would be by Ramrikhdas Parasrampuria only, and as he is not willing to act and/or has been removed, there can be no further arbitration. The Courts below have not considered these contentions of the respondent. Having heard learned counsel on both sides, we think that the respondent is entitled to ask for the final disposal of the application after consideration of these points by the lower appellate Court, and for that purpose, this case should be remanded.

1[ds]13. The ground upon which the Courts below dismissed the application for filing the arbitration agreement under S. 20 cannot, therefore, be upheld. A technical objection as to the frame of the application based on Rule 391 of the High Court Rules is no longer pressed. But the respondent also contends that (1) the appellant elected to proceed with the arbitration under Chap. II, and having so elected, he cannot now claim arbitration under Chap. III; (2) the application is barred by limitation, and the prayer for exclusion of time under S. 37 ought not to be allowed; and (3) the parties intended that the arbitration would be by Ramrikhdas Parasrampuria only, and as he is not willing to act and/or has been removed, there can be no further arbitration. The Courts below have not considered these contentions of the respondent. Having heard learned counsel on both sides, we think that the respondent is entitled to ask for the final disposal of the application after consideration of these points by the lower appellate Court, and for that purpose, this case should be remanded.

### 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: words "instead of proceeding under Chapter II" in S. 20 suggest that the parties may proceed under Chap. III where they could proceed under Chap. II. Reading Chap. II with S. 2(a), it is plain that an arbitration agreement entered into while no suit with respect to its subject-matter is pending may be enforced under Chap II. Since such an agreement is enforceable under Chap. II, prima facie it is also enforceable under Chap. III. 10. The opening words of S. 20 contemplate that a suit with respect to the subject-matter of the arbitration agreement may or may not be filed. In order to attract S. 20, it is not, therefore, necessary that the arbitration agreement should be followed by a suit with respect to its subject-matter. The word "before is not used in the strict grammatical sense of priority in order of time. In the light of the other parts of S. 20, its heading and the general scheme of the Act, we think that the legislature used the words "before the institution of any suit" in the sense of "while no suit is pending" and not in the sense of "where no suit has been instituted. The former meaning is more in harmony with the real intention of the legislature. If the agreement is entered into while no suit with respect to its subject-matter is pending, the fact that its subject-matter was the subject-matter of a previously instituted suit would not preclude its enforcement under Chaps. II and III. We think, therefore, that the words "before the institution of any suit with respect to the subject-matter of the agreement or any part of it" mean "while no suit with respect to the subject-matter of the agreement or any part of it is pending". These words qualify the preceding words "an arbitration agreement" and not the succeeding words "may apply". In other words S. 20 is attracted to an arbitration agreement entered into while no suit with respect to its subject-matter is pending. If it is entered into while such a suit is pending, it cannot be enforced by an application under S. 20, though the application is made when the suit is no longer pending. 11. Learned counsel for the parties cited before us the following cases decided under paragraph 17 of Sch. II of the Code of 1908, viz., Kokil Singh v. Ramasray Prasad Chaoudhary, ILR 3 pat 443: (AIR 1924 Pat 488 ), Lal Chand v. Sri Ram, AIR 1930 Lah 1066, Hira ram v. Ram Ditta, AIR 1935 Lah 59, and Dinkarrai Lakshmiprasad v. Yeshwantrial Hariprasad, ILR 54 Bom 197: (AIR 1930 Bom 98 , It is to be noticed that the heading of Chap. III "Arbitration with intervention of a Court where there is no suit pending" and the words in S. 20 "before the institution of any suit with respect to the subject-matter of the agreement or any part of it" and "instead of proceeding under Chapter II" do not find any counterpart in the corresponding provision of Sch. II of the Code of Civil Procedure, 1908. In the circumstances, we think that the cases decided under paragraph 17 of Sch. II of the Code of 1908 are not decisive on the question of construction of S. 20 of the present Act, and that section must be construed in the light of its own language and the scheme of the present Act. 12. Now, the question is whether the agreement dated February 18, 1954 is an agreement, to which S. 20 is attracted. The relevant operative portion of the agreement reads:"All matters in disputes in suit No. 1712 of 1949 (Ramvallabh Tibrewalla v. Messers. Dwarkadas and Co.) in Bombay High Court including the question of whether the accounts were made up and adjusted and/or settled between the parties as pleaded in the written statement of the Defendants and the costs of the suit be referred to the sole arbitration of Ramrikhdas Parasrampuria...... . The intention of the parties is that the said matters in dispute between them be decided by arbitration and it is agreed that the said suit will therefore be withdrawn." The agreement was signed on February 18, 1954, while the suit was pending. Before us, it is admitted by counsel for both parties that the suit was withdrawn on or about the same date. The parties obviously intended that the pending suit would be withdrawn immediately so that the disputes might be resolved by arbitration without recourse to litigation. On a proper interpretation of the agreement, the withdrawal of the suit was the essential condition, upon the fulfilment of which the agreement would become operative. Thus, the effective arbitration agreement came into existence when the suit was withdrawn and may property be said to have been entered into while no suit with respect to its subject-matter was pending. The agreement can therefore, be filed under S. 20. 13. The ground upon which the Courts below dismissed the application for filing the arbitration agreement under S. 20 cannot, therefore, be upheld. A technical objection as to the frame of the application based on Rule 391 of the High Court Rules is no longer pressed. But the respondent also contends that (1) the appellant elected to proceed with the arbitration under Chap. II, and having so elected, he cannot now claim arbitration under Chap. III; (2) the application is barred by limitation, and the prayer for exclusion of time under S. 37 ought not to be allowed; and (3) the parties intended that the arbitration would be by Ramrikhdas Parasrampuria only, and as he is not willing to act and/or has been removed, there can be no further arbitration. The Courts below have not considered these contentions of the respondent. Having heard learned counsel on both sides, we think that the respondent is entitled to ask for the final disposal of the application after consideration of these points by the lower appellate Court, and for that purpose, this case should be remanded. ### Response: 1

Darshan Lal Vs. The Delhi Administration

The Deputy Superintendent of Police noted its number in the presence of the witnesses and gave certain directions to them. The appellant went to Niranjan Lal at 4-30 p.m. and inquired from him whether he has arranged for the money. When Niranjan Lal replied in the affirmative, he said that he would take the money from him while returning from duty. He came again at 5.30 p.m. and asked Niranjan Lal to accompany him to the Bus stop at the Kashmere Gate. There the currency note of Rs. 100/- was given to him by Niranjan Lal. Satischandra gave a signal to the police. On smelling a police raid the appellant threw away the note from the right pocket of his pant. Satish Chandra picked up the note from the ground and handed it over to the Deputy Superintendent of Police. The note was seized under recovery memo. 3. The appellant has denied that he received any note from Niranjan Lal. He added that "while he was going from the police post to the Bus Stop, Niranjan Lal met near the tank in front of the Central Hall. On the way he tried to pass the bribe money, but did not succeed. When we reached the Bus stop, Niranjan Lal threw the currency note on the ground." 4. The prosecution examined Niranjan Lal, Anand Behari Lal, Satish Chand Kwatra and Sri Harnaik Singh, Deputy Superintendent of Police to prove the acceptance of bribe by the appellant from Niranjan Lal. The Special Judge has relied on their evidence and has held that the appellant did accept the currency note of Rupees 100/- from Niranjan Lal. On appeal, the High Court has also relied on the evidence of the said witnesses and has agreed with the findings of the Special judge. 5. Normally this Court does not interfere with the concurrent finding of facts recorded by the courts below. But counsel for the appellant has drawn our attention to certain important aspects of the case which have either escaped the attention of the courts below or have not received due emphasis. Admittedly, the note was not recovered from the person of the appellant. According to the prosecution the appellant had thrown away the note on the ground after taking it out from the right pocket of his own pant on his noticing the arrival of the Deputy Superintendent of Police Second, the courts below have overlooked an important statement in the evidence of Sri Harnaik Singh, Deputy Superintendent of Police. In his cross-examination he said; "When I searched the person of the accused and found that he did not carry the currency note in question on his person, the punch witness produced the note before me which I took into possession. In his examination-in-chief he had said: "Satish Chandra gave me the signal and I reached there. I gave my identity to the accused and searched his person. The witness Satish Chander picked up the hundred rupee note from the ground, which was alleged to have been thrown by the accused, and I took it into possession.These two statements are suggestive of the following inference. (1) he did not witness the passing of the note from Niranjan Lal to the appellant; (2) it is doubtful that he saw the note lying on the ground; (3) as soon as he reached the place of occurrence, he started searching the person of the appellant. On search he did not find the incriminating currency note on his person; and (4) after he had finished the search. Satish Chandra produced before him the incriminating currency note. If the note were really lying on the ground, Satish Chandra would ordinarily point it out to the Deputy Superintendent of Police and ask him to pick it up and seize it. Third, Satish Chandra has deposed "I made the signal and Deputy Superintendent of Police came to the spot. But before the person could be searched, the accused threw the note on the ground. I picked up the note and produced it before the Deputy Superintendent of Police. He seized it." This statement suggests that Satish Chandra had picked up the note from the ground and produced it before the Deputy Superintendent of Police before the search had finished.Fourth, according to the prosecution, an offer of bribe was made by Niranjan Lal at two places. At first it was offered at 4.30 p.m. at the place where he works as a stamp vendor. It was offered again at the Bus Stop. Evidence about the first offer consists of the statements of Niranjan Lal and Anand Behari Lal. But Anand Behari Lal was declared hostile. Niranjan Lal is a partisan witness. As stated earlier, complaints against him were being investigated by the appellant. He had recorded some statements in that connection. So Niranjan Lal must have borne a grudge against the appellant. The only other witness is Satish Chandra. He does not speak about the first offer at all.There is thus no independent reliable corroboration of the statements of Niranjan Lal and Anand Behari Lal as regards the first offer. Lastly, in this background it was proper to look for unimpeachable evidence as to the passing of the currency note from Niranjan Lal to the appellant. We have already indicated certain important circumstances which cast doubt on that story. 6. Having regard to all these circumstances, we think it is a fit case where the courts below should have required independent and trustworthy corroboration of the evidence of Niranjan Lal and Satish Chandra who had laid the trap. In Ram Prakash Arora v. State of Punjab, AIR 1973 SC 498 at p. 501 this Court, speaking about the evidence of trap witnesses, observed: "(They) were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any interested witness and in a proper case the court may look for independent corroboration before convicting the accused person".

1[ds]5. Normally this Court does not interfere with the concurrent finding of facts recorded by the courts below. But counsel for the appellant has drawn our attention to certain important aspects of the case which have either escaped the attention of the courts below or have not received due emphasis. Admittedly, the note was not recovered from the person of the appellant. According to the prosecution the appellant had thrown away the note on the ground after taking it out from the right pocket of his own pant on his noticing the arrival of the Deputy Superintendent of Police Second, the courts below have overlooked an important statement in the evidence of Sri Harnaik Singh, Deputy Superintendent of Police. In hisn he said; "When I searched the person of the accused and found that he did not carry the currency note in question on his person, the punch witness produced the note before me which I took into possession. In hisf he had said: "Satish Chandra gave me the signal and I reached there. I gave my identity to the accused and searched his person. The witness Satish Chander picked up the hundred rupee note from the ground, which was alleged to have been thrown by the accused, and I took it into possession.These two statements are suggestive of the following inference. (1) he did not witness the passing of the note from Niranjan Lal to the appellant; (2) it is doubtful that he saw the note lying on the ground; (3) as soon as he reached the place of occurrence, he started searching the person of the appellant. On search he did not find the incriminating currency note on his person; and (4) after he had finished the search. Satish Chandra produced before him the incriminating currency note. If the note were really lying on the ground, Satish Chandra would ordinarily point it out to the Deputy Superintendent of Police and ask him to pick it up and seize it. Third, Satish Chandra has deposed "I made the signal and Deputy Superintendent of Police came to the spot. But before the person could be searched, the accused threw the note on the ground. I picked up the note and produced it before the Deputy Superintendent of Police. He seized it." This statement suggests that Satish Chandra had picked up the note from the ground and produced it before the Deputy Superintendent of Police before the search had finished.Fourth, according to the prosecution, an offer of bribe was made by Niranjan Lal at two places. At first it was offered at 4.30 p.m. at the place where he works as a stamp vendor. It was offered again at the Bus Stop. Evidence about the first offer consists of the statements of Niranjan Lal and Anand Behari Lal. But Anand Behari Lal was declared hostile. Niranjan Lal is a partisan witness. As stated earlier, complaints against him were being investigated by the appellant. He had recorded some statements in that connection. So Niranjan Lal must have borne a grudge against the appellant. The only other witness is Satish Chandra. He does not speak about the first offer at all.There is thus no independent reliable corroboration of the statements of Niranjan Lal and Anand Behari Lal as regards the first offer. Lastly, in this background it was proper to look for unimpeachable evidence as to the passing of the currency note from Niranjan Lal to the appellant. We have already indicated certain important circumstances which cast doubt on that story6. Having regard to all these circumstances, we think it is a fit case where the courts below should have required independent and trustworthy corroboration of the evidence of Niranjan Lal and Satish Chandra who had laid the trap. In Ram Prakash Arora v. State of Punjab, AIR 1973 SC 498 at p. 501 this Court, speaking about the evidence of trap witnesses, observed:"(They) were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any interested witness and in a proper case the court may look for independent corroboration before convicting the accused person".

### Instruction: Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0). ### Input: The Deputy Superintendent of Police noted its number in the presence of the witnesses and gave certain directions to them. The appellant went to Niranjan Lal at 4-30 p.m. and inquired from him whether he has arranged for the money. When Niranjan Lal replied in the affirmative, he said that he would take the money from him while returning from duty. He came again at 5.30 p.m. and asked Niranjan Lal to accompany him to the Bus stop at the Kashmere Gate. There the currency note of Rs. 100/- was given to him by Niranjan Lal. Satischandra gave a signal to the police. On smelling a police raid the appellant threw away the note from the right pocket of his pant. Satish Chandra picked up the note from the ground and handed it over to the Deputy Superintendent of Police. The note was seized under recovery memo. 3. The appellant has denied that he received any note from Niranjan Lal. He added that "while he was going from the police post to the Bus Stop, Niranjan Lal met near the tank in front of the Central Hall. On the way he tried to pass the bribe money, but did not succeed. When we reached the Bus stop, Niranjan Lal threw the currency note on the ground." 4. The prosecution examined Niranjan Lal, Anand Behari Lal, Satish Chand Kwatra and Sri Harnaik Singh, Deputy Superintendent of Police to prove the acceptance of bribe by the appellant from Niranjan Lal. The Special Judge has relied on their evidence and has held that the appellant did accept the currency note of Rupees 100/- from Niranjan Lal. On appeal, the High Court has also relied on the evidence of the said witnesses and has agreed with the findings of the Special judge. 5. Normally this Court does not interfere with the concurrent finding of facts recorded by the courts below. But counsel for the appellant has drawn our attention to certain important aspects of the case which have either escaped the attention of the courts below or have not received due emphasis. Admittedly, the note was not recovered from the person of the appellant. According to the prosecution the appellant had thrown away the note on the ground after taking it out from the right pocket of his own pant on his noticing the arrival of the Deputy Superintendent of Police Second, the courts below have overlooked an important statement in the evidence of Sri Harnaik Singh, Deputy Superintendent of Police. In his cross-examination he said; "When I searched the person of the accused and found that he did not carry the currency note in question on his person, the punch witness produced the note before me which I took into possession. In his examination-in-chief he had said: "Satish Chandra gave me the signal and I reached there. I gave my identity to the accused and searched his person. The witness Satish Chander picked up the hundred rupee note from the ground, which was alleged to have been thrown by the accused, and I took it into possession.These two statements are suggestive of the following inference. (1) he did not witness the passing of the note from Niranjan Lal to the appellant; (2) it is doubtful that he saw the note lying on the ground; (3) as soon as he reached the place of occurrence, he started searching the person of the appellant. On search he did not find the incriminating currency note on his person; and (4) after he had finished the search. Satish Chandra produced before him the incriminating currency note. If the note were really lying on the ground, Satish Chandra would ordinarily point it out to the Deputy Superintendent of Police and ask him to pick it up and seize it. Third, Satish Chandra has deposed "I made the signal and Deputy Superintendent of Police came to the spot. But before the person could be searched, the accused threw the note on the ground. I picked up the note and produced it before the Deputy Superintendent of Police. He seized it." This statement suggests that Satish Chandra had picked up the note from the ground and produced it before the Deputy Superintendent of Police before the search had finished.Fourth, according to the prosecution, an offer of bribe was made by Niranjan Lal at two places. At first it was offered at 4.30 p.m. at the place where he works as a stamp vendor. It was offered again at the Bus Stop. Evidence about the first offer consists of the statements of Niranjan Lal and Anand Behari Lal. But Anand Behari Lal was declared hostile. Niranjan Lal is a partisan witness. As stated earlier, complaints against him were being investigated by the appellant. He had recorded some statements in that connection. So Niranjan Lal must have borne a grudge against the appellant. The only other witness is Satish Chandra. He does not speak about the first offer at all.There is thus no independent reliable corroboration of the statements of Niranjan Lal and Anand Behari Lal as regards the first offer. Lastly, in this background it was proper to look for unimpeachable evidence as to the passing of the currency note from Niranjan Lal to the appellant. We have already indicated certain important circumstances which cast doubt on that story. 6. Having regard to all these circumstances, we think it is a fit case where the courts below should have required independent and trustworthy corroboration of the evidence of Niranjan Lal and Satish Chandra who had laid the trap. In Ram Prakash Arora v. State of Punjab, AIR 1973 SC 498 at p. 501 this Court, speaking about the evidence of trap witnesses, observed: "(They) were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any interested witness and in a proper case the court may look for independent corroboration before convicting the accused person". ### Response: 1

Govt. Of Nct Of Delhi Vs. Mahender Singh

for acquisition of the particular land for which an award under Section 11 of the 1894 Act had to be passed. Section 11 has to be preceded by a notice under Section 9 of the said Act to the persons interested in the land to be acquired. Section 9 of the 1894 Act reads as follows: "9. Notice to persons interested.-(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.(2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections (if any) to the measurements made under section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the revenue district in which the land is situate.(4) In case any person so interested resides elsewhere, and has no such agent the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and 37 [registered under sections 28 and 29 of the Indian Post Office Act, 1898 (6 of 1898)]." 10. Under the scheme of acquisition, an award under Section 11 has to be passed in respect of each land owned by a person/persons interested. Therefore, what is lapsed under Section 11A is not the entire land as declared under Section 6 but the particular land belonging to person/persons in whose favour an award under Section 11 had to be passed within two years of the declaration under Section 6 of the 1894 Act. 11. Effect of lapse under Section 11A was subject matter of many decisions of this Court. In Laxman Pandya and others v. State of Uttar Pradesh and others, (2011) 14 SCC 94 , Mulchand Khanumal Khatri v. State of Gujarat and others, (2012) 5 SCC 365 , Singareni Collieries Company Limited v. Vemuganti Ramakrishan Rao and others, (2013) 8 SCC 789 , etc., this Court has consistently taken the view that the lapse is limited only to the land covered by the particular award(s). 12. Section 24(2) of the 2013 Act also deals with a similar situation of lapse. The provision reads as follows: "24. xxxx xxxx xxxx xxxx(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:Provided that where an award has been made and compensation in respect of a majority of land holding has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act." 13. The crucial difference between lapse under Section 11A of the 1894 Act and that under Section 24(2) of the 2013 Act is that the former is a pre-award situation whereas the latter is post-award. In other words, what gets lapsed under Section 11A of the 1894 Act is the ... "entire proceedings for the acquisition of the land", whereas, under Section 24(2) of the 2013 Act, what gets lapsed is the land acquisition proceedings initiated under The Land Acquisition Act, 1894 which has culminated in passing of an award under Section 11 but where either possession is not taken or compensation not paid within five years prior to 01.01.2014. 14. The land acquisition proceedings referred under Section 24 (2) of the 2013 Act would include the steps for taking physical possession of the land and payment of compensation, as held by this Court in Delhi Development Authority v. Sukhbir Singh, 2016 (8) SCALE 655. 15. Since the lapse under Section 24(2) of the 2013 Act is post-award, that would affect only the land referred to in the award and not the entire lands covered by the Section 4(1) notification under which the proceedings for acquisition were initiated. Therefore, the ratio in Om Prakash (supra) is of no avail to the appellants.16. In the case before us, there is no dispute on facts that after passing the award under Section 11 of the 1894 Act, no compensation has been paid and the possession also has not been taken within five years prior to 01.01.2014. Therefore, Section 24(2) of the 2013 Act has to operate, and the acquisition proceedings in respect of respondents lands where award under Section 11 of the 1894 Act had been passed, have lapsed. 17. However, the declaration as above and the consequent dismissal of this appeal is without prejudice to the liberty available to the appellants to initiate proceedings afresh for the acquisition of the subject land under the provisions of the 2013 Act.

1[ds]13. The crucial difference between lapse under Section 11A of the 1894 Act and that under Section 24(2) of the 2013 Act is that the former is a pre-award situation whereas the latter is post-award. In other words, what gets lapsed under Section 11A of the 1894 Act is the ... "entire proceedings for the acquisition of the land", whereas, under Section 24(2) of the 2013 Act, what gets lapsed is the land acquisition proceedings initiated under The Land Acquisition Act, 1894 which has culminated in passing of an award under Section 11 but where either possession is not taken or compensation not paid within five years prior to 01.01.2014.Since the lapse under Section 24(2) of the 2013 Act is post-award, that would affect only the land referred to in the award and not the entire lands covered by the Section 4(1) notification under which the proceedings for acquisition were initiated. Therefore, the ratio in Om Prakash (supra) is of no avail to the appellants.16. In the case before us, there is no dispute on facts that after passing the award under Section 11 of the 1894 Act, no compensation has been paid and the possession also has not been taken within five years prior to 01.01.2014. Therefore, Section 24(2) of the 2013 Act has to operate, and the acquisition proceedings in respect of respondents lands where award under Section 11 of the 1894 Act had been passed, have lapsed.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: for acquisition of the particular land for which an award under Section 11 of the 1894 Act had to be passed. Section 11 has to be preceded by a notice under Section 9 of the said Act to the persons interested in the land to be acquired. Section 9 of the 1894 Act reads as follows: "9. Notice to persons interested.-(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.(2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections (if any) to the measurements made under section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the revenue district in which the land is situate.(4) In case any person so interested resides elsewhere, and has no such agent the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and 37 [registered under sections 28 and 29 of the Indian Post Office Act, 1898 (6 of 1898)]." 10. Under the scheme of acquisition, an award under Section 11 has to be passed in respect of each land owned by a person/persons interested. Therefore, what is lapsed under Section 11A is not the entire land as declared under Section 6 but the particular land belonging to person/persons in whose favour an award under Section 11 had to be passed within two years of the declaration under Section 6 of the 1894 Act. 11. Effect of lapse under Section 11A was subject matter of many decisions of this Court. In Laxman Pandya and others v. State of Uttar Pradesh and others, (2011) 14 SCC 94 , Mulchand Khanumal Khatri v. State of Gujarat and others, (2012) 5 SCC 365 , Singareni Collieries Company Limited v. Vemuganti Ramakrishan Rao and others, (2013) 8 SCC 789 , etc., this Court has consistently taken the view that the lapse is limited only to the land covered by the particular award(s). 12. Section 24(2) of the 2013 Act also deals with a similar situation of lapse. The provision reads as follows: "24. xxxx xxxx xxxx xxxx(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:Provided that where an award has been made and compensation in respect of a majority of land holding has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act." 13. The crucial difference between lapse under Section 11A of the 1894 Act and that under Section 24(2) of the 2013 Act is that the former is a pre-award situation whereas the latter is post-award. In other words, what gets lapsed under Section 11A of the 1894 Act is the ... "entire proceedings for the acquisition of the land", whereas, under Section 24(2) of the 2013 Act, what gets lapsed is the land acquisition proceedings initiated under The Land Acquisition Act, 1894 which has culminated in passing of an award under Section 11 but where either possession is not taken or compensation not paid within five years prior to 01.01.2014. 14. The land acquisition proceedings referred under Section 24 (2) of the 2013 Act would include the steps for taking physical possession of the land and payment of compensation, as held by this Court in Delhi Development Authority v. Sukhbir Singh, 2016 (8) SCALE 655. 15. Since the lapse under Section 24(2) of the 2013 Act is post-award, that would affect only the land referred to in the award and not the entire lands covered by the Section 4(1) notification under which the proceedings for acquisition were initiated. Therefore, the ratio in Om Prakash (supra) is of no avail to the appellants.16. In the case before us, there is no dispute on facts that after passing the award under Section 11 of the 1894 Act, no compensation has been paid and the possession also has not been taken within five years prior to 01.01.2014. Therefore, Section 24(2) of the 2013 Act has to operate, and the acquisition proceedings in respect of respondents lands where award under Section 11 of the 1894 Act had been passed, have lapsed. 17. However, the declaration as above and the consequent dismissal of this appeal is without prejudice to the liberty available to the appellants to initiate proceedings afresh for the acquisition of the subject land under the provisions of the 2013 Act. ### Response: 1

Ashok Kumar Mishra and Ors Vs. Goverdhan Bhai (D) thr. L.Rs. and Ors

by the Court until altered. They cannot claim a default on the basis of the rent stated by them in the evidence.5. Thus, a plain reading of the Section 13(2) requires the tenant to pay a provisional rent as fixed by the Court. The tenant in this case has made payment accordingly.6. The other contention raised by learned Counsel for the Appellants is that during the pendency of the appeals, the tenant has not paid the provisional rent of Rupees 150/-. This period commenced on 26.02.1993, when the trial Court decided the suit and fixed the rent at Rs. 250/- per month up to the decision of the Second Appeal on 14.11.2011.7. According to the Appellants, the tenant did pay rent intermittently. However, what is of consequence is whether the tenant paid rent as required by Sub-sections 13(1) and 13(2) of the Act which read as follows:13(1) When tenant can get benefit of protection against eviction-(1) On a suit or any other proceedings being instituted by a landlord in any of the grounds referred to in Section 12 or in any appeal or any of other proceedings by a tenant against any decree or order for his eviction, the tenant shall, within one month of the service of writ of summons or notice of appeal or of any other proceeding, or within one month of institution of appeal or any other proceeding by the tenant as the case may be, or within such further time as the court may on an application made to it allow in this behalf, deposit in the court or pay to the landlord, an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made, and shall thereafter continue to deposit or pay, month by the 15th of each succeeding month a sum equivalent to the rent at that rate till the decision of the suit, appeal or proceeding as the case may be.13(2).. As quoted above. 8. It is obvious from the aforesaid provisions that the tenant must during the pendency of the suit/appeal make payment of rent within one month of the service of writ of summons or notice of appeal or within such further time such Court may allow in this behalf. Further, he must thereafter, continue to deposit or pay rent by 15th of each succeeding month till the decision of the suit, appeal or proceedings as the case may be.9. Sub-section 13(2) of the Act requires the tenant to pay such reasonable provisional rent as may be fixed by the Court in case of a dispute or doubt about the amount that must be paid by the tenant. As stated above, the amount in this case is Rupees 150/- per month. It is pointed out on behalf of the Appellants that for the period from January, 2001 to May, 2011, when the second appeal was pending, the tenant did not deposit the monthly rent as required by Sub-sections 13(1) and 13(2) of the Act, i.e. the rent at monthly intervals. We have perused the chart of payment of rent and we find that for the period from 09.08.2000 to 12.05.2011, the tenant paid rent on only three occasions, i.e. Rs. 2000/- on 09.08.2000, Rs. 2000/- on 09.12.2000 and Rs. 500/- on 12.02.2001. Thereafter, on 12.05.2011 the tenant deposited a sum of Rs. 31,250/-, i.e. the amount of default rent of 5 months from January, 2011 to May, 2011. This in our view, amounts to an implicit admission of the fact that no rent was paid on the days it was due during this period.10. The learned Counsel for the Respondents-tenants vehemently argued that the Respondents who are the legal representatives of the original tenant were not aware of the default. It is not possible to accept this contention since they were clearly aware of the fact that they were living in tenanted premises and were bound to pay rent. In any case we find that even if the impleadment of legal representatives on 06.07.2009 there are defaults for a period of two years thereafter.11. In the circumstances, we find no merit in the contention that the Respondents had paid rent regularly. Learned Counsel for the Respondents also contended that the Respondents are willing to pay arrears of tent now before this Court and this Court may condone such delay. The learned Counsel for the Respondents relied on Section 13(5) of the Act which reads as follows:13(5) If a tenant makes deposit or payment as required by Sub-section (1) or Sub-section (2), no decree or order shall be made by the court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the court may allow such cost as it may deem fit to the landlord. 12. We are of the view that on a plain reading, this provision protects a tenant from eviction if a tenant makes deposit/payment as required by Sub-section 13(1) or 13(2) of the Act. In other words, if the tenant has complied with the provisions of Sub-section 13(1) and 13(2) in the matter of making payment, he is protected from eviction. It must be remembered that provisions of Section 13 of the Act shield a tenant from eviction if the tenant regularly pay rent after the suit is filed.Accordingly, it provides a locus penitential to the tenant. Sub-section 13(5) of the Act reiterates the protection by stating that if the tenant makes payment payment post-suit in accordance with the provisions of Sub-section 13(1) and 13(2) of the Act, he shall not be liable for eviction. This Section does not confer the power on the court to condone the defaults in payment of rent after the suit is filed. It is, therefore, not possible for us to accept this contention.

1[ds]We see no merit in this ground in view of the fact that the Trial Court had by an order dated 12.10.1985 fixed provisional rent at the rate of Rupees 150/- per month. It is not in dispute that the tenant continued to pay the rent at this rate. Merely because he admitted in his evidence that the agreed amount was Rupees 250/- per month is not a ground for evicting him, particularly in view of Section 13(2) of the Act5. Thus, a plain reading of the Section 13(2) requires the tenant to pay a provisional rent as fixed by the Court. The tenant in this case has made payment accordingly8. It is obvious from the aforesaid provisions that the tenant must during the pendency of the suit/appeal make payment of rent within one month of the service of writ of summons or notice of appeal or within such further time such Court may allow in this behalf. Further, he must thereafter, continue to deposit or pay rent by 15th of each succeeding month till the decision of the suit, appeal or proceedings as the case may be9. Sub-section 13(2) of the Act requires the tenant to pay such reasonable provisional rent as may be fixed by the Court in case of a dispute or doubt about the amount that must be paid by the tenant. As stated above, the amount in this case is Rupees 150/- per monthWe have perused the chart of payment of rent and we find that for the period from 09.08.2000 to 12.05.2011, the tenant paid rent on only three occasions, i.e. Rs. 2000/- on 09.08.2000, Rs. 2000/- on 09.12.2000 and Rs. 500/- on 12.02.2001. Thereafter, on 12.05.2011 the tenant deposited a sum of Rs. 31,250/-, i.e. the amount of default rent of 5 months from January, 2011 to May, 2011. This in our view, amounts to an implicit admission of the fact that no rent was paid on the days it was due during this periodIt is not possible to accept this contention since they were clearly aware of the fact that they were living in tenanted premises and were bound to pay rent. In any case we find that even if the impleadment of legal representatives on 06.07.2009 there are defaults for a period of two years thereafter11. In the circumstances, we find no merit in the contention that the Respondents had paid rent regularly12. We are of the view that on a plain reading, this provision protects a tenant from eviction if a tenant makes deposit/payment as required by Sub-section 13(1) or 13(2) of the Act. In other words, if the tenant has complied with the provisions of Sub-section 13(1) and 13(2) in the matter of making payment, he is protected from eviction. It must be remembered that provisions of Section 13 of the Act shield a tenant from eviction if the tenant regularly pay rent after the suit is filed.Accordingly, it provides a locus penitential to the tenant. Sub-section 13(5) of the Act reiterates the protection by stating that if the tenant makes payment payment post-suit in accordance with the provisions of Sub-section 13(1) and 13(2) of the Act, he shall not be liable for eviction. This Section does not confer the power on the court to condone the defaults in payment of rent after the suit is filed. It is, therefore, not possible for us to accept this contention.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: by the Court until altered. They cannot claim a default on the basis of the rent stated by them in the evidence.5. Thus, a plain reading of the Section 13(2) requires the tenant to pay a provisional rent as fixed by the Court. The tenant in this case has made payment accordingly.6. The other contention raised by learned Counsel for the Appellants is that during the pendency of the appeals, the tenant has not paid the provisional rent of Rupees 150/-. This period commenced on 26.02.1993, when the trial Court decided the suit and fixed the rent at Rs. 250/- per month up to the decision of the Second Appeal on 14.11.2011.7. According to the Appellants, the tenant did pay rent intermittently. However, what is of consequence is whether the tenant paid rent as required by Sub-sections 13(1) and 13(2) of the Act which read as follows:13(1) When tenant can get benefit of protection against eviction-(1) On a suit or any other proceedings being instituted by a landlord in any of the grounds referred to in Section 12 or in any appeal or any of other proceedings by a tenant against any decree or order for his eviction, the tenant shall, within one month of the service of writ of summons or notice of appeal or of any other proceeding, or within one month of institution of appeal or any other proceeding by the tenant as the case may be, or within such further time as the court may on an application made to it allow in this behalf, deposit in the court or pay to the landlord, an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made, and shall thereafter continue to deposit or pay, month by the 15th of each succeeding month a sum equivalent to the rent at that rate till the decision of the suit, appeal or proceeding as the case may be.13(2).. As quoted above. 8. It is obvious from the aforesaid provisions that the tenant must during the pendency of the suit/appeal make payment of rent within one month of the service of writ of summons or notice of appeal or within such further time such Court may allow in this behalf. Further, he must thereafter, continue to deposit or pay rent by 15th of each succeeding month till the decision of the suit, appeal or proceedings as the case may be.9. Sub-section 13(2) of the Act requires the tenant to pay such reasonable provisional rent as may be fixed by the Court in case of a dispute or doubt about the amount that must be paid by the tenant. As stated above, the amount in this case is Rupees 150/- per month. It is pointed out on behalf of the Appellants that for the period from January, 2001 to May, 2011, when the second appeal was pending, the tenant did not deposit the monthly rent as required by Sub-sections 13(1) and 13(2) of the Act, i.e. the rent at monthly intervals. We have perused the chart of payment of rent and we find that for the period from 09.08.2000 to 12.05.2011, the tenant paid rent on only three occasions, i.e. Rs. 2000/- on 09.08.2000, Rs. 2000/- on 09.12.2000 and Rs. 500/- on 12.02.2001. Thereafter, on 12.05.2011 the tenant deposited a sum of Rs. 31,250/-, i.e. the amount of default rent of 5 months from January, 2011 to May, 2011. This in our view, amounts to an implicit admission of the fact that no rent was paid on the days it was due during this period.10. The learned Counsel for the Respondents-tenants vehemently argued that the Respondents who are the legal representatives of the original tenant were not aware of the default. It is not possible to accept this contention since they were clearly aware of the fact that they were living in tenanted premises and were bound to pay rent. In any case we find that even if the impleadment of legal representatives on 06.07.2009 there are defaults for a period of two years thereafter.11. In the circumstances, we find no merit in the contention that the Respondents had paid rent regularly. Learned Counsel for the Respondents also contended that the Respondents are willing to pay arrears of tent now before this Court and this Court may condone such delay. The learned Counsel for the Respondents relied on Section 13(5) of the Act which reads as follows:13(5) If a tenant makes deposit or payment as required by Sub-section (1) or Sub-section (2), no decree or order shall be made by the court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the court may allow such cost as it may deem fit to the landlord. 12. We are of the view that on a plain reading, this provision protects a tenant from eviction if a tenant makes deposit/payment as required by Sub-section 13(1) or 13(2) of the Act. In other words, if the tenant has complied with the provisions of Sub-section 13(1) and 13(2) in the matter of making payment, he is protected from eviction. It must be remembered that provisions of Section 13 of the Act shield a tenant from eviction if the tenant regularly pay rent after the suit is filed.Accordingly, it provides a locus penitential to the tenant. Sub-section 13(5) of the Act reiterates the protection by stating that if the tenant makes payment payment post-suit in accordance with the provisions of Sub-section 13(1) and 13(2) of the Act, he shall not be liable for eviction. This Section does not confer the power on the court to condone the defaults in payment of rent after the suit is filed. It is, therefore, not possible for us to accept this contention. ### Response: 1

Rama Kant Chaturvedi and Others, Etc., Etc Vs. Divisional Supdt., Northern Railway, Moradabad and Others, Etc., Etc

the steam side as Firemen Grade "C" in order to make way for Firemen Grades "A" & "B" who were appointed as Drivers Assistants on the diesel side long after the appointment of the appellants as Dirvers Assistants on the diesel side. Those drawn from the steam side Firemen Grade "A" and "B" were not and could not be appointed earlier than the appellants as Drivers Assistants on the diesel side for the simple reason that at that time only matriculates were being considered for appointment as Drivers Assistants and these persons did not possess that minimum qualification. It was only as a result of the relaxation of the minimum educational qualification that they became eligible to be appointed. The appellants filed Writ Petitions in the High Court of Allahabad questioning the reversion and claiming that they were entitled to be confirmed as Drivers Assistants on the diesel side and to all consequential benefits. The Writ Petitions were dismissed by a learned single Judge of the High Court and appeals preferred under the Letters Patent were also dismissed. The present appeals have been filed after obtaining special leave of this Court. 4. From the acts narrated above it is clear that the diesel side running staff was constituted and treated as a separate unit distinct from the steam side running staff. Recruitment and avenues of promotion were also different. Direct recruitment to the running staff on the diesel side was to be made to the lowest post of Diesel Cleaners and thereafter, promotions were to be made successively to the posts of Drivers Assistants, Shunters, Diesel Drivers (C), Diesel Drivers (B) and Diesels Drivers (A). As the Diesel Unit was being constituted for the first time and as considerable time might elapse before Diesel Cleaners could be promoted as shunters and Drivers Assistants it was decided to draft firemen on the steam side, possessing the minimum educational qualification of matriculation, to the diesel side as Drivers Assistants after giving them the requisite training. That was done. Firemen Grade "C" who were of lower category than Firemen Grade "B" and Firemen Grade "A" but who happened to possess the minimum Educational qualification which many of the Firemen Grades "A" and "B" did not possess were fortunate enough to be drawn into the diesel unit earlier than some of the Firemen Grades "A" and "B" who came in later as a result of the relaxation of the rule prescribing minimum educational qualification. Of course, all the initial appointments were on an officiating basis. But merely because the appointments were on an officiating basis, we do not see how those who were drafted in to the diesel unit earlier would lose the benefit of their continuous service on the diesel side merely because others who were senior to them on the steam side came in or chose to come in at a later stage. If seniors on the steam side did not come in earlier it was because they were barred from coming in by the requirement of a minimum educational qualification. The subsequent relaxation of the rule cannot enable them to take a "frog leap" over the heads of those who had come into the diesel side earlier. The seniority on the steam side is of a relevance in determining seniority on the diesel side when they are appointed on the diesel side on different days. We may refer to A. K. Subaraman and others, etc. v. Union of India and others, [1975-I L.L.J. 338], where the fifth proposition was stated as :"Once the Assistant Engineers are regularly appointed to officiate as Executive Engineers within their quota they will be entitled to consideration in their own rights as Class I Officers to further promotions. Their birth marks in their earlier service will be of no relevance once they are regularly officiating in the grade of Executive Engineer within their quota". Similarly in N. K. Chauhan and others v. State of Gujarat and others, (1977) 1 S.C.R. 1037 at 1953, it was stated (at page 1053) : "Seniority will depend on the length of continuous officiating service and cannot be upset by later arrivals from the open market save to the extent to which any excess promotees may have to be pushed down as indicated earlier". 5. On behalf of the respondents the submission of Shri Dhebar, learned counsel, was that it was never the intention of the Railway Administration to absorb on the diesel side, staff from the steam side. They were only drafted to meet a temporary situation and it was always intended that they should go back. Firemen Grade "C" could, therefore, claim no rights whatever on the diesel side and the Railway Administration was justified in reverting to the steam side those who were junior most on the steam side and preferring to retain the seniors. We are unable to accept the submission of Shri Dhebar. We do not think that there is any justification for holding that the staff drafted from the steam side into the diesel side was always meant to be reverted back to the steam side. The very fact that Firemen Grades "A" and "B" are now being retained clearly indicates that such was not the intention of the Railway Administration. The Firemen Grade "C" were drafted into the diesel side because they possessed the requisite minimum educational qualification; and they were given special training before they were appointed as "Drivers" Assistants on an officiating basis. We do not think it was intended that they should be reverted to the steam side after sometime. The various orders and letters of the Railway Board which have been placed before us give no indication that it was never the intention of the Railway Administration to absorb and retain them permanently on the diesel side. In our view there is no answer to the claim of the appellants that they cannot be reverted while their juniors on the diesel side (though senior on the steam side) are retained.

1[ds]4. From the acts narrated above it is clear that the diesel side running staff was constituted and treated as a separate unit distinct from the steam side running staff. Recruitment and avenues of promotion were also different. Direct recruitment to the running staff on the diesel side was to be made to the lowest post of Diesel Cleaners and thereafter, promotions were to be made successively to the posts of Drivers Assistants, Shunters, Diesel Drivers (C), Diesel Drivers (B) and Diesels Drivers (A). As the Diesel Unit was being constituted for the first time and as considerable time might elapse before Diesel Cleaners could be promoted as shunters and Drivers Assistants it was decided to draft firemen on the steam side, possessing the minimum educational qualification of matriculation, to the diesel side as Drivers Assistants after giving them the requisite training. That was done. Firemen Grade "C" who were of lower category than Firemen Grade "B" and Firemen Grade "A" but who happened to possess the minimum Educational qualification which many of the Firemen Grades "A" and "B" did not possess were fortunate enough to be drawn into the diesel unit earlier than some of the Firemen Grades "A" and "B" who came in later as a result of the relaxation of the rule prescribing minimum educational qualification. Of course, all the initial appointments were on an officiating basis. But merely because the appointments were on an officiating basis, we do not see how those who were drafted in to the diesel unit earlier would lose the benefit of their continuous service on the diesel side merely because others who were senior to them on the steam side came in or chose to come in at a later stage. If seniors on the steam side did not come in earlier it was because they were barred from coming in by the requirement of a minimum educational qualification. The subsequent relaxation of the rule cannot enable them to take a "frog leap" over the heads of those who had come into the diesel side earlierThe very fact that Firemen Grades "A" and "B" are now being retained clearly indicates that such was not the intention of the Railway Administration. The Firemen Grade "C" were drafted into the diesel side because they possessed the requisite minimum educational qualification; and they were given special training before they were appointed as "Drivers" Assistants on an officiating basis. We do not think it was intended that they should be reverted to the steam side after sometime. The various orders and letters of the Railway Board which have been placed before us give no indication that it was never the intention of the Railway Administration to absorb and retain them permanently on the diesel side. In our view there is no answer to the claim of the appellants that they cannot be reverted while their juniors on the diesel side (though senior on the steam side) are retained.

### Instruction: From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant. ### Input: the steam side as Firemen Grade "C" in order to make way for Firemen Grades "A" & "B" who were appointed as Drivers Assistants on the diesel side long after the appointment of the appellants as Dirvers Assistants on the diesel side. Those drawn from the steam side Firemen Grade "A" and "B" were not and could not be appointed earlier than the appellants as Drivers Assistants on the diesel side for the simple reason that at that time only matriculates were being considered for appointment as Drivers Assistants and these persons did not possess that minimum qualification. It was only as a result of the relaxation of the minimum educational qualification that they became eligible to be appointed. The appellants filed Writ Petitions in the High Court of Allahabad questioning the reversion and claiming that they were entitled to be confirmed as Drivers Assistants on the diesel side and to all consequential benefits. The Writ Petitions were dismissed by a learned single Judge of the High Court and appeals preferred under the Letters Patent were also dismissed. The present appeals have been filed after obtaining special leave of this Court. 4. From the acts narrated above it is clear that the diesel side running staff was constituted and treated as a separate unit distinct from the steam side running staff. Recruitment and avenues of promotion were also different. Direct recruitment to the running staff on the diesel side was to be made to the lowest post of Diesel Cleaners and thereafter, promotions were to be made successively to the posts of Drivers Assistants, Shunters, Diesel Drivers (C), Diesel Drivers (B) and Diesels Drivers (A). As the Diesel Unit was being constituted for the first time and as considerable time might elapse before Diesel Cleaners could be promoted as shunters and Drivers Assistants it was decided to draft firemen on the steam side, possessing the minimum educational qualification of matriculation, to the diesel side as Drivers Assistants after giving them the requisite training. That was done. Firemen Grade "C" who were of lower category than Firemen Grade "B" and Firemen Grade "A" but who happened to possess the minimum Educational qualification which many of the Firemen Grades "A" and "B" did not possess were fortunate enough to be drawn into the diesel unit earlier than some of the Firemen Grades "A" and "B" who came in later as a result of the relaxation of the rule prescribing minimum educational qualification. Of course, all the initial appointments were on an officiating basis. But merely because the appointments were on an officiating basis, we do not see how those who were drafted in to the diesel unit earlier would lose the benefit of their continuous service on the diesel side merely because others who were senior to them on the steam side came in or chose to come in at a later stage. If seniors on the steam side did not come in earlier it was because they were barred from coming in by the requirement of a minimum educational qualification. The subsequent relaxation of the rule cannot enable them to take a "frog leap" over the heads of those who had come into the diesel side earlier. The seniority on the steam side is of a relevance in determining seniority on the diesel side when they are appointed on the diesel side on different days. We may refer to A. K. Subaraman and others, etc. v. Union of India and others, [1975-I L.L.J. 338], where the fifth proposition was stated as :"Once the Assistant Engineers are regularly appointed to officiate as Executive Engineers within their quota they will be entitled to consideration in their own rights as Class I Officers to further promotions. Their birth marks in their earlier service will be of no relevance once they are regularly officiating in the grade of Executive Engineer within their quota". Similarly in N. K. Chauhan and others v. State of Gujarat and others, (1977) 1 S.C.R. 1037 at 1953, it was stated (at page 1053) : "Seniority will depend on the length of continuous officiating service and cannot be upset by later arrivals from the open market save to the extent to which any excess promotees may have to be pushed down as indicated earlier". 5. On behalf of the respondents the submission of Shri Dhebar, learned counsel, was that it was never the intention of the Railway Administration to absorb on the diesel side, staff from the steam side. They were only drafted to meet a temporary situation and it was always intended that they should go back. Firemen Grade "C" could, therefore, claim no rights whatever on the diesel side and the Railway Administration was justified in reverting to the steam side those who were junior most on the steam side and preferring to retain the seniors. We are unable to accept the submission of Shri Dhebar. We do not think that there is any justification for holding that the staff drafted from the steam side into the diesel side was always meant to be reverted back to the steam side. The very fact that Firemen Grades "A" and "B" are now being retained clearly indicates that such was not the intention of the Railway Administration. The Firemen Grade "C" were drafted into the diesel side because they possessed the requisite minimum educational qualification; and they were given special training before they were appointed as "Drivers" Assistants on an officiating basis. We do not think it was intended that they should be reverted to the steam side after sometime. The various orders and letters of the Railway Board which have been placed before us give no indication that it was never the intention of the Railway Administration to absorb and retain them permanently on the diesel side. In our view there is no answer to the claim of the appellants that they cannot be reverted while their juniors on the diesel side (though senior on the steam side) are retained. ### Response: 1

M/S. Bhagwati Prasad Pawan Kumar Vs. Union Of India

even after receiving the cheque the respondent prosecuted the suit for the balance of the amount. The Railway had led no evidence to show that the intention of the plaintiff was to accept the cheque in full and final settlement of its claim. On this finding, relying upon the principle laid down in Day vs. Mciea it was held that: "The question was thus primarily one of fact and since the defendant did not choose to lead any evidence on the point nor are there such circumstances brought on the record to lead to the conclusion that the cheque was accepted in discharge of the whole debt, I am unable to come to the conclusion that the acceptance of the cheque amounted to satisfaction of the whole claim." 17. The decision of this Court in AIR 1963 SC 250 : Lala Kapurchand Godha and others vs. Nawab Himayatalikhan Azamjah, may not be of much assistance as in that case apart from the fact that the appeal was decided with reference to Section 63 of the Contract Act, there was clear evidence on record that the plaintiffs therein had received the sum of Rs. 20 lakhs in full satisfaction of their claim and duly discharged the promissory notes by endorsement of "full satisfaction" and received payment in full. 18. Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railways made an offer to the appellant laying down the condition that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the appellant accepted the offer in full and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque and/ or encashment thereof will automatically amount to satisfaction in full and final settlement of the claim. Thus, if the appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer made in the letters of the Railways dated April 7, 1993. The offer prescribed the mode of acceptance, and by conduct the appellant must be held to have accepted the offer and therefore, could not make a claim later. However, if the appellant had not encashed the cheques and protested to the Railways calling upon them to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a different complexion. In that event, in view of the express non acceptance of the offer, the appellant could not be presumed to have accepted the offer. What, however, is significant is that the protest and non acceptance must be conveyed before the cheques are encashed. If the cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. An offeree cannot be permitted to change his mind after the unequivocal acceptance of the offer. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the "offeree" was such as amounted to an unequivocal acceptance of the offer made. If the facts of the case disclose that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by conduct. On the other hand if the evidence disclose that the "offeree" had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act. 19. Coming to the facts of this case if the appellant, before encashing the cheques, had sent the communication dated August 20, 1993, it could perhaps be argued that by retaining but not encashing the cheques, it did not intend to accept the offer made in the letter of the Railways dated April 7, 1993. At the same time if the evidence disclosed that it encashed the cheques and later sent a protest, it must be held that it had accepted the offer unconditionally by conveying its acceptance by the mode prescribed, namely by retaining and encashing the cheques, without reservation. Its subsequent change of mind and consequent protest did not matter. 20. In the instant case there is neither pleadings nor evidence on record as to the date on which the cheques were received and the date on which the same were sent for encashment. It is, therefore, not possible to record a categoric finding as to whether the letters of protest were written after encashing the cheques or before encashing the cheques. It was for the appellant to plead and prove that it had not accepted the offer and had called upon the Railways to pay the balance amount. This it must have done before encashing the cheques. If the appellant encashed the cheques and then wrote letters of protest to the Railways, it cannot be held that it had not accepted the offer by conduct, because at the time when it sent the cheques for encashment, it had not conveyed its protest to the offerer. In the absence of any pleading or evidence to establish that the encashment of the cheques was subsequent to the protest letters by the appellant, it is not possible to hold that by encashing the cheques the appellant had not adopted the mode of acceptance prescribed in the letters of the Railways dated April 7, 1993. In the absence of such evidence it must be held that by encashing the cheques received from the Railways, the appellant accepted the offer by adopting the mode of acceptance prescribed in the offer of the Railways. 21.

0[ds]Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railways made an offer to the appellant laying down the condition that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the appellant accepted the offer in full and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque and/ or encashment thereof will automatically amount to satisfaction in full and final settlement of the claim. Thus, if the appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer made in the letters of the Railways dated April 7, 1993. The offer prescribed the mode of acceptance, and by conduct the appellant must be held to have accepted the offer and therefore, could not make a claim later. However, if the appellant had not encashed the cheques and protested to the Railways calling upon them to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a different complexion. In that event, in view of the express non acceptance of the offer, the appellant could not be presumed to have accepted the offer. What, however, is significant is that the protest and non acceptance must be conveyed before the cheques are encashed. If the cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. An offeree cannot be permitted to change his mind after the unequivocal acceptance of the offer. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the "offeree" was such as amounted to an unequivocal acceptance of the offer made. If the facts of the case disclose that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by conduct. On the other hand if the evidence disclose that the "offeree" had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act19. Coming to the facts of this case if the appellant, before encashing the cheques, had sent the communication dated August 20, 1993, it could perhaps be argued that by retaining but not encashing the cheques, it did not intend to accept the offer made in the letter of the Railways dated April 7, 1993. At the same time if the evidence disclosed that it encashed the cheques and later sent a protest, it must be held that it had accepted the offer unconditionally by conveying its acceptance by the mode prescribed, namely by retaining and encashing the cheques, without reservation. Its subsequent change of mind and consequent protest did not matter20. In the instant case there is neither pleadings nor evidence on record as to the date on which the cheques were received and the date on which the same were sent for encashment. It is, therefore, not possible to record a categoric finding as to whether the letters of protest were written after encashing the cheques or before encashing the cheques. It was for the appellant to plead and prove that it had not accepted the offer and had called upon the Railways to pay the balance amount. This it must have done before encashing the cheques. If the appellant encashed the cheques and then wrote letters of protest to the Railways, it cannot be held that it had not accepted the offer by conduct, because at the time when it sent the cheques for encashment, it had not conveyed its protest to the offerer. In the absence of any pleading or evidence to establish that the encashment of the cheques was subsequent to the protest letters by the appellant, it is not possible to hold that by encashing the cheques the appellant had not adopted the mode of acceptance prescribed in the letters of the Railways dated April 7, 1993. In the absence of such evidence it must be held that by encashing the cheques received from the Railways, the appellant accepted the offer by adopting the mode of acceptance prescribed in the offer of the Railways

### 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: even after receiving the cheque the respondent prosecuted the suit for the balance of the amount. The Railway had led no evidence to show that the intention of the plaintiff was to accept the cheque in full and final settlement of its claim. On this finding, relying upon the principle laid down in Day vs. Mciea it was held that: "The question was thus primarily one of fact and since the defendant did not choose to lead any evidence on the point nor are there such circumstances brought on the record to lead to the conclusion that the cheque was accepted in discharge of the whole debt, I am unable to come to the conclusion that the acceptance of the cheque amounted to satisfaction of the whole claim." 17. The decision of this Court in AIR 1963 SC 250 : Lala Kapurchand Godha and others vs. Nawab Himayatalikhan Azamjah, may not be of much assistance as in that case apart from the fact that the appeal was decided with reference to Section 63 of the Contract Act, there was clear evidence on record that the plaintiffs therein had received the sum of Rs. 20 lakhs in full satisfaction of their claim and duly discharged the promissory notes by endorsement of "full satisfaction" and received payment in full. 18. Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railways made an offer to the appellant laying down the condition that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the appellant accepted the offer in full and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque and/ or encashment thereof will automatically amount to satisfaction in full and final settlement of the claim. Thus, if the appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer made in the letters of the Railways dated April 7, 1993. The offer prescribed the mode of acceptance, and by conduct the appellant must be held to have accepted the offer and therefore, could not make a claim later. However, if the appellant had not encashed the cheques and protested to the Railways calling upon them to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a different complexion. In that event, in view of the express non acceptance of the offer, the appellant could not be presumed to have accepted the offer. What, however, is significant is that the protest and non acceptance must be conveyed before the cheques are encashed. If the cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. An offeree cannot be permitted to change his mind after the unequivocal acceptance of the offer. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the "offeree" was such as amounted to an unequivocal acceptance of the offer made. If the facts of the case disclose that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by conduct. On the other hand if the evidence disclose that the "offeree" had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act. 19. Coming to the facts of this case if the appellant, before encashing the cheques, had sent the communication dated August 20, 1993, it could perhaps be argued that by retaining but not encashing the cheques, it did not intend to accept the offer made in the letter of the Railways dated April 7, 1993. At the same time if the evidence disclosed that it encashed the cheques and later sent a protest, it must be held that it had accepted the offer unconditionally by conveying its acceptance by the mode prescribed, namely by retaining and encashing the cheques, without reservation. Its subsequent change of mind and consequent protest did not matter. 20. In the instant case there is neither pleadings nor evidence on record as to the date on which the cheques were received and the date on which the same were sent for encashment. It is, therefore, not possible to record a categoric finding as to whether the letters of protest were written after encashing the cheques or before encashing the cheques. It was for the appellant to plead and prove that it had not accepted the offer and had called upon the Railways to pay the balance amount. This it must have done before encashing the cheques. If the appellant encashed the cheques and then wrote letters of protest to the Railways, it cannot be held that it had not accepted the offer by conduct, because at the time when it sent the cheques for encashment, it had not conveyed its protest to the offerer. In the absence of any pleading or evidence to establish that the encashment of the cheques was subsequent to the protest letters by the appellant, it is not possible to hold that by encashing the cheques the appellant had not adopted the mode of acceptance prescribed in the letters of the Railways dated April 7, 1993. In the absence of such evidence it must be held that by encashing the cheques received from the Railways, the appellant accepted the offer by adopting the mode of acceptance prescribed in the offer of the Railways. 21. ### Response: 0

M/S.B.S.I. Ltd. Vs. Gift Holdings Pvt. Ltd.

pay the amount covered by the cheques. The ban imposed, as per Section 22(1) of the SICA, is against maintainability of the following legal actions : (1) Proceedings for the winding up of the company; (2) Proceedings for execution, distress or the likes against any of the properties of the company; (3) Proceedings for the appointment of a receiver in respect of such properties; (4) Suits for recovery of money or for enforcement of any security against the company or guarantee in respect of any loan or advance granted to the company. 14. Some of the learned counsel pointed out that when a company is convicted under Section 138 of the NI Act the Court can only impose a fine as the sentence since a juristic person like the company cannot possibly be sent to prison. On its premise learned counsel contended that recovery of the fine covered by such sentence would be impractical on account of the ban envisaged in Section 22(1) of SICA against proceedings for execution, distress or the likes as against any of the properties of the company. As a corollary, it was submitted that prosecution against the company cannot be maintained since a Court would not be able to effectively impose a sentence on a company after convicting it of the offence under Section 138 of NI Act. 15. The fallacy of the above contention is two-fold. First is that maintainability of a prosecution proceeding is not to be tested on the touchstone of any practical hurdle in enforcing the sentence which might be imposed on a company after conviction. Second is, there is no insurmountable hurdle for recovery of the fine covered by the sentence even from a sick industrial company because the ban contained in Section 22(1) is only conditional as could as discerned from the last limb thereof which reads thus : Except with the consent of the Board or, as the case may be, the Appellate Authority. It means that with such consent the Court would be in a position to resort to proceedings for distress against the properties of the sick industrial company. Hence the aforesaid contention has no merit at all. 16. It was next contended that the ban against maintainability of a suit for the recovery of money would encompass prosecution proceedings also. To support the said contention reliance was sought to be made on the following meaning of word suit as given in Bouviers Law Dictionary : Suit is a generic term of comprehensive signification, and applies to any proceeding in a Court of justice in which the plaintiff pursues, in such Court, the remedy which the law affords him for the redress of any injury or the recovery of a right............ In its most extended sense, the word suit includes not only a civil action, but also a criminal prosecution, as, indictment, information and a conviction by a magistrate. 17. Learned counsel invited our attention to the maxim contemporanea expositio est optima et fortissima in lege (contemporaneous exposition is the best and strongest in law) for the purpose of stretching the scope of the word suit to envelope criminal prosecution as well. 18. Our attention has also been invited to the observation of a two Judge Bench of this Court in Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of Maharashtra Ltd. and another, 1993(2) SCC 144. While considering the purpose and objects of suspension of proceedings mentioned in Section 22(1) of SICA, therein it has been held that the expression proceedings in the sub-section must be widely construed. This is what the Bench has observed : The legislature has advisedly used an omnibus expression `the like as it could not have perceived of all possible coercive measures that may be taken against a sick undertaking. 19. The said contention is also devoid of merits. The word suit envisaged in Section 22(1) cannot be stretched to criminal prosecutions. The suit mentioned therein is restricted to recovery of money or for enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. As the suit is clearly delineated in the provision itself, the context would not admit of any other stretching process. 20. A criminal prosecution is neither for recovery of money nor for enforcement of any security etc. Section 138 of the NI Act is a penal provision the commission of which offence entails a conviction and sentence on proof of the guilt in a duly conducted criminal proceedings. Once the offence under Section 138 is completed the prosecution proceedings can be initiated not for recovery of the amount covered by the cheque but for bringing the offender to the penal liability. What was considered in Maharashtra Tubes Ltd. (supra) is whether the remedy provided in Section 29 or 31 of the State Finance Corporation Act, 1951 could be pursued notwithstanding the ban contained in Section 22 of the SICA. Hence the legal principle adumbrated in the said decision is of no avail to the appellants. 21. In the above context it is pertinent to point out that Section 138 of NI Act was introduced in 1988 when SICA was already in vogue. Even when the amplitude of the word company mentioned in Section 141 of the NI Act was widened through the Explanation added to the Section, Parliament did not think it necessary to exclude companies falling under Section 22 of SICA from the operation thereof. If Parliament intended to exempt sick companies from prosecution proceeding, necessary provision would have been included in Section 141 of the NI Act. More significantly, when Section 22(1) of SICA was amended in 1994 by inserting the words [and no suit for the recovery of money or for enforcement of any security against industrial company or of any guarantee in respect of any loans or advance granted to industrial company] Parliament did not specifically include prosecution proceedings within the ambit of the said ban. 22.

0[ds]12. We do not think it necessary to labour on the scope of SectionA of SICA in the present batch of appeals as the BIFR did not pass any order against any company involved herein until the expiry of the period of 15 days from the receipt of notice contemplated in clause (c) of the proviso to Section 138 of the NI Act. So none of the companies was interdicted by any such order envisaged in SectionA during the above period of 15 days. Hence, we are unable to find any help from the said provision which could salvage the appellants from the prosecution proceedings against themn (1) of Section 22 of SICA, we may point out that its operation commence in respect of the companies involved in this batch of appeals only after the expiry of the period of 15 days envisaged in clause (c) of the proviso to Section 138 of the NI Act within which the companies did not pay the amount covered by the cheques. The ban imposed, as per Section 22(1) of the SICA, is against maintainability of the following legal actions :(1) Proceedings for the winding up of the company;(2) Proceedings for execution, distress or the likes against any of the properties of the company;(3) Proceedings for the appointment of a receiver in respect of such properties;(4) Suits for recovery of money or for enforcement of any security against the company or guarantee in respect of any loan or advance granted to the company14. Some of the learned counsel pointed out that when a company is convicted under Section 138 of the NI Act the Court can only impose a fine as the sentence since a juristic person like the company cannot possibly be sent to prison. On its premise learned counsel contended that recovery of the fine covered by such sentence would be impractical on account of the ban envisaged in Section 22(1) of SICA against proceedings for execution, distress or the likes as against any of the properties of the company. As a corollary, it was submitted that prosecution against the company cannot be maintained since a Court would not be able to effectively impose a sentence on a company after convicting it of the offence under Section 138 of NI Act15. The fallacy of the above contention is. First is that maintainability of a prosecution proceeding is not to be tested on the touchstone of any practical hurdle in enforcing the sentence which might be imposed on a company after conviction. Second is, there is no insurmountable hurdle for recovery of the fine covered by the sentence even from a sick industrial company because the ban contained in Section 22(1) is only conditional as could as discerned from the last limb thereof which reads thus : Except with the consent of the Board or, as the case may be, the Appellate Authority. It means that with such consent the Court would be in a position to resort to proceedings for distress against the properties of the sick industrial company. Hence the aforesaid contention has no merit at all19. The said contention is also devoid of merits. The word suit envisaged in Section 22(1) cannot be stretched to criminal prosecutions. The suit mentioned therein is restricted to recovery of money or for enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. As the suit is clearly delineated in the provision itself, the context would not admit of any other stretching process20. A criminal prosecution is neither for recovery of money nor for enforcement of any security etc. Section 138 of the NI Act is a penal provision the commission of which offence entails a conviction and sentence on proof of the guilt in a duly conducted criminal proceedings. Once the offence under Section 138 is completed the prosecution proceedings can be initiated not for recovery of the amount covered by the cheque but for bringing the offender to the penal liability. What was considered in Maharashtra Tubes Ltd. (supra) is whether the remedy provided in Section 29 or 31 of the State Finance Corporation Act, 1951 could be pursued notwithstanding the ban contained in Section 22 of the SICA. Hence the legal principle adumbrated in the said decision is of no avail to the appellants21. In the above context it is pertinent to point out that Section 138 of NI Act was introduced in 1988 when SICA was already in vogue. Even when the amplitude of the word company mentioned in Section 141 of the NI Act was widened through the Explanation added to the Section, Parliament did not think it necessary to exclude companies falling under Section 22 of SICA from the operation thereof. If Parliament intended to exempt sick companies from prosecution proceeding, necessary provision would have been included in Section 141 of the NI Act. More significantly, when Section 22(1) of SICA was amended in 1994 by inserting the words [and no suit for the recovery of money or for enforcement of any security against industrial company or of any guarantee in respect of any loans or advance granted to industrial company] Parliament did not specifically include prosecution proceedings within the ambit of the said ban.

### 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: pay the amount covered by the cheques. The ban imposed, as per Section 22(1) of the SICA, is against maintainability of the following legal actions : (1) Proceedings for the winding up of the company; (2) Proceedings for execution, distress or the likes against any of the properties of the company; (3) Proceedings for the appointment of a receiver in respect of such properties; (4) Suits for recovery of money or for enforcement of any security against the company or guarantee in respect of any loan or advance granted to the company. 14. Some of the learned counsel pointed out that when a company is convicted under Section 138 of the NI Act the Court can only impose a fine as the sentence since a juristic person like the company cannot possibly be sent to prison. On its premise learned counsel contended that recovery of the fine covered by such sentence would be impractical on account of the ban envisaged in Section 22(1) of SICA against proceedings for execution, distress or the likes as against any of the properties of the company. As a corollary, it was submitted that prosecution against the company cannot be maintained since a Court would not be able to effectively impose a sentence on a company after convicting it of the offence under Section 138 of NI Act. 15. The fallacy of the above contention is two-fold. First is that maintainability of a prosecution proceeding is not to be tested on the touchstone of any practical hurdle in enforcing the sentence which might be imposed on a company after conviction. Second is, there is no insurmountable hurdle for recovery of the fine covered by the sentence even from a sick industrial company because the ban contained in Section 22(1) is only conditional as could as discerned from the last limb thereof which reads thus : Except with the consent of the Board or, as the case may be, the Appellate Authority. It means that with such consent the Court would be in a position to resort to proceedings for distress against the properties of the sick industrial company. Hence the aforesaid contention has no merit at all. 16. It was next contended that the ban against maintainability of a suit for the recovery of money would encompass prosecution proceedings also. To support the said contention reliance was sought to be made on the following meaning of word suit as given in Bouviers Law Dictionary : Suit is a generic term of comprehensive signification, and applies to any proceeding in a Court of justice in which the plaintiff pursues, in such Court, the remedy which the law affords him for the redress of any injury or the recovery of a right............ In its most extended sense, the word suit includes not only a civil action, but also a criminal prosecution, as, indictment, information and a conviction by a magistrate. 17. Learned counsel invited our attention to the maxim contemporanea expositio est optima et fortissima in lege (contemporaneous exposition is the best and strongest in law) for the purpose of stretching the scope of the word suit to envelope criminal prosecution as well. 18. Our attention has also been invited to the observation of a two Judge Bench of this Court in Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of Maharashtra Ltd. and another, 1993(2) SCC 144. While considering the purpose and objects of suspension of proceedings mentioned in Section 22(1) of SICA, therein it has been held that the expression proceedings in the sub-section must be widely construed. This is what the Bench has observed : The legislature has advisedly used an omnibus expression `the like as it could not have perceived of all possible coercive measures that may be taken against a sick undertaking. 19. The said contention is also devoid of merits. The word suit envisaged in Section 22(1) cannot be stretched to criminal prosecutions. The suit mentioned therein is restricted to recovery of money or for enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. As the suit is clearly delineated in the provision itself, the context would not admit of any other stretching process. 20. A criminal prosecution is neither for recovery of money nor for enforcement of any security etc. Section 138 of the NI Act is a penal provision the commission of which offence entails a conviction and sentence on proof of the guilt in a duly conducted criminal proceedings. Once the offence under Section 138 is completed the prosecution proceedings can be initiated not for recovery of the amount covered by the cheque but for bringing the offender to the penal liability. What was considered in Maharashtra Tubes Ltd. (supra) is whether the remedy provided in Section 29 or 31 of the State Finance Corporation Act, 1951 could be pursued notwithstanding the ban contained in Section 22 of the SICA. Hence the legal principle adumbrated in the said decision is of no avail to the appellants. 21. In the above context it is pertinent to point out that Section 138 of NI Act was introduced in 1988 when SICA was already in vogue. Even when the amplitude of the word company mentioned in Section 141 of the NI Act was widened through the Explanation added to the Section, Parliament did not think it necessary to exclude companies falling under Section 22 of SICA from the operation thereof. If Parliament intended to exempt sick companies from prosecution proceeding, necessary provision would have been included in Section 141 of the NI Act. More significantly, when Section 22(1) of SICA was amended in 1994 by inserting the words [and no suit for the recovery of money or for enforcement of any security against industrial company or of any guarantee in respect of any loans or advance granted to industrial company] Parliament did not specifically include prosecution proceedings within the ambit of the said ban. 22. ### Response: 0

T. Prem Sagar Vs. The Standard Vacuum Oil Companymadras And Others

to be sanctioned by the General Manager; had no power of attorney to enter into agreements with third parties on behalf of the Company; his work was subject to the overall supervision of the Operations Manager; he had no power to bind the Company by his acts; he could not operate upon the Companys bank account; he could not lay down policy for the Company and that he had to obtain the approval of the Operations Manager on almost all matters. Having discussed the whole of the evidence and recorded definite findings, the Commissioner no doubt observed in the course of his order that it cannot, therefore, be said that the respondent was exercising managerial powers in relation to the Head Office of the Company where he was employed,: and in that connection, he added that one of the questions which had to be considered by him was whether the powers exercised by the appellant were managerial with reference to the Head Office of the Company. It is on these two statements which the Commissioner made in the course of his order that the Division Bench has rested its decision and has recorded its finding that the order passed by the Commissioner of labour is on its face patently and manifestly erroneous.20. The Division Bench considered the relevant judicial decisions, bearing on the question about the extent of the High Courts jurisdiction in entertaining petitions for writs of certiorari and held that if the error in the judgment of the Commissioner of Labour was shown to be an error of law which was manifest on the face of the record, it would be justified in issuing a writ. This view is undoubtedly correct. The High Court was also right when it held that the question about the status of the appellant being a mixed question of fact and law, if it clearly appeared from the impugned order that in dealing with the status of the appellant a patently erroneous legal test was applied, that also would justify the interference of the High Court under Art. 226. It is in that connection that the High Court has observed that the manifest error in the impugned order lay in the fact that the Commissioner "thought that it is only when an employee is exercising managerial powers in relation to the head office of the company where he was employed that he can be said to be employed in a position of management within the meaning of S. 4(1) (a) of the Act." It would be noticed that this conclusion is based on the two statements in the impugned order to which we have already adverted.21. Mr. Swaminathan for the respondent has fairly conceded that when the Commissioner enumerated the tests which had to be applied in dealing with the status of the appellant, he committed no error of law; but he strongly urged that having laid down the proper tests, the Commissioner went wrong in applying the said tests because he seems to have concentrated on the main question as to whether the appellant was clothed with managerial powers in regard to the affairs of the Head office of the Company at Madras where he was employed, and that, he contends, constitutes a manifest and patent error of law in the conclusion recorded by the Commissioner. We are not impressed by this argument. The order pronounced by the Commissioner is an elaborate and well-considered order. He has taken into account the oral evidence, the documents produced before him and has also examined the probabilities of the case. In appreciating the effect of the two statements on which so much reliance has been placed by Mr. Swaminathan and which, in substance, was the sole basis of the decision of the Division Bench, we have to bear in mind the fact that the said two sentences represent only one of the many reasons given by the Commissioner in support of his conclusion, and that reason also was given by him and probably had to be given by him, because it appears that one of the contentions raised by the respondent before the Commissioner was that the appellant was clothed with managerial functions and duties. In the application made by the respondent under S. 51 before the Commissioner, the respondent had specifically averred in paragraph 3 that the appellant was an employee in the position of management and "his duties and functions were managerial". That being so, the Commissioner naturally had to consider this aspect of the matter, and so, he observed that the appellant did not have managerial functions, duties or authorities. It would, we think, be unfair to hold that the whole approach of the Commissioner was vitiated by the fact that he concentrated on the question about managerial functions and authority and did not apply the other tests which have been expressly set out by him in the earlier part of his order. Therefore, we do not think that the Division Bench was right in coming to the conclusion that the impugned order suffers from any error of law which is apparent on the face of the record.22. Incidentally, we ought to point out that even it the Division Bench was right in holding that the impugned order should be corrected by the issue of a writ of certiorari, it would have been better it it had not made its own findings on the evidence and passed its own order in that behalf. In writ proceedings if an error of law apparent on the face of the record is disclosed and a writ is issued, the usual course to adopt is to correct the error and send the case back to the special Tribunal for its decision in accordance with law. It would, we think, be inappropriate for the High Court exercising its writ jurisdiction to consider the evidence for itself and reach its own conclusions in matters which have been left by the legislature to the decisions of specially constituted Tribunals.

1[ds]In our opinion, if the Commissioners order is shown to suffer from the infirmity of an error of law apparent on face of the record, the High Court would be justified in issuing a writ notwithstanding the fact that S. 51 of the Act purports to make the Commissioners order final.Mr. Swaminathan for the respondent has fairly conceded that when the Commissioner enumerated the tests which had to be applied in dealing with the status of the appellant, he committed no error of law; but he strongly urged that having laid down the proper tests, the Commissioner went wrong in applying the said tests because he seems to have concentrated on the main question as to whether the appellant was clothed with managerial powers in regard to the affairs of the Head office of the Company at Madras where he was employed, and that, he contends, constitutes a manifest and patent error of law in the conclusion recorded by the Commissioner. We are not impressed by this argument. The order pronounced by the Commissioner is an elaborate and well-considered order. He has taken into account the oral evidence, the documents produced before him and has also examined the probabilities of the case. In appreciating the effect of the two statements on which so much reliance has been placed by Mr. Swaminathan and which, in substance, was the sole basis of the decision of the Division Bench, we have to bear in mind the fact that the said two sentences represent only one of the many reasons given by the Commissioner in support of his conclusion, and that reason also was given by him and probably had to be given by him, because it appears that one of the contentions raised by the respondent before the Commissioner was that the appellant was clothed with managerial functions and duties. In the application made by the respondent under S. 51 before the Commissioner, the respondent had specifically averred in paragraph 3 that the appellant was an employee in the position of management and "his duties and functions were managerial". That being so, the Commissioner naturally had to consider this aspect of the matter, and so, he observed that the appellant did not have managerial functions, duties or authorities. It would, we think, be unfair to hold that the whole approach of the Commissioner was vitiated by the fact that he concentrated on the question about managerial functions and authority and did not apply the other tests which have been expressly set out by him in the earlier part of his order. Therefore, we do not think that the Division Bench was right in coming to the conclusion that the impugned order suffers from any error of law which is apparent on the face of the record.22. Incidentally, we ought to point out that even it the Division Bench was right in holding that the impugned order should be corrected by the issue of a writ of certiorari, it would have been better it it had not made its own findings on the evidence and passed its own order in that behalf. In writ proceedings if an error of law apparent on the face of the record is disclosed and a writ is issued, the usual course to adopt is to correct the error and send the case back to the special Tribunal for its decision in accordance with law. It would, we think, be inappropriate for the High Court exercising its writ jurisdiction to consider the evidence for itself and reach its own conclusions in matters which have been left by the legislature to the decisions of specially constituted Tribunals.

### 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: to be sanctioned by the General Manager; had no power of attorney to enter into agreements with third parties on behalf of the Company; his work was subject to the overall supervision of the Operations Manager; he had no power to bind the Company by his acts; he could not operate upon the Companys bank account; he could not lay down policy for the Company and that he had to obtain the approval of the Operations Manager on almost all matters. Having discussed the whole of the evidence and recorded definite findings, the Commissioner no doubt observed in the course of his order that it cannot, therefore, be said that the respondent was exercising managerial powers in relation to the Head Office of the Company where he was employed,: and in that connection, he added that one of the questions which had to be considered by him was whether the powers exercised by the appellant were managerial with reference to the Head Office of the Company. It is on these two statements which the Commissioner made in the course of his order that the Division Bench has rested its decision and has recorded its finding that the order passed by the Commissioner of labour is on its face patently and manifestly erroneous.20. The Division Bench considered the relevant judicial decisions, bearing on the question about the extent of the High Courts jurisdiction in entertaining petitions for writs of certiorari and held that if the error in the judgment of the Commissioner of Labour was shown to be an error of law which was manifest on the face of the record, it would be justified in issuing a writ. This view is undoubtedly correct. The High Court was also right when it held that the question about the status of the appellant being a mixed question of fact and law, if it clearly appeared from the impugned order that in dealing with the status of the appellant a patently erroneous legal test was applied, that also would justify the interference of the High Court under Art. 226. It is in that connection that the High Court has observed that the manifest error in the impugned order lay in the fact that the Commissioner "thought that it is only when an employee is exercising managerial powers in relation to the head office of the company where he was employed that he can be said to be employed in a position of management within the meaning of S. 4(1) (a) of the Act." It would be noticed that this conclusion is based on the two statements in the impugned order to which we have already adverted.21. Mr. Swaminathan for the respondent has fairly conceded that when the Commissioner enumerated the tests which had to be applied in dealing with the status of the appellant, he committed no error of law; but he strongly urged that having laid down the proper tests, the Commissioner went wrong in applying the said tests because he seems to have concentrated on the main question as to whether the appellant was clothed with managerial powers in regard to the affairs of the Head office of the Company at Madras where he was employed, and that, he contends, constitutes a manifest and patent error of law in the conclusion recorded by the Commissioner. We are not impressed by this argument. The order pronounced by the Commissioner is an elaborate and well-considered order. He has taken into account the oral evidence, the documents produced before him and has also examined the probabilities of the case. In appreciating the effect of the two statements on which so much reliance has been placed by Mr. Swaminathan and which, in substance, was the sole basis of the decision of the Division Bench, we have to bear in mind the fact that the said two sentences represent only one of the many reasons given by the Commissioner in support of his conclusion, and that reason also was given by him and probably had to be given by him, because it appears that one of the contentions raised by the respondent before the Commissioner was that the appellant was clothed with managerial functions and duties. In the application made by the respondent under S. 51 before the Commissioner, the respondent had specifically averred in paragraph 3 that the appellant was an employee in the position of management and "his duties and functions were managerial". That being so, the Commissioner naturally had to consider this aspect of the matter, and so, he observed that the appellant did not have managerial functions, duties or authorities. It would, we think, be unfair to hold that the whole approach of the Commissioner was vitiated by the fact that he concentrated on the question about managerial functions and authority and did not apply the other tests which have been expressly set out by him in the earlier part of his order. Therefore, we do not think that the Division Bench was right in coming to the conclusion that the impugned order suffers from any error of law which is apparent on the face of the record.22. Incidentally, we ought to point out that even it the Division Bench was right in holding that the impugned order should be corrected by the issue of a writ of certiorari, it would have been better it it had not made its own findings on the evidence and passed its own order in that behalf. In writ proceedings if an error of law apparent on the face of the record is disclosed and a writ is issued, the usual course to adopt is to correct the error and send the case back to the special Tribunal for its decision in accordance with law. It would, we think, be inappropriate for the High Court exercising its writ jurisdiction to consider the evidence for itself and reach its own conclusions in matters which have been left by the legislature to the decisions of specially constituted Tribunals. ### Response: 1

Sajjan Textile Mills Ltd Vs. ICICI Bank Ltd. & Others

to the DRT, Bombay Bench, and an inventory of all the machinery available in the appellants mill was made and a report submitted to the Tribunal. The BIFR also passed an order on 5th October 2001 that as the appellant company could not be resusticated, it was just and equitable that it be wound up. In the meanwhile, the respondent Bank (in April 1999) also filed an application for the recovery of the principal amount of Rs.3 Crore. The DRT in its order allowed the application and passed an order for the recovery of the aforesaid amount from the appellant. A notice of demand dated 31st December, 2002 was issued by the Recovery Officer and recovery proceedings were initiated. The Recovery Officer issued a certificate against the appellant and the guarantors making them jointly and severally responsible for a payment of Rs.5,90,32,753/-. As the properties were situated within the jurisdiction of the DRT, Coimbatore, Tamil Nadu, the recovery proceedings were accordingly transferred to Coimbatore on an application made by the Bank. As the appellant and the guarantors did not pay the amounts due, an order for the attachment of the movable property of the appellant was issued, and despite several objections taken by the appellant, a proclamation for sale by way of tender was issued on 19th January 2004. The five tenders received were opened on 3rd February, 2004 and Sri Maruthi Textiles was found to be the highest bidder with a bid of Rs.2,50,99,999/-. The Recovery Officer thereupon directed the successful tenderer to deposit the balance money within 15 days which was further extended by 30 days up till 27th February 2004. The aforesaid amount was, however, not paid on which the Recovery Officer in his order dated 17th March 2004 directed that the offer of the 2nd respondent, Sri Vairalakshmi be accepted on payment of the amount tendered by Sri Maruthi Textiles. This offer was accepted by respondent No.2 and it undertook to deposit the bid money, but vide application dated 25th March 2004, sought an extension of time for doing so, which too was granted. It appears that on 1st March 2004, the Office of the Recovery Officer and DRT Coimbatore fell vacant and the Presiding Officer DRT, Chennai was appointed to hold the dual charge of both places. On 16th April 2004, respondent No.2 once again applied for more time for complying with the conditions of payment and the Presiding Officer, DRT, Chennai, who was holding the post as an additional charge made the following order on 7th May 2004:"Since no regular Recovery Officer is available in this Tribunal, the EMD deposited by the second bidder has to be returned. Further, the matter should be returned to DRT-III, Mumbai for further N.A."3. On 11th May 2004, the respondent Bank filed a writ petition before the Madras High Court for a direction to the Presiding Officer, DRT, Chennai to proceed with the recovery of the amounts due. In this petition, Sajjan Textiles, the present appellant, was shown as respondent No.3 and Sri Vairalakshmi & Co. was shown as the second respondent. The appellant was duly served and a vakalatnama also filed by an Advocate on its behalf on 21st July 2004. It appears, however that the High Court by its order dated 2nd August 2004 disposed of the writ petition in the absence of the appellants counsel by giving yet more time to respondent No.2 to pay the balance amount either in full or in instalments within a time frame of 2 months and the Presiding Officer, DRTC was directed to complete the sale transaction in terms mentioned in the body of the order. It is this order which has been impugned in this appeal.4. Mr. Singhvi, the learned senior counsel for the appellant, has at this stage raised only one argument before us. He has pointed out that the appellant was respondent No.3 in the writ proceedings in the High Court and though a Vakalatnama had been filed by a counsel on its behalf, the name of the counsel had not appeared in the cause list on the 2nd August, 2004 nor on the date preceding that date with the result that the appellant had suffered serious prejudice on account of remaining unrepresented on being unaware of the proceedings. 5. Mr. Andhyarujina, the learned senior counsel for the respondent Bank has, however, taken us through the entire sequence of events and the history of the litigation, and pointed out that the appellant was only a formal party in the writ proceedings, and as all the orders pertaining to the recovery and the sale had become final as some had not been challenged by the appellant and in some others, the challenge had failed, no useful purpose would be served in interfering in this matter. He has also pointed out that the property had been sold and removed from the appellants mill under the orders of this Court and nothing now remained to be decided and that the efforts of the appellants to prolong the litigation any further should be discouraged.6. We have heard the learned counsel for the parties and gone through the record very carefully. It is true that the litigation has had a chequered career in several forums including this Court. However in the present proceedings, we are not called upon to take a decision on the ultimate effect of the earlier set of proceedings as Mr. Singhvi has limited his claim to the fact that the appellant had not been heard at the time when the High Court had made the impugned order on 2nd August 2004. We are unable to accept Mr. Andhyarujinas plea that as the sale proceedings had attained finality, there was no need to have heard the appellant/Company as it had been impleaded as a mere formality. We feel that once having made the appellant a party in the writ proceedings, it does not lie on the Bank to contend that the appellant was not entitled to a hearing.

1[ds]6. We have heard the learned counsel for the parties and gone through the record very carefully. It is true that the litigation has had a chequered career in several forums including this Court. However in the present proceedings, we are not called upon to take a decision on the ultimate effect of the earlier set of proceedings as Mr. Singhvi has limited his claim to the fact that the appellant had not been heard at the time when the High Court had made the impugned order on 2nd August 2004. We are unable to accept Mr. Andhyarujinas plea that as the sale proceedings had attained finality, there was no need to have heard the appellant/Company as it had been impleaded as a mere formality. We feel that once having made the appellant a party in the writ proceedings, it does not lie on the Bank to contend that the appellant was not entitled to a hearing.

### 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: to the DRT, Bombay Bench, and an inventory of all the machinery available in the appellants mill was made and a report submitted to the Tribunal. The BIFR also passed an order on 5th October 2001 that as the appellant company could not be resusticated, it was just and equitable that it be wound up. In the meanwhile, the respondent Bank (in April 1999) also filed an application for the recovery of the principal amount of Rs.3 Crore. The DRT in its order allowed the application and passed an order for the recovery of the aforesaid amount from the appellant. A notice of demand dated 31st December, 2002 was issued by the Recovery Officer and recovery proceedings were initiated. The Recovery Officer issued a certificate against the appellant and the guarantors making them jointly and severally responsible for a payment of Rs.5,90,32,753/-. As the properties were situated within the jurisdiction of the DRT, Coimbatore, Tamil Nadu, the recovery proceedings were accordingly transferred to Coimbatore on an application made by the Bank. As the appellant and the guarantors did not pay the amounts due, an order for the attachment of the movable property of the appellant was issued, and despite several objections taken by the appellant, a proclamation for sale by way of tender was issued on 19th January 2004. The five tenders received were opened on 3rd February, 2004 and Sri Maruthi Textiles was found to be the highest bidder with a bid of Rs.2,50,99,999/-. The Recovery Officer thereupon directed the successful tenderer to deposit the balance money within 15 days which was further extended by 30 days up till 27th February 2004. The aforesaid amount was, however, not paid on which the Recovery Officer in his order dated 17th March 2004 directed that the offer of the 2nd respondent, Sri Vairalakshmi be accepted on payment of the amount tendered by Sri Maruthi Textiles. This offer was accepted by respondent No.2 and it undertook to deposit the bid money, but vide application dated 25th March 2004, sought an extension of time for doing so, which too was granted. It appears that on 1st March 2004, the Office of the Recovery Officer and DRT Coimbatore fell vacant and the Presiding Officer DRT, Chennai was appointed to hold the dual charge of both places. On 16th April 2004, respondent No.2 once again applied for more time for complying with the conditions of payment and the Presiding Officer, DRT, Chennai, who was holding the post as an additional charge made the following order on 7th May 2004:"Since no regular Recovery Officer is available in this Tribunal, the EMD deposited by the second bidder has to be returned. Further, the matter should be returned to DRT-III, Mumbai for further N.A."3. On 11th May 2004, the respondent Bank filed a writ petition before the Madras High Court for a direction to the Presiding Officer, DRT, Chennai to proceed with the recovery of the amounts due. In this petition, Sajjan Textiles, the present appellant, was shown as respondent No.3 and Sri Vairalakshmi & Co. was shown as the second respondent. The appellant was duly served and a vakalatnama also filed by an Advocate on its behalf on 21st July 2004. It appears, however that the High Court by its order dated 2nd August 2004 disposed of the writ petition in the absence of the appellants counsel by giving yet more time to respondent No.2 to pay the balance amount either in full or in instalments within a time frame of 2 months and the Presiding Officer, DRTC was directed to complete the sale transaction in terms mentioned in the body of the order. It is this order which has been impugned in this appeal.4. Mr. Singhvi, the learned senior counsel for the appellant, has at this stage raised only one argument before us. He has pointed out that the appellant was respondent No.3 in the writ proceedings in the High Court and though a Vakalatnama had been filed by a counsel on its behalf, the name of the counsel had not appeared in the cause list on the 2nd August, 2004 nor on the date preceding that date with the result that the appellant had suffered serious prejudice on account of remaining unrepresented on being unaware of the proceedings. 5. Mr. Andhyarujina, the learned senior counsel for the respondent Bank has, however, taken us through the entire sequence of events and the history of the litigation, and pointed out that the appellant was only a formal party in the writ proceedings, and as all the orders pertaining to the recovery and the sale had become final as some had not been challenged by the appellant and in some others, the challenge had failed, no useful purpose would be served in interfering in this matter. He has also pointed out that the property had been sold and removed from the appellants mill under the orders of this Court and nothing now remained to be decided and that the efforts of the appellants to prolong the litigation any further should be discouraged.6. We have heard the learned counsel for the parties and gone through the record very carefully. It is true that the litigation has had a chequered career in several forums including this Court. However in the present proceedings, we are not called upon to take a decision on the ultimate effect of the earlier set of proceedings as Mr. Singhvi has limited his claim to the fact that the appellant had not been heard at the time when the High Court had made the impugned order on 2nd August 2004. We are unable to accept Mr. Andhyarujinas plea that as the sale proceedings had attained finality, there was no need to have heard the appellant/Company as it had been impleaded as a mere formality. We feel that once having made the appellant a party in the writ proceedings, it does not lie on the Bank to contend that the appellant was not entitled to a hearing. ### Response: 1