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National Insurance Co. Ltd Vs. Sky Gems

the consignee, M/s. Emdico (London) Limited, for the original Policies of Insurance together with all correspondence exchanged with the postal authorities concerning their liability, and also a clarification as to whether they had remitted full payment of the value of the missing merchandise to the Indian suppliers. In another letter dated 20th June, 1991, M/s. W.K. Webster & Co. offered to settle the claim as soon as they received the necessary documentation from India and also mentioned that they shall present the same to the Bank in order to obtain the required funds against the Letter of Credit, which was available to them for payment of claims. The consignee, Emdico (London) Limited, sent a reply to M/s. W.K. Webster & Co. on 8th April, 1991 and the last paragraph of their letter reads as follows: "As regards the question whether we have remitted full payment of the value of the missing merchandise to our Indian suppliers, the answer is that we havent done so and we suggest that the settlement may be concluded direct with Sky Gems in India, however, if you will feel it is more convenient for you to deal with us as the consignees of the goods, we shall be happy to do so. One way or the other it doesnt seem to make much difference." 5. From the above correspondence, it is evident that the consignee, Emdico (London) Limited, did not pay the value of the missing merchandise to the respondent. There is no evidence to show that the necessary documents were endorsed in favour of the consignee and that they were transferred to them. These facts will show that the title to the goods in question had not passed to the consignee, M/s. Emdico (India) Limited and the respondent continued to be the owner having insurable interest over the goods. 6. The learned senior counsel for the respondent contended that the good were sent on CIF contract and the moment the goods were consigned, the title would pass to the consignee. We do not find much force in this contention. It is true that the goods are ascertained, but even then the title would pass based on the contract between the parties. The rights and liabilities of the parties in a CIF contract have been described by Lord Porter in Comptoir d Achat vs. Luis de Ridder; The Julia (1949) A.C. 293 at 309, which is quoted in the Book Schmitthoffs Export Trade - The Law and Practice of International Trade by Leo D Arcy, Carole Murray and Barbara Cleave [10th Edition], at page 29, and read as follows: "The obligations imposed on a seller under a c.i.f. contract are well known, and in the ordinary case, include the tender of a bill of lading covering the goods contracted to be sold and no others, coupled with an insurance policy in the normal form and accompanied by an invoice which shows the price and, as in this case, usually contains a deduction of the freight which the buyer pays before delivery at the port of discharge. Against tender of these documents the purchaser must pay the price. In such a case the property may pass either on shipment or on tender, the risk generally passes on shipment or as from shipment, but possession does not pass until the documents which represent the goods are handed over in exchange for the price. In the result, the buyer, after receipt of the documents, can claim against the ship for breach of the contract of carriage and against the underwriters of any loss covered by the policy. The strict form of c.i.f. contract may, however, be modified. A provision that a delivery order may be substituted for a bill of lading or a certificate of insurance for a policy would not, I think, make the contract be concluded on something other than c.i.f. terms." (Emphasis supplied) 7. From the above passage, it is clear that the right of the buyer to claim policy amount would arise when he obtained title to the property and he must produce the documents of transfer. Here, the buyer was not in possession of any such documents of title. The letter written by the consignee, M/s. Emdico (London) Limited on 8th April, 1991 clearly shows that they had not paid the value of the missing merchandise and had suggested to M/s. W.B. Webster & Co. that the claim may be settled with the respondent-Sky Gems in India. The consignee could not produce any documents concerning their title to the goods before M/s W.K. Webster & Company and this evidently shows that the title had not passed to the consignee at London. The insurable interest over the goods continued to be with the respondent. Under such circumstances, the respondent is not entitled to receive the payment in Pounds Sterling. 8. The respondent has paid the insurance premium in India currency and continued to have title over the goods as it never passed to the consignee. Had the title passed to the consignee, and if they had preferred the claim, the insurance amount would have been payable in London in Pound Sterling. The National Commission did not notice these points and directed the appellant to pay the amount in Pound Sterling mainly on the ground that the policies issued by them stated that the insurance amount was payable at London. 9. Having regard to the facts and circumstances of the case, we do not think that the appellant is liable to pay the insurance amount in Pounds Sterling. We set aside the direction of the National Commission to pay the amount in Pounds Sterling and hold that the respondent is entitled to get Rs. 28,30,000 with interest @ 18% from the date on which it preferred the claim petition before the appellant, till payment. The respondent is also entitled to receive Rs. 20,000 towards costs ordered by the National Commission.10. The Order passed by National Commission shall stand modified to the extent indicated above. 11.

0[ds]5. From the above correspondence, it is evident that the consignee, Emdico (London) Limited, did not pay the value of the missing merchandise to the respondent. There is no evidence to show that the necessary documents were endorsed in favour of the consignee and that they were transferred to them. These facts will show that the title to the goods in question had not passed to the consignee, M/s. Emdico (India) Limited and the respondent continued to be the owner having insurable interest over the goods.From the above passage, it is clear that the right of the buyer to claim policy amount would arise when he obtained title to the property and he must produce the documents of transfer. Here, the buyer was not in possession of any such documents of title. The letter written by the consignee, M/s. Emdico (London) Limited on 8th April, 1991 clearly shows that they had not paid the value of the missing merchandise and had suggested to M/s. W.B. Webster & Co. that the claim may be settled with the respondent-Sky Gems in India. The consignee could not produce any documents concerning their title to the goods before M/s W.K. Webster & Company and this evidently shows that the title had not passed to the consignee at London. The insurable interest over the goods continued to be with the respondent. Under such circumstances, the respondent is not entitled to receive the payment in Poundsdo not think that the appellant is liable to pay the insurance amount in Pounds Sterling. We set aside the direction of the National Commission to pay the amount in Pounds Sterling and hold that the respondent is entitled to get Rs. 28,30,000 with interest @ 18% from the date on which it preferred the claim petition before the appellant, till payment. The respondent is also entitled to receive Rs. 20,000 towards costs ordered by the National Commission.

### 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 consignee, M/s. Emdico (London) Limited, for the original Policies of Insurance together with all correspondence exchanged with the postal authorities concerning their liability, and also a clarification as to whether they had remitted full payment of the value of the missing merchandise to the Indian suppliers. In another letter dated 20th June, 1991, M/s. W.K. Webster & Co. offered to settle the claim as soon as they received the necessary documentation from India and also mentioned that they shall present the same to the Bank in order to obtain the required funds against the Letter of Credit, which was available to them for payment of claims. The consignee, Emdico (London) Limited, sent a reply to M/s. W.K. Webster & Co. on 8th April, 1991 and the last paragraph of their letter reads as follows: "As regards the question whether we have remitted full payment of the value of the missing merchandise to our Indian suppliers, the answer is that we havent done so and we suggest that the settlement may be concluded direct with Sky Gems in India, however, if you will feel it is more convenient for you to deal with us as the consignees of the goods, we shall be happy to do so. One way or the other it doesnt seem to make much difference." 5. From the above correspondence, it is evident that the consignee, Emdico (London) Limited, did not pay the value of the missing merchandise to the respondent. There is no evidence to show that the necessary documents were endorsed in favour of the consignee and that they were transferred to them. These facts will show that the title to the goods in question had not passed to the consignee, M/s. Emdico (India) Limited and the respondent continued to be the owner having insurable interest over the goods. 6. The learned senior counsel for the respondent contended that the good were sent on CIF contract and the moment the goods were consigned, the title would pass to the consignee. We do not find much force in this contention. It is true that the goods are ascertained, but even then the title would pass based on the contract between the parties. The rights and liabilities of the parties in a CIF contract have been described by Lord Porter in Comptoir d Achat vs. Luis de Ridder; The Julia (1949) A.C. 293 at 309, which is quoted in the Book Schmitthoffs Export Trade - The Law and Practice of International Trade by Leo D Arcy, Carole Murray and Barbara Cleave [10th Edition], at page 29, and read as follows: "The obligations imposed on a seller under a c.i.f. contract are well known, and in the ordinary case, include the tender of a bill of lading covering the goods contracted to be sold and no others, coupled with an insurance policy in the normal form and accompanied by an invoice which shows the price and, as in this case, usually contains a deduction of the freight which the buyer pays before delivery at the port of discharge. Against tender of these documents the purchaser must pay the price. In such a case the property may pass either on shipment or on tender, the risk generally passes on shipment or as from shipment, but possession does not pass until the documents which represent the goods are handed over in exchange for the price. In the result, the buyer, after receipt of the documents, can claim against the ship for breach of the contract of carriage and against the underwriters of any loss covered by the policy. The strict form of c.i.f. contract may, however, be modified. A provision that a delivery order may be substituted for a bill of lading or a certificate of insurance for a policy would not, I think, make the contract be concluded on something other than c.i.f. terms." (Emphasis supplied) 7. From the above passage, it is clear that the right of the buyer to claim policy amount would arise when he obtained title to the property and he must produce the documents of transfer. Here, the buyer was not in possession of any such documents of title. The letter written by the consignee, M/s. Emdico (London) Limited on 8th April, 1991 clearly shows that they had not paid the value of the missing merchandise and had suggested to M/s. W.B. Webster & Co. that the claim may be settled with the respondent-Sky Gems in India. The consignee could not produce any documents concerning their title to the goods before M/s W.K. Webster & Company and this evidently shows that the title had not passed to the consignee at London. The insurable interest over the goods continued to be with the respondent. Under such circumstances, the respondent is not entitled to receive the payment in Pounds Sterling. 8. The respondent has paid the insurance premium in India currency and continued to have title over the goods as it never passed to the consignee. Had the title passed to the consignee, and if they had preferred the claim, the insurance amount would have been payable in London in Pound Sterling. The National Commission did not notice these points and directed the appellant to pay the amount in Pound Sterling mainly on the ground that the policies issued by them stated that the insurance amount was payable at London. 9. Having regard to the facts and circumstances of the case, we do not think that the appellant is liable to pay the insurance amount in Pounds Sterling. We set aside the direction of the National Commission to pay the amount in Pounds Sterling and hold that the respondent is entitled to get Rs. 28,30,000 with interest @ 18% from the date on which it preferred the claim petition before the appellant, till payment. The respondent is also entitled to receive Rs. 20,000 towards costs ordered by the National Commission.10. The Order passed by National Commission shall stand modified to the extent indicated above. 11. ### Response: 0

PUNJAB STATE POWER CORPORATION LIMITED & ANR Vs. BAL KRISHAN SHARMA & ORS

6 SCC 446 : 2001 SCC (L&S) 976] . Power of the Board to issue circulars, therefore, was not in dispute. The validity of the said circular letters was not in question. 16. In the instant case, apart from the fact that the respondents had not challenged the validity of the said office order dated 29.03.1990 in the writ petition on the ground that it was not notified as per Section 79 of the said Act, the PSEB having already framed the Regulations of 1965 in exercise of powers conferred under Section 79(c) of the said Act, and the said Regulations having also been published in the Official Gazette, there was no need for the PSEB to notify the office order dated 29.03.1990 which pertained to the upgradation of 20% of the posts of Junior Engineer II (Civil), as was permissible under Regulation 17 of the said Regulations. 17. It may be further be noted that after the issuance of the said office order dated 29.03.1990, the PSEB had issued another office order dated 23.04.1990, to overcome the problem of stagnation prevailing amongst the various cadres of regular employees of the Board. The said office order dated 23.04.1990 which has been heavily relied upon by the respondents in the instant case, had come up for consideration before this Court in case of Bhakra Beas Management Board vs. Krishan Kumar Vij and Anr. (supra). In the said case, this Court was required to consider whether in the light of the order/circular issued by the Bhakra Beas Management Board, pursuant to the office order dated 23.04.1990 issued by the PSEB, the concerned Assistant Engineer (Civil) was entitled to the benefit of the higher scale of pay/upgradation/stepping up of salary sans prerequisite qualification for the grant of the same. This Court after considering the aims and objects of the office order dated 23.04.1990 issued by the PSEB, and also the entire scheme of time bound benefit of promotional/devised promotional scale as envisaged in the said office order, observed as under: 25. The critical examination of the impugned judgment passed by the Division Bench of the High Court completely defeats primary purpose of the 1990 Order and provisions applicable to the employees of the Board. No doubt, it is true that the 1990 Order was issued only with an intention to remove the stagnation but this would not give blanket or absolute right to any employee to be entitled to higher pay scale even if he does not fulfil prerequisite qualifications for holding the higher post. In other words, if he possesses the required qualifications but is unable to get the higher post on account of non-availability of such post, then only he can be categorised as suffering from stagnation as per Order of 23-4-1990. 26 to 30………… 31. If the interpretation of the High Court to the 1990 Order is to be implemented, then it would lead to unsustainable consequences. It would then mean that every Assistant Engineer irrespective of his conduct, qualifications, performance or behaviour would become entitled to the higher scale on completion of particular length of service. If that be so, then even those employees with poor service record and doubtful integrity would also become entitled to claim higher scale merely because they had completed a particular length of service. If such an interpretation is to be given to the 1990 Order, then it would not only be improper but would also be against public policy and interest of the Board. It is too well settled that a statute or any enacting provision must be so construed as to make it effective and operative. Any such construction which reduces the statute to a futility has to be avoided. 18. In view of the above, it was made clear by this court that an employee could be said to be suffering from stagnation as per the office order dated 23.04.1990 only if he possessed the requisite qualification for the next higher post and was unable to get the higher post on account of non availability of such post. 19. In case of Union of India and Ors. vs. M.V. Mohanan Nair (2020) 5 SCC 421, while considering the object behind the MACP Scheme which provided relief against the stagnation, this Court observed as under: 31. The object behind the MACP Scheme is to provide relief against the stagnation. If the arguments of the respondents are to be accepted, they would be entitled to be paid in accordance with the grade pay offered to a promotee; but yet not assume the responsibilities of a promotee. As submitted on behalf of Union of India, if the employees are entitled to enjoy grade pay in the next promotional hierarchy, without the commensurate responsibilities as a matter of routine, it would have an adverse impact on the efficiency of administration. 20. Thus, the claim of the respondents based on the office order dated 23.04.1990, for getting the pay scale of the next higher post of Assistant Engineer i.e. Rs. 2200-4250 on the completion of 9 years of their service and the pay scale of another next higher post of the Executive Engineer i.e. Rs. 3000-5600 on the completion of 16 years of their service, without assuming the responsibilities of the said promotional posts, was thoroughly misconceived. What they were entitled to, as per the scheme to alleviate the stagnation as contained in the office order dated 23.04.1990, was the time bound promotional/devised promotional scale as indicated in the Schedule drawn up by the Board. The said Schedule had specified the first time bound scale to be allowed after 9 years of service as Rs. 1800-3500, and the second time bound scale to be allowed after 16 years of service as 2200-4250 for the post of Junior Engineer Grade-II (Civil), subject to the pre-conditions mentioned therein. The same having already been granted to the respondents, the pay scales as claimed by the respondents in the writ petition could not have been granted by the High Court.

1[ds]11. At the outset, it may be noted that the respondents (original petitioners) in the writ petition had prayed for granting the pay scale of Rs. 2200-4250 with initial start of Rs. 2400/- per month with effect from 01.01.1986 and further to grant the pay scale of Rs. 3000-5600 on completion of 16 years of their services on the basis of the office orders dated 19.07.1989, 29.03.1990 and 23.04.1990 (Annexure P-1, P-2 and P-4 respectively), however there was no challenge to the officer order dated 29.03.1990 (Annexure P-3) in the petition, which has been held to be unenforceable by the High Court on the ground that it was not published in the Gazette as required under Section 79 of the said Act.12. It cannot be gainsaid that there is a vast difference between the upgradation and the promotion. Ordinarily upgradation of a post would involve transfer of a post from lower to higher grade and placement of an incumbent of that post in the higher grade. Such placement would not involve any selection process to be followed, but would merely confer a financial benefit by raising the scale of pay of the post. However, in case of promotion, there would be an advancement to a higher position or rank along with an advancement to a higher grade. Therefore, the word promotion would mean advancement or preferment in honour, dignity, rank and grade. This Court, in case of Bharat Sanchar Nigam Ltd. vs. R. Santhakumari Velusamy and Ors (2021) Vol. 9 SCC 510, has laid down certain principles relating to the promotion and upgradation which read as under:29. On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge:(i) Promotion is an advancement in rank or grade or both and is step towards advancement to a higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both-that is, advancement to a higher position and advancement to a higher pay scale-are described by the common term promotion, does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay scale without change of post is as result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simpliciter can be said to be a promotion in its wider sense, that is, advancement to a higher pay scale.13. In view of the afore-stated legal position, the office order dated 29.03.1990, which was issued only for upgrading 20% of the posts of Junior Engineer-II (Civil), in the higher pay scale, could neither be construed as creating new posts of promotion nor could it be construed as changing the conditions of service of the Junior Engineers (Civil). The said upgradation merely conferred a financial benefit by raising the pay scale of the Junior Engineers (Civil), without there being advancement to a higher position, and without there being change in the duties and responsibilities. There is also nothing on record to suggest that the Junior Engineers had to undergo any process of selection for getting the benefit of the said office order. Hence, it could not be said by any stretch of imagination that the PSEB had robbed the respondents of their legitimate right of promotion by issuing the said office order or that such order could not have been issued without corresponding amendment in the Regulations, as held by the High Court14. At this juncture, it is pertinent to note that the PSEB has already framed the Regulations 1965 in exercise of the powers conferred by clause (c) of Section 79 of the said Act, and the said Regulations have been notified in the Official Gazette. Regulation 17 of the said Regulations states that the members of the service will be entitled to such scale of pay as may be authorised by the Board from time to time. Thus, in view of Regulation 17 of the said Regulations, the PSEB was authorised to fix the scales of pay of the posts specified therein including that of the Junior Engineers, from time to time. Even otherwise it is well settled proposition of law that in absence of any Rules or Regulations governing the service conditions of the employees, the Electricity Board has power to issue administrative orders. In case of Sohan Singh Sodhi vs. Punjab State Electricity Board, Patiala (supra), this Court has held in the context of Section 79(c) of the Electricity (Supply) Act, 1948 that when the State Electricity Board can frame Regulations under Section 79(c) of the said Act, in absence of any Regulation, issuance of executive order is permissible in law.16. In the instant case, apart from the fact that the respondents had not challenged the validity of the said office order dated 29.03.1990 in the writ petition on the ground that it was not notified as per Section 79 of the said Act, the PSEB having already framed the Regulations of 1965 in exercise of powers conferred under Section 79(c) of the said Act, and the said Regulations having also been published in the Official Gazette, there was no need for the PSEB to notify the office order dated 29.03.1990 which pertained to the upgradation of 20% of the posts of Junior Engineer II (Civil), as was permissible under Regulation 17 of the said Regulations.17. It may be further be noted that after the issuance of the said office order dated 29.03.1990, the PSEB had issued another office order dated 23.04.1990, to overcome the problem of stagnation prevailing amongst the various cadres of regular employees of the Board. The said office order dated 23.04.1990 which has been heavily relied upon by the respondents in the instant case, had come up for consideration before this Court in case of Bhakra Beas Management Board vs. Krishan Kumar Vij and Anr. (supra). In the said case, this Court was required to consider whether in the light of the order/circular issued by the Bhakra Beas Management Board, pursuant to the office order dated 23.04.1990 issued by the PSEB, the concerned Assistant Engineer (Civil) was entitled to the benefit of the higher scale of pay/upgradation/stepping up of salary sans prerequisite qualification for the grant of the same. This Court after considering the aims and objects of the office order dated 23.04.1990 issued by the PSEB, and also the entire scheme of time bound benefit of promotional/devised promotional scale as envisaged in the said office order, observed as under:25. The critical examination of the impugned judgment passed by the Division Bench of the High Court completely defeats primary purpose of the 1990 Order and provisions applicable to the employees of the Board. No doubt, it is true that the 1990 Order was issued only with an intention to remove the stagnation but this would not give blanket or absolute right to any employee to be entitled to higher pay scale even if he does not fulfil prerequisite qualifications for holding the higher post. In other words, if he possesses the required qualifications but is unable to get the higher post on account of non-availability of such post, then only he can be categorised as suffering from stagnation as per Order of 23-4-1990.26 to 30…………31. If the interpretation of the High Court to the 1990 Order is to be implemented, then it would lead to unsustainable consequences. It would then mean that every Assistant Engineer irrespective of his conduct, qualifications, performance or behaviour would become entitled to the higher scale on completion of particular length of service. If that be so, then even those employees with poor service record and doubtful integrity would also become entitled to claim higher scale merely because they had completed a particular length of service. If such an interpretation is to be given to the 1990 Order, then it would not only be improper but would also be against public policy and interest of the Board. It is too well settled that a statute or any enacting provision must be so construed as to make it effective and operative. Any such construction which reduces the statute to a futility has to be avoided.18. In view of the above, it was made clear by this court that an employee could be said to be suffering from stagnation as per the office order dated 23.04.1990 only if he possessed the requisite qualification for the next higher post and was unable to get the higher post on account of non availability of such post.19. In case of Union of India and Ors. vs. M.V. Mohanan Nair (2020) 5 SCC 421, while considering the object behind the MACP Scheme which provided relief against the stagnation, this Court observed as under:31. The object behind the MACP Scheme is to provide relief against the stagnation. If the arguments of the respondents are to be accepted, they would be entitled to be paid in accordance with the grade pay offered to a promotee; but yet not assume the responsibilities of a promotee. As submitted on behalf of Union of India, if the employees are entitled to enjoy grade pay in the next promotional hierarchy, without the commensurate responsibilities as a matter of routine, it would have an adverse impact on the efficiency of administration.20. Thus, the claim of the respondents based on the office order dated 23.04.1990, for getting the pay scale of the next higher post of Assistant Engineer i.e. Rs. 2200-4250 on the completion of 9 years of their service and the pay scale of another next higher post of the Executive Engineer i.e. Rs. 3000-5600 on the completion of 16 years of their service, without assuming the responsibilities of the said promotional posts, was thoroughly misconceived. What they were entitled to, as per the scheme to alleviate the stagnation as contained in the office order dated 23.04.1990, was the time bound promotional/devised promotional scale as indicated in the Schedule drawn up by the Board. The said Schedule had specified the first time bound scale to be allowed after 9 years of service as Rs. 1800-3500, and the second time bound scale to be allowed after 16 years of service as 2200-4250 for the post of Junior Engineer Grade-II (Civil), subject to the pre-conditions mentioned therein. The same having already been granted to the respondents, the pay scales as claimed by the respondents in the writ petition could not have been granted by the High Court.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: 6 SCC 446 : 2001 SCC (L&S) 976] . Power of the Board to issue circulars, therefore, was not in dispute. The validity of the said circular letters was not in question. 16. In the instant case, apart from the fact that the respondents had not challenged the validity of the said office order dated 29.03.1990 in the writ petition on the ground that it was not notified as per Section 79 of the said Act, the PSEB having already framed the Regulations of 1965 in exercise of powers conferred under Section 79(c) of the said Act, and the said Regulations having also been published in the Official Gazette, there was no need for the PSEB to notify the office order dated 29.03.1990 which pertained to the upgradation of 20% of the posts of Junior Engineer II (Civil), as was permissible under Regulation 17 of the said Regulations. 17. It may be further be noted that after the issuance of the said office order dated 29.03.1990, the PSEB had issued another office order dated 23.04.1990, to overcome the problem of stagnation prevailing amongst the various cadres of regular employees of the Board. The said office order dated 23.04.1990 which has been heavily relied upon by the respondents in the instant case, had come up for consideration before this Court in case of Bhakra Beas Management Board vs. Krishan Kumar Vij and Anr. (supra). In the said case, this Court was required to consider whether in the light of the order/circular issued by the Bhakra Beas Management Board, pursuant to the office order dated 23.04.1990 issued by the PSEB, the concerned Assistant Engineer (Civil) was entitled to the benefit of the higher scale of pay/upgradation/stepping up of salary sans prerequisite qualification for the grant of the same. This Court after considering the aims and objects of the office order dated 23.04.1990 issued by the PSEB, and also the entire scheme of time bound benefit of promotional/devised promotional scale as envisaged in the said office order, observed as under: 25. The critical examination of the impugned judgment passed by the Division Bench of the High Court completely defeats primary purpose of the 1990 Order and provisions applicable to the employees of the Board. No doubt, it is true that the 1990 Order was issued only with an intention to remove the stagnation but this would not give blanket or absolute right to any employee to be entitled to higher pay scale even if he does not fulfil prerequisite qualifications for holding the higher post. In other words, if he possesses the required qualifications but is unable to get the higher post on account of non-availability of such post, then only he can be categorised as suffering from stagnation as per Order of 23-4-1990. 26 to 30………… 31. If the interpretation of the High Court to the 1990 Order is to be implemented, then it would lead to unsustainable consequences. It would then mean that every Assistant Engineer irrespective of his conduct, qualifications, performance or behaviour would become entitled to the higher scale on completion of particular length of service. If that be so, then even those employees with poor service record and doubtful integrity would also become entitled to claim higher scale merely because they had completed a particular length of service. If such an interpretation is to be given to the 1990 Order, then it would not only be improper but would also be against public policy and interest of the Board. It is too well settled that a statute or any enacting provision must be so construed as to make it effective and operative. Any such construction which reduces the statute to a futility has to be avoided. 18. In view of the above, it was made clear by this court that an employee could be said to be suffering from stagnation as per the office order dated 23.04.1990 only if he possessed the requisite qualification for the next higher post and was unable to get the higher post on account of non availability of such post. 19. In case of Union of India and Ors. vs. M.V. Mohanan Nair (2020) 5 SCC 421, while considering the object behind the MACP Scheme which provided relief against the stagnation, this Court observed as under: 31. The object behind the MACP Scheme is to provide relief against the stagnation. If the arguments of the respondents are to be accepted, they would be entitled to be paid in accordance with the grade pay offered to a promotee; but yet not assume the responsibilities of a promotee. As submitted on behalf of Union of India, if the employees are entitled to enjoy grade pay in the next promotional hierarchy, without the commensurate responsibilities as a matter of routine, it would have an adverse impact on the efficiency of administration. 20. Thus, the claim of the respondents based on the office order dated 23.04.1990, for getting the pay scale of the next higher post of Assistant Engineer i.e. Rs. 2200-4250 on the completion of 9 years of their service and the pay scale of another next higher post of the Executive Engineer i.e. Rs. 3000-5600 on the completion of 16 years of their service, without assuming the responsibilities of the said promotional posts, was thoroughly misconceived. What they were entitled to, as per the scheme to alleviate the stagnation as contained in the office order dated 23.04.1990, was the time bound promotional/devised promotional scale as indicated in the Schedule drawn up by the Board. The said Schedule had specified the first time bound scale to be allowed after 9 years of service as Rs. 1800-3500, and the second time bound scale to be allowed after 16 years of service as 2200-4250 for the post of Junior Engineer Grade-II (Civil), subject to the pre-conditions mentioned therein. The same having already been granted to the respondents, the pay scales as claimed by the respondents in the writ petition could not have been granted by the High Court. ### Response: 1

British India Steam Navigation Co. Ltd Vs. Jasjit Singh Additional Commissioner Of Customs

dismissed on July 7, 1961. It is against this order of the Letters Patent Bench that the appellant has come to this Court in the present appeal.5. Civil Appeal No. 312 of 1963 has been preferred by the Everett Orient Line Incorporated against the order of the Collector of Customs imposing a fine of Rs. 26 lakhs in lieu of confiscation of the vessel Rutheverett. The order was passed on October 1, 1960. The appellant has come to this court by special leave directly against this order.6. The remaining three Writ Petition Nos. 2-4 of 1963 have been filed by the Shipping Corporation of India Ltd., the offending ships being State of Bihar, State of Uttar Pradesh, and State of Bihar respectively. These writ petitions have been filed against the orders of the Collector of Customs. In the first case, the order was passed on July 25, 1962, imposing a fine of Rs. 50, 000/-, in the second, the order was passed on September 4, 1962, imposing a fine of Rs. 10, 000/-, and in the last, the order was passed on August 16, 1962, imposing a fine of Rs. 25, 000/-.7. We have heard all these matters together because they raise the same question which was raised for our decision by the appellant in C.A. No. 770 of 1962 [1983 (13) E.L.T. 1392 (S.C.)]. If these matters had not been placed together for hearing along with the said civil appeal, we would not have entertained them, except C.A. No. 299 of 1963. This latter appeal has been brought against the decision of the Calcutta High Court and the only point which could have been argued by the appellant would be one of jurisdiction, since the appellant had moved the said High Court under Article 226, and that too against the order of the Collector of Customs. But in regard to the other matters, the parties have come to this Court directly against the orders of the Collector of Customs and this Court generally does not entertain appeals against the orders passed by a Tribunal unless the alternative remedies provided by the relevant Act by way of appeals or revisions have been pursued by the aggrieved party. We have already seen that against the order of confiscation and fine passed by the Collector of Customs, an appeal is competent, and against the decision of the appellate authority, a revision also lies. That being so, we would have hesitated to entertain these appeals if each one of them had come separately for hearing before us. In fact, the question as to whether the writ jurisdiction of the High Court could be successfully invoked by a party immediately after an order is passed against him by the Collector of Customs under Section 167(12A) and Section 183, does not appear to have been argued before the Calcutta High Court when it entertained the writ proceedings from which Appeal No. 299 of 1963 has been brought to this Court. As was observed by this Court in A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani - 1983 (13) E.L.T. 1327 (S.C.) = (1962) 1 SCR 753 , the rule that a party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, though not one which bars the jurisdiction of the Court to entertain the petition or to deal with it, but is a rule which courts have laid down for the exercise of this discretion. That is one aspect which has to be borne in mind in dealing with C.A. No. 299 of 1963, and the other writ petitions in this group.8. If an appeal is entertained against an order passed by the Collector of Customs and our jurisdiction is allowed to be invoked under Article 136, it would lead to this anomalous result that questions of fact determined by the Collector of Customs may have to be re-examined by us as a Court of facts and an argument impeaching the validity or propriety of the order of fine may also have to be considered, and these precisely are the matters which the legislature has left to the determination of the appellate and the revisional authorities as prescribed by Sections 190 and 191 of the Sea Customs Act. Besides, the High Court should be slow in encouraging parties to circumvent the special provisions in respect of orders which they seek to challenge by writ petition under Article 226. In the present case, however, these writ petitions were presumably admitted because they raised a question of some importance which had already been raised by some appeals properly brought before this Court under Article 136, and so, we have allowed the counsel to argue these writ petitions on the question of construction alone.9. Besides, it appears that these writ petitions and C.A. No. 299 of 1963 purport to raise a question about the validity of Section 52A of the Sea Customs Act and that may have weighed in favour of admitting the said matters : but as we have held in Civil Appeal No. 770 of 1962 [1983 (13) E.L.T. 1392 (S.C.)] the foreign companies whose vessels have contravened Section 52A and in respect of which penalties have been imposed under Section 167(12A) read with Section 183, are not entitled to claim the fundamental right guaranteed under Article 19(1)(f) of the Constitution and so, that plea fails.10. In regard to the Shipping Corporation of India Ltd., which has filed the three Writ Petition Nos. 2-4 of 1963, the said Corporation is in no better position. As a result of the decision of this Court in State Trading Corporation of India Ltd. v. Commercial Tax Officer - AIR 1963 SC 1811 , the Shipping Corporation of India Ltd. cannot claim to be a citizen of India, and as such, is not entitled to rely upon Article 19(1) in support of its case that Section 52A is ultra vires.

0[ds]7. We have heard all these matters together because they raise the same question which was raised for our decision by the appellant in C.A. No. 770 of 1962 [1983 (13) E.L.T. 1392 (S.C.)]. If these matters had not been placed together for hearing along with the said civil appeal, we would not have entertained them, except C.A. No. 299 of 1963. This latter appeal has been brought against the decision of the Calcutta High Court and the only point which could have been argued by the appellant would be one of jurisdiction, since the appellant had moved the said High Court under Article 226, and that too against the order of the Collector of Customs. But in regard to the other matters, the parties have come to this Court directly against the orders of the Collector of Customs and this Court generally does not entertain appeals against the orders passed by a Tribunal unless the alternative remedies provided by the relevant Act by way of appeals or revisions have been pursued by the aggrieved party. We have already seen that against the order of confiscation and fine passed by the Collector of Customs, an appeal is competent, and against the decision of the appellate authority, a revision also lies. That being so, we would have hesitated to entertain these appeals if each one of them had come separately for hearing before us. In fact, the question as to whether the writ jurisdiction of the High Court could be successfully invoked by a party immediately after an order is passed against him by the Collector of Customs under Section 167(12A) and Section 183, does not appear to have been argued before the Calcutta High Court when it entertained the writ proceedings from which Appeal No. 299 of 1963 has been brought to this Court. As was observed by this Court in A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani - 1983 (13) E.L.T. 1327 (S.C.) = (1962) 1 SCR 753 , the rule that a party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, though not one which bars the jurisdiction of the Court to entertain the petition or to deal with it, but is a rule which courts have laid down for the exercise of this discretion. That is one aspect which has to be borne in mind in dealing with C.A. No. 299 of 1963, and the other writ petitions in this group.8. If an appeal is entertained against an order passed by the Collector of Customs and our jurisdiction is allowed to be invoked under Article 136, it would lead to this anomalous result that questions of fact determined by the Collector of Customs may have to be re-examined by us as a Court of facts and an argument impeaching the validity or propriety of the order of fine may also have to be considered, and these precisely are the matters which the legislature has left to the determination of the appellate and the revisional authorities as prescribed by Sections 190 and 191 of the Sea Customs Act. Besides, the High Court should be slow in encouraging parties to circumvent the special provisions in respect of orders which they seek to challenge by writ petition under Article 226. In the present case, however, these writ petitions were presumably admitted because they raised a question of some importance which had already been raised by some appeals properly brought before this Court under Article 136, and so, we have allowed the counsel to argue these writ petitions on the question of construction alone.9. Besides, it appears that these writ petitions and C.A. No. 299 of 1963 purport to raise a question about the validity of Section 52A of the Sea Customs Act and that may have weighed in favour of admitting the said matters : but as we have held in Civil Appeal No. 770 of 1962 [1983 (13) E.L.T. 1392 (S.C.)] the foreign companies whose vessels have contravened Section 52A and in respect of which penalties have been imposed under Section 167(12A) read with Section 183, are not entitled to claim the fundamental right guaranteed under Article 19(1)(f) of the Constitution and so, that plea fails.10. In regard to the Shipping Corporation of India Ltd., which has filed the three Writ Petition Nos. 2-4 of 1963, the said Corporation is in no better position. As a result of the decision of this Court in State Trading Corporation of India Ltd. v. Commercial Tax Officer - AIR 1963 SC 1811 , the Shipping Corporation of India Ltd. cannot claim to be a citizen of India, and as such, is not entitled to rely upon Article 19(1) in support of its case that Section 52A is ultra vires.

### 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: dismissed on July 7, 1961. It is against this order of the Letters Patent Bench that the appellant has come to this Court in the present appeal.5. Civil Appeal No. 312 of 1963 has been preferred by the Everett Orient Line Incorporated against the order of the Collector of Customs imposing a fine of Rs. 26 lakhs in lieu of confiscation of the vessel Rutheverett. The order was passed on October 1, 1960. The appellant has come to this court by special leave directly against this order.6. The remaining three Writ Petition Nos. 2-4 of 1963 have been filed by the Shipping Corporation of India Ltd., the offending ships being State of Bihar, State of Uttar Pradesh, and State of Bihar respectively. These writ petitions have been filed against the orders of the Collector of Customs. In the first case, the order was passed on July 25, 1962, imposing a fine of Rs. 50, 000/-, in the second, the order was passed on September 4, 1962, imposing a fine of Rs. 10, 000/-, and in the last, the order was passed on August 16, 1962, imposing a fine of Rs. 25, 000/-.7. We have heard all these matters together because they raise the same question which was raised for our decision by the appellant in C.A. No. 770 of 1962 [1983 (13) E.L.T. 1392 (S.C.)]. If these matters had not been placed together for hearing along with the said civil appeal, we would not have entertained them, except C.A. No. 299 of 1963. This latter appeal has been brought against the decision of the Calcutta High Court and the only point which could have been argued by the appellant would be one of jurisdiction, since the appellant had moved the said High Court under Article 226, and that too against the order of the Collector of Customs. But in regard to the other matters, the parties have come to this Court directly against the orders of the Collector of Customs and this Court generally does not entertain appeals against the orders passed by a Tribunal unless the alternative remedies provided by the relevant Act by way of appeals or revisions have been pursued by the aggrieved party. We have already seen that against the order of confiscation and fine passed by the Collector of Customs, an appeal is competent, and against the decision of the appellate authority, a revision also lies. That being so, we would have hesitated to entertain these appeals if each one of them had come separately for hearing before us. In fact, the question as to whether the writ jurisdiction of the High Court could be successfully invoked by a party immediately after an order is passed against him by the Collector of Customs under Section 167(12A) and Section 183, does not appear to have been argued before the Calcutta High Court when it entertained the writ proceedings from which Appeal No. 299 of 1963 has been brought to this Court. As was observed by this Court in A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani - 1983 (13) E.L.T. 1327 (S.C.) = (1962) 1 SCR 753 , the rule that a party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, though not one which bars the jurisdiction of the Court to entertain the petition or to deal with it, but is a rule which courts have laid down for the exercise of this discretion. That is one aspect which has to be borne in mind in dealing with C.A. No. 299 of 1963, and the other writ petitions in this group.8. If an appeal is entertained against an order passed by the Collector of Customs and our jurisdiction is allowed to be invoked under Article 136, it would lead to this anomalous result that questions of fact determined by the Collector of Customs may have to be re-examined by us as a Court of facts and an argument impeaching the validity or propriety of the order of fine may also have to be considered, and these precisely are the matters which the legislature has left to the determination of the appellate and the revisional authorities as prescribed by Sections 190 and 191 of the Sea Customs Act. Besides, the High Court should be slow in encouraging parties to circumvent the special provisions in respect of orders which they seek to challenge by writ petition under Article 226. In the present case, however, these writ petitions were presumably admitted because they raised a question of some importance which had already been raised by some appeals properly brought before this Court under Article 136, and so, we have allowed the counsel to argue these writ petitions on the question of construction alone.9. Besides, it appears that these writ petitions and C.A. No. 299 of 1963 purport to raise a question about the validity of Section 52A of the Sea Customs Act and that may have weighed in favour of admitting the said matters : but as we have held in Civil Appeal No. 770 of 1962 [1983 (13) E.L.T. 1392 (S.C.)] the foreign companies whose vessels have contravened Section 52A and in respect of which penalties have been imposed under Section 167(12A) read with Section 183, are not entitled to claim the fundamental right guaranteed under Article 19(1)(f) of the Constitution and so, that plea fails.10. In regard to the Shipping Corporation of India Ltd., which has filed the three Writ Petition Nos. 2-4 of 1963, the said Corporation is in no better position. As a result of the decision of this Court in State Trading Corporation of India Ltd. v. Commercial Tax Officer - AIR 1963 SC 1811 , the Shipping Corporation of India Ltd. cannot claim to be a citizen of India, and as such, is not entitled to rely upon Article 19(1) in support of its case that Section 52A is ultra vires. ### Response: 0

Maharaja Shree Umaid Mills Ltd Vs. Union Of India

Article to show that it fetters for all time to come, the power of the Union Legislature to make modifications or changes in the rights, liabilities etc. which have vested in the Government of India. The express provisions of Art. 295 (10) deal with only two matters, namely, (1) vesting of certain, property and assets in the Government of India, and (2) the arising of certain rights, liabilities and obligations on the Government of India. Any legislation altering the course of vesting or succession as laid down in Art. 295 will no doubt be bad on the ground that it conflicts with Article. But there is nothing in the Article which prohibits Parliament from enacting a law altering the terms and conditions of a contract or of a grant under which the liability of the Government of India arises. The legislative competence of the Union Legislature or even of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the legislature enjoys to legislate on the topics enumerated in the relevant Lists Maharaj Umeg Singh v. State of Bombay (A.I.R. (1955) S.C. 540, ).In our opinion, there is nothing in Art. 295 which Expressly prohibits Parliament from enacting a law as to income-tax or excise duty in territories which became Part B States, and which were formerly Indian States, and such a Prohibition cannot be read into Art. 295 by virtue of some contract that might have been made by the then Ruler of an Indian State with any person.22. There is another aspect of this question. The rights, liabilities and obligations referred to in Art. 295 (1) (b) are, by the express language of the Article, subject to any agreement entered into in that behalf by the Government of India and the Government of the State. Such an agreement was entered into between the President of India and Rajpramukh of Rajasthan on February 25, 1950. It is necessary to explain how this agreement came into existence. A committee known as the Indian States Finances Enquiry Committee was appointed by a resolution of the Government of India dated October 22 1948, to examine and report upon, among other things, the present structure of public finance in Indian States and the desirability and feasibility of integrating Federal Finance in Indian States. This committee submitted its report on October 22, 1949. The agreement between the President of India and the Rajpramukh of Rajasthan said :"The recommendations of the Indian States Finance Enquiry Committee, 1948-49 (hereafter referred to as the Committee) contained in Part I of its Report read with Chapters I, II and III of Part II of its Report in so far as they apply to the State of Rajasthan (hereafter referred to as the State) together with the recommendations contained in Chapter VIII of Part II of the report, are accepted by the parties hereto, subject to the following modifications."23. It is not necessary for our purpose to set out the modifications in detail. It is enough to say that there is nothing in the modifications which in any way benefits the appellant. One of the modifications relates to State-owned and State-operated enterprises which are to be exempt from income-tax etc. The appellant is neither a State-owned nor a State operate enterprise. Another modification states- "State-sponsored Banks or similar State-ponsored enterprises in the State now enjoying any explicit tax exemptions shall be treated as "Industrial Corporations" for purposes of the continuance of the Income tax concessions now enjoyed by them in accordance with paragraph 11 (3) (b) of the Annexure to Part 1 of the Committees Report." Now the appellant is neither a State-sponsored bank nor a State-sponsored enterprise. So far as the appellant is concerned the recommendations of the committee which were accepted in the agreement inter alia said : "Any special financial privileges and immunities (affecting "federal" revenues) conferred by the State upon other individuals and corporations should ordinarily be continued on the same terms by the Centre, subject to a maximum period of ten (or fifteen) years, and subject also to limiting in other ways any such concessions as may be extravagant against the public interest."The recommendation quoted above clearly shows that it was open to the Union to limit in any way it thought fit any concessions as appear to the Union Government to be extravagant and against the public interest. In view of this recommendation which was part of the agreement entered into between the President of India and the Rajpramukh of Rajasthan on February 25, 1950, the appellant can hardly plead it has a constitutional guarantee to claim exemption from excise duty or income-tax.24. This finishes the second line of argument urged on behalf of the appellant. As to the pleas based on Arts. 1.9 and 31 of the Constitution, it is enough to say that on our findings the appellant had no enforceable right either against the State Government of Rajasthan or the Union Government on january 26, 1950. It is obvious, therefore, that the appellant cannot invoke to its aid either Art. 19 or Art. 31 of the Constitution. As to the claim of refund which the appellant preferred against the State of Rajasthan, the appelant, s position is no better. If neither the United State of Rajasthan nor the Part B State of Rajasthan affirmed the agreement of April 17, 1941, the appellant cannot enforce any right against respondent No. 2 on the basis of that agreement.25. In the trial court as also in the High Court the question of frustration of the contract was canvassed and gone into. The courts found that the contract was frustrated. In view of the findings at which we have arrived. It is now unnecessary to consider that question. Therefore we do not propose to deal with it.26.

0[ds]As to the first line of argument we have come to the conclusion that the agreement of April 17, 1941, rests solely on the consent of the parties; it is entirely contractual in nature and is not law, because it has none of the characteristics ofour view, none of the aforesaid decisions go the extent of laying down that any and every order of a Sovereign Ruler. who combines in himself all functions must be treated as law irrespective of the nature or character of the order passed. We think that the true -nature of the order must be taken into consideration, and the order to be law must have the characteristics of law, that is, of a binding rule of conduct as the expression of the will of the sovereign, which does not derive its authority from mere consensus of mind of two parties entering into a bargain. It is not necessary for this purpose to go into theories of legal philosophy or to define law. However law may be defined, be it the command of the supreme legislature as some jurists have put it or be it a "body of rules laid down for the determination of legal rights and duties which courts recognise there is an appreciable distinction between an agreement which is based solely on consent of parties and a law which derives its sanction from the will of the Sovereign. A contract is. essentially a compact between two or more parties a law is not an agreement between parties but is a binding rule of conduct deriving its sanction from the sovereign authority. From this point of view, there is a valid distinction between a particular agreement between two or more parties even if one of the parties is the sovereign Ruler, and the law relating generally, to agreements. The former rests on consensus of mind, and the latter expresses the will of the Sovereign.If one bears in mind this distinction, it seems clear enough that the agreement of April 17, 1941, even though sanctioned by the Ruler and purporting to be on his, behalf rests really on consent. We have, been taken through the correspondence which resulted in the agreement and our. attention was particularly drawn to a letter dated April 22, 1938, in which the Ruler was stated to have sanctioned the terms and concessions decided upon by his Ministers in their meeting of February 25, 1938. We do not think that the correspondence to which we have been referred advances the case of the appellant. On the contrary, the, correspondence shows that there were prolonged negotiations, proposals and counter-proposals, offer and acceptance of terms ... all indicating that the matter-was treated even by the Ruler as a contract between his Government and the appellant. That is why in the letter dated April 22, 1938, it was stated that Messrs Crawford Bailey & Co. Solicitors, would draw up a formal agreement embodying the terms agreed to by the parties. This resulted ultimately in the execution of the agreement dated April 17, 1941:. To call such an agreement as law is in our opinion to misuse the termis also worthy of note in this connection that clause 6 of the agreement purports to give the appellant exemption not only from State Excise duty, but also from Federal Excise duty; similarly not only from State Income-tax, but from Federal Income tax or Super-tax or Surcharge. It is difficult to see what, authority the Jodhpur Ruler had to give exemption from Federal Excise duty or Federal Income- tax. Such an exemption, if it were to be treated as, law, would be beyond the competence of the Ruler. A Ruler can make a law within his own competence and jurisdiction. He cannot make a law for some other sovereign. Such an exemption would be a dead letter and cannot have the force ofan assurance of this kind to exercise influence on another sovereign authority, assuming that the effect of the relevant clause is what learned counsel has submitted, as to which we have great doubt, will at once show that it has not the characteristics of a binding rule of conduct. It is doubtful if such an, assurance to exercise influence on another sovereign authority can be enforced even as a contract not to speak ofargument if carried to a reductio ad absurdum would come to this that every order of the Ruler would have to be carried out by the succeeding Sovereign. That order may be almost of any kind, as for example, an order to thrash a servant. We have no doubt in our minds that the nature of the order must be considered for determining whether it has the force of law. Art. 372 of the Constitution which continues existing law must be construed as embracing those orders only which have the force of law...Iaw as understood at thefail to see how this principle has any application in the present case. There is nothing to show that the agreement in the present case was confirmed as a law by the Ruler; on the contrary, we have shown earlier that it was always treated as a contract between two , parties. There is no magic in the expression legislative contract. A contract is a compact between two or more parties and is either executory or executed. If a statute adopts or confirms it, it becomes law and is no longer a mere contract. That is all that a legislative contract means. In the cases before us there is no legislative contract.In view of our conclusion that the agreement of April 17, 1941, is not law, it is perhaps unnecessary to decide the further question as to whether s.3 of the Rajasthan Ordinance, 1949 (Ordinance I of 1949) continued it or whether s.30 of the Rajasthan Excise Duties Ordinance, 1949 (Ordinance XXV of 1949) repealed it. We may merely say that with regard to the effect of s.30, learned counsel for the appellant relied on the principle that the presumption is that a subsequent enactment of a purely general character is not intended to interfere with an earlier special provision for a particular case, unless it appears from a consideration of the general enactment that the intention of the legislature was to establish a rule of universal application in which case the special provision must give way to the general (see paragraph 711, page 467 of Vol. 36, Halsburys Laws of England, Third Edition, andWilliams v. Pritchard Eddington v. Borman ((1799) E.R. 863.).On behalf of the respondents it was submitted that s. 30 of the Rajasthan Excise Duties Ordinance, 1949, in express terms repealed all laws dealing with matters covered by the ordinance, and s. 3 thereof dealt with excise duties on goods produced or manufactured in Rajasthan therefore, there was no room for the application of the maxim generalia specialibus non derogant and s. 30 clearly repealed all earlier laws in the matter of excise duties or exemption therefrom. It is perhaps unnecessary to decide this question ; because we have already held that the agreement of April 17, 1941, was neither law nor had the force ofdo not think that this is a correct interpretation of Art. 295 of the Constitution. But before going into the question of interpretation of Art. 295 It may be pointed out that if the United State of Rajasthan did not affirm the agreement, then the appellant had no enforceable right against either the United State of Rajasthan or the Part B State of Rajasthan. Under Art. 295 (1) (b) there must be a right or liability on an Indian State corresponding to a State specified in Part B of the First, schedule which can become the right or liability of the Government of India etc. If the right itself did not exist before the commencement of the Constitution and could not be enforced against any Government, the question of its vesting in another Government under Art. 295(1) (b) can hardly arise. The scheme of Art. 295 appears to be this, It relates to succession to property, assets, rights, liabilities and obligations. Clause (a) states from the commencement of the Constitution all property and assets which immediately before such commencement were vested in an Indian State corresponding to a State specified in Part B of the First schedule shall vest in the Union, if the purposes for which such property and assets were held-be purposes of the Union. Clause (b) states that all rights, liabili- ties and obligations of the Government of any Indian State corresponding to a State specified in Part B of the First Schedule, whether arising out of any contract or otherwise shall be the rights, liabilities and obligations of the Government of India if the purposes for which such rights were acquired or liabilities- and obligations were incurred be purposes of the Government of India. There is nothing in the Article to show that it fetters for all time to come, the power of the Union Legislature to make modifications or changes in the rights, liabilities etc. which have vested in the Government of India. The express provisions of Art. 295 (10) deal with only two matters, namely, (1) vesting of certain, property and assets in the Government of India, and (2) the arising of certain rights, liabilities and obligations on the Government of India. Any legislation altering the course of vesting or succession as laid down in Art. 295 will no doubt be bad on the ground that it conflicts with Article. But there is nothing in the Article which prohibits Parliament from enacting a law altering the terms and conditions of a contract or of a grant under which the liability of the Government of India arises. The legislative competence of the Union Legislature or even of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the legislature enjoys to legislate on the topics enumerated in the relevant Lists Maharaj Umeg Singh v. State of Bombay (A.I.R. (1955) S.C. 540, ).In our opinion, there is nothing in Art. 295 which Expressly prohibits Parliament from enacting a law as to income-tax or excise duty in territories which became Part B States, and which were formerly Indian States, and such a Prohibition cannot be read into Art. 295 by virtue of some contract that might have been made by the then Ruler of an Indian State with anyis not necessary for our purpose to set out the modifications in detail. It is enough to say that there is nothing in the modifications which in any way benefits the appellant. One of the modifications relates to State-owned and State-operated enterprises which are to be exempt from income-tax etc. The appellant is neither a State-owned nor a State operate enterprise. Another modification states- "State-sponsored Banks or similar State-ponsored enterprises in the State now enjoying any explicit tax exemptions shall be treated as "Industrial Corporations" for purposes of the continuance of the Income tax concessions now enjoyed by them in accordance with paragraph 11 (3) (b) of the Annexure to Part 1 of the Committees Report." Now the appellant is neither a State-sponsored bank nor a State-sponsored enterprise. So far as the appellant is concerned the recommendations of the committee which were accepted in the agreement inter alia said : "Any special financial privileges and immunities (affecting "federal" revenues) conferred by the State upon other individuals and corporations should ordinarily be continued on the same terms by the Centre, subject to a maximum period of ten (or fifteen) years, and subject also to limiting in other ways any such concessions as may be extravagant against the public interest."The recommendation quoted above clearly shows that it was open to the Union to limit in any way it thought fit any concessions as appear to the Union Government to be extravagant and against the public interest. In view of this recommendation which was part of the agreement entered into between the President of India and the Rajpramukh of Rajasthan on February 25, 1950, the appellant can hardly plead it has a constitutional guarantee to claim exemption from excise duty orto the pleas based on Arts. 1.9 and 31 of the Constitution, it is enough to say that on our findings the appellant had no enforceable right either against the State Government of Rajasthan or the Union Government on january 26, 1950. It is obvious, therefore, that the appellant cannot invoke to its aid either Art. 19 or Art. 31 of the Constitution. As to the claim of refund which the appellant preferred against the State of Rajasthan, the appelant, s position is no better. If neither the United State of Rajasthan nor the Part B State of Rajasthan affirmed the agreement of April 17, 1941, the appellant cannot enforce any right against respondent No. 2 on the basis of thatthe trial court as also in the High Court the question of frustration of the contract was canvassed and gone into. The courts found that the contract was frustrated. In view of the findings at which we have arrived. It is now unnecessary to consider that question. Therefore we do not propose to deal with it.

### 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: Article to show that it fetters for all time to come, the power of the Union Legislature to make modifications or changes in the rights, liabilities etc. which have vested in the Government of India. The express provisions of Art. 295 (10) deal with only two matters, namely, (1) vesting of certain, property and assets in the Government of India, and (2) the arising of certain rights, liabilities and obligations on the Government of India. Any legislation altering the course of vesting or succession as laid down in Art. 295 will no doubt be bad on the ground that it conflicts with Article. But there is nothing in the Article which prohibits Parliament from enacting a law altering the terms and conditions of a contract or of a grant under which the liability of the Government of India arises. The legislative competence of the Union Legislature or even of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the legislature enjoys to legislate on the topics enumerated in the relevant Lists Maharaj Umeg Singh v. State of Bombay (A.I.R. (1955) S.C. 540, ).In our opinion, there is nothing in Art. 295 which Expressly prohibits Parliament from enacting a law as to income-tax or excise duty in territories which became Part B States, and which were formerly Indian States, and such a Prohibition cannot be read into Art. 295 by virtue of some contract that might have been made by the then Ruler of an Indian State with any person.22. There is another aspect of this question. The rights, liabilities and obligations referred to in Art. 295 (1) (b) are, by the express language of the Article, subject to any agreement entered into in that behalf by the Government of India and the Government of the State. Such an agreement was entered into between the President of India and Rajpramukh of Rajasthan on February 25, 1950. It is necessary to explain how this agreement came into existence. A committee known as the Indian States Finances Enquiry Committee was appointed by a resolution of the Government of India dated October 22 1948, to examine and report upon, among other things, the present structure of public finance in Indian States and the desirability and feasibility of integrating Federal Finance in Indian States. This committee submitted its report on October 22, 1949. The agreement between the President of India and the Rajpramukh of Rajasthan said :"The recommendations of the Indian States Finance Enquiry Committee, 1948-49 (hereafter referred to as the Committee) contained in Part I of its Report read with Chapters I, II and III of Part II of its Report in so far as they apply to the State of Rajasthan (hereafter referred to as the State) together with the recommendations contained in Chapter VIII of Part II of the report, are accepted by the parties hereto, subject to the following modifications."23. It is not necessary for our purpose to set out the modifications in detail. It is enough to say that there is nothing in the modifications which in any way benefits the appellant. One of the modifications relates to State-owned and State-operated enterprises which are to be exempt from income-tax etc. The appellant is neither a State-owned nor a State operate enterprise. Another modification states- "State-sponsored Banks or similar State-ponsored enterprises in the State now enjoying any explicit tax exemptions shall be treated as "Industrial Corporations" for purposes of the continuance of the Income tax concessions now enjoyed by them in accordance with paragraph 11 (3) (b) of the Annexure to Part 1 of the Committees Report." Now the appellant is neither a State-sponsored bank nor a State-sponsored enterprise. So far as the appellant is concerned the recommendations of the committee which were accepted in the agreement inter alia said : "Any special financial privileges and immunities (affecting "federal" revenues) conferred by the State upon other individuals and corporations should ordinarily be continued on the same terms by the Centre, subject to a maximum period of ten (or fifteen) years, and subject also to limiting in other ways any such concessions as may be extravagant against the public interest."The recommendation quoted above clearly shows that it was open to the Union to limit in any way it thought fit any concessions as appear to the Union Government to be extravagant and against the public interest. In view of this recommendation which was part of the agreement entered into between the President of India and the Rajpramukh of Rajasthan on February 25, 1950, the appellant can hardly plead it has a constitutional guarantee to claim exemption from excise duty or income-tax.24. This finishes the second line of argument urged on behalf of the appellant. As to the pleas based on Arts. 1.9 and 31 of the Constitution, it is enough to say that on our findings the appellant had no enforceable right either against the State Government of Rajasthan or the Union Government on january 26, 1950. It is obvious, therefore, that the appellant cannot invoke to its aid either Art. 19 or Art. 31 of the Constitution. As to the claim of refund which the appellant preferred against the State of Rajasthan, the appelant, s position is no better. If neither the United State of Rajasthan nor the Part B State of Rajasthan affirmed the agreement of April 17, 1941, the appellant cannot enforce any right against respondent No. 2 on the basis of that agreement.25. In the trial court as also in the High Court the question of frustration of the contract was canvassed and gone into. The courts found that the contract was frustrated. In view of the findings at which we have arrived. It is now unnecessary to consider that question. Therefore we do not propose to deal with it.26. ### Response: 0

Smt. Sefali Roy Chowdhary and Ors Vs. A.K. Dutta

Act was dismissed. The plaintiff moved the High Court in revision against this order. The revision case was disposed of on February 16, 1968, the learned Judge maintained the order rejecting the application under section 14(4) but set aside the finding on issue No. 9 and held that "for the purposes of the present suit for ejectment there is a relationship of landlord and tenant". The propriety of this order is challenged by the tenant defendants.In the course of his Judgment the learned Judge recorded the following findings:"(i) "The validity or the binding nature of the order under section 16(3) of the 1956 Act cannot be challenged nor can it be found in this suit to be inoperative".(ii) The rights arising out of a valid proceeding under section 16(3) cannot be overlooked in spite of the non-obstante clause in section 40 of the 1956 Act and the effect of the order under section 16(3) has to be considered in the suit.(iii)As the proceeding under section 16(3) was started during the pendency of the suit, the principle underlying section 52 of the Transfer of Property Act should apply to this case and "the decision made in the proceeding under section 16(3) would not control the decision in the ejectment suit".5. It thus appears that the High Court was of the view that in spite of section 40 providing that a pending proceeding would continue to be governed by the provisions of 1950 Act as if that Act had not been repealed or had not expired, the order made under section 16(3) of the 1956 Act must be given effect to. The High Court however held that the proceeding under section 16(3) having been initiated during the pendency of the suit, the principle of lis pendens should apply and accordingly the order under section 16(3) would not govern the suit Before us, counsel for the respondent did not rely on section 52 of the Transfer of Property Act, but sought to support the decree on the ground that in view of section 40 , the entire proceeding under section 16(3) was without jurisdiction. The doctrine of lis pendens can of course have no application to this case. Section 52 of the Transfer of Property Act forbids alienations pendente lite providing inter alia that the property forming the subject matter of a pending suit cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so as to affect the other party, and rests "upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail". [observation of Turner L. J. in Belamy v. Sabine, (1857) 1 D. &J. 566 (584) quoted with ap proval by the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narail &others, 34 I.A. 102 (105).] But a sub-tenant who avails of the provisions of section 16(3) which extinguishes the tenants interest in the portion of the premises sublet and confers on the sub-tenant the right to hold the tenancy directly under the superior landlord, cannot be said to have alienated proporty pendente lite. Section 5 of the Transfer of Property Act defines transfer of property as an act by which a living person conveys property to another. When the legislature in exercise of its sovereign powers regulates the relations of landlord and tenant, altering or abridging their rights, what it does is not transfer of property attracting the doctrine of lis pendens.As stated already, counsel for the respondent put his case on the provisions of section 40 of the 1956 Act. According to him the suit must continue to be governed by the 1950 Act even after its repeal in view of section 40, unaffected by the provisions of the 1956 Act Section 40 of the 1956 Act keeps alive a proceeding pending on the date when the 1950 Act was repealed as if it is still in force and has not been repealed. This however does not mean that even if the 1956 Act created a new right in favour of the sub-tenant, he would be denied this right because a suit for ejectment was pending against him when the Act came into force. Tenant as defined in section 2(h) of the 1956 Act includes a per son continuing in possession after the termination of his tenancy until a decree or order for eviction has been made against him. A sub-tenant is also a tenant, and when the order under section 16(3) was made no decree or order for eviction had been passed against him. That being so, we do not see why he should not be entitled to the benefit conferred by section 16(3). The intention of the legislature, which is paramount, is clear-to upgrade the subtenant and make him a tenant directly under the superior landlord. This is a new right given to the sub-tenant, and though the pending proceeding may continue to be regulated by the repealed statute in view of section 40, there is nothing in that section to suggest that the sub -tenant against whom a suit was pending will be denied this additional right. The High Court has held that the effect of the order under section 16(3) must be considered in the suit. Thus the suit may continue in spite of the repeal of the 1950 Act, but the right acquired by the sub-tenant under the 1956 Act has to be given effect to and the suit decided accordingly. It must therefore be held that the relationship of landlord and tenant ceased between the parties on the date when the order under section 16(3) was made.6.

1[ds]It thus appears that the High Court was of the view that in spite of section 40 providing that a pending proceeding would continue to be governed by the provisions of 1950 Act as if that Act had not been repealed or had not expired, the order made under section 16(3) of the 1956 Act must be given effect to. The High Court however held that the proceeding under section 16(3) having been initiated during the pendency of the suit, the principle of lis pendens should apply and accordingly the order under section 16(3) would not govern the suit Before us, counsel for the respondent did not rely on section 52 of the Transfer of Property Act, but sought to support the decree on the ground that in view of section 40 , the entire proceeding under section 16(3) was without jurisdiction. The doctrine of lis pendens can of course have no application to this case. Section 52 of the Transfer of Property Act forbids alienations pendente lite providing inter alia that the property forming the subject matter of a pending suit cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so as to affect the other party, and rests "upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail". [observation of Turner L. J. inBelamy v. Sabine, (1857) 1 D. &J. 566 (584)quoted with ap proval by the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narail &others, 34 I.A. 102 (105).] But a sub-tenant who avails of the provisions of section 16(3) which extinguishes the tenants interest in the portion of the premises sublet and confers on the sub-tenant the right to hold the tenancy directly under the superior landlord, cannot be said to have alienated proporty pendente lite. Section 5 of the Transfer of Property Act defines transfer of property as an act by which a living person conveys property to another. When the legislature in exercise of its sovereign powers regulates the relations of landlord and tenant, altering or abridging their rights, what it does is not transfer of property attracting the doctrine of lis pendens.As stated already, counsel for the respondent put his case on the provisions of section 40 of the 1956 Act. According to him the suit must continue to be governed by the 1950 Act even after its repeal in view of section 40, unaffected by the provisions of the 1956 Act Section 40 of the 1956 Act keeps alive a proceeding pending on the date when the 1950 Act was repealed as if it is still in force and has not been repealed. This however does not mean that even if the 1956 Act created a new right in favour of the sub-tenant, he would be denied this right because a suit for ejectment was pending against him when the Act came into force. Tenant as defined in section 2(h) of the 1956 Act includes a per son continuing in possession after the termination of his tenancy until a decree or order for eviction has been made against him. A sub-tenant is also a tenant, and when the order under section 16(3) was made no decree or order for eviction had been passed against him. That being so, we do not see why he should not be entitled to the benefit conferred by section 16(3). The intention of the legislature, which is paramount, is clear-to upgrade the subtenant and make him a tenant directly under the superior landlord. This is a new right given to the sub-tenant, and though the pending proceeding may continue to be regulated by the repealed statute in view of section 40, there is nothing in that section to suggest that the sub -tenant against whom a suit was pending will be denied this additional right. The High Court has held that the effect of the order under section 16(3) must be considered in the suit. Thus the suit may continue in spite of the repeal of the 1950 Act, but the right acquired by the sub-tenant under the 1956 Act has to be given effect to and the suit decided accordingly. It must therefore be held that the relationship of landlord and tenant ceased between the parties on the date when the order under section 16(3) was made.

### 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: Act was dismissed. The plaintiff moved the High Court in revision against this order. The revision case was disposed of on February 16, 1968, the learned Judge maintained the order rejecting the application under section 14(4) but set aside the finding on issue No. 9 and held that "for the purposes of the present suit for ejectment there is a relationship of landlord and tenant". The propriety of this order is challenged by the tenant defendants.In the course of his Judgment the learned Judge recorded the following findings:"(i) "The validity or the binding nature of the order under section 16(3) of the 1956 Act cannot be challenged nor can it be found in this suit to be inoperative".(ii) The rights arising out of a valid proceeding under section 16(3) cannot be overlooked in spite of the non-obstante clause in section 40 of the 1956 Act and the effect of the order under section 16(3) has to be considered in the suit.(iii)As the proceeding under section 16(3) was started during the pendency of the suit, the principle underlying section 52 of the Transfer of Property Act should apply to this case and "the decision made in the proceeding under section 16(3) would not control the decision in the ejectment suit".5. It thus appears that the High Court was of the view that in spite of section 40 providing that a pending proceeding would continue to be governed by the provisions of 1950 Act as if that Act had not been repealed or had not expired, the order made under section 16(3) of the 1956 Act must be given effect to. The High Court however held that the proceeding under section 16(3) having been initiated during the pendency of the suit, the principle of lis pendens should apply and accordingly the order under section 16(3) would not govern the suit Before us, counsel for the respondent did not rely on section 52 of the Transfer of Property Act, but sought to support the decree on the ground that in view of section 40 , the entire proceeding under section 16(3) was without jurisdiction. The doctrine of lis pendens can of course have no application to this case. Section 52 of the Transfer of Property Act forbids alienations pendente lite providing inter alia that the property forming the subject matter of a pending suit cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so as to affect the other party, and rests "upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail". [observation of Turner L. J. in Belamy v. Sabine, (1857) 1 D. &J. 566 (584) quoted with ap proval by the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narail &others, 34 I.A. 102 (105).] But a sub-tenant who avails of the provisions of section 16(3) which extinguishes the tenants interest in the portion of the premises sublet and confers on the sub-tenant the right to hold the tenancy directly under the superior landlord, cannot be said to have alienated proporty pendente lite. Section 5 of the Transfer of Property Act defines transfer of property as an act by which a living person conveys property to another. When the legislature in exercise of its sovereign powers regulates the relations of landlord and tenant, altering or abridging their rights, what it does is not transfer of property attracting the doctrine of lis pendens.As stated already, counsel for the respondent put his case on the provisions of section 40 of the 1956 Act. According to him the suit must continue to be governed by the 1950 Act even after its repeal in view of section 40, unaffected by the provisions of the 1956 Act Section 40 of the 1956 Act keeps alive a proceeding pending on the date when the 1950 Act was repealed as if it is still in force and has not been repealed. This however does not mean that even if the 1956 Act created a new right in favour of the sub-tenant, he would be denied this right because a suit for ejectment was pending against him when the Act came into force. Tenant as defined in section 2(h) of the 1956 Act includes a per son continuing in possession after the termination of his tenancy until a decree or order for eviction has been made against him. A sub-tenant is also a tenant, and when the order under section 16(3) was made no decree or order for eviction had been passed against him. That being so, we do not see why he should not be entitled to the benefit conferred by section 16(3). The intention of the legislature, which is paramount, is clear-to upgrade the subtenant and make him a tenant directly under the superior landlord. This is a new right given to the sub-tenant, and though the pending proceeding may continue to be regulated by the repealed statute in view of section 40, there is nothing in that section to suggest that the sub -tenant against whom a suit was pending will be denied this additional right. The High Court has held that the effect of the order under section 16(3) must be considered in the suit. Thus the suit may continue in spite of the repeal of the 1950 Act, but the right acquired by the sub-tenant under the 1956 Act has to be given effect to and the suit decided accordingly. It must therefore be held that the relationship of landlord and tenant ceased between the parties on the date when the order under section 16(3) was made.6. ### Response: 1

S. L. Kapoor Vs. Jagmohan & Ors

on to describe the maxim as "one of the rules generally accepted in the bundle of the rules making up natural justice."It is the recognition of the importance of the requirement that justice is seen to be done that justifies the giving of a remedy to a litigant even when it may be claimed that a decision alleged to be vitiated by a breach of natural justice would still have been reached had a fair hearing been given by an impartial tribunal. The maxim is applicable precisely when the Court is concerned not with a case of actual injustice but with the appearance of injustice, or possible injustice. In Altco Ltd. v. Sutherland, (1971) 2 Lloyds Rep 515 Donaldson J. said that the court, in deciding whether to interfere where an arbitrator had not given a party a full hearing was not concerned with whether a further hearing would produce a different or the same result, It was important that the parties should not only be given justice, but, as reasonable men, know that they had had justice or "to use the time hallowed phrase" that justice should not only be done but be seen to be done. In R. v. Thames Magistrates Court, ex. p. Polemis, (1974) 1 WLR 1371, the applicant obtained an order of certiorari to quash his conviction by a stipendiary magistrate on the ground that he had not had sufficient time to prepare his defence. The Divisional Court rejected the argument that, in its discretion, it ought to refuse relief because the applicant had no defence to the charge.It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question here, it seems to me that it is no answer to the applicant to say: Well, even if the case had been properly conducted, the result would have been the same. That is mixing up doing justice with seeing that justice is done (per Lord Widgery C. J. at P. 1375)."In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference it natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied Justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.25. Every wrong action of a Municipal Committee need not necessarily lead to the inference of incompetence on the part of the Committee or amount to an abuse of the powers of the Committee. That is a matter to be decided by the State Government on the facts of each case. A Committee may admit that what it has done is wrong and yet may plead that its action does not reveal incompetence or an abuse of its powers. It may plead an honest error judgment; it may plead some misapprehension about the state of facts or state of the law; it may plead that in any event the drastic action contemplated by Sec. 238 (1) is not called for. Therefore, merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed. In fact in the present case one of the complaints of the appellant is that relevant facts were not considered by the Lt. Governor. Neither the impugned order nor the note of Shri Shaiza shows that in regard to the first allegation two vital circumstances were considered: (a) The contractor had agreed to pay interest at the rate of 9% on the mobilisation advance; (b) the contractor had agreed to offer bank guarantee to cover the mobilisation advance as well as the interest. It was argued that had these facts been brought to the notice of the Lt. Governor he might not have made the impugned order. If notice had been given to the Committee, the Committee would have certainly brought these facts to the notice of the Lt. Governor.26. In the light of the discussion we have no option but to hold that the order dated February 27, 1980, of the Lt. Governor superseding the New Delhi Municipal Committee is vitiated by the failure to observe the principle Audi Alteram Partem. The question is what relief should be given to the appellant? The term of the Committee is due to expire on October 3, 1980 which means that just a few days more are left for the term to run out. If now the order is quashed and the Committee is directed to be reinstated with liberty to the Lt. Governor to proceed according to law - this should be our order ordinarily -, it may lead to confusion and even chaos in the affairs of the Municipality. Shri Sorabji, learned counsel for the appellant, had relieved us of our anxiety by stating "In view of the fact that the term expires on October 3, 1980, and as the appellant is anxious to have the stigma cast on him by the notification removed, the appellant does not press either for reinstatement in office or for striking down the notification so long as there is a just determination of the invalidity of the notification". We have held that the notification is vitiated by the failure to observe the Principles of natural justice and we let the matter rest there.

1[ds]It is not always a necessary inference that if opportunity is expressly provided in one provision and not so provided in another, opportunity is to be considered as excluded from that other provision. It may be a weighty consideration to be taken into account but the weightier consideration is whether the administrative action entails civilis difficult to visualise the sudden and calamitous situations gloomily foreboded by the learned Attorney General where there would not be enough breathing time to observe natural justice, at least in a rudimentary way. A Municipal Committee under the Punjab Municipal Act is a public body consisting of both officials and non-officials and one cannot imagine anything momentous being done in a matter of minutes and seconds. And, natural justice may always be tailored to the situation. Minimal natural justice, the barest notice and the littlest opportunity, in the shortest time, may serve. The authority acting under Sec. 238 (1) is the master of its own procedure. There need be no oral hearing. It is not necessary to put every detail of the case to the Committee : broad grounds sufficient to indicate the substance of the allegations may be given. We do not think that even minimal natural justice is excluded when alleged grave situations arise under Sec. 238. If indeed such grave situations arise, the public interest can be sufficiently protected by appropriate prohibitory and mandatory action under the other relevant provisions of the statute in Sections 232 to 235 of the Act. We guard ourselves against being understood as laying down any proposition of universal application. other statutes providing for speedy action to meet emergent situations may well be construed as excluding the principle audi alteram partem.Thus on a consideration of the entire material placed before us we do not have any doubt that the New Delhi Municipal Committee was never put on notice of any action proposed to be taken under Sec. 238 of the Punjab Municipal Act and no opportunity was given to the Municipal Committee to explain any fact or circumstance on the basis (of which) that action was proposed. If there was any correspondence between the New Delhi Municipal Committee and any other authority about the subject matter or any of the allegations, if information was given and gathered it was for entirely different purposes. In our view, the requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. We do not suggest that the opportunity need be a double opportunity that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met.We disagree with the finding of the High Court that the Committee had the opportunity to meet the allegations contained in the order ofon the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non-observance of natural justice but because Courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however slightly, and penalties arerequirement that justice should be seen to be done may be regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice or as itself forming one of those rules. Both explanations of the significance of the maxim are found in Lord Widgery C. J.s judgement in R.v. Home Secretary, Ex. P. Hosenball, (1977) 1 WLR 766,772, where after saying that "the principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done" he went on to describe the maxim as "one of the rules generally accepted in the bundle of the rules making up naturalis the recognition of the importance of the requirement that justice is seen to be done that justifies the giving of a remedy to a litigant even when it may be claimed that a decision alleged to be vitiated by a breach of natural justice would still have been reached had a fair hearing been given by an impartial tribunal. The maxim is applicable precisely when the Court is concerned not with a case of actual injustice but with the appearance of injustice, or possibleour view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference it natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied Justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.25. Every wrong action of a Municipal Committee need not necessarily lead to the inference of incompetence on the part of the Committee or amount to an abuse of the powers of the Committee. That is a matter to be decided by the State Government on the facts of each case. A Committee may admit that what it has done is wrong and yet may plead that its action does not reveal incompetence or an abuse of its powers. It may plead an honest error judgment; it may plead some misapprehension about the state of facts or state of the law; it may plead that in any event the drastic action contemplated by Sec. 238 (1) is not called for. Therefore, merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed. In fact in the present case one of the complaints of the appellant is that relevant facts were not considered by the Lt. Governor. Neither the impugned order nor the note of Shri Shaiza shows that in regard to the first allegation two vital circumstances were considered: (a) The contractor had agreed to pay interest at the rate of 9% on the mobilisation advance; (b) the contractor had agreed to offer bank guarantee to cover the mobilisation advance as well as the interest. It was argued that had these facts been brought to the notice of the Lt. Governor he might not have made the impugned order. If notice had been given to the Committee, the Committee would have certainly brought these facts to the notice of the Lt. Governor.26. In the light of the discussion we have no option but to hold that the order dated February 27, 1980, of the Lt. Governor superseding the New Delhi Municipal Committee is vitiated by the failure to observe the principle Audi Alteramhave held that the notification is vitiated by the failure to observe the Principles of natural justice and we let the matter rest there.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: on to describe the maxim as "one of the rules generally accepted in the bundle of the rules making up natural justice."It is the recognition of the importance of the requirement that justice is seen to be done that justifies the giving of a remedy to a litigant even when it may be claimed that a decision alleged to be vitiated by a breach of natural justice would still have been reached had a fair hearing been given by an impartial tribunal. The maxim is applicable precisely when the Court is concerned not with a case of actual injustice but with the appearance of injustice, or possible injustice. In Altco Ltd. v. Sutherland, (1971) 2 Lloyds Rep 515 Donaldson J. said that the court, in deciding whether to interfere where an arbitrator had not given a party a full hearing was not concerned with whether a further hearing would produce a different or the same result, It was important that the parties should not only be given justice, but, as reasonable men, know that they had had justice or "to use the time hallowed phrase" that justice should not only be done but be seen to be done. In R. v. Thames Magistrates Court, ex. p. Polemis, (1974) 1 WLR 1371, the applicant obtained an order of certiorari to quash his conviction by a stipendiary magistrate on the ground that he had not had sufficient time to prepare his defence. The Divisional Court rejected the argument that, in its discretion, it ought to refuse relief because the applicant had no defence to the charge.It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question here, it seems to me that it is no answer to the applicant to say: Well, even if the case had been properly conducted, the result would have been the same. That is mixing up doing justice with seeing that justice is done (per Lord Widgery C. J. at P. 1375)."In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference it natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied Justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.25. Every wrong action of a Municipal Committee need not necessarily lead to the inference of incompetence on the part of the Committee or amount to an abuse of the powers of the Committee. That is a matter to be decided by the State Government on the facts of each case. A Committee may admit that what it has done is wrong and yet may plead that its action does not reveal incompetence or an abuse of its powers. It may plead an honest error judgment; it may plead some misapprehension about the state of facts or state of the law; it may plead that in any event the drastic action contemplated by Sec. 238 (1) is not called for. Therefore, merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed. In fact in the present case one of the complaints of the appellant is that relevant facts were not considered by the Lt. Governor. Neither the impugned order nor the note of Shri Shaiza shows that in regard to the first allegation two vital circumstances were considered: (a) The contractor had agreed to pay interest at the rate of 9% on the mobilisation advance; (b) the contractor had agreed to offer bank guarantee to cover the mobilisation advance as well as the interest. It was argued that had these facts been brought to the notice of the Lt. Governor he might not have made the impugned order. If notice had been given to the Committee, the Committee would have certainly brought these facts to the notice of the Lt. Governor.26. In the light of the discussion we have no option but to hold that the order dated February 27, 1980, of the Lt. Governor superseding the New Delhi Municipal Committee is vitiated by the failure to observe the principle Audi Alteram Partem. The question is what relief should be given to the appellant? The term of the Committee is due to expire on October 3, 1980 which means that just a few days more are left for the term to run out. If now the order is quashed and the Committee is directed to be reinstated with liberty to the Lt. Governor to proceed according to law - this should be our order ordinarily -, it may lead to confusion and even chaos in the affairs of the Municipality. Shri Sorabji, learned counsel for the appellant, had relieved us of our anxiety by stating "In view of the fact that the term expires on October 3, 1980, and as the appellant is anxious to have the stigma cast on him by the notification removed, the appellant does not press either for reinstatement in office or for striking down the notification so long as there is a just determination of the invalidity of the notification". We have held that the notification is vitiated by the failure to observe the Principles of natural justice and we let the matter rest there. ### Response: 1

M/S UNICORN INDUSTRIES Vs. UNION OF INDIA

Private Limited v. Union of India, 1986 SCC Supp. 557, has followed the decision of Modi Rubber Limited (supra). The decision in Modi Rubber Limited (supra) squarely covers the issue and is rendered by a Co-ordinate Bench. 39. Rule 8 of Central Excise Rules, 1944, authorises the Central Government to grant an exemption to any excisable goods from the whole or any part of duty leviable on such goods. Rule 8 is extracted hereunder: 8. Power to authorise an exemption from duty in special cases.—(1) The Central Government may from time to time, by notification in the official Gazette, exempt (subject to such conditions as may be specified in the notification) any excisable goods from the whole or any part of duty leviable on such goods. (2) The Central Board of Excise and Customs may by special order in each case exempt from the payment of duty, under circumstances of an exceptional nature, any excisable goods. The word duty is defined under Rule 2(v) to mean the duty as levied under the Act. 40. Notification dated 9.9.2003 issued in the present case makes it clear that exemption was granted under Section 5A of the Act of 1944, concerning additional duties under the Act of 1957 and additional duties of excise under the Act of 1978. It was questioned on the ground that it provided for limited exemption only under the Acts referred to therein. There is no reference to the Finance Act, 2001 by which NCCD was imposed, and the Finance Acts of 2004 and 2007 were not in vogue. The notification was questioned on the ground that it should have included other duties also. The notification could not have contemplated the inclusion of education cess and secondary and higher education cess imposed by the Finance Acts of 2004 and 2007 in the nature of the duty of excise. The duty on NCCD, education cess and secondary and higher education cess are in the nature of additional excise duty and it would not mean that exemption notification dated 9.9.2003 covers them particularly when there is no reference to the notification issued under the Finance Act, 2001. There was no question of granting exemption related to cess was not in vogue at the relevant time imposed later on vide Section 91 of the Act of 2004 and Section 126 of the Act of 2007. The provisions of Act of 1944 and the Rules made thereunder shall be applicable to refund, and the exemption is only a reference to the source of power to exempt the NCCD, education cess, secondary and higher education cess. A notification has to be issued for providing exemption under the said source of power. In the absence of a notification containing an exemption to such additional duties in the nature of education cess and secondary and higher education cess, they cannot be said to have been exempted. The High Court was right in relying upon the decision of three-Judge Bench of this Court in Modi Rubber Limited (supra), which has been followed by another three-Judge Bench of this Court in Rita Textiles Private Limited (supra). 41. The Circular of 2004 issued based on the interpretation of the provisions made by one of the Customs Officers, is of no avail as such Circular has no force of law and cannot be said to be binding on the Court. Similarly, the Circular issued by Central Board of Excise and Customs in 2011, is of no avail as it relates to service tax and has no force of law and cannot be said to be binding concerning the interpretation of the provisions by the courts. The reason employed in SRD Nutrients Private Limited (supra) that there was nil excise duty, as such, additional duty cannot be charged, is also equally unacceptable as additional duty can always be determined and merely exemption granted in respect of a particular excise duty, cannot come in the way of determination of yet another duty based thereupon. The proposition urged that simply because one kind of duty is exempted, other kinds of duties automatically fall, cannot be accepted as there is no difficulty in making the computation of additional duties, which are payable under NCCD, education cess, secondary and higher education cess. Moreover, statutory notification must cover specifically the duty exempted. When a particular kind of duty is exempted, other types of duty or cess imposed by different legislation for a different purpose cannot be said to have been exempted. 42. The decision of larger bench is binding on the smaller bench has been held by this Court in several decisions such as Mahanagar Railway Vendors Union v. Union of India & Ors. (1994) Suppl. 1 SCC 609, State of Maharashtra & Ors. v. Mana Adim Jamat Mandal, AIR 2006 SC 3446 and State of Uttar Pradesh & Ors. v. Ajay Kumar Sharma & Ors. (2016) 15 SCC 289 . The decision rendered in ignorance of a binding precedent and/or ignorance of a provision has been held to be per incuriam in Subhash Chandra & Ors. v. Delhi Subordinate Services Selection Board & Ors. (2009) 15 SCC 458 , Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCC 129 , and Central Board of Dawoodi Bohra Community & Ors. v. State of Maharashtra & Ors. (2005) 2 SCC 673 . It was held that a smaller bench could not disagree with the view taken by a larger bench. 43. Thus, it is clear that before the Division Bench deciding SRD Nutrients Private Limited and Bajaj Auto Limited (supra), the previous binding decisions of three-Judge Bench in Modi Rubber (supra) and Rita Textiles Private Limited (supra) were not placed for consideration. Thus, the decisions in SRD Nutrients Private Limited and Bajaj Auto Limited (supra) are clearly per incuriam. The decisions in Modi Rubber (supra) and Rita Textiles Private Limited (supra) are binding on us being of Co- ordinate Bench, and we respectfully follow them. We did not find any ground to take a different view.

0[ds]15. It is not disputed that the Government of India took a policy decision, Ministry of Industry, Department of Industrial Policy and Promotion vide Office Memorandum dated 24.12.1997, concerning new industrial policy and concessions in the North-Eastern region. The decision was taken for converting the Growth Centres and IIDCs into total tax-free zones for the next ten years. All industrial activities in these zones would be free from income tax and excise duty for ten years from the commencement of production24. It is not in dispute that when initial exemption notification was issued in 1997 for the North-Eastern States, which was later on applied to the State of Sikkim on 9.9.2003. The benefits from payment of excise duty and additional excise duty were confined to the basic excise duty payable under the Acts of 1944, 1957 and 1978. There was no reference made to NCCD imposed under the Finance Act, 2001. Apart from that, when the notification came to be issued, the education cess and secondary and higher education cess, which came to be imposed by Finance Acts of 2004 and 2007, were not in vogue40. Notification dated 9.9.2003 issued in the present case makes it clear that exemption was granted under Section 5A of the Act of 1944, concerning additional duties under the Act of 1957 and additional duties of excise under the Act of 1978. It was questioned on the ground that it provided for limited exemption only under the Acts referred to therein. There is no reference to the Finance Act, 2001 by which NCCD was imposed, and the Finance Acts of 2004 and 2007 were not in vogue. The notification was questioned on the ground that it should have included other duties also. The notification could not have contemplated the inclusion of education cess and secondary and higher education cess imposed by the Finance Acts of 2004 and 2007 in the nature of the duty of excise. The duty on NCCD, education cess and secondary and higher education cess are in the nature of additional excise duty and it would not mean that exemption notification dated 9.9.2003 covers them particularly when there is no reference to the notification issued under the Finance Act, 2001. There was no question of granting exemption related to cess was not in vogue at the relevant time imposed later on vide Section 91 of the Act of 2004 and Section 126 of the Act of 2007. The provisions of Act of 1944 and the Rules made thereunder shall be applicable to refund, and the exemption is only a reference to the source of power to exempt the NCCD, education cess, secondary and higher education cess. A notification has to be issued for providing exemption under the said source of power. In the absence of a notification containing an exemption to such additional duties in the nature of education cess and secondary and higher education cess, they cannot be said to have been exempted. The High Court was right in relying upon the decision of three-Judge Bench of this Court in Modi Rubber Limited (supra), which has been followed by another three-Judge Bench of this Court in Rita Textiles Private Limited (supra)41. The Circular of 2004 issued based on the interpretation of the provisions made by one of the Customs Officers, is of no avail as such Circular has no force of law and cannot be said to be binding on the Court. Similarly, the Circular issued by Central Board of Excise and Customs in 2011, is of no avail as it relates to service tax and has no force of law and cannot be said to be binding concerning the interpretation of the provisions by the courts. The reason employed in SRD Nutrients Private Limited (supra) that there was nil excise duty, as such, additional duty cannot be charged, is also equally unacceptable as additional duty can always be determined and merely exemption granted in respect of a particular excise duty, cannot come in the way of determination of yet another duty based thereupon. The proposition urged that simply because one kind of duty is exempted, other kinds of duties automatically fall, cannot be accepted as there is no difficulty in making the computation of additional duties, which are payable under NCCD, education cess, secondary and higher education cess. Moreover, statutory notification must cover specifically the duty exempted. When a particular kind of duty is exempted, other types of duty or cess imposed by different legislation for a different purpose cannot be said to have been exempted42. The decision of larger bench is binding on the smaller bench has been held by this Court in several decisions such as Mahanagar Railway Vendors Union v. Union of India & Ors. (1994) Suppl. 1 SCC 609, State of Maharashtra & Ors. v. Mana Adim Jamat Mandal, AIR 2006 SC 3446 and State of Uttar Pradesh & Ors. v. Ajay Kumar Sharma & Ors. (2016) 15 SCC 289 . The decision rendered in ignorance of a binding precedent and/or ignorance of a provision has been held to be per incuriam in Subhash Chandra & Ors. v. Delhi Subordinate Services Selection Board & Ors. (2009) 15 SCC 458 , Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCC 129 , and Central Board of Dawoodi Bohra Community & Ors. v. State of Maharashtra & Ors. (2005) 2 SCC 673 . It was held that a smaller bench could not disagree with the view taken by a larger bench43. Thus, it is clear that before the Division Bench deciding SRD Nutrients Private Limited and Bajaj Auto Limited (supra), the previous binding decisions of three-Judge Bench in Modi Rubber (supra) and Rita Textiles Private Limited (supra) were not placed for consideration. Thus, the decisions in SRD Nutrients Private Limited and Bajaj Auto Limited (supra) are clearly per incuriam. The decisions in Modi Rubber (supra) and Rita Textiles Private Limited (supra) are binding on us being of Co- ordinate Bench, and we respectfully follow them. We did not find any ground to take a different view32. The provisions of Section 32 are pari materia to the abovementioned provisions of the Finance Act(s) in question. The special duty under Section 32 of Finance Act, 1979 imposed was in addition to any duties of excise chargeable on such goods under the provisions of the Central Excises Act and the Rules made thereunder, with respect to refunds and exemptions from duties, shall, as far as may be, apply to the levy and collection of special duties of excise leviable under the provisions of Section 32 of the Finance Act, 1979.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: Private Limited v. Union of India, 1986 SCC Supp. 557, has followed the decision of Modi Rubber Limited (supra). The decision in Modi Rubber Limited (supra) squarely covers the issue and is rendered by a Co-ordinate Bench. 39. Rule 8 of Central Excise Rules, 1944, authorises the Central Government to grant an exemption to any excisable goods from the whole or any part of duty leviable on such goods. Rule 8 is extracted hereunder: 8. Power to authorise an exemption from duty in special cases.—(1) The Central Government may from time to time, by notification in the official Gazette, exempt (subject to such conditions as may be specified in the notification) any excisable goods from the whole or any part of duty leviable on such goods. (2) The Central Board of Excise and Customs may by special order in each case exempt from the payment of duty, under circumstances of an exceptional nature, any excisable goods. The word duty is defined under Rule 2(v) to mean the duty as levied under the Act. 40. Notification dated 9.9.2003 issued in the present case makes it clear that exemption was granted under Section 5A of the Act of 1944, concerning additional duties under the Act of 1957 and additional duties of excise under the Act of 1978. It was questioned on the ground that it provided for limited exemption only under the Acts referred to therein. There is no reference to the Finance Act, 2001 by which NCCD was imposed, and the Finance Acts of 2004 and 2007 were not in vogue. The notification was questioned on the ground that it should have included other duties also. The notification could not have contemplated the inclusion of education cess and secondary and higher education cess imposed by the Finance Acts of 2004 and 2007 in the nature of the duty of excise. The duty on NCCD, education cess and secondary and higher education cess are in the nature of additional excise duty and it would not mean that exemption notification dated 9.9.2003 covers them particularly when there is no reference to the notification issued under the Finance Act, 2001. There was no question of granting exemption related to cess was not in vogue at the relevant time imposed later on vide Section 91 of the Act of 2004 and Section 126 of the Act of 2007. The provisions of Act of 1944 and the Rules made thereunder shall be applicable to refund, and the exemption is only a reference to the source of power to exempt the NCCD, education cess, secondary and higher education cess. A notification has to be issued for providing exemption under the said source of power. In the absence of a notification containing an exemption to such additional duties in the nature of education cess and secondary and higher education cess, they cannot be said to have been exempted. The High Court was right in relying upon the decision of three-Judge Bench of this Court in Modi Rubber Limited (supra), which has been followed by another three-Judge Bench of this Court in Rita Textiles Private Limited (supra). 41. The Circular of 2004 issued based on the interpretation of the provisions made by one of the Customs Officers, is of no avail as such Circular has no force of law and cannot be said to be binding on the Court. Similarly, the Circular issued by Central Board of Excise and Customs in 2011, is of no avail as it relates to service tax and has no force of law and cannot be said to be binding concerning the interpretation of the provisions by the courts. The reason employed in SRD Nutrients Private Limited (supra) that there was nil excise duty, as such, additional duty cannot be charged, is also equally unacceptable as additional duty can always be determined and merely exemption granted in respect of a particular excise duty, cannot come in the way of determination of yet another duty based thereupon. The proposition urged that simply because one kind of duty is exempted, other kinds of duties automatically fall, cannot be accepted as there is no difficulty in making the computation of additional duties, which are payable under NCCD, education cess, secondary and higher education cess. Moreover, statutory notification must cover specifically the duty exempted. When a particular kind of duty is exempted, other types of duty or cess imposed by different legislation for a different purpose cannot be said to have been exempted. 42. The decision of larger bench is binding on the smaller bench has been held by this Court in several decisions such as Mahanagar Railway Vendors Union v. Union of India & Ors. (1994) Suppl. 1 SCC 609, State of Maharashtra & Ors. v. Mana Adim Jamat Mandal, AIR 2006 SC 3446 and State of Uttar Pradesh & Ors. v. Ajay Kumar Sharma & Ors. (2016) 15 SCC 289 . The decision rendered in ignorance of a binding precedent and/or ignorance of a provision has been held to be per incuriam in Subhash Chandra & Ors. v. Delhi Subordinate Services Selection Board & Ors. (2009) 15 SCC 458 , Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCC 129 , and Central Board of Dawoodi Bohra Community & Ors. v. State of Maharashtra & Ors. (2005) 2 SCC 673 . It was held that a smaller bench could not disagree with the view taken by a larger bench. 43. Thus, it is clear that before the Division Bench deciding SRD Nutrients Private Limited and Bajaj Auto Limited (supra), the previous binding decisions of three-Judge Bench in Modi Rubber (supra) and Rita Textiles Private Limited (supra) were not placed for consideration. Thus, the decisions in SRD Nutrients Private Limited and Bajaj Auto Limited (supra) are clearly per incuriam. The decisions in Modi Rubber (supra) and Rita Textiles Private Limited (supra) are binding on us being of Co- ordinate Bench, and we respectfully follow them. We did not find any ground to take a different view. ### Response: 0

SHIV DEVELOPERS THROUGH ITS PARTNER SUNILBHAI SOMABHAI AJMERI Vs. AKSHARAY DEVELOPERS & ORS

apply to a suit for enforcement of right arising from a contract entered into by the unregistered firm with a third party in the course of business dealings with such third party. If the right sought to be enforced does not arise from a contract to which the unregistered firm is a party, or is not entered into in connection with the business of the unregistered firm with a third party, the bar of Section 69(2) will not apply. 18. Nothing contrary to the foregoing discussion is to be found in the decisions cited on behalf of the contesting respondents. The case of Umesh Goel (supra) essentially related to the operation of the provision contained in Section 69(3) of the Act of 1932 and interpretation of the expression other proceedings in the wake of the question as to whether arbitral proceedings and the award passed therein could be read into the expression other proceedings. The said decision has no relevance to the questions at hand. In the case of Farooq (supra), this Court found, after a wholesome reading of the plaint, that the suit was based on clause 25(d) of the partnership deed which specifically stated that no partners of the firm shall without the consent in writing of the other partners being entitled to transfer immovable property belonging to the firm. In that case, two partners of an unregistered firm had sued for cancellation of a sale made by the defendant partner without the consent of all the partners. This Court found that the suit was only to enforce a right arising from the terms of said partnership deed and hence, it attracted the bar of Section 69(2) of the Act of 1932. The said decision, for an entirely different fact situation and different claim, has no application to the facts of the present case. Application of the relevant principles to the subject suit 19. Taking up the facts of the present case, one of the significant features herein is that the transaction in question, i.e., sale of its share by the plaintiff firm to the contesting defendants has not been the one arising out of the business of the plaintiff firm. This factual aspect is apparent from the basic plaint averments and is fortified by the concurrent findings of the Trial Court as also of the High Court. Though the High Court endorsed the finding that the transaction in question was not arising out of the business of the plaintiff firm but, it appears that the implication of this crucial finding has not acquired the requisite attention of the High Court. The decision of this Court in the case of Purushottam (supra) was cited before the High Court but, while referring to the same in paragraph 33 of the impugned judgment, the High Court probably looked only at the editors headnote and in any case, missed out the ratio and principles therein, as reiterated with reference to the previous decisions. The decision in Haldiram Bhujiawala (supra) seems to have not gone into consideration of the High Court although this decision formed the sheet anchor of the order of the Trial Court. 19.1. As noticed, the crucial and key factor in the present case remains that the sale transaction in question is not arising out of the business of the appellant firm. Equally significant fact is that the subject suit is for enforcing a right of avoidance of a document on the ground of fraud and misrepresentation as also the statutory rights of seeking declaration and injunction. Significantly, the composition of defendant firm Aksharay Developers (defendant No. 1) has itself been questioned by the plaintiff- appellant while alleging that on 22.04.2014, this firm was constituted with four partners but later on, the defendant Nos. 2 and 3 (respondent Nos. 2 and 3 herein), constituted another firm in the same name with themselves as partners while leaving aside the other two. 19.2. We are not commenting on the merits of the case of either of the parties but this much is apparent from a look at the frame and contents of the plaint as also the prayers therein that the present one cannot be said to be such a suit by the unregistered firm which would attract the bar of Section 69(2) of the Act of 1932. 20. To put it differently, the relevant principles, when applied to the facts of the present case, leave nothing to doubt that the transaction in question was not the one entered into by the plaintiff firm during the course of its business (i.e., of building construction); and it had been an independent transaction of sale, of the firms share in the suit property, to the contesting defendants. The bar of Section 69(2) is not attracted in relation to the said sale transaction. Moreover, the subject suit cannot be said to be the one for enforcement of right arising from a contract; rather the subject suit is clearly the one where the plaintiff seeks common law remedies with the allegations of fraud and misrepresentation as also of the statutory rights of injunction and declaration in terms of the provisions of the Specific Relief Act, 1963 as also the Transfer of Property Act, 1882 (while alleging want of the sale consideration). Therefore, the bar of Section 69(2) of the Act of 1932 does not apply to the present case. Conclusion 21. The upshot of the foregoing discussion is that, for the purpose of Section 69 of the Act of 1932, the present case is governed by the principles laid down in Raptakos Brett & Co. Ltd. (supra), as further exposited in Haldiram Bhujiawala (supra). Hence, the bar of Section 69(2) is not attracted to the suit filed by the appellant. The Trial Court had rightly appreciated the facts of the case and had rightly rejected the baseless application moved by the contesting respondents. The impugned order of the High Court, being not in conformity with the applicable legal principles, is required to be set aside.

1[ds]13. Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of the view that the impugned judgment and order dated 15.02.2018, as passed by the High Court, cannot be sustained and the bar of Section 69(2) of the Act of 1932 is not attracted to the suit filed by the appellant.15. In our view, the questions arising in this matter could be directly answered with reference to the principles enunciated by this Court in the case of Raptakos Brett & Co. Ltd. v. Ganesh Property: (1998) 7 SCC 184, which have further been explained and applied by this Court in the cases of Haldiram Bhujiawala and Purushottam (supra). We may take note of the principles vividly exposited in the case of Haldiram Bhujiawala (supra) that to attract the bar of Section 69(2) of the Act of 1932, the contract in question must be the one entered into by firm with the third-party defendant and must also be the one entered into by the plaintiff firm in the course of its business dealings; and that Section 69(2) of the Act of 1932 is not a bar to a suit filed by an unregistered firm, if the same is for enforcement of a statutory right or a common law right.16. Briefly put, the relevant factual aspects in the case of Haldiram Bhujiawala (supra) had been as follows: The suit in that case was filed by the plaintiffs seeking perpetual injunction to restrain the defendants from infringing the trademark and from using the trademark/name Haldiram Bhujiawala. There were two plaintiffs, the first being a partnership firm comprising of three sons of Moolchand whereas the second plaintiff was his fourth son. The historical facts were that the business in the name of Haldiram Bhujiawala was being carried on by one Ganga Bishan alias Haldiram since the year 1941. In the year 1965, he constituted a partnership with his two sons Moolchand, Shiv Kishan and his daughter-in-law Kamla Devi (wife of another son R.L. Aggarwal) to carry on business under the same name. The said firm was granted registration of the said trade name. However, on 16.11.1974, the said partnership was dissolved and in terms of the dissolution deed, the above trademark fell exclusively to the share of Moolchand for whole of the country except the State of West Bengal whereas the said Smt. Kamla Devi was given ownership of the trademark rights for the State of West Bengal. The four sons of Moolchand got their names recorded as subsequent joint proprietors of the trademark. Three of them formed a partnership (the plaintiff No. 1 in the subject suit) in the year 1983 and were running a shop at Chandni Chowk, Delhi. In the meantime, on 10.10.1977, the said R.L. Aggarwal and his son applied in Calcutta for registration of the same trademark while claiming themselves to be the full owners thereof without disclosing the dissolution deed dated 16.11.1974. One Ashok Kumar, son of Smt. Kamla Devi, constituted a new firm and opened a shop at Arya Samaj Road, Karol Bagh, New Delhi. In the given circumstances, the plaintiffs of the subject suit claimed the reliefs of injunction, damages, and for destruction of material etc., while claiming their rights of using the said trademark. The defendants sought rejection of the plaint for the reason that the plaintiff No. 1 was not a registered partnership firm on the date of filing of the suit. The application was dismissed by the Trial Court as also by the High Court. Hence, the matter was in appeal before this Court. The points arising for determination in the said matter were formulated by this Court in the following terms: -8. The points that arise for consideration are:(i) Whether Section 69(2) bars a suit by a firm not registered on the date of suit where permanent injunction and damages are claimed in respect of a trademark as a statutory right or by invoking common law principles applicable to a passing-off action?(ii) Whether the words arising from a contract in Section 69(2) refer only to a situation where an unregistered firm is enforcing a right arising from a contract entered into by the firm with the defendant during the course of its business or whether the bar under Section 69(2) can be extended to any contract referred to in the plaint unconnected with the defendant, as the source of title to the suit property?16.1. Answering the first question in the negative, this Court referred to the previous decision in Raptakos Brett & Co. Ltd. (supra) and held as follows: -9. The question whether Section 69(2) is a bar to a suit filed by an unregistered firm even if a statutory right is being enforced or even if only a common law right is being enforced came up directly for consideration in this Court in Raptakas Brett Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] . In that case, Majmudar, J. speaking for the Bench clearly expressed the view that Section 69(2) cannot bar the enforcement by way of a suit by an unregistered firm in respect of a statutory right or a common law right. On the facts of that case, it was held that the right to evict a tenant upon expiry of the lease was not a right arising from a contract but was a common law right or a statutory right under the Transfer of Property Act. The fact that the plaint in that case referred to a lease and to its expiry, made no difference. Hence, the said suit was held not barred. It appears to us that in that case the reference to the lease in the plaint was obviously treated as a historical fact. That case is therefore directly in point. Following the said judgment, it must be held in the present case too that a suit is not barred by Section 69(2) if a statutory right or a common law right is being enforced.xxxx xxxx xxxx11. Likewise, if the reliefs of permanent injunction or damages are being claimed on the basis of a registered trademark and its infringement, the suit is to be treated as one based on a statutory right under the Trade Marks Act and is, in our view, not barred by Section 69(2).12. For the aforesaid reasons, in both these situations, the unregistered partnership in the case before us cannot be said to be enforcing any right arising from a contract. Point 1 is therefore decided in favour of the respondent-plaintiffs.16.2. This Court further exposited on the scope of the words enforcing a right arising under the contract, as used in Section 69(2) of the Act of 1932; and after a detailed survey of the reports and precedents which led to the frame of the said provision as also after reference to various authorities on the point, this Court explained the rationale and object of the provision that the same was intended to protect those in commerce who deal with a partnership firm in business, inasmuch as they ought to be enabled to know the names of the partners of the firm before they deal with them in business; and the bar of Section 69(2) is not attracted to any and every contract referred to in the plaint as a source of title to an asset owned by the firm. This Court held and explained as under: -23 The further and additional but equally important aspect which has to be made clear is that the contract by the unregistered firm referred to in Section 69(2) must not only be one entered into by the firm with the third-party defendant but must also be one entered into by the plaintiff firm in the course of the business dealings of the plaintiff firm with such third-party defendant.24... The real crux of the question is that the legislature, when it used the words arising out of a contract in Section 69(2), it is referring to a contract entered into in course of business transactions by the unregistered plaintiff firm with its defendant customers and the idea is to protect those in commerce who deal with such a partnership firm in business. Such third parties who deal with the partners ought to be enabled to know what the names of the partners of the firm are before they deal with them in business.25 Further, Section 69(2) is not attracted to any and every contract referred to in the plaint as the source of title to an asset owned by the firm. If the plaint referred to such a contract it could only be as a historical fact. For example, if the plaint filed by the unregistered firm refers to the source of the firms title to a motor car and states that the plaintiff has purchased and received a motor car from a foreign buyer under a contract and that the defendant has unauthorisedly removed it from the plaintiff firms possession, — it is clear that the relief for possession against the defendant in the suit does not arise from any contract which the defendant entered into in the course of the plaintiff firms business with the defendant but is based on the alleged unauthorised removal of the vehicle from the plaintiff firms custody by the defendant. In such a situation, the fact that the unregistered firm has purchased the vehicle from somebody else under a contract has absolutely no bearing on the right of the firm to sue the defendant for possession of the vehicle. Such a suit would be maintainable and Section 69(2) would not be a bar, even if the firm is unregistered on the date of suit. The position in the present case is not different.17. The aforesaid decision in Haldiram Bhujiawala (supra) was further considered and applied by this Court in the case of Purushottam (supra) while holding as under: -24. With respect, we find ourselves in complete agreement with the principles enunciated in Haldiram Bhujiawala. Having regard to the purpose Section 69(2) seeks to achieve and the interest sought to be protected, the bar must apply to a suit for enforcement of right arising from a contract entered into by the unregistered firm with a third party in the course of business dealings with such third party. If the right sought to be enforced does not arise from a contract to which the unregistered firm is a party, or is not entered into in connection with the business of the unregistered firm with a third party, the bar of Section 69(2) will not apply.18. Nothing contrary to the foregoing discussion is to be found in the decisions cited on behalf of the contesting respondents. The case of Umesh Goel (supra) essentially related to the operation of the provision contained in Section 69(3) of the Act of 1932 and interpretation of the expression other proceedings in the wake of the question as to whether arbitral proceedings and the award passed therein could be read into the expression other proceedings. The said decision has no relevance to the questions at hand. In the case of Farooq (supra), this Court found, after a wholesome reading of the plaint, that the suit was based on clause 25(d) of the partnership deed which specifically stated that no partners of the firm shall without the consent in writing of the other partners being entitled to transfer immovable property belonging to the firm. In that case, two partners of an unregistered firm had sued for cancellation of a sale made by the defendant partner without the consent of all the partners. This Court found that the suit was only to enforce a right arising from the terms of said partnership deed and hence, it attracted the bar of Section 69(2) of the Act of 1932. The said decision, for an entirely different fact situation and different claim, has no application to the facts of the present case.19. Taking up the facts of the present case, one of the significant features herein is that the transaction in question, i.e., sale of its share by the plaintiff firm to the contesting defendants has not been the one arising out of the business of the plaintiff firm. This factual aspect is apparent from the basic plaint averments and is fortified by the concurrent findings of the Trial Court as also of the High Court. Though the High Court endorsed the finding that the transaction in question was not arising out of the business of the plaintiff firm but, it appears that the implication of this crucial finding has not acquired the requisite attention of the High Court. The decision of this Court in the case of Purushottam (supra) was cited before the High Court but, while referring to the same in paragraph 33 of the impugned judgment, the High Court probably looked only at the editors headnote and in any case, missed out the ratio and principles therein, as reiterated with reference to the previous decisions. The decision in Haldiram Bhujiawala (supra) seems to have not gone into consideration of the High Court although this decision formed the sheet anchor of the order of the Trial Court.19.1. As noticed, the crucial and key factor in the present case remains that the sale transaction in question is not arising out of the business of the appellant firm. Equally significant fact is that the subject suit is for enforcing a right of avoidance of a document on the ground of fraud and misrepresentation as also the statutory rights of seeking declaration and injunction. Significantly, the composition of defendant firm Aksharay Developers (defendant No. 1) has itself been questioned by the plaintiff- appellant while alleging that on 22.04.2014, this firm was constituted with four partners but later on, the defendant Nos. 2 and 3 (respondent Nos. 2 and 3 herein), constituted another firm in the same name with themselves as partners while leaving aside the other two.19.2. We are not commenting on the merits of the case of either of the parties but this much is apparent from a look at the frame and contents of the plaint as also the prayers therein that the present one cannot be said to be such a suit by the unregistered firm which would attract the bar of Section 69(2) of the Act of 1932.20. To put it differently, the relevant principles, when applied to the facts of the present case, leave nothing to doubt that the transaction in question was not the one entered into by the plaintiff firm during the course of its business (i.e., of building construction); and it had been an independent transaction of sale, of the firms share in the suit property, to the contesting defendants. The bar of Section 69(2) is not attracted in relation to the said sale transaction. Moreover, the subject suit cannot be said to be the one for enforcement of right arising from a contract; rather the subject suit is clearly the one where the plaintiff seeks common law remedies with the allegations of fraud and misrepresentation as also of the statutory rights of injunction and declaration in terms of the provisions of the Specific Relief Act, 1963 as also the Transfer of Property Act, 1882 (while alleging want of the sale consideration). Therefore, the bar of Section 69(2) of the Act of 1932 does not apply to the present case.21. The upshot of the foregoing discussion is that, for the purpose of Section 69 of the Act of 1932, the present case is governed by the principles laid down in Raptakos Brett & Co. Ltd. (supra), as further exposited in Haldiram Bhujiawala (supra). Hence, the bar of Section 69(2) is not attracted to the suit filed by the appellant. The Trial Court had rightly appreciated the facts of the case and had rightly rejected the baseless application moved by the contesting respondents. The impugned order of the High Court, being not in conformity with the applicable legal principles, is required to be set aside.

### 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: apply to a suit for enforcement of right arising from a contract entered into by the unregistered firm with a third party in the course of business dealings with such third party. If the right sought to be enforced does not arise from a contract to which the unregistered firm is a party, or is not entered into in connection with the business of the unregistered firm with a third party, the bar of Section 69(2) will not apply. 18. Nothing contrary to the foregoing discussion is to be found in the decisions cited on behalf of the contesting respondents. The case of Umesh Goel (supra) essentially related to the operation of the provision contained in Section 69(3) of the Act of 1932 and interpretation of the expression other proceedings in the wake of the question as to whether arbitral proceedings and the award passed therein could be read into the expression other proceedings. The said decision has no relevance to the questions at hand. In the case of Farooq (supra), this Court found, after a wholesome reading of the plaint, that the suit was based on clause 25(d) of the partnership deed which specifically stated that no partners of the firm shall without the consent in writing of the other partners being entitled to transfer immovable property belonging to the firm. In that case, two partners of an unregistered firm had sued for cancellation of a sale made by the defendant partner without the consent of all the partners. This Court found that the suit was only to enforce a right arising from the terms of said partnership deed and hence, it attracted the bar of Section 69(2) of the Act of 1932. The said decision, for an entirely different fact situation and different claim, has no application to the facts of the present case. Application of the relevant principles to the subject suit 19. Taking up the facts of the present case, one of the significant features herein is that the transaction in question, i.e., sale of its share by the plaintiff firm to the contesting defendants has not been the one arising out of the business of the plaintiff firm. This factual aspect is apparent from the basic plaint averments and is fortified by the concurrent findings of the Trial Court as also of the High Court. Though the High Court endorsed the finding that the transaction in question was not arising out of the business of the plaintiff firm but, it appears that the implication of this crucial finding has not acquired the requisite attention of the High Court. The decision of this Court in the case of Purushottam (supra) was cited before the High Court but, while referring to the same in paragraph 33 of the impugned judgment, the High Court probably looked only at the editors headnote and in any case, missed out the ratio and principles therein, as reiterated with reference to the previous decisions. The decision in Haldiram Bhujiawala (supra) seems to have not gone into consideration of the High Court although this decision formed the sheet anchor of the order of the Trial Court. 19.1. As noticed, the crucial and key factor in the present case remains that the sale transaction in question is not arising out of the business of the appellant firm. Equally significant fact is that the subject suit is for enforcing a right of avoidance of a document on the ground of fraud and misrepresentation as also the statutory rights of seeking declaration and injunction. Significantly, the composition of defendant firm Aksharay Developers (defendant No. 1) has itself been questioned by the plaintiff- appellant while alleging that on 22.04.2014, this firm was constituted with four partners but later on, the defendant Nos. 2 and 3 (respondent Nos. 2 and 3 herein), constituted another firm in the same name with themselves as partners while leaving aside the other two. 19.2. We are not commenting on the merits of the case of either of the parties but this much is apparent from a look at the frame and contents of the plaint as also the prayers therein that the present one cannot be said to be such a suit by the unregistered firm which would attract the bar of Section 69(2) of the Act of 1932. 20. To put it differently, the relevant principles, when applied to the facts of the present case, leave nothing to doubt that the transaction in question was not the one entered into by the plaintiff firm during the course of its business (i.e., of building construction); and it had been an independent transaction of sale, of the firms share in the suit property, to the contesting defendants. The bar of Section 69(2) is not attracted in relation to the said sale transaction. Moreover, the subject suit cannot be said to be the one for enforcement of right arising from a contract; rather the subject suit is clearly the one where the plaintiff seeks common law remedies with the allegations of fraud and misrepresentation as also of the statutory rights of injunction and declaration in terms of the provisions of the Specific Relief Act, 1963 as also the Transfer of Property Act, 1882 (while alleging want of the sale consideration). Therefore, the bar of Section 69(2) of the Act of 1932 does not apply to the present case. Conclusion 21. The upshot of the foregoing discussion is that, for the purpose of Section 69 of the Act of 1932, the present case is governed by the principles laid down in Raptakos Brett & Co. Ltd. (supra), as further exposited in Haldiram Bhujiawala (supra). Hence, the bar of Section 69(2) is not attracted to the suit filed by the appellant. The Trial Court had rightly appreciated the facts of the case and had rightly rejected the baseless application moved by the contesting respondents. The impugned order of the High Court, being not in conformity with the applicable legal principles, is required to be set aside. ### Response: 1

G.M. Tanda Thermal Power Project Vs. Jai Prakash Srivastava

conducting pairvi on behalf of the project in the cases of land acquisition. The learned Labour Court, however, was of the opinion that as the salary of the first respondent was made available to the Land Acquisition Officer from the funds provided for by the appellant, a relationship of employer and employee came into being, holding: “From the documents available on record, it is very well proved that although the appointment of the applicant-workman Shri Jai Prakash was not made on the basis of any appointment letter issued independently by the Chief Project Manager of Tanda Thermal Power Project, but was made by the Special Land Acquisition Officer on daily wages on the basis of the approval given by the Chief Project Manager on the request/proposal made by the Special Land Acquisition Officer. The Management had also approved extension of the above appointment from time to time and also came to a decision for not continuing the services of the applicant-workman and the Chief Project Manager had duly informed the Special Land Acquisition Officer for discontinuing the services of the applicant-workman. Finally the services of the applicant-workman were terminated. It is also proved from the evidence that the applicant-workman was doing the work of pairvi in the cases relating to the Tanda Thermal Power Project and the payment of his salaries was also made from the funds made available by Management. In the circumstances, it is proved that the appointment of the applicant-workman was made on the basis of approval given by Management.” 6. Opining that the first respondent worked for more than 240 days during the aforementioned period and as no notice pay as also retrenchment compensation had been paid to the workman, he was directed to be reinstated with back wages. 7. The writ petition filed by the appellant there against before the Lucknow Bench of Allahabad High Court which was marked as Writ Petition No.222 of 1998, was dismissed on the premise that the disputed question of fact could not be determined by the High Court in exercise its jurisdiction under Article 226 of the Constitution of India. 8. The Division Bench of the High Court on an intra court appeal preferred by the appellant refused to interfere therewith stating that the Special Appeal was not maintainable. 9. Appellant is, thus, before us. 10. Mr. Ranjit Saxena, learned counsel appearing on behalf of the petitioner, would submit that the High Court committed an error in passing the impugned judgment insofar as it failed to take into consideration that there did not exist any relationship of employer and employee by and between the petitioner and the first respondent; appointment of the first respondent having been made by the Special Land Acquisition Officer. 11. Our attention has not been drawn to any statute or statutory rules in terms whereof such an appointment could be made by a revenue authority. It was, therefore, only an ad hoc employment. 12. Lands are acquired in terms of the provisions of the Land Acquisition Act. It is for the authorities concerned to conduct the cases relating to acquisition of land in the courts of law. Although the appellant was providing for the funds for meeting the expenditure in relation to payment of wages etc. to the first respondent herein, evidently, the relationship between an employer and employee did not come into being between the appellant and the first respondent. It did not require the services of the appellant. It did not require the services of the appellant. The Special Land Acquisition Officer did. The offer of appointment was issued by the Special Land Acquisition Officer. First respondent was working under his supervision and control. His services were being taken by the Special Land Acquisition Officer for a particular purpose, namely, looking after the land acquisition cases. When the purpose for which the first respondent was appointed ceased to exist, his services were terminated. If there did not exist any relationship of employer and employee, the question of the appellant’s fulfilling the obligations required in terms of the UP Industrial Disputes Act, namely, payment of retrenchment compensation or one month’s pay in lieu of notice did not and could not arise. If the first respondent was a workman working under the Special Land Acquisition Officer, the question of compliance of the said provisions by the said authority would also not arise. The High Court, therefore, in our opinion, committed a serious error in refusing to interfere in the matter. When existence of the relationship of employer and employee is disputed, the same was required to be determined in presence of all the parties who are interested in the subject matter of reference. The Special Land Acquisition Officer was not a party to the reference. The learned Presiding Officer, Labour Court, UP, Lucknow neither went into the question as regards the nature of duties required to be performed by the first respondent and also other relevant factors, namely, who had issued the offer of appointment; who used to supervise and control the work of the respondent; or who was the authority to grant leave and take disciplinary action etc. The said questions were relevant. {See Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of Tamil Nadu and Ors. [(2004) 3 SCC 514] . 13. The High Court, furthermore, committed a serious error insofar as it failed to take into consideration that a direction for reinstatement cannot be issued when there does not exist any post. Requirement of the Special Land Acquisition Officer to have the services of some employees was for a short period. No such post was created by the competent authority. The services of the first respondent were necessary for looking after the land acquisition cases of the petitioner. Even in a case where the workman is appointed on contractual basis, the industrial court would ordinarily not direct for reinstatement. Subject to statutory interdict, the agreement between the parties in this behalf must be given due weight.14. For the reasons aforementioned, the

1[ds]The High Court, furthermore, committed a serious error insofar as it failed to take into consideration that a direction for reinstatement cannot be issued when there does not exist any post. Requirement of the Special Land Acquisition Officer to have the services of some employees was for a short period. No such post was created by the competent authority. The services of the first respondent were necessary for looking after the land acquisition cases of the petitioner. Even in a case where the workman is appointed on contractual basis, the industrial court would ordinarily not direct for reinstatement. Subject to statutory interdict, the agreement between the parties in this behalf must be given due weight.

### 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: conducting pairvi on behalf of the project in the cases of land acquisition. The learned Labour Court, however, was of the opinion that as the salary of the first respondent was made available to the Land Acquisition Officer from the funds provided for by the appellant, a relationship of employer and employee came into being, holding: “From the documents available on record, it is very well proved that although the appointment of the applicant-workman Shri Jai Prakash was not made on the basis of any appointment letter issued independently by the Chief Project Manager of Tanda Thermal Power Project, but was made by the Special Land Acquisition Officer on daily wages on the basis of the approval given by the Chief Project Manager on the request/proposal made by the Special Land Acquisition Officer. The Management had also approved extension of the above appointment from time to time and also came to a decision for not continuing the services of the applicant-workman and the Chief Project Manager had duly informed the Special Land Acquisition Officer for discontinuing the services of the applicant-workman. Finally the services of the applicant-workman were terminated. It is also proved from the evidence that the applicant-workman was doing the work of pairvi in the cases relating to the Tanda Thermal Power Project and the payment of his salaries was also made from the funds made available by Management. In the circumstances, it is proved that the appointment of the applicant-workman was made on the basis of approval given by Management.” 6. Opining that the first respondent worked for more than 240 days during the aforementioned period and as no notice pay as also retrenchment compensation had been paid to the workman, he was directed to be reinstated with back wages. 7. The writ petition filed by the appellant there against before the Lucknow Bench of Allahabad High Court which was marked as Writ Petition No.222 of 1998, was dismissed on the premise that the disputed question of fact could not be determined by the High Court in exercise its jurisdiction under Article 226 of the Constitution of India. 8. The Division Bench of the High Court on an intra court appeal preferred by the appellant refused to interfere therewith stating that the Special Appeal was not maintainable. 9. Appellant is, thus, before us. 10. Mr. Ranjit Saxena, learned counsel appearing on behalf of the petitioner, would submit that the High Court committed an error in passing the impugned judgment insofar as it failed to take into consideration that there did not exist any relationship of employer and employee by and between the petitioner and the first respondent; appointment of the first respondent having been made by the Special Land Acquisition Officer. 11. Our attention has not been drawn to any statute or statutory rules in terms whereof such an appointment could be made by a revenue authority. It was, therefore, only an ad hoc employment. 12. Lands are acquired in terms of the provisions of the Land Acquisition Act. It is for the authorities concerned to conduct the cases relating to acquisition of land in the courts of law. Although the appellant was providing for the funds for meeting the expenditure in relation to payment of wages etc. to the first respondent herein, evidently, the relationship between an employer and employee did not come into being between the appellant and the first respondent. It did not require the services of the appellant. It did not require the services of the appellant. The Special Land Acquisition Officer did. The offer of appointment was issued by the Special Land Acquisition Officer. First respondent was working under his supervision and control. His services were being taken by the Special Land Acquisition Officer for a particular purpose, namely, looking after the land acquisition cases. When the purpose for which the first respondent was appointed ceased to exist, his services were terminated. If there did not exist any relationship of employer and employee, the question of the appellant’s fulfilling the obligations required in terms of the UP Industrial Disputes Act, namely, payment of retrenchment compensation or one month’s pay in lieu of notice did not and could not arise. If the first respondent was a workman working under the Special Land Acquisition Officer, the question of compliance of the said provisions by the said authority would also not arise. The High Court, therefore, in our opinion, committed a serious error in refusing to interfere in the matter. When existence of the relationship of employer and employee is disputed, the same was required to be determined in presence of all the parties who are interested in the subject matter of reference. The Special Land Acquisition Officer was not a party to the reference. The learned Presiding Officer, Labour Court, UP, Lucknow neither went into the question as regards the nature of duties required to be performed by the first respondent and also other relevant factors, namely, who had issued the offer of appointment; who used to supervise and control the work of the respondent; or who was the authority to grant leave and take disciplinary action etc. The said questions were relevant. {See Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of Tamil Nadu and Ors. [(2004) 3 SCC 514] . 13. The High Court, furthermore, committed a serious error insofar as it failed to take into consideration that a direction for reinstatement cannot be issued when there does not exist any post. Requirement of the Special Land Acquisition Officer to have the services of some employees was for a short period. No such post was created by the competent authority. The services of the first respondent were necessary for looking after the land acquisition cases of the petitioner. Even in a case where the workman is appointed on contractual basis, the industrial court would ordinarily not direct for reinstatement. Subject to statutory interdict, the agreement between the parties in this behalf must be given due weight.14. For the reasons aforementioned, the ### Response: 1

Om Prakash Vs. Reliance General Insuarance

Forum, Hissar (for short `District Forum), under Section 12 of the Consumer Protection Act, 1986, inter alia, seeking a direction to the respondent-company for payment of claim amount with an interest @ 18% per annum, along with compensation of Rs. 1,00,000/- to the appellant. Written statement was filed by the respondents herein opposing the claim of the appellant. The District Forum, by order dated 13.06.2013, dismissed the complaint of the appellant thereby holding that there is no deficiency of service on the part of respondents. 5. The appellant herein filed an appeal challenging the said order of District Forum, before the State Consumer Dispute Redressal Commission, Haryana (for short `State Commission) at Panchkula. The State Commission by an order dated 23.10.2013 dismissed the said appeal. This order was challenged by the appellant by way of Revision Petition before the National Consumer Disputes Redressal Commission (for short `National Commission). This Revision Petition has been dismissed by the National Commission by an order dated 12.02.2014. The appellant has questioned the legality and correctness of the said order in this appeal. 6. Learned counsel for the appellant contended that the appellant, immediately after getting the information about the theft of the vehicle, went to the place of theft and met the police officials along with the truck driver. Consequently, he got busy with the police while visiting many cities in Rajasthan for the search of the said vehicle and returned to his village on 30.03.2010 and lodged the insurance claim on 31.03.2010 before the Respondent-company. The appellant has assigned cogent reasons for the delay of 8 days in lodging the complaint. The National Commission has dismissed the petition filed by the appellant without taking into consideration the reasons assigned for the delay. It is argued that the Investigator appointed by the Respondent has verified the factum of theft and that the Corporate Claims Manager approved the report of Investigator, thereby recommending the payment of Rs. 7,85,000/- towards claim. 7. On the other hand, the learned counsel appearing for the respondents submits that as per the Condition No. 1 of the Insurance Policy, the information of theft ought to have been given to the respondent-company immediately upon the occurrence of theft. The claim was filed after a delay 8 days from the occurrence of theft. In the said circumstance, the National Commission was justified in rejecting the revision petition. 8. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. 9. The appellant, owner of the truck in question, is the resident of Muzadnagar village, Tehsil Hansi, District Hissar, State of Haryana. The theft of the vehicle had taken place on 23.03.2010 at Chopanki, Bhiwari, Rajasthan. The FIR was lodged in P.S. Tapukra, District Alwar on 24.03.2010 and the claim petition was filed on 31.03.2010. Dinesh, the truck-driver, had filed an affidavit before the District Forum stating that the owner of the truck had reached the place of occurrence of theft and met him and also the concerned police official. The Police had asked him and the owner to stay with them in order to help them for tracing out the truck. The police had also asked them to collect necessary documents in relation to the said truck. They were, consequently, busy with the Rajasthan Police in searching the vehicle. They visited many places in Rajasthan. The police had compelled the appellant to accompany them while searching the truck. It is only on 29.03.2010, the appellant went back and reached his village on 30.03.2010. The appellant had also filed a similar affidavit before the State Commission explaining the reasons for the delay in informing theft of the vehicle. 10. Condition No.1 of the Insurance Policy states that notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured has to give all such information and assistance as the company may require. 11. It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act. 12. In the instant case, the appellant has given cogent reasons for the delay of 8 days in informing the respondent about the incident. The Investigator had verified the theft to be genuine and the payment of Rs. 7,85,000/- towards the claim was approved by the Corporate Claims Manager, which, in our opinion, is just and proper. The National Commission, therefore, is not justified in rejecting the claim of the appellant without considering the explanation for the delay. We are also of the view that the claimant is entitled for a sum of Rs. 50,000/- towards compensation.

1[ds]11. It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence ofs in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act12. In the instant case, the appellant has given cogent reasons for the delay of 8 days in informing the respondent about the incident. The Investigator had verified the theft to be genuine and the payment of Rs. 7,85,000/towards the claim was approved by the Corporate Claims Manager, which, in our opinion, is just and proper. The National Commission, therefore, is not justified in rejecting the claim of the appellant without considering the explanation for the delay. We are also of the view that the claimant is entitled for a sum of Rs. 50,000/

### 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: Forum, Hissar (for short `District Forum), under Section 12 of the Consumer Protection Act, 1986, inter alia, seeking a direction to the respondent-company for payment of claim amount with an interest @ 18% per annum, along with compensation of Rs. 1,00,000/- to the appellant. Written statement was filed by the respondents herein opposing the claim of the appellant. The District Forum, by order dated 13.06.2013, dismissed the complaint of the appellant thereby holding that there is no deficiency of service on the part of respondents. 5. The appellant herein filed an appeal challenging the said order of District Forum, before the State Consumer Dispute Redressal Commission, Haryana (for short `State Commission) at Panchkula. The State Commission by an order dated 23.10.2013 dismissed the said appeal. This order was challenged by the appellant by way of Revision Petition before the National Consumer Disputes Redressal Commission (for short `National Commission). This Revision Petition has been dismissed by the National Commission by an order dated 12.02.2014. The appellant has questioned the legality and correctness of the said order in this appeal. 6. Learned counsel for the appellant contended that the appellant, immediately after getting the information about the theft of the vehicle, went to the place of theft and met the police officials along with the truck driver. Consequently, he got busy with the police while visiting many cities in Rajasthan for the search of the said vehicle and returned to his village on 30.03.2010 and lodged the insurance claim on 31.03.2010 before the Respondent-company. The appellant has assigned cogent reasons for the delay of 8 days in lodging the complaint. The National Commission has dismissed the petition filed by the appellant without taking into consideration the reasons assigned for the delay. It is argued that the Investigator appointed by the Respondent has verified the factum of theft and that the Corporate Claims Manager approved the report of Investigator, thereby recommending the payment of Rs. 7,85,000/- towards claim. 7. On the other hand, the learned counsel appearing for the respondents submits that as per the Condition No. 1 of the Insurance Policy, the information of theft ought to have been given to the respondent-company immediately upon the occurrence of theft. The claim was filed after a delay 8 days from the occurrence of theft. In the said circumstance, the National Commission was justified in rejecting the revision petition. 8. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. 9. The appellant, owner of the truck in question, is the resident of Muzadnagar village, Tehsil Hansi, District Hissar, State of Haryana. The theft of the vehicle had taken place on 23.03.2010 at Chopanki, Bhiwari, Rajasthan. The FIR was lodged in P.S. Tapukra, District Alwar on 24.03.2010 and the claim petition was filed on 31.03.2010. Dinesh, the truck-driver, had filed an affidavit before the District Forum stating that the owner of the truck had reached the place of occurrence of theft and met him and also the concerned police official. The Police had asked him and the owner to stay with them in order to help them for tracing out the truck. The police had also asked them to collect necessary documents in relation to the said truck. They were, consequently, busy with the Rajasthan Police in searching the vehicle. They visited many places in Rajasthan. The police had compelled the appellant to accompany them while searching the truck. It is only on 29.03.2010, the appellant went back and reached his village on 30.03.2010. The appellant had also filed a similar affidavit before the State Commission explaining the reasons for the delay in informing theft of the vehicle. 10. Condition No.1 of the Insurance Policy states that notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured has to give all such information and assistance as the company may require. 11. It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act. 12. In the instant case, the appellant has given cogent reasons for the delay of 8 days in informing the respondent about the incident. The Investigator had verified the theft to be genuine and the payment of Rs. 7,85,000/- towards the claim was approved by the Corporate Claims Manager, which, in our opinion, is just and proper. The National Commission, therefore, is not justified in rejecting the claim of the appellant without considering the explanation for the delay. We are also of the view that the claimant is entitled for a sum of Rs. 50,000/- towards compensation. ### Response: 1

Inderjeet Arya Vs. Icici Bank Ltd

K.S. Radhakrishnan, J. Leave granted. 2. We are, in this case, concerned with the question whether the appellants who are Directors and Guarantors of a sick company and are entitled to get the protection of Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short ?the SICA).3. M/s Rajat Pharmachem Pvt. Ltd. (RPL) was engaged in the business of manufacturing, trading and export of generic pharmaceuticals formulations and products. First appellant is the Chairman-cum-Director of RPL, while second appellant is its Director. The Bank of Rajasthan, prior to its amalgamation with the respondent?ICICI Bank Limited, instituted recovery proceedings in the Debt Recovery Tribunal (DRT), Delhi and the same was registered as OA No.118 of 2009. In those proceedings, the State Trading Corporation of India Ltd. (STC) was defendant No.1, while RPL along with its Directors and Guarantors were arrayed as Defendant Nos.2, 3 and 4 respectively. By way of recovery proceedings, Bank of Rajasthan (Now ICICI Bank) sought recovery of Rs.26,55,35,824.50 which included interest to the tune of Rs.2,79,43,736/- till the date of institution of action in DRT. Future interest @ 18% per annum was also sought. RPL apprehending institution of recovery proceedings took steps seeking registration of its reference under Section 15 of the SICA. Later Board for Industrial and Financial Reconstruction (BIFR) intimated its registration and accorded Case No.14 of 2009.4. The Bank instituted Original Application OA No.118 of 2009 in DRT on 13.05.2009. In the recovery proceedings notices were issued by the DRT to all the defendants, which included the appellants as well. On 14.12.2009 the appellant, along with RPL preferred an application under Section 22(1) SICA which was registered as OA No.1046 of 2009. They sought dismissal of IA since the same was filed without prior permission of the Appellate Authority for Industrial and Financial Reconstruction (for short ?AAIFR?)/BIFR in terms of Section 22(1) of SICA. The DRT took the view that the execution of the decree had to be kept in abeyance until the question whether the guarantors were entitled to protection under Section 22(1) of SICA stood decided by the Apex Court. On appeal, the DRAT set aside the order passed by the DRT. The matter was ultimately brought to the High Court wherein the correctness of the two orders passed by the DRAT on 29.08.2011 in OA No.118 of 2009 and the orders dated 30.05.2011 and 03.05.2010 passed by the DRT were examined.5. The primary issue that came for consideration before the High Court was whether the protection under Section 22(1) of SICA can be extended to the appellants in their capacity as guarantors of debt owned by RPL. The High Court upheld the judgment dated 19.08.2011 passed by the DRAT and the orders dated 30.05.2011 and 03.05.2010 passed by the DRT. The High Court also held that the protection of Section 22(1) of SICA would not be available to the appellants who are Directors and Guarantors of sick industrial company, in view of the Judgments rendered by this Court in Kailash Nath Agarwal and others v. Pradeshiya Industrial & Investment Corporation of U.P. Ltd. And another (2003) 4 SCC 305 , KSL and Industries Limited v. Arihant Threads Limited and others (2008) 9 SCC 763 and Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation (2009) 8 SCC 646 etc. Aggrieved by the same, this special leave petition has been preferred. 6. We need not labour much to answer the question of law raised in this appeal since, as rightly pointed out by the High Court, the same stands covered by various Judgments of this Court referred to earlier. Appellants, who are the guarantors, can obtain the protection of Section 22(1) of SICA only if the action filed by the bank comes within the ambit of the term ?suit?. If the action filed by the respondent bank in the nature of ?proceedings? and not a ?suit?, protection under Section 22(1) would not be available, especially, when the appellants are guarantors. 7. This Court, in KSL and Industries Limited (supra) took the view that even though both the conflicting statutes SICA and Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short the ?RDDB?) contain a non-obstante clause, in case of conflict the RDDB Act, 1993 will prevail over SICA, so far as public revenue recoveries are concerned. This Court also emphasized that the liability of surety or guarantor is co-extensive with that of the principal debtor in Kailash Nath Agarwal and others (supra). In Nahar Industrial Enterprises Limited (supra) this Court reiterated the term ?suit? have to be confined in the context of sub- section (1) of Section 22 of SICA to those actions which are dealt with under the Code and not in the comprehensive over-arching proceedings so as to apply to any original proceedings before any legal forum. The term ?suit? would apply only to proceedings in civil court and not actions or recovery proceedings filed by banks and financial institutions before a tribunal such as DRT.

0[ds]7. This Court, in KSL and Industries Limited (supra) took the view that even though both the conflicting statutes SICA and Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short the ?RDDB?) contain aclause, in case of conflict the RDDB Act, 1993 will prevail over SICA, so far as public revenue recoveries are concerned. This Court also emphasized that the liability of surety or guarantor iswith that of the principal debtor in Kailash Nath Agarwal and others (supra). In Nahar Industrial Enterprises Limited (supra) this Court reiterated the termhave to be confined in the context of subsection (1) of Section 22 of SICA to those actions which are dealt with under the Code and not in the comprehensiveproceedings so as to apply to any original proceedings before any legal forum. The termwould apply only to proceedings in civil court and not actions or recovery proceedings filed by banks and financial institutions before a tribunal such as DRT.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: K.S. Radhakrishnan, J. Leave granted. 2. We are, in this case, concerned with the question whether the appellants who are Directors and Guarantors of a sick company and are entitled to get the protection of Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short ?the SICA).3. M/s Rajat Pharmachem Pvt. Ltd. (RPL) was engaged in the business of manufacturing, trading and export of generic pharmaceuticals formulations and products. First appellant is the Chairman-cum-Director of RPL, while second appellant is its Director. The Bank of Rajasthan, prior to its amalgamation with the respondent?ICICI Bank Limited, instituted recovery proceedings in the Debt Recovery Tribunal (DRT), Delhi and the same was registered as OA No.118 of 2009. In those proceedings, the State Trading Corporation of India Ltd. (STC) was defendant No.1, while RPL along with its Directors and Guarantors were arrayed as Defendant Nos.2, 3 and 4 respectively. By way of recovery proceedings, Bank of Rajasthan (Now ICICI Bank) sought recovery of Rs.26,55,35,824.50 which included interest to the tune of Rs.2,79,43,736/- till the date of institution of action in DRT. Future interest @ 18% per annum was also sought. RPL apprehending institution of recovery proceedings took steps seeking registration of its reference under Section 15 of the SICA. Later Board for Industrial and Financial Reconstruction (BIFR) intimated its registration and accorded Case No.14 of 2009.4. The Bank instituted Original Application OA No.118 of 2009 in DRT on 13.05.2009. In the recovery proceedings notices were issued by the DRT to all the defendants, which included the appellants as well. On 14.12.2009 the appellant, along with RPL preferred an application under Section 22(1) SICA which was registered as OA No.1046 of 2009. They sought dismissal of IA since the same was filed without prior permission of the Appellate Authority for Industrial and Financial Reconstruction (for short ?AAIFR?)/BIFR in terms of Section 22(1) of SICA. The DRT took the view that the execution of the decree had to be kept in abeyance until the question whether the guarantors were entitled to protection under Section 22(1) of SICA stood decided by the Apex Court. On appeal, the DRAT set aside the order passed by the DRT. The matter was ultimately brought to the High Court wherein the correctness of the two orders passed by the DRAT on 29.08.2011 in OA No.118 of 2009 and the orders dated 30.05.2011 and 03.05.2010 passed by the DRT were examined.5. The primary issue that came for consideration before the High Court was whether the protection under Section 22(1) of SICA can be extended to the appellants in their capacity as guarantors of debt owned by RPL. The High Court upheld the judgment dated 19.08.2011 passed by the DRAT and the orders dated 30.05.2011 and 03.05.2010 passed by the DRT. The High Court also held that the protection of Section 22(1) of SICA would not be available to the appellants who are Directors and Guarantors of sick industrial company, in view of the Judgments rendered by this Court in Kailash Nath Agarwal and others v. Pradeshiya Industrial & Investment Corporation of U.P. Ltd. And another (2003) 4 SCC 305 , KSL and Industries Limited v. Arihant Threads Limited and others (2008) 9 SCC 763 and Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation (2009) 8 SCC 646 etc. Aggrieved by the same, this special leave petition has been preferred. 6. We need not labour much to answer the question of law raised in this appeal since, as rightly pointed out by the High Court, the same stands covered by various Judgments of this Court referred to earlier. Appellants, who are the guarantors, can obtain the protection of Section 22(1) of SICA only if the action filed by the bank comes within the ambit of the term ?suit?. If the action filed by the respondent bank in the nature of ?proceedings? and not a ?suit?, protection under Section 22(1) would not be available, especially, when the appellants are guarantors. 7. This Court, in KSL and Industries Limited (supra) took the view that even though both the conflicting statutes SICA and Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short the ?RDDB?) contain a non-obstante clause, in case of conflict the RDDB Act, 1993 will prevail over SICA, so far as public revenue recoveries are concerned. This Court also emphasized that the liability of surety or guarantor is co-extensive with that of the principal debtor in Kailash Nath Agarwal and others (supra). In Nahar Industrial Enterprises Limited (supra) this Court reiterated the term ?suit? have to be confined in the context of sub- section (1) of Section 22 of SICA to those actions which are dealt with under the Code and not in the comprehensive over-arching proceedings so as to apply to any original proceedings before any legal forum. The term ?suit? would apply only to proceedings in civil court and not actions or recovery proceedings filed by banks and financial institutions before a tribunal such as DRT. ### Response: 0

Syed Mohammad Vs. Union Of India

Kurian Joseph, J.1. Leave granted.2. The appellants are before this Court, aggrieved by the Judgment of the High Court of Judicature at Allahabad. The issue pertains to the selection for promotion from the post of Clerk to that of Officer.3. The process of selection, as prescribed, reads as follows :-"Selection process for promoteesThe selection shall be on the basis of performance in the written test, interview and five years Performance Appraisal Reports as per the division of marks given below:-(A) Written test70 Marks(B) Interview20 Marks(C) Performance AppraisalReport10 MarksTotal Marks100 Marks”4. It is also a condition that "there shall be no minimum qualifying marks in the interview." Still further, it is stipulated that "promotions shall be made on the basis of seniority-cum-merit". The appellant-candidate before this Court did not participate in the interview. However, it is his stand that even without participating in the interview, in case he had secured the sufficient marks in the other two counts i.e. written test and performance appraisal, he is entitled to be promoted.5. The High Court took the view that the interview was one of the essential procedures for being included in the select list and, therefore, having not participated in the interview, the appellant-candidate was not liable to be selected and appointed. Thus aggrieved, the Bank and the candidate concerned are before this Court.6. The learned counsel appearing for the respondent has submitted that any candidate who has not participated in the interview, is not eligible to be selected and appointed since the interview is the only method by which the persons capability is assessed for the purpose of suitability for promotion to the post of Officer.7. We find it difficult to appreciate the contention in the background of the rules, which we have extracted above. The selection process is by way of a written test, interview and performance appraisal of the previous years. The total marks are 100. There is also a further significant stipulation that there are no minimum qualifying marks for the interview. Once no marks are prescribed as qualifying marks in the interview for the purpose of selection, whether a candidate participates in the interview or not is of no relevance, since even assuming, he had been granted zero marks in case he had otherwise obtained better marks in the written examination and the performance appraisal, he is eligible to be promoted since the selection is based on seniority-cum-merit and since there is also no provision for disqualifying an incumbent in the interview and since there is performance appraisal.8. The principle governing selection based on seniority-cum-merit is that once the candidates are found to possess the minimum required merit, the senior among them would get the promotion. The learned counsel appearing for the Bank submits that the appellant-candidate and the respondent-candidate had secured equal marks in the selection, though the appellant-candidate had not participated in the interview. But since the appellant-candidate was senior to the respondent-candidate, based on the principle of seniority-cum-merit, the appellant-candidate had to be appointed and that alone was done by the Bank. We find nothing wrong in the procedure adopted in the selection in the peculiar factual and rule position of the Bank.

1[ds]7. We find it difficult to appreciate the contention in the background of the rules, which we have extracted above. The selection process is by way of a written test, interview and performance appraisal of the previous years. The total marks are 100. There is also a further significant stipulation that there are no minimum qualifying marks for the interview. Once no marks are prescribed as qualifying marks in the interview for the purpose of selection, whether a candidate participates in the interview or not is of no relevance, since even assuming, he had been granted zero marks in case he had otherwise obtained better marks in the written examination and the performance appraisal, he is eligible to be promoted since the selection is based onand since there is also no provision for disqualifying an incumbent in the interview and since there is performance appraisal.8. The principle governing selection based onis that once the candidates are found to possess the minimum required merit, the senior among them would get the promotion. The learned counsel appearing for the Bank submits that theate had secured equal marks in the selection, though thehad not participated in the interview. But since thewas senior to thebased on the principle ofte had to be appointed and that alone was done by the Bank. We find nothing wrong in the procedure adopted in the selection in the peculiar factual and rule position of the Bank.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: Kurian Joseph, J.1. Leave granted.2. The appellants are before this Court, aggrieved by the Judgment of the High Court of Judicature at Allahabad. The issue pertains to the selection for promotion from the post of Clerk to that of Officer.3. The process of selection, as prescribed, reads as follows :-"Selection process for promoteesThe selection shall be on the basis of performance in the written test, interview and five years Performance Appraisal Reports as per the division of marks given below:-(A) Written test70 Marks(B) Interview20 Marks(C) Performance AppraisalReport10 MarksTotal Marks100 Marks”4. It is also a condition that "there shall be no minimum qualifying marks in the interview." Still further, it is stipulated that "promotions shall be made on the basis of seniority-cum-merit". The appellant-candidate before this Court did not participate in the interview. However, it is his stand that even without participating in the interview, in case he had secured the sufficient marks in the other two counts i.e. written test and performance appraisal, he is entitled to be promoted.5. The High Court took the view that the interview was one of the essential procedures for being included in the select list and, therefore, having not participated in the interview, the appellant-candidate was not liable to be selected and appointed. Thus aggrieved, the Bank and the candidate concerned are before this Court.6. The learned counsel appearing for the respondent has submitted that any candidate who has not participated in the interview, is not eligible to be selected and appointed since the interview is the only method by which the persons capability is assessed for the purpose of suitability for promotion to the post of Officer.7. We find it difficult to appreciate the contention in the background of the rules, which we have extracted above. The selection process is by way of a written test, interview and performance appraisal of the previous years. The total marks are 100. There is also a further significant stipulation that there are no minimum qualifying marks for the interview. Once no marks are prescribed as qualifying marks in the interview for the purpose of selection, whether a candidate participates in the interview or not is of no relevance, since even assuming, he had been granted zero marks in case he had otherwise obtained better marks in the written examination and the performance appraisal, he is eligible to be promoted since the selection is based on seniority-cum-merit and since there is also no provision for disqualifying an incumbent in the interview and since there is performance appraisal.8. The principle governing selection based on seniority-cum-merit is that once the candidates are found to possess the minimum required merit, the senior among them would get the promotion. The learned counsel appearing for the Bank submits that the appellant-candidate and the respondent-candidate had secured equal marks in the selection, though the appellant-candidate had not participated in the interview. But since the appellant-candidate was senior to the respondent-candidate, based on the principle of seniority-cum-merit, the appellant-candidate had to be appointed and that alone was done by the Bank. We find nothing wrong in the procedure adopted in the selection in the peculiar factual and rule position of the Bank. ### Response: 1

Badri Prasad Vs. The State of Madhya Pradesh and Anr

rights of the petitioners which could support the petitions which were presented under Article 32 of the Constitution."8. The Court then construed the agreements in question and came to the conclusion that the agreements could not be said to be contracts of sale of goods simpliciter. Then the Court examined the provisions of the Central Provinces Land Revenue Act and came to the following conclusion:"From this, it is quite clear that forests and trees belonged to the proprietors, and they were items of proprietary rights. The first of the two questions posed by us, therefore, admits of none but an affirmative answer.If then the forest and the trees belonged to the proprietors as items in their proprietary rights it is quite clear that these items of proprietary rights have been transferred to the petitioners. The answer to the second question is also in the affirmative. Being a " proprietary right" it vests in the State under Ss. 3 and 4 of the Act. The decision in Chhottabhais 1953 SCR 476 = (AIR 1953 SC 108 ) treated these rights as bare licenses, and it was apparently given per incuriam, and cannot therefore be followed."It seems to us that this decision concludes the controversy before us. This decision was followed in State of Madhya Pradesh v. Yakinuddin, (1963) 3 SCR 13 = (AIR 1962 SC 1916 ). Various agreements were constructed in that case; one agreement was to propagate lac, another agreement was to collect tendu leaves, and another agreement was with respect to a right to collect fruits and flowers of Mahua trees. It was contended that these rights were saved in view of the provisions of Section 6 of the Act, but this connection was negatived, Sinha, C. J. speaking for the Court, observed that the distinction between a bare licence and a licence coupled with grant or profit a prendre was irrelevant because "whatever may have been the nature of the grant by the outgoing proprietors in favour of the respondents, those grants had not legal effect as against the State, except is so far as the State may have recognised them. But the provisions of the Act leave no manner of doubt that the rights claimed by the respondents could not have been enforced against the State, if the latter was not prepared to respect those rights and the rights created by the transactions between the respondent and their grantors did not come within any of the saving clauses of Section 5.Earlier he had observed that"any persons claiming some interest as a proprietor or as holding through a proprietor in respect of any proprietary interest in an estate has got to bring his interest within Section 5, because on the date of vesting of the estate, the Deputy Commissioner takes charge of all lands other than occupied lands and homestead, and of all interests vesting in the State under Section 3. Upon such taking over of possession, the State becomes liable to pay the compensation provided for in Section 8 and the succeeding sections. The respondents have not been able to show that their interest comes under any of the clauses aforesaid of Section 5."9. The last case in which this Act was construed was Mulamchand v. State of Madhya Pradesh, Civil Appeal No. 393 of 1965, D/- 20-2-1968 = (reported in AIR 1968 SC 1218 ). In that case Mulamchand had purchased a right to pluck, collect and remove forest produce like lac, tendu leaves, etc., from the proprietors of the different Malguzari jungles. The Court followed (1963) 3 SCR 13 = (AIR 1962 SC 1916 ) and negatived the claim of Mulamchand to exercise his rights under the agreement.10. In view of the these cases it is too late in the day to contend that the forest and the trees did not vest in the State under the Act.11. There is no force in the contention of the learned counsel that under the contract the plaintiff had become owner of trees as goods. It is true that trees which are agreed to be severed before sale or under the contract of sale are "goods" for the purposes of the Sale of Goods Act. But before they cease to be " proprietary" right or interest in proprietary rights within the meaning of Sections 3 and 4 (a) of the Act they must be felled under the contract. It will be noticed that under Clause 1 of the contract the plaintiff was entitled to cut teak trees of more than 12 inches girth. It had to be ascertained which trees fell within that description. Till this was ascertained, they were not " ascertained goods" within Section 19 of the Sale of Goods Act. Clause 5 of the contract contemplated that stumps of trees, after cutting had to be 3 inches high. In other words, the contract was not to sell the whole of the trees. In these circumstances property in the cut timber would only pass to the plaintiff under the contract at the earliest when trees are felled. But before that happened the trees had vested in the State.12. This brings us to the last point, namely, whether a new contract was concluded between the Government and the plaintiff. It is extremely doubtful whether the letter dated February 1, 1955, is an offer. It seems to be an invitation to the plaintiff to make offer. Be that as it may, even if it is treated as an offer there was no unconditional acceptance by the letter dated February 5, 1955. The plaintiff expressly reserved his right to claim a refund of Rs. 17,000. According to the letter of the Divisional Forest Officer, dated February 1, 1955, the plaintiff had to give up his claim to Rs. 17,000 which he had already paid and had to pay a further sum of Rupees. 17,000. The High Court in our opinion, rightly held that the alleged acceptance of the offer made on February 1, 1955, was conditional and qualified.

0[ds]4. The Act and the rights of persons holding contracts to cut and take away timber and fruits of the trees have been the subject-matter of consideration by this Court on several occasions. But the learned counsel for the plaintiff contends that none of those cases cover the case of the plaintiff because, according to him none of those cases dealt with standing timber. He says that the plaintiffs contract is a contract for the sale of goods and the property in the goods had vested in him and, therefore, it stands on a different basis from the contracts construed in the earlier cases. The learned counsel for the respondents, on the other hand, maintains that the plaintiffs case is covered by the earlier decisions and all the arguments which he has advanced have been rejected by this Court in those cases.There is no force in the contention of the learned counsel that under the contract the plaintiff had become owner of trees as goods. It is true that trees which are agreed to be severed before sale or under the contract of sale are "goods" for the purposes of the Sale of Goods Act. But before they cease to be " proprietary" right or interest in proprietary rights within the meaning of Sections 3 and 4 (a) of the Act they must be felled under the contract. It will be noticed that under Clause 1 of the contract the plaintiff was entitled to cut teak trees of more than 12 inches girth. It had to be ascertained which trees fell within that description. Till this was ascertained, they were not " ascertained goods" within Section 19 of the Sale of Goods Act. Clause 5 of the contract contemplated that stumps of trees, after cutting had to be 3 inches high. In other words, the contract was not to sell the whole of the trees. In these circumstances property in the cut timber would only pass to the plaintiff under the contract at the earliest when trees are felled. But before that happened the trees had vested in the State.12. This brings us to the last point, namely, whether a new contract was concluded between the Government and the plaintiff. It is extremely doubtful whether the letter dated February 1, 1955, is an offer. It seems to be an invitation to the plaintiff to make offer. Be that as it may, even if it is treated as an offer there was no unconditional acceptance by the letter dated February 5, 1955. The plaintiff expressly reserved his right to claim a refund of Rs. 17,000. According to the letter of the Divisional Forest Officer, dated February 1, 1955, the plaintiff had to give up his claim to Rs. 17,000 which he had already paid and had to pay a further sum of Rupees. 17,000. The High Court in our opinion, rightly held that the alleged acceptance of the offer made on February 1, 1955, was conditional and qualified.

### 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: rights of the petitioners which could support the petitions which were presented under Article 32 of the Constitution."8. The Court then construed the agreements in question and came to the conclusion that the agreements could not be said to be contracts of sale of goods simpliciter. Then the Court examined the provisions of the Central Provinces Land Revenue Act and came to the following conclusion:"From this, it is quite clear that forests and trees belonged to the proprietors, and they were items of proprietary rights. The first of the two questions posed by us, therefore, admits of none but an affirmative answer.If then the forest and the trees belonged to the proprietors as items in their proprietary rights it is quite clear that these items of proprietary rights have been transferred to the petitioners. The answer to the second question is also in the affirmative. Being a " proprietary right" it vests in the State under Ss. 3 and 4 of the Act. The decision in Chhottabhais 1953 SCR 476 = (AIR 1953 SC 108 ) treated these rights as bare licenses, and it was apparently given per incuriam, and cannot therefore be followed."It seems to us that this decision concludes the controversy before us. This decision was followed in State of Madhya Pradesh v. Yakinuddin, (1963) 3 SCR 13 = (AIR 1962 SC 1916 ). Various agreements were constructed in that case; one agreement was to propagate lac, another agreement was to collect tendu leaves, and another agreement was with respect to a right to collect fruits and flowers of Mahua trees. It was contended that these rights were saved in view of the provisions of Section 6 of the Act, but this connection was negatived, Sinha, C. J. speaking for the Court, observed that the distinction between a bare licence and a licence coupled with grant or profit a prendre was irrelevant because "whatever may have been the nature of the grant by the outgoing proprietors in favour of the respondents, those grants had not legal effect as against the State, except is so far as the State may have recognised them. But the provisions of the Act leave no manner of doubt that the rights claimed by the respondents could not have been enforced against the State, if the latter was not prepared to respect those rights and the rights created by the transactions between the respondent and their grantors did not come within any of the saving clauses of Section 5.Earlier he had observed that"any persons claiming some interest as a proprietor or as holding through a proprietor in respect of any proprietary interest in an estate has got to bring his interest within Section 5, because on the date of vesting of the estate, the Deputy Commissioner takes charge of all lands other than occupied lands and homestead, and of all interests vesting in the State under Section 3. Upon such taking over of possession, the State becomes liable to pay the compensation provided for in Section 8 and the succeeding sections. The respondents have not been able to show that their interest comes under any of the clauses aforesaid of Section 5."9. The last case in which this Act was construed was Mulamchand v. State of Madhya Pradesh, Civil Appeal No. 393 of 1965, D/- 20-2-1968 = (reported in AIR 1968 SC 1218 ). In that case Mulamchand had purchased a right to pluck, collect and remove forest produce like lac, tendu leaves, etc., from the proprietors of the different Malguzari jungles. The Court followed (1963) 3 SCR 13 = (AIR 1962 SC 1916 ) and negatived the claim of Mulamchand to exercise his rights under the agreement.10. In view of the these cases it is too late in the day to contend that the forest and the trees did not vest in the State under the Act.11. There is no force in the contention of the learned counsel that under the contract the plaintiff had become owner of trees as goods. It is true that trees which are agreed to be severed before sale or under the contract of sale are "goods" for the purposes of the Sale of Goods Act. But before they cease to be " proprietary" right or interest in proprietary rights within the meaning of Sections 3 and 4 (a) of the Act they must be felled under the contract. It will be noticed that under Clause 1 of the contract the plaintiff was entitled to cut teak trees of more than 12 inches girth. It had to be ascertained which trees fell within that description. Till this was ascertained, they were not " ascertained goods" within Section 19 of the Sale of Goods Act. Clause 5 of the contract contemplated that stumps of trees, after cutting had to be 3 inches high. In other words, the contract was not to sell the whole of the trees. In these circumstances property in the cut timber would only pass to the plaintiff under the contract at the earliest when trees are felled. But before that happened the trees had vested in the State.12. This brings us to the last point, namely, whether a new contract was concluded between the Government and the plaintiff. It is extremely doubtful whether the letter dated February 1, 1955, is an offer. It seems to be an invitation to the plaintiff to make offer. Be that as it may, even if it is treated as an offer there was no unconditional acceptance by the letter dated February 5, 1955. The plaintiff expressly reserved his right to claim a refund of Rs. 17,000. According to the letter of the Divisional Forest Officer, dated February 1, 1955, the plaintiff had to give up his claim to Rs. 17,000 which he had already paid and had to pay a further sum of Rupees. 17,000. The High Court in our opinion, rightly held that the alleged acceptance of the offer made on February 1, 1955, was conditional and qualified. ### Response: 0

Karsanbhai Dahyabhai Parmar Vs. Dahiben D/o Dahyabhai Dabhaibhai & Others

1. We have heard the learned counsels for the parties. 2. Three courts including the High Court in Second Appeal have decreed the suit of the plaintiffs for partition. The plaintiff No.1- Dahiben is the daughter of plaintiff No.2 - Bai Jethu. The property in respect of which partition was prayed for in the suit belong to one Dahyabhai who had died in the year 1942 leaving behind his son - the first defendant - Karsanbhai Dahyabhai Parmar (appellant herein), plaintiff No.2 (Bai Jethu) - the widow, who also is no more and four daughters three of whom had died and the first plaintiff who is the sole surviving daughter. 3. As the death of the original owner (Dahyabhai) had occurred in the year 1942 the entitlement of the parties will be governed by the Baroda Hindu Nibandh 1937 and specifically Section 197 thereof which, inter alia, makes it clear that following the death of a male, his property will devolve on his son and widow. In the present case as the deceased owner (Dahyabhai) had left behind only one son i.e. defendant No.1 (Karsanbhai Dahyabhai Parmar, appellant herein) we are not required to go into the question as to whether the son who would inherit the property is the eldest son or that the property would also be inherited by other sons of the deceased owner. 4. The claim for partition was based on a gift deed executed by the plaintiff No.2 (Bai Jethu), the mother, in favour of the plaintiff No.1 (Dahiben), the daughter, on 28th April, 1972. Thereafter in the year 1974 the suit in question was filed. The consistent view taken by all the three courts is that as the mother (Bai Jethu, plaintiff No.2) is entitled to half share in the property as the widow of deceased owner (Dahyabhai) the gift deed executed by her in favour of the plaintiff No.1 (Dahiben) would entitle the plaintiff No.1 to a half share in the property. This essentially is the basis of the decree passed in favour of the plaintiffs in the suit. The same has been put to challenge by the first defendant in this appeal. 5. Interference by this Court in an appeal upon grant of special leave under Article 136 of the Constitution of India where consistent views have been taken by three courts is a rare event. However, we are left with no doubt in the mind that the present is one such occasion. Under Section 197 of the Baroda Hindu Nibandh 1937 the son and the widow of a deceased get inheritance/succession as co-sharer. The concept of co-sharer is akin to one of co-owner which vests in both an equal right to the same property. Both the co-sharers being holders of equal share to the same property, apportionment thereof and division of the property can only be by means of a partition. The right to seek such a partition, naturally, will be in one of the two co-sharers. The first plaintiff (Dahiben) being a daughter who does not have a right of inheritance under the Baroda Hindu Nibandh 1937 will not be a person entitled to seek a partition of the property. It is the mother/widow of the original owner i.e. plaintiff No.2 (Bai Jethu) who would have been entitled to claim of a partition but the plaintiff No.2 (Bai Jethu) i.e. the widow passed away, it is stated, on 20th January, 1974 i.e. during the pendency of the suit. In the absence of the plaintiff No.2 (Bai Jethu), the first plaintiff (Dahiben) did not have a right to demand partition and the suit should have failed on that count alone, immediately following the death of the plaintiff No.2. The gift deed dated 28th April, 1972 could not have vested in the plaintiff No.1 a right to claim partition inasmuch as the property being undivided the gift deed could not have been for an uncertain and undisclosed share of the property. In fact, when the gift deed was executed the share of the plaintiff No.2 was yet to be ascertained and apportioned. This is a lacuna in the decree passed by the three courts which has come to our notice at this stage. The same, therefore, will have to be cured by an appropriate interference with the decree passed in favour of the plaintiffs which we accordingly do. The decree passed by the courts below is accordingly set aside and the appeal is allowed. 6. At this stage we had put to Shri P.H. Parekh, learned Senior Counsel appearing for the appellant - defendant No.1 as to whether the said defendant would be willing to give some part of the property or equivalent value thereof to the plaintiff No.1 who is his sole surviving sister. Shri Parekh has interacted with the son of the appellant - first defendant who is present in Court. The suggestion of the Court put through Shri Parekh has been responded to by the son of the appellant - first defendant with great magnanimity who has agreed that if the property is to be hypothetically partitioned half share thereof should come to the deceased plaintiff No.2. The representative of the appellant has agreed that this part of the suit property may be equally divided amongst the legal heirs of the three deceased sisters and the respondent - plaintiff No.1 in equal proportions. Apart from the above, it has also been agreed that there is a house property which may also be divided amongst the aforesaid persons i.e. legal representatives of the three sisters who are no more and the respondent - plaintiff No.1.

1[ds]5. Interference by this Court in an appeal upon grant of special leave under Article 136 of the Constitution of India where consistent views have been taken by three courts is a rare event. However, we are left with no doubt in the mind that the present is one such occasion. Under Section 197 of the Baroda Hindu Nibandh 1937 the son and the widow of a deceased get inheritance/succession asThe concept ofis akin to one ofwhich vests in both an equal right to the same property. Both thebeing holders of equal share to the same property, apportionment thereof and division of the property can only be by means of a partition. The right to seek such a partition, naturally, will be in one of the twoThe first plaintiff (Dahiben) being a daughter who does not have a right of inheritance under the Baroda Hindu Nibandh 1937 will not be a person entitled to seek a partition of the property. It is the mother/widow of the original owner i.e. plaintiff No.2 (Bai Jethu) who would have been entitled to claim of a partition but the plaintiff No.2 (Bai Jethu) i.e. the widow passed away, it is stated, on 20th January, 1974 i.e. during the pendency of the suit. In the absence of the plaintiff No.2 (Bai Jethu), the first plaintiff (Dahiben) did not have a right to demand partition and the suit should have failed on that count alone, immediately following the death of the plaintiff No.2. The gift deed dated 28th April, 1972 could not have vested in the plaintiff No.1 a right to claim partition inasmuch as the property being undivided the gift deed could not have been for an uncertain and undisclosed share of the property. In fact, when the gift deed was executed the share of the plaintiff No.2 was yet to be ascertained and apportioned. This is a lacuna in the decree passed by the three courts which has come to our notice at this stage. The same, therefore, will have to be cured by an appropriate interference with the decree passed in favour of the plaintiffs which we accordingly do. The decree passed by the courts below is accordingly set aside and the appeal is allowed.At this stage we had put to Shri P.H. Parekh, learned Senior Counsel appearing for the appellantdefendant No.1 as to whether the said defendant would be willing to give some part of the property or equivalent value thereof to the plaintiff No.1 who is his sole surviving sister. Shri Parekh has interacted with the son of the appellantfirst defendant who is present in Court. The suggestion of the Court put through Shri Parekh has been responded to by the son of the appellantfirst defendant with great magnanimity who has agreed that if the property is to be hypothetically partitioned half share thereof should come to the deceased plaintiff No.2. The representative of the appellant has agreed that this part of the suit property may be equally divided amongst the legal heirs of the three deceased sisters and the respondentplaintiff No.1 in equal proportions. Apart from the above, it has also been agreed that there is a house property which may also be divided amongst the aforesaid persons i.e. legal representatives of the three sisters who are no more and the respondent

### 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. We have heard the learned counsels for the parties. 2. Three courts including the High Court in Second Appeal have decreed the suit of the plaintiffs for partition. The plaintiff No.1- Dahiben is the daughter of plaintiff No.2 - Bai Jethu. The property in respect of which partition was prayed for in the suit belong to one Dahyabhai who had died in the year 1942 leaving behind his son - the first defendant - Karsanbhai Dahyabhai Parmar (appellant herein), plaintiff No.2 (Bai Jethu) - the widow, who also is no more and four daughters three of whom had died and the first plaintiff who is the sole surviving daughter. 3. As the death of the original owner (Dahyabhai) had occurred in the year 1942 the entitlement of the parties will be governed by the Baroda Hindu Nibandh 1937 and specifically Section 197 thereof which, inter alia, makes it clear that following the death of a male, his property will devolve on his son and widow. In the present case as the deceased owner (Dahyabhai) had left behind only one son i.e. defendant No.1 (Karsanbhai Dahyabhai Parmar, appellant herein) we are not required to go into the question as to whether the son who would inherit the property is the eldest son or that the property would also be inherited by other sons of the deceased owner. 4. The claim for partition was based on a gift deed executed by the plaintiff No.2 (Bai Jethu), the mother, in favour of the plaintiff No.1 (Dahiben), the daughter, on 28th April, 1972. Thereafter in the year 1974 the suit in question was filed. The consistent view taken by all the three courts is that as the mother (Bai Jethu, plaintiff No.2) is entitled to half share in the property as the widow of deceased owner (Dahyabhai) the gift deed executed by her in favour of the plaintiff No.1 (Dahiben) would entitle the plaintiff No.1 to a half share in the property. This essentially is the basis of the decree passed in favour of the plaintiffs in the suit. The same has been put to challenge by the first defendant in this appeal. 5. Interference by this Court in an appeal upon grant of special leave under Article 136 of the Constitution of India where consistent views have been taken by three courts is a rare event. However, we are left with no doubt in the mind that the present is one such occasion. Under Section 197 of the Baroda Hindu Nibandh 1937 the son and the widow of a deceased get inheritance/succession as co-sharer. The concept of co-sharer is akin to one of co-owner which vests in both an equal right to the same property. Both the co-sharers being holders of equal share to the same property, apportionment thereof and division of the property can only be by means of a partition. The right to seek such a partition, naturally, will be in one of the two co-sharers. The first plaintiff (Dahiben) being a daughter who does not have a right of inheritance under the Baroda Hindu Nibandh 1937 will not be a person entitled to seek a partition of the property. It is the mother/widow of the original owner i.e. plaintiff No.2 (Bai Jethu) who would have been entitled to claim of a partition but the plaintiff No.2 (Bai Jethu) i.e. the widow passed away, it is stated, on 20th January, 1974 i.e. during the pendency of the suit. In the absence of the plaintiff No.2 (Bai Jethu), the first plaintiff (Dahiben) did not have a right to demand partition and the suit should have failed on that count alone, immediately following the death of the plaintiff No.2. The gift deed dated 28th April, 1972 could not have vested in the plaintiff No.1 a right to claim partition inasmuch as the property being undivided the gift deed could not have been for an uncertain and undisclosed share of the property. In fact, when the gift deed was executed the share of the plaintiff No.2 was yet to be ascertained and apportioned. This is a lacuna in the decree passed by the three courts which has come to our notice at this stage. The same, therefore, will have to be cured by an appropriate interference with the decree passed in favour of the plaintiffs which we accordingly do. The decree passed by the courts below is accordingly set aside and the appeal is allowed. 6. At this stage we had put to Shri P.H. Parekh, learned Senior Counsel appearing for the appellant - defendant No.1 as to whether the said defendant would be willing to give some part of the property or equivalent value thereof to the plaintiff No.1 who is his sole surviving sister. Shri Parekh has interacted with the son of the appellant - first defendant who is present in Court. The suggestion of the Court put through Shri Parekh has been responded to by the son of the appellant - first defendant with great magnanimity who has agreed that if the property is to be hypothetically partitioned half share thereof should come to the deceased plaintiff No.2. The representative of the appellant has agreed that this part of the suit property may be equally divided amongst the legal heirs of the three deceased sisters and the respondent - plaintiff No.1 in equal proportions. Apart from the above, it has also been agreed that there is a house property which may also be divided amongst the aforesaid persons i.e. legal representatives of the three sisters who are no more and the respondent - plaintiff No.1. ### Response: 1

M/S DEEP INDUSTRIES LTD Vs. OIL AND NATURAL GAS CORPORATION LTD

into and deciding the Section 17 application. In point of fact, the Arbitral Tribunal was well within its jurisdiction in referring to the contract and the ban order and then applying the law and finally issuing the stay order. Even if it be accepted that the principle laid down by Section 41(e) of the Specific Relief Act was infracted, in that damages could have been granted, as a result of which an injunction ought not to have been issued, is a mere error of law and not an error of jurisdiction, much less an error of inherent jurisdiction going to the root of the matter. Therefore, even otherwise, the High Court judgment cannot be sustained and is set aside. 17. We reiterate that the policy of the Act is speedy disposal of arbitration cases. The Arbitration Act is a special act and a self contained code dealing with arbitration. This Court in Fuerst Day Lawson Limited (supra), has specifically held as follows: 89. It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan v. Andha Bank Ltd., (2004) 11 SCC 672 was held to be a self-contained code. Now, if the Arbitration Act, 1940 was held to be a self-contained code, on matters pertaining to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lulcid expression of Tulzapurkar,J., that it carries with it a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded. What becomes clear is that had the High Court itself disposed of the first appeal in the present case, no article 227 petition could possibly lie - all that could perhaps have been done was to file an LPA before a Division Bench of the same High Court. This, as we have seen, has specifically been interdicted by Fuerst Day Lawson Limited (supra). Merely because, on the facts of this case, the first appeal was disposed of by a court subordinate to the High Court, an article 227 petition ought not to have been entertained. 18. Mr. Rohatgi is also correct in pointing out that the legislative policy qua the general revisional jurisdiction that is contained by the amendments made to Section 115 C.P.C. should also be kept in mind when High Courts dispose of petitions filed under under article 227. The legislative policy is that no revision lies if an alternative remedy of appeal is available. Further, even when a revision does lie, it lies only against a final disposal of the entire matter and not against interlocutory orders. These amendments were considered in Tek Singh vs. Shashi Verma and Another, 2019 SCC OnLine SC 168 in which this Court adverted to these amendments and then stated: 7. A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders. 8. Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Company Private Ltd., New Delhi v. Sarup Singh and Others (1970) 2 SCR 368 this Court held: The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words illegally and with material irregularity as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal. at Pg.373

1[ds]11. Given the aforesaid statutory provision and given the fact that the 1996 Act repealed three previous enactments in order that there be speedy disposal of all matters covered by it, it is clear that the statutory policy of the Act is that not only are time limits set down for disposal of the arbitral proceedings themselves but time limits have also been set down for Section 34 references to be decided. Equally, in Union of India vs. M/s Varindera Const. Ltd., dated 17.09.2018, disposing of SLP (C) No. 23155/2013, this Court has imposed the self-same limitation on first appeals under Section 37 so that there be a timely resolution of all matters which are covered by arbitration awards12. Most significant of all is the non-obstante clause contained in Section 5 which states that notwithstanding anything contained in any other law, in matters that arise under Part I of the Arbitration Act, no judicial authority shall intervene except where so provided in this Part. Section 37 grants a constricted right of first appeal against certain judgments and orders and no others. Further, the statutory mandate also provides for one bite at the cherry, and interdicts a second appeal being filed (See Section 37(2) of the Act)13. This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provision which remains untouched by the non-obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdictionIn SBP & Co. (supra), this Court while considering interference with an order passed by an arbitral tribunal under Article 226/227 of the Constitution laid down as follows:-45. It is seen that some High Courts have proceeded on the basis that any order passed by an arbitral tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution. We see no warrant for such an approach. Section 37 makes certain orders of the arbitral tribunal appealable. Under Section 34, the aggrieved party has an avenue for ventilating his grievances against the award including any in-between orders that might have been passed by the arbitral tribunal acting under Section 16 of the Act. The party aggrieved by any order of the arbitral tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The arbitral tribunal is, after all, a creature of a contract between the parties, the arbitration agreement, even though, if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the arbitral tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the arbitral tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution. Such an intervention by the High Courts is not permissible46. The object of minimizing judicial intervention while the matter is in the process of being arbitrated upon, will certainly be defeated if the High Court could be approached under Article 227 or under Article 226 of the Constitution against every order made by the arbitral tribunal. Therefore, it is necessary to indicate that once the arbitration has commenced in the arbitral tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them under Section 37 of the Act even at an earlier stageWhile the learned Additional Solicitor General is correct in stating that this statement of the law does not directly apply on the facts of the present case, yet it is important to notice that the seven-Judge Bench has referred to the object of the Act being that of minimizing judicial intervention and that this important object should always be kept in the forefront when a 227 petition is being disposed of against proceedings that are decided under the Act15. It is true that in Punjab Agro Industries Corporation Limited (supra), this Court distinguished SBP & Co. (supra) stating that it will not apply to a case of a non- appointment of an Arbitrator. This Court held:9. We have already noticed that though the order under Section 11(4) is a judicial order, having regard to Section 11(7) relating to finality of such orders and the absence of any provision for appeal, the order of the Civil Judge was open to challenge in a writ petition under Article 227 of the Constitution. The decision in SBP & Co. does not bar such a writ petition. The observations of this Court in SBP & Co. that against an order under Section 11 of the Act, only an appeal under Article 136 of the Constitution would lie, is with reference to the orders made by the Chief Justice of a High Court or by the designate Judge of that High Court. The said observations do not apply to a subordinate court functioning as designate of the Chief JusticeWhat is important to note is that the observations of this Court in this judgment were for the reason that no provision for appeal had been given by statute against the orders passed under Section 11, which is why the High Courts supervisory jurisdiction should first be invoked before coming to this Court under Article 136. Given the facts of the present case, this case is equally distinguishable for the reason that in this case the 227 jurisdiction has been exercised by the High Court only after a first appeal was dismissed under Section 37 of the Act16. One other feature of this case is of some importance. As stated herein above, on 09.05.2018, a Section 16 application had been dismissed by the learned Arbitrator in which substantially the same contention which found favour with the High Court was taken up. The drill of Section 16 of the Act is that where a Section 16 application is dismissed, no appeal is provided and the challenge to the Section 16 application being dismissed must await the passing of a final award at which stage it may be raised under Section 34. What the High Court has done in the present case is to invert this statutory scheme by going into exactly the same matter as was gone into by the arbitrator in the Section 16 application, and then decided that the two year ban was no part of the notice for arbitration issued on 02.11.2017, a finding which is directly contrary to the finding of the learned Arbitrator dismissing the Section 16 application. For this reason alone, the judgment under appeal needs to be set aside. Even otherwise, as has been correctly pointed out by Mr. Rohatgi, the judgment under appeal goes into the merits of the case and states that the action of putting the Contractor and his Directors on holiday is not a consequence of the termination of the agreement. This is wholly incorrect as it is only because of the termination that the show cause notice dated 18.10.2017 proposing to impose a two year ban was sent. Even otherwise, entering into the general thicket of disputes between the parties does not behove a court exercising jurisdiction under Article 227, where only jurisdictional errors can be corrected. Therefore to state that the ban order was passed under a General Contract Manual and not Clause 18 of the Agreement, besides being incorrect, would also be incorrect for the reason that the General Contract Manual does not mean that such order was issued as an administrative order invoking the executive power, but was only as an order which emanated from the contract itself. Further to state that serious disputes as to jurisdiction seem to have cropped up is not the same thing as saying that the Arbitral Tribunal lacked inherent jurisdiction in going into and deciding the Section 17 application. In point of fact, the Arbitral Tribunal was well within its jurisdiction in referring to the contract and the ban order and then applying the law and finally issuing the stay order. Even if it be accepted that the principle laid down by Section 41(e) of the Specific Relief Act was infracted, in that damages could have been granted, as a result of which an injunction ought not to have been issued, is a mere error of law and not an error of jurisdiction, much less an error of inherent jurisdiction going to the root of the matter. Therefore, even otherwise, the High Court judgment cannot be sustained and is set asideWhat becomes clear is that had the High Court itself disposed of the first appeal in the present case, no article 227 petition could possibly lie - all that could perhaps have been done was to file an LPA before a Division Bench of the same High Court. This, as we have seen, has specifically been interdicted by Fuerst Day Lawson Limited (supra). Merely because, on the facts of this case, the first appeal was disposed of by a court subordinate to the High Court, an article 227 petition ought not to have been entertained18. Mr. Rohatgi is also correct in pointing out that the legislative policy qua the general revisional jurisdiction that is contained by the amendments made to Section 115 C.P.C. should also be kept in mind when High Courts dispose of petitions filed under under article 227. The legislative policy is that no revision lies if an alternative remedy of appeal is available. Further, even when a revision does lie, it lies only against a final disposal of the entire matter and not against interlocutory ordersThese amendments were considered in Tek Singh vs. Shashi Verma and Another, 2019 SCC OnLine SC 168 in which this Court adverted to these amendments and then stated:7. A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders8. Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Company Private Ltd., New Delhi v. Sarup Singh and Others (1970) 2 SCR 368 this Court held:The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words illegally and with material irregularity as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal. at Pg.373

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: into and deciding the Section 17 application. In point of fact, the Arbitral Tribunal was well within its jurisdiction in referring to the contract and the ban order and then applying the law and finally issuing the stay order. Even if it be accepted that the principle laid down by Section 41(e) of the Specific Relief Act was infracted, in that damages could have been granted, as a result of which an injunction ought not to have been issued, is a mere error of law and not an error of jurisdiction, much less an error of inherent jurisdiction going to the root of the matter. Therefore, even otherwise, the High Court judgment cannot be sustained and is set aside. 17. We reiterate that the policy of the Act is speedy disposal of arbitration cases. The Arbitration Act is a special act and a self contained code dealing with arbitration. This Court in Fuerst Day Lawson Limited (supra), has specifically held as follows: 89. It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan v. Andha Bank Ltd., (2004) 11 SCC 672 was held to be a self-contained code. Now, if the Arbitration Act, 1940 was held to be a self-contained code, on matters pertaining to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lulcid expression of Tulzapurkar,J., that it carries with it a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded. What becomes clear is that had the High Court itself disposed of the first appeal in the present case, no article 227 petition could possibly lie - all that could perhaps have been done was to file an LPA before a Division Bench of the same High Court. This, as we have seen, has specifically been interdicted by Fuerst Day Lawson Limited (supra). Merely because, on the facts of this case, the first appeal was disposed of by a court subordinate to the High Court, an article 227 petition ought not to have been entertained. 18. Mr. Rohatgi is also correct in pointing out that the legislative policy qua the general revisional jurisdiction that is contained by the amendments made to Section 115 C.P.C. should also be kept in mind when High Courts dispose of petitions filed under under article 227. The legislative policy is that no revision lies if an alternative remedy of appeal is available. Further, even when a revision does lie, it lies only against a final disposal of the entire matter and not against interlocutory orders. These amendments were considered in Tek Singh vs. Shashi Verma and Another, 2019 SCC OnLine SC 168 in which this Court adverted to these amendments and then stated: 7. A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders. 8. Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Company Private Ltd., New Delhi v. Sarup Singh and Others (1970) 2 SCR 368 this Court held: The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words illegally and with material irregularity as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal. at Pg.373 ### Response: 1

Dasin Bai @ Shanti Bai Vs. State Of Chhattisgarh

evidence. It therefore emerges that both the dying declarations are recorded by independent witnesses and the same give a true version of the occurrence as stated by the deceased. The dying declarations are themselves sufficient to hold the appellant guilty. The High Court has rightly interfered in an appeal against acquittal. The appeal is accordingly dismissed. 12. For the factual situation before us, we find that there is consistency between the statements of Santosh Yadav (PW1), and Radheyshyam (PW3), who were present when Raju gave the oral dying declaration in the hospital, before he succumbed to the injuries. There is consistency in their statements, both stated that they reached the house of Dasin Bai on hearing the voice save-save. 13. Further, the appellant has alleged the dying declarations to be impossible to give as the deceased was not in a position to do so, as he had suffered burn injuries. However, this Court has rightly taken the following view in a situation as contended by the learned counsel for the respondent in Pothakamuri Srinivasulu v. State of A.P.,(2002) 6 SCC 399 , where this Court observed: The learned Counsel for the appellant submitted that for several reasons the dying declaration cannot be believed. She submitted that looking to the nature of injuries suffered by the deceased possibly she could not have spoken and must become unconscious instantaneously. However no such suggestion has been made to any of the witnesses including the two doctors who respectively conducted the medico-legal examination of the victim. On the contrary the three eye-witnesses have positively stated that the deceased was speaking when they had met soon after the incident. the victim had died two days after the incident. We cannot in the face of this positive evidence just assume that the injured must have become unconscious and speechless because of the injuries and discard on such assumption the dying declaration deposed to by the independent witnesses corroborated by the promptly lodged FIR. 14. Applying the ratio of the above mentioned cases to the present case, we find that the counsel for the appellant has argued on the same lines. Merely because the deceased suffered 70 per cent burns, this does not raise an assumption that he could not have given the oral dying declaration. We are of the opinion that the High Court was right in believing the oral dying declaration of the deceased as it did not suffer from any infirmity. Therefore, the contention of the respondent that the deceased could not give a dying declaration is devoid of merit. 15. We are of the opinion that present case also involves appreciation of circumstantial evidence and application of Section 106 of the Evidence Act, which unambiguously lays down the law with respect to any fact especially within the knowledge of a person. In State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 , it was observed by this Court in respect of Section 106, that when there is any fact especially within the knowledge of a person, the burden of proving that fact is upon him. This Court held as follows: The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of the facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. 16. Further, while dealing with issue of cases resting on circumstantial evidence, where the presence of special knowledge is with the accused, this Court has reiterated time and again that in a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him by Section 106, that itself provides an additional link in the chain of circumstances proved against him. 17. The same observation has again been given in Babu alias Balasubramaniam & Anr. v. State of Tamil Nadu, (2013) 8 SCC 60 , that appellant-1 could have by virtue of his special knowledge regarding the said facts offered an explanation from which a different inference could have been drawn. Since he has not done so, this circumstance adds up to other circumstances which substantiate the prosecution case. 18. The appellant/accused in her statement, recorded under Section 313 of Criminal Procedure Code, has not given any explanation as to how the deceased was burnt and she even admits to be unaware of the name of the deceased. This is highly improbable and cast doubt on the innocence of the accused. She is unable to discharge the burden cast upon her by Section 106 of the Evidence Act, as it was within her special knowledge as to how the deceased came into the premises of her house. 19. The ground of defense taken by the appellant, that she did not have any motive to kill the deceased, is ill founded and does not break the chain of circumstances. Therefore, when facts are clear it is not necessary to have proof of motive or illwill to sustain conviction. (See Mulakh Raj & Ors. v. Staish Kumar & Ors., (1992) 3 SCC 43. 20. Further, with regard to the aspect of the witnesses, PW-1 and PW-3, who recorded the dying declaration, were neighbours of the accused and hence the Trial Court correctly held that they are not interested witnesses. The findings of the Trial Court also bring to light the fact that they had no animosity with the appellant, and were visiting her house only on the fateful night.

0[ds]12. For the factual situation before us, we find that there is consistency between the statements of Santosh Yadav (PW1), and Radheyshyam (PW3), who were present when Raju gave the oral dying declaration in the hospital, before he succumbed to the injuries. There is consistency in their statements, both stated that they reached the house of Dasin Bai on hearing the voice save-save13. Further, the appellant has alleged the dying declarations to be impossible to give as the deceased was not in a position to do so, as he had suffered burn injuries. However, this Court has rightly taken the following view in a situation as contended by the learned counsel for the respondent in Pothakamuri Srinivasulu v. State of A.P.,(2002) 6 SCC 399 ,14. Applying the ratio of the above mentioned cases to the present case, we find that the counsel for the appellant has argued on the same lines. Merely because the deceased suffered 70 per cent burns, this does not raise an assumption that he could not have given the oral dying declaration. We are of the opinion that the High Court was right in believing the oral dying declaration of the deceased as it did not suffer from any infirmity. Therefore, the contention of the respondent that the deceased could not give a dying declaration is devoid of merit15. We are of the opinion that present case also involves appreciation of circumstantial evidence and application of Section 106 of the Evidence Act, which unambiguously lays down the law with respect to any fact especially within the knowledge of a person16. Further, while dealing with issue of cases resting on circumstantial evidence, where the presence of special knowledge is with the accused, this Court has reiterated time and again that in a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him by Section 106, that itself provides an additional link in the chain of circumstances proved against him20. Further, with regard to the aspect of the witnesses, PW-1 and PW-3, who recorded the dying declaration, were neighbours of the accused and hence the Trial Court correctly held that they are not interested witnesses. The findings of the Trial Court also bring to light the fact that they had no animosity with the appellant, and were visiting her house only on the fateful night.

### 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: evidence. It therefore emerges that both the dying declarations are recorded by independent witnesses and the same give a true version of the occurrence as stated by the deceased. The dying declarations are themselves sufficient to hold the appellant guilty. The High Court has rightly interfered in an appeal against acquittal. The appeal is accordingly dismissed. 12. For the factual situation before us, we find that there is consistency between the statements of Santosh Yadav (PW1), and Radheyshyam (PW3), who were present when Raju gave the oral dying declaration in the hospital, before he succumbed to the injuries. There is consistency in their statements, both stated that they reached the house of Dasin Bai on hearing the voice save-save. 13. Further, the appellant has alleged the dying declarations to be impossible to give as the deceased was not in a position to do so, as he had suffered burn injuries. However, this Court has rightly taken the following view in a situation as contended by the learned counsel for the respondent in Pothakamuri Srinivasulu v. State of A.P.,(2002) 6 SCC 399 , where this Court observed: The learned Counsel for the appellant submitted that for several reasons the dying declaration cannot be believed. She submitted that looking to the nature of injuries suffered by the deceased possibly she could not have spoken and must become unconscious instantaneously. However no such suggestion has been made to any of the witnesses including the two doctors who respectively conducted the medico-legal examination of the victim. On the contrary the three eye-witnesses have positively stated that the deceased was speaking when they had met soon after the incident. the victim had died two days after the incident. We cannot in the face of this positive evidence just assume that the injured must have become unconscious and speechless because of the injuries and discard on such assumption the dying declaration deposed to by the independent witnesses corroborated by the promptly lodged FIR. 14. Applying the ratio of the above mentioned cases to the present case, we find that the counsel for the appellant has argued on the same lines. Merely because the deceased suffered 70 per cent burns, this does not raise an assumption that he could not have given the oral dying declaration. We are of the opinion that the High Court was right in believing the oral dying declaration of the deceased as it did not suffer from any infirmity. Therefore, the contention of the respondent that the deceased could not give a dying declaration is devoid of merit. 15. We are of the opinion that present case also involves appreciation of circumstantial evidence and application of Section 106 of the Evidence Act, which unambiguously lays down the law with respect to any fact especially within the knowledge of a person. In State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 , it was observed by this Court in respect of Section 106, that when there is any fact especially within the knowledge of a person, the burden of proving that fact is upon him. This Court held as follows: The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of the facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. 16. Further, while dealing with issue of cases resting on circumstantial evidence, where the presence of special knowledge is with the accused, this Court has reiterated time and again that in a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him by Section 106, that itself provides an additional link in the chain of circumstances proved against him. 17. The same observation has again been given in Babu alias Balasubramaniam & Anr. v. State of Tamil Nadu, (2013) 8 SCC 60 , that appellant-1 could have by virtue of his special knowledge regarding the said facts offered an explanation from which a different inference could have been drawn. Since he has not done so, this circumstance adds up to other circumstances which substantiate the prosecution case. 18. The appellant/accused in her statement, recorded under Section 313 of Criminal Procedure Code, has not given any explanation as to how the deceased was burnt and she even admits to be unaware of the name of the deceased. This is highly improbable and cast doubt on the innocence of the accused. She is unable to discharge the burden cast upon her by Section 106 of the Evidence Act, as it was within her special knowledge as to how the deceased came into the premises of her house. 19. The ground of defense taken by the appellant, that she did not have any motive to kill the deceased, is ill founded and does not break the chain of circumstances. Therefore, when facts are clear it is not necessary to have proof of motive or illwill to sustain conviction. (See Mulakh Raj & Ors. v. Staish Kumar & Ors., (1992) 3 SCC 43. 20. Further, with regard to the aspect of the witnesses, PW-1 and PW-3, who recorded the dying declaration, were neighbours of the accused and hence the Trial Court correctly held that they are not interested witnesses. The findings of the Trial Court also bring to light the fact that they had no animosity with the appellant, and were visiting her house only on the fateful night. ### Response: 0

Municipal Corporation Of City Of Hubli Vs. Subha Rao Hanumatharao Prayag & Ors

levy of tax for an official year and that the tax should be legally leviable at any time after the close of the official year. There is, in our opinion, sufficient indication in the various provisions of the Act to show that the authentication of the assessment list, in order to be valid and effective, must be made within the official year, though the tax so levied may be collected and recovered even after the expiry of the official year.We may point out that the Karnataka High Court is not alone in taking this view the present case. This view has been consistently taken by the Bombay High Court in a series of decisions over the years and it has also been followed by the Gujarat High Court. When we find that three High Courts having jurisdiction over the territories in which the Act is in force have all taken this view over a course of years, we do not think we would be justified in departing from it, merely on the ground that a different view is possible. This Court is ordinarily loathe to interfere with the interpretation of a State statute which has prevailed in the State for a long number of years and which the State Legislature has chosen not to disturb by legislative amendment. As a matter of fact, we find that, in the present case, the Bombay Legislature accepted this interpretation of ss. 78 to 81 and gave legislative recognition to it by introducing s. 84A by Bombay Act 53 of 19 54. That section provides that where in any year a new assessment list is prepared, or a list is revised, or the valuation and assessment contained in the list for the year immediately preceding is adopted with or without alteration, such new, revised or adopted assessment list shall be authenticated in the manner provided by section 81 at any time not later than the thirty-first day of July of the official year to which the list relates, and if it is not so authenticated, then the State Government shall appoint such person or persons as it thinks fit to prepare, revise or adopt and authenticate the assessment list, and thereupon such person or persons shall duly authenticate such list at any time before the last day of the official year to which such list relates, and sections 78 to 81 or section 84 shall, as far as may be, apply to the preparation, revision or adoption of the list, as the case may be, by the person or persons appointed by the State Government. It is clear from this provision that the Legislature not only did not amend the Act for the purpose of removing the time limit of the official year or enlarging such time limit, but on the contrary, made the time limit more stringent by providing that the authentication shall be made by the Municipal Borough not later than 31st July of the official year and if the authentication is not made within that time, the State Government shall be entitled to appoint a person fo r the purpose of authenticating the assessment list and the authentication by such person shall not. in any event, be later than the last day of the official year. We are, therefore, of the view that the assessment list, in order to be effective in levying the tax, not be authenticated before the expiry of the official year and if it is not, the assessment list would be void and inoperative and not give rise to liability in the rate-payers to pay tax.That takes us to the second contention urged on behalf of the Municipal Borough based on s. 206A. That section provides inter alia that no suit shall lie against a municipality or against any officer or servant of any municipality in respect of any act done in pursuance or execution or intended execution of the Act, or in respect of any alleged neglect or default in the execution of the Act, unless it is commenced within six months next after the accrual of the cause of action. The argument of the Municipal Borough was that the cause of action for the suit arose in favour of the respondents and other rate-payers on 24th July, 1952 when the assessment list was authenticated and since the suit was not filed within six months from that d ate, it was barred by limitation under s.206A. This argument is plainly unsustainable. The assessment list being authenticated on 24th July, 1952, after the expiry of the official year 1951-52, was void and inoperative and the respondents and other rate-payers were entitled to ignore it as a nullity. It is only when the Municipal Borough sought to recover the amount of tax from them on the strength of the assessment list, that it became necessary for them to challenge the validity of the assessment list with a view to resisting the demand of the Municipal Borough. Then and then only could a cause of action be said to have accrued to them which they were required to enforce within a period of six months. Now, in the present case, there is no material to show as to when notices of demand requiring the respondents and other rate-payers to pay the amount of tax were issued by the Municipal Borough or which rate-payers paid the amount of tax and when. It is not possible to say, in the absence of such material, as to when the cause of action for filing the suit arose to the respondents and other rate- payers and whether it arose within six months before the filing of the suit or at a point of time earlier than that. The Municipal Borough cannot, in the circumstances, be held to have established that the suit was not commenced by the respondents and other rate-payers within six months after the accrual of the cause of action and the plea of limitation based on s. 206A must fail.

0[ds]But, apart from this consideration, there is inherent evidence in the sections themselves which shows that the authentication was intended by the legislature to be a step which must be taken before the close of the official year. Section 84 provides that it shall not be necessary to prepare a new assessment list every year but, subject to the conditions that every part of the assessment list shall be completely revised not less than once in every four years, the Chief Officer may adopt the valuation and assessment contained in the list for any year, with such alterations as may be deemed necessary, for the year immediately following. This provision postulates that there would be an assessment list for each official year at the close of that official year, so that the valuation and assessment contained in it can be adopted by the Chief Officer for the immediately following year. Now clearly the assessment list which can be adopted for the immediately following year is the authenticated assessment list and it would, therefore, seem that the legislative assumption underlying this provision is that in respect or each official year, there would be an authenticated assessment list before the close of that official year, so that the valuation and assessment contained in it can be adopted by the Chief Officer for the immediately following year. Otherwise, it would not be possible for the Chief Officer to adopt the valuation and assessment of the preceding official year and he would have to prepare a new provisional assessment list every time when the assessment list for the preceding year is not finalised and authenticated and this might lead to the rat her startling result of there being several provisional assessment lists for different official years in the process of finalisation at the same time. We should be slow to accept an interpretation which might lead to such a strange consequence.Then again considerable light on this question is thrown by the provision enacted in s. 82. It is a well settled rule of interpretation that the Court is "entitled and indeed bound, when construing the terms of any provision found in a statute, to consider any other parts of the Act which throw light on the intention of the legislature, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act." The statute must be read as a whole and every provision in the statute must be construed with reference to the context and other clauses in the statute so as, as far as possible, to make a consistent enactment of the whole statute. Obviously, therefore, section 78 to 81 must be so construed as to harmonise with s. 82. They must be read together so as to form part of a connected whole. Section 82, sub-s. (1) provides for making of an amendment in the assessment list by insertion or alteration of an entry in certain events after hearing objections which may be made by any person interested in opposing the amendment. Sub-section (3) of s. 82 makes the amendment effective from "the earliest day in the current official year on which the circumstances justifying the entry or alteration existed." The expression current official year in the context in which it occurs in s. 82, sub-s. (3) clearly signifies the earliest day in the official year which is current when the amendment in the assessment list takes place and that expression refers only to the official year which is running at the time when the amendment is made by insertion or alteration of an entry under sub-s. (1) of s. 82. It would, therefore, seem clear , on a combined reading of sub-ss. (1) and (3) of s. 82, that an amendment, in order to be effective in levying tax for an official year, must be made during the currency of the official year. That is now well settled as a result of several decisions of the Bombay High Court culminating in the Full Bench decision in Sholapur Municipal Corporation v. Ramchandra (supra) and we do not see any reason to take a different view. Now the scheme of ss. 78 to 81 is identical with that of s. 82 and in both cases what is contemplated first is a proposal to which objections are invited and after the objections are investigated and disposed of, the assessment list in the one case and the altered entry in the other are authenticated giving rise to liability in the rate-payer. It must follow a fortiori that if an alteration in the assessment list, in order to fasten liability on the rate-payer, is required to be made during the currency of the official year, equally, on a parity of reasoning, the assessment list, in order to give rise to liability in the rate-payer, must also be authenticated before the expiry of the official year. Moreover, it is difficult to behave that the legislature did not intend that there should be any time limit in regard to the levy of tax for an official year and that the tax should be legally leviable at any time after the close of the official year. There is, in our opinion, sufficient indication in the various provisions of the Act to show that the authentication of the assessment list, in order to be valid and effective, must be made within the official year, though the tax so levied may be collected and recovered even after the expiry of the official year.We may point out that the Karnataka High Court is not alone in taking this view the present case. This view has been consistently taken by the Bombay High Court in a series of decisions over the years and it has also been followed by the Gujarat High Court. When we find that three High Courts having jurisdiction over the territories in which the Act is in force have all taken this view over a course of years, we do not think we would be justified in departing from it, merely on the ground that a different view is possible. This Court is ordinarily loathe to interfere with the interpretation of a State statute which has prevailed in the State for a long number of years and which the State Legislature has chosen not to disturb by legislative amendment. As a matter of fact, we find that, in the present case, the Bombay Legislature accepted this interpretation of ss. 78 to 81 and gave legislative recognition to it by introducing s. 84A by Bombay Act 53 of 19 54. That section provides that where in any year a new assessment list is prepared, or a list is revised, or the valuation and assessment contained in the list for the year immediately preceding is adopted with or without alteration, such new, revised or adopted assessment list shall be authenticated in the manner provided by section 81 at any time not later than the thirty-first day of July of the official year to which the list relates, and if it is not so authenticated, then the State Government shall appoint such person or persons as it thinks fit to prepare, revise or adopt and authenticate the assessment list, and thereupon such person or persons shall duly authenticate such list at any time before the last day of the official year to which such list relates, and sections 78 to 81 or section 84 shall, as far as may be, apply to the preparation, revision or adoption of the list, as the case may be, by the person or persons appointed by the State Government. It is clear from this provision that the Legislature not only did not amend the Act for the purpose of removing the time limit of the official year or enlarging such time limit, but on the contrary, made the time limit more stringent by providing that the authentication shall be made by the Municipal Borough not later than 31st July of the official year and if the authentication is not made within that time, the State Government shall be entitled to appoint a person fo r the purpose of authenticating the assessment list and the authentication by such person shall not. in any event, be later than the last day of the official year. We are, therefore, of the view that the assessment list, in order to be effective in levying the tax, not be authenticated before the expiry of the official year and if it is not, the assessment list would be void and inoperative and not give rise to liability in the rate-payers to pay tax.That takes us to the second contention urged on behalf of the Municipal Borough based on s. 206A. That section provides inter alia that no suit shall lie against a municipality or against any officer or servant of any municipality in respect of any act done in pursuance or execution or intended execution of the Act, or in respect of any alleged neglect or default in the execution of the Act, unless it is commenced within six months next after the accrual of the cause of action. The argument of the Municipal Borough was that the cause of action for the suit arose in favour of the respondents and other rate-payers on 24th July, 1952 when the assessment list was authenticated and since the suit was not filed within six months from that d ate, it was barred by limitation under s.206A. This argument is plainly unsustainable. The assessment list being authenticated on 24th July, 1952, after the expiry of the official year 1951-52, was void and inoperative and the respondents and other rate-payers were entitled to ignore it as a nullity. It is only when the Municipal Borough sought to recover the amount of tax from them on the strength of the assessment list, that it became necessary for them to challenge the validity of the assessment list with a view to resisting the demand of the Municipal Borough. Then and then only could a cause of action be said to have accrued to them which they were required to enforce within a period of six months. Now, in the present case, there is no material to show as to when notices of demand requiring the respondents and other rate-payers to pay the amount of tax were issued by the Municipal Borough or which rate-payers paid the amount of tax and when. It is not possible to say, in the absence of such material, as to when the cause of action for filing the suit arose to the respondents and other rate- payers and whether it arose within six months before the filing of the suit or at a point of time earlier than that. The Municipal Borough cannot, in the circumstances, be held to have established that the suit was not commenced by the respondents and other rate-payers within six months after the accrual of the cause of action and the plea of limitation based on s. 206A must fail.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: levy of tax for an official year and that the tax should be legally leviable at any time after the close of the official year. There is, in our opinion, sufficient indication in the various provisions of the Act to show that the authentication of the assessment list, in order to be valid and effective, must be made within the official year, though the tax so levied may be collected and recovered even after the expiry of the official year.We may point out that the Karnataka High Court is not alone in taking this view the present case. This view has been consistently taken by the Bombay High Court in a series of decisions over the years and it has also been followed by the Gujarat High Court. When we find that three High Courts having jurisdiction over the territories in which the Act is in force have all taken this view over a course of years, we do not think we would be justified in departing from it, merely on the ground that a different view is possible. This Court is ordinarily loathe to interfere with the interpretation of a State statute which has prevailed in the State for a long number of years and which the State Legislature has chosen not to disturb by legislative amendment. As a matter of fact, we find that, in the present case, the Bombay Legislature accepted this interpretation of ss. 78 to 81 and gave legislative recognition to it by introducing s. 84A by Bombay Act 53 of 19 54. That section provides that where in any year a new assessment list is prepared, or a list is revised, or the valuation and assessment contained in the list for the year immediately preceding is adopted with or without alteration, such new, revised or adopted assessment list shall be authenticated in the manner provided by section 81 at any time not later than the thirty-first day of July of the official year to which the list relates, and if it is not so authenticated, then the State Government shall appoint such person or persons as it thinks fit to prepare, revise or adopt and authenticate the assessment list, and thereupon such person or persons shall duly authenticate such list at any time before the last day of the official year to which such list relates, and sections 78 to 81 or section 84 shall, as far as may be, apply to the preparation, revision or adoption of the list, as the case may be, by the person or persons appointed by the State Government. It is clear from this provision that the Legislature not only did not amend the Act for the purpose of removing the time limit of the official year or enlarging such time limit, but on the contrary, made the time limit more stringent by providing that the authentication shall be made by the Municipal Borough not later than 31st July of the official year and if the authentication is not made within that time, the State Government shall be entitled to appoint a person fo r the purpose of authenticating the assessment list and the authentication by such person shall not. in any event, be later than the last day of the official year. We are, therefore, of the view that the assessment list, in order to be effective in levying the tax, not be authenticated before the expiry of the official year and if it is not, the assessment list would be void and inoperative and not give rise to liability in the rate-payers to pay tax.That takes us to the second contention urged on behalf of the Municipal Borough based on s. 206A. That section provides inter alia that no suit shall lie against a municipality or against any officer or servant of any municipality in respect of any act done in pursuance or execution or intended execution of the Act, or in respect of any alleged neglect or default in the execution of the Act, unless it is commenced within six months next after the accrual of the cause of action. The argument of the Municipal Borough was that the cause of action for the suit arose in favour of the respondents and other rate-payers on 24th July, 1952 when the assessment list was authenticated and since the suit was not filed within six months from that d ate, it was barred by limitation under s.206A. This argument is plainly unsustainable. The assessment list being authenticated on 24th July, 1952, after the expiry of the official year 1951-52, was void and inoperative and the respondents and other rate-payers were entitled to ignore it as a nullity. It is only when the Municipal Borough sought to recover the amount of tax from them on the strength of the assessment list, that it became necessary for them to challenge the validity of the assessment list with a view to resisting the demand of the Municipal Borough. Then and then only could a cause of action be said to have accrued to them which they were required to enforce within a period of six months. Now, in the present case, there is no material to show as to when notices of demand requiring the respondents and other rate-payers to pay the amount of tax were issued by the Municipal Borough or which rate-payers paid the amount of tax and when. It is not possible to say, in the absence of such material, as to when the cause of action for filing the suit arose to the respondents and other rate- payers and whether it arose within six months before the filing of the suit or at a point of time earlier than that. The Municipal Borough cannot, in the circumstances, be held to have established that the suit was not commenced by the respondents and other rate-payers within six months after the accrual of the cause of action and the plea of limitation based on s. 206A must fail. ### Response: 0

Abdul Aziz Aminudin Vs. State Of Maharashtra

therefore of opinion that the provision in clause 5 of the Order empowering the licensing authority to attach a condition to the effect that the goods covered by the licence shall not be disposed of except in the manner prescribed by the licensing authority is a valid provision which comes within the powers conferred by Section 3 of the Act on the Central Government.12. In support of the second contention that the Order does not provide for imposing the condition that the imported goods be not sold, reliance is placed on the decision in East India Commercial Co. v. Collector of Customs - 1983 (13) E.L.T. 1342 (S.C.) = (1963) 3 SCR 338. In that case, a condition was imposed in the licence prohibiting the importer from selling the imported goods. Sub-clause (1) of clause (a) of Notification No. 2/ITC/48, dated March 6, 1948, provided for imposing a condition in the licence to the effect that the importer shall not dispose of or otherwise deal with the goods without the written permission of the licensing authority or any person duly authorised. Sub-clause (v) of clause (a) of the Notification provided :"that such other conditions may be imposed which the licensing authority considers to be expedient from the administrative point of view and which are not inconsistent with the provisions of the said Act."The actual condition imposed, however, did not fall under sub-clause (1) of clause (a) and was sought to be supported by relying on sub-clause (v). This Court held that under that clause a licensing authority was competent to impose only such condition as may be expedient from the administrative point of view. This Court further held that prohibiting an importer from disposing of the goods imported affects the rights of that person and therefore such a condition cannot be prescribed in the licence in the absence of a rule permitting that to be done. In the case before us, the licence has been issued under the Order of 1955. The language of sub-clause (2) of clause 5 of that order is wide and permits the imposition of a condition which was outside sub-clause (v) of clause (a) of the order of 1948. Sub-clause (4) of clause 5 further makes it obligatory upon the licensee to comply with all the conditions imposed or deemed to be imposed under clause 5. We therefore do not agree with the second contention and hold that the licensing authority is competent under the Order to impose the condition that the imported goods be not sold to any person and thus to affect the ordinary rights of the importer.13. The third contention too has no force. Sub-clause (4) of clause 5 provides that the licensee shall comply with all conditions imposed or deemed to be imposed under that clause. The contravention of any condition of a licence thus amounts to the contravention of the provisions of sub-clause (4) of clause 5 of the Order and consequently to the contravention of the Order made under the Act. It follows that if the Association, the licensee, does not comply with the conditions of the licence about use of the goods to be imported, it contravenes the Order made under the Act and makes itself liable to punishment under Section 5 of the Act.14. The cases reported as C. T. A. Pillai v. H. P. Lohia - AIR 1957 Cal. 83 and East India Commercial Co. v. Collector of Customs - 1983 (13) E.L.T. 1342 (S.C.) = (1963) 3 SCR 338 , holding that the infringement of a condition in the licence not to sell goods imported to third parties is not an infringement of the Order, are not of help as they deal with the contravention of the conditions of the licence granted under orders dated July 1, 1943 and March 6, 1948 which did not contain a provision comparable with the provisions of sub-clause (4) of clause 5 of the Order of 1955.15. We accept the fourth contention that it is the Association, the licensee, which alone could contravene the condition of the licence and thus contravene the Order, but do not agree with fifth contention that it could not be guilty of the offence as it had not got actual possession of the imported goods. For contravening the condition of the licence, actual possession of the imported goods is not necessary. Further, the possession of Warden & Co., would be possession of the Association, as the former was its agent to import the goods.16. Re the sixth point that the appellant had no intention to commit the offence, the finding of the High Court is against the appellant. The High Court rightly held him guilty of the offence under Section 5 of the Act on a finding that he intentionally aided the Association, the licensee, in committing the offence under Section 5 of the Act, and thus abetted the contravention of the offence by the Association. The appellant, as Chairman, authorised Warden & Co., to dispose of the goods which the Association did not want to utilise on account of the decline in price. He thus aided intentionally the Association in disposing of the goods through Warden & Co., and therefore abetted the contravention of the condition of the licence to the effect that the goods imported would be utilised by the licensee alone and would not be sold to any other party.17. We do not consider that the sentence is severe in the circumstances of the case which indicate that from the very beginning the appellant, as Chairman of the Association, knew that the Association would not be able to utilise all the yarn to be imported under the licence applied for. The fact that Warden & Co., did pay over Rs. 5, 000/- to the Association indicates that the goods did fetch a price higher than the price paid for their importation. The case appears to be a deliberate case of securing import licence with a view to mis-apply the goods imported.

0[ds]This observation cannot be applicable to the interpretation of the content of the words import and export in the Act in the present case.It is clear therefore that the power conferred under Section 3(1) of the Act is not restricted merely to prohibiting or restricting imports at the point of entry but extends also to controlling the subsequent disposal of the goods imported. It is for the appropriate authority and not for the Courts to consider the policy, which must depend on diverse considerations, to be adopted in regard to the control of import of goods. The import of goods can be controlled in several ways. If it is desired that goods of a particular kind should not enter the country at all, the import of those goods can be totally prohibited. In case total prohibition is not desired, the goods could be allowed to come into the country in limited quantities. That would necessitate empowering persons to import under licences certain fixed quantities of the goods. The quantity of goods to be imported will have to be determined on consideration of the necessity for having those goods in the country and that again, would depend on the use to be made of those goods. It follows therefore that the persons licensed to import goods up to a certain quantity should be amenable to the orders of the licensing authority with respect to the way in which those goods are to be utilised. If the licensing authority has no such power, its control over the import cannot be effective. It may have considered it necessary to have goods imported for a particular purpose. If it cannot control their utilisation for that purpose, the imported goods, after import, can be diverted to different uses, defeating thereby the very purpose for which the import was allowed and power had been conferred on the Central Government to control imports. It is therefore not possible to restrict the scope of the provision about the control of import to the stage of importing of the goods at the frontiers of the country. Their content is much wider and extends to every stage at which the Government feels it necessary to see that the imported goods are properly utilised for the purpose for which their import was considered necessary in the interests of the country.11. We are therefore of opinion that the provision in clause 5 of the Order empowering the licensing authority to attach a condition to the effect that the goods covered by the licence shall not be disposed of except in the manner prescribed by the licensing authority is a valid provision which comes within the powers conferred by Section 3 of the Act on the Centralthe case before us, the licence has been issued under the Order of 1955. The language of sub-clause (2) of clause 5 of that order is wide and permits the imposition of a condition which was outside sub-clause (v) of clause (a) of the order of 1948. Sub-clause (4) of clause 5 further makes it obligatory upon the licensee to comply with all the conditions imposed or deemed to be imposed under clause 5. We therefore do not agree with the second contention and hold that the licensing authority is competent under the Order to impose the condition that the imported goods be not sold to any person and thus to affect the ordinary rights of the importer.13. The third contention too has no force. Sub-clause (4) of clause 5 provides that the licensee shall comply with all conditions imposed or deemed to be imposed under that clause. The contravention of any condition of a licence thus amounts to the contravention of the provisions of sub-clause (4) of clause 5 of the Order and consequently to the contravention of the Order made under the Act. It follows that if the Association, the licensee, does not comply with the conditions of the licence about use of the goods to be imported, it contravenes the Order made under the Act and makes itself liable to punishment under Section 5 of the Act.We accept the fourth contention that it is the Association, the licensee, which alone could contravene the condition of the licence and thus contravene the Order, but do not agree with fifth contention that it could not be guilty of the offence as it had not got actual possession of the imported goods. For contravening the condition of the licence, actual possession of the imported goods is not necessary. Further, the possession of Warden & Co., would be possession of the Association, as the former was its agent to import the goods.16. Re the sixth point that the appellant had no intention to commit the offence, the finding of the High Court is against the appellant. The High Court rightly held him guilty of the offence under Section 5 of the Act on a finding that he intentionally aided the Association, the licensee, in committing the offence under Section 5 of the Act, and thus abetted the contravention of the offence by the Association. The appellant, as Chairman, authorised Warden & Co., to dispose of the goods which the Association did not want to utilise on account of the decline in price. He thus aided intentionally the Association in disposing of the goods through Warden & Co., and therefore abetted the contravention of the condition of the licence to the effect that the goods imported would be utilised by the licensee alone and would not be sold to any other party.17. We do not consider that the sentence is severe in the circumstances of the case which indicate that from the very beginning the appellant, as Chairman of the Association, knew that the Association would not be able to utilise all the yarn to be imported under the licence applied for. The fact that Warden & Co., did pay over Rs. 5, 000/- to the Association indicates that the goods did fetch a price higher than the price paid for their importation. The case appears to be a deliberate case of securing import licence with a view to mis-apply the goods imported.

### Instruction: Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant? ### Input: therefore of opinion that the provision in clause 5 of the Order empowering the licensing authority to attach a condition to the effect that the goods covered by the licence shall not be disposed of except in the manner prescribed by the licensing authority is a valid provision which comes within the powers conferred by Section 3 of the Act on the Central Government.12. In support of the second contention that the Order does not provide for imposing the condition that the imported goods be not sold, reliance is placed on the decision in East India Commercial Co. v. Collector of Customs - 1983 (13) E.L.T. 1342 (S.C.) = (1963) 3 SCR 338. In that case, a condition was imposed in the licence prohibiting the importer from selling the imported goods. Sub-clause (1) of clause (a) of Notification No. 2/ITC/48, dated March 6, 1948, provided for imposing a condition in the licence to the effect that the importer shall not dispose of or otherwise deal with the goods without the written permission of the licensing authority or any person duly authorised. Sub-clause (v) of clause (a) of the Notification provided :"that such other conditions may be imposed which the licensing authority considers to be expedient from the administrative point of view and which are not inconsistent with the provisions of the said Act."The actual condition imposed, however, did not fall under sub-clause (1) of clause (a) and was sought to be supported by relying on sub-clause (v). This Court held that under that clause a licensing authority was competent to impose only such condition as may be expedient from the administrative point of view. This Court further held that prohibiting an importer from disposing of the goods imported affects the rights of that person and therefore such a condition cannot be prescribed in the licence in the absence of a rule permitting that to be done. In the case before us, the licence has been issued under the Order of 1955. The language of sub-clause (2) of clause 5 of that order is wide and permits the imposition of a condition which was outside sub-clause (v) of clause (a) of the order of 1948. Sub-clause (4) of clause 5 further makes it obligatory upon the licensee to comply with all the conditions imposed or deemed to be imposed under clause 5. We therefore do not agree with the second contention and hold that the licensing authority is competent under the Order to impose the condition that the imported goods be not sold to any person and thus to affect the ordinary rights of the importer.13. The third contention too has no force. Sub-clause (4) of clause 5 provides that the licensee shall comply with all conditions imposed or deemed to be imposed under that clause. The contravention of any condition of a licence thus amounts to the contravention of the provisions of sub-clause (4) of clause 5 of the Order and consequently to the contravention of the Order made under the Act. It follows that if the Association, the licensee, does not comply with the conditions of the licence about use of the goods to be imported, it contravenes the Order made under the Act and makes itself liable to punishment under Section 5 of the Act.14. The cases reported as C. T. A. Pillai v. H. P. Lohia - AIR 1957 Cal. 83 and East India Commercial Co. v. Collector of Customs - 1983 (13) E.L.T. 1342 (S.C.) = (1963) 3 SCR 338 , holding that the infringement of a condition in the licence not to sell goods imported to third parties is not an infringement of the Order, are not of help as they deal with the contravention of the conditions of the licence granted under orders dated July 1, 1943 and March 6, 1948 which did not contain a provision comparable with the provisions of sub-clause (4) of clause 5 of the Order of 1955.15. We accept the fourth contention that it is the Association, the licensee, which alone could contravene the condition of the licence and thus contravene the Order, but do not agree with fifth contention that it could not be guilty of the offence as it had not got actual possession of the imported goods. For contravening the condition of the licence, actual possession of the imported goods is not necessary. Further, the possession of Warden & Co., would be possession of the Association, as the former was its agent to import the goods.16. Re the sixth point that the appellant had no intention to commit the offence, the finding of the High Court is against the appellant. The High Court rightly held him guilty of the offence under Section 5 of the Act on a finding that he intentionally aided the Association, the licensee, in committing the offence under Section 5 of the Act, and thus abetted the contravention of the offence by the Association. The appellant, as Chairman, authorised Warden & Co., to dispose of the goods which the Association did not want to utilise on account of the decline in price. He thus aided intentionally the Association in disposing of the goods through Warden & Co., and therefore abetted the contravention of the condition of the licence to the effect that the goods imported would be utilised by the licensee alone and would not be sold to any other party.17. We do not consider that the sentence is severe in the circumstances of the case which indicate that from the very beginning the appellant, as Chairman of the Association, knew that the Association would not be able to utilise all the yarn to be imported under the licence applied for. The fact that Warden & Co., did pay over Rs. 5, 000/- to the Association indicates that the goods did fetch a price higher than the price paid for their importation. The case appears to be a deliberate case of securing import licence with a view to mis-apply the goods imported. ### Response: 0

Sudhir Kumar and Others Vs. Baldev Krishna Thapar and Others

a fresh lease or the decree holders merely granted an extension of time for delivery of possession of the premises demised essentially depends on the intention of the parties who entered into the compromise as could be gathered from the compromise petition as well as the compromise decree. It is necessary to note that in the compromise petition, it is specifically stated that the parties had agreed"that the defendans shall remain as lessees of Uttam Talkies Residency Road, Jammu on terms and conditions on which they previously held the said premises machinery furniture fittings etc. up to 31-12-1962 and pay to the plaintiff rent at Rs. 3, 000 per month from 1st January 1959 in the following proportion...... It is further stated therein that "the rest of the terms and conditions will be as contained in the agreement a deed dated 17th Assuj 2011 registered on 18th Assuj 2011".But the last clause in the compromise petition reads:"it is therefore prayed that a decree may kindly be passed directing ejectment on 1st January 1963 on terms and conditions contained herein."The compromise decree refers to the defendants as "lessees" and the compensation payable by them as rent. At the same time cl. (2) of the decree says that the defendants shall be liable to ejectment and shall vacate the premises on 1st January 1963 on the terms and conditions as stated above. The compromise and the compromise decree speak, so to say, in two voices. If we had been merely left with the specific terms incorporated in the compromise petition and the compromise decree without bringing in by reference the terms of the original lease as to matters not specifically covered in the compromise petition and the compromise decree, there would have been some difficulty in spelling out the real intention of the parties. But by incorporating the terms of the old lease, to the extent not covered by the new terms, the parties had agreed to incorporate into the new agreement the term relating to renewal found in the original lease. On an analysis of the terms of the compromise, it is seen that the lessors had granted a fresh lease of the cinema talkies demised; a monthly rental was fixed in respect of the same and the lessees were given an option to renew the lease at the end of the term fixed though that right is subject to certain conditions. Under these circumstances, the direction in the decree to vacate the suit premises at the end of the term fixed in the compromise in accordance with the terms of the compromise would amount to an ineffective direction. Such a direction cannot be considered as an ejectment decree. It is at best a declaration of the right of the lessors to eject the lessees at the end of the lease period if the lessees fail to get a renewal.Mr. Tarkunde, learned Counsel for the appellant contended that on a proper construction of the compromise petition and the compromise decree, it would be seen that the renewal clause was not incorporated into the compromise decree. According to him the period during which the defendants are permitted to be in possession of the" suit, premises is subject to no alteration under any circumstance. Subject to that condition and other conditions mentioned in the compromise petition the terms of the original lease were incorporated into the compromise petition. We see no basis for this contention. A term in a lease relating to renewal is independent of the duration of the lease fixed under the lease deed. The renewal obtained by the exercise of the option given under the lease is an extension obtained by the exercise of an independent power. Therefore there is no force in the contention that because the compromise had fixed the period during which the defendants could continue as lessees, the renewal clause in the original lease deed did not become one of. the terms of the agreement. We are unable to consider the clause in the compromise referring to the original lease as a barren clause or that it is not wide enough to reach the renewal clause.5. Mr. Tarkunde next contended that the renewal clause referred to earlier is a meaningless term as the lessees are entitled to a renewal only if the lessors consented. He urged that there can be a renewal only if both the lessors and the lessees agreed, but in that event there is no need to have a term providing for renewal. We are unable to read the renewal clause as Mr. Tarkunde wants us to do. No term in a contract should be considered as superfluous if it can be given some reasonable meaning. The clause in question definitely says that lessees are entitled for a renewal. The right of the lessors to give consent must be read in the context of the lessees entitlement to get a renewal of the lease. If so read, it is clear that the lessors can withhold their consent either because of the lessees failure to observe one or other of the material terms of the lease or on some other reasonable ground. The lessors cannot withhold their consent capriciously or unreasonably. A covenant against assigning and letting, charging or parting with possession of the demised property or any part thereof without licence or consent of the landlord is deemed to be subject to a proviso to the effect that such licence or consent is not to be unreasonably withheld. That is the position both under the English law as well as under the Indian law. About that there is no dispute. If in the matter of introducing a stranger to the demised property, the law insists that the lessors should not unreasonably withhold his consent, it follows as a matter of reason and logic that the lessor cannot unreasonably withhold his consent, when the lessee exercises his option to renew the lease on the strength of one of the terms in the lease deed.

0[ds]The question whether under the terms of the compromise the parties entered into a fresh lease or the decree holders merely granted an extension of time for delivery of possession of the premises demised essentially depends on the intention of the parties who entered into the compromise as could be gathered from the compromise petition as well as the compromise decree. It is necessary to note that in the compromise petition, it is specifically stated that the parties had agreed"that the defendans shall remain as lessees of Uttam Talkies Residency Road, Jammu on terms and conditions on which they previously held the said premises machinery furniture fittings etc. up to 31-12-1962 and pay to the plaintiff rent at Rs. 3, 000 per month from 1st January 1959 in the following proportion...... It is further stated therein that "the rest of the terms and conditions will be as contained in the agreement a deed dated 17th Assuj 2011 registered on 18th Assuj 2011".But the last clause in the compromise petition reads:"it is therefore prayed that a decree may kindly be passed directing ejectment on 1st January 1963 on terms and conditions contained herein."The compromise decree refers to the defendants as "lessees" and the compensation payable by them as rent. At the same time cl. (2) of the decree says that the defendants shall be liable to ejectment and shall vacate the premises on 1st January 1963 on the terms and conditions as stated above. The compromise and the compromise decree speak, so to say, in two voices. If we had been merely left with the specific terms incorporated in the compromise petition and the compromise decree without bringing in by reference the terms of the original lease as to matters not specifically covered in the compromise petition and the compromise decree, there would have been some difficulty in spelling out the real intention of the parties. But by incorporating the terms of the old lease, to the extent not covered by the new terms, the parties had agreed to incorporate into the new agreement the term relating to renewal found in the original lease. On an analysis of the terms of the compromise, it is seen that the lessors had granted a fresh lease of the cinema talkies demised; a monthly rental was fixed in respect of the same and the lessees were given an option to renew the lease at the end of the term fixed though that right is subject to certain conditions. Under these circumstances, the direction in the decree to vacate the suit premises at the end of the term fixed in the compromise in accordance with the terms of the compromise would amount to an ineffective direction. Such a direction cannot be considered as an ejectment decree. It is at best a declaration of the right of the lessors to eject the lessees at the end of the lease period if the lessees fail to get asee no basis for this contention. A term in a lease relating to renewal is independent of the duration of the lease fixed under the lease deed. The renewal obtained by the exercise of the option given under the lease is an extension obtained by the exercise of an independent power. Therefore there is no force in the contention that because the compromise had fixed the period during which the defendants could continue as lessees, the renewal clause in the original lease deed did not become one of. the terms of the agreement. We are unable to consider the clause in the compromise referring to the original lease as a barren clause or that it is not wide enough to reach the renewalare unable to read the renewal clause as Mr. Tarkunde wants us to do. No term in a contract should be considered as superfluous if it can be given some reasonable meaning. The clause in question definitely says that lessees are entitled for a renewal. The right of the lessors to give consent must be read in the context of the lessees entitlement to get a renewal of the lease. If so read, it is clear that the lessors can withhold their consent either because of the lessees failure to observe one or other of the material terms of the lease or on some other reasonable ground. The lessors cannot withhold their consent capriciously or unreasonably. A covenant against assigning and letting, charging or parting with possession of the demised property or any part thereof without licence or consent of the landlord is deemed to be subject to a proviso to the effect that such licence or consent is not to be unreasonably withheld. That is the position both under the English law as well as under the Indian law. About that there is no dispute. If in the matter of introducing a stranger to the demised property, the law insists that the lessors should not unreasonably withhold his consent, it follows as a matter of reason and logic that the lessor cannot unreasonably withhold his consent, when the lessee exercises his option to renew the lease on the strength of one of the terms in the lease deed

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: a fresh lease or the decree holders merely granted an extension of time for delivery of possession of the premises demised essentially depends on the intention of the parties who entered into the compromise as could be gathered from the compromise petition as well as the compromise decree. It is necessary to note that in the compromise petition, it is specifically stated that the parties had agreed"that the defendans shall remain as lessees of Uttam Talkies Residency Road, Jammu on terms and conditions on which they previously held the said premises machinery furniture fittings etc. up to 31-12-1962 and pay to the plaintiff rent at Rs. 3, 000 per month from 1st January 1959 in the following proportion...... It is further stated therein that "the rest of the terms and conditions will be as contained in the agreement a deed dated 17th Assuj 2011 registered on 18th Assuj 2011".But the last clause in the compromise petition reads:"it is therefore prayed that a decree may kindly be passed directing ejectment on 1st January 1963 on terms and conditions contained herein."The compromise decree refers to the defendants as "lessees" and the compensation payable by them as rent. At the same time cl. (2) of the decree says that the defendants shall be liable to ejectment and shall vacate the premises on 1st January 1963 on the terms and conditions as stated above. The compromise and the compromise decree speak, so to say, in two voices. If we had been merely left with the specific terms incorporated in the compromise petition and the compromise decree without bringing in by reference the terms of the original lease as to matters not specifically covered in the compromise petition and the compromise decree, there would have been some difficulty in spelling out the real intention of the parties. But by incorporating the terms of the old lease, to the extent not covered by the new terms, the parties had agreed to incorporate into the new agreement the term relating to renewal found in the original lease. On an analysis of the terms of the compromise, it is seen that the lessors had granted a fresh lease of the cinema talkies demised; a monthly rental was fixed in respect of the same and the lessees were given an option to renew the lease at the end of the term fixed though that right is subject to certain conditions. Under these circumstances, the direction in the decree to vacate the suit premises at the end of the term fixed in the compromise in accordance with the terms of the compromise would amount to an ineffective direction. Such a direction cannot be considered as an ejectment decree. It is at best a declaration of the right of the lessors to eject the lessees at the end of the lease period if the lessees fail to get a renewal.Mr. Tarkunde, learned Counsel for the appellant contended that on a proper construction of the compromise petition and the compromise decree, it would be seen that the renewal clause was not incorporated into the compromise decree. According to him the period during which the defendants are permitted to be in possession of the" suit, premises is subject to no alteration under any circumstance. Subject to that condition and other conditions mentioned in the compromise petition the terms of the original lease were incorporated into the compromise petition. We see no basis for this contention. A term in a lease relating to renewal is independent of the duration of the lease fixed under the lease deed. The renewal obtained by the exercise of the option given under the lease is an extension obtained by the exercise of an independent power. Therefore there is no force in the contention that because the compromise had fixed the period during which the defendants could continue as lessees, the renewal clause in the original lease deed did not become one of. the terms of the agreement. We are unable to consider the clause in the compromise referring to the original lease as a barren clause or that it is not wide enough to reach the renewal clause.5. Mr. Tarkunde next contended that the renewal clause referred to earlier is a meaningless term as the lessees are entitled to a renewal only if the lessors consented. He urged that there can be a renewal only if both the lessors and the lessees agreed, but in that event there is no need to have a term providing for renewal. We are unable to read the renewal clause as Mr. Tarkunde wants us to do. No term in a contract should be considered as superfluous if it can be given some reasonable meaning. The clause in question definitely says that lessees are entitled for a renewal. The right of the lessors to give consent must be read in the context of the lessees entitlement to get a renewal of the lease. If so read, it is clear that the lessors can withhold their consent either because of the lessees failure to observe one or other of the material terms of the lease or on some other reasonable ground. The lessors cannot withhold their consent capriciously or unreasonably. A covenant against assigning and letting, charging or parting with possession of the demised property or any part thereof without licence or consent of the landlord is deemed to be subject to a proviso to the effect that such licence or consent is not to be unreasonably withheld. That is the position both under the English law as well as under the Indian law. About that there is no dispute. If in the matter of introducing a stranger to the demised property, the law insists that the lessors should not unreasonably withhold his consent, it follows as a matter of reason and logic that the lessor cannot unreasonably withhold his consent, when the lessee exercises his option to renew the lease on the strength of one of the terms in the lease deed. ### Response: 0

Kanhaiyalal Lohia (Deceased) (By His Legal Representatives) Mahabir Prasad Khemka & Others Vs. Commissioner of Income Tax, West Bengal

natural justice, and that was held sufficient to entitle an aggrieved party to come to this Court against the appellate order of the Tribunal under Art. 136. In Baldev Singhs case, AIR 1961 SC 736 , this Court entertained an appeal against the appellate order of the Tribunal, because limitation to take other remedies was barred without any fault of the assessee concerned. The ratio in each of these cases is that a circumstance which cannot be corrected by the procedure of a stated question of law on a statement of the case may afford a ground for invoking the jurisdiction of this Court under Art. 136. That ratio does not apply, where a question of law can be raised and is capable of being answered by the High Court or on appeal, by this Court. An appeal against an order of the High Court deciding a question referred or against a refusal to call for a statement can be brought before this Court under S. 66A, if the High Court decides the question referred and under Art. 136, if the High Court refuses to call for a statement.7. In the present case, the order of the High Court on the question referred was not brought before this Court by the ordinary mode indicated in the Indian Income-tax Act, presumably because of the concession of counsel that he could not claim that the question be answered infavour of the assessee and the attitude of the Department that the assessment of "Brijlal Nandkishore" would be cancelled. The order refusing to call for a statement on questions other than the one referred is also not questioned before us. The attempt is to bring this case within the ratio of Dakheswari Cotton Mills case, 1955-1 SCR 941 : ((S) AIR 1955 SC 65 ), and in support, it has been pointed out mainly that the examination of Sri A. L. Mazumdar in the absence of Kanhaiyalal Lohia was against the principles of natural justice. The statement of Sri A. L. Mazumdar was taken on March 28, 1950, and it is recorded as follows :"Mr. Mazumdar is questioned by me as to what he knows regarding the alleged gift as recorded in the books of Kanailal Lohia in favour of BrijLal and NandKishore. He says that I dont remember things very distinctly but I can say that the gifts to BrijLal or NandKishore were not made in my presence as alleged. Mr. Kanhaiyalal Lohia used to tell me that his brother and nephew are idling away their time hence I shall give them a gift and make them work by that money.The partnership deed was most probably drawn up by me. The gift was reported to have been made to BrijLal and NandKishore before I should have taken up the drafting of the deed. Kanhaiyalal told me several times that he wanted to separate his brother and nephew. When the firm was started then Brijlalji came to me and asked me if father and sons partnership deed could be drawn up.I dont know anything else than this in the matter."8. The lie given by Sri Mazumdar to the statement of Kanhaiyalal Lohia has affected its credibility. The order sheet shows that Mr. B. Sen Gupta took a copy of Sri Mazumdars statement and expressed a desire to cross-examine him; but when the opportunity was given, he failed to appear. It is impossible to think in these circumstances that there has been any breach of the principles of natural justice. The order sheets of March 29 and 30, 1950 clearly record the absence of Mr. B. Sen Gupta. In our opinion, there is no breach of the principles of natural justice in this case to entitle the appellants to invoke the ruling in Dakheswari Cotton Mills case, 1955-1 SCR 941 : ((S) AIR 1955 SC 65 ).9. It was contended before us that the finding of the Tribunal was perverse, and that on an examination of the total circumstances, it is quite clear that the gifts were not only real, but were acted upon. This was a matter within the jurisdiction of the Appellate Tribunal as the final fact-finding authority. The Tribunal acted within, its powers in refusing to accept the evidence tendered, and looking at the circumstances of the case we cannot say that the finding has been perversely reached. For a number of years, the brother and the nephew were supported by Kanhaiyalal Lohia, and it does not appear that a gift of even a small sum was made to them to put them on their legs. Suddenly in the year 1943 Kanhaiyalal Lohia made up his mind to put them in business with a gift of the order of Rs. 7,60,000 odd. For this purpose, he had to overdraw his accounts with the Bank and to pay interest to the Bank. It does not appear why he felt that the establishment of his brother and nephew in business should be made on such a grand scale, which invoked him in debt. This circumstance, taken with the fact that Mr. Mazumdar stated that he had always complained that they were good for nothing and were idlers, makes the transactions suspicious.It was presumably done with a view to reduce the assessable profits in the hands of Kanhaiyalal Lohia, and on the evidence, the Tribunal was entitled to hold, as it did, that this was a sham transaction. In our opinion, no special circumstances exist, on which the appellants can claim to come to this Court against the decision of the Tribunal, by passing the decision of the High Court on the question referred and the refusal of the High Court to call for a statement of the case from the Tribunal on questions which the Tribunal refused to refer to the High Court. The appeals are, therefore, within the rulings of this Court in AIR 1961 SC 1708 and Civil Appeal No. 176 of 1959, D/- 24-4-1961 (SC) and must be regarded as incompetent.

0[ds]7. In the present case, the order of the High Court on the question referred was not brought before this Court by the ordinary mode indicated in the Indian Income-tax Act, presumably because of the concession of counsel that he could not claim that the question be answered infavour of the assessee and the attitude of the Department that the assessment of "Brijlal Nandkishore" would be cancelled. The order refusing to call for a statement on questions other than the one referred is also not questioned beforewas a matter within the jurisdiction of the Appellate Tribunal as the final fact-finding authority. The Tribunal acted within, its powers in refusing to accept the evidence tendered, and looking at the circumstances of the case we cannot say that the finding has been perversely reached. For a number of years, the brother and the nephew were supported by Kanhaiyalal Lohia, and it does not appear that a gift of even a small sum was made to them to put them on their legs. Suddenly in the year 1943 Kanhaiyalal Lohia made up his mind to put them in business with a gift of the order of Rs. 7,60,000 odd. For this purpose, he had to overdraw his accounts with the Bank and to pay interest to the Bank. It does not appear why he felt that the establishment of his brother and nephew in business should be made on such a grand scale, which invoked him in debt. This circumstance, taken with the fact that Mr. Mazumdar stated that he had always complained that they were good for nothing and were idlers, makes the transactions suspicious.It was presumably done with a view to reduce the assessable profits in the hands of Kanhaiyalal Lohia, and on the evidence, the Tribunal was entitled to hold, as it did, that this was a sham transaction. In our opinion, no special circumstances exist, on which the appellants can claim to come to this Court against the decision of the Tribunal, by passing the decision of the High Court on the question referred and the refusal of the High Court to call for a statement of the case from the Tribunal on questions which the Tribunal refused to refer to the High Court. The appeals are, therefore, within the rulings of this Court in AIR 1961 SC 1708 and Civil Appeal No. 176 of 1959, D/- 24-4-1961 (SC) and must be regarded as incompetent.

### 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: natural justice, and that was held sufficient to entitle an aggrieved party to come to this Court against the appellate order of the Tribunal under Art. 136. In Baldev Singhs case, AIR 1961 SC 736 , this Court entertained an appeal against the appellate order of the Tribunal, because limitation to take other remedies was barred without any fault of the assessee concerned. The ratio in each of these cases is that a circumstance which cannot be corrected by the procedure of a stated question of law on a statement of the case may afford a ground for invoking the jurisdiction of this Court under Art. 136. That ratio does not apply, where a question of law can be raised and is capable of being answered by the High Court or on appeal, by this Court. An appeal against an order of the High Court deciding a question referred or against a refusal to call for a statement can be brought before this Court under S. 66A, if the High Court decides the question referred and under Art. 136, if the High Court refuses to call for a statement.7. In the present case, the order of the High Court on the question referred was not brought before this Court by the ordinary mode indicated in the Indian Income-tax Act, presumably because of the concession of counsel that he could not claim that the question be answered infavour of the assessee and the attitude of the Department that the assessment of "Brijlal Nandkishore" would be cancelled. The order refusing to call for a statement on questions other than the one referred is also not questioned before us. The attempt is to bring this case within the ratio of Dakheswari Cotton Mills case, 1955-1 SCR 941 : ((S) AIR 1955 SC 65 ), and in support, it has been pointed out mainly that the examination of Sri A. L. Mazumdar in the absence of Kanhaiyalal Lohia was against the principles of natural justice. The statement of Sri A. L. Mazumdar was taken on March 28, 1950, and it is recorded as follows :"Mr. Mazumdar is questioned by me as to what he knows regarding the alleged gift as recorded in the books of Kanailal Lohia in favour of BrijLal and NandKishore. He says that I dont remember things very distinctly but I can say that the gifts to BrijLal or NandKishore were not made in my presence as alleged. Mr. Kanhaiyalal Lohia used to tell me that his brother and nephew are idling away their time hence I shall give them a gift and make them work by that money.The partnership deed was most probably drawn up by me. The gift was reported to have been made to BrijLal and NandKishore before I should have taken up the drafting of the deed. Kanhaiyalal told me several times that he wanted to separate his brother and nephew. When the firm was started then Brijlalji came to me and asked me if father and sons partnership deed could be drawn up.I dont know anything else than this in the matter."8. The lie given by Sri Mazumdar to the statement of Kanhaiyalal Lohia has affected its credibility. The order sheet shows that Mr. B. Sen Gupta took a copy of Sri Mazumdars statement and expressed a desire to cross-examine him; but when the opportunity was given, he failed to appear. It is impossible to think in these circumstances that there has been any breach of the principles of natural justice. The order sheets of March 29 and 30, 1950 clearly record the absence of Mr. B. Sen Gupta. In our opinion, there is no breach of the principles of natural justice in this case to entitle the appellants to invoke the ruling in Dakheswari Cotton Mills case, 1955-1 SCR 941 : ((S) AIR 1955 SC 65 ).9. It was contended before us that the finding of the Tribunal was perverse, and that on an examination of the total circumstances, it is quite clear that the gifts were not only real, but were acted upon. This was a matter within the jurisdiction of the Appellate Tribunal as the final fact-finding authority. The Tribunal acted within, its powers in refusing to accept the evidence tendered, and looking at the circumstances of the case we cannot say that the finding has been perversely reached. For a number of years, the brother and the nephew were supported by Kanhaiyalal Lohia, and it does not appear that a gift of even a small sum was made to them to put them on their legs. Suddenly in the year 1943 Kanhaiyalal Lohia made up his mind to put them in business with a gift of the order of Rs. 7,60,000 odd. For this purpose, he had to overdraw his accounts with the Bank and to pay interest to the Bank. It does not appear why he felt that the establishment of his brother and nephew in business should be made on such a grand scale, which invoked him in debt. This circumstance, taken with the fact that Mr. Mazumdar stated that he had always complained that they were good for nothing and were idlers, makes the transactions suspicious.It was presumably done with a view to reduce the assessable profits in the hands of Kanhaiyalal Lohia, and on the evidence, the Tribunal was entitled to hold, as it did, that this was a sham transaction. In our opinion, no special circumstances exist, on which the appellants can claim to come to this Court against the decision of the Tribunal, by passing the decision of the High Court on the question referred and the refusal of the High Court to call for a statement of the case from the Tribunal on questions which the Tribunal refused to refer to the High Court. The appeals are, therefore, within the rulings of this Court in AIR 1961 SC 1708 and Civil Appeal No. 176 of 1959, D/- 24-4-1961 (SC) and must be regarded as incompetent. ### Response: 0

Duni Chand Rataria Vs. Bhuwalka Brothers Ltd

shipper who took delivery of the goods from the mills against payment. They wrongly assumed that A endorsed the delivery order over to B and took the difference, B in his turn endorsed the delivery order to the defendant and took the difference and so on and concluded that nobody was concerned to pay the actual price or take delivery of the goods except the shipper who took the goods and paid the price to the mills. This assumption was absolutely unwarranted, the evidence on record being that each of the successive buyers paid to his immediate seller the full price of the goods represented by the delivery order in cash against the endorsement of the relative delivery order in his favour by the seller.8. The learned Judges of the Appeal Court also laid unwarranted emphasis on the words "actual delivery of possession" and contrasted actual delivery with symbolical or constructive delivery and held that only actual delivery of possession meaning thereby physical or manual delivery was within the intendment of the Ordinance. Delivery has been defined in section 2(2) of the Indian Sale of Goods Act as meaning voluntary transfer of possession from one person to another and if nothing more was said delivery would not only include actual delivery but also symbolic or constructive delivery within the meaning of the term. The use of the word "actual" in section 2 (1) (b) (i) of the Ordinance was considered by the Appeal Court as indicative of the intention of the Government to include within the scope of the exemption only cases of actual delivery of possession ascontrasted with symbolical or constructive delivery. This construction in our opinion is too narrow.. Even if regard be had to the mischief which was sought to be averted by the promulgation of the Ordinance, the Government intended to prevent persons who dealt in differences only and never intended to take delivery under any circumstances, from entering into the market. Provided a person habitually dealt in the sale or purchase of jute goods involving delivery of the goods, he-was not to be included in the ban. This could be the only intendment of the Ordinance, because otherwise having regard to the ordinary course of business in jute goods would become absolutely impossible. The manufacturer of jute goods does not come normally into direct contact with the shipper. It is only through a chain of contracting parties that the shipper obtains the goods from the manufacturer and if only actual delivery of possession as contrasted with symbolical or constructive delivery were contemplated it would be impossible to carry on the business. If the narrow construction which was put by the Appeal Court on the expression "actual delivery of possession" was accepted it would involve each one of the intermediate parties actually taking physical or manual delivery of the goods from their sellers and again in their turn giving physical or manual delivery of the goods which they had thus obtained to their immediate buyers. Such an eventuality could never have been contemplated by the Government and the only reasonable interpretation of the expression "actual delivery of possession" can be that actual delivery as contrasted with mere dealings in differences was within the intendment of the Ordinance and such actual delivery of possession included within its scope symbolical as well as constructive delivery of possession. Once this conclusion is reached it is easy to visualise the course of events. The mates receipts or the delivery orders as the case may be, represented the goods. The sellers banded over these documents to the buyers against cash payment, and the buyers obtained these documents in token of delivery ofpossession of the goods. They in turn passed these documents from hand to hand until they rested with the ultimate buyer who took physical or manual delivery of possession of those goods. The constructive delivery of possession which was obtained by the intermediate parties was thus translated into a physical or manual delivery of possession in the ultimate analysis eliminating the unnecessary process of each of the intermediate parties taking and in his turn giving actual delivery of possession of the goods in the narrow sense of physical or manual delivery thereof.9. It is necessary to remember in this connection that the words used in section 2(1) (b) (i) are "involving the actual delivery of possession thereof". The word "involving" in the context means resulting in and this condition would be satisfied if the chain contracts as entered into in the market resulted in actual delivery of possession of goods in the ultimate analysis. The Appeal Court was therefore clearly in error when it put a narrow construction on the expression "actual delivery of possession" and held that the transactions were purely speculative and the parties in no event. contemplated actual delivery of possession of the goods. The learned Trial Judge was in our opinion correct in his appreciation of the whole position on facts as well as in law and in negativing the contention of the respondent.10. In view of this conclusion it is unnecessary to consider the argument which was submitted before us based upon the definition of "documents of title" in section 2(4) and the provisions of section 30, proviso to section 36(3) and the proviso to section 53(1) of the Indian Sale of Goods Act that all the documents of title enumerated in section 2(4) were assimilated to a bill of lading and a mere transfer of the documents of title in favour of a buyer was tantamount to a transfer of possession of the goods represented thereby.The contention that the Ordinance was ultra vires was not seriously pressed before us. We may however add that the Appeal Court rightly held that the11. Ordinance came within Head 27 of List 2 of the Seventh Schedule of the Government of India Act:--"Trade and commerce within the Province; markets and fair; money lending and money lenders", and that the Provincial Legislature was competent to legislate on that topic.12.

1[ds]It was common ground that the contracts did not provide for the payment or receipt of margin. It was also common ground that the respondent did not possess or have control over a godown and other means and equipments necessary for the storage and supply of jutewrongly assumed that A endorsed the delivery order over to B and took the difference, B in his turn endorsed the delivery order to the defendant and took the difference and so on and concluded that nobody was concerned to pay the actual price or take delivery of the goods except the shipper who took the goods and paid the price to the mills. This assumption was absolutely unwarranted, the evidence on record being that each of the successive buyers paid to his immediate seller the full price of the goods represented by the delivery order in cash against the endorsement of the relative delivery order in his favour by thelearned Judges of the Appeal Court also laid unwarranted emphasis on the words "actual delivery of possession" and contrasted actual delivery with symbolical or constructive delivery and held that only actual delivery of possession meaning thereby physical or manual delivery was within the intendment of the Ordinance. Delivery has been defined in section 2(2) of the Indian Sale of Goods Act as meaning voluntary transfer of possession from one person to another and if nothing more was said delivery would not only include actual delivery but also symbolic or constructive delivery within the meaning of the term. The use of the word "actual" in section 2 (1) (b) (i) of the Ordinance was considered by the Appeal Court as indicative of the intention of the Government to include within the scope of the exemption only cases of actual delivery of possession ascontrasted with symbolical or constructive delivery. This construction in our opinion is too narrow.. Even if regard be had to the mischief which was sought to be averted by the promulgation of the Ordinance, the Government intended to prevent persons who dealt in differences only and never intended to take delivery under any circumstances, from entering into the market. Provided a person habitually dealt in the sale or purchase of jute goods involving delivery of the goods, he-was not to be included in the ban. This could be the only intendment of the Ordinance, because otherwise having regard to the ordinary course of business in jute goods would become absolutely impossible. The manufacturer of jute goods does not come normally into direct contact with the shipper. It is only through a chain of contracting parties that the shipper obtains the goods from the manufacturer and if only actual delivery of possession as contrasted with symbolical or constructive delivery were contemplated it would be impossible to carry on the business. If the narrow construction which was put by the Appeal Court on the expression "actual delivery of possession" was accepted it would involve each one of the intermediate parties actually taking physical or manual delivery of the goods from their sellers and again in their turn giving physical or manual delivery of the goods which they had thus obtained to their immediate buyers. Such an eventuality could never have been contemplated by the Government and the only reasonable interpretation of the expression "actual delivery of possession" can be that actual delivery as contrasted with mere dealings in differences was within the intendment of the Ordinance and such actual delivery of possession included within its scope symbolical as well as constructive delivery of possession. Once this conclusion is reached it is easy to visualise the course of events. The mates receipts or the delivery orders as the case may be, represented the goods. The sellers banded over these documents to the buyers against cash payment, and the buyers obtained these documents in token of delivery ofpossession of the goods. They in turn passed these documents from hand to hand until they rested with the ultimate buyer who took physical or manual delivery of possession of those goods. The constructive delivery of possession which was obtained by the intermediate parties was thus translated into a physical or manual delivery of possession in the ultimate analysis eliminating the unnecessary process of each of the intermediate parties taking and in his turn giving actual delivery of possession of the goods in the narrow sense of physical or manual deliveryis necessary to remember in this connection that the words used in section 2(1) (b) (i) are "involving the actual delivery of possession thereof". The word "involving" in the context means resulting in and this condition would be satisfied if the chain contracts as entered into in the market resulted in actual delivery of possession of goods in the ultimate analysis. The Appeal Court was therefore clearly in error when it put a narrow construction on the expression "actual delivery of possession" and held that the transactions were purely speculative and the parties in no event. contemplated actual delivery of possession of the goods. The learned Trial Judge was in our opinion correct in his appreciation of the whole position on facts as well as in law and in negativing the contention of theview of this conclusion it is unnecessary to consider the argument which was submitted before us based upon the definition of "documents of title" in section 2(4) and the provisions of section 30, proviso to section 36(3) and the proviso to section 53(1) of the Indian Sale of Goods Act that all the documents of title enumerated in section 2(4) were assimilated to a bill of lading and a mere transfer of the documents of title in favour of a buyer was tantamount to a transfer of possession of the goods represented thereby.The contention that the Ordinance was ultra vires was not seriously pressed before us. We may however add that the Appeal Court rightly held thatcame within Head 27 of List 2 of the Seventh Schedule of the Government of India Act:--"Trade and commerce within the Province; markets and fair; money lending and money lenders", and that the Provincial Legislature was competent to legislate on that topic.

### 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: shipper who took delivery of the goods from the mills against payment. They wrongly assumed that A endorsed the delivery order over to B and took the difference, B in his turn endorsed the delivery order to the defendant and took the difference and so on and concluded that nobody was concerned to pay the actual price or take delivery of the goods except the shipper who took the goods and paid the price to the mills. This assumption was absolutely unwarranted, the evidence on record being that each of the successive buyers paid to his immediate seller the full price of the goods represented by the delivery order in cash against the endorsement of the relative delivery order in his favour by the seller.8. The learned Judges of the Appeal Court also laid unwarranted emphasis on the words "actual delivery of possession" and contrasted actual delivery with symbolical or constructive delivery and held that only actual delivery of possession meaning thereby physical or manual delivery was within the intendment of the Ordinance. Delivery has been defined in section 2(2) of the Indian Sale of Goods Act as meaning voluntary transfer of possession from one person to another and if nothing more was said delivery would not only include actual delivery but also symbolic or constructive delivery within the meaning of the term. The use of the word "actual" in section 2 (1) (b) (i) of the Ordinance was considered by the Appeal Court as indicative of the intention of the Government to include within the scope of the exemption only cases of actual delivery of possession ascontrasted with symbolical or constructive delivery. This construction in our opinion is too narrow.. Even if regard be had to the mischief which was sought to be averted by the promulgation of the Ordinance, the Government intended to prevent persons who dealt in differences only and never intended to take delivery under any circumstances, from entering into the market. Provided a person habitually dealt in the sale or purchase of jute goods involving delivery of the goods, he-was not to be included in the ban. This could be the only intendment of the Ordinance, because otherwise having regard to the ordinary course of business in jute goods would become absolutely impossible. The manufacturer of jute goods does not come normally into direct contact with the shipper. It is only through a chain of contracting parties that the shipper obtains the goods from the manufacturer and if only actual delivery of possession as contrasted with symbolical or constructive delivery were contemplated it would be impossible to carry on the business. If the narrow construction which was put by the Appeal Court on the expression "actual delivery of possession" was accepted it would involve each one of the intermediate parties actually taking physical or manual delivery of the goods from their sellers and again in their turn giving physical or manual delivery of the goods which they had thus obtained to their immediate buyers. Such an eventuality could never have been contemplated by the Government and the only reasonable interpretation of the expression "actual delivery of possession" can be that actual delivery as contrasted with mere dealings in differences was within the intendment of the Ordinance and such actual delivery of possession included within its scope symbolical as well as constructive delivery of possession. Once this conclusion is reached it is easy to visualise the course of events. The mates receipts or the delivery orders as the case may be, represented the goods. The sellers banded over these documents to the buyers against cash payment, and the buyers obtained these documents in token of delivery ofpossession of the goods. They in turn passed these documents from hand to hand until they rested with the ultimate buyer who took physical or manual delivery of possession of those goods. The constructive delivery of possession which was obtained by the intermediate parties was thus translated into a physical or manual delivery of possession in the ultimate analysis eliminating the unnecessary process of each of the intermediate parties taking and in his turn giving actual delivery of possession of the goods in the narrow sense of physical or manual delivery thereof.9. It is necessary to remember in this connection that the words used in section 2(1) (b) (i) are "involving the actual delivery of possession thereof". The word "involving" in the context means resulting in and this condition would be satisfied if the chain contracts as entered into in the market resulted in actual delivery of possession of goods in the ultimate analysis. The Appeal Court was therefore clearly in error when it put a narrow construction on the expression "actual delivery of possession" and held that the transactions were purely speculative and the parties in no event. contemplated actual delivery of possession of the goods. The learned Trial Judge was in our opinion correct in his appreciation of the whole position on facts as well as in law and in negativing the contention of the respondent.10. In view of this conclusion it is unnecessary to consider the argument which was submitted before us based upon the definition of "documents of title" in section 2(4) and the provisions of section 30, proviso to section 36(3) and the proviso to section 53(1) of the Indian Sale of Goods Act that all the documents of title enumerated in section 2(4) were assimilated to a bill of lading and a mere transfer of the documents of title in favour of a buyer was tantamount to a transfer of possession of the goods represented thereby.The contention that the Ordinance was ultra vires was not seriously pressed before us. We may however add that the Appeal Court rightly held that the11. Ordinance came within Head 27 of List 2 of the Seventh Schedule of the Government of India Act:--"Trade and commerce within the Province; markets and fair; money lending and money lenders", and that the Provincial Legislature was competent to legislate on that topic.12. ### Response: 1

THE STATE OF HIMACHAL PRADESH Vs. KANSHI RAM

compensation @ Rs.7.00 lakhs per bigha basing on the sale deed Ex.PW-1/A of small chunk i.e. 1 biswa of land and granted abnormal hike in the market value of the acquired land. It is also brought to our notice that the Ex.PW-1/A dated 24.11.2004 is the land sold by PW-2 Garja Ram to PW-3 Kuldip for a consideration of Rs.50,000/- for one biswa of land. It is submitted that PW-2 Garja Ram is also one of the claimants in the acquisition proceedings. It is submitted by the learned counsel that having regard to total extent of 18-15 bighas of land which was under acquisition, the Reference Court should not have relied on Ex.PW-1/A for fixing the compensation @ Rs.7.00 lakhs per bigha. It is also submitted that though the appellants have produced a comparable sale under sale deed Ex.RA dated 04.05.2001 under which 4-51 bighas of land situated in village Dabar Paragana Bahadurpur Tehsil Sadar District Bilaspur was sold but the same was not considered without assigning any valid reasons. It is also submitted by the learned counsel that the High Court committed an error in awarding damages @ 15% per annum on the market value of land, from the date of taking possession to the date of notification.11. On the other hand it is submitted by Sri B.S. Banthia, learned counsel for the respondents that the lands of the respondents-claimants who were all small farmers were taken possession in the year 1988 and they are not paid the market value of their lands by the appellants. It is submitted that in absence of any other comparable sale in the village, the Reference Court and the High Court rightly considered the document Ex.PW-1/A and fixed the compensation for the acquired land @ Rs.7.00 lakhs per bigha. It is further submitted that though the land under sale deed Ex.PW-1/A was sold at the rate of Rs.10.00 lakhs per bigha, but the Reference Court after deducting 30% has fixed the market value of the acquired land at Rs.7.00 lakhs per bigha. It is submitted that there is no merit in the appeals preferred by the State. Further it is also contended by the learned counsel for the respondents that the possession of the land in question was taken as early as in the year 1988 and only after directions were issued in the writ petition in C.W.P.No.735 of 2004, Notification under Section 4(1) of the Act was issued on 30.07.2005. It is submitted that the High Court while awarding additional interest @ 15% per annum has committed error in awarding such interest only on the market value of the land fixed by the Reference Court, instead of total compensation payable to the respondents-claimants. 12. At the outset it is to be noted that even according to the case of the respondents-claimants possession of the land in question was taken in the year 1988 for constructing the road and only after directions were issued in C.W.P.No.735 of 2004 Notification under Section 4(1) of the Act came to be issued on 30.07.2005. The Land Acquisition Officer after collecting necessary material, has passed a common Award on the basis of the classification of the land. The Land Acquisition Officer has categorized the land into 5 categories of the land and fixed Rs.61,666.00 for Andrali Aval, Rs.51,666.00 for Andrali Doem, Rs. 41,666.00 for Baharli Aval, Rs. 20,000.00 for Baharli Doem and Rs.5,000.00 for Khariyater & Banjer. 13. Not satisfied by the Award passed by the Land Acquisition Officer, the respondents sought reference under Section 18 of the Act which was referred to the District Court. The Reference Court has fixed the compensation by awarding uniform rate at Rs.7.00 lakhs per bigha based on the Ex.PW-1/A dated 24.11.2004. 14. At this stage it is to be seen that C.W.P.No.735 of 2004 must have been filed in the first quarter of the year 2004 and Ex.PW-1/A is dated 24.11.2004. Under the sale deed Ex.PW-1/A only one biswa of land was sold by PW-2 Garja Ram to PW-3 Kuldip, for a consideration of Rs.50,000/-. It is not in dispute that PW-2 Garja Ram is also a claimant in the land acquisition proceedings in the impugned judgment. When the total land admeasuring 18-15 bighas of land was acquired, the Reference Court and the High Court committed error in accepting document in Ex.PW-1/A, as a comparable sale for the purpose of fixing the market value of the acquired land at the rate of Rs.7.00 lakhs per bigha. As no other documentary evidence is available on record and further in view of the allegation of the appellants that the sale deed in Ex.RA dated 04.05.2001 under which 4-51 bighas of land in adjoining village was sold in the year 2001, is not considered without assigning valid reasons, we are of the view that these appeals filed by the State are to be allowed by remitting the matter for fresh consideration by the Reference/District Court. As much as PW-2 is the vendor under Ex.PW-1/A, who is no other than one of the claimants in the land acquisition proceedings, such sale could not have been considered as a comparable sale for the purpose of fixing the market value of large extent of land i.e. 18-15 bighas. We are of the view that the Reference Court has committed error in relying on such document for fixing the compensation at the rate of Rs.7.00 lakhs per bigha. If no other comparable sales are available in the same village it is always open to the Reference Court to consider sales in the adjoining villages during the relevant period. Even otherwise there are other methods for fixing the compensation. Such erroneous fixation of market value at the rate of Rs.7.00 lakhs per bigha as fixed by the Reference Court, ought not to have been approved by the High Court. As such we are of the view that the appeals filed by the State deserve to be allowed, by remitting the cases to the Reference Court for fresh adjudication.

1[ds]12. At the outset it is to be noted that even according to the case of the respondents-claimants possession of the land in question was taken in the year 1988 for constructing the road and only after directions were issued in C.W.P.No.735 of 2004 Notification under Section 4(1) of the Act came to be issued on 30.07.2005. The Land Acquisition Officer after collecting necessary material, has passed a common Award on the basis of the classification of the land. The Land Acquisition Officer has categorized the land into 5 categories of the land and fixed Rs.61,666.00 for Andrali Aval, Rs.51,666.00 for Andrali Doem, Rs. 41,666.00 for Baharli Aval, Rs. 20,000.00 for Baharli Doem and Rs.5,000.00 for Khariyater & Banjer13. Not satisfied by the Award passed by the Land Acquisition Officer, the respondents sought referenceunder Section 18 of the Act which was referred to the District Court. The Reference Court has fixed the compensation by awarding uniform rate at Rs.7.00 lakhs per bigha based on the Ex.PW-1/A dated 24.11.200414. At this stage it is to be seen that C.W.P.No.735 of 2004 must have been filed in the first quarter of the year 2004 and Ex.PW-1/A is dated 24.11.2004. Under the sale deed Ex.PW-1/A only one biswa of land was sold by PW-2 Garja Ram to PW-3 Kuldip, for a consideration of Rs.50,000/-. It is not in dispute that PW-2 Garja Ram is also a claimant in the land acquisition proceedings in the impugned judgment. When the total land admeasuring 18-15 bighas of land was acquired, the Reference Court and the High Court committed error in accepting document in Ex.PW-1/A, as a comparable sale for the purpose of fixing the market value of the acquired land at the rate of Rs.7.00 lakhs per bigha. As no other documentary evidence is available on record and further in view of the allegation of the appellants that the sale deed in Ex.RA dated 04.05.2001 under which 4-51 bighas of land in adjoining village was sold in the year 2001, is not considered without assigning valid reasons, we areof the view that these appeals filed by the State are to be allowed by remitting the matter for fresh consideration by the Reference/District Court. As much as PW-2 is the vendor under Ex.PW-1/A, who is no other than one of the claimants in the land acquisition proceedings, such sale could not have been considered as a comparable sale for the purpose of fixing the market value of large extent of land i.e. 18-15 bighas. We are of the view that the Reference Court has committed error in relying on such document for fixing the compensation at the rate of Rs.7.00 lakhs per bigha. If no other comparable sales are available in the same village it is always open to the Reference Court to consider sales in the adjoining villages during the relevant period. Even otherwise there are other methods for fixing the compensation. Such erroneous fixation of market value at the rate of Rs.7.00 lakhs per bigha as fixed by the Reference Court, ought not to have been approved by the High Court. As such we are of the view that the appeals filed by the State deserve to be allowed, by remitting the cases to the Reference Court for fresh adjudication.

### 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: compensation @ Rs.7.00 lakhs per bigha basing on the sale deed Ex.PW-1/A of small chunk i.e. 1 biswa of land and granted abnormal hike in the market value of the acquired land. It is also brought to our notice that the Ex.PW-1/A dated 24.11.2004 is the land sold by PW-2 Garja Ram to PW-3 Kuldip for a consideration of Rs.50,000/- for one biswa of land. It is submitted that PW-2 Garja Ram is also one of the claimants in the acquisition proceedings. It is submitted by the learned counsel that having regard to total extent of 18-15 bighas of land which was under acquisition, the Reference Court should not have relied on Ex.PW-1/A for fixing the compensation @ Rs.7.00 lakhs per bigha. It is also submitted that though the appellants have produced a comparable sale under sale deed Ex.RA dated 04.05.2001 under which 4-51 bighas of land situated in village Dabar Paragana Bahadurpur Tehsil Sadar District Bilaspur was sold but the same was not considered without assigning any valid reasons. It is also submitted by the learned counsel that the High Court committed an error in awarding damages @ 15% per annum on the market value of land, from the date of taking possession to the date of notification.11. On the other hand it is submitted by Sri B.S. Banthia, learned counsel for the respondents that the lands of the respondents-claimants who were all small farmers were taken possession in the year 1988 and they are not paid the market value of their lands by the appellants. It is submitted that in absence of any other comparable sale in the village, the Reference Court and the High Court rightly considered the document Ex.PW-1/A and fixed the compensation for the acquired land @ Rs.7.00 lakhs per bigha. It is further submitted that though the land under sale deed Ex.PW-1/A was sold at the rate of Rs.10.00 lakhs per bigha, but the Reference Court after deducting 30% has fixed the market value of the acquired land at Rs.7.00 lakhs per bigha. It is submitted that there is no merit in the appeals preferred by the State. Further it is also contended by the learned counsel for the respondents that the possession of the land in question was taken as early as in the year 1988 and only after directions were issued in the writ petition in C.W.P.No.735 of 2004, Notification under Section 4(1) of the Act was issued on 30.07.2005. It is submitted that the High Court while awarding additional interest @ 15% per annum has committed error in awarding such interest only on the market value of the land fixed by the Reference Court, instead of total compensation payable to the respondents-claimants. 12. At the outset it is to be noted that even according to the case of the respondents-claimants possession of the land in question was taken in the year 1988 for constructing the road and only after directions were issued in C.W.P.No.735 of 2004 Notification under Section 4(1) of the Act came to be issued on 30.07.2005. The Land Acquisition Officer after collecting necessary material, has passed a common Award on the basis of the classification of the land. The Land Acquisition Officer has categorized the land into 5 categories of the land and fixed Rs.61,666.00 for Andrali Aval, Rs.51,666.00 for Andrali Doem, Rs. 41,666.00 for Baharli Aval, Rs. 20,000.00 for Baharli Doem and Rs.5,000.00 for Khariyater & Banjer. 13. Not satisfied by the Award passed by the Land Acquisition Officer, the respondents sought reference under Section 18 of the Act which was referred to the District Court. The Reference Court has fixed the compensation by awarding uniform rate at Rs.7.00 lakhs per bigha based on the Ex.PW-1/A dated 24.11.2004. 14. At this stage it is to be seen that C.W.P.No.735 of 2004 must have been filed in the first quarter of the year 2004 and Ex.PW-1/A is dated 24.11.2004. Under the sale deed Ex.PW-1/A only one biswa of land was sold by PW-2 Garja Ram to PW-3 Kuldip, for a consideration of Rs.50,000/-. It is not in dispute that PW-2 Garja Ram is also a claimant in the land acquisition proceedings in the impugned judgment. When the total land admeasuring 18-15 bighas of land was acquired, the Reference Court and the High Court committed error in accepting document in Ex.PW-1/A, as a comparable sale for the purpose of fixing the market value of the acquired land at the rate of Rs.7.00 lakhs per bigha. As no other documentary evidence is available on record and further in view of the allegation of the appellants that the sale deed in Ex.RA dated 04.05.2001 under which 4-51 bighas of land in adjoining village was sold in the year 2001, is not considered without assigning valid reasons, we are of the view that these appeals filed by the State are to be allowed by remitting the matter for fresh consideration by the Reference/District Court. As much as PW-2 is the vendor under Ex.PW-1/A, who is no other than one of the claimants in the land acquisition proceedings, such sale could not have been considered as a comparable sale for the purpose of fixing the market value of large extent of land i.e. 18-15 bighas. We are of the view that the Reference Court has committed error in relying on such document for fixing the compensation at the rate of Rs.7.00 lakhs per bigha. If no other comparable sales are available in the same village it is always open to the Reference Court to consider sales in the adjoining villages during the relevant period. Even otherwise there are other methods for fixing the compensation. Such erroneous fixation of market value at the rate of Rs.7.00 lakhs per bigha as fixed by the Reference Court, ought not to have been approved by the High Court. As such we are of the view that the appeals filed by the State deserve to be allowed, by remitting the cases to the Reference Court for fresh adjudication. ### Response: 1

Kurapati Maria Das Vs. M/S. Dr. Ambedkar Seva Samajan

There is yet another distinguishing feature in case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] . In that case there is a clear finding that the elected person therein played a fraud with the Constitution inasmuch as that he knew that his name was not in Electoral Roll of that constituency and he impersonated for some other person taking the advantage of the similarity of names. The appellant herein asserts on the basis of his Caste Certificate that he still belongs to Scheduled Caste. We are, therefore, of the clear opinion that the case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] is not applicable to the present case and the High Court erred in relying upon that decision. 24. Once it is held that the aforementioned case was of no help to the respondents, the only other necessary inference which emerges is that the bar under Article 243 ZG would spring in action. 25. Shri Gupta, however, pointed out that it was specifically proved that the appellant was a Christian and as such he did not belong to the Mala caste which was a Scheduled Caste. Now there is no dispute that the appellant was given two caste certificates within the definition of Section 2 (b) of the 1993 Act. There is also no dispute that these community certificates were obtained by the appellant and they were valid and genuine certificates. It is also an admitted position that the certificates were never cancelled under Section 5 of the 1993 Act. The said certificates could be cancelled only under Section 5 after a full-fledged enquiry by the authority named in that Section. Under such circumstances we do not think that the High Court could have decided that question of fact which was very seriously disputed by the appellant. It seems that in this case, the High Court has gone out of its way, firstly in relying on the Xerox copies of the service records of the appellants and then at the appellate stage, in calling the files of the Electricity Board where the appellant was working. This amounted to a roving enquiry into the caste of the appellant which was certainly not permissible in writ jurisdiction and also in the wake of Section 5 of 1993 Act. 26. Again merely because the appellant was described as being a Christian in the service records did not mean that the appellant was actually a person professing Christian religion. It was not after all known as to who had given those details and further as to whether the details, in reality, were truthful or not. It would be unneccesary for us to go into the aspect whether the petitioner in reality is a Christian for the simple reason that this issue was never raised at the time of his election. Again the appellant still holds the valid caste certificates in his favour declaring him to be belonging to Scheduled Caste and further the appellants status as the Scheduled Caste was never cancelled before the authority under the 1993 Act which alone had the jurisdiction to do the same. If it was not for High Court to enter into the disputed question of fact regarding the caste status of the appellant, the findings recorded by it on that question would lose all its relevance and importance. There is one more peculiar fact which we must note. It has come in the judgment of the learned Single Judge as also in the Division Bench that the appellant converted to Christianity. Now it was nobodys case that the petitioner ever was converted nor was it anybodys case as to when such conversion took place, if at all it took place. All the observations by the learned Single Judge regarding the conversion of the appellant to Christianity are, therefore, without any basis, more particularly, in view of the strong denial by the appellant that he never converted to Christianity. Again the question whether the petitioner loses his status as Scheduled Caste because of his conversion is also not free from doubt in view of a few pronouncements of this Court on this issue. However, we will not go into that question as it is not necessary for us to go into that question in the facts of this case. 27. Shri Gupta then contended that there was no opportunity for the writ petitioners to challenge the caste as the application filed by them for cancellation of the Caste before the authority under 1993 Act was never decided. It was pointed out that such application was filed on 18.04.2006 and various representations were also made to various authorities. We are not concerned with the various representations made to any other authority. However, if an application under Section 5 of the 1993 Act was made to the proper authority it was bound to be enquired into. However, taking the advantage that it was not decided for four months, the writ petitioners could not have rushed with the writ petition. At the most, the writ petitioners could have asked for a direction to the said authority for deciding that application one way or the other. That was not done. If that application had been decided upon and the concerned authority had found that the appellants caste certificate itself was false and fraudulent and he did not genuinely belong to the Scheduled Caste then that itself could have been enough for the appellant to lose the post that he was elected to. In our opinion, it is necessary to get examined the Caste certificates of all the elected persons from reserved constituencies within a time frame to avoid such controversies. 28. Be that as it may, in our opinion, the High Court clearly erred firstly, entertaining the writ petition, secondly in going into the disputed question of fact regarding the caste status, thirdly, in holding that the appellant did not belong to the Scheduled Caste and fourthly, in allowing the writ petition.

1[ds]20. We are afraid, we are not in position to agree with the contention that the case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] is applicable to the present situation. Here the appellant had very specifically asserted in his counter affidavit that he did not belong to the Christian religion and that he further asserted that he was a person belonging to the Scheduled Caste. Therefore, the Caste status of the appellant was a disputed question of fact depending upon the evidence. Such was not the case in K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] . Every case is an authority for what is actually decided in that. We do not find any general proposition that even where there is a specific remedy of filing an Election Petition and even when there is a disputed question of fact regarding the caste of a person who has been elected from the reserved constituency still remedy of writ petition under Article 226 would be available21. Again as we have stated earlier, there was no dispute and no challenge to the findings of the High Court that K. Venkatachalam, the petitioner in case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] was not a Legislator in electoral roll of the constituency for the general elections for December, 1984 and he blatantly and fraudulently represented himself to be a Legislator of the constituency using the similarity with the name of another person. The situation in the present case is, however, entirely different in the sense that here the petitioner very seriously asserted that firstly, he was not a Christian and, secondly, that he belongs to the Scheduled Caste22. Shri Gupta, however, further argued that in the present case what was prayed for was a writ of quo warranto and in fact the election of the appellant was not called in question. It was argued that since the writ petitioners came to know about the appellant not belonging to the Scheduled Caste and since the post of the Chairperson was reserved only for the Scheduled caste, therefore, the High Court was justified in entering into that question as to whether he really belongs to Scheduled Caste. In short, the learned counsel argued that independent of the election of the appellant as a Ward member or as a Chairperson, his caste itself was questioned in the writ petition only with the objective to see whether he could continue as the Chairperson. This argument is clearly incorrect as the continuance of the appellant as the Chairperson was not dependent upon something which was posterior to the appellants election as Chairperson. It is not as if some event had taken place after the election of the appellant which created a disqualification in appellant to continue as the Chairperson. The continuance of the appellant as the Chairperson depended directly on his election, firstly, as a Ward member and secondly as the Chairperson which election was available only to the person belonging to the Scheduled Caste. It is an admitted position that Ward No.8 was reserved for Scheduled Cast and so also the Post of Chairperson. Therefore, though indirectly worded, what was in challenge in reality was the validity of the election of the appellant. According to the writ petitioners, firstly the appellant could not have been elected as a Ward member nor could he be elected as the Chairperson as he did not belong to the Scheduled Caste. We can understand the eventuality where a person who is elected as a Scheduled Caste candidate, renounces his caste after the elections by conversion to some other religion. Then a valid writ petition for quo warranto could certainly lie because then it is not the election of such person which would be in challenge but his subsequently continuing in his capacity as a person belonging to a particular caste. The Counsel for the appellant rightly urged that the question of caste and the election are so inextricably connected that they cannot be separated. Therefore, when the writ petitioners challenged the continuation of the appellant on the ground of his not belonging to a particular caste what they in fact challenged is the validity of the election of the appellant, though apparently the petition is for the writ of quo warranto23. There is yet another distinguishing feature in case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] . In that case there is a clear finding that the elected person therein played a fraud with the Constitution inasmuch as that he knew that his name was not in Electoral Roll of that constituency and he impersonated for some other person taking the advantage of the similarity of names. The appellant herein asserts on the basis of his Caste Certificate that he still belongs to Scheduled Caste. We are, therefore, of the clear opinion that the case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] is not applicable to the present case and the High Court erred in relying upon that decision24. Once it is held that the aforementioned case was of no help to the respondents, the only other necessary inference which emerges is that the bar under Article 243 ZG would spring in actionThere is also no dispute that these community certificates were obtained by the appellant and they were valid and genuine certificates. It is also an admitted position that the certificates were never cancelled under Section 5 of the 1993 Act. The said certificates could be cancelled only under Section 5 after ad enquiry by the authority named in that Section. Under such circumstances we do not think that the High Court could have decided that question of fact which was very seriously disputed by the appellant. It seems that in this case, the High Court has gone out of its way, firstly in relying on the Xerox copies of the service records of the appellants and then at the appellate stage, in calling the files of the Electricity Board where the appellant was working. This amounted to a roving enquiry into the caste of the appellant which was certainly not permissible in writ jurisdiction and also in the wake of Section 5 of 1993 Act26. Again merely because the appellant was described as being a Christian in the service records did not mean that the appellant was actually a person professing Christian religion. It was not after all known as to who had given those details and further as to whether the details, in reality, were truthful or not. It would be unneccesary for us to go into the aspect whether the petitioner in reality is a Christian for the simple reason that this issue was never raised at the time of his election. Again the appellant still holds the valid caste certificates in his favour declaring him to be belonging to Scheduled Caste and further the appellants status as the Scheduled Caste was never cancelled before the authority under the 1993 Act which alone had the jurisdiction to do the same. If it was not for High Court to enter into the disputed question of fact regarding the caste status of the appellant, the findings recorded by it on that question would lose all its relevance and importance. There is one more peculiar fact which we must note. It has come in the judgment of the learned Single Judge as also in the Division Bench that the appellant converted to Christianity. Now it was nobodys case that the petitioner ever was converted nor was it anybodys case as to when such conversion took place, if at all it took place. All the observations by the learned Single Judge regarding the conversion of the appellant to Christianity are, therefore, without any basis, more particularly, in view of the strong denial by the appellant that he never converted to Christianity. Again the question whether the petitioner loses his status as Scheduled Caste because of his conversion is also not free from doubt in view of a few pronouncements of this Court on this issue. However, we will not go into that question as it is not necessary for us to go into that question in the facts of this caseIt was pointed out that such application was filed on 18.04.2006 and various representations were also made to various authorities. We are not concerned with the various representations made to any other authority. However, if an application under Section 5 of the 1993 Act was made to the proper authority it was bound to be enquired into. However, taking the advantage that it was not decided for four months, the writ petitioners could not have rushed with the writ petition. At the most, the writ petitioners could have asked for a direction to the said authority for deciding that application one way or the other. That was not done. If that application had been decided upon and the concerned authority had found that the appellants caste certificate itself was false and fraudulent and he did not genuinely belong to the Scheduled Caste then that itself could have been enough for the appellant to lose the post that he was elected to. In our opinion, it is necessary to get examined the Caste certificates of all the elected persons from reserved constituencies within a time frame to avoid such controversies28. Be that as it may, in our opinion, the High Court clearly erred firstly, entertaining the writ petition, secondly in going into the disputed question of fact regarding the caste status, thirdly, in holding that the appellant did not belong to the Scheduled Caste and fourthly, in allowing the writ petition

### 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: There is yet another distinguishing feature in case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] . In that case there is a clear finding that the elected person therein played a fraud with the Constitution inasmuch as that he knew that his name was not in Electoral Roll of that constituency and he impersonated for some other person taking the advantage of the similarity of names. The appellant herein asserts on the basis of his Caste Certificate that he still belongs to Scheduled Caste. We are, therefore, of the clear opinion that the case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] is not applicable to the present case and the High Court erred in relying upon that decision. 24. Once it is held that the aforementioned case was of no help to the respondents, the only other necessary inference which emerges is that the bar under Article 243 ZG would spring in action. 25. Shri Gupta, however, pointed out that it was specifically proved that the appellant was a Christian and as such he did not belong to the Mala caste which was a Scheduled Caste. Now there is no dispute that the appellant was given two caste certificates within the definition of Section 2 (b) of the 1993 Act. There is also no dispute that these community certificates were obtained by the appellant and they were valid and genuine certificates. It is also an admitted position that the certificates were never cancelled under Section 5 of the 1993 Act. The said certificates could be cancelled only under Section 5 after a full-fledged enquiry by the authority named in that Section. Under such circumstances we do not think that the High Court could have decided that question of fact which was very seriously disputed by the appellant. It seems that in this case, the High Court has gone out of its way, firstly in relying on the Xerox copies of the service records of the appellants and then at the appellate stage, in calling the files of the Electricity Board where the appellant was working. This amounted to a roving enquiry into the caste of the appellant which was certainly not permissible in writ jurisdiction and also in the wake of Section 5 of 1993 Act. 26. Again merely because the appellant was described as being a Christian in the service records did not mean that the appellant was actually a person professing Christian religion. It was not after all known as to who had given those details and further as to whether the details, in reality, were truthful or not. It would be unneccesary for us to go into the aspect whether the petitioner in reality is a Christian for the simple reason that this issue was never raised at the time of his election. Again the appellant still holds the valid caste certificates in his favour declaring him to be belonging to Scheduled Caste and further the appellants status as the Scheduled Caste was never cancelled before the authority under the 1993 Act which alone had the jurisdiction to do the same. If it was not for High Court to enter into the disputed question of fact regarding the caste status of the appellant, the findings recorded by it on that question would lose all its relevance and importance. There is one more peculiar fact which we must note. It has come in the judgment of the learned Single Judge as also in the Division Bench that the appellant converted to Christianity. Now it was nobodys case that the petitioner ever was converted nor was it anybodys case as to when such conversion took place, if at all it took place. All the observations by the learned Single Judge regarding the conversion of the appellant to Christianity are, therefore, without any basis, more particularly, in view of the strong denial by the appellant that he never converted to Christianity. Again the question whether the petitioner loses his status as Scheduled Caste because of his conversion is also not free from doubt in view of a few pronouncements of this Court on this issue. However, we will not go into that question as it is not necessary for us to go into that question in the facts of this case. 27. Shri Gupta then contended that there was no opportunity for the writ petitioners to challenge the caste as the application filed by them for cancellation of the Caste before the authority under 1993 Act was never decided. It was pointed out that such application was filed on 18.04.2006 and various representations were also made to various authorities. We are not concerned with the various representations made to any other authority. However, if an application under Section 5 of the 1993 Act was made to the proper authority it was bound to be enquired into. However, taking the advantage that it was not decided for four months, the writ petitioners could not have rushed with the writ petition. At the most, the writ petitioners could have asked for a direction to the said authority for deciding that application one way or the other. That was not done. If that application had been decided upon and the concerned authority had found that the appellants caste certificate itself was false and fraudulent and he did not genuinely belong to the Scheduled Caste then that itself could have been enough for the appellant to lose the post that he was elected to. In our opinion, it is necessary to get examined the Caste certificates of all the elected persons from reserved constituencies within a time frame to avoid such controversies. 28. Be that as it may, in our opinion, the High Court clearly erred firstly, entertaining the writ petition, secondly in going into the disputed question of fact regarding the caste status, thirdly, in holding that the appellant did not belong to the Scheduled Caste and fourthly, in allowing the writ petition. ### Response: 1

M/S Sardar Associates Vs. Punjab & Sind Bank

conferred on the Reserve Bank to enable it to exercise effective control over all banks. Sections 21 and 35-A enable it to issue directives in public interest to regulate the charging of interest on loans or advances made from time to time... 38. We may, however, notice that a Division Bench of this Court without noticing the decision of the Constitution Bench in Central Bank of India (supra) in Oriental Bank of Commerce v. Sunder Lal Jain and Another [(2008) 2 SCC 280] opined as under: 8. A perusal of the aforesaid revised guidelines issued by Reserve Bank of India on 29-1-2003 for compromise settlement of chronic non-performing assets (NPAs) of public sector banks will show that the same will be applicable and will cover NPAs classified as substandard as on 31-3-2000 which have subsequently become doubtful or loss. The revised guidelines have no application where the NPAs have not been classified as substandard as on 31-3-2000. It is not in dispute that the account of the respondents was a performing account between 1-4-2000 and 31-3-2001. According to the records of the Bank, the account was consigned to protest bill account on 15-10- 2001 and was declared as NPA as per prudential norms of RBI on 31-3-2001. The respondents contested the case before DRT and did not admit their liability. No such plea was raised that their account had become NPA as on 31-3-2000 before DRT. Therefore, the revised guidelines issued by Reserve Bank of India on 29-1-2003 for compromise settlement of chronic non-performing assets (NPAs) of public sector banks were not at all applicable to the facts and circumstances of the case and no direction could be issued to declare the respondents account as NPA from 31-3-2000. 39. Judicial discipline mandates the bench comprising of two Judges to follow the judgments of the Constitution Bench having regard to Article 141 of the Constitution of India. 40. If in terms of the guidelines issued by the Reserve Bank of India a right is created in a borrower, we see no reason as to why a writ of mandamus could not be issued. We would assume, as has been contended by Mr. Singh, that while exercising its power under Article 226 of the Constitution of India, the High Courts may or may not issue such a direction but the same, in our opinion, by itself, would not mean that the High Court would be correct in interfering with an order passed by the Appellate Tribunal which was entitled to consider the effect of such one time settlement. 41. The question pertaining to the present matter is regarding whether or not a circular issued by a statutory body for the governance and regulation of certain agreements confers a legal right upon the aggrieved party in case of non-compliance or complete and absolute deviation from the said guidelines by the body formulating such circulars. Alternately, can the aggrieved party, then, claim its right of judicial review under Article 32 or 226 to quash the said circular in case of discriminatory application of such rules/guidelines so mentioned in the circular. 42. In Union of India and Anr. v. Azadi Bachao Andolan and Anr [(2004) 10 SCC 1] , it was held that a circular issued by the Central Board of Direct Taxes(CBDT) was not inconsistent with the provisions of the Income-Tax Act and was valid and efficacious. The assessing officers chose to ignore the guidelines and hence the CBDT was justified in issuing appropriate guidelines under Circular No. 789. The said Circular does not in any way crib, confine or cabin the powers of the assessing officers with regard to any particular assessment. It merely formulates broad guidelines to be applied in the matter of assessment of the assesses covered by the provisions of the Indo - Mauritius Double Taxation Avoidance Convention, 1983. 43. In Commissioner of Income Tax v. Anjum M.H. Ghaswala and Ors. [(2002) 1 SCC 633] , it was pointed out that the circulars issued by CBDT under Section 119 of the Income Tax Act have statutory force and would be binding on every income-tax authority although such may not be the case with regard to press releases issue by the CBDT for information of the public. 44. In UCO Bank v. CIT [(1999) 4 SCC 599] , this Court opined that the circulars as contemplated therein cannot be adverse to the assessee. Thus, the authority which wields the power for its own advantage when required to wield it in a manner it considers just by relaxing the rigour of the law or in other permissible manners as laid down in Section 119. The power is given for the purpose of just, proper and efficient management of the work of assessment and in public interest. 45. In BSNL & anr. v. BPL Mobile Cellur Ltd. & ors. [2008 (8) SCALE 106 ], it was held that the direction contained in the said circular letters are relevant for the officers who are authorised not only to grant licenses but also enter into contracts and prepare bills. The circular letters having no statutory force undoubtedly would not govern the contract. A distinction, thus, must be made between statutory and non-statutory guidelines. A distinction must also be made between the circular which are relevant but not binding on the third parties and which are imperative in character. 46. As regards the Reserve Bank of India guidelines, it was the direction of the Appellate Tribunal that the Respondent-Bank should settle the case of the appellants under the RBI guidelines through a One Time Settlement and should invite a proposal for settlement and recovery of the agreed amount. 47. The Appellate Tribunal in passing its order followed the dicta laid down in Constitution Bench judgment in Central Bank of India (supra), wherein it was held that: .....RBI directive have not only statutory flavour, any contravention thereof or any default in compliance therewith is punishable under sub-section (4) of S. 46 of the Banking Regulation Act, 1949.

1[ds]17. We may, however, place on record that the Parliament, in its wisdom, inserted Section 36A of the Act by the Banking Companies (Amendment) Act, 1959 in terms whereof some of the provisions of the 1949 Act were not to be applied to certain banking companies18. Indisputably, the guidelines were issued by the Reserve Bank of India by reason of a letter dated 3.09.2005 addressed to the Chairman/ Managing Director of all public sector banks. It clearly refers to a circular dated 19.08.2005 issued by the Reserve Bank of India in terms whereof it was directed that one time settlement scheme for recovery of NPA below Rs. 10 crore was laid down. The said letter was issued pursuant to the aforementioned circular in terms whereof one time settlement scheme was formulated for recovery of NPA below Rs. 10 crores. It was categorically stated therein that the same was required to be implemented by all public sector banks. The guidelines issued were to provide a simplified,y mechanism therefor in SME sector. It was categorically stated that all public sector banks shall uniformly implement these guidelines20. Before, however, adverting to the question as to whether the Board of Directors of the respondentBank could deviate from the aforementioned guidelines and, if so, to what extent, we may notice the following correspondences, which was exchanged by the parties hereto, so as to enable us to consider as to whether the respondentBank had itself applied the said guidelines in case of the appellants or not27. The said order of the Punjab and Haryana High Court dated 21.11.2006 again indisputably has been affirmed by this Court. But, in our opinion, the same by itself did not preclude the appellants to approach the Appellate Tribunal. The jurisdiction of the appellate tribunal ise with the powers of the Tribunal. The memo of appeal filed by the appellants before the Tribunal clearly shows that the contentions with regard to the enforcement of the aforementioned provisions had been made therein28. It is, therefore, not correct to contend that no pleadings were made for the purpose of enforcing the RBI guidelines in respect of one time settlement29. It may be that no specific prayer was made but the same, in our opinion, keeping in view the provisions of the 2002 Act, did not preclude the Appellate Tribunal to consider the offer of the appellants. The Appellate Tribunal in terms of the provisions of the Act like the original Tribunal is interested only in recovery of the amount. While doing so, it, in our considered opinion, has the requisite jurisdiction to consider the prayer made by a debtor for one time settlement particularly in view of the fact that the same is within the purview of One Time Settlement Scheme of the Reserve Bank of India. If a public sector bank is otherwise bound by any guidelines issued by the Reserve Bank of India, we see no reason as to why the same cannot be enforced in terms of the provisions of the Act by the Tribunal and consequently by the Appellate Tribunal. It is not a case where the appellants had prayed for quashing of a policy decision taken by the respondentBank. The question which arose for consideration before the Appellate Tribunal as also before the High Court was as to whether offer having been made by the bank to the appellants herein, it could have turned around and contend that only because the appellants had furnished security to the extent of Rs. 11 crores, the same by itself would entitle it to take recourse to a discriminatory treatment. The answer to the said question must be rendered in the negative30. We may notice that the offer made by the appellants in terms of the RBI guidelines for one time settlement was Rs., however, keeping in view the fact that the respondentBank had a better security available to it demanded a sum of Rs. 4.92 crores32. Does it satisfy they clause laid down by the Reserve Bank of India and accepted by the Reserve Bank is the question. While making a deviation, the Board of Directors of a public sector bank could not have taken recourse to a policy decision which is per se discriminatory. RespondentBank is a `State within the meaning of Article 12 of the Constitution of India apart from the fact that it is bound to follow the guidelines issued by the Reserve Bank of India33. If, therefore, the broad policy decisions contained in the guidelines were required to be followed, the power of the Board of Directors to make deviation in terms of Clause 4 thereof would only be in relation to some minor matters which does not touch the broad aspects of the policy decision and in particular the one governing they treatment. In a case of this nature, we are satisfied that the respondentBank is guilty of violation of the equality clause contained in the Reserve Bank of India guidelines as also Article 14 of the Constitution of India34. The fact that the appellants were defaulters is not in dispute. It is also not in dispute that it comes within the purview of the Small and Medium Enterprises sector35. It is furthermore not in dispute that the respondentBank itself had made an offer to accept the proposal of the appellants in regard to enforcement of one time settlement pursuant to the RBI guidelines. Indisputably, it was all along aware that the amount of securities was lying with it. It is only pursuant thereto the directions had been issued by the Tribunal39. Judicial discipline mandates the bench comprising of two Judges to follow the judgments of the Constitution Bench having regard to Article 141 of the Constitution of India40. If in terms of the guidelines issued by the Reserve Bank of India a right is created in a borrower, we see no reason as to why a writ of mandamus could not be issued. We would assume, as has been contended by Mr. Singh, that while exercising its power under Article 226 of the Constitution of India, the High Courts may or may not issue such a direction but the same, in our opinion, by itself, would not mean that the High Court would be correct in interfering with an order passed by the Appellate Tribunal which was entitled to consider the effect of such one time settlement41. The question pertaining to the present matter is regarding whether or not a circular issued by a statutory body for the governance and regulation of certain agreements confers a legal right upon the aggrieved party in case ofe or complete and absolute deviation from the said guidelines by the body formulating such circulars. Alternately, can the aggrieved party, then, claim its right of judicial review under Article 32 or 226 to quash the said circular in case of discriminatory application of such rules/guidelines so mentioned in the circular46. As regards the Reserve Bank of India guidelines, it was the direction of the Appellate Tribunal that thek should settle the case of the appellants under the RBI guidelines through a One Time Settlement and should invite a proposal for settlement and recovery of the agreed amount.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: conferred on the Reserve Bank to enable it to exercise effective control over all banks. Sections 21 and 35-A enable it to issue directives in public interest to regulate the charging of interest on loans or advances made from time to time... 38. We may, however, notice that a Division Bench of this Court without noticing the decision of the Constitution Bench in Central Bank of India (supra) in Oriental Bank of Commerce v. Sunder Lal Jain and Another [(2008) 2 SCC 280] opined as under: 8. A perusal of the aforesaid revised guidelines issued by Reserve Bank of India on 29-1-2003 for compromise settlement of chronic non-performing assets (NPAs) of public sector banks will show that the same will be applicable and will cover NPAs classified as substandard as on 31-3-2000 which have subsequently become doubtful or loss. The revised guidelines have no application where the NPAs have not been classified as substandard as on 31-3-2000. It is not in dispute that the account of the respondents was a performing account between 1-4-2000 and 31-3-2001. According to the records of the Bank, the account was consigned to protest bill account on 15-10- 2001 and was declared as NPA as per prudential norms of RBI on 31-3-2001. The respondents contested the case before DRT and did not admit their liability. No such plea was raised that their account had become NPA as on 31-3-2000 before DRT. Therefore, the revised guidelines issued by Reserve Bank of India on 29-1-2003 for compromise settlement of chronic non-performing assets (NPAs) of public sector banks were not at all applicable to the facts and circumstances of the case and no direction could be issued to declare the respondents account as NPA from 31-3-2000. 39. Judicial discipline mandates the bench comprising of two Judges to follow the judgments of the Constitution Bench having regard to Article 141 of the Constitution of India. 40. If in terms of the guidelines issued by the Reserve Bank of India a right is created in a borrower, we see no reason as to why a writ of mandamus could not be issued. We would assume, as has been contended by Mr. Singh, that while exercising its power under Article 226 of the Constitution of India, the High Courts may or may not issue such a direction but the same, in our opinion, by itself, would not mean that the High Court would be correct in interfering with an order passed by the Appellate Tribunal which was entitled to consider the effect of such one time settlement. 41. The question pertaining to the present matter is regarding whether or not a circular issued by a statutory body for the governance and regulation of certain agreements confers a legal right upon the aggrieved party in case of non-compliance or complete and absolute deviation from the said guidelines by the body formulating such circulars. Alternately, can the aggrieved party, then, claim its right of judicial review under Article 32 or 226 to quash the said circular in case of discriminatory application of such rules/guidelines so mentioned in the circular. 42. In Union of India and Anr. v. Azadi Bachao Andolan and Anr [(2004) 10 SCC 1] , it was held that a circular issued by the Central Board of Direct Taxes(CBDT) was not inconsistent with the provisions of the Income-Tax Act and was valid and efficacious. The assessing officers chose to ignore the guidelines and hence the CBDT was justified in issuing appropriate guidelines under Circular No. 789. The said Circular does not in any way crib, confine or cabin the powers of the assessing officers with regard to any particular assessment. It merely formulates broad guidelines to be applied in the matter of assessment of the assesses covered by the provisions of the Indo - Mauritius Double Taxation Avoidance Convention, 1983. 43. In Commissioner of Income Tax v. Anjum M.H. Ghaswala and Ors. [(2002) 1 SCC 633] , it was pointed out that the circulars issued by CBDT under Section 119 of the Income Tax Act have statutory force and would be binding on every income-tax authority although such may not be the case with regard to press releases issue by the CBDT for information of the public. 44. In UCO Bank v. CIT [(1999) 4 SCC 599] , this Court opined that the circulars as contemplated therein cannot be adverse to the assessee. Thus, the authority which wields the power for its own advantage when required to wield it in a manner it considers just by relaxing the rigour of the law or in other permissible manners as laid down in Section 119. The power is given for the purpose of just, proper and efficient management of the work of assessment and in public interest. 45. In BSNL & anr. v. BPL Mobile Cellur Ltd. & ors. [2008 (8) SCALE 106 ], it was held that the direction contained in the said circular letters are relevant for the officers who are authorised not only to grant licenses but also enter into contracts and prepare bills. The circular letters having no statutory force undoubtedly would not govern the contract. A distinction, thus, must be made between statutory and non-statutory guidelines. A distinction must also be made between the circular which are relevant but not binding on the third parties and which are imperative in character. 46. As regards the Reserve Bank of India guidelines, it was the direction of the Appellate Tribunal that the Respondent-Bank should settle the case of the appellants under the RBI guidelines through a One Time Settlement and should invite a proposal for settlement and recovery of the agreed amount. 47. The Appellate Tribunal in passing its order followed the dicta laid down in Constitution Bench judgment in Central Bank of India (supra), wherein it was held that: .....RBI directive have not only statutory flavour, any contravention thereof or any default in compliance therewith is punishable under sub-section (4) of S. 46 of the Banking Regulation Act, 1949. ### Response: 1

Rangaswami, The Textile Commissioner Vs. Sugar Textile Mills Private Limited

CHANDRACHUD, J. 1. Under the power conferred by Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, the Central Government issued an Order called "The Cotton Textiles (Control) Order, 1948". Clause 20 of that Order, as amended, reads thus:--"20(1) The Textile Commissioner may from time to time issue directions in writing to any manufacturer or class of manufacturers or the manufacturers generally regarding the classes or specifications of cloth or yarn, and the maximum or the minimum quantities thereof, which they shall or shall not pro- duce during such periods as may be specified in the directions, and they shall comply with such directions. 20(2) In the exercise of the powers conferred upon him by sub-clause (1) the Textile Commissioner shah have regard to the capacity of the producer to produce cloth and yarn of different descriptions or specifications and to the needs of the general public." 2. The question for our determination in these appeals is whether, if the Textile Commissioner decides to issue appropriate directions to any manufacturer or class of manufacturers, it is obligatory upon him to specify therein the period for which the directions will remain in operation. 3. As hold by this Court in State of Uttar Pradesh v. Jogendra Singh, ([1964] 2 S.C.R. 197 at 202.) it is well settled that the word "may" is capable of meaning "must" or "shall" in the light of the context and that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Considering the purpose of the relevant empowerment and its impact on those who are likely to be affected by the exercise of the power, we are clear that the power conferred on the Textile Commissioner to issue directions is coupled with the duty to specify the particular period for which the directions shall be operative. Directions of the kind envisaged by clause 20 are influenced and justified by exigencies which render it imperative that the directions be reviewed from time to time. That becomes feasible only if the directions as limited expressly to a determinate period of time at the end of which a fresh review of facts and circumstances becomes obligatory. There is a fear that a direction not limited in point of time may continue to operate even after it has outlived its utility for the reason merely that the need to review it is not clearly perceived. Besides, the manufacturers must know, in order that they may organize their business in their own interest as well as in the interest of the community at large, as to how long any particular embargo is going to be operative.Accordingly, we affirm the judgment of the High Court though on the ground only that the impugned Notification in so far as it prohibits the printing of any border or heading on sarees etc. for an indefinite period is ultra vires clause 20 of the Cotton Textiles (Control) Order, 1948, since the aforesaid clause casts an obligation or a duty upon the Textile Commissioner to specify the period during which the prohibition shall remain in force. We express no opinion on the other points, including Point No. 6 urged before the High Court for its consideration. 4.

0[ds]As hold by this Court in State of Uttar Pradesh v. Jogendra Singh, ([1964] 2 S.C.R. 197 at 202.) it is well settled that the word "may" is capable of meaning "must" or "shall" in the light of the context and that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Considering the purpose of the relevant empowerment and its impact on those who are likely to be affected by the exercise of the power, we are clear that the power conferred on the Textile Commissioner to issue directions is coupled with the duty to specify the particular period for which the directions shall be operative. Directions of the kind envisaged by clause 20 are influenced and justified by exigencies which render it imperative that the directions be reviewed from time to time. That becomes feasible only if the directions as limited expressly to a determinate period of time at the end of which a fresh review of facts and circumstances becomes obligatory. There is a fear that a direction not limited in point of time may continue to operate even after it has outlived its utility for the reason merely that the need to review it is not clearly perceived. Besides, the manufacturers must know, in order that they may organize their business in their own interest as well as in the interest of the community at large, as to how long any particular embargo is going to be operative.Accordingly, we affirm the judgment of the High Court though on the ground only that the impugned Notification in so far as it prohibits the printing of any border or heading on sarees etc. for an indefinite period is ultra vires clause 20 of the Cotton Textiles (Control) Order, 1948, since the aforesaid clause casts an obligation or a duty upon the Textile Commissioner to specify the period during which the prohibition shall remain in force. We express no opinion on the other points, including Point No. 6 urged before the High Court for its consideration.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: CHANDRACHUD, J. 1. Under the power conferred by Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, the Central Government issued an Order called "The Cotton Textiles (Control) Order, 1948". Clause 20 of that Order, as amended, reads thus:--"20(1) The Textile Commissioner may from time to time issue directions in writing to any manufacturer or class of manufacturers or the manufacturers generally regarding the classes or specifications of cloth or yarn, and the maximum or the minimum quantities thereof, which they shall or shall not pro- duce during such periods as may be specified in the directions, and they shall comply with such directions. 20(2) In the exercise of the powers conferred upon him by sub-clause (1) the Textile Commissioner shah have regard to the capacity of the producer to produce cloth and yarn of different descriptions or specifications and to the needs of the general public." 2. The question for our determination in these appeals is whether, if the Textile Commissioner decides to issue appropriate directions to any manufacturer or class of manufacturers, it is obligatory upon him to specify therein the period for which the directions will remain in operation. 3. As hold by this Court in State of Uttar Pradesh v. Jogendra Singh, ([1964] 2 S.C.R. 197 at 202.) it is well settled that the word "may" is capable of meaning "must" or "shall" in the light of the context and that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Considering the purpose of the relevant empowerment and its impact on those who are likely to be affected by the exercise of the power, we are clear that the power conferred on the Textile Commissioner to issue directions is coupled with the duty to specify the particular period for which the directions shall be operative. Directions of the kind envisaged by clause 20 are influenced and justified by exigencies which render it imperative that the directions be reviewed from time to time. That becomes feasible only if the directions as limited expressly to a determinate period of time at the end of which a fresh review of facts and circumstances becomes obligatory. There is a fear that a direction not limited in point of time may continue to operate even after it has outlived its utility for the reason merely that the need to review it is not clearly perceived. Besides, the manufacturers must know, in order that they may organize their business in their own interest as well as in the interest of the community at large, as to how long any particular embargo is going to be operative.Accordingly, we affirm the judgment of the High Court though on the ground only that the impugned Notification in so far as it prohibits the printing of any border or heading on sarees etc. for an indefinite period is ultra vires clause 20 of the Cotton Textiles (Control) Order, 1948, since the aforesaid clause casts an obligation or a duty upon the Textile Commissioner to specify the period during which the prohibition shall remain in force. We express no opinion on the other points, including Point No. 6 urged before the High Court for its consideration. 4. ### Response: 0

Orissa State Warehousing Corporation Vs. Commissioner of Income Tax

arise pertaining to that part of the income only which arises or is derived from the letting of godowns or the warehouses and for the purposes specified in Section 10(29) of the Act - as noticed above. The statute has been rather categorical and restrictive in the matter of grant of exemption: storage, processing or facilitating the marketing of the commodities are definitely regarded as three different forms of activities which are entitled to exemption in the event of their being any income therefrom. We do lend our concurrence to the view expressed by the Madhya Pradesh High Court and record that in the event the letting of godowns or warehouses is for any other purpose or if income is derived from any other source, then and in that event such an income cannot possibly come within the ambit of Section 10(29) of the Act and is thus not exempt from tax. The facts in issue pertaining to the interest income on fixed deposit or ascribing the activities of the assessee being termed to be one integrated activity does not and cannot arise. Mr. C.S. Vaidyanathan, Addl. Solicitor General rightly contended that the language being clear and there being no ambiguity, question of there being any integrated activity and reading the same in to the statue would be a violent departure from the intent of the legislature. 30. Let us however at this juncture consider some of the oft cited decision pertaining to the interpretation of fiscal statutes being the focal point of consideration in these appeals. Lord Halsbury as early as 1901, in Cooke v. Charles A Vogehar Company, 1901 A.C. 102 stated the law inthe manner following: "a court of law, has nothing to do with the reasonableness or unreasonableness of a provision of a statute except so far as it may held it in interpreting what the legislature has said. If the language of a statute be plain, admitting of only one meaning, the legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results. If the language of this Sub-section be not controlled by some of the other provisions of the statute, it must, since, its language is plain and unambiguous, be enforced, and your Lordships House sitting judicially is not concerned with the question whether the policy it embodies is wise and unwise, or whether it leads to consequences jut or unjust beneficial or mischievous." 31. The oft-quoted observations of Rowlatt, J. in the case of Cape Brandy Syndicate v. Inland Revenue Commissioners, 1921(1) KB 64 ought also to be noticed at this juncture. The learned Judge observed: "In a taxing statute one has to look at what is clearly said. There is no equity about a tax, There is no intendment. There is no presumption as to a tax. Nothing is to be read in nothing is to be implied. One can only look fairly on the language used." 32. The observations of Rowlatt, J. as above stand accepted and approved by the House of Lords in a later decision, in the case of Canadian Eagle Oil Company Limited v. The King, 1946 AC 119. Lord Thankerton also in a manner similar in Ingland Revenue Commissioner v. Ross & Coulter & Ors., Bladnoch Distillery Co. Ltd., 1948(1) AELR 616 at 625 observed : Observed: "If the meaning of the provision is reasonably clear, the Courts have no jurisdiction to mitigate such harshness". 33. The decision of this Court in Keshavji Raviji & Co. v. Commissioner of Income Tax, AIR 1991 SC 1806 also lends concurrence to the views expressed above. This Court observed: "As long as there is no ambiguity in the statutory language resort to any interpretative process to unfold the legislative intent becomes impermissible. The supposed intention of the legislation cannot then appealed to whittle down the statutory language which is otherwise unambiguous. If the intendment is not in the words used it is nowhere else. The need for interpretation arises when the words used in the statute are, on their terms, ambivalent and do not manifest the intent of the legislature............Artificial and unduly latitudinarian rules of construction which, with their general tendency to `give the tax-payer the breaks are out of place where the legislation has a fiscal mission.Be it noted that individual cases of hardship and injustice do not and cannot have any bearing for rejecting the natural construction by attributing normal meanings to the words used since "hard cases do not make bad laws". 34. In fine thus, a fiscal statute shall have to be interpreted on the basis of the language used therein and not de hors the same. No words ought to be added and only the language used ought to be considered so as to ascertain the proper meaning and intent of the legislation. The Court is to ascribe natural and ordinary meaning to the words used by the legislature and the Court ought not, under any circumstances, to substitute its own impression and ideas in place of the legislative intent as is available from a plain reading of the statutory provisions. 35. In the premises, we do feel it expedient to record that by reason of the clarity of expression, question of there being any integrated activity being exempt within the meaning of Section 10(29) of the Act does not and cannot arise. The Madhya Pradesh High Court has correctly applied the law and the comparison effected with other provisions are pointers to the distinction and the same cannot but be termed to be in accordance with the golden rule of construction in the matter of interpretation of statutes. 36. We do herein record our acceptance of the same and observe that Section 10(29) is singularly singular in its application with its scope restrictive as is evident from the intent of the legislature and as evidenced form the language used therein. 37.

0[ds]In fine thus, a fiscal statute shall have to be interpreted on the basis of the language used therein and not de hors the same. No words ought to be added and only the language used ought to be considered so as to ascertain the proper meaning and intent of the legislation. The Court is to ascribe natural and ordinary meaning to the words used by the legislature and the Court ought not, under any circumstances, to substitute its own impression and ideas in place of the legislative intent as is available from a plain reading of the statutorythe premises, we do feel it expedient to record that by reason of the clarity of expression, question of there being any integrated activity being exempt within the meaning of Section 10(29) of the Act does not and cannot arise. The Madhya Pradesh High Court has correctly applied the law and the comparison effected with other provisions are pointers to the distinction and the same cannot but be termed to be in accordance with the golden rule of construction in the matter of interpretation ofdo herein record our acceptance of the same and observe that Section 10(29) is singularly singular in its application with its scope restrictive as is evident from the intent of the legislature and as evidenced form the language useddue regard to the language used question of exemption would arise pertaining to that part of the income only which arises or is derived from the letting of godowns or the warehouses and for the purposes specified in Section 10(29) of the Act - as noticed above. The statute has been rather categorical and restrictive in the matter of grant of exemption: storage, processing or facilitating the marketing of the commodities are definitely regarded as three different forms of activities which are entitled to exemption in the event of their being any income therefrom. We do lend our concurrence to the view expressed by the Madhya Pradesh High Court and record that in the event the letting of godowns or warehouses is for any other purpose or if income is derived from any other source, then and in that event such an income cannot possibly come within the ambit of Section 10(29) of the Act and is thus not exempt from tax. The facts in issue pertaining to the interest income on fixed deposit or ascribing the activities of the assessee being termed to be one integrated activity does not and cannot arise. Mr. C.S. Vaidyanathan, Addl. Solicitor General rightly contended that the language being clear and there being no ambiguity, question of there being any integrated activity and reading the same in to the statue would be a violent departure from the intent of the legislature.

### 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: arise pertaining to that part of the income only which arises or is derived from the letting of godowns or the warehouses and for the purposes specified in Section 10(29) of the Act - as noticed above. The statute has been rather categorical and restrictive in the matter of grant of exemption: storage, processing or facilitating the marketing of the commodities are definitely regarded as three different forms of activities which are entitled to exemption in the event of their being any income therefrom. We do lend our concurrence to the view expressed by the Madhya Pradesh High Court and record that in the event the letting of godowns or warehouses is for any other purpose or if income is derived from any other source, then and in that event such an income cannot possibly come within the ambit of Section 10(29) of the Act and is thus not exempt from tax. The facts in issue pertaining to the interest income on fixed deposit or ascribing the activities of the assessee being termed to be one integrated activity does not and cannot arise. Mr. C.S. Vaidyanathan, Addl. Solicitor General rightly contended that the language being clear and there being no ambiguity, question of there being any integrated activity and reading the same in to the statue would be a violent departure from the intent of the legislature. 30. Let us however at this juncture consider some of the oft cited decision pertaining to the interpretation of fiscal statutes being the focal point of consideration in these appeals. Lord Halsbury as early as 1901, in Cooke v. Charles A Vogehar Company, 1901 A.C. 102 stated the law inthe manner following: "a court of law, has nothing to do with the reasonableness or unreasonableness of a provision of a statute except so far as it may held it in interpreting what the legislature has said. If the language of a statute be plain, admitting of only one meaning, the legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results. If the language of this Sub-section be not controlled by some of the other provisions of the statute, it must, since, its language is plain and unambiguous, be enforced, and your Lordships House sitting judicially is not concerned with the question whether the policy it embodies is wise and unwise, or whether it leads to consequences jut or unjust beneficial or mischievous." 31. The oft-quoted observations of Rowlatt, J. in the case of Cape Brandy Syndicate v. Inland Revenue Commissioners, 1921(1) KB 64 ought also to be noticed at this juncture. The learned Judge observed: "In a taxing statute one has to look at what is clearly said. There is no equity about a tax, There is no intendment. There is no presumption as to a tax. Nothing is to be read in nothing is to be implied. One can only look fairly on the language used." 32. The observations of Rowlatt, J. as above stand accepted and approved by the House of Lords in a later decision, in the case of Canadian Eagle Oil Company Limited v. The King, 1946 AC 119. Lord Thankerton also in a manner similar in Ingland Revenue Commissioner v. Ross & Coulter & Ors., Bladnoch Distillery Co. Ltd., 1948(1) AELR 616 at 625 observed : Observed: "If the meaning of the provision is reasonably clear, the Courts have no jurisdiction to mitigate such harshness". 33. The decision of this Court in Keshavji Raviji & Co. v. Commissioner of Income Tax, AIR 1991 SC 1806 also lends concurrence to the views expressed above. This Court observed: "As long as there is no ambiguity in the statutory language resort to any interpretative process to unfold the legislative intent becomes impermissible. The supposed intention of the legislation cannot then appealed to whittle down the statutory language which is otherwise unambiguous. If the intendment is not in the words used it is nowhere else. The need for interpretation arises when the words used in the statute are, on their terms, ambivalent and do not manifest the intent of the legislature............Artificial and unduly latitudinarian rules of construction which, with their general tendency to `give the tax-payer the breaks are out of place where the legislation has a fiscal mission.Be it noted that individual cases of hardship and injustice do not and cannot have any bearing for rejecting the natural construction by attributing normal meanings to the words used since "hard cases do not make bad laws". 34. In fine thus, a fiscal statute shall have to be interpreted on the basis of the language used therein and not de hors the same. No words ought to be added and only the language used ought to be considered so as to ascertain the proper meaning and intent of the legislation. The Court is to ascribe natural and ordinary meaning to the words used by the legislature and the Court ought not, under any circumstances, to substitute its own impression and ideas in place of the legislative intent as is available from a plain reading of the statutory provisions. 35. In the premises, we do feel it expedient to record that by reason of the clarity of expression, question of there being any integrated activity being exempt within the meaning of Section 10(29) of the Act does not and cannot arise. The Madhya Pradesh High Court has correctly applied the law and the comparison effected with other provisions are pointers to the distinction and the same cannot but be termed to be in accordance with the golden rule of construction in the matter of interpretation of statutes. 36. We do herein record our acceptance of the same and observe that Section 10(29) is singularly singular in its application with its scope restrictive as is evident from the intent of the legislature and as evidenced form the language used therein. 37. ### Response: 0

Jaikishan Dass Mull Vs. Luchhiminarain Kanoria & Company

the chain until they reach the Mill Company. The process of the registered holder giving shipping instructions to his seller and each successive buyer passing on such shipping instructions to his immediate seller so as ultimately to reach the Mill Company would be cumbrous and time consuming and would impede quick movement of goods in performance of export contracts and bye-law 5 of Chapter VIII, therefore, provided that, instead of going through this tortuous process of passing on shipping instructions from one end of the chain to another through each link in the chain, the last buyer who is the registered holder may directly give shipping instructions to the Mill Company and that would be tantamount to giving shipping instructions in performance of each of the chain contracts all along the line. The presence of a clause in the chain contracts providing for delivery of Pucca Delivery Orders against payment of the price does not, therefore, exclude giving of shipping instructions by the buyers to the sellers. In fact, shipping instructions have to be given, because the contracts are export contracts providing for delivery free alongside export vessel in the port of Calcutta and, as pointed out above, bye-law 5 of Chapter VIII clearly provides for giving of shipping instructions. Now, obviously when shipping instructions are to be given, each of the chain contracts may legitimately stipulate that a particular number of clear working days notice to place goods alongside shall be given by the buyers to the sellers and that is precisely what is provided by cl. (2) of the prescribed form. Clause (2) of the prescribed form requiring buyers to give a particular number of clear working days notice to place goods alongside cannot, therefore, be said to be inconsistent with the provision for delivery of Pucca Delivery Orders against payment of the price.15. This view finds support from the decision of this Court in Duni Chand Rataria v. Bhuwalka Brothers Ltd. (1955) 1 SCR 1071 = (AIR 1955 Sc 182 ). N. H. Bhagwati, J., speaking on behalf of the Court in that case, quoted with approval the following passage from the judgment of the Trial Court setting out the manner in which transferable specific delivery contracts in jute goods are effected and carried out in the city of Calcutta:"Now visualize the long chain of contracts in which the defendants contract in one of the connecting links. The defendant buys from its immediate seller and sells to its immediate buyer. As seller it is liable to give and as buyer it is entitled to take delivery. As seller it receives and as buyer it gives shipping instructions. Similar shipping instruction is given by each link until it reaches the mills. The mills deliver the goods alongside the steamer. Such delivery is in implement of the contract between the mills and their immediate buyer. But eo instant it is also in implement of each of the chain contracts including the contract between the defendant and its immediate buyer and the contract between the defendant and its immediate seller. Not only does the mill give and its immediate buyer take actual delivery but eo instanti each middleman gives and takes actual delivery. Simultaneously the defendant takes actual delivery of possession of the jute goods for its immediate seller and gives actual delivery of possession of jute goods to its immediate buyer. Prima facie at the moment of the delivery alongside the steamer there is appropriation and the passing of the property in the goods and the giving and taking all along the chain at the same moment.The learned Judge then, on the basis of this finding, proceeded to hold:"The mates receipts or the delivery orders as the case may be, represented the goods. The sellers handed over these documents to the buyer against cash payment, and the buyer obtained these documents in token of deliver of possession of that goods. They in turn passed these documents from hand to hand until they rested with the ultimate buyer who took physical or manual delivery of possession of those goods. The constructive delivery of possession which was obtained by the intermediate parties was thus translated into a physical analysis eliminating the unnecessary process of each of the intermediate parties taking and in his turn giving actual delivery of possession of the goods in the narrow sense of physical or manual delivery thereof.These observations bear out what we have said in regard to the mechanics of performance of chain contracts in jute goods and show that shipping instructions can and must follow delivery and endorsement of Pucca Delivery Orders from one buyer to another in the chain and when the last buyer gives shipping instructions to the Mill Company and pursuant to such shipping instructions the Mill Company delivers the goods alongside the export vessel, the giving and taking of actual delivery of possession of the goods takes place "all along the chain at the same moment.16. It is, therefore, clear, both on principle and authority, that in case of a transferable specific delivery contract for export, clause (2) of the prescribed form requiring buyers to give a particular number of clear working days notice to place goods alongside is not rendered inapplicable by a provision in the contract under clause (4) stipulating for deliver of Pucca Delivery Orders against payment of the price. Clause (2) of the prescribed form can be appropriately incorporated in such a contract and omission to include, it cannot be justified on the plea that it would be inconsistent with clause (4) of the contract.17. We must, therefore, hold that since the contracts in the present case did not contain any provision corresponding to clause (2) of the prescribed form requiring buyers to give a particular number of clear working days notice to place goods alongside, they were not in the prescribed form and hence they were illegal under Section 15, sub-section (3A) and the arbitration clause contained in each of these contracts was also consequently void.

0[ds]11. Now there can be no doubt that clause (2) of the prescribed form was scored out and omitted from the contracts notes in respect of the contracts between the parties. There was no provision included in any of these contracts requiring the buyers to give any particular number of clear working days notice to the sellers to place goods alongside export vessel in the port of Calcutta. The contracts thus clearly departed from the prescribed form in respect of this particular provision. The question is whether on this account it could be said that the contracts were not in the prescribed form in accordance with the requirement of1 (b. Now, when can a contract be said to be in the prescribed form and when not is no longer a question which presents any serious difficulty. It is settled by the high authority of the Judicial Committee of the Privy Council and there is also a pronouncement of this Court on the point. We may first refer to the decision of the Privy Council in Radhakisson Gopikisson v. Balmukund Ramchandra. 60 Ind App 63 = (AIR 1933 PC 55 ). The question which arose for determination in this case was whether certain contracts entered into whether the parties contravened any of themade by the Board of Directors of the East India Cotton Association Ltd. and were, therefore, void under Section 5 of the Bombay Cotton Contracts Act 1922.81 provided that "contracts...shall be in writing in the form given in the Appendix. The contracts in question were admittedly inconsistent with the terms and conditions set out in the prescribed form in at least two respects and yet the contention of the appellants was that the contracts were in the prescribed form and there was no contravention of81 so as to render the contracts void under Section 5. The Judicial Committee of the Privy Council negatived this contention. Lord Thankerton, delivering the opinion of the Judicial Committee. pointed out at page 70 of theLordships are of opinion that the form prescribed is, in its terms, applicable to contracts between a commission agent and his constituent, and that the parties in the present case were bound to comply with theand its form. They are unable, however, to agree with the view that the form is a streotyped one and that literal compliance with it is essential; in their opinion, the contract must contain all the terms and conditions set out in the form in order to comply with it. For instance, in the prescribed form the main terms and conditions are contained in the memorandum of contract... sent by the agent to his constituent, in which the former reports the fulfilling of the order by a purchase or a sale, as the case may be, in Bombay. If identical terms and conditions, instead of being in the memorandum sent by the agent, were contained in the initial order by the constituent, their Lordships are of opinion that there would be protanto sufficient compliance with theBut that is clearly not found in the present case, for the initial orders are inconsistent with the terms and conditions set out in the prescribed form in at least two respects.... It follows that the contracts having failed to comply with thethey are rendered void under the provisions of S. 5 of thesame view was reaffirmed by this Court in (1971) 2 SCR 751 = (AIR 1971 SC 166 ) where Grover, J., speaking on behalf of the Court, said with reference to the same1 (b) with which we are concerned in the present appealand what was said there is binding uponcompliance with the prescribed form may not be essential but if the contract does not contain all the terms and conditions set out in the form the contract will be void under the provisions set out before; See the ratio of the decision in 60 Ind App 63 = (AIR 1933 PCis, therefore, clear that in order that a contract may be in the prescribed form, literal compliance is not essential: what is necessary is that the contract must contain all the terms and conditions set out in the prescribed form. If this test is applied, as it ought to be, there can be no doubt that the contracts in the present case were not in the prescribed form as they did not contain any term or condition corresponding to clause (2) of the printed form requiring the buyers to give a particular number of clear working days notice to place goods alongside export vessel in the port of Calcutta.In the first place it is not correct to say that the prescribed form may be followed only in so far as circumstances may admit. The prescribed form, as we have already pointed out above, is imperative and a contract in order to be valid must contain all the terms and conditions set out in the prescribed form. Either the contract must incorporate all those terms and conditions or no contract can be made at all. No term or condition in the prescribed form can be dispensed with on the plea that it is inapplicable. What Bankes L. J. said in Burchell v. Thompson, (1920) 2 KB 80, with reference to Section 9 of the Bills of Sale Act, 1882, namely, "...a bill of sale will be void unless all the blanks which are included in the statutory form are filled up, applies equally in the present case. Nothing can be omitted from the contract which is included as a term or condition in the prescribed form. The only departure that is permissible from the prescribed form is that provided in23 where contract is not for export but for inland delivery. The words "free alongside delivery export vessel in the port of Calcutta would in case of such a contract be wholly inapplicable, and therefore,23 permits these words to be substituted by some such words as F.O.R. or C. and F. or C.I.F. or F.O.B., as the case may be. That is the only variation permissible under theand beyond that there can be no departure from the prescribed form.23 indeed, by necessary implication, clearly suggests that the prescribed form is mandatory and must be followed scrupulously in regard to all the terms and conditions therein set out except to the limited extent to which departure may be permitted under thatThat is the plain intendment and effect of1 (b), 15, 17 and 23 read with Section 15,(3A.). Vide 60 Ind App 63 = (AIR 1933 PC 55 ) and (1971) 2 SCR 751 = (AIR 1971 SC 166 ).The omission of clause (2) of the prescribed form from the contracts in question must, therefore, be held to render these contracts illegal under section 15,(3A).14. Secondly, in any event, clause (2) of the prescribed form could not be said to be inapplicable in case of the present contracts. It is clear from theand particularly the prescribed form and23 that a contract which is a transferable specific delivery contract may be of one of two kinds. It may be either a contract for export or a contract for inland delivery. A contract for export would stipulate a price "free alongside export vessel in the port of Calcutta, while in a contract for inland delivery, the price would be F.O.R. or C. and F. or C.I.F. or F.O.B., as the case may be. The contracts in the present case were clearly contracts for export and under these contracts the sellers were bound to deliver goods alongside export vessel in the port of Calcutta. That is why clause (3) in each of the contracts provided that the goods shall be "packed, folded, well pressed, marked and shipped by sellers in cargo boats in iron bound bales of 2000 yards or 1829 Metres each." But then what is the effect of clause (4) which provided that "Delivery of the goods shall be given and taken as follows: the specified month of delivery "(Due Date P.D.O.). This clause clearly contemplated delivery of Pucca Delivery Orders on/or before due date under each of the contracts. Could this be said to be inconsistent with clause (2) of the prescribed form so as to render that clause inappropriate for application to these contracts? We do not think so. The question has to be examined against the background of the practice followed by traders in effecting transferable specific delivery contracts in jute goods in the city of Calcutta. There is usually a chain of contracts starting from the Mill Company and ending with the actual shipper of the goods. There are in between the Mill Company and the ultimate shipper various intermediate buyers and sellers who enter into chain contracts on the same terms and conditions as the original contract between the Mill Company and its buyer. Where the first contract between the Mill Company and its buyer provides for delivery of Pucca Delivery Orders against payment of the priceand such a provision is clearly contemplated by4(a) in Chapter VIIa similar provision would be repeated in the entire chain of contracts and the Pucca Delivery Orders would be issued by the Mill Company to its buyer and they would then go on being transferred by the endorsement from one buyer to another along the chain until they reach the last buyer who is the shipper of the goods. The last buyer being the shipper would get himself registered as the holder of the Pucca Delivery Orders in the books of the Mill Company under3 of chapter VIII and he would then give shipping instructions to the Mill Company in writing accompanied by the Pucca Delivery Orders to place the goods alongside a specific export vessel or wharf or jetty in the port of Calcutta as provided in5 of Chapter VIII. When the registered holder of the Pucca Delivery Orders gives shipping instructions to the Mill Company, the effect is as if eo instanti such shipping instructions are given by the registered holder to his seller and by such seller to his immediate seller and so on along each link of the chain until they reach the Mill Company. The process of the registered holder giving shipping instructions to his seller and each successive buyer passing on such shipping instructions to his immediate seller so as ultimately to reach the Mill Company would be cumbrous and time consuming and would impede quick movement of goods in performance of export contracts and5 of Chapter VIII, therefore, provided that, instead of going through this tortuous process of passing on shipping instructions from one end of the chain to another through each link in the chain, the last buyer who is the registered holder may directly give shipping instructions to the Mill Company and that would be tantamount to giving shipping instructions in performance of each of the chain contracts all along the line. The presence of a clause in the chain contracts providing for delivery of Pucca Delivery Orders against payment of the price does not, therefore, exclude giving of shipping instructions by the buyers to the sellers. In fact, shipping instructions have to be given, because the contracts are export contracts providing for delivery free alongside export vessel in the port of Calcutta and, as pointed out above,5 of Chapter VIII clearly provides for giving of shipping instructions. Now, obviously when shipping instructions are to be given, each of the chain contracts may legitimately stipulate that a particular number of clear working days notice to place goods alongside shall be given by the buyers to the sellers and that is precisely what is provided by cl. (2) of the prescribed form. Clause (2) of the prescribed form requiring buyers to give a particular number of clear working days notice to place goods alongside cannot, therefore, be said to be inconsistent with the provision for delivery of Pucca Delivery Orders against payment of the price.It is, therefore, clear, both on principle and authority, that in case of a transferable specific delivery contract for export, clause (2) of the prescribed form requiring buyers to give a particular number of clear working days notice to place goods alongside is not rendered inapplicable by a provision in the contract under clause (4) stipulating for deliver of Pucca Delivery Orders against payment of the price. Clause (2) of the prescribed form can be appropriately incorporated in such a contract and omission to include, it cannot be justified on the plea that it would be inconsistent with clause (4) of the contract.17. We must, therefore, hold that since the contracts in the present case did not contain any provision corresponding to clause (2) of the prescribed form requiring buyers to give a particular number of clear working days notice to place goods alongside, they were not in the prescribed form and hence they were illegal under Section 15,(3A) and the arbitration clause contained in each of these contracts was also consequently void.

### 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 chain until they reach the Mill Company. The process of the registered holder giving shipping instructions to his seller and each successive buyer passing on such shipping instructions to his immediate seller so as ultimately to reach the Mill Company would be cumbrous and time consuming and would impede quick movement of goods in performance of export contracts and bye-law 5 of Chapter VIII, therefore, provided that, instead of going through this tortuous process of passing on shipping instructions from one end of the chain to another through each link in the chain, the last buyer who is the registered holder may directly give shipping instructions to the Mill Company and that would be tantamount to giving shipping instructions in performance of each of the chain contracts all along the line. The presence of a clause in the chain contracts providing for delivery of Pucca Delivery Orders against payment of the price does not, therefore, exclude giving of shipping instructions by the buyers to the sellers. In fact, shipping instructions have to be given, because the contracts are export contracts providing for delivery free alongside export vessel in the port of Calcutta and, as pointed out above, bye-law 5 of Chapter VIII clearly provides for giving of shipping instructions. Now, obviously when shipping instructions are to be given, each of the chain contracts may legitimately stipulate that a particular number of clear working days notice to place goods alongside shall be given by the buyers to the sellers and that is precisely what is provided by cl. (2) of the prescribed form. Clause (2) of the prescribed form requiring buyers to give a particular number of clear working days notice to place goods alongside cannot, therefore, be said to be inconsistent with the provision for delivery of Pucca Delivery Orders against payment of the price.15. This view finds support from the decision of this Court in Duni Chand Rataria v. Bhuwalka Brothers Ltd. (1955) 1 SCR 1071 = (AIR 1955 Sc 182 ). N. H. Bhagwati, J., speaking on behalf of the Court in that case, quoted with approval the following passage from the judgment of the Trial Court setting out the manner in which transferable specific delivery contracts in jute goods are effected and carried out in the city of Calcutta:"Now visualize the long chain of contracts in which the defendants contract in one of the connecting links. The defendant buys from its immediate seller and sells to its immediate buyer. As seller it is liable to give and as buyer it is entitled to take delivery. As seller it receives and as buyer it gives shipping instructions. Similar shipping instruction is given by each link until it reaches the mills. The mills deliver the goods alongside the steamer. Such delivery is in implement of the contract between the mills and their immediate buyer. But eo instant it is also in implement of each of the chain contracts including the contract between the defendant and its immediate buyer and the contract between the defendant and its immediate seller. Not only does the mill give and its immediate buyer take actual delivery but eo instanti each middleman gives and takes actual delivery. Simultaneously the defendant takes actual delivery of possession of the jute goods for its immediate seller and gives actual delivery of possession of jute goods to its immediate buyer. Prima facie at the moment of the delivery alongside the steamer there is appropriation and the passing of the property in the goods and the giving and taking all along the chain at the same moment.The learned Judge then, on the basis of this finding, proceeded to hold:"The mates receipts or the delivery orders as the case may be, represented the goods. The sellers handed over these documents to the buyer against cash payment, and the buyer obtained these documents in token of deliver of possession of that goods. They in turn passed these documents from hand to hand until they rested with the ultimate buyer who took physical or manual delivery of possession of those goods. The constructive delivery of possession which was obtained by the intermediate parties was thus translated into a physical analysis eliminating the unnecessary process of each of the intermediate parties taking and in his turn giving actual delivery of possession of the goods in the narrow sense of physical or manual delivery thereof.These observations bear out what we have said in regard to the mechanics of performance of chain contracts in jute goods and show that shipping instructions can and must follow delivery and endorsement of Pucca Delivery Orders from one buyer to another in the chain and when the last buyer gives shipping instructions to the Mill Company and pursuant to such shipping instructions the Mill Company delivers the goods alongside the export vessel, the giving and taking of actual delivery of possession of the goods takes place "all along the chain at the same moment.16. It is, therefore, clear, both on principle and authority, that in case of a transferable specific delivery contract for export, clause (2) of the prescribed form requiring buyers to give a particular number of clear working days notice to place goods alongside is not rendered inapplicable by a provision in the contract under clause (4) stipulating for deliver of Pucca Delivery Orders against payment of the price. Clause (2) of the prescribed form can be appropriately incorporated in such a contract and omission to include, it cannot be justified on the plea that it would be inconsistent with clause (4) of the contract.17. We must, therefore, hold that since the contracts in the present case did not contain any provision corresponding to clause (2) of the prescribed form requiring buyers to give a particular number of clear working days notice to place goods alongside, they were not in the prescribed form and hence they were illegal under Section 15, sub-section (3A) and the arbitration clause contained in each of these contracts was also consequently void. ### Response: 0

BAJRANGA (Dead) by LRs Vs. THE STATE OF MADHYA PRADESH & ORS

has to be on the basis of information given in the return under Section 9 of the said Act, or the information obtained by the competent authority under Section 10 of the said Act after making an enquiry. In terms of Section 11(3), the draft statement is to be published and served on the holder, the creditor and all other persons interested in the land to which it relates. Once a disclosure is there that Jenobai had filed a suit, there has to be mandatorily a notice to her as otherwise any decision would be behind her back and would, thus, violate the principles of natural justice. 23. There is little ambiguity about the aforesaid position as in Section 11(4) it has been stated that in case the competent authority finds that any question has arisen regarding the title of a particular holder, which has not been determined by the competent court, the competent authority shall proceed to enquire summarily into merits of such question and pass such orders as it thinks fit. Thus, the power is vested with the competent authority to determine such conflict of the land holding. This is, however, subject to a proviso. The proviso clearly stipulates that if such a question is already pending for decision before the competent court, the competent authority shall await the decision of the court. 24. In our view, the embargo came there and then as once the disclosure was made the proceedings should have been kept in abeyance to await the decision in those proceedings. The occasion to pass orders under sub-section (5) and sub-section (6) of Section 11 of the said Act did not arise in the present case as in view of the disclosure of Jenobais suit. Further proceedings should have been kept in abeyance to await the verdict in the suit as per proviso to sub-section (4) and notice should have been issued to Jenobai. All this has been observed to be in breach by the respondents herein. We are, thus, of the view that the findings of the appellate court in constructions of these provisions reflects the correct position of law in the given facts of the case. 25. The issue of jurisdiction of civil court is no more res integra in view of the judgment in Competent Authority, Tarana District, Ujjain (M.P.). where it has been observed in para 4 as under: 4. So far as the other question regarding the maintainability of the suit in a civil court is concerned, suffice to say that sub-section (5) of Section 11 of the Act itself provides that any party may within three months from the date of any order passed by the Competent Authority under sub-section (4) of Section 11 of the Act institute a suit in the civil court to have the order set aside. Thus the above provision itself permits the filing of a suit in a civil court and any decision of such court has been made binding on the Competent Authority under the above provision of sub-section (5) of Section 11 of the Act. It is not in dispute that the suit in the present case was filed within three months as provided under sub-section (5) of Section 11 of the Act. In the result, we do not find any force in this appeal and it is accordingly dismissed with no order as to costs. 26. We have taken note of the latter proceedings of this Court in State of Madhya Pradesh & Anr. v. Dungaji (Dead) Represented by Legal Representatives & Anr. discussing the scheme of the Act and the requirement of taking recourse to the provisions of appeal and revision under the said Act. 27. We have also considered the plea of limitation advanced by learned counsel for the respondents albeit no specific issue being framed in respect of the same. 28. In our view the legal position has to be appreciated in the factual context. Thus, though there may be a process provided for redressal under the scheme of the Act, it is this very scheme of the Act which has been breached by the respondents herein in not complying with the statutory provisions. It can be nobodys say that Jenobai cannot file a title suit against the appellant. That suit being maintainable and pending, and the factum of that suit being disclosed in the return (if the nature of disclosure being the reason we wanted to peruse the record, which were not made available), the provisions of Section 11 had to be strictly complied with. We say so as the right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law. The law in this case is the said Act. Thus, the provisions of the said Act had to be complied with to deprive a person of the land being surplus. 29. The provisions of the said Act are very clear as to what has to be done at each stage. In our view once a disclosure was made, the matter had to be dealt with under sub-section (4) of Section 11 of the said Act and in view of the pending suit proceedings between the appellant and Jenobai, the proviso came into play which required the respondent authorities to await the decision of the court. Sub-section 5 and thereafter sub-section 6 would kick in only after the mandate of subsection 4 was fulfilled. In the present case it was not so. Even notice was not issued to Jenobai. She could have clarified the position further. The effect of the decree in favour of Jenobai is that the appellant loses the right to hold that land and his total land holding comes within the ceiling limit. If there is no surplus land there can be no question of any proceedings for take over of the surplus land under the said Act.

1[ds]19. We have given a thought to the matter in the conspectus of what has been urged before us on the different dates and the proceedings that had been recorded. The matter was taken up on 16.1.2020 and in view of the submissions advanced by the parties, the Court required perusal of the record. Thus, in the proceedings it was recorded that there was a factual controversy as to whether the appellant in pursuance of the draft statement in the objections filed had given the particulars of the pending civil suit filed by the mother-in-law of the appellant claiming part of the land held by the appellant. This was considered to be relevant as in terms of Section 9(iv) of the said Act such particulars are mandated to be given and, thus, the respondents herein being in breach or not of the other succeeding provisions of the Act would depend on this important aspect. We also took note of the fact that as per the respondents herein no particulars had been given and the suit was alleged to be collusive. In order to determine the question it was opined that this Court found it necessary to peruse the objections filed by the appellant to come to a conclusion.20. On the said date itself, this Court also required the pleadings in the civil suit filed by the mother-in-law, Jenobai, to be placed on record as also the judgment.21. The appellant complied with the order dated 16.1.2020 by filing these additional documents but the respondents herein did not do the needful. It is in these circumstances that on 9.9.2020 this Court made it clear that in case the records are not filed adverse inference will be drawn. The natural sequitur to this is that the failure to place the aforementioned documents on record shows that there had been proper disclosure about the suit in the return filed under Section 9 of the said Act. The factum of disclosure of the suit could not really be doubted by the respondents herein in view of their own pleadings (admitted in the pleadings before the trial court, as perused by us). However, the records are alleged not to have been located.The preparation of the statement of land held in excess of ceiling limit under Section 11 of the said Act has to be on the basis of information given in the return under Section 9 of the said Act, or the information obtained by the competent authority under Section 10 of the said Act after making an enquiry. In terms of Section 11(3), the draft statement is to be published and served on the holder, the creditor and all other persons interested in the land to which it relates. Once a disclosure is there that Jenobai had filed a suit, there has to be mandatorily a notice to her as otherwise any decision would be behind her back and would, thus, violate the principles of natural justice.23. There is little ambiguity about the aforesaid position as in Section 11(4) it has been stated that in case the competent authority finds that any question has arisen regarding the title of a particular holder, which has not been determined by the competent court, the competent authority shall proceed to enquire summarily into merits of such question and pass such orders as it thinks fit. Thus, the power is vested with the competent authority to determine such conflict of the land holding. This is, however, subject to a proviso. The proviso clearly stipulates that if such a question is already pending for decision before the competent court, the competent authority shall await the decision of the court.24. In our view, the embargo came there and then as once the disclosure was made the proceedings should have been kept in abeyance to await the decision in those proceedings. The occasion to pass orders under sub-section (5) and sub-section (6) of Section 11 of the said Act did not arise in the present case as in view of the disclosure of Jenobais suit. Further proceedings should have been kept in abeyance to await the verdict in the suit as per proviso to sub-section (4) and notice should have been issued to Jenobai. All this has been observed to be in breach by the respondents herein. We are, thus, of the view that the findings of the appellate court in constructions of these provisions reflects the correct position of law in the given facts of the case.25. The issue of jurisdiction of civil court is no more res integra in view of the judgment in Competent Authority, Tarana District, Ujjain (M.P.). where it has been observed in para 4 as under:4. So far as the other question regarding the maintainability of the suit in a civil court is concerned, suffice to say that sub-section (5) of Section 11 of the Act itself provides that any party may within three months from the date of any order passed by the Competent Authority under sub-section (4) of Section 11 of the Act institute a suit in the civil court to have the order set aside. Thus the above provision itself permits the filing of a suit in a civil court and any decision of such court has been made binding on the Competent Authority under the above provision of sub-section (5) of Section 11 of the Act. It is not in dispute that the suit in the present case was filed within three months as provided under sub-section (5) of Section 11 of the Act. In the result, we do not find any force in this appeal and it is accordingly dismissed with no order as to costs.26. We have taken note of the latter proceedings of this Court in State of Madhya Pradesh & Anr. v. Dungaji (Dead) Represented by Legal Representatives & Anr. discussing the scheme of the Act and the requirement of taking recourse to the provisions of appeal and revision under the said Act.27. We have also considered the plea of limitation advanced by learned counsel for the respondents albeit no specific issue being framed in respect of the same.28. In our view the legal position has to be appreciated in the factual context. Thus, though there may be a process provided for redressal under the scheme of the Act, it is this very scheme of the Act which has been breached by the respondents herein in not complying with the statutory provisions. It can be nobodys say that Jenobai cannot file a title suit against the appellant. That suit being maintainable and pending, and the factum of that suit being disclosed in the return (if the nature of disclosure being the reason we wanted to peruse the record, which were not made available), the provisions of Section 11 had to be strictly complied with. We say so as the right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law. The law in this case is the said Act. Thus, the provisions of the said Act had to be complied with to deprive a person of the land being surplus.29. The provisions of the said Act are very clear as to what has to be done at each stage. In our view once a disclosure was made, the matter had to be dealt with under sub-section (4) of Section 11 of the said Act and in view of the pending suit proceedings between the appellant and Jenobai, the proviso came into play which required the respondent authorities to await the decision of the court. Sub-section 5 and thereafter sub-section 6 would kick in only after the mandate of subsection 4 was fulfilled. In the present case it was not so. Even notice was not issued to Jenobai. She could have clarified the position further. The effect of the decree in favour of Jenobai is that the appellant loses the right to hold that land and his total land holding comes within the ceiling limit. If there is no surplus land there can be no question of any proceedings for take over of the surplus land under the said Act.

### 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: has to be on the basis of information given in the return under Section 9 of the said Act, or the information obtained by the competent authority under Section 10 of the said Act after making an enquiry. In terms of Section 11(3), the draft statement is to be published and served on the holder, the creditor and all other persons interested in the land to which it relates. Once a disclosure is there that Jenobai had filed a suit, there has to be mandatorily a notice to her as otherwise any decision would be behind her back and would, thus, violate the principles of natural justice. 23. There is little ambiguity about the aforesaid position as in Section 11(4) it has been stated that in case the competent authority finds that any question has arisen regarding the title of a particular holder, which has not been determined by the competent court, the competent authority shall proceed to enquire summarily into merits of such question and pass such orders as it thinks fit. Thus, the power is vested with the competent authority to determine such conflict of the land holding. This is, however, subject to a proviso. The proviso clearly stipulates that if such a question is already pending for decision before the competent court, the competent authority shall await the decision of the court. 24. In our view, the embargo came there and then as once the disclosure was made the proceedings should have been kept in abeyance to await the decision in those proceedings. The occasion to pass orders under sub-section (5) and sub-section (6) of Section 11 of the said Act did not arise in the present case as in view of the disclosure of Jenobais suit. Further proceedings should have been kept in abeyance to await the verdict in the suit as per proviso to sub-section (4) and notice should have been issued to Jenobai. All this has been observed to be in breach by the respondents herein. We are, thus, of the view that the findings of the appellate court in constructions of these provisions reflects the correct position of law in the given facts of the case. 25. The issue of jurisdiction of civil court is no more res integra in view of the judgment in Competent Authority, Tarana District, Ujjain (M.P.). where it has been observed in para 4 as under: 4. So far as the other question regarding the maintainability of the suit in a civil court is concerned, suffice to say that sub-section (5) of Section 11 of the Act itself provides that any party may within three months from the date of any order passed by the Competent Authority under sub-section (4) of Section 11 of the Act institute a suit in the civil court to have the order set aside. Thus the above provision itself permits the filing of a suit in a civil court and any decision of such court has been made binding on the Competent Authority under the above provision of sub-section (5) of Section 11 of the Act. It is not in dispute that the suit in the present case was filed within three months as provided under sub-section (5) of Section 11 of the Act. In the result, we do not find any force in this appeal and it is accordingly dismissed with no order as to costs. 26. We have taken note of the latter proceedings of this Court in State of Madhya Pradesh & Anr. v. Dungaji (Dead) Represented by Legal Representatives & Anr. discussing the scheme of the Act and the requirement of taking recourse to the provisions of appeal and revision under the said Act. 27. We have also considered the plea of limitation advanced by learned counsel for the respondents albeit no specific issue being framed in respect of the same. 28. In our view the legal position has to be appreciated in the factual context. Thus, though there may be a process provided for redressal under the scheme of the Act, it is this very scheme of the Act which has been breached by the respondents herein in not complying with the statutory provisions. It can be nobodys say that Jenobai cannot file a title suit against the appellant. That suit being maintainable and pending, and the factum of that suit being disclosed in the return (if the nature of disclosure being the reason we wanted to peruse the record, which were not made available), the provisions of Section 11 had to be strictly complied with. We say so as the right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law. The law in this case is the said Act. Thus, the provisions of the said Act had to be complied with to deprive a person of the land being surplus. 29. The provisions of the said Act are very clear as to what has to be done at each stage. In our view once a disclosure was made, the matter had to be dealt with under sub-section (4) of Section 11 of the said Act and in view of the pending suit proceedings between the appellant and Jenobai, the proviso came into play which required the respondent authorities to await the decision of the court. Sub-section 5 and thereafter sub-section 6 would kick in only after the mandate of subsection 4 was fulfilled. In the present case it was not so. Even notice was not issued to Jenobai. She could have clarified the position further. The effect of the decree in favour of Jenobai is that the appellant loses the right to hold that land and his total land holding comes within the ceiling limit. If there is no surplus land there can be no question of any proceedings for take over of the surplus land under the said Act. ### Response: 1

The State Of Bombay Vs. M/S. S. S. Miranda Limited

even though these sales resulted in transport except where the Explanation to S. 19 applies.If this practice is in accordance with law when there is no change in duty we cannot see how the excisable article which had been subjected to duty once will be liable to further duty equal to the difference when three is increase in the rate, (except of course where the Explanation to S. 19 applies). We see nothing in S. 10 which lays down that every time there is transport duty must be paid even though the duty has already been paid when the first transport of an excisable article takes place. What S. 10 prohibits is the transport of excisable article unless the duty has been paid thereon. Once the duty has been paid the prohibition under S. 10 no longer applies, unless the case is covered by the Explanation to S. 19.However wide may be the definition of "transport", what has to be seen is whether the prohibition under S. 10 is to apply even to those excisable articles on which duty has been paid. On a plain reading of S. 10, the prohibition under that section cannot apply to transport of excisable articles on which duty has been paid. Section 19, which is the charging section, provides for levying of duty on transport in accordance with the provisions of S. 10. This brings us back to S.10 and the question again is whether the prohibition having been removed by payment of duty once, there is anything in S. 10 which requires that the duty should be paid again for transporting the goods on which duty has been paid. As we read S. 10 we find nothing in it which requires that duty should be paid again for transport once the duty has been paid and the prohibition removed subject always to the Explanation to S. 19. Under that Explanation if there are different duties in different regions and the excisable article which has paid duty of one region is removed to another region where the duty is different the excess will have to be paid in order that prohibition of transport in that region may be removed.But apart from the cases covered by the Explanation we can see no justification for reading S. 10 as giving power to impose duty on the same excisable article again and again as it moves in the course of trade from, say, the bonded warehouse to the wholesaler and from the wholesaler to the retailer and from the retailer to the consumer. Plainly, therefore, once the duty has been paid and the prohibition under S. 10 is removed the transport of the duty-paid excisable article can take place free from any further imposition, except where it is transported to a region where the duty is different from the region where the duty is paid.12. Nor do we find any power in the State Government to impose a duty at every movement during the course of trade in the words of S. 19. All that S. 19 empowers the State Government to do is to fix the rate of duty on transport in accordance with S. 10. There is no delegation to the State Government anywhere in the Act of the power to impose duty from stage to stage during the movement of excisable articles in the course of trade. It is true that the legislature has the power if it so chooses, to levy duty on every movement; but as we read the three provisions on which reliance has been placed we do not find any exercise of that power by the legislature.Nor do we find any delegation by the legislature of any such power to the State Government. The view therefore taken by the Division Bench that once the duty mentioned in S. 19 has been paid the prohibition contained in S. 10 must disappear, (subject always to the Explanation to S. 19), and that there is nothing in S. 19 delegating any power to the State Government of levying excise duty more than once and at more than one point during the progress of the excisable goods from the time they leave the bonded warehouse till the time they reach the consumer is in our opinion correct.It is not in dispute in this case that the Explanation to S. 19 does not apply.13. Turning now to the first proviso to S. 19-A, it may be noticed that section deals with the manner of levying duty. But the first proviso goes further and lays down that where the duty is levied on issue from a bonded warehouse it will be at the rate in force on the date of issue.We agree with the Division Bench that this proviso has no logical connection with S. 19-A and would more properly be a proviso to S. 19. It has nothing to do with the manner of payment but it concerned with the liability to pay at the rate prevalent on the date of issue from the bonded warehouse. If that is so, the quantum of tax is once for all determined by this proviso subject always to the Explanation to S. 19 and cannot be increased thereafter.Reference in this connection was made to S. 15-A also. But that section seems to have been inserted as a measure of abundant caution and does not appear to go further than S. 10. It seems to determine the time and manner of payment in cases where excisable articles are kept in a distillery or brewery or warehouse or other place of storage established or licensed under the Act where duty may not have been paid before such storage. It is not the charging section and cannot be read to go beyond S. 19 which is the charging section. We are therefore of opinion that on this ground also no additional duty could be charged from the respondent in this case as the Explanation to S.19 has admittedly no application here.

0[ds]11. The argument on behalf of the appellant is that in view of the very wide definition of the word "transport" and the prohibition of transport contained in S. 10 without payment of duty it is clear that every time there is transport the duty becomes payable at the rate fixed by the State Government under S. 19 and that there is nothing in these sections which in any way limits the power to levy duty at every stage of transport. If this argument is accepted it will logically mean that every time there is transport of an excisable article duty will have to be paid till the excisable article has been actually consumed. In other words when for example, the excisable article is transported from the bonded warehouse by a wholesaler he will have to pay duty on it; when a wholesaler sells to a retailer there is bound to be transport from the wholesalers premises to the retailers premises and the duty will have to be paid again. Finally when the retailer sells it to a consumer there will again be transport from the retailers place to the consumers place and duty will have to be paid a third time. Further if the interpretation as urged on behalf of the appellant is accepted, the duty will have to be paid again and again in the cases mentioned above, even though the rate remains the same. The fact that in this particular case the rate was changed and that the State Government only demanded the extra duty will not affect the question of interpretation of the three provisions of the Act with which we are concerned. Was it then the intention of the legislature when it made these provisions to levy duty irrespective of the fact whether the rate was changed or not, again and again as an excisable article passed from the bonded warehouse to the wholesaler, from the wholesaler to the retailer and from the retailer to the consumer? It is true that it was competent for the legislature to make such a provision; but the question to whether the three provisions which we have set out above, amount to making such a provision. Sri Umrigar for the appellant fairly admits that if the rate of duty had not been change there would not have been any demand of any further duty on any sale by the respondent which might have resulted in transport and that the partice was not to charge the same duty over again on sale by the wholesaler to the retailer or by the retailer to the consumer even though these sales resulted in transport except where the Explanation to S. 19 applies.If this practice is in accordance with law when there is no change in duty we cannot see how the excisable article which had been subjected to duty once will be liable to further duty equal to the difference when three is increase in the rate, (except of course where the Explanation to S. 19 applies). We see nothing in S. 10 which lays down that every time there is transport duty must be paid even though the duty has already been paid when the first transport of an excisable article takes place. What S. 10 prohibits is the transport of excisable article unless the duty has been paid thereon. Once the duty has been paid the prohibition under S. 10 no longer applies, unless the case is covered by the Explanation to S. 19.However wide may be the definition of "transport", what has to be seen is whether the prohibition under S. 10 is to apply even to those excisable articles on which duty has been paid. On a plain reading of S. 10, the prohibition under that section cannot apply to transport of excisable articles on which duty has been paid. Section 19, which is the charging section, provides for levying of duty on transport in accordance with the provisions of S.Nor do we find any power in the State Government to impose a duty at every movement during the course of trade in the words of S. 19. All that S. 19 empowers the State Government to do is to fix the rate of duty on transport in accordance with S.There is no delegation to the State Government anywhere in the Act of the power to impose duty from stage to stage during the movement of excisable articles in the course of trade. It is true that the legislature has the power if it so chooses, to levy duty on every movement; but as we read the three provisions on which reliance has been placed we do not find any exercise of that power by the legislature.Nor do we find any delegation by the legislature of any such power to the State Government. The view therefore taken by the Division Bench that once the duty mentioned in S. 19 has been paid the prohibition contained in S. 10 must disappear, (subject always to the Explanation to S. 19), and that there is nothing in S. 19 delegating any power to the State Government of levying excise duty more than once and at more than one point during the progress of the excisable goods from the time they leave the bonded warehouse till the time they reach the consumer is in our opinion correct.It is not in dispute in this case that the Explanation to S. 19 does not apply.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: even though these sales resulted in transport except where the Explanation to S. 19 applies.If this practice is in accordance with law when there is no change in duty we cannot see how the excisable article which had been subjected to duty once will be liable to further duty equal to the difference when three is increase in the rate, (except of course where the Explanation to S. 19 applies). We see nothing in S. 10 which lays down that every time there is transport duty must be paid even though the duty has already been paid when the first transport of an excisable article takes place. What S. 10 prohibits is the transport of excisable article unless the duty has been paid thereon. Once the duty has been paid the prohibition under S. 10 no longer applies, unless the case is covered by the Explanation to S. 19.However wide may be the definition of "transport", what has to be seen is whether the prohibition under S. 10 is to apply even to those excisable articles on which duty has been paid. On a plain reading of S. 10, the prohibition under that section cannot apply to transport of excisable articles on which duty has been paid. Section 19, which is the charging section, provides for levying of duty on transport in accordance with the provisions of S. 10. This brings us back to S.10 and the question again is whether the prohibition having been removed by payment of duty once, there is anything in S. 10 which requires that the duty should be paid again for transporting the goods on which duty has been paid. As we read S. 10 we find nothing in it which requires that duty should be paid again for transport once the duty has been paid and the prohibition removed subject always to the Explanation to S. 19. Under that Explanation if there are different duties in different regions and the excisable article which has paid duty of one region is removed to another region where the duty is different the excess will have to be paid in order that prohibition of transport in that region may be removed.But apart from the cases covered by the Explanation we can see no justification for reading S. 10 as giving power to impose duty on the same excisable article again and again as it moves in the course of trade from, say, the bonded warehouse to the wholesaler and from the wholesaler to the retailer and from the retailer to the consumer. Plainly, therefore, once the duty has been paid and the prohibition under S. 10 is removed the transport of the duty-paid excisable article can take place free from any further imposition, except where it is transported to a region where the duty is different from the region where the duty is paid.12. Nor do we find any power in the State Government to impose a duty at every movement during the course of trade in the words of S. 19. All that S. 19 empowers the State Government to do is to fix the rate of duty on transport in accordance with S. 10. There is no delegation to the State Government anywhere in the Act of the power to impose duty from stage to stage during the movement of excisable articles in the course of trade. It is true that the legislature has the power if it so chooses, to levy duty on every movement; but as we read the three provisions on which reliance has been placed we do not find any exercise of that power by the legislature.Nor do we find any delegation by the legislature of any such power to the State Government. The view therefore taken by the Division Bench that once the duty mentioned in S. 19 has been paid the prohibition contained in S. 10 must disappear, (subject always to the Explanation to S. 19), and that there is nothing in S. 19 delegating any power to the State Government of levying excise duty more than once and at more than one point during the progress of the excisable goods from the time they leave the bonded warehouse till the time they reach the consumer is in our opinion correct.It is not in dispute in this case that the Explanation to S. 19 does not apply.13. Turning now to the first proviso to S. 19-A, it may be noticed that section deals with the manner of levying duty. But the first proviso goes further and lays down that where the duty is levied on issue from a bonded warehouse it will be at the rate in force on the date of issue.We agree with the Division Bench that this proviso has no logical connection with S. 19-A and would more properly be a proviso to S. 19. It has nothing to do with the manner of payment but it concerned with the liability to pay at the rate prevalent on the date of issue from the bonded warehouse. If that is so, the quantum of tax is once for all determined by this proviso subject always to the Explanation to S. 19 and cannot be increased thereafter.Reference in this connection was made to S. 15-A also. But that section seems to have been inserted as a measure of abundant caution and does not appear to go further than S. 10. It seems to determine the time and manner of payment in cases where excisable articles are kept in a distillery or brewery or warehouse or other place of storage established or licensed under the Act where duty may not have been paid before such storage. It is not the charging section and cannot be read to go beyond S. 19 which is the charging section. We are therefore of opinion that on this ground also no additional duty could be charged from the respondent in this case as the Explanation to S.19 has admittedly no application here. ### Response: 0

State Of U.P Vs. Charan Singh

void ab initio in law for non-compliance of the mandatory provisions under Section 6-N of the Act. Keeping in view the fact that the period of termination was in the year 1975 and the matter has been unnecessarily litigated by the employer by contesting the matter before the Industrial Tribunal as well as the High Court and this Court for more than 40 years, and further, even after the Award/order of reinstatement was passed by the Industrial Tribunal directing the employer to give him the post equivalent to the post of Tube-well Operator, the same has been denied to him by offering the said post which is not equivalent to the post of Tube-well Operator and thereby, attributing the fault on the respondent for non reporting to the post offered to him, which is once again unjustified on the part of the employer.21. Thus, the principle “no work no pay” as observed by this Court in the catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tube-well Operator is erroneous in law in the first place, as held by us in view of the above stated reasons. 22. The respondent and his family members have been suffering for more than four decades as the source of their livelihood has been arbitrarily deprived by the appellant. Thereby, the Right to Liberty and Livelihood guaranteed under Articles 19 and 21 of the Constitution of India have been denied to the respondent by the appellant as held in the case of Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors (1985)3 SCC 545) ., wherein this Court has held thus: “32. As we have stated while summing up the petitioners’ case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Bakse y that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. “Life”, as observed by Field, J. in Mun n v. Illinoi s means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P.” (emphasis laid down by this Court) 23. Therefore, with respect to the judicial decisions of this Court referred to supra, we hold that the appellant is liable to pay 50% back wages in favour of the respondent from the date of the termination order dated 22.08.1975 till the date of the Award passed by the Industrial Tribunal, i.e. 24.02.1997.24. In so far as the awarding of full back wages to the respondent by the High Court in its judgment and order dated 18.07.2006 for the period 24.02.1997 to 31.01.2005 is concerned, we retain the same. The appellant is further directed to pay full back wages to the respondent after computing the same on the basis of the revised pay-scale and pay him all other monetary benefits as well. The aforesaid direction shall be complied with by the appellant within four weeks from the date of receipt of the copy of this order.

0[ds]12. We have heard both the parties. On the basis of the aforesaid rival legal contentions urged on behalf of the parties and the evidence on record, we have come to the conclusion that the High Court has rightly held that the State is liable to pay the entire amount due to the workman for the period 24.2.1997 to 31.1.2005, as the State has kept the workman out of job for many years arbitrarily and unreasonably despite the Award of reinstatement of the respondent on an equivalent post which was passed by the Industrial Tribunal. Thus, not reporting for the duty of fisherman offered to him by the appellant cannot be said to be unjustified on the part of the respondent.Further, it is a well established fact that the respondent-workman has continuously worked for 240 days in a calendar year and the Industrial Tribunal has rightly recorded the finding of fact on the basis of pleadings and evidence on record holding that the work which was being done by the respondent-workman still continues to exist in the establishment of the appellant, which fact has been admitted by the respondent as well as the witnesses of the employer before the Industrial Tribunal. Further, Shri. R.B.Mathur has clearly deposed before the Industrial Tribunal that the work of Tube-well Operator has now been taken over by other workmen, such asand that some Tube-well Operators were appointed on other posts as well. Thus, in view of the statements made above by him, it is amply clear that the required conditions under the provisions of Sections 6-N and 6-W of the Act were not complied with by the appellant and the only contention of the appellant-department is that onesalary was paid to the workman concerned treating him to be a temporary employee. This contention of the learned AAG on behalf of the appellant, however, is not sustainable in law and the same has rendered the order of termination of the services of the respondent-workman illegal and therefore, both the courts below have rightly set aside the same and passed an Award of reinstatement and back wages, respectively. However, not awarding back wages to the respondent by the Industrial Tribunal and awarding of the same by the High Court for the period between 24.2.1997 to 31.1.2005 only, has been done without assigning any cogent reason even though he is gainfully employed and lawfully entitled for the same from the date of termination from his services, i.e. 22.08.1975, which cannot be said to be valid in law. Therefore, the judgment and Award passed by the courts below with regard to his reinstatement on a post equivalent to the post of Tube-well Operator and denial of payment of back wages from the date of his termination, i.e. 22.08.1975 is wholly untenable in law as the same is contrary to the well established principles of law and the same is required to be modified by awarding back wages.14. The learned AAG has further contended that the termination of the services of the workman was made in view of the Government order dated 30.07.1975, by which the post of the Tube-well Operator was abolished and the termination letter was served on the respondent-workman as he was a temporary employee. However, these reasons were not stated in his termination letter dated 22.08.1975 by the appellant and instead, it was mentioned that his services were no longer required which tantamount to retrenchment of the respondent as defined under Section 2(s) of the Act. Thus, the contention of the appellant cannot be accepted by us in this regard, in view of the untenable reason stated in the letter of termination of the services of the respondent-workman. Further, the Government order dated 30.07.1975, clearly stated that in place of Tube-well Operator, the post of Nalkoop Mechanic, class IV employee, was being created that would carry out the work of the Tube-well Operator. Hence, the post of the Tube-well Operator was not abolished but only the name of the post was changed, as rightly held by the Industrial Tribunal.15. Therefore, in view of the above stated facts and also on a perusal of the reasons given by the Industrial Tribunal in its Award on the contentious point, the contention urged on behalf of the appellant that the termination of the services of the workman was done in accordance with above mentioned Government order cannot be accepted by us as the same is erroneous in law. The fact that the persons junior to him as well as his contemporaries are still working for the appellant-department, shows that the termination of the services of the respondent has been done in an unreasonable and unfair manner.16. Now, coming to the question of the entitlement of back wages to the respondent workman, the same is answered in the positive, in view of the fact that the workman had refused to accept the new job as fisherman which was offered to him pursuant to the Award passed by the Industrial Tribunal on the ground that the said post is not equivalent to the post of the Tube-well Operator. Even though the appellant had agreed to comply with the terms of the Award dated 24.02.1997 passed by the Industrial Tribunal and had offered reinstatement to him, it is well within the right of the workman to refuse the new job offered to him and the same cannot be said to be unjustified or erroneous on the part of the respondent-workman.17. In the present case, there has been an absence of cogent evidence adduced on record by the appellant to justify the termination of the services of the respondent-workman, who has been aggrieved by the non-awarding of back wages from the date of termination till the date of passing the Award by the Industrial Tribunal. There is no justification for the Industrial Tribunal to deny the back wages for the said period without assigning any cogent and valid reasons. Therefore, the denial of back wages to the respondent even though the Industrial Tribunal has recorded its finding on the contentious question no.1 in the affirmative in his favour and in the absence of evidence of gainful employment of the respondent during the relevant period, amounts to arbitrary exercise of power by the Industrial Tribunal for no fault of the respondent and the same is contrary to law as laid down by this Court in a catena of cases. Hence, it is a fit case for this Court to exercise its power under Order XLI Rule 33 of the Civil Procedure Code, 1908, to award back wages to the respondent, even though the respondent has not filed a separate writ petition questioning that portion of the Award wherein no back wages were awarded to him by the Courts below for the relevant period.Thus, in view of the cases referred to supra, there was absolutely no justification on the part of the Industrial Tribunal to deny back wages to the respondent even when it is found that the order of termination is void ab initio in law for non-compliance of the mandatory provisions under Section 6-N of the Act. Keeping in view the fact that the period of termination was in the year 1975 and the matter has been unnecessarily litigated by the employer by contesting the matter before the Industrial Tribunal as well as the High Court and this Court for more than 40 years, and further, even after the Award/order of reinstatement was passed by the Industrial Tribunal directing the employer to give him the post equivalent to the post of Tube-well Operator, the same has been denied to him by offering the said post which is not equivalent to the post of Tube-well Operator and thereby, attributing the fault on the respondent for non reporting to the post offered to him, which is once again unjustified on the part of the employer.21. Thus, the principleas observed by this Court in the catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tube-well Operator is erroneous in law in the first place, as held by us in view of the above stated reasons.Therefore, with respect to the judicial decisions of this Court referred to supra, we hold that the appellant is liable to pay 50% back wages in favour of the respondent from the date of the termination order dated 22.08.1975 till the date of the Award passed by the Industrial Tribunal, i.e. 24.02.1997.24. In so far as the awarding of full back wages to the respondent by the High Court in its judgment and order dated 18.07.2006 for the period 24.02.1997 to 31.01.2005 is concerned, we retain the same. The appellant is further directed to pay full back wages to the respondent after computing the same on the basis of the revised pay-scale and pay him all other monetary benefits as well. The aforesaid direction shall be complied with by the appellant within four weeks from the date of receipt of the copy of this order.

### 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: void ab initio in law for non-compliance of the mandatory provisions under Section 6-N of the Act. Keeping in view the fact that the period of termination was in the year 1975 and the matter has been unnecessarily litigated by the employer by contesting the matter before the Industrial Tribunal as well as the High Court and this Court for more than 40 years, and further, even after the Award/order of reinstatement was passed by the Industrial Tribunal directing the employer to give him the post equivalent to the post of Tube-well Operator, the same has been denied to him by offering the said post which is not equivalent to the post of Tube-well Operator and thereby, attributing the fault on the respondent for non reporting to the post offered to him, which is once again unjustified on the part of the employer.21. Thus, the principle “no work no pay” as observed by this Court in the catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tube-well Operator is erroneous in law in the first place, as held by us in view of the above stated reasons. 22. The respondent and his family members have been suffering for more than four decades as the source of their livelihood has been arbitrarily deprived by the appellant. Thereby, the Right to Liberty and Livelihood guaranteed under Articles 19 and 21 of the Constitution of India have been denied to the respondent by the appellant as held in the case of Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors (1985)3 SCC 545) ., wherein this Court has held thus: “32. As we have stated while summing up the petitioners’ case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Bakse y that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. “Life”, as observed by Field, J. in Mun n v. Illinoi s means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P.” (emphasis laid down by this Court) 23. Therefore, with respect to the judicial decisions of this Court referred to supra, we hold that the appellant is liable to pay 50% back wages in favour of the respondent from the date of the termination order dated 22.08.1975 till the date of the Award passed by the Industrial Tribunal, i.e. 24.02.1997.24. In so far as the awarding of full back wages to the respondent by the High Court in its judgment and order dated 18.07.2006 for the period 24.02.1997 to 31.01.2005 is concerned, we retain the same. The appellant is further directed to pay full back wages to the respondent after computing the same on the basis of the revised pay-scale and pay him all other monetary benefits as well. The aforesaid direction shall be complied with by the appellant within four weeks from the date of receipt of the copy of this order. ### Response: 0

Jorubha Juzer Singh Vs. State of Gujarat

Fazal Ali, J. This appeal by special leave is directed against the judgment of the High Court of Gujarat by which the conviction and sentence of the appeal under Section 302 were confirmed. The appellant was sentenced to imprisonment for life. 2. The facts of the case have been detailed in the judgment of the High Court and it is not necessary to repeat the same. It appears that on March 31, 1973, the deceased was going from a hotel and passing through Suvai Bazar when the appellant and two others accosted him and the appellant assaulted him with a dharia on the head as a result of which the deceased died. 3. The central evidence in the case consisted of two eyewitnesses PW 22 and PW 23 and three dying declarations made by the deceased-one before the constable Parveen Singh, PW 24 another before PW 29, the PSI and a third before a Taluka Magistrate PW 12, Jagjivan. Both the courts below have accepted the three dying declarations made by the deceased before the witnesses concerned. The High Court has also believed PW 22 and the finding of the High Court was criticised on the ground that PW 22 was examined by the police five days after the occurrence and he did not volunteer to go to the police so as to give the version of the occurrence which he saw. We feel that apart from the eyewitnesses if the dying declarations made by the three witnesses are believed that will be sufficient to warrant the conviction of the appellant. We have perused the evidence of PW 24, Parveen Singh who reached the spot and had taken the deceased on a camel cart to the nearest dispensary Rahpar. During the way the deceased revealed to him that he was assaulted by the appellant on the head with a dharia. This dying declaration is followed is followed by a dying declaration made by the deceased before PW 12, Taluka Magistrate, Jagjivan which was recorded in the form of questions and answers. This dying declaration is a very important document because it amounts to a statement of the deceased varba-dicta. Apart from the finding of the courts below that the dying declaration made by the deceased before the Magistrate was true, we have ourselves also perused the dying declaration and find that it is a very natural and straightforward statement and contains a ring of truth. There was absolutely no reasons for the deceased to have falsely implicated the appellant. It was suggested by the learned counsel for the appellant that the possibility of the deceased having been tutored cannot be ruled out in this case because the doctor who examined the deceased had stated that the relatives of the deceased may have been in the adjoining room. There is however no evidence at all to show that at the time when the deceased was carried to the dispensary and taken to the doctor, the relations of the deceased had accompanied him. The fact that the relatives may have come afterwards does not appear to be of any significant. Moreover we find no reason why the deceased should implicate the appellant falsely at the instance of his relatives. The oral statement made by the deceased before Parveen Singh which was first in point of time is also consistent and straightforward and has been deposed to by Parveen Singh who is an independent witness and bears no animus against the accused. The third statement of the deceased was made to PW 29 which has been reduced into writing and which fully corroborates the version given by the deceased in the other two dying declarations. Furthermore the dying declaration by the deceased to the Magistrate Ex. 32 contains a certificate of the doctor that the deceased was conscious from the beginning to the end at the time when the statement was recorded by PW 12. Similarly PW 24, Parveen Singh had also said that deceased was conscious when he made the statement before him. In these circumstances we are of the opinion that the courts below were fully justified in acting on the dying declarations of the deceased. Short of minor contradictions and embellishments in the statement of the witnesses nothing of importance in the cross-examination has been elicited to demolish the case of the prosecution.

0[ds]There is however no evidence at all to show that at the time when the deceased was carried to the dispensary and taken to the doctor, the relations of the deceased had accompanied him. The fact that the relatives may have come afterwards does not appear to be of any significant. Moreover we find no reason why the deceased should implicate the appellant falsely at the instance of his relatives. The oral statement made by the deceased before Parveen Singh which was first in point of time is also consistent and straightforward and has been deposed to by Parveen Singh who is an independent witness and bears no animus against the accused. The third statement of the deceased was made to PW 29 which has been reduced into writing and which fully corroborates the version given by the deceased in the other two dying declarations. Furthermore the dying declaration by the deceased to the Magistrate Ex. 32 contains a certificate of the doctor that the deceased was conscious from the beginning to the end at the time when the statement was recorded by PW 12. Similarly PW 24, Parveen Singh had also said that deceased was conscious when he made the statement before him. In these circumstances we are of the opinion that the courts below were fully justified in acting on the dying declarations of the deceased. Short of minor contradictions and embellishments in the statement of the witnesses nothing of importance in then has been elicited to demolish the case of the prosecution.

### 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: Fazal Ali, J. This appeal by special leave is directed against the judgment of the High Court of Gujarat by which the conviction and sentence of the appeal under Section 302 were confirmed. The appellant was sentenced to imprisonment for life. 2. The facts of the case have been detailed in the judgment of the High Court and it is not necessary to repeat the same. It appears that on March 31, 1973, the deceased was going from a hotel and passing through Suvai Bazar when the appellant and two others accosted him and the appellant assaulted him with a dharia on the head as a result of which the deceased died. 3. The central evidence in the case consisted of two eyewitnesses PW 22 and PW 23 and three dying declarations made by the deceased-one before the constable Parveen Singh, PW 24 another before PW 29, the PSI and a third before a Taluka Magistrate PW 12, Jagjivan. Both the courts below have accepted the three dying declarations made by the deceased before the witnesses concerned. The High Court has also believed PW 22 and the finding of the High Court was criticised on the ground that PW 22 was examined by the police five days after the occurrence and he did not volunteer to go to the police so as to give the version of the occurrence which he saw. We feel that apart from the eyewitnesses if the dying declarations made by the three witnesses are believed that will be sufficient to warrant the conviction of the appellant. We have perused the evidence of PW 24, Parveen Singh who reached the spot and had taken the deceased on a camel cart to the nearest dispensary Rahpar. During the way the deceased revealed to him that he was assaulted by the appellant on the head with a dharia. This dying declaration is followed is followed by a dying declaration made by the deceased before PW 12, Taluka Magistrate, Jagjivan which was recorded in the form of questions and answers. This dying declaration is a very important document because it amounts to a statement of the deceased varba-dicta. Apart from the finding of the courts below that the dying declaration made by the deceased before the Magistrate was true, we have ourselves also perused the dying declaration and find that it is a very natural and straightforward statement and contains a ring of truth. There was absolutely no reasons for the deceased to have falsely implicated the appellant. It was suggested by the learned counsel for the appellant that the possibility of the deceased having been tutored cannot be ruled out in this case because the doctor who examined the deceased had stated that the relatives of the deceased may have been in the adjoining room. There is however no evidence at all to show that at the time when the deceased was carried to the dispensary and taken to the doctor, the relations of the deceased had accompanied him. The fact that the relatives may have come afterwards does not appear to be of any significant. Moreover we find no reason why the deceased should implicate the appellant falsely at the instance of his relatives. The oral statement made by the deceased before Parveen Singh which was first in point of time is also consistent and straightforward and has been deposed to by Parveen Singh who is an independent witness and bears no animus against the accused. The third statement of the deceased was made to PW 29 which has been reduced into writing and which fully corroborates the version given by the deceased in the other two dying declarations. Furthermore the dying declaration by the deceased to the Magistrate Ex. 32 contains a certificate of the doctor that the deceased was conscious from the beginning to the end at the time when the statement was recorded by PW 12. Similarly PW 24, Parveen Singh had also said that deceased was conscious when he made the statement before him. In these circumstances we are of the opinion that the courts below were fully justified in acting on the dying declarations of the deceased. Short of minor contradictions and embellishments in the statement of the witnesses nothing of importance in the cross-examination has been elicited to demolish the case of the prosecution. ### Response: 0

Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh And Others

Ram. As, however, he was the Raja of Basti the document was executed at his palace and not in the house of the mtgee. and if as the pltf. says, the terms were already settled between Bhikhi Ram and the Raja and the only the thing left, was to embody the agreed terms in writing, we fail to see why it was absolutely necessary for Bhikhi Ram to wait upon the mtgor. personally ; and why his adult son, who was sufficiently old and experienced in business affairs, could not represent him in the transaction. The suggestion of Mr. Banerjee that the new story was invented after the pltff. had seen Harbhajan Lal giving evidence against him in the witness box, is not worthy of serious consideration having regard to the fact that the pltf. himself stepped into the witness box immediately after Harbhajan Lal had finished his deposition.17. It seems to us also that the presence of Harbhajan Lal and Buddhu Lal at the sitting when the mtge. transaction took place was quite a probable and natural thing which cannot give rise to any suspicion. It appears from the evidence on the record that Harbhajan Lal, who was a professional deed writer, was usually employed for writing deeds of the pltfs. father and he figured either as a scribe or as an attesting witness in various documents to which the pltfs. father was a party. It was quite natural for the pltf. in such circumstances to take Harbhajan Lal along with him to the Rajas palace on the day that the mtge. bond was executed and we see no reason to disbelieve the pltf.s statement that his original intention was to have the deed scribed by Harbhajan Lal. It is said by the H. C. that in the mofussil districts in U. P. the Patwari is the person generally employed for drafting and scribing deeds. This cannot mean that all the people in the district of Basti used to have their deeds drafted and scribed by the Patwari.18. We have exhibited documents in the records of this case where the name of Harbhajan Lal appears as the scribe; and so far as the pltfs father was concerned, there is no doubt whatsoever that Harbhajan Lal was the scribe ordinarily employed to do his work. In this case also, if Jawala Prasad Patwari had not been present on the spot, the pltf. would certainly have the document scribed by Harbhajan Lal, as so many documents in favour of the pltf.s father had been scribed by this man on previous occasions. We see nothing improbable in the story that it was out of deference to the wishes of the Raja that the pltf. consented to the document being scribed by Jawala Prasad Patwari.19. As regards Buddhu Lal, it is not disputed that he was an old and a trusted servant of the pltfs family. That he was trusted in business matters is clear from the fact that his name appears as a witness in the registered receipt (Ex. 10) given by Sheo Balak Ram, to whom a sum of Rs. 500 was paid by Bhikhi Ram under the terms of the disputed mtge. deed. We fail to see why it was improbable that Buddhu Lal would accompany the pltf. to the Rajas palace on the day of the execution of the document.20. The trial Judge relied to some extent upon the fact that the signatures of the executant and Harbhajan Lal were in the same ink, in support of his conclusion that Harbhajan Lal signed the document at the place of its execution and not at the Collectorate Cutchery as alleged by him. Speaking for ourselves, we do not attach much importance to the similarity in the ink which is after all not a very reliable test; but we do agree with the trial Judge in holding that Harbhajan Lal must have signed the document at the time when it was executed and not afterwards; and it is really inconceivable that an old and experienced deed writer like him did not know the requirements of proper attestation. On his own evidence he had attested numerous documents and he could not recall a single instance where he signed the document in such manner as he did in the present case. The way in which the learned Judges of the H. C. have attempted to explain away this part of Harbhajan Lals evidence does not appear to be satisfactory. The other observation made by the H. C. in this connection that in this particular province there are many persons who are acquainted with law but do not care to comply with its requirements on account of carelessness, indifference, sloth or over-confidence is not relevant and need not be taken seriously. Whatever that may be, we have no hesitation in holding that Harbhajan Lal knew perfectly well what attestation means in law and he did sign the document as an attesting witness at the Rajas Kot after the document was executed.21. Jawala Prasad Patwari is apparently a man under the control of the deft. and cannot be trusted. Why Harbhajan Lal did go over to the defts side is a question which may not admit of an easy answer. The trial Judge seems to be of opinion that it was probably due to the influence exercised by Jawala Prasad Patwari, who is a co-villager of Harbhajan. We think it unnecessary to speculate upon these matters, for, in our opinion, Harbhajan Lal stands condemned by his own statement in Ct.22. Our conclusion is that the finding of the trial Judge on the question of attestation is perfectly consistent with the circumstances and probabilities of the case and the learned Judge did not omit anything which ought to have been present to his mind in coming to a conclusion. The evidence on the record taken as a whole fully supports the finding, and in our opinion the H. C. has reversed it on totally inadequate grounds.

1[ds]13. The learned Judges of the H. C. in dealing with the appeal do observe at the beginning of their discussions that on a question of fact the appellate Ct. should be slow to differ from the conclusions arrived at by the trial Judge who had seen and heard the witnesses ; but in their opinion, this rule did not apply to the present case as the trial Judge here did not base his conclusions on the impressions created in his mind by the witnesses who deposed before him. What the trial Judge relied upon, it is said, was not the demeanour of the witnesses as index of their credibility but upon the inherent improbability of the circumstances deposed to by the defts. witnesses. It is observed by the H. C. that the trial judge, when he found the defts story to be improbable, should have considered whether or not there were improbable features in the pltf.s case also, and whether the evidence of the pltf. and his servant Buddhu Lal merited credence at all. The learned Judges at the H. C. then proceed to examine and discuss at great length the different reasons put forward by the trial Judge in support of his finding that the deft.s case was unreliable. These reasons are held to be inconclusive and unsound and the H.C. further found that the pltf.s story as narrated by him and his servant, is improbable and not worthy of belief.In our opinion, the H. C.s approach to the case has not been proper and its findings are unsupportable on the materials in the record.We think that this argument rests on an extremely flimsy basis which does not bear examination. It may be that the Baja was a man of high social position, but it should be remembered that he was in the position of a borrower and moreover it was not the first time that he was borrowing money from Bhikhi Ram. As, however, he was the Raja of Basti the document was executed at his palace and not in the house of the mtgee. and if as the pltf. says, the terms were already settled between Bhikhi Ram and the Raja and the only the thing left, was to embody the agreed terms in writing, we fail to see why it was absolutely necessary for Bhikhi Ram to wait upon the mtgor. personally ; and why his adult son, who was sufficiently old and experienced in business affairs, could not represent him in the transaction. The suggestion of Mr. Banerjee that the new story was invented after the pltff. had seen Harbhajan Lal giving evidence against him in the witness box, is not worthy of serious consideration having regard to the fact that the pltf. himself stepped into the witness box immediately after Harbhajan Lal had finished his deposition.It seems to us also that the presence of Harbhajan Lal and Buddhu Lal at the sitting when the mtge. transaction took place was quite a probable and natural thing which cannot give rise to any suspicion. It appears from the evidence on the record that Harbhajan Lal, who was a professional deed writer, was usually employed for writing deeds of the pltfs. father and he figured either as a scribe or as an attesting witness in various documents to which the pltfs. father was a party. It was quite natural for the pltf. in such circumstances to take Harbhajan Lal along with him to the Rajas palace on the day that the mtge. bond was executed and we see no reason to disbelieve the pltf.s statement that his original intention was to have the deed scribed by Harbhajan Lal. It is said by the H. C. that in the mofussil districts in U. P. the Patwari is the person generally employed for drafting and scribing deeds. This cannot mean that all the people in the district of Basti used to have their deeds drafted and scribed by thehave exhibited documents in the records of this case where the name of Harbhajan Lal appears as the scribe; and so far as the pltfs father was concerned, there is no doubt whatsoever that Harbhajan Lal was the scribe ordinarily employed to do his work. In this case also, if Jawala Prasad Patwari had not been present on the spot, the pltf. would certainly have the document scribed by Harbhajan Lal, as so many documents in favour of the pltf.s father had been scribed by this man on previous occasions. We see nothing improbable in the story that it was out of deference to the wishes of the Raja that the pltf. consented to the document being scribed by Jawala Prasad Patwari.Jawala Prasad Patwari is apparently a man under the control of the deft. and cannot be trusted. Why Harbhajan Lal did go over to the defts side is a question which may not admit of an easy answer. The trial Judge seems to be of opinion that it was probably due to the influence exercised by Jawala Prasad Patwari, who is a co-villager of Harbhajan. We think it unnecessary to speculate upon these matters, for, in our opinion, Harbhajan Lal stands condemned by his own statement in Ct.Our conclusion is that the finding of the trial Judge on the question of attestation is perfectly consistent with the circumstances and probabilities of the case and the learned Judge did not omit anything which ought to have been present to his mind in coming to a conclusion. The evidence on the record taken as a whole fully supports the finding, and in our opinion the H. C. has reversed it on totally inadequate grounds.

### 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: Ram. As, however, he was the Raja of Basti the document was executed at his palace and not in the house of the mtgee. and if as the pltf. says, the terms were already settled between Bhikhi Ram and the Raja and the only the thing left, was to embody the agreed terms in writing, we fail to see why it was absolutely necessary for Bhikhi Ram to wait upon the mtgor. personally ; and why his adult son, who was sufficiently old and experienced in business affairs, could not represent him in the transaction. The suggestion of Mr. Banerjee that the new story was invented after the pltff. had seen Harbhajan Lal giving evidence against him in the witness box, is not worthy of serious consideration having regard to the fact that the pltf. himself stepped into the witness box immediately after Harbhajan Lal had finished his deposition.17. It seems to us also that the presence of Harbhajan Lal and Buddhu Lal at the sitting when the mtge. transaction took place was quite a probable and natural thing which cannot give rise to any suspicion. It appears from the evidence on the record that Harbhajan Lal, who was a professional deed writer, was usually employed for writing deeds of the pltfs. father and he figured either as a scribe or as an attesting witness in various documents to which the pltfs. father was a party. It was quite natural for the pltf. in such circumstances to take Harbhajan Lal along with him to the Rajas palace on the day that the mtge. bond was executed and we see no reason to disbelieve the pltf.s statement that his original intention was to have the deed scribed by Harbhajan Lal. It is said by the H. C. that in the mofussil districts in U. P. the Patwari is the person generally employed for drafting and scribing deeds. This cannot mean that all the people in the district of Basti used to have their deeds drafted and scribed by the Patwari.18. We have exhibited documents in the records of this case where the name of Harbhajan Lal appears as the scribe; and so far as the pltfs father was concerned, there is no doubt whatsoever that Harbhajan Lal was the scribe ordinarily employed to do his work. In this case also, if Jawala Prasad Patwari had not been present on the spot, the pltf. would certainly have the document scribed by Harbhajan Lal, as so many documents in favour of the pltf.s father had been scribed by this man on previous occasions. We see nothing improbable in the story that it was out of deference to the wishes of the Raja that the pltf. consented to the document being scribed by Jawala Prasad Patwari.19. As regards Buddhu Lal, it is not disputed that he was an old and a trusted servant of the pltfs family. That he was trusted in business matters is clear from the fact that his name appears as a witness in the registered receipt (Ex. 10) given by Sheo Balak Ram, to whom a sum of Rs. 500 was paid by Bhikhi Ram under the terms of the disputed mtge. deed. We fail to see why it was improbable that Buddhu Lal would accompany the pltf. to the Rajas palace on the day of the execution of the document.20. The trial Judge relied to some extent upon the fact that the signatures of the executant and Harbhajan Lal were in the same ink, in support of his conclusion that Harbhajan Lal signed the document at the place of its execution and not at the Collectorate Cutchery as alleged by him. Speaking for ourselves, we do not attach much importance to the similarity in the ink which is after all not a very reliable test; but we do agree with the trial Judge in holding that Harbhajan Lal must have signed the document at the time when it was executed and not afterwards; and it is really inconceivable that an old and experienced deed writer like him did not know the requirements of proper attestation. On his own evidence he had attested numerous documents and he could not recall a single instance where he signed the document in such manner as he did in the present case. The way in which the learned Judges of the H. C. have attempted to explain away this part of Harbhajan Lals evidence does not appear to be satisfactory. The other observation made by the H. C. in this connection that in this particular province there are many persons who are acquainted with law but do not care to comply with its requirements on account of carelessness, indifference, sloth or over-confidence is not relevant and need not be taken seriously. Whatever that may be, we have no hesitation in holding that Harbhajan Lal knew perfectly well what attestation means in law and he did sign the document as an attesting witness at the Rajas Kot after the document was executed.21. Jawala Prasad Patwari is apparently a man under the control of the deft. and cannot be trusted. Why Harbhajan Lal did go over to the defts side is a question which may not admit of an easy answer. The trial Judge seems to be of opinion that it was probably due to the influence exercised by Jawala Prasad Patwari, who is a co-villager of Harbhajan. We think it unnecessary to speculate upon these matters, for, in our opinion, Harbhajan Lal stands condemned by his own statement in Ct.22. Our conclusion is that the finding of the trial Judge on the question of attestation is perfectly consistent with the circumstances and probabilities of the case and the learned Judge did not omit anything which ought to have been present to his mind in coming to a conclusion. The evidence on the record taken as a whole fully supports the finding, and in our opinion the H. C. has reversed it on totally inadequate grounds. ### Response: 1

Suresh Estates Pvt.Ltd Vs. Municipal Corp.Of Greater Mumbai

the date when CRZ Notification was issued, cannot be accepted. As noticed earlier the plot was reserved as play ground for secondary school as well as for primary school and also for DP road. The appellants had caused the purchase notice dated June 16, 2005 served to the Competent Authority under Section 127 of the M.R.T.P. Act, 1966. After following the procedure the State Government decided not to acquire the plot which is quite evident from the contents of letter dated July 18, 2006, addressed by the Government of Maharashtra to Municipal Corporation of Greater Mumbai. By the said letter the Municipal Corporation of Greater Mumbai was informed that the procedure for acquisition of the land in question had not been commenced within the prescribed period by the Municipal Corporation and therefore there was no objection for presuming that the reservation had lapsed. The CRZ Notification has only frozen the FSI/FAR norms but not the operation of Section 127 of the Act. In terms of the provisions of Section 127 of the M.R.T.P. Act, 1966, the reservations lapsed. If the argument of the respondent is accepted, it is likely to result into a piquant situation not contemplated by the Act, because the respondents do not want to acquire land whereas the appellants would not be entitled to use the land for any purpose for all time to come. The argument advanced by the respondent is misconceived in as much as the State Government in one breath asserts that the appellants are entitled to FSI of 1.33 for construction of hotel whereas in the same breath it asserts that the property is reserved and cannot be used for hotel project. The underlying principle envisaged by Section 127 of the M.R.T.P. Act, 1966 is either to utilize the land for the purpose it is reserved in the plan or let the owner utilize the land for the purpose it is permissible under the Town Planning Scheme. Therefore, the plea that the appellants would not be entitled to use the plot in question for hotel project in view of the reservations which were earlier prevalent cannot be accepted. 12. Similarly, the assertion made by the respondents in the reply that since it is prerogative of the State Government to exercise discretion for grant of additional FSI, the prayer made by the appellants to direct the State Government to grant additional FSI should be turned down, cannot be accepted. It is true that under Rule 10(2) of the DC Rules, 1967 a discretion is vested in the Government to grant additional FSI in respect of the buildings of education and medical relief as well as Government and semi-Government offices and luxury hotels. However, it is well-settled by catena on reported decisions that the discretion vested in an Authority has to be exercised judiciously. The discretion vested under Rule 10(2) of the DC Rules, 1967 cannot be exercised arbitrarily of capriciously or as per the whims of the Authority concerned. The exercise of the discretion must be in consonance with the principles incorporated in Article 14 of the Constitution so that it does not suffer from the vice of the arbitrariness. Therefore, the assertion made by the State Government that it is prerogative of the State Government to grant additional FSI and, therefore, the reliefs claimed in the appeal should be refused, cannot be accepted.13. The contention of the appellants that in view of the provisions of sub-Section 5 of Section 45 of the M.R.T.P. Act, 1966, the application submitted by them for seeking permission to develop their plot should be deemed to have been granted to them as the Planning Authority had failed to communicate its decision whether to grant or refuse permission within 60 days from the date of receipt of their application, cannot be upheld. The facts of the case would indicate that the matter of grant of permission was under active consideration of different authorities. The question whether the appellants were entitled to additional FSI as claimed by them was considered and contested by the respondents. Further, the proviso to Section 45(5) of the M.R.T.P. Act, 1966 makes it clear that the deeming provision would apply only if the permission applied for is strictly in conformity with relevant DC Regulations. The competent authority had no occasion to consider whether the plans submitted by the appellants for development of their plot were in accordance with DC Rules, 1967. On the facts and in the circumstances of the case this Court is of the opinion that the appellants are not entitled to a declaration that the permission applied for was deemed to have been granted to them as the Planning Authority had failed to communicate its decision whether to grant or refuse permission within 60 days from the date of receipt of their application 14. Similarly, the claim made by the appellants that the respondents should be directed by this Court to grant permission to the appellants to develop their plot with demanded FSI cannot be accepted. As noticed earlier Rule 10(2) of the Rules of 1967 confers discretion upon the competent authority to grant additional FSI to the buildings mentioned therein including luxury hotels. When a statute confers a discretionary power to be exercised by competent authority, the Court cannot direct the competent authority to exercise discretion in a particular manner. The Court can always direct the competent authority to exercise discretion vested in it in accordance with law. Therefore, the prayer made by the appellants to direct the State Government to grant additional FSI as was granted to other hotels or to grant them FSI of 5.32 cannot be accepted. However, this Court is of the opinion that having regard to the facts of the case interest of justice should be served if the respondent State is directed to exercise discretion vested in it under rule 10(2) of the DC Rules, 1967 after taking into consideration the relevant material including the fact that other hotels, were in past granted additional FSI.

1[ds]7. The contention advanced by the Learned Counsel for the respondents that the DC Rules, 1967 would not apply to the development permission sought for by the appellants, but the Development Control Regulations of 1991 would, cannot be accepted. It is not in dispute that on February 19, 1991 the Ministry of Environment and Forest issued a notification under the provisions ofthe Environment Protection Act,regulating building activities in Coastal Zones which is known as Coastal Regulation Zone Notification. The said Notification classifies the areas within 500 meters of high tide land, into CRZ I, CRZ II, CRZ III and CRZ IV categories. It is also not in dispute that the plot belonging to the appellants falls within CRZ II category. The Notification inter alia provides that buildings shall be permitted only on the landward side of the existing road and buildings permitted at landward side of the existing and proposed roads shall be subject to the existing local Town and Country Planning Regulations including the existing norms of floor space index/floor area ration. It is true that DC Regulations for Greater Bombay, 1991 were notified on February 20, 1991 and came into force with effect from March 25, 1991. However, a doubt was raised whether the existing DC Regulations for Coastal Regulation Zone II (CRZ II) would mean the DC Rules, 1967 or Draft Development Control Regulations, 1989 which ultimately culminated into D.C. Regulations, 1991 and, therefore, the Ministry of Environment and Forest was consulted. The Ministry of Environment and Forest issued a clarification on September 8, 1998 stating that the DC Regulations as existing on February 19, 1991 would apply for all developmental activities in Coastal Regulation Zone including CRZ II. The Ministry of Environment and Forest also issued clarification on August 18, 2006 reiterating that the existing DC Regulations applicable to CRZ II areas in Mumbai would mean the DC Rules, 1967. Even the Municipal Corporation in its letter dated December 31, 2005 addressed to the Principal Secretary, Urban Development Department, Government of Maharashtra, had expressed the view that the application made by the appellants for construction of a luxury hotel with additional FSI under DC Rules, 1967 be granted under Rule 10(2) of the Rules. As observed earlier a letter dated February 20, 2007 was addressed by the Government of Maharashtra to the Municipal Commissioner of Greater Mumbai in which reference was invited to the application submitted by the appellants for development permission and remarks from the Municipal Corporation were called for. The Municipal Commissioner had convened a meeting of Officials belonging to different Departments of the State Government and the Committee after discussion had decided to recommend to grant the application made by the appellants pursuant to which on March 1, 2007 the Municipal Corporation submitted its Report to the State Government and recommended for grant of additional FSI in terms of DC Rules, 1967. The word existing as employed in the CRZ Notification means Town and Country Planning Regulations in force as on February 19, 1991. If it had been the intention that Town and Country Planning Regulations as in force on the date of the grant of permission for building would apply to the building activity, it would have been so specified. It is well to remember that CRZ Notification refers also to structures which were in existence on the date of the notification. What is stressed by the notification is that irrespective of what Local Town and Country Planning Regulations may provide in future the building activity permitted under the notification shall be frozen to the laws and norms existing on the date of the notification. On February 2, 1991 when the CRZ Notification was issued, the only building Regulations that were existing in city of Mumbai, were the DC Rules, 1967. In view of the contents of CRZ II Notification issued under the provisions of Environment Protection Act which has the effect of prevailing over the provisions of other Acts, the application submitted by the appellants to develop the plot belonging to them would be governed by the provisions of DC Rules, 1967 and not by the Draft Development Rules of 1989 which came into force on February 20, 1991 in the form of Development Control Regulations for Greater Bombay 19918. The argument that in view of the provisions of Section 46 of the Town Planning Act, 1966, the Planning Authority has to take into consideration the Draft Regulations of 1989 and, therefore, the appellants would not be entitled to additional FSI is devoid of merits.In view of the peculiar circumstances obtaining in the instant case, the Court is of the opinion that Section 46 of the M.R.T.P Act, 1966 would not apply to the facts of the instant case. Further, when the sanctioned D.C. Regulations for Greater Bombay, 1991 do not apply to areas covered within CRZ-II, since those regulations came into force with effect from March 20, 1991, its previous draft also cannot apply. The draft published is to be taken into consideration so that the development plan is advanced and not thwarted. The draft development plan was capable of being sanctioned, but when the final development plan is not applicable, its draft would equally not apply as there is no question of that plan being thwarted at all. As far as development in the area covered by CRZ-II is concerned one will have to proceed on the footing that the draft plan after CRZ Notification never existed. Even otherwise what is envisaged under Section 46 of the M.R.T.P. Act is due regard to draft plan only if there is no final plan. The DC Rules of 1967 were in existence as on February 19, 1991 and therefore the plan prepared thereunder would govern the case. It is relevant to the notice at this stage that the State Government had sought a clarification from Ministry of Environment and Forest on August 2, 2006 as to whether DC Rules, 1967 or the DC Regulations 1991 will apply to the areas covered by CRZ-II. The Ministry of Environment and Forest on August 18, 2006 clarified that the Development Control Rules of 1967 would apply.The assertion made by the appellants that the clarification issued by the Ministry of Environment and Forest is binding on the State Government in view of the salutary provisions of Section 3, 5 and 24 ofthe Environment (Protection) Act,deserves consideration. The clarification issued by the Central Government in respect of the CRZ Notification on September 8, 1998 states that the existing rules would be those, which were in force as on February 19, 1991. The Draft Regulations of 1989 were not in force as on February 19, 1991 and, therefore, would not apply to the plot in question. What is emphasized in Section 46 of the M.R.T.P. Act, 1966 is that the Planning Authority should have due regard to the Draft Rules. The legislature has not used the phrase must have regard or shall have regard. The Municipal Corporation of Greater Mumbai which is the Planning Authority had given due regard to the draft DC Regulations of 1989 in the light of CRZ Notification and recommended to the Government to grant additional FSI of 3.73 times permissible as per Development Control Rules, 1967 over and above 1.33 permissible, to the appellants. Having regard to the facts of the case this Court is of the opinion that the contention that the Planning Authority has to take into consideration the Draft Regulations of 1989 and, therefore, the appellants would not be entitled to additional FSI, cannot be accepted and is hereby rejected10. The argument that even if it is assumed that the provisions of DC Rules, 1967 would be applicable to the application submitted by the appellants seeking permission to develop their plot, they would be entitled to FSI of only 1.33 which is the existing norm set out in the Rules and would not be entitled to additional FSI, has no substance at all. It is true that in DC Rules, 1967 the norm of permissible FSI is laid down to be 1.33. However, there is no manner of doubt that under Rule 10 (2) Rules of 1967, the floor space indices specified may be permitted to be exceeded in respect of buildings of educational and medical relief institution as well as Government and semi-Government offices and luxury hotels with the previous approval of the Government. The respondents could not lay factual data before the Court to indicate that there was no norm of giving higher FSI over and above 1.33 to hotels to the buildings contemplated under Rule 10(2) of DC Rules, 1967. On the contrary the appellants have placed material on record of the appeal which would indicate that the norm adopted by the Government in case of Taj Hotel and Hotel Oberoi was to grant FSI of 5.32. The norm of FSI specified in Rule 10(1) of the Rules of 1967 would be subject to the discretion to be exercised by the Government under Rule 10(2) of the Rules. The norm as set out regarding FSI in DC rules on 1967 will have to be construed to mean also the norm of FSI which can be granted by the Government in exercise of discretion vested in it under Rule 10(2) of the Rules of 1967. The case of the appellants is that normally all luxury hotels which had applied for additional FSI under rule 10(2) of DC Rules, 1967 were allowed additional FSI. Having regard to the intention of the legislature the prevalent norm of FSI under Rule 10(1) of the Rules, 1967 will have to be construed to mean also the norm of FSI which can be granted in exercise of discretion under Rule 10(2) of the Rules. Therefore, the stand taken by the respondents that the appellants would not be entitled to more than 1.33 FSI in view of norm set out in DC Rules of 1967 cannot be upheld and it is held that the question of grant of FSI would be subject to the discretion to be exercised by the Competent Authority under Rule 10(2) of the Rules on analysis of objective facts placed before it11. The contention that even if it is assumed that the appellants are entitled to higher FSI, they cannot use the plot in question for construction of a hotel as the land was reserved for public purpose on the date when CRZ Notification was issued, cannot be accepted. As noticed earlier the plot was reserved as play ground for secondary school as well as for primary school and also for DP road. The appellants had caused the purchase notice dated June 16, 2005 served to the Competent Authority under Section 127 of the M.R.T.P. Act, 1966. After following the procedure the State Government decided not to acquire the plot which is quite evident from the contents of letter dated July 18, 2006, addressed by the Government of Maharashtra to Municipal Corporation of Greater Mumbai. By the said letter the Municipal Corporation of Greater Mumbai was informed that the procedure for acquisition of the land in question had not been commenced within the prescribed period by the Municipal Corporation and therefore there was no objection for presuming that the reservation had lapsed. The CRZ Notification has only frozen the FSI/FAR norms but not the operation of Section 127 of the Act. In terms of the provisions of Section 127 of the M.R.T.P. Act, 1966, the reservations lapsed. If the argument of the respondent is accepted, it is likely to result into a piquant situation not contemplated by the Act, because the respondents do not want to acquire land whereas the appellants would not be entitled to use the land for any purpose for all time to come. The argument advanced by the respondent is misconceived in as much as the State Government in one breath asserts that the appellants are entitled to FSI of 1.33 for construction of hotel whereas in the same breath it asserts that the property is reserved and cannot be used for hotel project. The underlying principle envisaged by Section 127 of the M.R.T.P. Act, 1966 is either to utilize the land for the purpose it is reserved in the plan or let the owner utilize the land for the purpose it is permissible under the Town Planning Scheme. Therefore, the plea that the appellants would not be entitled to use the plot in question for hotel project in view of the reservations which were earlier prevalent cannot be accepted12. Similarly, the assertion made by the respondents in the reply that since it is prerogative of the State Government to exercise discretion for grant of additional FSI, the prayer made by the appellants to direct the State Government to grant additional FSI should be turned down, cannot be accepted. It is true that under Rule 10(2) of the DC Rules, 1967 a discretion is vested in the Government to grant additional FSI in respect of the buildings of education and medical relief as well as Government and semi-Government offices and luxury hotels. However, it is well-settled by catena on reported decisions that the discretion vested in an Authority has to be exercised judiciously. The discretion vested under Rule 10(2) of the DC Rules, 1967 cannot be exercised arbitrarily of capriciously or as per the whims of the Authority concerned. The exercise of the discretion must be in consonance with the principles incorporated in Article 14 of the Constitution so that it does not suffer from the vice of the arbitrariness. Therefore, the assertion made by the State Government that it is prerogative of the State Government to grant additional FSI and, therefore, the reliefs claimed in the appeal should be refused, cannot be accepted.13. The contention of the appellants that in view of the provisions of sub-Section 5 of Section 45 of the M.R.T.P. Act, 1966, the application submitted by them for seeking permission to develop their plot should be deemed to have been granted to them as the Planning Authority had failed to communicate its decision whether to grant or refuse permission within 60 days from the date of receipt of their, cannot be upheld. The facts of the case would indicate that the matter of grant of permission was under active consideration of different authorities. The question whether the appellants were entitled to additional FSI as claimed by them was considered and contested by the respondents. Further, the proviso to Section 45(5) of the M.R.T.P. Act, 1966 makes it clear that the deeming provision would apply only if the permission applied for is strictly in conformity with relevant DC Regulations. The competent authority had no occasion to consider whether the plans submitted by the appellants for development of their plot were in accordance with DC Rules, 1967. On the facts and in the circumstances of the case this Court is of the opinion that the appellants are not entitled to a declaration that the permission applied for was deemed to have been granted to them as the Planning Authority had failed to communicate its decision whether to grant or refuse permission within 60 days from the date of receipt of their application14. Similarly, the claim made by the appellants that the respondents should be directed by this Court to grant permission to the appellants to develop their plot with demanded FSI cannot be accepted. As noticed earlier Rule 10(2) of the Rules of 1967 confers discretion upon the competent authority to grant additional FSI to the buildings mentioned therein including luxury hotels. When a statute confers a discretionary power to be exercised by competent authority, the Court cannot direct the competent authority to exercise discretion in a particular manner. The Court can always direct the competent authority to exercise discretion vested in it in accordance with law. Therefore, the prayer made by the appellants to direct the State Government to grant additional FSI as was granted to other hotels or to grant them FSI of 5.32 cannot be accepted. However, this Court is of the opinion that having regard to the facts of the case interest of justice should be served if the respondent State is directed to exercise discretion vested in it under rule 10(2) of the DC Rules, 1967 after taking into consideration the relevant material including the fact that other hotels, were in past granted additional FSI.

### Instruction: Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case. ### Input: the date when CRZ Notification was issued, cannot be accepted. As noticed earlier the plot was reserved as play ground for secondary school as well as for primary school and also for DP road. The appellants had caused the purchase notice dated June 16, 2005 served to the Competent Authority under Section 127 of the M.R.T.P. Act, 1966. After following the procedure the State Government decided not to acquire the plot which is quite evident from the contents of letter dated July 18, 2006, addressed by the Government of Maharashtra to Municipal Corporation of Greater Mumbai. By the said letter the Municipal Corporation of Greater Mumbai was informed that the procedure for acquisition of the land in question had not been commenced within the prescribed period by the Municipal Corporation and therefore there was no objection for presuming that the reservation had lapsed. The CRZ Notification has only frozen the FSI/FAR norms but not the operation of Section 127 of the Act. In terms of the provisions of Section 127 of the M.R.T.P. Act, 1966, the reservations lapsed. If the argument of the respondent is accepted, it is likely to result into a piquant situation not contemplated by the Act, because the respondents do not want to acquire land whereas the appellants would not be entitled to use the land for any purpose for all time to come. The argument advanced by the respondent is misconceived in as much as the State Government in one breath asserts that the appellants are entitled to FSI of 1.33 for construction of hotel whereas in the same breath it asserts that the property is reserved and cannot be used for hotel project. The underlying principle envisaged by Section 127 of the M.R.T.P. Act, 1966 is either to utilize the land for the purpose it is reserved in the plan or let the owner utilize the land for the purpose it is permissible under the Town Planning Scheme. Therefore, the plea that the appellants would not be entitled to use the plot in question for hotel project in view of the reservations which were earlier prevalent cannot be accepted. 12. Similarly, the assertion made by the respondents in the reply that since it is prerogative of the State Government to exercise discretion for grant of additional FSI, the prayer made by the appellants to direct the State Government to grant additional FSI should be turned down, cannot be accepted. It is true that under Rule 10(2) of the DC Rules, 1967 a discretion is vested in the Government to grant additional FSI in respect of the buildings of education and medical relief as well as Government and semi-Government offices and luxury hotels. However, it is well-settled by catena on reported decisions that the discretion vested in an Authority has to be exercised judiciously. The discretion vested under Rule 10(2) of the DC Rules, 1967 cannot be exercised arbitrarily of capriciously or as per the whims of the Authority concerned. The exercise of the discretion must be in consonance with the principles incorporated in Article 14 of the Constitution so that it does not suffer from the vice of the arbitrariness. Therefore, the assertion made by the State Government that it is prerogative of the State Government to grant additional FSI and, therefore, the reliefs claimed in the appeal should be refused, cannot be accepted.13. The contention of the appellants that in view of the provisions of sub-Section 5 of Section 45 of the M.R.T.P. Act, 1966, the application submitted by them for seeking permission to develop their plot should be deemed to have been granted to them as the Planning Authority had failed to communicate its decision whether to grant or refuse permission within 60 days from the date of receipt of their application, cannot be upheld. The facts of the case would indicate that the matter of grant of permission was under active consideration of different authorities. The question whether the appellants were entitled to additional FSI as claimed by them was considered and contested by the respondents. Further, the proviso to Section 45(5) of the M.R.T.P. Act, 1966 makes it clear that the deeming provision would apply only if the permission applied for is strictly in conformity with relevant DC Regulations. The competent authority had no occasion to consider whether the plans submitted by the appellants for development of their plot were in accordance with DC Rules, 1967. On the facts and in the circumstances of the case this Court is of the opinion that the appellants are not entitled to a declaration that the permission applied for was deemed to have been granted to them as the Planning Authority had failed to communicate its decision whether to grant or refuse permission within 60 days from the date of receipt of their application 14. Similarly, the claim made by the appellants that the respondents should be directed by this Court to grant permission to the appellants to develop their plot with demanded FSI cannot be accepted. As noticed earlier Rule 10(2) of the Rules of 1967 confers discretion upon the competent authority to grant additional FSI to the buildings mentioned therein including luxury hotels. When a statute confers a discretionary power to be exercised by competent authority, the Court cannot direct the competent authority to exercise discretion in a particular manner. The Court can always direct the competent authority to exercise discretion vested in it in accordance with law. Therefore, the prayer made by the appellants to direct the State Government to grant additional FSI as was granted to other hotels or to grant them FSI of 5.32 cannot be accepted. However, this Court is of the opinion that having regard to the facts of the case interest of justice should be served if the respondent State is directed to exercise discretion vested in it under rule 10(2) of the DC Rules, 1967 after taking into consideration the relevant material including the fact that other hotels, were in past granted additional FSI. ### Response: 1

S.T.O., Moradabad, and Others Vs. H. Farid Ahmed and Sons

involve a very short point, turning upon the interpretation of Section 7-A of the U.P. Sales Tax Act (hereinafter referred to as the Act). It appears that the respondent is a partnership-firm, carrying on business in the district of Moradabad. The assessment quarters in question are two quarters of 1968. By an order dated December 31, 1968, the Sales Tax Officer found from the turnover of the firm as revealed from the quarterly returns filed by the assessee that it disclosed an assessable income. The Sales Tax Officer, therefore, proceeded to make a provisional assessment in respect of the portion of the assessment year concerned, purporting to act under Section 7-A of the U.P. Sales Tax Act. The assessee being aggrieved by this order, instead of going in appeal against the order, challenged the same before the High Court praying that the Sales Tax Officer had no jurisdiction to make a provisional assessment, because the assessee had in fact filed a return. This argument appears to have found favour with the High Court which quashed the order of the Sales Tax Officer and held that the Sales Tax Officer could have made a provisional assessment to the best of his judgment only if no return had been filed by the assessee.2. Mr. Manchanda appearing in support of the appeals has contended that the High Court has completely overlooked the purport and ambit of Section 7-A of the Act, which does not exclude but in fact implies the provisions of the Act, including Section 7 (3). The sheet-anchor of the High Courts judgment is Section 7 (3) which runs thus :"If no return is submitted by the dealer under sub-section (1) within the period prescribed in that behalf or, if the return submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall after making such enquiry as he considers necessary, determine the turnover of the dealer to the best of his judgment and assessee the tax on the basis thereof :Provided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of proving the correctness and completeness of any return submitted by him."3. The High Court was of the opinion that as conditions mentioned in section 7(3) did not apply to the facts of the present case inasmuch as it was not a case in which the assessee had not filed a return at all, no assessment could have been made by the Sales Tax Officer. In our opinion, the High Court was in error in taking this view. Section 7-A runs thus :"(1) The State Government may require any dealer to submit a return of his turnover of a portion of the assessment year, and the assessing authority may, without prejudice to the provisions of section 7 make provisional assessment in respect of such portion of the assessment year in accordance with the provisions of this Act in so far as they may be made applicable if the turnover of the dealer as determined by the assessing authority for such portion of the assessment year is not less than such proportion of the amount, if any, specified in or notified under sub-section (2) of Section 3 or sub-section (2) of Section 3-D, as the case may be, as the period under assessment bears to twelve months.(2) Where the assessing authority has made a provisional assessment under sub-section (1), it shall not, by reason of such assessment, be precluded from redetermining in the turnover and making the assessment for the whole year."4. This section clearly authorizes the assessing authority to make a provisional assessment in respect of the assessment year to the best of his judgment, and does not contain any preconditions at all. On the other hand, it applies the provisions of the Act which includes the provisions of section 7 (3), which is the provision that confers power on the assessing authority to make an assessment to the best of his judgment." The High Court was rather carried away by the language of rule 41 (3), which runs thus."(3) If no return is submitted in respect of any quarter or month, as the case may by, within the period or if the return is submitted without the payment of tax in the manner prescribed in rule 48, the Sales Tax Officer shall, after making such enquiries as he considers necessary, determine the turnover to the best of his judgment, provisionally assess the tax payable for the quarter or the month, as the case may be and serve upon the dealer a notice in Form XI and the dealer shall pay the sum demanded within the time and in the manner specified in the notice."5. It is no doubt true that sub-rule (3) contains a provision that the provisional assessment to the best of the judgment can be made where no return is submitted, but this rule has to be read as supplemental to the provisions of the parent Act. We cannot interpret the rule in a way so as to come into conflict with the parent Act, in which case the Act will prevail. What this rule implies is that whether the return is filed by the assessee or not, the assessing authority will have the power to make a provisional assessment. In these circumstances, therefore, we are not able to see any real inconsistency between Section 7-A and Rule 41 (3) of the Rules framed under the Act. For these reasons, we are clearly of the opinion that the sales tax authority, namely, the Sales Tax Officer, in the circumstances was fully justified in making the provisional assessment under the provisions of Section 7-A of the Act and the High Court was wrong in quashing this order. We feel that if the interpretation given by the High Court is accepted, it will amount to giving a licence to the assessee to escape final assessment by filing wrong quarterly returns and deflating the profits earned by them.

1[ds]3. The High Court was of the opinion that as conditions mentioned in section 7(3) did not apply to the facts of the present case inasmuch as it was not a case in which the assessee had not filed a return at all, no assessment could have been made by the Sales Tax Officer. In our opinion, the High Court was in error in taking this view.This section clearly authorizes the assessing authority to make a provisional assessment in respect of the assessment year to the best of his judgment, and does not contain any preconditions at all. On the other hand, it applies the provisions of the Act which includes the provisions of section 7 (3), which is the provision that confers power on the assessing authority to make an assessment to the best of his judgment.It is no doubt true that sub-rule (3) contains a provision that the provisional assessment to the best of the judgment can be made where no return is submitted, but this rule has to be read as supplemental to the provisions of the parent Act. We cannot interpret the rule in a way so as to come into conflict with the parent Act, in which case the Act will prevail. What this rule implies is that whether the return is filed by the assessee or not, the assessing authority will have the power to make a provisional assessment. In these circumstances, therefore, we are not able to see any real inconsistency between Section 7-A and Rule 41 (3) of the Rules framed under the Act. For these reasons, we are clearly of the opinion that the sales tax authority, namely, the Sales Tax Officer, in the circumstances was fully justified in making the provisional assessment under the provisions of Section 7-A of the Act and the High Court was wrong in quashing this order. We feel that if the interpretation given by the High Court is accepted, it will amount to giving a licence to the assessee to escape final assessment by filing wrong quarterly returns and deflating the profits earned by them.

### 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: involve a very short point, turning upon the interpretation of Section 7-A of the U.P. Sales Tax Act (hereinafter referred to as the Act). It appears that the respondent is a partnership-firm, carrying on business in the district of Moradabad. The assessment quarters in question are two quarters of 1968. By an order dated December 31, 1968, the Sales Tax Officer found from the turnover of the firm as revealed from the quarterly returns filed by the assessee that it disclosed an assessable income. The Sales Tax Officer, therefore, proceeded to make a provisional assessment in respect of the portion of the assessment year concerned, purporting to act under Section 7-A of the U.P. Sales Tax Act. The assessee being aggrieved by this order, instead of going in appeal against the order, challenged the same before the High Court praying that the Sales Tax Officer had no jurisdiction to make a provisional assessment, because the assessee had in fact filed a return. This argument appears to have found favour with the High Court which quashed the order of the Sales Tax Officer and held that the Sales Tax Officer could have made a provisional assessment to the best of his judgment only if no return had been filed by the assessee.2. Mr. Manchanda appearing in support of the appeals has contended that the High Court has completely overlooked the purport and ambit of Section 7-A of the Act, which does not exclude but in fact implies the provisions of the Act, including Section 7 (3). The sheet-anchor of the High Courts judgment is Section 7 (3) which runs thus :"If no return is submitted by the dealer under sub-section (1) within the period prescribed in that behalf or, if the return submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall after making such enquiry as he considers necessary, determine the turnover of the dealer to the best of his judgment and assessee the tax on the basis thereof :Provided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of proving the correctness and completeness of any return submitted by him."3. The High Court was of the opinion that as conditions mentioned in section 7(3) did not apply to the facts of the present case inasmuch as it was not a case in which the assessee had not filed a return at all, no assessment could have been made by the Sales Tax Officer. In our opinion, the High Court was in error in taking this view. Section 7-A runs thus :"(1) The State Government may require any dealer to submit a return of his turnover of a portion of the assessment year, and the assessing authority may, without prejudice to the provisions of section 7 make provisional assessment in respect of such portion of the assessment year in accordance with the provisions of this Act in so far as they may be made applicable if the turnover of the dealer as determined by the assessing authority for such portion of the assessment year is not less than such proportion of the amount, if any, specified in or notified under sub-section (2) of Section 3 or sub-section (2) of Section 3-D, as the case may be, as the period under assessment bears to twelve months.(2) Where the assessing authority has made a provisional assessment under sub-section (1), it shall not, by reason of such assessment, be precluded from redetermining in the turnover and making the assessment for the whole year."4. This section clearly authorizes the assessing authority to make a provisional assessment in respect of the assessment year to the best of his judgment, and does not contain any preconditions at all. On the other hand, it applies the provisions of the Act which includes the provisions of section 7 (3), which is the provision that confers power on the assessing authority to make an assessment to the best of his judgment." The High Court was rather carried away by the language of rule 41 (3), which runs thus."(3) If no return is submitted in respect of any quarter or month, as the case may by, within the period or if the return is submitted without the payment of tax in the manner prescribed in rule 48, the Sales Tax Officer shall, after making such enquiries as he considers necessary, determine the turnover to the best of his judgment, provisionally assess the tax payable for the quarter or the month, as the case may be and serve upon the dealer a notice in Form XI and the dealer shall pay the sum demanded within the time and in the manner specified in the notice."5. It is no doubt true that sub-rule (3) contains a provision that the provisional assessment to the best of the judgment can be made where no return is submitted, but this rule has to be read as supplemental to the provisions of the parent Act. We cannot interpret the rule in a way so as to come into conflict with the parent Act, in which case the Act will prevail. What this rule implies is that whether the return is filed by the assessee or not, the assessing authority will have the power to make a provisional assessment. In these circumstances, therefore, we are not able to see any real inconsistency between Section 7-A and Rule 41 (3) of the Rules framed under the Act. For these reasons, we are clearly of the opinion that the sales tax authority, namely, the Sales Tax Officer, in the circumstances was fully justified in making the provisional assessment under the provisions of Section 7-A of the Act and the High Court was wrong in quashing this order. We feel that if the interpretation given by the High Court is accepted, it will amount to giving a licence to the assessee to escape final assessment by filing wrong quarterly returns and deflating the profits earned by them. ### Response: 1

Mahendra Singh Dhantwal Vs. Hindustan Motors Ltd. & Ors

sweep of section 33. That was a case where the workmans services were terminated "because he deliberately adopted go-slow and was negligent in the discharge of his duty". The Supreme Court in that case observed thus:"His services were therefore terminated for dereliction of duty and go-slow in his work. This clearly amounted to punishment for misconduct and therefore to pass an order under cl. 17(a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provision of the Standing Orders".The Supreme Court further observed:"In these circumstances the case was clearly covered by cl.(b) of s. 33(3) of the Act as the services of the respondent were dispensed with during the pendency of a dispute by meeting out the punishment of discharge to him for misconduct".The decision is, therefore, not an authority for the extreme proposition advanced by Mr. Naunit Lal.20. Mr. Naunit Lal also drew our attention to two decisions of the Madras High Court in Shyamala Studios v. Kannu Devar (S.S.) and others and Sri Rama Machinery Corporation (Private) Limited, Madras v. Murthi (N.R.) and others in support of the above submission. Although the decision of the Supreme Court in Murugan Mills case (supra) was noticed by the Madras High Court it does not appear to have correctly appreciated the ratio decidedi of that judgment. We are unable to hold that the Supreme Court in Murugan Mills case (supra) went to the extent of re-writing section 33 by completely obliterating the concept of misconduct of a workman for which alone in a limited way the right of action for the employer is preserved during the span of pendency of proceedings before the Tribunal in the interest of discipline. To the extent the Madras decisions state that termination of services need not be for misconduct of the workman in order to attract section 33(2)(b), we cannot agree.If the Tribunal finds that a particular termination of service of a workman is in truth and substance innocuous or in exercise of a bona fide right under the contract, section 33(2)(b) will not be applicable and necessarily there will be no contravention of section 33A of the Act.21. In Air India Corporation, Bombay v. V. A. Rebellow &Anr.(1) this Court had to deal with the validity of an award made under section 33A although the Labour Court in that case had held that the workman was guilty of misconduct and that his services were terminated for that reason. This Court did not agree with the aforesaid conclusion and dismissed the workmans petition under section 33A of the Act. In doing so this Court observed as follows:-"It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute. The employer is, therefore free to take action against his workmen if it is not based on any misconduct on their part".22. We are, therefore, clearly of opinion that the single Judge is right in not interfering with the award under article 226 of the Constitution and the Division Bench is wrong in doing so.23. It is true that on the face of the order of termination the company invoked clause (1) of the agreement and even so it was open to the Tribunal to pierce the veil of the order and have a close look at all the circumstances an d come to a decision whether the order was passed on account of certain misconduct. This is a finding of fact which could not be interfered with under article 226 of the Constitution unless the conclusion is perverse, that is to say, based on no evidence whatsoever. We are, however, unable to say so having regard to the facts and circumstances described by the Tribunal in its order.It is, however, unexceptionable that if an employer passes an order of termination of service in exercise of his right under a contract or in accordance with the provision of the standing orders and the Tribunal finds that the order is not on account of any misconduct, the question of violation of section 33 would not arise.24. There remains, however another aspect to which the Tribunal did not properly address. The workman in this case had a contract of employment only for 8 years at the most. The reinstatement in his case, therefore, cannot extend beyond a period of eight years from June 1, 1956 and the contract of employment would have automatically terminated on May 31, 1964. The Tribunal awarded reinstatement on March 24, 1964, when even the employer did not bring it to its notice that the contract of employment would terminate in May 1964.Mr. Sen, however, during the course of the argument" hinted at another round of litigation under section 33C of the Act to contest the claim to reinstatement ordered by the Tribunal.25. We cannot be oblivious to the plight of this workman in his unequal fight with a big company. He was serving the company since 1949 for about eleven years when he was first dismissed in 1960. He has been involved in litigation since 1960 uptill today except for a lull for eleven days on his reinstatement after the first award. Eleven years in actual service and sixteen years in litigation is a doleful tale by itself.26. We, therefore, feel that, in the interest of industrial peace and above all to draw a final curtain to this unhappy litigation, we would be justified in quantifying the compensation payable to the workman in this case to a sum of Rs. 20, 000/- only in lieu of reinstatement with full back wages as ordered by the Tribunal, which we accordingly or der. We may also observe that Mr. Sen, fairly enough had made it clear before us in the course of hearing that even if the company succeeded in this Court it would be prepared to pay to the workman a sum of Rs. 10, 000/- on compassionate grounds.27.

1[ds]Mr. Naunit Lal also drew our attention to two decisions of the Madras High Court in Shyamala Studios v. Kannu Devar (S.S.) and others and Sri Rama Machinery Corporation (Private) Limited, Madras v. Murthi (N.R.) and others in support of the above submission. Although the decision of the Supreme Court in Murugan Mills case (supra) was noticed by the Madras High Court it does not appear to have correctly appreciated the ratio decidedi of that judgment. We are unable to hold that the Supreme Court in Murugan Mills case (supra) went to the extent of re-writing section 33 by completely obliterating the concept of misconduct of a workman for which alone in a limited way the right of action for the employer is preserved during the span of pendency of proceedings before the Tribunal in the interest of discipline. To the extent the Madras decisions state that termination of services need not be for misconduct of the workman in order to attract section 33(2)(b), we cannot agree.If the Tribunal finds that a particular termination of service of a workman is in truth and substance innocuous or in exercise of a bona fide right under the contract, section 33(2)(b) will not be applicable and necessarily there will be no contravention of section 33A of theare, therefore, clearly of opinion that the single Judge is right in not interfering with the award under article 226 of the Constitution and the Division Bench is wrong in doingis true that on the face of the order of termination the company invoked clause (1) of the agreement and even so it was open to the Tribunal to pierce the veil of the order and have a close look at all the circumstances an d come to a decision whether the order was passed on account of certain misconduct. This is a finding of fact which could not be interfered with under article 226 of the Constitution unless the conclusion is perverse, that is to say, based on no evidence whatsoever. We are, however, unable to say so having regard to the facts and circumstances described by the Tribunal in its order.It is, however, unexceptionable that if an employer passes an order of termination of service in exercise of his right under a contract or in accordance with the provision of the standing orders and the Tribunal finds that the order is not on account of any misconduct, the question of violation of section 33 would notremains, however another aspect to which the Tribunal did not properly address. The workman in this case had a contract of employment only for 8 years at the most. The reinstatement in his case, therefore, cannot extend beyond a period of eight years from June 1, 1956 and the contract of employment would have automatically terminated on May 31, 1964. The Tribunal awarded reinstatement on March 24, 1964, when even the employer did not bring it to its notice that the contract of employment would terminate in May 1964.Mr. Sen, however, during the course of the argument" hinted at another round of litigation under section 33C of the Act to contest the claim to reinstatement ordered by thecannot be oblivious to the plight of this workman in his unequal fight with a big company. He was serving the company since 1949 for about eleven years when he was first dismissed in 1960. He has been involved in litigation since 1960 uptill today except for a lull for eleven days on his reinstatement after the first award. Eleven years in actual service and sixteen years in litigation is a doleful tale bytherefore, feel that, in the interest of industrial peace and above all to draw a final curtain to this unhappy litigation, we would be justified in quantifying the compensation payable to the workman in this case to a sum of Rs. 20, 000/- only in lieu of reinstatement with full back wages as ordered by the Tribunal, which we accordingly or der. We may also observe that Mr. Sen, fairly enough had made it clear before us in the course of hearing that even if the company succeeded in this Court it would be prepared to pay to the workman a sum of Rs. 10, 000/- on compassionate grounds.

### 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: sweep of section 33. That was a case where the workmans services were terminated "because he deliberately adopted go-slow and was negligent in the discharge of his duty". The Supreme Court in that case observed thus:"His services were therefore terminated for dereliction of duty and go-slow in his work. This clearly amounted to punishment for misconduct and therefore to pass an order under cl. 17(a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provision of the Standing Orders".The Supreme Court further observed:"In these circumstances the case was clearly covered by cl.(b) of s. 33(3) of the Act as the services of the respondent were dispensed with during the pendency of a dispute by meeting out the punishment of discharge to him for misconduct".The decision is, therefore, not an authority for the extreme proposition advanced by Mr. Naunit Lal.20. Mr. Naunit Lal also drew our attention to two decisions of the Madras High Court in Shyamala Studios v. Kannu Devar (S.S.) and others and Sri Rama Machinery Corporation (Private) Limited, Madras v. Murthi (N.R.) and others in support of the above submission. Although the decision of the Supreme Court in Murugan Mills case (supra) was noticed by the Madras High Court it does not appear to have correctly appreciated the ratio decidedi of that judgment. We are unable to hold that the Supreme Court in Murugan Mills case (supra) went to the extent of re-writing section 33 by completely obliterating the concept of misconduct of a workman for which alone in a limited way the right of action for the employer is preserved during the span of pendency of proceedings before the Tribunal in the interest of discipline. To the extent the Madras decisions state that termination of services need not be for misconduct of the workman in order to attract section 33(2)(b), we cannot agree.If the Tribunal finds that a particular termination of service of a workman is in truth and substance innocuous or in exercise of a bona fide right under the contract, section 33(2)(b) will not be applicable and necessarily there will be no contravention of section 33A of the Act.21. In Air India Corporation, Bombay v. V. A. Rebellow &Anr.(1) this Court had to deal with the validity of an award made under section 33A although the Labour Court in that case had held that the workman was guilty of misconduct and that his services were terminated for that reason. This Court did not agree with the aforesaid conclusion and dismissed the workmans petition under section 33A of the Act. In doing so this Court observed as follows:-"It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute. The employer is, therefore free to take action against his workmen if it is not based on any misconduct on their part".22. We are, therefore, clearly of opinion that the single Judge is right in not interfering with the award under article 226 of the Constitution and the Division Bench is wrong in doing so.23. It is true that on the face of the order of termination the company invoked clause (1) of the agreement and even so it was open to the Tribunal to pierce the veil of the order and have a close look at all the circumstances an d come to a decision whether the order was passed on account of certain misconduct. This is a finding of fact which could not be interfered with under article 226 of the Constitution unless the conclusion is perverse, that is to say, based on no evidence whatsoever. We are, however, unable to say so having regard to the facts and circumstances described by the Tribunal in its order.It is, however, unexceptionable that if an employer passes an order of termination of service in exercise of his right under a contract or in accordance with the provision of the standing orders and the Tribunal finds that the order is not on account of any misconduct, the question of violation of section 33 would not arise.24. There remains, however another aspect to which the Tribunal did not properly address. The workman in this case had a contract of employment only for 8 years at the most. The reinstatement in his case, therefore, cannot extend beyond a period of eight years from June 1, 1956 and the contract of employment would have automatically terminated on May 31, 1964. The Tribunal awarded reinstatement on March 24, 1964, when even the employer did not bring it to its notice that the contract of employment would terminate in May 1964.Mr. Sen, however, during the course of the argument" hinted at another round of litigation under section 33C of the Act to contest the claim to reinstatement ordered by the Tribunal.25. We cannot be oblivious to the plight of this workman in his unequal fight with a big company. He was serving the company since 1949 for about eleven years when he was first dismissed in 1960. He has been involved in litigation since 1960 uptill today except for a lull for eleven days on his reinstatement after the first award. Eleven years in actual service and sixteen years in litigation is a doleful tale by itself.26. We, therefore, feel that, in the interest of industrial peace and above all to draw a final curtain to this unhappy litigation, we would be justified in quantifying the compensation payable to the workman in this case to a sum of Rs. 20, 000/- only in lieu of reinstatement with full back wages as ordered by the Tribunal, which we accordingly or der. We may also observe that Mr. Sen, fairly enough had made it clear before us in the course of hearing that even if the company succeeded in this Court it would be prepared to pay to the workman a sum of Rs. 10, 000/- on compassionate grounds.27. ### Response: 1

RAMESHCHANDRA DAULAL SONI Vs. DEVICHAND HIRALAL GANDHI (DEAD) THR. LRS. SMT. GULABBAI DEVICHAND GANDHI

Act comes to an end. The link and chain is broken. The absent non-cultivating landlord ceases to have that ownership element of the land and the cultivating tenant, the tiller of the soil becomes the owner thereof. This is unquestionable. The landlord from the date of statutory sale is only entitled to receive the purchase price as determined by the Tribunal under Section 32-G. In other words, the landlord ceases to be landlord and the tenant becomes the owner of the land and comes in direct contact with the State. Without any act of transfer inter vivos the title of the landlord is extinguished and is created simultaneously in the tenant making the tenant the deemed purchaser. It is an admitted position that on April 1, 1957 T arachand was the landlord and Janardhan was the tenant. T arachand landlord was under no disability as envisged by Section 32-F. Therefore on April 1, 1957 Janardhan became deemed purchaser and Mr Lalit could not controvert this position.?16. The position of law and decision cited cannot be applied in abstract. Therefore, the fact situation is to be noticed. Hence having taken note of the above contention what is noticed at the outset is that the predecessor of the appellants, namely, the defendant No.5 did not choose to file the written statement in the suit. In that circumstance the contention to the effect that the suit schedule property or a portion thereof was an agricultural property was never the contention raised in the suit or as to whether the issue in the suit should be referred to the Authority under the MTAL Act. In that view no issue in that regard arose before the trial court to consider as to whether the Civil Court had the jurisdiction to entertain the suit. That apart the undisputed fact is that the legal representatives of defendant No.5 had assailed the judgment of the court below in CRA No.114/2012 which was considered along with CRA No.112/2012 and claiming to be aggrieved by the dismissal of the CRA No.114/2012 had preferred SLP(C) No.31644/2015 before this Court. This Court through the order dated 23.11.2015 had dismissed the Special Leave Petition. Despite failing in the very proceeding relating to which the execution petition has been initiated the said legal representatives of defendant No.5 filed the application in execution proceedings claiming to be agricultural tenants and defeat the execution by terming the decree as a nullity. It is in the said proceedings the executing court having taken into consideration all aspects, dismissed the application by the order dated 15.10.2018. The executing court thus having taken into consideration the order dated 20.07.2015 passed by the High Court in CRA Nos.112, 113 and 114 of 2012 has dismissed the application. Further the right as claimed by the said legal representatives based on the entry contained in 7/12 extract has been rejected. We find no error committed by the executing court for the following reasons. 17. In our view even assuming for a moment that the name of the predecessor was indicated in the 7/12 extract, the basis of such entry is not demonstrated to be made after the procedure being followed. Though the learned senior advocate has relied on the reference contained in the lease deed dated 22.05.1928 that the hut of the agricultural tenant is situate in the leased land, there is no reference made to the name of such tenant so as to indicate that the reference is to their predecessor i.e. defendant No.5 nor can the co¬existence of the agricultural operations being carried out in the land which was leased for storage of goods be assumed without definite material or demarcation indicated from records. The reference is only to the existence of a hut. That apart even if the same is taken as a reference to the defendant No.5 in the year 1928 the tenancy being continued and being operational on the tiller?s day i.e. 01.04.1957 is to be established to claim right under MTAL Act. Further while the MTAL Act creates right in favour of the agricultural tenant as on the appointed day the further procedure as contemplated is also required to be followed under Section 32G of the said Act. In the instant case apart from the fact that no such contention was urged in the suit by filing a written statement, no document to indicate that the procedure contemplated under the MTAL Act has been followed is available so as to conclude that the defendant No.5 had become the landlord of the property by operation of law so as to bar the jurisdiction of the Civil Court. 18. In that view, the decision referred to supra by learned senior advocate would not be of assistance in the present case since the said decision only indicates the legal position and was applicable in the said case since in that case it was an admitted position that as on 01.04.1957 Tara Chand was the landlord and Janardan was the tenant. On the other hand, in the present facts as already noticed no such contention was taken at the first instance nor has it been conclusively established that the defendant No.5 was an agricultural tenant more so in the circumstance where the suit schedule property did not continue to exist as an agricultural property but was within Ahmednagar Municipal Limits which was a Town Planning Scheme as on the date of the suit. Though we are not oblivious to the fact that certain agricultural properties would subsequently get included in the Town Planning Scheme, in the instant facts if the claim of the defendant No.5 is to be taken note, not only the reliance on 7/12 extract but a subsequent inclusion of the name in the Municipal records based on any right that was crystalized in favour of defendant No. 5 based on the MTAL Act was also necessary to be established. In the absence of the same the contention put forth by the learned senior advocate cannot be accepted.

0[ds]12. Having taken note of the contentions put forth, to the extent of the position of law as enunciated in the decisions cited supra there can be no quarrel whatsoever. However, what is necessary to be taken note is the fact situation in the instant case to arrive at a conclusion. The provision in Section 5(11)(c)(ii) noted supra is clear that the persons carrying on the business with the statutory tenant at the time of death would be entitled to continue as a tenant. The second part of the said provision is that in the absence of such member any heir of the deceased tenant as may be decided by the Court in default of agreement, would get the right. In the instant case the contention being urged that the two daughters of the deceased tenants were also entitled to be considered as the tenants under the statutory tenant, is a belated claim as an afterthought. As taken note while considering the factual aspect it has come on record that the plaintiff after having purchased the property under a registered sale deed had issued the notice dated 16.12.1986 as at Exhibit 80 and the trial court has also recorded a finding that through the said notice the plaintiff had informed the defendants No. 1 and 2 about the purchase of the suit property. That apart, subsequently a notice as at Exhibit 96 was issued to the defendants No. 1 and 2 demanding the arrears of rent. The said notice in fact had been replied by the defendants No. 1 and 2 through the reply marked at Exhibit 99. Neither at the first instance when the notice at Exhibit 80 was issued was it indicated by the defendants No. 1 and 2 that their sisters had also become the statutory tenants and the notice in the nature of attornment of tenancy should be issued to them as well, nor in the reply which had been issued when the arrears of rent was demanded did the defendants No. 1 and 2 contend that they were not the only one who were involved in the business along with the original statutory tenant and, therefore, all the legal heirs had succeeded as tenants on the death of the statutory tenant and, therefore, the demand, if any, is to be made from all of them.Though such contention is put forth the defendants No.1 and 2 did not attribute any right in favour of the sisters. In fact, as noted by the trial court the defendants No. 1 and 2 have filed on record pursis with a Exhibit 137¬A claiming to have deposited Rs. 1000/- on 09.9.2007 at ‘C? Register No. 465 without prejudice to their rights towards the rent, causes of the suit etc. This in our opinion would indicate that the defendants No. 1 and 2 were claiming right for themselves and did not at that stage state about the right if any, possessed by their sisters as well and have now raised the contention as an afterthought. Further in the evidence of defendant No. 1 he states that his grandfather took the suit premises on lease for the purpose of business of cotton ginning factory and he further states that the defendant No. 1 used the premises to store food grain and equipment of agricultural and also cement. This would indicate that the defendant was referring to the business being carried on by him alone and there is no reference to the business being jointly carried on with his sisters or that none of the legal representatives including defendant No. 1 were carrying on business with the statutory tenant so as to claim benefit of the second part of Section 5 (11) (c) (ii) and claim joint inheritance of tenancy. Further the said position is also clear from the evidence of the defendant witness Shri Vanaji Dhoodiram Dani who was examined to indicate that the premises was being used for the business and in that regard, in the course of his evidence he has stated that the defendants No. 1 and 2 are keeping cement and food grain in the godown and that he is serving with the defendants 1 and 2 since last 10 to 12 years but has not stated about the sisters also being involved in the business. If that be the position even from the evidence of the said witness, it would be clear that only first part of Section 5 (11) (c) (ii) would be available and the sisters of defendant No. 1 and 2 cannot claim right merely due to the fact that they are the legal heirs of the deceased tenant.That apart the suit had been filed in the year 1989 and the same had crossed the stage of appeal as well as revision before the High Court which had come to an end on 20.07.2015. In none of these proceedings the said sisters of defendants No.1 and 2 have taken any steps to get themselves impleaded by contending that they are proper and necessary parties failing which their right would be affected. At this stage it is necessary to take note that the learned counsel for the parties have brought to the notice of this Court that the said two sisters have filed a Civil Suit bearing No.516/2015 for declaration of their right which is pending before the Civil Court. The very sequence noticed above would indicate that the said sisters had not put forth their claim earlier and the present suit appears to be a ploy to put a spoke in the wheel on realising that the contention as put forth by defendants No.1 and 2 did not yield the desired result inasmuch as the Civil Revision Application came to be dismissed in the year 2015. Hence, neither the provision of the Rent Act or the decisions relied upon supra will be of assistance to the defendants No. 1 and 2. In that circumstance the contention as put forth by the learned senior advocate for the defendants No.1 and 2 is liable to be rejected, which we accordingly do.The position of law and decision cited cannot be applied in abstract. Therefore, the fact situation is to be noticed. Hence having taken note of the above contention what is noticed at the outset is that the predecessor of the appellants, namely, the defendant No.5 did not choose to file the written statement in the suit. In that circumstance the contention to the effect that the suit schedule property or a portion thereof was an agricultural property was never the contention raised in the suit or as to whether the issue in the suit should be referred to the Authority under the MTAL Act. In that view no issue in that regard arose before the trial court to consider as to whether the Civil Court had the jurisdiction to entertain the suit. That apart the undisputed fact is that the legal representatives of defendant No.5 had assailed the judgment of the court below in CRA No.114/2012 which was considered along with CRA No.112/2012 and claiming to be aggrieved by the dismissal of the CRA No.114/2012 had preferred SLP(C) No.31644/2015 before this Court. This Court through the order dated 23.11.2015 had dismissed the Special Leave Petition. Despite failing in the very proceeding relating to which the execution petition has been initiated the said legal representatives of defendant No.5 filed the application in execution proceedings claiming to be agricultural tenants and defeat the execution by terming the decree as a nullity. It is in the said proceedings the executing court having taken into consideration all aspects, dismissed the application by the order dated 15.10.2018. The executing court thus having taken into consideration the order dated 20.07.2015 passed by the High Court in CRA Nos.112, 113 and 114 of 2012 has dismissed the application. Further the right as claimed by the said legal representatives based on the entry contained in 7/12 extract has been rejected. We find no error committed by the executing court for the following reasons.In our view even assuming for a moment that the name of the predecessor was indicated in the 7/12 extract, the basis of such entry is not demonstrated to be made after the procedure being followed. Though the learned senior advocate has relied on the reference contained in the lease deed dated 22.05.1928 that the hut of the agricultural tenant is situate in the leased land, there is no reference made to the name of such tenant so as to indicate that the reference is to their predecessor i.e. defendant No.5 nor can the co¬existence of the agricultural operations being carried out in the land which was leased for storage of goods be assumed without definite material or demarcation indicated from records. The reference is only to the existence of a hut. That apart even if the same is taken as a reference to the defendant No.5 in the year 1928 the tenancy being continued and being operational on the tiller?s day i.e. 01.04.1957 is to be established to claim right under MTAL Act. Further while the MTAL Act creates right in favour of the agricultural tenant as on the appointed day the further procedure as contemplated is also required to be followed under Section 32G of the said Act. In the instant case apart from the fact that no such contention was urged in the suit by filing a written statement, no document to indicate that the procedure contemplated under the MTAL Act has been followed is available so as to conclude that the defendant No.5 had become the landlord of the property by operation of law so as to bar the jurisdiction of the Civil Court.In that view, the decision referred to supra by learned senior advocate would not be of assistance in the present case since the said decision only indicates the legal position and was applicable in the said case since in that case it was an admitted position that as on 01.04.1957 Tara Chand was the landlord and Janardan was the tenant. On the other hand, in the present facts as already noticed no such contention was taken at the first instance nor has it been conclusively established that the defendant No.5 was an agricultural tenant more so in the circumstance where the suit schedule property did not continue to exist as an agricultural property but was within Ahmednagar Municipal Limits which was a Town Planning Scheme as on the date of the suit. Though we are not oblivious to the fact that certain agricultural properties would subsequently get included in the Town Planning Scheme, in the instant facts if the claim of the defendant No.5 is to be taken note, not only the reliance on 7/12 extract but a subsequent inclusion of the name in the Municipal records based on any right that was crystalized in favour of defendant No. 5 based on the MTAL Act was also necessary to be established. In the absence of the same the contention put forth by the learned senior advocate cannot be accepted.

### 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: Act comes to an end. The link and chain is broken. The absent non-cultivating landlord ceases to have that ownership element of the land and the cultivating tenant, the tiller of the soil becomes the owner thereof. This is unquestionable. The landlord from the date of statutory sale is only entitled to receive the purchase price as determined by the Tribunal under Section 32-G. In other words, the landlord ceases to be landlord and the tenant becomes the owner of the land and comes in direct contact with the State. Without any act of transfer inter vivos the title of the landlord is extinguished and is created simultaneously in the tenant making the tenant the deemed purchaser. It is an admitted position that on April 1, 1957 T arachand was the landlord and Janardhan was the tenant. T arachand landlord was under no disability as envisged by Section 32-F. Therefore on April 1, 1957 Janardhan became deemed purchaser and Mr Lalit could not controvert this position.?16. The position of law and decision cited cannot be applied in abstract. Therefore, the fact situation is to be noticed. Hence having taken note of the above contention what is noticed at the outset is that the predecessor of the appellants, namely, the defendant No.5 did not choose to file the written statement in the suit. In that circumstance the contention to the effect that the suit schedule property or a portion thereof was an agricultural property was never the contention raised in the suit or as to whether the issue in the suit should be referred to the Authority under the MTAL Act. In that view no issue in that regard arose before the trial court to consider as to whether the Civil Court had the jurisdiction to entertain the suit. That apart the undisputed fact is that the legal representatives of defendant No.5 had assailed the judgment of the court below in CRA No.114/2012 which was considered along with CRA No.112/2012 and claiming to be aggrieved by the dismissal of the CRA No.114/2012 had preferred SLP(C) No.31644/2015 before this Court. This Court through the order dated 23.11.2015 had dismissed the Special Leave Petition. Despite failing in the very proceeding relating to which the execution petition has been initiated the said legal representatives of defendant No.5 filed the application in execution proceedings claiming to be agricultural tenants and defeat the execution by terming the decree as a nullity. It is in the said proceedings the executing court having taken into consideration all aspects, dismissed the application by the order dated 15.10.2018. The executing court thus having taken into consideration the order dated 20.07.2015 passed by the High Court in CRA Nos.112, 113 and 114 of 2012 has dismissed the application. Further the right as claimed by the said legal representatives based on the entry contained in 7/12 extract has been rejected. We find no error committed by the executing court for the following reasons. 17. In our view even assuming for a moment that the name of the predecessor was indicated in the 7/12 extract, the basis of such entry is not demonstrated to be made after the procedure being followed. Though the learned senior advocate has relied on the reference contained in the lease deed dated 22.05.1928 that the hut of the agricultural tenant is situate in the leased land, there is no reference made to the name of such tenant so as to indicate that the reference is to their predecessor i.e. defendant No.5 nor can the co¬existence of the agricultural operations being carried out in the land which was leased for storage of goods be assumed without definite material or demarcation indicated from records. The reference is only to the existence of a hut. That apart even if the same is taken as a reference to the defendant No.5 in the year 1928 the tenancy being continued and being operational on the tiller?s day i.e. 01.04.1957 is to be established to claim right under MTAL Act. Further while the MTAL Act creates right in favour of the agricultural tenant as on the appointed day the further procedure as contemplated is also required to be followed under Section 32G of the said Act. In the instant case apart from the fact that no such contention was urged in the suit by filing a written statement, no document to indicate that the procedure contemplated under the MTAL Act has been followed is available so as to conclude that the defendant No.5 had become the landlord of the property by operation of law so as to bar the jurisdiction of the Civil Court. 18. In that view, the decision referred to supra by learned senior advocate would not be of assistance in the present case since the said decision only indicates the legal position and was applicable in the said case since in that case it was an admitted position that as on 01.04.1957 Tara Chand was the landlord and Janardan was the tenant. On the other hand, in the present facts as already noticed no such contention was taken at the first instance nor has it been conclusively established that the defendant No.5 was an agricultural tenant more so in the circumstance where the suit schedule property did not continue to exist as an agricultural property but was within Ahmednagar Municipal Limits which was a Town Planning Scheme as on the date of the suit. Though we are not oblivious to the fact that certain agricultural properties would subsequently get included in the Town Planning Scheme, in the instant facts if the claim of the defendant No.5 is to be taken note, not only the reliance on 7/12 extract but a subsequent inclusion of the name in the Municipal records based on any right that was crystalized in favour of defendant No. 5 based on the MTAL Act was also necessary to be established. In the absence of the same the contention put forth by the learned senior advocate cannot be accepted. ### Response: 0

Hindustan Vidyut Products Limited Vs. Delhi Power Company Limited

ORDER 1. Leave granted. 2. Heard learned Counsel for the parties. 3. The Arbitrator made an Award dated 22nd December, 2005 of an amount of ` 20,26,000/- in favour of the Appellant and against the Respondent. The Respondent filed an application Under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside of the Award numbered as OMP No. 114 of 2006 and the learned Single Judge of the High Court of Delhi by his order dated 25th July, 2007 set aside the Award. Aggrieved, the Appellant filed FAO (S) Nos. 337-338 of 2007 before the Division Bench of the High Court and the Division Bench of the High Court instead of deciding the appeals of the Appellant against the order of the learned Single Judge set aside the Award holding that the appeals of the Appellant were not maintainable as it was for the Appellant to have ensured the presence of the parties likely to be affected in the proceedings in the appeals. 4. Learned Counsel for the Appellant submitted that it is only the Respondent who had filed the application for setting aside the Award Under Section 34 of the Act before the learned Single Judge and no other party had applied for setting aside the Award before the learned Single Judge. As the learned Single Judge has set aside the Award at the instance of only the Respondent before us, in the appeals filed before the Division Bench of the High Court, the Respondent was the only necessary party and it was not at all necessary for the Appellant to have impleaded other parties in the appeals even though they may be affected by the Award.

1[ds]Learned Counsel for the Appellant submitted that it is only the Respondent who had filed the application for setting aside the Award Under Section 34 of the Act before the learned Single Judge and no other party had applied for setting aside the Award before the learned Single Judge. As the learned Single Judge has set aside the Award at the instance of only the Respondent before us, in the appeals filed before the Division Bench of the High Court, the Respondent was the only necessary party and it was not at all necessary for the Appellant to have impleaded other parties in the appeals even though they may be affected by the Award.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: ORDER 1. Leave granted. 2. Heard learned Counsel for the parties. 3. The Arbitrator made an Award dated 22nd December, 2005 of an amount of ` 20,26,000/- in favour of the Appellant and against the Respondent. The Respondent filed an application Under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside of the Award numbered as OMP No. 114 of 2006 and the learned Single Judge of the High Court of Delhi by his order dated 25th July, 2007 set aside the Award. Aggrieved, the Appellant filed FAO (S) Nos. 337-338 of 2007 before the Division Bench of the High Court and the Division Bench of the High Court instead of deciding the appeals of the Appellant against the order of the learned Single Judge set aside the Award holding that the appeals of the Appellant were not maintainable as it was for the Appellant to have ensured the presence of the parties likely to be affected in the proceedings in the appeals. 4. Learned Counsel for the Appellant submitted that it is only the Respondent who had filed the application for setting aside the Award Under Section 34 of the Act before the learned Single Judge and no other party had applied for setting aside the Award before the learned Single Judge. As the learned Single Judge has set aside the Award at the instance of only the Respondent before us, in the appeals filed before the Division Bench of the High Court, the Respondent was the only necessary party and it was not at all necessary for the Appellant to have impleaded other parties in the appeals even though they may be affected by the Award. ### Response: 1

Ved Prakash Garg Vs. Premi Devi

Motor Vehicles Act as discussed by us earlier. We may in this connection refer to a decision of the High Court of Delhi in the case of Oriental Insurance Co. Ltd. v. Hasmat Khatoon and Ors., (supra). A learned Single Judge of the Delhi High Court on the schemes of the Workmens Compensation Act and the Motor Vehicles Act has taken the view that the liability covered by the statutory coverage of insurance is to make good the claim for compensation and that liability would not include interest and penalty. In our view, the said decision lays down the correct legal position so far as award of penalty against the insured employer is concerned. But in so far as it holds that even for the claim of interest on the principal amount of compensation, as imposed on the insured, the insurance company would not remain liable, it has to be overruled. 18. We may now refer to the other set of judgments, on which reliance was placed by learned counsel for the appellants. In the case of Oriental Fire and General Ins. Co. Ltd. v. Nani Bala and Anr. (supra) a learned Single Judge B.L. Hansaria, J. (as he then was) speaking for the High Court of Judicature at Gauhati had to consider the question whether any liability could be imposed upon the insurer of the offending vehicle which had caused accidental injury to the employees of the insured employer. It was decided in the said case on a conjoint operation of the Motor Vehicles Act and the Compensation Act that the provisions of the Compensation Act cannot be viewed in isolation when the Motor Vehicles Act had specifically stated that a policy of insurance cannot exclude the liability arising under the Compensation Act and that the expression `any person has to cover an insurer also. The aforesaid decision was rendered entirely in a different context and was not concerned with the question whether the insurance company would be liable to meet the claim of penalty amount and interest as awarded under Section 4-A(3) of the Compensation Act against the insured employer. It is, therefore, of no assistance in the present cases. However, the same learned judge speaking on behalf of a Division Bench of the Orissa High Court in the case of Khirod Nayak v. Commissioner for Workmens Compensation & Ors. (supra) has taken the view that when any penalty is imposed on the insured employer under Section 4-A(3) of the Compensation Act along with interest the insurance company would be liable to make good the entire claim. In the light of the scheme of both the relevant Acts as discussed by us earlier it has to be held that the aforesaid view of the Division Bench of the Orissa High Court insofar as it holds that the insurance company would be liable to make good the entire claim. In the light of the scheme of both the relevant Acts as discussed by us earlier it has to be held that the aforesaid view of the Division Bench of the Orissa High Court in so far as it holds that the insurance company would be liable to meet the claim of penalty to the tune of 50% of the amount of compensation as imposed on the insured employer is not correct. But so far as it is held that the insurance company would be liable to meet the claim of interest at the rate of 6% per annum as granted under Section 4-A(3) of the Compensation Act, the same is justified on the scheme of the Act. Aforesaid decision of the Orissa High Court has to be partly overruled to the aforesaid extent. We may now turn to a decision of the Madhya Pradesh High Court in the case of New India Assurance Co. Ltd. v. Guddi and Ors. (supra). A learned Single Judge in the said case took the view that on the scheme of Section 4- A(3) of the Compensation Act the insurance company will have to make good the claim of interest and penalty as imposed upon the insured employer. In the light of what we have discussed earlier it must be held that the said view is partly correct in so far as it is held that the insurance company would be liable to pay the amount of interest imposed upon the insured employer by the Workmens Commissioner under Section 4-A(3). But to the extent it seeks to cover even the penalty amount and makes obligatory on the insurer to meet the said claim of penalty imposed upon the insured employer it must be held that the same is not correct and is not borne out from the scheme of the Acts discussed by us. To that extent the said decision of the learned Single judge would stand partly overruled. In the case of United India Insurance Co. Ltd. v. Roop Kanwar and others (supra) a learned Single Judge of the Rajasthan High Court had to consider a situation where on payment of additional premium the insurance company had agreed in the light of endorsement No. 16 of the Policy to cover all liabilities incurred by the insured under Workmens Compensation Act. In view of this contractual coverage of liability the insurance company in that case was held liable to meet the claim for penalty and interest as imposed upon the insured under Section 4-A(3) of the Compensation Act. This judgment proceeded on its own facts and was concerned with a situation converse to the one as was examined by the Karnataka High Court in Oriental Insurance Co. Ltd. v. Raju and Ors. (supra). In the case decided by the Karnataka High Court, as seen earlier, there was an express exclusion of such liability of the insurance company. In the aforesaid case decided by the Rajasthan High Court there was expression inclusion of such liability for the insurance company which had taken additional premium. This judgment also, therefore, is of no assistance to either side.

1[ds]14. On a conjoint operation of the relevant schemes of the aforesaid twin Acts, in our view, there is no escape from the conclusion that the insurance companies will be liable to make good not only the principal amounts of compensation payable by insured employers but also interest thereon, if ordered by the Commissioner to be paid by the insured employers. Reason for this conclusion is obvious. As we have noted earlier, the liability to pay compensation under the Workmens Compensation Act gets foisted on the employer provided it is shown that the workman concerned suffered from personal injury, fatal or otherwise, by any motor accident arising out of and in the course of his employment. Such an accident is also covered by the statutory coverage contemplated by Section 147 of the Motor Vehicles Act read with the identical provisions under the very contracts of insurance reflected by the Policy which would make the insurance company liable to cover all such claims for compensation for which statutory liability is imposed on the employer under Section 3 read with Section 4-A of the Compensation Act. All these provisions represent a well-knit scheme for computing the statutory liability of the employers in cases of such accidents to theirwe have seen earlier while discussing the scheme of Section 4-A of the Compensation Act the legislative intent is clearly discernible that once compensation falls due and within one month it is not paid by the employer then as per Section 4-A(3)(a) interest at the permissible rate gets added to the said principal amount of compensation as the claimants would stand deprived of their legally due compensation for a period beyond one month which is statutorily granted to the employer concerned to make good his liability for the benefit of the claimants whose bread-winner might have lost his life. Thus so far as interest is concerned it is almost automatic once default, on the part of the employer in paying the compensation due, takes place beyond the permissible limit of one month. No element of penalty is involved therein. It is a statutory elongation of the liability of the employer to make good the principal amount of compensation within permissible time limit during which interest may not run but otherwise liability of paying interest on delayed compensation will ipso facto follow. Even though the Commissioner under these circumstances can impose a further liability on the employer under circumstances and within limits contemplated by Section 4-A(3)(a) still the liability to pay interest on the principal amount under the said provision remains a part and parcel of the statutory liability which is legally liable to be discharged by the insured employer. Consequently such imposition of interest on the principal amount would certainly partake the character of the legal liability of the insured employer to pay the compensation amount with due interest as imposed upon him under the Compensation Act. Thus the principal amount as well as the interest made payable thereon would remain part and parcel of the legal liability of the insured to be discharged under the Compensation Act and not de hors it. It, therefore, cannot be said by the insurance company that when it is statutorily and even contractually liable to reimburse the employer qua his statutory liability to pay compensation to the claimants in case of such motor accidents to his workmen, the interest on the principal amount which almost automatically gets foisted upon him once the compensation amount is not paid within one month from the date it fell due, would not be a part of the insured liability of the employer. No question of justification by the insured employer for the delay in such circumstances would arise for consideration. It is of course true that one months period as contemplated under Section 4-A(3) may start running for the purpose of attracting interest under sub-clause (a) thereof in case where provisional payment has to be made by the insured employer as per Section 4-A(2) of the Compensation Act from the date such provisional payment becomes due. But when the employer does not accept his liability as a whole under circumstances enumerated by us earlier then Section 4-A(2) would not get attracted and one months period would start running from the date on which due compensation payable by the employer is adjudicated upon by the Commissioner and in either case the Commissioner would be justified in directing payment of interest in such contingencies not only from the date of the award but also from the date of the accident concerned. Such an order passed by the Commissioner would remain perfectly justified on the scheme of Section 4-A(3)(a) of the Compensation Act.But similar consequence will not follow in case where additional amount is added to the principal amount of compensation by way of penalty to be levied on the employer under circumstances contemplated by Section 4-A(3)(b) of the Compensation Act after issuing show cause notice to the employer concerned who will have reasonable opportunity to show cause why on account of some justification on his part for the delay in payment of the compensation amount he is not liable for this penalty. However if ultimately the Commissioner after giving reasonable opportunity to the employer to show cause takes the view that there is no justification for such delay on the part of the insured employer and because of his unjustified delay and due to his own personal fault he is held responsible for the delay, then the penalty would get imposed on him. That would add a further sum upto 50% on the principal amount by way of penalty to be made good by the defaulting employer. So far as this penalty amount is concerned it cannot be said that it automatically flows from the main liability incurred by the insured employer under the Workmens Compensation Act. To that extent such penalty amount as imposed upon the insured employer would get out of the sweep of the term `liability incurred by the insured employer as contemplated by the proviso to Section 147(1)(b) of the Motor Vehicles Act as well as by the terms of the Insurance Policy found in provisos (b) and (c) to sub-section (1) of Section II thereof. On the aforesaid interpretation of these two statutory schemes, therefore, the conclusion becomes inevitable that when an employee suffers from a motor accident injury while on duty on the motor vehicle belonging to the insured employer, the claim for compensation payable under the Compensation Act along with interest thereon, if any, as imposed by the Commissioner Sections 3 and 4-A(3) (a) of the Compensation Act will have to be made good by the insurance company jointly with the insured employer. But so far as the amount of penalty imposed on the insured employer under contingencies contemplated by Section 4-A(3) (b) is concerned as that is on account of personal fault of the insured not backed up by any justifiable cause, the insurance company cannot be made liable to reimburse that part of the penalty amount imposed on the employer. The latter because of his own fault and negligence will have to bear the entire burden of the said penalty amount with proportionate interest thereon if imposed by the Workmens Commissioner.

### 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: Motor Vehicles Act as discussed by us earlier. We may in this connection refer to a decision of the High Court of Delhi in the case of Oriental Insurance Co. Ltd. v. Hasmat Khatoon and Ors., (supra). A learned Single Judge of the Delhi High Court on the schemes of the Workmens Compensation Act and the Motor Vehicles Act has taken the view that the liability covered by the statutory coverage of insurance is to make good the claim for compensation and that liability would not include interest and penalty. In our view, the said decision lays down the correct legal position so far as award of penalty against the insured employer is concerned. But in so far as it holds that even for the claim of interest on the principal amount of compensation, as imposed on the insured, the insurance company would not remain liable, it has to be overruled. 18. We may now refer to the other set of judgments, on which reliance was placed by learned counsel for the appellants. In the case of Oriental Fire and General Ins. Co. Ltd. v. Nani Bala and Anr. (supra) a learned Single Judge B.L. Hansaria, J. (as he then was) speaking for the High Court of Judicature at Gauhati had to consider the question whether any liability could be imposed upon the insurer of the offending vehicle which had caused accidental injury to the employees of the insured employer. It was decided in the said case on a conjoint operation of the Motor Vehicles Act and the Compensation Act that the provisions of the Compensation Act cannot be viewed in isolation when the Motor Vehicles Act had specifically stated that a policy of insurance cannot exclude the liability arising under the Compensation Act and that the expression `any person has to cover an insurer also. The aforesaid decision was rendered entirely in a different context and was not concerned with the question whether the insurance company would be liable to meet the claim of penalty amount and interest as awarded under Section 4-A(3) of the Compensation Act against the insured employer. It is, therefore, of no assistance in the present cases. However, the same learned judge speaking on behalf of a Division Bench of the Orissa High Court in the case of Khirod Nayak v. Commissioner for Workmens Compensation & Ors. (supra) has taken the view that when any penalty is imposed on the insured employer under Section 4-A(3) of the Compensation Act along with interest the insurance company would be liable to make good the entire claim. In the light of the scheme of both the relevant Acts as discussed by us earlier it has to be held that the aforesaid view of the Division Bench of the Orissa High Court insofar as it holds that the insurance company would be liable to make good the entire claim. In the light of the scheme of both the relevant Acts as discussed by us earlier it has to be held that the aforesaid view of the Division Bench of the Orissa High Court in so far as it holds that the insurance company would be liable to meet the claim of penalty to the tune of 50% of the amount of compensation as imposed on the insured employer is not correct. But so far as it is held that the insurance company would be liable to meet the claim of interest at the rate of 6% per annum as granted under Section 4-A(3) of the Compensation Act, the same is justified on the scheme of the Act. Aforesaid decision of the Orissa High Court has to be partly overruled to the aforesaid extent. We may now turn to a decision of the Madhya Pradesh High Court in the case of New India Assurance Co. Ltd. v. Guddi and Ors. (supra). A learned Single Judge in the said case took the view that on the scheme of Section 4- A(3) of the Compensation Act the insurance company will have to make good the claim of interest and penalty as imposed upon the insured employer. In the light of what we have discussed earlier it must be held that the said view is partly correct in so far as it is held that the insurance company would be liable to pay the amount of interest imposed upon the insured employer by the Workmens Commissioner under Section 4-A(3). But to the extent it seeks to cover even the penalty amount and makes obligatory on the insurer to meet the said claim of penalty imposed upon the insured employer it must be held that the same is not correct and is not borne out from the scheme of the Acts discussed by us. To that extent the said decision of the learned Single judge would stand partly overruled. In the case of United India Insurance Co. Ltd. v. Roop Kanwar and others (supra) a learned Single Judge of the Rajasthan High Court had to consider a situation where on payment of additional premium the insurance company had agreed in the light of endorsement No. 16 of the Policy to cover all liabilities incurred by the insured under Workmens Compensation Act. In view of this contractual coverage of liability the insurance company in that case was held liable to meet the claim for penalty and interest as imposed upon the insured under Section 4-A(3) of the Compensation Act. This judgment proceeded on its own facts and was concerned with a situation converse to the one as was examined by the Karnataka High Court in Oriental Insurance Co. Ltd. v. Raju and Ors. (supra). In the case decided by the Karnataka High Court, as seen earlier, there was an express exclusion of such liability of the insurance company. In the aforesaid case decided by the Rajasthan High Court there was expression inclusion of such liability for the insurance company which had taken additional premium. This judgment also, therefore, is of no assistance to either side. ### Response: 1

Krishna Priya Ganguly Etc Vs. University of Lucknow

filed by Dr. Rachna Saxena it appears that she had obtained an aggregate of 53.7% but the main obstacle in her way was that two candidates with a higher aggregate had been admitted and therefore her case did not merit any consideration. Even from amongst those who did not secure admission there ware four others who had secured higher marks than her viz., Dr. Ganguly (59.23)%, Dr. Agarwal (57.40%), Dr. Jain (56.9%) and Dr. Upadhyaya (55.33%). She could not therefore have secured admission in any event. She cannot therefore complain of discrimination. For these reasons, therefore, we affirm the decision of the High Court and dismiss C.A. 144/82 without any order as to costs.C.A. No. 145/82 has been filed by Dr. V.K. Kohli. After going through the judgment of the High Court and hearing counsel for the parties we entirely agree wit h the view taken by the High Court which seems to us to be unexceptionable on merits and must be confirmed. The appeal is therefore dismissed without any order as to costs.Coming now to C.A. No. 595/82 which has been filed by the St ate it seems to us after hearing counsel for the parties that the stand taken by the State is absolutely correct and for the reasons that we will give hereafter we find it impossible to support the judgment of the High Court.10. To beg in with, Dr. Vijay Narain Sinha who was being considered for admission to the M.S. course in Orthopaedic surgery had obtained only 43% marks in the aggregate and happened to be the last candidate in the list of persons who had applied for admission to the M.D./M.S. course. This important handicap relating to Dr. Sinha seems to have been completely glossed over by the High Court by saying that though he has not secured very high marks but he could be almost equal in all respects to the candidates who had been granted admission. This, however, was not so. The main argument of the High Court was that in determining the six admissions which were made in consonance with the prescribed instructions indicated that the ratio of admission should be with respect to the strength of the staff in the concerned department. The main complaint of the respondent (Dr.Sinha) was that while there were six teachers in the Department of Orthopaedic surgery, nine admissions were made in that particular session. The State had clearly explained that the usual number of candidates to be admitted was six and as a special case due to fortuitous circumstances an exception was made only in one session for good reasons which had been given by the State. Thereafter no such departure had been made in any other session. What the High Court completely over-looked was that even if nine students were admitted Dr. Sinha could not have secured admission as he was on the very bottom of the list in view of the very low percentage secured by him. The stand taken by the State has not been refuted by the counsel for the respondent who submitted that since the State had agreed to declare the results of all the candidates the respondent may also be given the same facility. We are, however, unable to agree with this argument because to grant admission to a person who is appreciably below the required merit would be to play with the lives of the people whom the candidate would have to treat after getting the M S. degree. The High Court seems to have relied mainly on the fact that in view of the increase in population and orthopaedic cases the college must have persons with special qualifications and as the respondent had a diploma that should be treated to be a special qualification. A mere diploma however cannot override the consideration regarding the merit as disclosed in the low aggregate obtained by him in the last MBBS examination. If the college authorities went by the pure test of merit, the diploma could not be a good substitute for admitting the lowest and the last candidate in the list.The High Court could not devise its own criterion for admission. Since the academic body has made the marks obtained in MBBS examination the criterion, admission had to be made by such a criterion. The High Court could not have introduced its own notions in such an academic matter. The High Court was not competent to do so and had no jurisdiction to import its own ideology.11. The High Court further observed that the respondent appears to be a very dedicated worker having acquired a diploma and would have proved an invaluable asset to the Institution. We do not see any proper material for this conclusion to which the High Court has suddenly jumped apart from the fact that admissions were not to be given by the High Court according to its own notions. Finally, in his own petition in the High Court, the respondent had merely prayed for a writ directing the State or the college to consider his case for admission yet the High Court went a step further and straightaway issued a writ of mandamus directing the college to admit him to the M.S. course and thus granted a relief to the respondent which he himself never prayed for and could not have prayed for. Such a gross discrimination made in the case of a person who had obtained lowest aggregate and lowest position seems to u s to be extremely shocking. Although much could be said against the view taken by the High Court yet we would not like to say more than this that the High Court had made a very arbitrary, casual and laconic approach to the case and based its judgment purely on speculation and conjectures swept away by the consideration that Dr. Sinha possessed a diploma when in fact other candidates also had obtained diploma but that could not be taken into consideration, because the rules did not so provide.12.

1[ds]The High Court further observed that the respondent appears to be a very dedicated worker having acquired a diploma and would have proved an invaluable asset to the Institution. We do not see any proper material for this conclusion to which the High Court has suddenly jumped apart from the fact that admissions were not to be given by the High Court according to its own notions. Finally, in his own petition in the High Court, the respondent had merely prayed for a writ directing the State or the college to consider his case for admission yet the High Court went a step further and straightaway issued a writ of mandamus directing the college to admit him to the M.S. course and thus granted a relief to the respondent which he himself never prayed for and could not have prayed for. Such a gross discrimination made in the case of a person who had obtained lowest aggregate and lowest position seems to u s to be extremely shocking. Although much could be said against the view taken by the High Court yet we would not like to say more than this that the High Court had made a very arbitrary, casual and laconic approach to the case and based its judgment purely on speculation and conjectures swept away by the consideration that Dr. Sinha possessed a diploma when in fact other candidates also had obtained diploma but that could not be taken into consideration, because the rules did not soHigh Court seems to have relied mainly on the fact that in view of the increase in population and orthopaedic cases the college must have persons with special qualifications and as the respondent had a diploma that should be treated to be a special qualification. A mere diploma however cannot override the consideration regarding the merit as disclosed in the low aggregate obtained by him in the last MBBS examination. If the college authorities went by the pure test of merit, the diploma could not be a good substitute for admitting the lowest and the last candidate in the list.The High Court could not devise its own criterion for admission. Since the academic body has made the marks obtained in MBBS examination the criterion, admission had to be made by such a criterion. The High Court could not have introduced its own notions in such an academic matter. The High Court was not competent to do so and had no jurisdiction to import its ownHigh Court further observed that the respondent appears to be a very dedicated worker having acquired a diploma and would have proved an invaluable asset to the Institution. We do not see any proper material for this conclusion to which the High Court has suddenly jumped apart from the fact that admissions were not to be given by the High Court according to its own notions. Finally, in his own petition in the High Court, the respondent had merely prayed for a writ directing the State or the college to consider his case for admission yet the High Court went a step further and straightaway issued a writ of mandamus directing the college to admit him to the M.S. course and thus granted a relief to the respondent which he himself never prayed for and could not have prayed for. Such a gross discrimination made in the case of a person who had obtained lowest aggregate and lowest position seems to u s to be extremely shocking. Although much could be said against the view taken by the High Court yet we would not like to say more than this that the High Court had made a very arbitrary, casual and laconic approach to the case and based its judgment purely on speculation and conjectures swept away by the consideration that Dr. Sinha possessed a diploma when in fact other candidates also had obtained diploma but that could not be taken into consideration, because the rules did not so

### 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: filed by Dr. Rachna Saxena it appears that she had obtained an aggregate of 53.7% but the main obstacle in her way was that two candidates with a higher aggregate had been admitted and therefore her case did not merit any consideration. Even from amongst those who did not secure admission there ware four others who had secured higher marks than her viz., Dr. Ganguly (59.23)%, Dr. Agarwal (57.40%), Dr. Jain (56.9%) and Dr. Upadhyaya (55.33%). She could not therefore have secured admission in any event. She cannot therefore complain of discrimination. For these reasons, therefore, we affirm the decision of the High Court and dismiss C.A. 144/82 without any order as to costs.C.A. No. 145/82 has been filed by Dr. V.K. Kohli. After going through the judgment of the High Court and hearing counsel for the parties we entirely agree wit h the view taken by the High Court which seems to us to be unexceptionable on merits and must be confirmed. The appeal is therefore dismissed without any order as to costs.Coming now to C.A. No. 595/82 which has been filed by the St ate it seems to us after hearing counsel for the parties that the stand taken by the State is absolutely correct and for the reasons that we will give hereafter we find it impossible to support the judgment of the High Court.10. To beg in with, Dr. Vijay Narain Sinha who was being considered for admission to the M.S. course in Orthopaedic surgery had obtained only 43% marks in the aggregate and happened to be the last candidate in the list of persons who had applied for admission to the M.D./M.S. course. This important handicap relating to Dr. Sinha seems to have been completely glossed over by the High Court by saying that though he has not secured very high marks but he could be almost equal in all respects to the candidates who had been granted admission. This, however, was not so. The main argument of the High Court was that in determining the six admissions which were made in consonance with the prescribed instructions indicated that the ratio of admission should be with respect to the strength of the staff in the concerned department. The main complaint of the respondent (Dr.Sinha) was that while there were six teachers in the Department of Orthopaedic surgery, nine admissions were made in that particular session. The State had clearly explained that the usual number of candidates to be admitted was six and as a special case due to fortuitous circumstances an exception was made only in one session for good reasons which had been given by the State. Thereafter no such departure had been made in any other session. What the High Court completely over-looked was that even if nine students were admitted Dr. Sinha could not have secured admission as he was on the very bottom of the list in view of the very low percentage secured by him. The stand taken by the State has not been refuted by the counsel for the respondent who submitted that since the State had agreed to declare the results of all the candidates the respondent may also be given the same facility. We are, however, unable to agree with this argument because to grant admission to a person who is appreciably below the required merit would be to play with the lives of the people whom the candidate would have to treat after getting the M S. degree. The High Court seems to have relied mainly on the fact that in view of the increase in population and orthopaedic cases the college must have persons with special qualifications and as the respondent had a diploma that should be treated to be a special qualification. A mere diploma however cannot override the consideration regarding the merit as disclosed in the low aggregate obtained by him in the last MBBS examination. If the college authorities went by the pure test of merit, the diploma could not be a good substitute for admitting the lowest and the last candidate in the list.The High Court could not devise its own criterion for admission. Since the academic body has made the marks obtained in MBBS examination the criterion, admission had to be made by such a criterion. The High Court could not have introduced its own notions in such an academic matter. The High Court was not competent to do so and had no jurisdiction to import its own ideology.11. The High Court further observed that the respondent appears to be a very dedicated worker having acquired a diploma and would have proved an invaluable asset to the Institution. We do not see any proper material for this conclusion to which the High Court has suddenly jumped apart from the fact that admissions were not to be given by the High Court according to its own notions. Finally, in his own petition in the High Court, the respondent had merely prayed for a writ directing the State or the college to consider his case for admission yet the High Court went a step further and straightaway issued a writ of mandamus directing the college to admit him to the M.S. course and thus granted a relief to the respondent which he himself never prayed for and could not have prayed for. Such a gross discrimination made in the case of a person who had obtained lowest aggregate and lowest position seems to u s to be extremely shocking. Although much could be said against the view taken by the High Court yet we would not like to say more than this that the High Court had made a very arbitrary, casual and laconic approach to the case and based its judgment purely on speculation and conjectures swept away by the consideration that Dr. Sinha possessed a diploma when in fact other candidates also had obtained diploma but that could not be taken into consideration, because the rules did not so provide.12. ### Response: 1

State Of Rajasthan Vs. J.K. Udaipur Udyog Ltd.

the appeal from the High Courts order their rights thereunder were precarious. [See: Union of India vs. West Coast Paper Mills Ltd. 2004 (2) SCC 747 , 753]. 36. The mere circumstances that the respondent companies having availed of the exemption scheme were prohibited from collecting the tax from its customers or that they had not collected the sales tax from their customers, (which assertion is strongly disputed by the appellants), is of no consequence. The primary liability to pay the Sales Tax is on the seller. The seller may or may not be entitled to recover the same from the purchaser. The State Government is entitled to recover the same from the respondent-companies irrespective of the fact that the respondent-companies may have lost the chance of passing on their liability to pay sales tax to their purchasers. 37. It is true at this Court has on some occasions granted relief from payment of sales tax to an assessee despite having found against the assessee on equitable considerations. But on every occasion there was something more than the mere impossibility of the assessee passing on the tax to its purchasers. Thus in the case of British Physical Lab India Ltd. vs. State of Karnataka and Anr. 1999 (1) SCC 170 , the State Government had itself issued a notification reducing the rate of tax. The notification was struck down by Court. The State Government then sought to recover the difference between the reduced rate as had been notified by it and the rate generally applicable. This Court granted relief to the assessee since the State Government had itself issued the notification concerned. 38. Similarly in Shree Cement Limited and Anr. vs. State of Rajasthan and Others 2000(1) SCC 765, relief was granted having regard to the peculiar history of the case. By three notifications covering 1990 to 1994 issued by the State of Rajasthan the rate of tax payable by local dealers in respect of inter-state sales had been reduced. The notifications were challenged by cement manufacturers from outside the State. The High Court rejected the challenge. When the non local cement manufacturers came to this Court, this Court held that the notifications were void and quashed them. [Shri Digvijay Cement Companies vs. State of Rajasthan, 1997 (5) SCC 406]. A fourth notification was subsequently issued by the State of Rajasthan similar to the earlier three notifications which had been quashed. The fourth notification was challenged directly before this Court by means of a writ petition under Article 32. This time the Bench which entertained the writ petition disagreed with the view expressed earlier by this Court in respect of Shri Digvijay Cement and referred the matter to a larger Bench. The Constitution Bench overruled the decision in Shri Digvijay Cement 2000(1) SCC 688. The question then was whether the local manufacturers would be entitled to the benefit of the decision of the Constitution Bench despite the fact that the notifications under which they had availed of a lower rate of tax had been decided against them in Shri Digvijay Cement. This Court held in favour of the local manufacturers. The circumstance that the notifications were subsequently held to be valid by a larger Bench operated to protect them from liabilities which had arisen by virtue of the earlier erroneous decision. 39. In State of Rajasthan and anr. vs. Mahaveer Oil Industries & others 1999(4) SCC 357, this Court allowed the assessee to retain benefits under a scheme upto 4.4.1994 despite the fact that the assesses were held not entitled to such benefits, on the ground that in another proceeding this Court had allowed similar industries to retain the benefit up to 4.4.1994. What is of significance is that the assesses were denied further benefit even though they had been successful before the Single Judge, before the Division Bench of the High Court and no stay had been obtained from this Court at any stage. It was said: "The respondents have been aware throughout that the judgment of the Single Judge was appealed against. Even after the Division Bench dismissed the appeal the matter was carried further by filing the present special leave petition/appeal before this Court. The respondents continued to enjoy the benefits of the said two Schemes since no stay was obtained. Nevertheless, the question whether the respondents are entitled to the said benefits, has been sub judice throughout. Since the appeal is now being decided against the respondents, they cannot claim the benefit of an eligibility certificate which was granted entirely on account of a judgment of a Single Judge in their favour which is now being set aside." 40. As far as M/s. J.K. synthetics is concerned, their right to obtain benefits under the scheme by reason of clause 4(b) was in any event provisional. The undertaking given by this company was to the effect that the benefits of the scheme were being availed at the risk of the company till the sanction was granted by the Screening Committee. Since no sanction has been granted to the company, the company was aware that its rights to the benefits under the scheme were conditional and that it might be called upon to meet its sales tax liabilities in the event sanction was not granted on its application.41. In such circumstances it must be open to the State Government to recover sales tax dues as it is entitled to under the RST Act allowing the respondent companies to only keep such benefits as had been already availed of by then upto 7th January, 2000 and thereafter at the rates specified and according to the provisions of the scheme as modified by the corrigendum notification. However no interest or penalty will charged from the respondent companies by the appellants on the differential amounts for the period the matter was sub judice before this Court provided the respondent companies pay the principal amount of sales tax within such time as may be specified by the appellants in this regard. 42

1[ds]In any event, the High Court erred in fact in holding that M/s. J.K. Synthetics had a vested right to the benefits of the scheme. Clause 4 of the scheme clearly provides that the benefits under the scheme were subject to the sanction of the Screening Committee. No sanction has been issued to M/s. J.K. Synthetics tillfrom this, the exemption being a creature of the scheme is subject to the scheme. Clause 9 of the scheme makes it clear that the right under the scheme was temporary in the sense that the scheme could be modified or reviewed. It is true that clause 9 also provides that such review or modification could take place only in the public interest. But nevertheless the right conferred was a modifiable or revocable one. If any right under the scheme is held to be unmodifiable it would be contrary to the scheme itself. Therefore even if one were to assume that the respondent companies were entitled to the benefits of the scheme on par with new units under Srl. No.1 with effect from the date of the certification of their application under clause 4(h), the right could be modified with effect from the date on which the scheme was modified. The further argument of the respondent that the subsequent notification could not be construed as a modification and would apply only to subsequent applicants is unacceptable. There is no ambiguity in the language of the subsequent notification. On the contrary the use of the word corrigendum itself indicates the intention was to correct and to rectify what the State Government thought had been erroneously done.Coming now to the question of public interest. The 4th New Industrial Policy pursuant to which the scheme had been framed by the State Government was indisputably in the public interest. Therefore, if the intention of the State Government was to effectuate the policy by issuing the subsequent notification it cannot be said that the State Government was not acting in the public interest. The Industrial Policy which resulted in the exemption scheme expressly provided that the rate of benefits which were to be given to sick industrial units which had not availed of any such benefits in the past would be at par with a new unit. But does this mean that the words "new unit" in the policy referred to industries under Srl. No. 1? We think not. New units of different kinds of industries had been separately classified both under the policy and under Srl. Nos. 1,2 and 3 of Annexure B to thethrust of the industrial policy was to give an incentive to new entrepreneurs. It is true that there are separate provisions for sick industries but given the main object of the policy to make Rajasthan a "most favoured destination for industries", it could not have been the intention of the State Government to give a lower benefit to new industries and to give higher benefits to sick industrial units already established in the State. However, when the scheme was first notified although the body of the scheme effectuated the objective, the entry under column 3 against Srl. No.4 in Annexure B did not clearly reflect this. Doubtless the interpretation put by the respondent companies and accepted by the High Court on the entries against Srl. No. 4 as it originally stood in Annexure B, is possible interpretation, but in our opinion Annexure B was equally susceptible of the interpretation put forward by the appellants before us particularly in the context of the Industrialcounsel for the respondents additional contention is that the Screening Committee had proceeded on the basis that the sick cement units were covered under Srl. No.4 and not Srl.No.3. It is argued that such decision of the Screening Committee being final in terms of Clause 4(a) of the scheme, it was not open to the State to contend otherwise. The argument is without force. The finality given to the decision of Screening Committee in terms of Clause 4(a) is "subject to other provisions provided for in the scheme". Any decision of the Screening Committee cannot be contrary to the provisions of the scheme. Besides all that the Screening Committee has held is that the respondent companies are to be treated on par with other cement companies, with effect from the date of the subsequent notification. That is also what the appellants contend, namely that Srl.No.4(a) expressly puts sick cement units on par with new cement units under Srl.No.3.34. The respondent companies are therefore required to avail of the benefits under the scheme on the basis of the corrigendum with effect from 7.1.2000. Learned counsel for the respondent companies may be right in his contention that if a sanction is granted and an Eligibility. Certificate issued on the basis of the sanction, then having regard to the provisions of Section 4(h) the period of exemption under the sanction ought to cover the date of the certification of the application as complete under Clause 4(h). But it is again unnecessary to decide the ambit of the Screening Committees power, as the appellants have not argued that the benefits of the higher rate of exemption already availed of by the respondent companies with effect from the date of certification under clause 4(h) up to 7th January, 2000 should be taken away fromfar as M/s. J.K. synthetics is concerned, their right to obtain benefits under the scheme by reason of clause 4(b) was in any event provisional. The undertaking given by this company was to the effect that the benefits of the scheme were being availed at the risk of the company till the sanction was granted by the Screening Committee. Since no sanction has been granted to the company, the company was aware that its rights to the benefits under the scheme were conditional and that it might be called upon to meet its sales tax liabilities in the event sanction was not granted on its application.41. In such circumstances it must be open to the State Government to recover sales tax dues as it is entitled to under the RST Act allowing the respondent companies to only keep such benefits as had been already availed of by then upto 7th January, 2000 and thereafter at the rates specified and according to the provisions of the scheme as modified by the corrigendum notification. However no interest or penalty will charged from the respondent companies by the appellants on the differential amounts for the period the matter was sub judice before this Court provided the respondent companies pay the principal amount of sales tax within such time as may be specified by the appellants in this

### 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 appeal from the High Courts order their rights thereunder were precarious. [See: Union of India vs. West Coast Paper Mills Ltd. 2004 (2) SCC 747 , 753]. 36. The mere circumstances that the respondent companies having availed of the exemption scheme were prohibited from collecting the tax from its customers or that they had not collected the sales tax from their customers, (which assertion is strongly disputed by the appellants), is of no consequence. The primary liability to pay the Sales Tax is on the seller. The seller may or may not be entitled to recover the same from the purchaser. The State Government is entitled to recover the same from the respondent-companies irrespective of the fact that the respondent-companies may have lost the chance of passing on their liability to pay sales tax to their purchasers. 37. It is true at this Court has on some occasions granted relief from payment of sales tax to an assessee despite having found against the assessee on equitable considerations. But on every occasion there was something more than the mere impossibility of the assessee passing on the tax to its purchasers. Thus in the case of British Physical Lab India Ltd. vs. State of Karnataka and Anr. 1999 (1) SCC 170 , the State Government had itself issued a notification reducing the rate of tax. The notification was struck down by Court. The State Government then sought to recover the difference between the reduced rate as had been notified by it and the rate generally applicable. This Court granted relief to the assessee since the State Government had itself issued the notification concerned. 38. Similarly in Shree Cement Limited and Anr. vs. State of Rajasthan and Others 2000(1) SCC 765, relief was granted having regard to the peculiar history of the case. By three notifications covering 1990 to 1994 issued by the State of Rajasthan the rate of tax payable by local dealers in respect of inter-state sales had been reduced. The notifications were challenged by cement manufacturers from outside the State. The High Court rejected the challenge. When the non local cement manufacturers came to this Court, this Court held that the notifications were void and quashed them. [Shri Digvijay Cement Companies vs. State of Rajasthan, 1997 (5) SCC 406]. A fourth notification was subsequently issued by the State of Rajasthan similar to the earlier three notifications which had been quashed. The fourth notification was challenged directly before this Court by means of a writ petition under Article 32. This time the Bench which entertained the writ petition disagreed with the view expressed earlier by this Court in respect of Shri Digvijay Cement and referred the matter to a larger Bench. The Constitution Bench overruled the decision in Shri Digvijay Cement 2000(1) SCC 688. The question then was whether the local manufacturers would be entitled to the benefit of the decision of the Constitution Bench despite the fact that the notifications under which they had availed of a lower rate of tax had been decided against them in Shri Digvijay Cement. This Court held in favour of the local manufacturers. The circumstance that the notifications were subsequently held to be valid by a larger Bench operated to protect them from liabilities which had arisen by virtue of the earlier erroneous decision. 39. In State of Rajasthan and anr. vs. Mahaveer Oil Industries & others 1999(4) SCC 357, this Court allowed the assessee to retain benefits under a scheme upto 4.4.1994 despite the fact that the assesses were held not entitled to such benefits, on the ground that in another proceeding this Court had allowed similar industries to retain the benefit up to 4.4.1994. What is of significance is that the assesses were denied further benefit even though they had been successful before the Single Judge, before the Division Bench of the High Court and no stay had been obtained from this Court at any stage. It was said: "The respondents have been aware throughout that the judgment of the Single Judge was appealed against. Even after the Division Bench dismissed the appeal the matter was carried further by filing the present special leave petition/appeal before this Court. The respondents continued to enjoy the benefits of the said two Schemes since no stay was obtained. Nevertheless, the question whether the respondents are entitled to the said benefits, has been sub judice throughout. Since the appeal is now being decided against the respondents, they cannot claim the benefit of an eligibility certificate which was granted entirely on account of a judgment of a Single Judge in their favour which is now being set aside." 40. As far as M/s. J.K. synthetics is concerned, their right to obtain benefits under the scheme by reason of clause 4(b) was in any event provisional. The undertaking given by this company was to the effect that the benefits of the scheme were being availed at the risk of the company till the sanction was granted by the Screening Committee. Since no sanction has been granted to the company, the company was aware that its rights to the benefits under the scheme were conditional and that it might be called upon to meet its sales tax liabilities in the event sanction was not granted on its application.41. In such circumstances it must be open to the State Government to recover sales tax dues as it is entitled to under the RST Act allowing the respondent companies to only keep such benefits as had been already availed of by then upto 7th January, 2000 and thereafter at the rates specified and according to the provisions of the scheme as modified by the corrigendum notification. However no interest or penalty will charged from the respondent companies by the appellants on the differential amounts for the period the matter was sub judice before this Court provided the respondent companies pay the principal amount of sales tax within such time as may be specified by the appellants in this regard. 42 ### Response: 1

State Of Punjab Vs. Mst. Qaisar Jehan Begum And Anr

respondents were neither present nor were represented before the Collector when the letter made his award. The first part of cl. (b) is also not applicable, because the respondents did not receive any notice from the Collector under sub-sec. (2) of S. 12 of the Act. That sub- section requires the Collector to give immediate notice of his award to suck of the persons interested as are not present personally or by their representatives when the award is made. Clearly enough, the respondents herein were entitled to a notice under sub-sec. (2) of S. 12 admittedly no notice was issued to them.5. As to the second part of cl. (b) of the proviso, the true scope and effect thereof was considered by this court in Harish Chandras case, 1962-1 SCR 676 : (AIR 1961 SC 1500 ) (supra).It was there observed that a literal and mechanical construction of the words "six months from the date of Collectors award" occurring in the second part of cl. (b) of the proviso would not be appropriate and "the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice, the expression used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. Admittedly the award was never communicated to the respondents. Therefore the question before us boils down to this. When did the respondents know the award either actually or constructively? Learned counsel for the appellant has placed very strong reliance on the petition which the respondents made for interim payment of compensation on December 24,1954. He has pointed out that the learned Subordinate Judge relied on this petition as showing the respondents date of knowledge and there are no reasons why we should take a different view. It seems clear to us that the ratio of the decision in Harish Chandras case, 1962-1 SCR 676 : (AIR 1961 SC 1500 ) (supra) is that the party affected by the award must know it, actually or constructively, and the period of six months will run from the date of that knowledge. Now, knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. If the award is communicated to a party under S. 12 (2) of the Act, the party must be obviously fixed with knowledge of the contents of the award whether he reads it. or not. Similarly when a party is present in court either personally or through his representative when the award is made by the Collector, it must be presumed that he knows the contents of the award. Having regard to the scheme of the Act we think that knowledge of the award must mean knowledge of the essential contents of the award. Looked at from that point of view, we do not think that it can be inferred from the petition dated December 24, 1954 that the respondents had knowledge of the award one of the respondents gave evidence before the learned Subordinate Judge and she said :"The application marked as Ex. D-1 was given by me but the amount of compensation was not known to me, nor did I know about acquisition of the land. Chaudhari Mohd. Sadiq, my Karinda had told me on the day I filed the said application that the land had been acquired by the Government."This evidence was not seriously contradicted on behalf of the appellant and the learned Subordinate Judge did not reject it. It is worthy of the note that before the Collector also the appellant did not seriously challenge the statement of the respondents that they came to know of the award on July 22, 1955 the date on which the compensation was paid. On the reply which the appellant filed before the learned Subordinate Judge there was no contradiction of the averment that the respondents had come to know of the award on July 22, 1955. That being the position we have come to the conclusion that the date of knowledge in this case was July 22, 1955. The application for a reference was clearly made within six months from that date and was not therefore barred by time within the meaning of the second part of cl. (b) of the proviso to S.18 of the Act.6. In the view which we have taken on the question of limitation, it is unnecessary for us to decide the other question as to whether the civil court, on a reference under S. 18 of the Act, can go into the question of limitation. We have already stated that there is a conflict of judicial opinion on that question. There is on one side a line of decisions following the decision of the Bombay High Court In re, Land Acquisition Act, ILR 30 Bom 275 which have held that the civil court is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference. There is, on the other side, a line of decisions which say that the jurisdiction of the civil court is confined to considering and pronouncing upon any one of the four different objections to an award under the Act which may have been raised in the written application for the reference. The decision of the Allahabad High Court in Secretary of State v. Bhagwan Prasad, ILR 52 All 96 : (AIR 1929 All 769) is typical of this line of decisions. There is thus a marked conflict of judicial opinion on the question. This conflict, we think, must be resolved in a more appropriate case on a future occasion. In the case before us the question does not really arise and is merely academic and we prefer not to decide the question in the present case.

0[ds]Assuming that the appellant can raise the ground of limitations, the first question before US is, whether the application made on September 30, 1955 was within time within the meaning of the aforesaid proviso. Clause (a) of the Proviso clearly not applicable in the present case, because admittedly the respondents were neither present nor were represented before the Collector when the letter made his award. The first part of cl. (b) is also not applicable, because the respondents did not receive any notice from the Collector under sub-sec. (2) of S. 12 of the Act. That sub- section requires the Collector to give immediate notice of his award to suck of the persons interested as are not present personally or by their representatives when the award is made. Clearly enough, the respondents herein were entitled to a notice under sub-sec. (2) of S. 12 admittedly no notice was issued to them.5. As to the second part of cl. (b) of the proviso, the true scope and effect thereof was considered by this court in Harish Chandras case, 1962-1 SCR 676 : (AIR 1961 SC 1500 ) (supra).It was there observed that a literal and mechanical construction of the words "six months from the date of Collectors award" occurring in the second part of cl. (b) of the proviso would not be appropriate and "the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice, the expression used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. Admittedly the award was never communicated to the respondents.It seems clear to us that the ratio of the decision in Harish Chandras case, 1962-1 SCR 676 : (AIR 1961 SC 1500 ) (supra) is that the party affected by the award must know it, actually or constructively, and the period of six months will run from the date of that knowledge. Now, knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. If the award is communicated to a party under S. 12 (2) of the Act, the party must be obviously fixed with knowledge of the contents of the award whether he reads it. or not. Similarly when a party is present in court either personally or through his representative when the award is made by the Collector, it must be presumed that he knows the contents of the award. Having regard to the scheme of the Act we think that knowledge of the award must mean knowledge of the essential contents of the award. Looked at from that point of view, we do not think that it can be inferred from the petition dated December 24, 1954 that the respondents had knowledge of the award one of the respondents gave evidence before the learned SubordinateIn the view which we have taken on the question of limitation, it is unnecessary for us to decide the other question as to whether the civil court, on a reference under S. 18 of the Act, can go into the question of limitation. We have already stated that there is a conflict of judicial opinion on that question. There is on one side a line of decisions following the decision of the Bombay High Court In re, Land Acquisition Act, ILR 30 Bom 275 which have held that the civil court is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference. There is, on the other side, a line of decisions which say that the jurisdiction of the civil court is confined to considering and pronouncing upon any one of the four different objections to an award under the Act which may have been raised in the written application for the reference. The decision of the Allahabad High Court in Secretary of State v. Bhagwan Prasad, ILR 52 All 96 : (AIR 1929 All 769) is typical of this line of decisions. There is thus a marked conflict of judicial opinion on the question. This conflict, we think, must be resolved in a more appropriate case on a future occasion. In the case before us the question does not really arise and is merely academic and we prefer not to decide the question in the present case.

### Instruction: Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant. ### Input: respondents were neither present nor were represented before the Collector when the letter made his award. The first part of cl. (b) is also not applicable, because the respondents did not receive any notice from the Collector under sub-sec. (2) of S. 12 of the Act. That sub- section requires the Collector to give immediate notice of his award to suck of the persons interested as are not present personally or by their representatives when the award is made. Clearly enough, the respondents herein were entitled to a notice under sub-sec. (2) of S. 12 admittedly no notice was issued to them.5. As to the second part of cl. (b) of the proviso, the true scope and effect thereof was considered by this court in Harish Chandras case, 1962-1 SCR 676 : (AIR 1961 SC 1500 ) (supra).It was there observed that a literal and mechanical construction of the words "six months from the date of Collectors award" occurring in the second part of cl. (b) of the proviso would not be appropriate and "the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice, the expression used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. Admittedly the award was never communicated to the respondents. Therefore the question before us boils down to this. When did the respondents know the award either actually or constructively? Learned counsel for the appellant has placed very strong reliance on the petition which the respondents made for interim payment of compensation on December 24,1954. He has pointed out that the learned Subordinate Judge relied on this petition as showing the respondents date of knowledge and there are no reasons why we should take a different view. It seems clear to us that the ratio of the decision in Harish Chandras case, 1962-1 SCR 676 : (AIR 1961 SC 1500 ) (supra) is that the party affected by the award must know it, actually or constructively, and the period of six months will run from the date of that knowledge. Now, knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. If the award is communicated to a party under S. 12 (2) of the Act, the party must be obviously fixed with knowledge of the contents of the award whether he reads it. or not. Similarly when a party is present in court either personally or through his representative when the award is made by the Collector, it must be presumed that he knows the contents of the award. Having regard to the scheme of the Act we think that knowledge of the award must mean knowledge of the essential contents of the award. Looked at from that point of view, we do not think that it can be inferred from the petition dated December 24, 1954 that the respondents had knowledge of the award one of the respondents gave evidence before the learned Subordinate Judge and she said :"The application marked as Ex. D-1 was given by me but the amount of compensation was not known to me, nor did I know about acquisition of the land. Chaudhari Mohd. Sadiq, my Karinda had told me on the day I filed the said application that the land had been acquired by the Government."This evidence was not seriously contradicted on behalf of the appellant and the learned Subordinate Judge did not reject it. It is worthy of the note that before the Collector also the appellant did not seriously challenge the statement of the respondents that they came to know of the award on July 22, 1955 the date on which the compensation was paid. On the reply which the appellant filed before the learned Subordinate Judge there was no contradiction of the averment that the respondents had come to know of the award on July 22, 1955. That being the position we have come to the conclusion that the date of knowledge in this case was July 22, 1955. The application for a reference was clearly made within six months from that date and was not therefore barred by time within the meaning of the second part of cl. (b) of the proviso to S.18 of the Act.6. In the view which we have taken on the question of limitation, it is unnecessary for us to decide the other question as to whether the civil court, on a reference under S. 18 of the Act, can go into the question of limitation. We have already stated that there is a conflict of judicial opinion on that question. There is on one side a line of decisions following the decision of the Bombay High Court In re, Land Acquisition Act, ILR 30 Bom 275 which have held that the civil court is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference. There is, on the other side, a line of decisions which say that the jurisdiction of the civil court is confined to considering and pronouncing upon any one of the four different objections to an award under the Act which may have been raised in the written application for the reference. The decision of the Allahabad High Court in Secretary of State v. Bhagwan Prasad, ILR 52 All 96 : (AIR 1929 All 769) is typical of this line of decisions. There is thus a marked conflict of judicial opinion on the question. This conflict, we think, must be resolved in a more appropriate case on a future occasion. In the case before us the question does not really arise and is merely academic and we prefer not to decide the question in the present case. ### Response: 0

Mousam Singha Roy @ Mithun Vs. State Of West Bengal

recovery of the exercise book from the house of Mousam, A-1 as also the letter from the house of Vikky, A-5. A perusal of the evidence of PWs.16 and 17 who were the Panch witnesses for the recovery of the exercise book shows that they have not really seen the place from where this book was recovered by the I.O. From their evidence it is noticed that in the case of the book, the I.O. went inside the house of A-1 and came out with the book. Admittedly , these Panch witnesses have not seen where exactly from the house this book was recovered. They have only spoken about the fact that the I.O. came out of the house with the book and told them that he recovered it from the room of Mousam. A-1. Almost similar is the evidence of PWs. 35 and 36 who were the Panch witnesses for the recovery of the letter from the house of Vikky, A-5. These witnesses have also not seen the actual recovery of the letter. They had only seen the I.O. who told them that the letter was recovered from the house of A-5 and signed the seizure memo. In our opinion this evidence is insufficient to prove the recovery. The very purpose of requiring a Panch to witness the recovery is to see that independent witnesses vouchsafe for the fact that a particular thing was recovered from a place where the prosecution alleges it was found. It is absolutely necessary for these Panch witnesses to see and observe from where exactly these articles were recovered. It is not sufficient if the I.O. produced certain articles and informed the Panch witnesses that he has recovered it from a particular place, unless the actual place of recovery from where the article was recovered is seen by the Panch witnesses. In the absence of the same, their signatures on the recovery Panchnama become useless in proving the recoveries. In the instant case we have noticed that the Panch witnesses who signed the Panchnama for the recovery of the letter and the exercise book, have specifically in their evidence under oath, stated that the I.O. went inside the respective room/ house and came out the articles and told the Panch witnesses that he had recovered them. None of the Panch witnesses had seen the actual recoveries therefore, as contended by the defence, the prosecution has failed to establish the recoveries as required in law. The fact that the mother of Mousam A-1, had signed the recovery Panchnama in regard to the exercise book or mother of A-3 had signed the Panchnama for the recovery of letter from the house of A-5 is of no consequence. They are not the Panch witnesses, their evidence is not before the court. In such a situation we agree with the learned counsel for the appellants that the recoveries are not established in accordance with law hence the same has to be ignored.27. Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In a similar circumstances this Court in the case of Sarwan Singh Rattan Singh vs. State of Punjab (AIR 1957 SC 637 ) stated thus: " It is no doubt a matter of regret that a foul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between may be true and must be true there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted." 28. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convicted the accused.29. We are also aware that this Court does not disturb the concurrent findings of the courts below if the same are based on legal evidence merely because another view is possible. Thus, keeping in mind the caution expressed by Baron Alderson (supra) as also the need to respect the concurrent findings of two courts below, we have assessed the evidence in this case very carefully, but in spite of the same we are unable to concur with the findings of the courts below. In our opinion, both the courts below have departed from the rule of prudence while appreciating the evidence led by the prosecution.30. On the above basis, we notice that: "a) The prosecution has not satisfactorily established the receipt of telephone call on 1.12.1998 from Mousam to deceased Pritam as spoken to by PW-1.b) the evidence of PWs.2, 3, 13 and 15 are not creditworthy hence not safe to be relief upon;c) the recoveries of the letter from the house of A-5 and the exercise book from the house of A-1 are not proved as required in law; 31. Therefore, in our opinion the circumstances relied on by the prosecution in this case are neither fully established nor are consistent with the hypothesis of the guilt of the accused. These circumstances do not exclude the hypothesis of innocence of the accused, therefore, the appellants are entitled to the benefit of reasonable doubt. Accordingly, we allow these appeals, set aside the judgments of the courts below and acquit the appellants of the charges framed against them.

1[ds]26. At this stage, it will be relevant to discuss the recoveries of a letter and a book by the prosecution which according to the prosecution establishes the further motive for murder. In this regard, the prosecution relies on the evidence ofBarun Polley andSubhro Sen to establish the fact that letter Ex. V allegedly written by accused Mousam to accused Vikky was recovered from the house of Vikky, whileSukamal Dutta andChiranjib Das were examined for the purpose of proving the recovery of exercise book (khata) from the house of accused Mousam. Prosecution has also relied upon the evidence of handwriting experts and the forensic laboratory personnel to establish the fact that the letter was in the handwriting of the accused and the pages on which the said letter was written were removed from the exercise book belonging to Mousam. The defence has seriously challenged the recovery contending that the recoveries were not proved as required in law. That part, the learned counsel for the appellants also attacked the prosecution case as to the handwriting ofin the letter as also the legality of obtaining specimen handwriting by the Police during the investigation. We do not think it is necessary for us to go into all these arguments because after examining the evidence of Panch witnesses to the recoveries, we think the prosecution has not established the recovery of the exercise book from the house of Mousam,as also the letter from the house of Vikky,A perusal of the evidence of PWs.16 and 17 who were the Panch witnesses for the recovery of the exercise book shows that they have not really seen the place from where this book was recovered by the I.O. From their evidence it is noticed that in the case of the book, the I.O. went inside the house ofand came out with the book. Admittedly , these Panch witnesses have not seen where exactly from the house this book was recovered. They have only spokenI.O. came out of the house with the book and told them that he recovered it from the room of Mousam.Almost similar is the evidence of PWs. 35 and 36 who were the Panch witnesses for the recovery of the letter from the house of Vikky,These witnesses have also not seen the actual recovery of the letter. They had only seen the I.O. who told them that the letter was recovered from the house ofand signed the seizure memo. In our opinion this evidence is insufficient to prove the recovery. The very purpose of requiring a Panch to witness the recovery is to see that independent witnesses vouchsafe for the fact that a particular thing was recovered from a place where the prosecution alleges it was found. It is absolutely necessary for these Panch witnesses to see and observe from where exactly these articles were recovered. It is not sufficient if the I.O. produced certain articles and informed the Panch witnesses that he has recovered it from a particular place, unless the actual place of recovery from where the article was recovered is seen by the Panch witnesses. In the absence of the same, their signatures on the recovery Panchnama become useless in proving the recoveries. In the instant case we have noticed that the Panch witnesses who signed the Panchnama for the recovery of the letter and the exercise book, have specifically in their evidence under oath, stated that the I.O. went inside the respective room/ house and came out the articles and told the Panch witnesses that he had recovered them. None of the Panch witnesses had seen the actual recoveries therefore, as contended by the defence, the prosecution has failed to establish the recoveries as required in law. The fact that the mother of Mousamhad signed the recovery Panchnama in regard to the exercise book or mother ofhad signed the Panchnama for the recovery of letter from the house ofis of no consequence. They are not the Panch witnesses, their evidence is not before the court. In such a situation we agree with the learned counsel for the appellants that the recoveries are not established in accordance with law hence the same has to be ignored.27. Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In a similar circumstances this Court in the case of Sarwan Singh Rattan Singh vs. State of Punjab (AIR 1957 SC 637 ) statedIt is no doubt a matter of regret that a fouland cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between may be true and must be true there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convicted the accused.29. We are also aware that this Court does not disturb the concurrent findings of the courts below if the same are based on legal evidence merely because another view is possible. Thus, keeping in mind the caution expressed by Baron Alderson (supra) as also the need to respect the concurrent findings of two courts below, we have assessed the evidence in this case very carefully, but in spite of the same we are unable to concur with the findings of the courts below. In our opinion, both the courts below have departed from the rule of prudence while appreciating the evidence led by the prosecution.30. On the above basis, we noticeThe prosecution has not satisfactorily established the receipt of telephone call on 1.12.1998 from Mousam to deceased Pritam as spoken to bythe evidence of PWs.2, 3, 13 and 15 are not creditworthy hence not safe to be relief upon;c) the recoveries of the letter from the house ofand the exercise book from the house ofare not proved as required inTherefore, in our opinion the circumstances relied on by the prosecution in this case are neither fully established nor are consistent with the hypothesis of the guilt of the accused. These circumstances do not exclude the hypothesis of innocence of the accused, therefore, the appellants are entitled to the benefit of reasonable doubt. Accordingly, we allow these appeals, set aside the judgments of the courts below and acquit the appellants of the charges framed against them.

### 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: recovery of the exercise book from the house of Mousam, A-1 as also the letter from the house of Vikky, A-5. A perusal of the evidence of PWs.16 and 17 who were the Panch witnesses for the recovery of the exercise book shows that they have not really seen the place from where this book was recovered by the I.O. From their evidence it is noticed that in the case of the book, the I.O. went inside the house of A-1 and came out with the book. Admittedly , these Panch witnesses have not seen where exactly from the house this book was recovered. They have only spoken about the fact that the I.O. came out of the house with the book and told them that he recovered it from the room of Mousam. A-1. Almost similar is the evidence of PWs. 35 and 36 who were the Panch witnesses for the recovery of the letter from the house of Vikky, A-5. These witnesses have also not seen the actual recovery of the letter. They had only seen the I.O. who told them that the letter was recovered from the house of A-5 and signed the seizure memo. In our opinion this evidence is insufficient to prove the recovery. The very purpose of requiring a Panch to witness the recovery is to see that independent witnesses vouchsafe for the fact that a particular thing was recovered from a place where the prosecution alleges it was found. It is absolutely necessary for these Panch witnesses to see and observe from where exactly these articles were recovered. It is not sufficient if the I.O. produced certain articles and informed the Panch witnesses that he has recovered it from a particular place, unless the actual place of recovery from where the article was recovered is seen by the Panch witnesses. In the absence of the same, their signatures on the recovery Panchnama become useless in proving the recoveries. In the instant case we have noticed that the Panch witnesses who signed the Panchnama for the recovery of the letter and the exercise book, have specifically in their evidence under oath, stated that the I.O. went inside the respective room/ house and came out the articles and told the Panch witnesses that he had recovered them. None of the Panch witnesses had seen the actual recoveries therefore, as contended by the defence, the prosecution has failed to establish the recoveries as required in law. The fact that the mother of Mousam A-1, had signed the recovery Panchnama in regard to the exercise book or mother of A-3 had signed the Panchnama for the recovery of letter from the house of A-5 is of no consequence. They are not the Panch witnesses, their evidence is not before the court. In such a situation we agree with the learned counsel for the appellants that the recoveries are not established in accordance with law hence the same has to be ignored.27. Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In a similar circumstances this Court in the case of Sarwan Singh Rattan Singh vs. State of Punjab (AIR 1957 SC 637 ) stated thus: " It is no doubt a matter of regret that a foul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between may be true and must be true there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted." 28. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convicted the accused.29. We are also aware that this Court does not disturb the concurrent findings of the courts below if the same are based on legal evidence merely because another view is possible. Thus, keeping in mind the caution expressed by Baron Alderson (supra) as also the need to respect the concurrent findings of two courts below, we have assessed the evidence in this case very carefully, but in spite of the same we are unable to concur with the findings of the courts below. In our opinion, both the courts below have departed from the rule of prudence while appreciating the evidence led by the prosecution.30. On the above basis, we notice that: "a) The prosecution has not satisfactorily established the receipt of telephone call on 1.12.1998 from Mousam to deceased Pritam as spoken to by PW-1.b) the evidence of PWs.2, 3, 13 and 15 are not creditworthy hence not safe to be relief upon;c) the recoveries of the letter from the house of A-5 and the exercise book from the house of A-1 are not proved as required in law; 31. Therefore, in our opinion the circumstances relied on by the prosecution in this case are neither fully established nor are consistent with the hypothesis of the guilt of the accused. These circumstances do not exclude the hypothesis of innocence of the accused, therefore, the appellants are entitled to the benefit of reasonable doubt. Accordingly, we allow these appeals, set aside the judgments of the courts below and acquit the appellants of the charges framed against them. ### Response: 1

Surya Kant Roy Vs. Imamul Hai Khan

a person holding an office under the State Government.5. We may in this connection refer to certain decisions of this Court. In Abdul Shakur v. Rikhabchand. (1958 SCR 387 at D. 394) = (AIR 1958 SC 52 at p. 55) this Court held:"The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion andpayment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government."We have already pointed out that in this case the payments to the respondent are not from out of the Government revenues.6. In Shivamurthy Swami v. Agadi Sanganna Andanappa (1971 (3) SCC 870 ) this Court pointed out:".. .the office in question must have been held under a Government and to that some pay, salary, emoluments or allowance is attached. This Court in several decisions had laid down the tests for finding out whether an office in question is an office under a Government and whether it is an office of profit. Those tests are: (1) Whether the Government makes the appointment; (2) Whether the Government has the right to remove or dismiss the holder; (3)Whether the Government pays the remuneration; (4) What are the functions of the holder? Does he Perform them for the Government, and (5) Does the Government exercise any control over the performance of those functions?" Here again-it is to be pointed out that the Government does not pay the remuneration nor . does the holder perform his functions for the Government. To hold otherwise would be to hold that local bodies like Municipal Councils perform their functions for the Government though in one sense the functions they perform are governmental functions.7. The decision of this Court Gurushatappa v. Abdul Khuddus, (AIR 1969 SC 744 = l969 (3) SCR 425), which was also relied upon by the High Court, may be usefully referred to.It was there observed:"Thus. in the case of election as President or Vice-President, the disqualification arises even if the candidate is holding an office of profit under a local or any other authority under the control of the Central Government or the State Government. whereas, in the case of a candidate for election as a Member of any of the Legislatures, no such disqualification is laid down by the Constitution if the office of profit is held under a local or any other authority under the control of the Government and not directly under any of the Governments. This clearly indicates that in the case of eligibility for election as a member of a Legislature, the holding of an office of profit under a corporate body like a local authority does not bring about disqualification even if that local authority be under the control of the Government. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature in the manner in which such disqualification comes into existence for being elected as the President or the Vice-President."The office held by the respondent is held under a local authority. The holding of an office of profit in it does not bring about a disqualification even if that local authority be under the control of the Government. The mere control of Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature. Therefore, the control exercised by the Government. over the Board in this case does not make the Board an organ of the Government nor does it make the respondent a person holding an office under the Government. It is, therefore, unnecessary to go into the question whether the office held by the respondent was an office of profit, though we may indicate that on the evidence available in this case we have come to the conclusion that it is not an office of profit. We are not setting out the evidence at length only because it is unnecessary for the purpose of this case.8. As regards the 2nd question the allegation-of the appellant was that the respondent taking advantage of his position as a former Cabinet Minister of the State of Bihar had procured the services of the officer-in-charge of Chas police station in arranging and holding his election meeting on 20th February, 1972 within the premises of the Chas police station and this was a corrupt practice within the meaning of sub-s. (7) of Section 123 of the Representation of the People Act. According to the respondent the election meeting was held in the vacant space on the southern side of the compound wall of the police station. The evidence relied upon by the appellant for proving his charge was his own and that of two of his co-villagers. The appellant was not an eye witness of this meeting and his evidence was pure hearsay. The person who is said to have informed him was not examined. The evidence of P.Ws. 1 and 2 was not accepted by the High Court. The police officer concerned, who was examined as R.W. 8, as well as the respondent (R.W. 10) have denied the allegation. After a careful examination of all the evidence the High Court held this charge not proved. We have gone through the evidence and see no reason to differ from the High Court on this point.9. An allegation of corrupt practice being a serious one leading not merely to the consequence of the election of the successful candidate being set aside but also of his being disqualified to stand for election for a certain period should be proved beyond reasonable doubt and we find such proof lacking in this case.

0[ds]4. We agree with the learned Judge of the High Court that it is difficult to accept the argument that the Board is wholly under the control of the State Government in all its functions. The Board levies taxes and other assessments and has got its own funds. The fact that the Government and other local authorities might make grants to the Board does not mean that all the funds of the Board are Government funds or Government property. The provisions we have set out above are enough to establish that the Board is a local authority within the meaning of that expression as defined in clause (31) of Section 3 ofthe General Clauses Act, 1897. Indeed this position does not seem to have been disputed by the Petitioner before the High Court in the course of his argument. We do not, therefore, think that the mere fact that the respondent was appointed as Chairman of the Board by the Government would make him a person holding an office under the Stateoffice held by the respondent is held under a local authority. The holding of an office of profit in it does not bring about a disqualification even if that local authority be under the control of the Government. The mere control of Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature. Therefore, the control exercised by the Government. over the Board in this case does not make the Board an organ of the Government nor does it make the respondent a person holding an office under the Government. It is, therefore, unnecessary to go into the question whetherthe office held by the respondent was an office ofprofit, though we may indicate that on the evidence available in this case we have come to the conclusion that it is not an office of profit. We are not setting out the evidence at length only because it is unnecessary for the purpose of this case.8. As regards the 2nd question the allegation-of the appellant was that the respondent taking advantage of his position as a former Cabinet Minister of the State of Bihar had procured the services of the officer-in-charge of Chas police station in arranging and holding his election meeting on 20th February, 1972 within the premises of the Chas police station and this was a corrupt practice within the meaning of sub-s. (7) of Section 123 of the Representation of the People Act. According to the respondent the election meeting was held in the vacant space on the southern side of the compound wall of the police station. The evidence relied upon by the appellant for proving his charge was his own and that of two of his co-villagers. The appellant was not an eye witness of this meeting and his evidence was pure hearsay. The person who is said to have informed him was not examined. The evidence of P.Ws. 1 and 2 was not accepted by the High Court. The police officer concerned, who was examined as R.W. 8, as well as the respondent (R.W. 10) have denied the allegation. After a careful examination of all the evidence the High Court held this charge not proved. We have gone through the evidence and see no reason to differ from the High Court on this point.9. An allegation of corrupt practice being a serious one leading not merely to the consequence of the election of the successful candidate being set aside but also of his being disqualified to stand for election for a certain period should be proved beyond reasonable doubt and we find such proof lacking in this case.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: a person holding an office under the State Government.5. We may in this connection refer to certain decisions of this Court. In Abdul Shakur v. Rikhabchand. (1958 SCR 387 at D. 394) = (AIR 1958 SC 52 at p. 55) this Court held:"The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion andpayment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government."We have already pointed out that in this case the payments to the respondent are not from out of the Government revenues.6. In Shivamurthy Swami v. Agadi Sanganna Andanappa (1971 (3) SCC 870 ) this Court pointed out:".. .the office in question must have been held under a Government and to that some pay, salary, emoluments or allowance is attached. This Court in several decisions had laid down the tests for finding out whether an office in question is an office under a Government and whether it is an office of profit. Those tests are: (1) Whether the Government makes the appointment; (2) Whether the Government has the right to remove or dismiss the holder; (3)Whether the Government pays the remuneration; (4) What are the functions of the holder? Does he Perform them for the Government, and (5) Does the Government exercise any control over the performance of those functions?" Here again-it is to be pointed out that the Government does not pay the remuneration nor . does the holder perform his functions for the Government. To hold otherwise would be to hold that local bodies like Municipal Councils perform their functions for the Government though in one sense the functions they perform are governmental functions.7. The decision of this Court Gurushatappa v. Abdul Khuddus, (AIR 1969 SC 744 = l969 (3) SCR 425), which was also relied upon by the High Court, may be usefully referred to.It was there observed:"Thus. in the case of election as President or Vice-President, the disqualification arises even if the candidate is holding an office of profit under a local or any other authority under the control of the Central Government or the State Government. whereas, in the case of a candidate for election as a Member of any of the Legislatures, no such disqualification is laid down by the Constitution if the office of profit is held under a local or any other authority under the control of the Government and not directly under any of the Governments. This clearly indicates that in the case of eligibility for election as a member of a Legislature, the holding of an office of profit under a corporate body like a local authority does not bring about disqualification even if that local authority be under the control of the Government. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature in the manner in which such disqualification comes into existence for being elected as the President or the Vice-President."The office held by the respondent is held under a local authority. The holding of an office of profit in it does not bring about a disqualification even if that local authority be under the control of the Government. The mere control of Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature. Therefore, the control exercised by the Government. over the Board in this case does not make the Board an organ of the Government nor does it make the respondent a person holding an office under the Government. It is, therefore, unnecessary to go into the question whether the office held by the respondent was an office of profit, though we may indicate that on the evidence available in this case we have come to the conclusion that it is not an office of profit. We are not setting out the evidence at length only because it is unnecessary for the purpose of this case.8. As regards the 2nd question the allegation-of the appellant was that the respondent taking advantage of his position as a former Cabinet Minister of the State of Bihar had procured the services of the officer-in-charge of Chas police station in arranging and holding his election meeting on 20th February, 1972 within the premises of the Chas police station and this was a corrupt practice within the meaning of sub-s. (7) of Section 123 of the Representation of the People Act. According to the respondent the election meeting was held in the vacant space on the southern side of the compound wall of the police station. The evidence relied upon by the appellant for proving his charge was his own and that of two of his co-villagers. The appellant was not an eye witness of this meeting and his evidence was pure hearsay. The person who is said to have informed him was not examined. The evidence of P.Ws. 1 and 2 was not accepted by the High Court. The police officer concerned, who was examined as R.W. 8, as well as the respondent (R.W. 10) have denied the allegation. After a careful examination of all the evidence the High Court held this charge not proved. We have gone through the evidence and see no reason to differ from the High Court on this point.9. An allegation of corrupt practice being a serious one leading not merely to the consequence of the election of the successful candidate being set aside but also of his being disqualified to stand for election for a certain period should be proved beyond reasonable doubt and we find such proof lacking in this case. ### Response: 0

Dunlop India Ltd. & Madras Rubber Factory Ltd Vs. Union of India and Others

to show that V.P. Latex is resin which is an omnibus term for a variety of hard brittle, solid or semisolid organic substances. It is however, seen from an extract from the Dictionary of Rubber Technology, 1969 edition, by Alexander S. Craig, produced by Mr. Sanghi that vinyl pyridine is one component of terpolymer of butadiene, styrene and vinyl pyridine used in latex form to promote goods adhesion between rubber and textiles, particularly rayon and nylon. We find the same description reiterated in a book Latex Natural and Synthetic by Cook (a Reinhold Pilot Book) where at page 145 it is stated that there is one type of speciality rubber latex that deserves special notice. This is terpolymer of butadiene; styrene, and 2-vinyl pyridine. Under the trade names of Gentac and Pyratex it is extensively used in nylon tire cord saturation because it gives better adhesion between the cord and the rubber in which the cord is imbedded than do other latices. Mr. Sanghi, however, emphasises that V.P. Latex is merely an adhesive and so is akin to resin and not to rubber. 36. We are however, unable to accept the submission. It is clear that meanings given to articles in a fiscal statute must be as people in trade and commerce, conversant with the subject, generally treat and understand them in the usual course. But once an article is classified and put under a distinct entry, the basis of the classification is not open to question. Technical and scientific tests offer guidance only within limits. Once the articles are in circulation and come to be described and known in common parlance, we then see no difficulty for statutory classification under a particular entry. 37. It is good fiscal policy not to put people in doubt and quandary about their liability to duty, when a particular product like V.P. Latex known to trade and commerce in this country and abroad is imported, it would have been better if the article is eo nomine, put under a proper classification to avoid controversy over the residuary clause. As a matter of fact in the Red Book (Import Trade Control Policy of the Ministry of Commerce) under Item 150, in Section II, which relates to rubber, raw and gutta percha, raw, synthetic latex including vinyl pyridine latex and copolymer of styrene butadiene latex are specifically included under the sub-head Synthetic Rubber. We do not see any reason why the same policy could not have been followed in the I.C.T. book being complementary to each other. When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause. The question of competition between two rival classifications will, however, stand on a different footing. 38. It is not for the Court to determine for itself under article 136 of the Constitution under which item a particular article falls. It is best left to the authorities entrusted with the subject. But where the very basis of the reason for including the article under a residuary head in order to charge higher duty is foreign to a proper determination of this kind, this Court will be loath to say that it will not interfere. 39. In this case there is rather voluminous evidence from the standard authorities in favour of V.P. Latex being a component of SBR which is admittedly classified under rubber raw. But assuming, and only assuming, that evidence is balanced, the best course in a fiscal measure is to decide and fix the entry under which the article comes, otherwise it will give rise to adoption of varying standards where uniformity should be the rule. 40. At one stage Mr. Sanghi pointed out that in certain Bills of Entry of Dunlop India Limited, their Agents, Messrs, Mackinnon, Mackenzie & Co., Private Ltd., gave the I.C.T. Item No. 87 with regard to the imported V.P. Latex. This, according to Mr. Sanghi, clearly shows how the appellants themselves have understood the matter. There is, however, no estoppel in law against a party in a taxation matter. In order to clear the goods for the customs, the appellants Agents may have given the classification in accordance with the wishes of the authorities or they may even be under some misapprehension. But when law allows them the right to ask for refund on a proper appraisement and which they actually applied for, we do not attach any significance to this aspect of the matter pointed out by counsel. The question is of general importance and must be decided on its merits. 41. Mr. Sanghi drew our attention to two decisions of this Court in V. V. Iyer of Bombay v. Jasjit Singh, Collector of Customs, (1973) 1 SCC 148 and the Collector of Customs, Madras v. K. Ganga Setty, (1963) 2 SCR 277 and submitted that this Court should not interfere with the decision of the authority under Article 136 of the Constitution. These decisions are clearly distinguishable, as, in the view we have taken, the order is ex facie on an irrelevant factor. Even in the Commissioner of Sales Tax, U.P. v. M/s. S.N. Brothers, Kanpur, (1973) 2 SCR 852 , this Court refused to interfere only because it could not be persuaded to hold that the view taken by the High Court was so grossly erroneous as to call for interference under Article 136 of the Constitution. The present is not such a case. 42. We are clearly of opinion that in the state of the evidence before the revisional authority no reasonable person could come to the conclusion that V.P. Latex would not come under rubber raw. The basis of the reason with regard to the end-use of the article is absolutely irrelevant in the context of the entry where there is no reference to the use or adaptation of the article.

1[ds]19. Although the controversy between the parties was placed before us in an exhaustively enlarged form going into the Chemistry of V.P. Latex, it is not necessary to go into all the complexities of chemical formulate and properties. The impugned order itself takes note of all the contentions raised before the Government and also pressed before us20. This approach is also convenient and unobjectionable, since it is urged on behalf of the respondents that we should not entertain fresh materials which were not available before the authority.24. To say the least, it is difficult to appreciate the strained meaning given by the authority in the above extract. At any rate the authority concludes hence it appears that rubber latex is not rubber as such but merely a source of rubber..... In this view, latex and rubber will have to be distinguished from each other25. It appears from the order itself that the Government of India was not treating rubber latex as raw rubber assessable under item 39 I.C.T. till 1935, and a decision was taken in that year to accord the same tariff treatment to rubber latex as to rubber raw, because it was found that latex had to be imported for various specific uses which required a liquid form. According to the authority, the use of rubber latex was as rubber and therefore on the same principle, synthetic rubber latex was also treated as synthetic rubber for assessment purposes. Then comes the crucial conclusion of the authority.If V.P. Latex was designed for or intended to be used as rubber, there would have been no difficulty in classifying it under item 39 I.C.T. In fact synthetic rubber itself has been classified as raw rubber only because synthetic rubber serves exactly the same purpose as crude rubber in all its industrial uses and has no practical difference from the latter. Pyratex V.P. Latex is designed for use as an adhesive in the manufacture of tyres. It is seldom put to any of the other uses to which rubber, natural or synthetic is ordinarily put. In composition, it is similar to rubber latex and it may also well answer the tests for rubber such as elongation etc. When reduced to dry state but its use is not the same as that of rubber. It could theoretically be converted into a substance which is akin to rubber but it has been admitted that due to high rate of cure, scorching and incompatibility with other rubbers. It does not find use in a dry state. In fact it does not replace rubber in use though it has similar properties26. The last point considered by the authority was with regard to the resin content in V.P. Latex. The appellants claimed that V.P. Latex had no resin content. The authority repelled the contention in the following words :It appears that there is no accepted definition of the term resin in trade usage or technical literature and resins are identified by their use as resins and in this view V.P. Latex may well be considered as a resin latex.28. To revert to the order of the authority, it is clear that the authority would be have found no difficulty in coming to the conclusion that V.P. Latex in view of chemical composition and physical properties is rubber raw, if the same were commercially used as rubber. The authority, therefore, was principally influenced to come to its decision on the sole basis of the ultimate use of the imported article in the trade.30. The relevant taxing event is the importing into or exporting from India. Condition of the article at the time of importing is a material factor for the purpose of classification as to under what head, duty will be leviable. The reason given by the authority that V.P. Latex when coagulated as solid rubber cannot be commercially used as an economic proposition, as even admitted by the appellants, is an extraneous consideration in dealing with the matter. We are, therefore, not required to consider the history and chemistry of synthetic rubber and V.P. Latex as a component of SBR with regard to which extensive arguments were addressed by both sides by quoting from different texts and authorities31. It is well established that in interpreting the meaning of words in a taxing statute, the acceptation of a particular word by the Trade and its popular meaning should commend itself to the authority.36. We are however, unable to accept the submission. It is clear that meanings given to articles in a fiscal statute must be as people in trade and commerce, conversant with the subject, generally treat and understand them in the usual course. But once an article is classified and put under a distinct entry, the basis of the classification is not open to question. Technical and scientific tests offer guidance only within limits. Once the articles are in circulation and come to be described and known in common parlance, we then see no difficulty for statutory classification under a particular entry37. It is good fiscal policy not to put people in doubt and quandary about their liability to duty, when a particular product like V.P. Latex known to trade and commerce in this country and abroad is imported, it would have been better if the article is eo nomine, put under a proper classification to avoid controversy over the residuary clause. As a matter of fact in the Red Book (Import Trade Control Policy of the Ministry of Commerce) under Item 150, in Section II, which relates to rubber, raw and gutta percha, raw, synthetic latex including vinyl pyridine latex and copolymer of styrene butadiene latex are specifically included under the sub-head Synthetic Rubber. We do not see any reason why the same policy could not have been followed in the I.C.T. book being complementary to each other. When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause. The question of competition between two rival classifications will, however, stand on a different footing38. It is not for the Court to determine for itself under article 136 of the Constitution under which item a particular article falls. It is best left to the authorities entrusted with the subject. But where the very basis of the reason for including the article under a residuary head in order to charge higher duty is foreign to a proper determination of this kind, this Court will be loath to say that it will not interfere.39. In this case there is rather voluminous evidence from the standard authorities in favour of V.P. Latex being a component of SBR which is admittedly classified under rubber raw. But assuming, and only assuming, that evidence is balanced, the best course in a fiscal measure is to decide and fix the entry under which the article comes, otherwise it will give rise to adoption of varying standards where uniformity should be the rule.In order to clear the goods for the customs, the appellants Agents may have given the classification in accordance with the wishes of the authorities or they may even be under some misapprehension. But when law allows them the right to ask for refund on a proper appraisement and which they actually applied for, we do not attach any significance to this aspect of the matter pointed out by counsel. The question is of general importance and must be decided on its merits.These decisions are clearly distinguishable, as, in the view we have taken, the order is ex facie on an irrelevant factor.Even in the Commissioner of Sales Tax, U.P. v. M/s. S.N. Brothers, Kanpur, (1973) 2 SCR 852 , this Court refused to interfere only because it could not be persuaded to hold that the view taken by the High Court was so grossly erroneous as to call for interference under Article 136 of the Constitution. The present is not such a case.42. We are clearly of opinion that in the state of the evidence before the revisional authority no reasonable person could come to the conclusion that V.P. Latex would not come under rubber raw. The basis of the reason with regard to the end-use of the article is absolutely irrelevant in the context of the entry where there is no reference to the use or adaptation of the article.

### 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: to show that V.P. Latex is resin which is an omnibus term for a variety of hard brittle, solid or semisolid organic substances. It is however, seen from an extract from the Dictionary of Rubber Technology, 1969 edition, by Alexander S. Craig, produced by Mr. Sanghi that vinyl pyridine is one component of terpolymer of butadiene, styrene and vinyl pyridine used in latex form to promote goods adhesion between rubber and textiles, particularly rayon and nylon. We find the same description reiterated in a book Latex Natural and Synthetic by Cook (a Reinhold Pilot Book) where at page 145 it is stated that there is one type of speciality rubber latex that deserves special notice. This is terpolymer of butadiene; styrene, and 2-vinyl pyridine. Under the trade names of Gentac and Pyratex it is extensively used in nylon tire cord saturation because it gives better adhesion between the cord and the rubber in which the cord is imbedded than do other latices. Mr. Sanghi, however, emphasises that V.P. Latex is merely an adhesive and so is akin to resin and not to rubber. 36. We are however, unable to accept the submission. It is clear that meanings given to articles in a fiscal statute must be as people in trade and commerce, conversant with the subject, generally treat and understand them in the usual course. But once an article is classified and put under a distinct entry, the basis of the classification is not open to question. Technical and scientific tests offer guidance only within limits. Once the articles are in circulation and come to be described and known in common parlance, we then see no difficulty for statutory classification under a particular entry. 37. It is good fiscal policy not to put people in doubt and quandary about their liability to duty, when a particular product like V.P. Latex known to trade and commerce in this country and abroad is imported, it would have been better if the article is eo nomine, put under a proper classification to avoid controversy over the residuary clause. As a matter of fact in the Red Book (Import Trade Control Policy of the Ministry of Commerce) under Item 150, in Section II, which relates to rubber, raw and gutta percha, raw, synthetic latex including vinyl pyridine latex and copolymer of styrene butadiene latex are specifically included under the sub-head Synthetic Rubber. We do not see any reason why the same policy could not have been followed in the I.C.T. book being complementary to each other. When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause. The question of competition between two rival classifications will, however, stand on a different footing. 38. It is not for the Court to determine for itself under article 136 of the Constitution under which item a particular article falls. It is best left to the authorities entrusted with the subject. But where the very basis of the reason for including the article under a residuary head in order to charge higher duty is foreign to a proper determination of this kind, this Court will be loath to say that it will not interfere. 39. In this case there is rather voluminous evidence from the standard authorities in favour of V.P. Latex being a component of SBR which is admittedly classified under rubber raw. But assuming, and only assuming, that evidence is balanced, the best course in a fiscal measure is to decide and fix the entry under which the article comes, otherwise it will give rise to adoption of varying standards where uniformity should be the rule. 40. At one stage Mr. Sanghi pointed out that in certain Bills of Entry of Dunlop India Limited, their Agents, Messrs, Mackinnon, Mackenzie & Co., Private Ltd., gave the I.C.T. Item No. 87 with regard to the imported V.P. Latex. This, according to Mr. Sanghi, clearly shows how the appellants themselves have understood the matter. There is, however, no estoppel in law against a party in a taxation matter. In order to clear the goods for the customs, the appellants Agents may have given the classification in accordance with the wishes of the authorities or they may even be under some misapprehension. But when law allows them the right to ask for refund on a proper appraisement and which they actually applied for, we do not attach any significance to this aspect of the matter pointed out by counsel. The question is of general importance and must be decided on its merits. 41. Mr. Sanghi drew our attention to two decisions of this Court in V. V. Iyer of Bombay v. Jasjit Singh, Collector of Customs, (1973) 1 SCC 148 and the Collector of Customs, Madras v. K. Ganga Setty, (1963) 2 SCR 277 and submitted that this Court should not interfere with the decision of the authority under Article 136 of the Constitution. These decisions are clearly distinguishable, as, in the view we have taken, the order is ex facie on an irrelevant factor. Even in the Commissioner of Sales Tax, U.P. v. M/s. S.N. Brothers, Kanpur, (1973) 2 SCR 852 , this Court refused to interfere only because it could not be persuaded to hold that the view taken by the High Court was so grossly erroneous as to call for interference under Article 136 of the Constitution. The present is not such a case. 42. We are clearly of opinion that in the state of the evidence before the revisional authority no reasonable person could come to the conclusion that V.P. Latex would not come under rubber raw. The basis of the reason with regard to the end-use of the article is absolutely irrelevant in the context of the entry where there is no reference to the use or adaptation of the article. ### Response: 1

Chandrakanta Tiwari Vs. NEW INDIA ASSURANCE COMPANY LTD. & ANR

otherwise in their written statement hence it has not been proved on record by any of the opposite parties that at the time of the accident, the deceased was driving the vehicle, it is also relevant to mention here that according to written statement of O.P. No. 1, he himself sustained injuries in this accident and he has also admitted the date, time and place of the accident. Therefore, it was legally incumbent upon him to prove his case before the Tribunal as he was the best person to make clear how this accident occurred but as no evidence has been adduced by the O.P. No. 1 in this regard, therefore, there is no reason to disbelieve the evidence adduced on behalf of the claimants by way of P.W. 1. 15. Admittedly this petition has been moved Under Section 163A of the M.V. Act, therefore, legally the claimants are not supposed to prove the rash and negligent act of driving by O.P. No. 1 and in such a petition legally, the claimants are not required even to plead or establish that the death, in respect of which the claim has been made, was due to any wrongly act or negligence or default of the owner driver of the vehicle or any other person and in such a petition, the owner of the vehicle or the authorised insurer is legally liable to make the payment of compensation. 7. So far as issues 3 and 4 are concerned, they read as follows: 3. Whether at the time of accident the deceased was not having a valid driving license? 4. Whether at the time of accident the OP No. 1 was not having a valid driving license? 8. The Tribunal then records in paragraph 17 that both the opposite parties did not press these issues during arguments. 9. Finally, given that the deceased was aged 28 years and that income was not proved, income was taken to be Rs. 36,000/- per annum minus one-third, which made it Rs. 24,000/- per annum. The Multiplier was taken to be 8, keeping in view the old age of the claimant and accordingly, a sum of Rs. 1,92,000/- was arrived at. In addition thereto, Rs. 2,000/- was given as funeral expenses, Rs. 5,000/- as loss of consortium, making it a total of Rs. 1,99,000/- together with simple interest at the rate of 6 per cent per annum on this amount from the date of filing of the claim petition up to the date of actual payment. 10. The High Court, by the impugned judgment, allowed the appeal of the insurance company stating that the claimant, not being an eye witness, could not possibly give evidence as to the accident that took place, as a result of which, the Section 163A petition would have to be dismissed. Also, nothing was brought on record to show that the deceased was having a valid driving license. This would also, therefore, take the case outside the insurance policy, as a result of which, the appeal would deserve to be allowed on this ground also. 11. Section 163A reads as follows: 163A. Special provisions as to payment of compensation on structured formula basis.-- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.--For the purposes of this Sub-section, permanent disability shall have the same meaning and extent as in the Workmens Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation Under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. 12. A perusal of this provision would show that Shri Sahoo is correct in stating that the claimant need not plead or establish that the death in respect of which the claim was made, was due to any negligence or default of the owner of the vehicle or of any other person. (emphasis supplied) 13. In this view of the matter, it is not relevant that the person insured must be the driver of the vehicle but may well have been riding with somebody else driving a vehicle which resulted in the death of the person driving the vehicle. The High Court, therefore, is clearly wrong in stating that it was necessary Under Section 163A to prove that somebody else was driving the vehicle rashly and negligently, as a result of which, the death of the victim would take place. 14. Further, it is also clear, as has been pointed out hereinabove, that so far as the driving licence aspect of the case is concerned, it was squarely given up by the insurance company before the MACT, but then utilised by the High Court to disentitle the claimant to relief. On this ground also, the High Court is incorrect. 15. Coming to the argument based on the maximum liability being Rs. 1 lakh, this argument was never taken before in all the courts below, as a result of which, we do not allow the insurance company to take up the point for the first time before us at this stage. 16. We would have restored the MACTs judgment as it stands but for the fact that there is a glaring mistake in the multiplier, as has been pointed out by Shri Sahoo.

1[ds]14. It will be relevant to mention here that no controverting evidence on this issue or on issue No. 2 has been adduced by any of the opposite parties though they have made the pleadings otherwise in their written statement hence it has not been proved on record by any of the opposite parties that at the time of the accident, the deceased was driving the vehicle, it is also relevant to mention here that according to written statement of O.P. No. 1, he himself sustained injuries in this accident and he has also admitted the date, time and place of the accident. Therefore, it was legally incumbent upon him to prove his case before the Tribunal as he was the best person to make clear how this accident occurred but as no evidence has been adduced by the O.P. No. 1 in this regard, therefore, there is no reason to disbelieve the evidence adduced on behalf of the claimants by way of P.W. 1.15. Admittedly this petition has been moved Under Section 163A of the M.V. Act, therefore, legally the claimants are not supposed to prove the rash and negligent act of driving by O.P. No. 1 and in such a petition legally, the claimants are not required even to plead or establish that the death, in respect of which the claim has been made, was due to any wrongly act or negligence or default of the owner driver of the vehicle or any other person and in such a petition, the owner of the vehicle or the authorised insurer is legally liable to make the payment of compensation.7. So far as issues 3 and 4 are concerned, they read as follows:3. Whether at the time of accident the deceased was not having a valid driving license?4. Whether at the time of accident the OP No. 1 was not having a valid driving license?8. The Tribunal then records in paragraph 17 that both the opposite parties did not press these issues during arguments.10. The High Court, by the impugned judgment, allowed the appeal of the insurance company stating that the claimant, not being an eye witness, could not possibly give evidence as to the accident that took place, as a result of which, the Section 163A petition would have to be dismissed. Also, nothing was brought on record to show that the deceased was having a valid driving license. This would also, therefore, take the case outside the insurance policy, as a result of which, the appeal would deserve to be allowed on this ground also.12. A perusal of this provision would show that Shri Sahoo is correct in stating that the claimant need not plead or establish that the death in respect of which the claim was made, was due to any negligence or default of the owner of the vehicle or of any other person. (emphasis supplied)13. In this view of the matter, it is not relevant that the person insured must be the driver of the vehicle but may well have been riding with somebody else driving a vehicle which resulted in the death of the person driving the vehicle. The High Court, therefore, is clearly wrong in stating that it was necessary Under Section 163A to prove that somebody else was driving the vehicle rashly and negligently, as a result of which, the death of the victim would take place.14. Further, it is also clear, as has been pointed out hereinabove, that so far as the driving licence aspect of the case is concerned, it was squarely given up by the insurance company before the MACT, but then utilised by the High Court to disentitle the claimant to relief. On this ground also, the High Court is incorrect.15. Coming to the argument based on the maximum liability being Rs. 1 lakh, this argument was never taken before in all the courts below, as a result of which, we do not allow the insurance company to take up the point for the first time before us at this stage.16. We would have restored the MACTs judgment as it stands but for the fact that there is a glaring mistake in the multiplier, as has been pointed out by Shri Sahoo.

### 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: otherwise in their written statement hence it has not been proved on record by any of the opposite parties that at the time of the accident, the deceased was driving the vehicle, it is also relevant to mention here that according to written statement of O.P. No. 1, he himself sustained injuries in this accident and he has also admitted the date, time and place of the accident. Therefore, it was legally incumbent upon him to prove his case before the Tribunal as he was the best person to make clear how this accident occurred but as no evidence has been adduced by the O.P. No. 1 in this regard, therefore, there is no reason to disbelieve the evidence adduced on behalf of the claimants by way of P.W. 1. 15. Admittedly this petition has been moved Under Section 163A of the M.V. Act, therefore, legally the claimants are not supposed to prove the rash and negligent act of driving by O.P. No. 1 and in such a petition legally, the claimants are not required even to plead or establish that the death, in respect of which the claim has been made, was due to any wrongly act or negligence or default of the owner driver of the vehicle or any other person and in such a petition, the owner of the vehicle or the authorised insurer is legally liable to make the payment of compensation. 7. So far as issues 3 and 4 are concerned, they read as follows: 3. Whether at the time of accident the deceased was not having a valid driving license? 4. Whether at the time of accident the OP No. 1 was not having a valid driving license? 8. The Tribunal then records in paragraph 17 that both the opposite parties did not press these issues during arguments. 9. Finally, given that the deceased was aged 28 years and that income was not proved, income was taken to be Rs. 36,000/- per annum minus one-third, which made it Rs. 24,000/- per annum. The Multiplier was taken to be 8, keeping in view the old age of the claimant and accordingly, a sum of Rs. 1,92,000/- was arrived at. In addition thereto, Rs. 2,000/- was given as funeral expenses, Rs. 5,000/- as loss of consortium, making it a total of Rs. 1,99,000/- together with simple interest at the rate of 6 per cent per annum on this amount from the date of filing of the claim petition up to the date of actual payment. 10. The High Court, by the impugned judgment, allowed the appeal of the insurance company stating that the claimant, not being an eye witness, could not possibly give evidence as to the accident that took place, as a result of which, the Section 163A petition would have to be dismissed. Also, nothing was brought on record to show that the deceased was having a valid driving license. This would also, therefore, take the case outside the insurance policy, as a result of which, the appeal would deserve to be allowed on this ground also. 11. Section 163A reads as follows: 163A. Special provisions as to payment of compensation on structured formula basis.-- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.--For the purposes of this Sub-section, permanent disability shall have the same meaning and extent as in the Workmens Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation Under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. 12. A perusal of this provision would show that Shri Sahoo is correct in stating that the claimant need not plead or establish that the death in respect of which the claim was made, was due to any negligence or default of the owner of the vehicle or of any other person. (emphasis supplied) 13. In this view of the matter, it is not relevant that the person insured must be the driver of the vehicle but may well have been riding with somebody else driving a vehicle which resulted in the death of the person driving the vehicle. The High Court, therefore, is clearly wrong in stating that it was necessary Under Section 163A to prove that somebody else was driving the vehicle rashly and negligently, as a result of which, the death of the victim would take place. 14. Further, it is also clear, as has been pointed out hereinabove, that so far as the driving licence aspect of the case is concerned, it was squarely given up by the insurance company before the MACT, but then utilised by the High Court to disentitle the claimant to relief. On this ground also, the High Court is incorrect. 15. Coming to the argument based on the maximum liability being Rs. 1 lakh, this argument was never taken before in all the courts below, as a result of which, we do not allow the insurance company to take up the point for the first time before us at this stage. 16. We would have restored the MACTs judgment as it stands but for the fact that there is a glaring mistake in the multiplier, as has been pointed out by Shri Sahoo. ### Response: 1

Balbir Singh Vs. Bogh Singh

Goswami, J.1. The appellant aged about 45 years at the time of trial is a crippled son of the respondent, Bogh Singh. Bogh Singh is in possession of ancestral land. The appellant is a disabled person having defective arms with which he cannot do any manual labour. Some time back his father executed an agreement in his favour to give him maintenance but subsequently he refused to do so. On the other hand he gave some of his land to his other sons. That led to the filing of a suit by the appellant against his father, the respondent, for grant of maintenance allowance at the rate of Rs. 150/- per month on the plea that he is entitled to it on the basis of custom. The suit was resisted by the respondent on various grounds. Several issues were framed in the trial and the Trial Court, amongst others, decided the first issue with regard to custom against the plaintiff, the appellant herein. The Trial Court found that the appellant was a disabled person but was not entitled to claim maintenance from his father. The other issues were also decided against the appellant. The suit was thus dismissed. The Additional District Judge, Ferozapore, in appeal held that the appellant, although a disabled person incapable of doing any manual work to earn his livelihood, failed to prove any custom or any other provision of law entitling him to claim maintenance from his father. With regard to the agreement dated 11th September, 1961, which was sought to be relied upon by the appellant, the Court did not admit it into evidence on account of its being unstamped and his inability to pay the stamp duty and the impounding fee. The Additional District Judge found it to be "a hard case" but observed that the law did not help him. The Additional District Judge, therefore, dismissed the appeal. The suit was originally instituted in Forma Pauperies and the appeal before the Additional District Judge was also in the same manner. That let to the filing of a regular second appeal before the Punjab and Haryana High Court along with an application dated 27th March, 1968, under O. 33, R. 1, Civil Procedure Code, in Forma Pauperies. The value for the purpose of jurisdiction of the suit was Rs. 21,000/- and on an objection being raised by the High Court office, the appellant converted it into a regular first appeal and made an application for condoning the delay under section 5 of the Limitation Act, read with Section 151 of the Code of Civil Procedure. The High court refused to condone the delay. Hence this appeal by special leave (in Forma Pauperis).2. It appears that the original suit being valued for the purpose of jurisdiction at Rs. 21,000/- the first appeal against the judgment and decree of the Trial Court lay to the High Court, but the appellant prosecuted the appeal before the Additional District Judge who also did not take any note of this wrong institution of the appeal before him. The appellant filed the second appeal before the High Court on the same mistaken assumption. It is rather surprising that this escaped the notice of the office of the Additional District Judge as also of the Court. It is abundantly clear that the appellant and his legal adviser somehow prosecuted the first appeal before the Additional District Judge bonafide and on some kind of mistaken belief for which the appellant should not suffer. Since the appellant was prosecuting the appeal before the Additional District Judge, bona fide, and the matter escaped scrutiny by the office at the time of its institution and even in course of hearing before the District Court which had no jurisdiction to entertain the same, we are satisfied that the appellant, under the entire circumstances of the case, had sufficient cause for the delay in filing the first appeal in the High Court and the delay under the circumstances ought to have been condoned by the High Court under Section 5 of the Limitation Act. The appellant is, therefore, entitled to the deduction of the period during which he prosecuted the appeal before the Additional District Judge and it is conceded by the learned counsel for the respondent that if that period were to be excluded, the first appeal before the High Court will be in time.

1[ds]2. It appears that the original suit being valued for the purpose of jurisdiction at Rs. 21,000/the first appeal against the judgment and decree of the Trial Court lay to the High Court, but the appellant prosecuted the appeal before the Additional District Judge who also did not take any note of this wrong institution of the appeal before him. The appellant filed the second appeal before the High Court on the same mistaken assumption. It is rather surprising that this escaped the notice of the office of the Additional District Judge as also of the Court. It is abundantly clear that the appellant and his legal adviser somehow prosecuted the first appeal before the Additional District Judge bonafide and on some kind of mistaken belief for which the appellant should not suffer. Since the appellant was prosecuting the appeal before the Additional District Judge, bona fide, and the matter escaped scrutiny by the office at the time of its institution and even in course of hearing before the District Court which had no jurisdiction to entertain the same, we are satisfied that the appellant, under the entire circumstances of the case, had sufficient cause for the delay in filing the first appeal in the High Court and the delay under the circumstances ought to have been condoned by the High Court under Section 5 of the Limitation Act. The appellant is, therefore, entitled to the deduction of the period during which he prosecuted the appeal before the Additional District Judge and it is conceded by the learned counsel for the respondent that if that period were to be excluded, the first appeal before the High Court will be in time.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: Goswami, J.1. The appellant aged about 45 years at the time of trial is a crippled son of the respondent, Bogh Singh. Bogh Singh is in possession of ancestral land. The appellant is a disabled person having defective arms with which he cannot do any manual labour. Some time back his father executed an agreement in his favour to give him maintenance but subsequently he refused to do so. On the other hand he gave some of his land to his other sons. That led to the filing of a suit by the appellant against his father, the respondent, for grant of maintenance allowance at the rate of Rs. 150/- per month on the plea that he is entitled to it on the basis of custom. The suit was resisted by the respondent on various grounds. Several issues were framed in the trial and the Trial Court, amongst others, decided the first issue with regard to custom against the plaintiff, the appellant herein. The Trial Court found that the appellant was a disabled person but was not entitled to claim maintenance from his father. The other issues were also decided against the appellant. The suit was thus dismissed. The Additional District Judge, Ferozapore, in appeal held that the appellant, although a disabled person incapable of doing any manual work to earn his livelihood, failed to prove any custom or any other provision of law entitling him to claim maintenance from his father. With regard to the agreement dated 11th September, 1961, which was sought to be relied upon by the appellant, the Court did not admit it into evidence on account of its being unstamped and his inability to pay the stamp duty and the impounding fee. The Additional District Judge found it to be "a hard case" but observed that the law did not help him. The Additional District Judge, therefore, dismissed the appeal. The suit was originally instituted in Forma Pauperies and the appeal before the Additional District Judge was also in the same manner. That let to the filing of a regular second appeal before the Punjab and Haryana High Court along with an application dated 27th March, 1968, under O. 33, R. 1, Civil Procedure Code, in Forma Pauperies. The value for the purpose of jurisdiction of the suit was Rs. 21,000/- and on an objection being raised by the High Court office, the appellant converted it into a regular first appeal and made an application for condoning the delay under section 5 of the Limitation Act, read with Section 151 of the Code of Civil Procedure. The High court refused to condone the delay. Hence this appeal by special leave (in Forma Pauperis).2. It appears that the original suit being valued for the purpose of jurisdiction at Rs. 21,000/- the first appeal against the judgment and decree of the Trial Court lay to the High Court, but the appellant prosecuted the appeal before the Additional District Judge who also did not take any note of this wrong institution of the appeal before him. The appellant filed the second appeal before the High Court on the same mistaken assumption. It is rather surprising that this escaped the notice of the office of the Additional District Judge as also of the Court. It is abundantly clear that the appellant and his legal adviser somehow prosecuted the first appeal before the Additional District Judge bonafide and on some kind of mistaken belief for which the appellant should not suffer. Since the appellant was prosecuting the appeal before the Additional District Judge, bona fide, and the matter escaped scrutiny by the office at the time of its institution and even in course of hearing before the District Court which had no jurisdiction to entertain the same, we are satisfied that the appellant, under the entire circumstances of the case, had sufficient cause for the delay in filing the first appeal in the High Court and the delay under the circumstances ought to have been condoned by the High Court under Section 5 of the Limitation Act. The appellant is, therefore, entitled to the deduction of the period during which he prosecuted the appeal before the Additional District Judge and it is conceded by the learned counsel for the respondent that if that period were to be excluded, the first appeal before the High Court will be in time. ### Response: 1

Mahavir and Ors Vs. Union of India (UOI) and Ors

dismissed by this Court, and acquisition has attained finality, possession was taken, the award passed. Notice had been issued Under Section 12(2) of the Act tendering the awarded amount but it has not been collected by the claimants/land owners deliberately or they had refused to collect it and are not ready and willing to accept it and, thereafter, it has been deposited in the name and account of the owners in the treasury which is also deposited as per the State Governments instructions issued time to time relating to how Government money is to be dealt with. The act of failure to deposit money Under Section 31 after possession is taken only imposes liability to pay higher interest Under Section 34. The acquisition would not lapse under the Act. 19. In our opinion, the cases in which there is deliberate action of the owners for not collecting the compensation and they do not want to receive it, Section 24(2) of the 2013 Act does not come to their rescue as provisions are to help those persons who are deprived of compensation but not for those who deliberately had not received it and litigated for decades for quashing of proceedings avoiding to receive compensation by willful act. The failure to deposit in court Under Section 31(1) in such cases would attract only interest as envisaged Under Section 34 of the Act and the provisions of Section 24 cannot be so invoked in such cases. 20. In the instant case, the claim has been made not only belatedly, but neither the Petitioners nor their previous three generations had ever approached any of the authorities in writing for claiming compensation. No representation had ever been filed with any authority, none has been annexed and there is no averment made in the petition that any such representation had ever been filed. The claim appears not only stale and dead but extremely clouded. This we are mentioning as additional reasons, as such claims not only suffer from delay and laches but courts are not supposed to entertain such claims. Besides such claims become doubtful, cannot be received for consideration being barred due to delay and laches. 21. The High Court has rightly observed that such claims cannot be permitted to be raised in the court, and cannot be adjudicated as they are barred. The High Court has rightly observed that such claims cannot be a subject matter of inquiry after the lapse of a reasonable period of time and beneficial provisions of Section 24 of the 2013 Act are not available to such incumbents. In our opinion, Section 24 cannot revive those claims that are dead and stale. 22. The High Court has observed that Raisina is a part of the Lutyens zone of Delhi. It is prime of New Delhi and Government offices etc. are located. The Petitioners asked the High Court to infer and conclude that in the absence of some indication of the record being made available by them that their ancestors have not ever received any compensation. How the Petitioners came to know that their ancestors had not received compensation has not been disclosed in the petition. The High Court has rightly declined to entertain such claims. The protective umbrella of Section 24 is not available to barred claims. If such claims are entertained Under Section 24, it would be very-very difficult to distinguish with the frivolous claim that may be made even after tampering the records etc. or due to non-availability of such record after so much lapse of time. Once right had been lost due to delay and laches or otherwise, it cannot be revived under provisions of Section 24 of the Act of 2013. The intendment of Act 2013 is not to revive stale and dead claims and in the concluded case when rights have been finally lost. If there is delay and laches or claim is otherwise barred, it is not revived Under Section 24(2) of the 2013 Act. The provision does not operate to revive legally barred claims. The provision of Section 24 does not invalidate courts judgments/orders in which right have been finally lost or due to inaction is barred. Law does not permit examination of barred or totally fraudulent claims. The provisions of the law cannot be permitted to be defrauded or misused. Section 24(2) of the 2013 Act cannot be invoked in such cases. The High Court has rightly declined to entertain the writ petitions filed by the Petitioners. It is not conceivable how the Petitioners could file such a petition in a laconic manner relating to the prime locality at New Delhi that too for hundreds of acres with the delay of more than 100 years. 23. The prayers that have been made in writ petition are not only misconceived, there is an attempt to stop the ongoing construction activity. It has also been mentioned that Government offices etc. have come up and the Government has leased property to private parties also but still, the prayer has been made to stop the construction activity. It passes comprehension how such relief could ever be asked for. No authority had ever been approached by the Petitioners or by their ancestors. As such the petition is aimed at the total misuse of the process of law. Even for a moment, such a petition could not have been received for consideration. 24. We have seen in a large number of cases that the acquisition had attained finality, compensation had been tendered but not received and development had also taken place. Petitions are being filed in the courts under the provisions of Section 24(2) of the 2013 Act that they have not been paid any compensation. In fact, if there is any such grievance, they themselves are responsible for not collecting the compensation that was offered and tendered to them. The provision of Section 24 is not intended to apply and extend help in such cases. We are not at all inclined to entertain the instant petition.

0[ds]8. Section 31(1) of the Act requires tender of compensation which is tendered in terms of Section 12 of the Act. Section 12 provides a mode of informing claimants as to compensation. Section 31(2) of the Act requires Collector to deposit amount in court in case it is not received by the persons interested or there is some dispute. Under the Act, the deposit is required only with a view to avoiding liability to pay interest. Deposit in the Court is not a payment made to the owner. It is only to avoid liability to pay interest that too at higher rates on the failure of deposit. Once it is deposited the liability to pay interest ceases. Section 34 of the Act makes it clear that if the compensation is not deposited on or before taking the possession of the land, interest at the rate of nine per cent shall follow from the time of so taking the possession until compensation so paid or deposited in the court. The proviso to Section 34 makes it clear that in case it is not so deposited in court as per Section 31(1) within a period of one year from the date of taking possession interest at the rate of 15 per cent per annum shall be payable. Thus, it is clearly provided Under Section 34 that interest at the rate of 15 per cent per annum shall be payable from the date of expiry of the said period of one year till it is so paid or deposited. As soon as the deposit is made Under Section 31(2) of the Act, liability ceases to make the payment of interest on the compensation amount so deposited.11. In the instant case, no relief can be granted on the basis of decision of the Sukhbir Singh (supra) in which decision of this Court in Pune Municipal Corporation (supra) has been relied on or any other decision following Pune Municipal Corporation (supra) referred to in the decision of this Court in Sukhbir Singh (supra).12. In the instant case, the case is liable to be dismissed on the ground of delay and laches. By no stretch of the imagination, the principles enumerated in Section 24 of the Act of 2013 can be permitted to invoke. We are not inclined to entertain such a stale claim after 105 years of acquisition.13. The catena of decisions of this Court indicates that delay and laches are enough to destroy the remedy as laid down by this Court in Tamil Nadu Housing Board, Chennai v. M. Meiyappan and Ors. 2011 (1) R.C.R.(Civil) 12 : (2010) 14 SCC 309 and Jasveer Singh and Anr. v. State of Uttar Pradesh and Ors. 2017 (3) Recent Apex Judgments (R.A.J.) 191 : (2017) 6 SCC 787. 14. In U.P. State Jal Nigam and Anr. v. Jaswant Singh and Anr. 2007 (1) S.C.T. 224 : (2006) 11 SCC 464 this Court has observed that in determining whether there has been delay so as to amount to laches in case Petitioner/claimant is aware of the violation of the right, where a remedy by his conduct tantamount to waiver of it or where, by his conduct or neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.18. The court is duty bound to prevent the abuse of the process of law in the cases which have been concluded several decades before, in our considered opinion, the provisions of Section 24(2) of the 2013 Act cannot be invoked in such cases of dead claims or stale claims. There are several numbers of cases coming to this Court in which matters had been contested up to this Court questioning the acquisition and the petitions have been dismissed by this Court, and acquisition has attained finality, possession was taken, the award passed. Notice had been issued Under Section 12(2) of the Act tendering the awarded amount but it has not been collected by the claimants/land owners deliberately or they had refused to collect it and are not ready and willing to accept it and, thereafter, it has been deposited in the name and account of the owners in the treasury which is also deposited as per the State Governments instructions issued time to time relating to how Government money is to be dealt with. The act of failure to deposit money Under Section 31 after possession is taken only imposes liability to pay higher interest Under Section 34. The acquisition would not lapse under the Act.19. In our opinion, the cases in which there is deliberate action of the owners for not collecting the compensation and they do not want to receive it, Section 24(2) of the 2013 Act does not come to their rescue as provisions are to help those persons who are deprived of compensation but not for those who deliberately had not received it and litigated for decades for quashing of proceedings avoiding to receive compensation by willful act. The failure to deposit in court Under Section 31(1) in such cases would attract only interest as envisaged Under Section 34 of the Act and the provisions of Section 24 cannot be so invoked in such cases.20. In the instant case, the claim has been made not only belatedly, but neither the Petitioners nor their previous three generations had ever approached any of the authorities in writing for claiming compensation. No representation had ever been filed with any authority, none has been annexed and there is no averment made in the petition that any such representation had ever been filed. The claim appears not only stale and dead but extremely clouded. This we are mentioning as additional reasons, as such claims not only suffer from delay and laches but courts are not supposed to entertain such claims. Besides such claims become doubtful, cannot be received for consideration being barred due to delay and laches.21. The High Court has rightly observed that such claims cannot be permitted to be raised in the court, and cannot be adjudicated as they are barred. The High Court has rightly observed that such claims cannot be a subject matter of inquiry after the lapse of a reasonable period of time and beneficial provisions of Section 24 of the 2013 Act are not available to such incumbents. In our opinion, Section 24 cannot revive those claims that are dead and stale.22. The High Court has observed that Raisina is a part of the Lutyens zone of Delhi. It is prime of New Delhi and Government offices etc. are located.ow the Petitioners came to know that their ancestors had not received compensation has not been disclosed in the petition. The High Court has rightly declined to entertain such claims. The protective umbrella of Section 24 is not available to barred claims. If such claims are entertained Under Section 24, it would be very-very difficult to distinguish with the frivolous claim that may be made even after tampering the records etc. or due to non-availability of such record after so much lapse of time. Once right had been lost due to delay and laches or otherwise, it cannot be revived under provisions of Section 24 of the Act of 2013. The intendment of Act 2013 is not to revive stale and dead claims and in the concluded case when rights have been finally lost. If there is delay and laches or claim is otherwise barred, it is not revived Under Section 24(2) of the 2013 Act. The provision does not operate to revive legally barred claims.The provision of Section 24 does not invalidate courts judgments/orders in which right have been finally lost or due to inaction is barred. Law does not permit examination of barred or totally fraudulent claims. The provisions of the law cannot be permitted to be defrauded or misused. Section 24(2) of the 2013 Act cannot be invoked in such cases. The High Court has rightly declined to entertain the writ petitions filed by the Petitioners. It is not conceivable how the Petitioners could file such a petition in a laconic manner relating to the prime locality at New Delhi that too for hundreds of acres with the delay of more than 100 years.23. The prayers that have been made in writ petition are not only misconceived, there is an attempt to stop the ongoing construction activity. It has also been mentioned that Government offices etc. have come up and the Government has leased property to private parties also but still, the prayer has been made to stop the construction activity. It passes comprehension how such relief could ever be asked for. No authority had ever been approached by the Petitioners or by their ancestors. As such the petition is aimed at the total misuse of the process of law. Even for a moment, such a petition could not have been received for consideration.24. We have seen in a large number of cases that the acquisition had attained finality, compensation had been tendered but not received and development had also taken place. Petitions are being filed in the courts under the provisions of Section 24(2) of the 2013 Act that they have not been paid any compensation. In fact, if there is any such grievance, they themselves are responsible for not collecting the compensation that was offered and tendered to them. The provision of Section 24 is not intended to apply and extend help in such cases. We are not at all inclined to entertain the instant petition.

### 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: dismissed by this Court, and acquisition has attained finality, possession was taken, the award passed. Notice had been issued Under Section 12(2) of the Act tendering the awarded amount but it has not been collected by the claimants/land owners deliberately or they had refused to collect it and are not ready and willing to accept it and, thereafter, it has been deposited in the name and account of the owners in the treasury which is also deposited as per the State Governments instructions issued time to time relating to how Government money is to be dealt with. The act of failure to deposit money Under Section 31 after possession is taken only imposes liability to pay higher interest Under Section 34. The acquisition would not lapse under the Act. 19. In our opinion, the cases in which there is deliberate action of the owners for not collecting the compensation and they do not want to receive it, Section 24(2) of the 2013 Act does not come to their rescue as provisions are to help those persons who are deprived of compensation but not for those who deliberately had not received it and litigated for decades for quashing of proceedings avoiding to receive compensation by willful act. The failure to deposit in court Under Section 31(1) in such cases would attract only interest as envisaged Under Section 34 of the Act and the provisions of Section 24 cannot be so invoked in such cases. 20. In the instant case, the claim has been made not only belatedly, but neither the Petitioners nor their previous three generations had ever approached any of the authorities in writing for claiming compensation. No representation had ever been filed with any authority, none has been annexed and there is no averment made in the petition that any such representation had ever been filed. The claim appears not only stale and dead but extremely clouded. This we are mentioning as additional reasons, as such claims not only suffer from delay and laches but courts are not supposed to entertain such claims. Besides such claims become doubtful, cannot be received for consideration being barred due to delay and laches. 21. The High Court has rightly observed that such claims cannot be permitted to be raised in the court, and cannot be adjudicated as they are barred. The High Court has rightly observed that such claims cannot be a subject matter of inquiry after the lapse of a reasonable period of time and beneficial provisions of Section 24 of the 2013 Act are not available to such incumbents. In our opinion, Section 24 cannot revive those claims that are dead and stale. 22. The High Court has observed that Raisina is a part of the Lutyens zone of Delhi. It is prime of New Delhi and Government offices etc. are located. The Petitioners asked the High Court to infer and conclude that in the absence of some indication of the record being made available by them that their ancestors have not ever received any compensation. How the Petitioners came to know that their ancestors had not received compensation has not been disclosed in the petition. The High Court has rightly declined to entertain such claims. The protective umbrella of Section 24 is not available to barred claims. If such claims are entertained Under Section 24, it would be very-very difficult to distinguish with the frivolous claim that may be made even after tampering the records etc. or due to non-availability of such record after so much lapse of time. Once right had been lost due to delay and laches or otherwise, it cannot be revived under provisions of Section 24 of the Act of 2013. The intendment of Act 2013 is not to revive stale and dead claims and in the concluded case when rights have been finally lost. If there is delay and laches or claim is otherwise barred, it is not revived Under Section 24(2) of the 2013 Act. The provision does not operate to revive legally barred claims. The provision of Section 24 does not invalidate courts judgments/orders in which right have been finally lost or due to inaction is barred. Law does not permit examination of barred or totally fraudulent claims. The provisions of the law cannot be permitted to be defrauded or misused. Section 24(2) of the 2013 Act cannot be invoked in such cases. The High Court has rightly declined to entertain the writ petitions filed by the Petitioners. It is not conceivable how the Petitioners could file such a petition in a laconic manner relating to the prime locality at New Delhi that too for hundreds of acres with the delay of more than 100 years. 23. The prayers that have been made in writ petition are not only misconceived, there is an attempt to stop the ongoing construction activity. It has also been mentioned that Government offices etc. have come up and the Government has leased property to private parties also but still, the prayer has been made to stop the construction activity. It passes comprehension how such relief could ever be asked for. No authority had ever been approached by the Petitioners or by their ancestors. As such the petition is aimed at the total misuse of the process of law. Even for a moment, such a petition could not have been received for consideration. 24. We have seen in a large number of cases that the acquisition had attained finality, compensation had been tendered but not received and development had also taken place. Petitions are being filed in the courts under the provisions of Section 24(2) of the 2013 Act that they have not been paid any compensation. In fact, if there is any such grievance, they themselves are responsible for not collecting the compensation that was offered and tendered to them. The provision of Section 24 is not intended to apply and extend help in such cases. We are not at all inclined to entertain the instant petition. ### Response: 0

Central Board Of Direct Taxes And Others A Vs. Aditya V. Birla

the Act. We find nothing in Clause 31 to suggest a restricted meaning as canvassed by Shri Ahuja. The relevant portion of Clause 31 reads as follows: "31. Tax relief in respect of remuneration received from foreign employees by Indian technicians, etc. - At present, Indian technicians, etc., who work for a short period during a financial year with a foreign government or a foreign enterprise are liable to Indian tax if they remain "resident in India" for tax purposes in that year, on the whole of the remunerations received by them from the foreign employer, without any allowance in respect of expenditure incurred by them out of such remuneration for meeting higher living costs and other essential expenditure in foreign countries. To relieve this hardship, the Bill seeks to make a provision in the Income Tax Act for allowing a deduction in the computation of the taxable income, of 50 per cent of the remuneration received by them from a foreign government or a foreign enterprise or any association or body established outside India." 11. We find nothing to warrant a restricted construction as canvassed by Mr. Ahuja. We were also referred to the speech of the Honble Minister introducing the Bill before the Parliament, where the Honble Minister, inter alia stated as follows: "There are at present certain income tax exemption limits applying to salaried assessees relating to house rent allowance and leave travel concessions. These are being liberalised. Indian technicians employed aboard are also proposed to be given some tax relief." 12. Shri Ahuja contended that it was only to encourage salaried employees who were going abroad and the cost of living was so high abroad to encourage them to get an exemption from tax on the salary earned abroad working as a technician that this provision was introduced. But this does not indicate that any limitation was intended to be confined only to the salaried employee and not extended any technician or consultant employed abroad for the period stipulated in the section. We find that there is not warrant in the section to restrict the expression "remuneration" received from a foreign employer only to the salary received by an employee. In our opinion, employment as a technician for the purpose indicated by Shri Palkhiwala could also be an object of the Act and in such a case the fee received by consultant or technician would also come within the purview of the second concerned. In Aiyar : The Lexicon 1940 edn., at page 387 it has been stated that an employer is one who employs, one who engages or keeps men in service, one who uses or enjoys the service of other persons for pay or salary. The words employer or employee are used not in any technical sense. 13. In Chintaman Rao v. State of M.P. ((1958) SCR 1340 : AIR 1958 SC 388 ) at page 1346 of report, it was observed that the concept of employment involved three ingredients : (1) employer (2) employee and (3) the contract of employment. The employee is one who works for other for hire. The employer is one who employs the services of other persons. In the context of this Act, therefore, the expression employee will include a consultant or a technician employed by the foreign company because he would be working for other for hire. It is true that the respondent may serve more than one masters. A man may in certain circumstances serve two masters; very often he does serve many. The expression "to employ" has been considered in Ellis v. Joseph Ellis & Co. ((1905) 1 KB 324) and does not mean generally to find actual employment; it rather means to retain and pay a person whether employed or not but if employed then to be employed in the work only in respect of which contract is made. "Medical advisers may be employed at a salary to be ready in case of illness; members of theatrical establishments in case their labour should be needed; household servants in performance of their duty when their masters wish; in these and other similar cases the requirement of actual service is distinct from the employment by the party employing." In an agreement to "retain and employ", "employ" means only to retain in the service and is mere tautology. See in this connection, Strouds Judicial Dictionary, 4th Edition, Vol. 2 at page 893. The expression, however, must depend upon the context of the particular provision in which the expression appears. It was held in England that an engineer appointed by a local authority to supervise the execution of works, but not subject to the local authoritys supervision, is nevertheless an employee within the meaning of Section 40(1) of the Local Government Superannuation Act, 1937, in Morren v. Swinton and Pendlebury B.C. ((1965) 1 WLR 576 : (1965) 2 All ER 349) In Chambers 20th Century Dictionary "employ" has been indicated to mean to occupy the time or attention of. "Employment" means an act of employing. In the Concise Oxford Dictionary "employee" means a person employed for wages. "Employ" means use of services of person. It follows, therefore, that it comprehends wholetime servant or part-time engagee. It is significant that Section 80-RRA of the Act uses the expression "remuneration" and not salary to be entitled to deductionIn the aforesaid view of the matter we see no warrant to restrict the meaning of the expression "remuneration" to only salary received by an employee abroad. The literal meaning is clear, we need not bother any more for the intention or the purpose. The intention, in our opinion, is writ large. In principle also we are unable to find any rationale or the reason for the distinction sought to be made on behalf of the revenue. 14. In the aforesaid view of the matter, we are of the opinion that the High Court was right in dismissing the appeal and we find no reason to interfere with the order of High Court. 15.

0[ds]10. An analysis of Section 80-RRA reveals that in order to be entitled to deductions at the rate enumerated in the section by the respondent, the sum must be (i) remuneration (ii) received by him in foreign currency (iii) from any employer (being a foreign employer or an Indian concern) for any service rendered by him outside India. Furthermore, the terms and conditions of his service outside India must be approved by the Central Government. Further in the case of the respondent the deduction of the section would not be allowed in respect of the remuneration if such services related to any period after the expiry of the 36 months. The respondent was not employed beyond a period of 36 months. Indisputably, the sum concerned in this appeal, being fee, was remuneration in the sense being amount paid in lieu of services rendered. The sum in question was received in foreign currency. There is no dispute as to that. The only question is whether the sum was received from any employer. The other requirement is that the sum should be received for the services rendered outside India. There is no dispute as to that. The only question that requires consideration in the background of indisputable facts in this case is whether the sum received by the respondent was from an employee. In other words, whether Thai Company was the employer of the respondent. On behalf of the revenue it was submitted by Mr. Ahuja that it was only as a counterpart of Section 10(6)(vi-a) and that the section should be so considered properly. Mr. Palkhiwala appearing for the respondent pointed out the object of Section 80-RRA of the Act was manifest to encourage, firstly earning of foreign exchange by India, secondly, bringing that currency by Indian nationals from abroad to India and thirdly, to improve the status of the Indians abroad and increasing the market of Indian technician. It appears to us to be plausible object in the present socio-economic context. We find that the amplitude of the expressions "employee and "employer" covers the cases of consultant or technician. We find in the scheme of the section nothing to warrant any exception as contended for by the revenue. If was read the section with the object of the section in view as suggested by Mr. Palkhiwala then there is no warrant to restrict the meaning in the manner canvassed by the revenue before ds. Mr. Ahuja, however, drew our attention to the objects appearing in Clause 31 of the Finance Bill, 1975 which later on became the Act. We find nothing in Clause 31 to suggest a restricted meaning as canvassed by Shri Ahuja.Shri Ahuja contended that it was only to encourage salaried employees who were going abroad and the cost of living was so high abroad to encourage them to get an exemption from tax on the salary earned abroad working as a technician that this provision was introduced. But this does not indicate that any limitation was intended to be confined only to the salaried employee and not extended any technician or consultant employed abroad for the period stipulated in the section. We find that there is not warrant in the section to restrict the expression "remuneration" received from a foreign employer only to the salary received by an employee. In our opinion, employment as a technician for the purpose indicated by Shri Palkhiwala could also be an object of the Act and in such a case the fee received by consultant or technician would also come within the purview of the second concerned. In Aiyar : The Lexicon 1940 edn., at page 387 it has been stated that an employer is one who employs, one who engages or keeps men in service, one who uses or enjoys the service of other persons for pay or salary. The words employer or employee are used not in any technicalis significant that Section 80-RRA of the Act uses the expression "remuneration" and not salary to be entitled to deductionIn the aforesaid view of the matter we see no warrant to restrict the meaning of the expression "remuneration" to only salary received by an employee abroad. The literal meaning is clear, we need not bother any more for the intention or the purpose. The intention, in our opinion, is writ large. In principle also we are unable to find any rationale or the reason for the distinction sought to be made on behalf of theIn the aforesaid view of the matter, we are of the opinion that the High Court was right in dismissing the appeal and we find no reason to interfere with the order of High Court.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: the Act. We find nothing in Clause 31 to suggest a restricted meaning as canvassed by Shri Ahuja. The relevant portion of Clause 31 reads as follows: "31. Tax relief in respect of remuneration received from foreign employees by Indian technicians, etc. - At present, Indian technicians, etc., who work for a short period during a financial year with a foreign government or a foreign enterprise are liable to Indian tax if they remain "resident in India" for tax purposes in that year, on the whole of the remunerations received by them from the foreign employer, without any allowance in respect of expenditure incurred by them out of such remuneration for meeting higher living costs and other essential expenditure in foreign countries. To relieve this hardship, the Bill seeks to make a provision in the Income Tax Act for allowing a deduction in the computation of the taxable income, of 50 per cent of the remuneration received by them from a foreign government or a foreign enterprise or any association or body established outside India." 11. We find nothing to warrant a restricted construction as canvassed by Mr. Ahuja. We were also referred to the speech of the Honble Minister introducing the Bill before the Parliament, where the Honble Minister, inter alia stated as follows: "There are at present certain income tax exemption limits applying to salaried assessees relating to house rent allowance and leave travel concessions. These are being liberalised. Indian technicians employed aboard are also proposed to be given some tax relief." 12. Shri Ahuja contended that it was only to encourage salaried employees who were going abroad and the cost of living was so high abroad to encourage them to get an exemption from tax on the salary earned abroad working as a technician that this provision was introduced. But this does not indicate that any limitation was intended to be confined only to the salaried employee and not extended any technician or consultant employed abroad for the period stipulated in the section. We find that there is not warrant in the section to restrict the expression "remuneration" received from a foreign employer only to the salary received by an employee. In our opinion, employment as a technician for the purpose indicated by Shri Palkhiwala could also be an object of the Act and in such a case the fee received by consultant or technician would also come within the purview of the second concerned. In Aiyar : The Lexicon 1940 edn., at page 387 it has been stated that an employer is one who employs, one who engages or keeps men in service, one who uses or enjoys the service of other persons for pay or salary. The words employer or employee are used not in any technical sense. 13. In Chintaman Rao v. State of M.P. ((1958) SCR 1340 : AIR 1958 SC 388 ) at page 1346 of report, it was observed that the concept of employment involved three ingredients : (1) employer (2) employee and (3) the contract of employment. The employee is one who works for other for hire. The employer is one who employs the services of other persons. In the context of this Act, therefore, the expression employee will include a consultant or a technician employed by the foreign company because he would be working for other for hire. It is true that the respondent may serve more than one masters. A man may in certain circumstances serve two masters; very often he does serve many. The expression "to employ" has been considered in Ellis v. Joseph Ellis & Co. ((1905) 1 KB 324) and does not mean generally to find actual employment; it rather means to retain and pay a person whether employed or not but if employed then to be employed in the work only in respect of which contract is made. "Medical advisers may be employed at a salary to be ready in case of illness; members of theatrical establishments in case their labour should be needed; household servants in performance of their duty when their masters wish; in these and other similar cases the requirement of actual service is distinct from the employment by the party employing." In an agreement to "retain and employ", "employ" means only to retain in the service and is mere tautology. See in this connection, Strouds Judicial Dictionary, 4th Edition, Vol. 2 at page 893. The expression, however, must depend upon the context of the particular provision in which the expression appears. It was held in England that an engineer appointed by a local authority to supervise the execution of works, but not subject to the local authoritys supervision, is nevertheless an employee within the meaning of Section 40(1) of the Local Government Superannuation Act, 1937, in Morren v. Swinton and Pendlebury B.C. ((1965) 1 WLR 576 : (1965) 2 All ER 349) In Chambers 20th Century Dictionary "employ" has been indicated to mean to occupy the time or attention of. "Employment" means an act of employing. In the Concise Oxford Dictionary "employee" means a person employed for wages. "Employ" means use of services of person. It follows, therefore, that it comprehends wholetime servant or part-time engagee. It is significant that Section 80-RRA of the Act uses the expression "remuneration" and not salary to be entitled to deductionIn the aforesaid view of the matter we see no warrant to restrict the meaning of the expression "remuneration" to only salary received by an employee abroad. The literal meaning is clear, we need not bother any more for the intention or the purpose. The intention, in our opinion, is writ large. In principle also we are unable to find any rationale or the reason for the distinction sought to be made on behalf of the revenue. 14. In the aforesaid view of the matter, we are of the opinion that the High Court was right in dismissing the appeal and we find no reason to interfere with the order of High Court. 15. ### Response: 0

State of Maharashtra Vs. Bhalchandra Khanderao Joshi and Another

working of the invalid list, and amounted to violation of article 16 of the Constitution. This is why the State of Maharashtra, Smt. K.A. Parekh and Smt. R.S. Dossal have come up in appeal by special leave to this Court.The controversy therefore is whether the State government passed. the aforesaid resolution dated February 27, 1963, to amalgamate the lists of Lecturers in History and Political Science, as stated in the Directors aforesaid letter dated August 20, 1963, or whether there was no such resolution and the Directors order was unauthorised ? The High Court has taken the view that as no attempt was made to produce the resolution dated February 27, 1963 in Nanekars case, there was no such, resolution at all. On that basis, it held that the Director had no authority to take the decision to amalgamate the lists. 7. We find however that in taking that view the High Court lost sight of the intrinsic evidence which was available on the record, to prove beyond doubt that Government had passed the aforesaid resolution dated February 27, 1963, to amalgamate the two lists. We have extracted the Government resolution dated January 15, 1970 and the underlined portions thereof clearly show that the Government itself reiterated the fact that a decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in History and Lecturers in Political Science into one common list of Lecturers in History and Political Science. It has further been state d in that resolution of the Government that accordingly, a combined seniority list was prepared with reference to the date of appointment of the officer concerned in the M.E.S. Class 11, irrespective of the fact as to whether the Lecturers are qualified in both the subjects of History and Political Science or in any one of the two. The reason for taking that decision to amalgamate the two lists has also been stated in the resolution. Then it has been stated that in :view of the difficulties experienced with regard to the implementation of the decision of Government referred to above, the Government on reconsideration had decided to revert to the old practice of having separate seniority lists of Lecturers of History and Political Science. It has also been stated that the decision had been taken for reverting to the decision to split up the combined seniority list which formed the basis of promotion of some of the teachers. It would thus appear that the resolution dated January 15, 1970, repeatedly refers to the earlier decision of the State Government of 1963 for amalgamating the lists, states the reason for the amalgamation, makes a mention of the difficulties experienced in the implementation of that decision, and gives the reasons for the governments decision to, revert to the old practice of having separate seniority lists. As it was not challenged in the High Court that the resolution dated January 15, 1970 was genuine, the High Court should have taken notice of its intrinsic evidentiary value for the purpose of proving the earlier resolution dated February 27, 1963. If it had done so, it would have inevitably reached the conclusion that the Government had really decided in 1963 to amalgamate the lists, and that the Director had rightly conveyed that decision in his order dated August 20, 1963, and it was therefore an authorised communication. In fact the Director specific ally stated in that order that the decision of Government to amalgamate the two lists had to be. brought to the notice of all concerned. The combined seniority list was therefore fully authorised, and there was nothing wrong if it formed the basis of the promotions which were given to the persons mentioned above. We have no doubt that the High Court did not read the relevant document carefully and that was why it arrived at a contrary conclusion.The resolution dated January 15, 1970 shows that as the Government had decided to split up the seniority list for the department of History and Political Science, it thought it desirable to give an .option to those Lecturers/Pro- fessors of the old Bombay State, who were recruited as Lecturers/Professors of History, but were recognised by the University as teachers of Political Science, to elect for either of the two departments. No exception can be taken to that decision to give the option to the Lecturers/Professors concerned for, in the absence of such an option, they would have been deprived of the opportunity of expressing their desire to serve in the one or the other department on the basis of their experience and prospects of promotion. It was to be appreciated that the decision to amalgamate the seniority lists of the two departments was not taken in consultation with them, and if they were required to teach History, or Political Science, and were promoted as Professors of History or Political Science, on the basis of a combined seniority list for which. they themselves were not responsible, it would have been unfair if they had been required to serve in another department by a unilateral executive fiat. 8. It may be mentioned that Mr. Phadke tried to argue that even if the resolution dated January 15, 1970 were held to be valid, it would not be permissible for the teachers concerned to take advantage or it because they did not fulfill its. requirements. We do not find any merit in this argument. As has been stated, those teachers were promoted to posts of Professors on the basis of the combined list, they were , recognised as such teacher s by the University, and were recruited initially as Lecturers in History. They were therefore entitled to take the benefit of the resolution dated January 15, 1970, as there is nothing wrong with it. We have no doubt that in the facts and circumstances mentioned above, there could be no justification for the view taken by the High Court that there was violation of article 16 of the Constitution.

1[ds]The High Court has taken the view that as no attempt was made to produce the resolution dated February 27, 1963 in Nanekars case, there was no such, resolution at all. On that basis, it held that the Director had no authority to take the decision to amalgamate the listsWe find however that in taking that view the High Court lost sight of the intrinsic evidence which was available on the record, to prove beyond doubt that Government had passed the aforesaid resolution dated February 27, 1963, to amalgamate the two lists. We have extracted the Government resolution dated January 15, 1970 and the underlined portions thereof clearly show that the Government itself reiterated the fact that a decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in History and Lecturers in Political Science into one common list of Lecturers in History and Political Science. It has further been state d in that resolution of the Government that accordingly, a combined seniority list was prepared with reference to the date of appointment of the officer concerned in the M.E.S. Class 11, irrespective of the fact as to whether the Lecturers are qualified in both the subjects of History and Political Science or in any one of the two. The reason for taking that decision to amalgamate the two lists has also been stated in the resolution. Then it has been stated that in :view of the difficulties experienced with regard to the implementation of the decision of Government referred to above,the Government on reconsideration had decided to revert to the old practice of having separate seniority lists of Lecturers of History and Political Science. It has also been stated that the decision had been taken for reverting to the decision to split up the combined seniority list which formed the basis of promotion of some of the teachers. It would thus appear that the resolution dated January 15, 1970, repeatedly refers to the earlier decision of the State Government of 1963 for amalgamating the lists, states the reason for the amalgamation, makes a mention of the difficulties experienced in the implementation of that decision, and gives the reasons for the governments decision to, revert to the old practice of having separate seniority lists. As it was not challenged in the High Court that the resolution dated January 15, 1970 was genuine, the High Court should have taken notice of its intrinsic evidentiary value for the purpose of proving the earlier resolution dated February 27, 1963. If it had done so, it would have inevitably reached the conclusion that the Government had really decided in 1963 to amalgamate the lists, and that the Director had rightly conveyed that decision in his order dated August 20, 1963, and it was therefore an authorised communication. In fact the Director specific ally stated in that order that the decision of Government to amalgamate the two lists had to be. brought to the notice of all concerned. The combined seniority list was therefore fully authorised, and there was nothing wrong if it formed the basis of the promotions which were given to the persons mentioned above. We have no doubt that the High Court did not read the relevant document carefully and that was why it arrived at a contrary conclusion.The resolution dated January 15, 1970 shows that as the Government had decided to split up the seniority list for the department of History and Political Science, it thought it desirable to give an .option to those Lecturers/Pro- fessors of the old Bombay State, who were recruited as Lecturers/Professors of History, but were recognised by the University as teachers of Political Science, to elect for either of the two departments. No exception can be taken to that decision to give the option to the Lecturers/Professors concerned for, in the absence of such an option, they would have been deprived of the opportunity of expressing their desire to serve in the one or the other department on the basis of their experience and prospects of promotion. It was to be appreciated that the decision to amalgamate the seniority lists of the two departments was not taken in consultation with them, and if they were required to teach History, or Political Science, and were promoted as Professors of History or Political Science, on the basis of a combined seniority list for which. they themselves were not responsible, it would have been unfair if they had been required to serve in another department by a unilateral executive fiatAs has been stated, those teachers were promoted to posts of Professors on the basis of the combined list, they were , recognised as such teacher s by the University, and were recruited initially as Lecturers in History. They were therefore entitled to take the benefit of the resolution dated January 15, 1970, as there is nothing wrong with it. We have no doubt that in the facts and circumstances mentioned above, there could be no justification for the view taken by the High Court that there was violation of article 16 of the Constitution.

### 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: working of the invalid list, and amounted to violation of article 16 of the Constitution. This is why the State of Maharashtra, Smt. K.A. Parekh and Smt. R.S. Dossal have come up in appeal by special leave to this Court.The controversy therefore is whether the State government passed. the aforesaid resolution dated February 27, 1963, to amalgamate the lists of Lecturers in History and Political Science, as stated in the Directors aforesaid letter dated August 20, 1963, or whether there was no such resolution and the Directors order was unauthorised ? The High Court has taken the view that as no attempt was made to produce the resolution dated February 27, 1963 in Nanekars case, there was no such, resolution at all. On that basis, it held that the Director had no authority to take the decision to amalgamate the lists. 7. We find however that in taking that view the High Court lost sight of the intrinsic evidence which was available on the record, to prove beyond doubt that Government had passed the aforesaid resolution dated February 27, 1963, to amalgamate the two lists. We have extracted the Government resolution dated January 15, 1970 and the underlined portions thereof clearly show that the Government itself reiterated the fact that a decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in History and Lecturers in Political Science into one common list of Lecturers in History and Political Science. It has further been state d in that resolution of the Government that accordingly, a combined seniority list was prepared with reference to the date of appointment of the officer concerned in the M.E.S. Class 11, irrespective of the fact as to whether the Lecturers are qualified in both the subjects of History and Political Science or in any one of the two. The reason for taking that decision to amalgamate the two lists has also been stated in the resolution. Then it has been stated that in :view of the difficulties experienced with regard to the implementation of the decision of Government referred to above, the Government on reconsideration had decided to revert to the old practice of having separate seniority lists of Lecturers of History and Political Science. It has also been stated that the decision had been taken for reverting to the decision to split up the combined seniority list which formed the basis of promotion of some of the teachers. It would thus appear that the resolution dated January 15, 1970, repeatedly refers to the earlier decision of the State Government of 1963 for amalgamating the lists, states the reason for the amalgamation, makes a mention of the difficulties experienced in the implementation of that decision, and gives the reasons for the governments decision to, revert to the old practice of having separate seniority lists. As it was not challenged in the High Court that the resolution dated January 15, 1970 was genuine, the High Court should have taken notice of its intrinsic evidentiary value for the purpose of proving the earlier resolution dated February 27, 1963. If it had done so, it would have inevitably reached the conclusion that the Government had really decided in 1963 to amalgamate the lists, and that the Director had rightly conveyed that decision in his order dated August 20, 1963, and it was therefore an authorised communication. In fact the Director specific ally stated in that order that the decision of Government to amalgamate the two lists had to be. brought to the notice of all concerned. The combined seniority list was therefore fully authorised, and there was nothing wrong if it formed the basis of the promotions which were given to the persons mentioned above. We have no doubt that the High Court did not read the relevant document carefully and that was why it arrived at a contrary conclusion.The resolution dated January 15, 1970 shows that as the Government had decided to split up the seniority list for the department of History and Political Science, it thought it desirable to give an .option to those Lecturers/Pro- fessors of the old Bombay State, who were recruited as Lecturers/Professors of History, but were recognised by the University as teachers of Political Science, to elect for either of the two departments. No exception can be taken to that decision to give the option to the Lecturers/Professors concerned for, in the absence of such an option, they would have been deprived of the opportunity of expressing their desire to serve in the one or the other department on the basis of their experience and prospects of promotion. It was to be appreciated that the decision to amalgamate the seniority lists of the two departments was not taken in consultation with them, and if they were required to teach History, or Political Science, and were promoted as Professors of History or Political Science, on the basis of a combined seniority list for which. they themselves were not responsible, it would have been unfair if they had been required to serve in another department by a unilateral executive fiat. 8. It may be mentioned that Mr. Phadke tried to argue that even if the resolution dated January 15, 1970 were held to be valid, it would not be permissible for the teachers concerned to take advantage or it because they did not fulfill its. requirements. We do not find any merit in this argument. As has been stated, those teachers were promoted to posts of Professors on the basis of the combined list, they were , recognised as such teacher s by the University, and were recruited initially as Lecturers in History. They were therefore entitled to take the benefit of the resolution dated January 15, 1970, as there is nothing wrong with it. We have no doubt that in the facts and circumstances mentioned above, there could be no justification for the view taken by the High Court that there was violation of article 16 of the Constitution. ### Response: 1

Cox & Kings (Agents) Ltd Vs. Their Workmen And Ors

workmen and there was no agreement between the parties in regard thereto. Our conclusion, therefore, is that the bar of Section 19 of the Industrial Disputes Act does not operate with regard to the matters covered by items (1) and (3) of the present reference and the argument put forward by the appellant on this aspect of the case must be rejected."29. Although the facts of the case before us are different, yet the principle enunciated therein, viz., that the bar of Section 19 operates only with regard to a determination made on merits, is fully applicable. By any reckoning, the decision dated September 27, 1972 of the Labour Court by its very nature did not impose any continuing obligation on the parties bound by it. This was an additional reason for holding that the recent reference was no barred by anything contained in sub-section (3) or other provision of Section 19.30. We have gone through the single Bench decision of the Allahabad High Court in Workmen of Swadeshi Cotton Mills Co. Ltd.s case (supra). That decision is to the effect that the finding recorded by the Labour Court that the matter referred to it for adjudication was not an industrial dispute as defined in the Act, it itself a determination of a question relating to an industrial dispute, and would fall within the definition of term award under the Act. In our opinion, this is not a correct statement of the Law on the point.31. The next submission of Mr. Pai, is, that since the demand for reinstatement was no duly made by the workmen before October 25, 1972, the Court below were not justified in awarding to the workmen, compensation for back wages from 1966 onwards.32. On the other hand, Mr. Ramamurthi maintains that such a claim was presumably agitated by the workmen in proceedings before the Conciliation Officer, in 1966. While conceding that technically, no formal notice for reinstatement was served by the workmen on the Management before October 25, 1972, counsel submits that the Management were aware of the workmens claim to reinstatement, since 1966, and in these circumstances, the Management should not be allowed to take shelter behind this technical flaw, and deny just compensation to them from the date of wrongful dismissal.33. We have carefully considered the contentions advanced on both sides. After taking into consideration all the circumstances of the case, we are opinion that the Labour Court was no justified in awarding compensation to the workmen for wages relating to the period prior to October 25, 1972, i.e., the date on which the demand notices for reinstatement were served on the Management. To this extent, we would accept the contention of the appellants.34. The third contention of the appellants is that the onus of proving that they had not obtained alternative employment elsewhere after the termination of their services, was on the workmen, and they had failed to discharge that onus.35. We find no merit in this contention.36. The question of onus oft loses its importance when both the parties adduce whatever evidence they had to produce. In the instant case, both the parties led their evidence and closed their respective cases. Subsequently, at a late stage, the Management made an application for adducing additional evidence. The Labour Court declined that application. The High Court found - and we think rightly, no good reason to interfere with the discretion of the Labour Court. It may be remembered further, that this appeal arises out of a petition under Article 226 of the Constitution, and in the exercise of that special jurisdiction, the High Court does not reopen a finding of fact based on legal evidence. The finding of the Labour Court to the effect, that after their dismissal, Ram Sarup Gupta was unable to find any alternative employment elsewhere, while Rawat was able to find any intermittent employment elsewhere, were based on evidence produced by the parties. The High Court was therefore right in not interfering with those finding of fact.36. Lastly it was urged by Mr. Pai, that the employers had lost confidence in the employee Rawat and therefore, compensation, without reinstatement, would have been adequate relief. It is submitted that the business of the employers is that of Travel Agent and such a sensitive business can be successfully carried on only with the aid of employees whose fidelity and integrity is beyond doubt. It is stressed that the employees of the appellants have to handle daily lot of cash received from their clients in the discharge of their duties. It is pointed out that the charge against H. S. Rawat was one of misappropriation of such funds and this charge was established in the domestics enquiry. The Labour Court, proceeds the argument, did not displace that finding of the domestic tribunal, but ignored it on the ground that the charge was stale and had been condoned. In short, the argument is that the employers had lost confidence in this employee who would no longer be entrusted to perform sensitive jobs on behalf of the Management, without detriment to its business.38. We re unable to accept this contention.39. Firstly, this point was no argued before the High Court. Secondly, the observations of the Labour Court, read as a whole show that, in its opinion, the charge of misappropriation of funds had not been proved against H. S. Rawat. This is what the Labour Court said on the point :"I am therefore of opinion that the charge had been condoned and they could not be reviewed again and the act receiving the charge on account of his Union activities was an act of unfair labour practice on the part of the management and amounted to victimisation. Even the charges in the charge-sheet Ex. M/5 have not been established before me, that workman withdrew the funds from the company on false pretences for revenue stamps and misappropriated the same."40. Thus there is no factual basis for this belated contention, and we repel the same.

0[ds]21. There is no dispute that the order on the earlier Reference was made by the Labour Court on September 27, 1972, while the second Reference with the same terms of Reference to that Court was made by the Government on May 2, 1973, i.e., within one years of the earlier order. It is common ground that the period of one year for which an award normally remains in operation under sub-section (3) was not reduced or curtailed by the Government under Section 19 or under any other provision of the Act. It is further admitted between the parties that no notice was given by any party of its intention to terminate the Order, dated September 27,is maintained that a question, whether or not an industrial dispute exists, will itself be a question relating to an industrial dispute within the intendment of the second part of the definition.25. The contention appears to be attractive but also stand a closea conjoint reading of Clause (b) of Section 2 and sub-sections (1) and (4) of Section 10, it is clear that in order to be an award within the second part of the definition, a determination must be - (i) an adjudication of a question or point relating to an industrial dispute, which has been specified in the Order of Reference or is incidental thereto; and (ii) such adjudication must be one on merits.27. Now let us test the Labour Courts order, dated September 27, 1972 in the light of the above enunciation. That order did not satisfy any of the criteria indicated above. It did not determine the question or point specified in the Government Order of Reference. Nor was it an adjudication on merits of any industrial dispute or a question relatingonly question determined by the Order, dated September 27, 1972, was about the existence of a preliminary fact, viz., existence of an industrial which in the Labour Courts opinion was a since qua non for the validity of the Reference and the exercise of further jurisdiction by the Court. Rightly or wrongly, the Court found that this preliminary jurisdictional fact did not exist, because "no industrial dispute had come into existence in accordance with law", and, in consequence, the Reference was invalid and the Court was not competent to enter upon the Reference and determine the matter referred to it. With this finding, the Court refused to go into the merit of the question referred to it. There was no determination on merits of an industrial dispute or a question relating thereto. We are therefore of opinion that the Labour Courts determination dated September 27, 1972, did not possess the attributes essential to bring it within the definition of an award. The mere fact that this order was published by the Government under Section 17(1) of the Act did not confer that status on it.Although the facts of the case before us are different, yet the principle enunciated therein, viz., that the bar of Section 19 operates only with regard to a determination made on merits, is fully applicable. By any reckoning, the decision dated September 27, 1972 of the Labour Court by its very nature did not impose any continuing obligation on the parties bound by it. This was an additional reason for holding that the recent reference was no barred by anything contained in sub-section (3) or other provision of Section 19.30. We have gone through the single Bench decision of the Allahabad High Court in Workmen of Swadeshi Cotton Mills Co. Ltd.s case (supra). That decision is to the effect that the finding recorded by the Labour Court that the matter referred to it for adjudication was not an industrial dispute as defined in the Act, it itself a determination of a question relating to an industrial dispute, and would fall within the definition of term award under the Act. In our opinion, this is not a correct statement of the Law on the point.We have carefully considered the contentions advanced on both sides. After taking into consideration all the circumstances of the case, we are opinion that the Labour Court was no justified in awarding compensation to the workmen for wages relating to the period prior to October 25, 1972, i.e., the date on which the demand notices for reinstatement were served on the Management. To this extent, we would accept the contention of the appellants.We find no merit in this contention.36. The question of onus oft loses its importance when both the parties adduce whatever evidence they had to produce. In the instant case, both the parties led their evidence and closed their respective cases. Subsequently, at a late stage, the Management made an application for adducing additional evidence. The Labour Court declined that application. The High Court found - and we think rightly, no good reason to interfere with the discretion of the Labour Court. It may be remembered further, that this appeal arises out of a petition under Article 226 of the Constitution, and in the exercise of that special jurisdiction, the High Court does not reopen a finding of fact based on legal evidence. The finding of the Labour Court to the effect, that after their dismissal, Ram Sarup Gupta was unable to find any alternative employment elsewhere, while Rawat was able to find any intermittent employment elsewhere, were based on evidence produced by the parties. The High Court was therefore right in not interfering with those finding of fact.We re unable to accept this contention.39. Firstly, this point was no argued before the High Court. Secondly, the observations of the Labour Court, read as a whole show that, in its opinion, the charge of misappropriation of funds had not been proved against H. S.is what the Labour Court said on the pointam therefore of opinion that the charge had been condoned and they could not be reviewed again and the act receiving the charge on account of his Union activities was an act of unfair labour practice on the part of the management and amounted to victimisation. Even the charges in the charge-sheet Ex. M/5 have not been established before me, that workman withdrew the funds from the company on false pretences for revenue stamps and misappropriated the same.Thus there is no factual basis for this belated contention, and we repel the same.

### 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: workmen and there was no agreement between the parties in regard thereto. Our conclusion, therefore, is that the bar of Section 19 of the Industrial Disputes Act does not operate with regard to the matters covered by items (1) and (3) of the present reference and the argument put forward by the appellant on this aspect of the case must be rejected."29. Although the facts of the case before us are different, yet the principle enunciated therein, viz., that the bar of Section 19 operates only with regard to a determination made on merits, is fully applicable. By any reckoning, the decision dated September 27, 1972 of the Labour Court by its very nature did not impose any continuing obligation on the parties bound by it. This was an additional reason for holding that the recent reference was no barred by anything contained in sub-section (3) or other provision of Section 19.30. We have gone through the single Bench decision of the Allahabad High Court in Workmen of Swadeshi Cotton Mills Co. Ltd.s case (supra). That decision is to the effect that the finding recorded by the Labour Court that the matter referred to it for adjudication was not an industrial dispute as defined in the Act, it itself a determination of a question relating to an industrial dispute, and would fall within the definition of term award under the Act. In our opinion, this is not a correct statement of the Law on the point.31. The next submission of Mr. Pai, is, that since the demand for reinstatement was no duly made by the workmen before October 25, 1972, the Court below were not justified in awarding to the workmen, compensation for back wages from 1966 onwards.32. On the other hand, Mr. Ramamurthi maintains that such a claim was presumably agitated by the workmen in proceedings before the Conciliation Officer, in 1966. While conceding that technically, no formal notice for reinstatement was served by the workmen on the Management before October 25, 1972, counsel submits that the Management were aware of the workmens claim to reinstatement, since 1966, and in these circumstances, the Management should not be allowed to take shelter behind this technical flaw, and deny just compensation to them from the date of wrongful dismissal.33. We have carefully considered the contentions advanced on both sides. After taking into consideration all the circumstances of the case, we are opinion that the Labour Court was no justified in awarding compensation to the workmen for wages relating to the period prior to October 25, 1972, i.e., the date on which the demand notices for reinstatement were served on the Management. To this extent, we would accept the contention of the appellants.34. The third contention of the appellants is that the onus of proving that they had not obtained alternative employment elsewhere after the termination of their services, was on the workmen, and they had failed to discharge that onus.35. We find no merit in this contention.36. The question of onus oft loses its importance when both the parties adduce whatever evidence they had to produce. In the instant case, both the parties led their evidence and closed their respective cases. Subsequently, at a late stage, the Management made an application for adducing additional evidence. The Labour Court declined that application. The High Court found - and we think rightly, no good reason to interfere with the discretion of the Labour Court. It may be remembered further, that this appeal arises out of a petition under Article 226 of the Constitution, and in the exercise of that special jurisdiction, the High Court does not reopen a finding of fact based on legal evidence. The finding of the Labour Court to the effect, that after their dismissal, Ram Sarup Gupta was unable to find any alternative employment elsewhere, while Rawat was able to find any intermittent employment elsewhere, were based on evidence produced by the parties. The High Court was therefore right in not interfering with those finding of fact.36. Lastly it was urged by Mr. Pai, that the employers had lost confidence in the employee Rawat and therefore, compensation, without reinstatement, would have been adequate relief. It is submitted that the business of the employers is that of Travel Agent and such a sensitive business can be successfully carried on only with the aid of employees whose fidelity and integrity is beyond doubt. It is stressed that the employees of the appellants have to handle daily lot of cash received from their clients in the discharge of their duties. It is pointed out that the charge against H. S. Rawat was one of misappropriation of such funds and this charge was established in the domestics enquiry. The Labour Court, proceeds the argument, did not displace that finding of the domestic tribunal, but ignored it on the ground that the charge was stale and had been condoned. In short, the argument is that the employers had lost confidence in this employee who would no longer be entrusted to perform sensitive jobs on behalf of the Management, without detriment to its business.38. We re unable to accept this contention.39. Firstly, this point was no argued before the High Court. Secondly, the observations of the Labour Court, read as a whole show that, in its opinion, the charge of misappropriation of funds had not been proved against H. S. Rawat. This is what the Labour Court said on the point :"I am therefore of opinion that the charge had been condoned and they could not be reviewed again and the act receiving the charge on account of his Union activities was an act of unfair labour practice on the part of the management and amounted to victimisation. Even the charges in the charge-sheet Ex. M/5 have not been established before me, that workman withdrew the funds from the company on false pretences for revenue stamps and misappropriated the same."40. Thus there is no factual basis for this belated contention, and we repel the same. ### Response: 0

M/S SESHASAYEE STEELS P. LTD Vs. ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE VI(2), CHENNAI

contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. 13. In order that the provisions of Section 53A of the T.P. Act be attracted, first and foremost, the transferee must, in part performance of the contract, have taken possession of the property or any part thereof. Secondly, the transferee must have performed or be willing to perform his part of the agreement. It is only if these two important conditions, among others, are satisfied that the provisions of Section 53A can be said to be attracted on the facts of a given case. 14. On a reading of the agreement to sell dated 15.05.1998, what is clear is that both the parties are entitled to specific performance. (See Clause 14) 15. Clause 16 is crucial, and the expression used in Clause 16 is that the party of the first part hereby gives permission to the party of the second part to start construction on the land. 16. Clause 16 would, therefore, lead to the position that a license was given to another upon the land for the purpose of developing the land into flats and selling the same. Such license cannot be said to be possession within the meaning of Section 53A, which is a legal concept, and which denotes control over the land and not actual physical occupation of the land. This being the case, Section 53A of the T.P. Act cannot possibly be attracted to the facts of this case for this reason alone. 17. We now turn to the argument of the learned senior counsel appearing on behalf of the assessee based on Section 2(47)(vi) of the Income Tax Act. 18. This Court in Commissioner of Income Tax v. Balbir Singh Maini (2018) 12 SCC 354 adverted to the provisions of this sub-Section in the following terms: 24. However, the High Court has held that Section 2(47)(vi) will not apply for the reason that there was no change in membership of the society, as contemplated. We are afraid that we cannot agree with the High Court on this score. Under Section 2(47)(vi), any transaction which has the effect of transferring or enabling the enjoyment of any immovable property would come within its purview. The High Court has not adverted to the expression or in any other manner whatsoever in sub-clause (vi), which would show that it is not necessary that the transaction refers to the membership of a cooperative society. We have, therefore, to see whether the impugned transaction can fall within this provision. 25. The object of Section 2(47)(vi) appears to be to bring within the tax net a de facto transfer of any immovable property. The expression enabling the enjoyment of takes color from the earlier expression transferring, so that it is clear that any transaction which enables the enjoyment of immovable property must be enjoyment as a purported owner thereof. The idea is to bring within the tax net, transactions, where, though title may not be transferred in law, there is, in substance, a transfer of title in fact. 19. Given the test stated in paragraph 25 of the aforesaid judgment, it is clear that the expression enabling the enjoyment of must take colour from the earlier expression transferring, so that it can be stated on the facts of a case, that a de facto transfer of immovable property has, in fact, taken place making it clear that the de facto owners rights stand extinguished. It is clear that as on the date of the agreement to sell, the owners rights were completely intact both as to ownership and to possession even de facto, so that this Section equally, cannot be said to be attracted. 20. Coming to the third argument of the learned senior counsel on behalf of the appellant, what has to be seen is the compromise deed and as to which pigeonhole such deed can possibly be said to fall under Section 2(47) of the Income Tax Act. A perusal of the compromise deed shows that the agreement to sell and the Power of Attorney are confirmed, and a sum of Rs.50 lakhs is reduced from the total consideration of Rs.6.10 crores. Clause 3 of the said compromise deed confirms that the party of the first part, this is the appellant, has received a sum of Rs.4,68,25,644/- out of the agreed sale consideration. Clause 4 records that the balance Rs.1.05 crores towards full and final settlement in respect of the Agreement entered into would then be paid by 7 post-dated cheques. Clause 5 then states that the last two cheques will be presented only upon due receipt of the discharge certificate from one M/s. Pioneer Homes. 21. In this context, it is important to advert to a finding of the ITAT, which was that all the cheques mentioned in the compromise deed have, in fact, been encashed. 22. This being the case, it is clear that the assessees rights in the said immovable property were extinguished on the receipt of the last cheque, as also that the compromise deed could be stated to be a transaction which had the effect of transferring the immovable property in question. 23. The pigeonhole, therefore, that would support the orders under appeal would be Section 2(47)(ii) and (vi) of the I.T. Act in the facts of the present case.

0[ds]14. On a reading of the agreement to sell dated 15.05.1998, what is clear is that both the parties are entitled to specific performance.16. Clause 16 would, therefore, lead to the position that a license was given to another upon the land for the purpose of developing the land into flats and selling the same. Such license cannot be said to be possession within the meaning of Section 53A, which is a legal concept, and which denotes control over the land and not actual physical occupation of the land. This being the case, Section 53A of the T.P. Act cannot possibly be attracted to the facts of this case for this reason alone19. Given the test stated in paragraph 25 of the aforesaid judgment, it is clear that the expression enabling the enjoyment of must take colour from the earlier expression transferring, so that it can be stated on the facts of a case, that a de facto transfer of immovable property has, in fact, taken place making it clear that the de facto owners rights stand extinguished. It is clear that as on the date of the agreement to sell, the owners rights were completely intact both as to ownership and to possession even de facto, so that this Section equally, cannot be said to be attracted20. Coming to the third argument of the learned senior counsel on behalf of the appellant, what has to be seen is the compromise deed and as to which pigeonhole such deed can possibly be said to fall under Section 2(47) of the Income Tax Act. A perusal of the compromise deed shows that the agreement to sell and the Power of Attorney are confirmed, and a sum of Rs.50 lakhs is reduced from the total consideration of Rs.6.10 crores. Clause 3 of the said compromise deed confirms that the party of the first part, this is the appellant, has received a sum of Rs.4,68,25,644/- out of the agreed sale consideration. Clause 4 records that the balance Rs.1.05 crores towards full and final settlement in respect of the Agreement entered into would then be paid by 7 post-dated cheques. Clause 5 then states that the last two cheques will be presented only upon due receipt of the discharge certificate from one M/s. Pioneer Homes21. In this context, it is important to advert to a finding of the ITAT, which was that all the cheques mentioned in the compromise deed have, in fact, been encashed22. This being the case, it is clear that the assessees rights in the said immovable property were extinguished on the receipt of the last cheque, as also that the compromise deed could be stated to be a transaction which had the effect of transferring the immovable property in question23. The pigeonhole, therefore, that would support the orders under appeal would be Section 2(47)(ii) and (vi) of the I.T. Act in the facts of the present case.

### 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: contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. 13. In order that the provisions of Section 53A of the T.P. Act be attracted, first and foremost, the transferee must, in part performance of the contract, have taken possession of the property or any part thereof. Secondly, the transferee must have performed or be willing to perform his part of the agreement. It is only if these two important conditions, among others, are satisfied that the provisions of Section 53A can be said to be attracted on the facts of a given case. 14. On a reading of the agreement to sell dated 15.05.1998, what is clear is that both the parties are entitled to specific performance. (See Clause 14) 15. Clause 16 is crucial, and the expression used in Clause 16 is that the party of the first part hereby gives permission to the party of the second part to start construction on the land. 16. Clause 16 would, therefore, lead to the position that a license was given to another upon the land for the purpose of developing the land into flats and selling the same. Such license cannot be said to be possession within the meaning of Section 53A, which is a legal concept, and which denotes control over the land and not actual physical occupation of the land. This being the case, Section 53A of the T.P. Act cannot possibly be attracted to the facts of this case for this reason alone. 17. We now turn to the argument of the learned senior counsel appearing on behalf of the assessee based on Section 2(47)(vi) of the Income Tax Act. 18. This Court in Commissioner of Income Tax v. Balbir Singh Maini (2018) 12 SCC 354 adverted to the provisions of this sub-Section in the following terms: 24. However, the High Court has held that Section 2(47)(vi) will not apply for the reason that there was no change in membership of the society, as contemplated. We are afraid that we cannot agree with the High Court on this score. Under Section 2(47)(vi), any transaction which has the effect of transferring or enabling the enjoyment of any immovable property would come within its purview. The High Court has not adverted to the expression or in any other manner whatsoever in sub-clause (vi), which would show that it is not necessary that the transaction refers to the membership of a cooperative society. We have, therefore, to see whether the impugned transaction can fall within this provision. 25. The object of Section 2(47)(vi) appears to be to bring within the tax net a de facto transfer of any immovable property. The expression enabling the enjoyment of takes color from the earlier expression transferring, so that it is clear that any transaction which enables the enjoyment of immovable property must be enjoyment as a purported owner thereof. The idea is to bring within the tax net, transactions, where, though title may not be transferred in law, there is, in substance, a transfer of title in fact. 19. Given the test stated in paragraph 25 of the aforesaid judgment, it is clear that the expression enabling the enjoyment of must take colour from the earlier expression transferring, so that it can be stated on the facts of a case, that a de facto transfer of immovable property has, in fact, taken place making it clear that the de facto owners rights stand extinguished. It is clear that as on the date of the agreement to sell, the owners rights were completely intact both as to ownership and to possession even de facto, so that this Section equally, cannot be said to be attracted. 20. Coming to the third argument of the learned senior counsel on behalf of the appellant, what has to be seen is the compromise deed and as to which pigeonhole such deed can possibly be said to fall under Section 2(47) of the Income Tax Act. A perusal of the compromise deed shows that the agreement to sell and the Power of Attorney are confirmed, and a sum of Rs.50 lakhs is reduced from the total consideration of Rs.6.10 crores. Clause 3 of the said compromise deed confirms that the party of the first part, this is the appellant, has received a sum of Rs.4,68,25,644/- out of the agreed sale consideration. Clause 4 records that the balance Rs.1.05 crores towards full and final settlement in respect of the Agreement entered into would then be paid by 7 post-dated cheques. Clause 5 then states that the last two cheques will be presented only upon due receipt of the discharge certificate from one M/s. Pioneer Homes. 21. In this context, it is important to advert to a finding of the ITAT, which was that all the cheques mentioned in the compromise deed have, in fact, been encashed. 22. This being the case, it is clear that the assessees rights in the said immovable property were extinguished on the receipt of the last cheque, as also that the compromise deed could be stated to be a transaction which had the effect of transferring the immovable property in question. 23. The pigeonhole, therefore, that would support the orders under appeal would be Section 2(47)(ii) and (vi) of the I.T. Act in the facts of the present case. ### Response: 0

V. B. Raju And Ors Vs. State Of Gujarat & Ors

1947.Regulation 561 was amended by the President under the provisions of Article 309. The amendment came into force on 12 June, 1956. As a result of the amendment Indian members of the Indian Civil Service who retired or sought retirement were entitled under Regulation 561 to an annuity of Rs.13,333.33 payable in Indian in rupees only. The annuity of Rs.13,333.33 was equivalent to 1000 converted into rupees at the rate of 1sh-6d to a rupee.The amendment Regulation 561 converted the payment of annuity of 1000 at the rate of 1sh-6d to a rupee, that is to say, at the rate which was fixed by the Secretary of State in 1928 and which continued up to 15 August, 1947.The amendment in 1956 delinked the pension to a currency which no longer continued to be legal tender in Indian Treasuries. This was necessary because of the changed conditions flowing from the transfer of power.4. The amendment of Regulation 561 does not infringe the provisions of Article 14 and 16 of the Constitution. The amendment makes no distinction in the matter of payment of pension to the members of the Indian Civil Service retiring after 12 June, 1956 irrespective of the fact that they are citizens of India or are of non-Indian domicile if they down their pension in India.5. On or from 12 June, 1956 all members of the Indian Civil Service having their residence in India on retirement are entitled to their authority only in India and in rupees alone.6. Under Regulation 561 and petitioners and the appellant in C.A. 147 of 1971, 2467 and 2468 of 1972 were entitled to an annuity of Rs.13,333.33 subject to reduction for Family Pension and Death-cum-Retirement Gratuity.7. Under Section 7 of the 1972 Act the petitioners and the appellants are entitled to an annuity of Rs.13,333.33 subject to reduction of Family Pension and Death-cum-Retirement Gratuity. The 1972 Act came into force on 1 October, 1972. Section 8 of the Act provides that no former Secretary of State Service Officer shall be entitled, or be deemed ever to have been entitled, to claim (a) pension in sterling; or (b) that his pension shall be paid outside India; or (c) where his pension was expressed in sterling or a fixed sterling minimum was applicable in respect of the pension payable to him, that his pension shall be computed in the rupee equivalent of the amount fixed in sterling at a rate of exchange exceeding the rate of Rs.13,333.33 to 1000 sterling.8. A member of the Indian Civil Services who is also a member of the Indian Administrative Service is entitled to an annuity of Rs.13,333.33 which was equivalent to ?1000 converted into rupees at the rate if Ish-6d to a rupee.9. Article 312A which was introduced by the Constitution (Twenty-eighth Amendment) Act confers power on Parliament to make a law to vary or revoke, whether prospectively or retrospectively, the conditions of service as respect pension of persons who, having been appointed by the Secretary of State or Secretary of State in Council to a Civil Service of the Crown in India before the commencement of this Constitution, retired or otherwise ceased to be in service at any time before the commencement of the Constitution (Twenty-eighth Amendment) Act, 1972.10. The petitioners and the appellant in C.A.147 of 1971 and C.A. 2467 and 2468 of 1972 all joined the Indian Civil Service after 1921. The pension to which these members of the Indian Civil Service were entitled on 15 August, 1947 has not been altered.11. Shri Raman one of the petitioners appearing in person submitted that the salary, annuity and pension of the members of the Indian Civil Service were, to borrow his words, basic structure which would not be amended by and Act of Parliament. This is only to be stated to be rejected.12. The petitioner Raman in particular and others who supported him contended that officers who belonged to the Indian Civil Service were entitled to payment of annuity by converting ?1000 into Indian currency at the official rate of exchange. The contentions of the petitioners are that it is their basic right to be paid annuity in Indian currency at the official rate of exchange of rupee to a pound. The petitioners submit that these officers are denied such basic rights and it is unconstitutional to deny them these rights. The alleged basic rights are not only absurd but also insupportable in law. When Indian Civil Servants were in the employment of the British Government, they had under Regulations 561 and 983 certain privileges. Even in 1928 the Secretary of State regulated the rate of exchange. On the date of transfer on 15 August, 1947 the officers belonging to the Indian Civil Service were entitled to annuity of Rs.10,666-10-8 which was subject to a minimum of 1000. Officers who received annuity at equivalent Indian currency were paid at the rate of exchange of 1sh-6d to a rupee.13. After the 1956 amendment of Regulation 561 the Indian members of the Indian Civil Service who retired or sought retirement were entitled to an annuity of Rs.13,333.33 which is payable in India in rupees only. The members of the former Indian Civil Service and of the Indian Administrative Service are under the 1972 Act entitled to an annuity of Rs.13,333.33 which is equivalent to 1000 converted into rupees at the rate of 1sh-6d to a rupee. There has been no change. All that has happened as a result of the 1972 Act is to lay down that annuitants are not entitled to claim payment of pension in sterling or outside India or by converting 1000 at the rate of exchange exceeding the rate of exchange of Rupees thirteen and one third to the pound sterling. The annuitants reside in India. Indian currency is the legal tender. There is no constitutional vice in fixing the rate of exchange and the mode of payment by legislation. The petitioners and the appellants have neither right nor merit in the alleged claims.14.

0[ds]Article 312A which was introduced by the Constitution (Twenty-eighth Amendment) Act confers power on Parliament to make a law to vary or revoke, whether prospectively or retrospectively, the conditions of service as respect pension of persons who, having been appointed by the Secretary of State or Secretary of State in Council to a Civil Service of the Crown in India before the commencement of this Constitution, retired or otherwise ceased to be in service at any time before the commencement of the Constitution (Twenty-eighth Amendment) Act, 1972.The petitioner Raman in particular and others who supported him contended that officers who belonged to the Indian Civil Service were entitled to payment of annuity by converting ?1000 into Indian currency at the official rate of exchange. The contentions of the petitioners are that it is their basic right to be paid annuity in Indian currency at the official rate of exchange of rupee to a pound. The petitioners submit that these officers are denied such basic rights and it is unconstitutional to deny them these rights. The alleged basic rights are not only absurd but also insupportable in law. When Indian Civil Servants were in the employment of the British Government, they had under Regulations 561 and 983 certain privileges. Even in 1928 the Secretary of State regulated the rate of exchange. On the date of transfer on 15 August, 1947 the officers belonging to the Indian Civil Service were entitled to annuity of Rs.10,666-10-8 which was subject to a minimum of 1000. Officers who received annuity at equivalent Indian currency were paid at the rate of exchange of 1sh-6d to a rupee.After the 1956 amendment of Regulation 561 the Indian members of the Indian Civil Service who retired or sought retirement were entitled to an annuity of Rs.13,333.33 which is payable in India in rupees only. The members of the former Indian Civil Service and of the Indian Administrative Service are under the 1972 Act entitled to an annuity of Rs.13,333.33 which is equivalent to 1000 converted into rupees at the rate of 1sh-6d to a rupee. There has been no change. All that has happened as a result of the 1972 Act is to lay down that annuitants are not entitled to claim payment of pension in sterling or outside India or by converting 1000 at the rate of exchange exceeding the rate of exchange of Rupees thirteen and one third to the pound sterling. The annuitants reside in India. Indian currency is the legal tender. There is no constitutional vice in fixing the rate of exchange and the mode of payment by legislation. The petitioners and the appellants have neither right nor merit in the alleged claims.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: 1947.Regulation 561 was amended by the President under the provisions of Article 309. The amendment came into force on 12 June, 1956. As a result of the amendment Indian members of the Indian Civil Service who retired or sought retirement were entitled under Regulation 561 to an annuity of Rs.13,333.33 payable in Indian in rupees only. The annuity of Rs.13,333.33 was equivalent to 1000 converted into rupees at the rate of 1sh-6d to a rupee.The amendment Regulation 561 converted the payment of annuity of 1000 at the rate of 1sh-6d to a rupee, that is to say, at the rate which was fixed by the Secretary of State in 1928 and which continued up to 15 August, 1947.The amendment in 1956 delinked the pension to a currency which no longer continued to be legal tender in Indian Treasuries. This was necessary because of the changed conditions flowing from the transfer of power.4. The amendment of Regulation 561 does not infringe the provisions of Article 14 and 16 of the Constitution. The amendment makes no distinction in the matter of payment of pension to the members of the Indian Civil Service retiring after 12 June, 1956 irrespective of the fact that they are citizens of India or are of non-Indian domicile if they down their pension in India.5. On or from 12 June, 1956 all members of the Indian Civil Service having their residence in India on retirement are entitled to their authority only in India and in rupees alone.6. Under Regulation 561 and petitioners and the appellant in C.A. 147 of 1971, 2467 and 2468 of 1972 were entitled to an annuity of Rs.13,333.33 subject to reduction for Family Pension and Death-cum-Retirement Gratuity.7. Under Section 7 of the 1972 Act the petitioners and the appellants are entitled to an annuity of Rs.13,333.33 subject to reduction of Family Pension and Death-cum-Retirement Gratuity. The 1972 Act came into force on 1 October, 1972. Section 8 of the Act provides that no former Secretary of State Service Officer shall be entitled, or be deemed ever to have been entitled, to claim (a) pension in sterling; or (b) that his pension shall be paid outside India; or (c) where his pension was expressed in sterling or a fixed sterling minimum was applicable in respect of the pension payable to him, that his pension shall be computed in the rupee equivalent of the amount fixed in sterling at a rate of exchange exceeding the rate of Rs.13,333.33 to 1000 sterling.8. A member of the Indian Civil Services who is also a member of the Indian Administrative Service is entitled to an annuity of Rs.13,333.33 which was equivalent to ?1000 converted into rupees at the rate if Ish-6d to a rupee.9. Article 312A which was introduced by the Constitution (Twenty-eighth Amendment) Act confers power on Parliament to make a law to vary or revoke, whether prospectively or retrospectively, the conditions of service as respect pension of persons who, having been appointed by the Secretary of State or Secretary of State in Council to a Civil Service of the Crown in India before the commencement of this Constitution, retired or otherwise ceased to be in service at any time before the commencement of the Constitution (Twenty-eighth Amendment) Act, 1972.10. The petitioners and the appellant in C.A.147 of 1971 and C.A. 2467 and 2468 of 1972 all joined the Indian Civil Service after 1921. The pension to which these members of the Indian Civil Service were entitled on 15 August, 1947 has not been altered.11. Shri Raman one of the petitioners appearing in person submitted that the salary, annuity and pension of the members of the Indian Civil Service were, to borrow his words, basic structure which would not be amended by and Act of Parliament. This is only to be stated to be rejected.12. The petitioner Raman in particular and others who supported him contended that officers who belonged to the Indian Civil Service were entitled to payment of annuity by converting ?1000 into Indian currency at the official rate of exchange. The contentions of the petitioners are that it is their basic right to be paid annuity in Indian currency at the official rate of exchange of rupee to a pound. The petitioners submit that these officers are denied such basic rights and it is unconstitutional to deny them these rights. The alleged basic rights are not only absurd but also insupportable in law. When Indian Civil Servants were in the employment of the British Government, they had under Regulations 561 and 983 certain privileges. Even in 1928 the Secretary of State regulated the rate of exchange. On the date of transfer on 15 August, 1947 the officers belonging to the Indian Civil Service were entitled to annuity of Rs.10,666-10-8 which was subject to a minimum of 1000. Officers who received annuity at equivalent Indian currency were paid at the rate of exchange of 1sh-6d to a rupee.13. After the 1956 amendment of Regulation 561 the Indian members of the Indian Civil Service who retired or sought retirement were entitled to an annuity of Rs.13,333.33 which is payable in India in rupees only. The members of the former Indian Civil Service and of the Indian Administrative Service are under the 1972 Act entitled to an annuity of Rs.13,333.33 which is equivalent to 1000 converted into rupees at the rate of 1sh-6d to a rupee. There has been no change. All that has happened as a result of the 1972 Act is to lay down that annuitants are not entitled to claim payment of pension in sterling or outside India or by converting 1000 at the rate of exchange exceeding the rate of exchange of Rupees thirteen and one third to the pound sterling. The annuitants reside in India. Indian currency is the legal tender. There is no constitutional vice in fixing the rate of exchange and the mode of payment by legislation. The petitioners and the appellants have neither right nor merit in the alleged claims.14. ### Response: 0

Union of India (UOI) and Ors Vs. Valluri Basavaiah Chowdhary and Ors

of construction of Article 252(1). The question of adoption of a law made by the Parliament in respect of any of the matters in State List arises under the second part of Article 252(1) and is dependent upon the desirability expressed by the legislatures of two or more States empowering the Parliament to make such a law under the first part thereof. We are inclined to think that some meaning must be given to the words any Act so passed. The power of adoption, is, therefore, related to a law made under Article 252(1) and cannot be exercised in respect of laws made by the Parliament under Article 250(1) while a Proclamation of Emergency is in force. Furthermore, such a law, in terms of Article 250(2), ceases to have effect on the expiration of a period of six months after the Proclamation has ceased to operate. 48. The learned Attorney-General, however, rightly contends, in the alternative, that the Parliament being invested with the power by resolutions passed under the first part of Article 252(1) by as many as eleven States, to legislate on the subject i.e to make a law for the imposition of a ceiling on immovable property, it had the competence to so structure the Act that it was capable of being adopted by other States under the second part of Article 252(1). A fortiori, the specification of the State of Rajasthan by which the Act may be adopted, as well as the categorisation of the urban agglomerations therein to which it may apply, had to be there. 49. It is, however, strenuously urged on behalf of the petitioner that a law made by the Parliament under Article 252(1) cannot be so designated as to extend to the States which had not sponsored a resolution. Emphasis is laid upon the words in such States, and it is said that they mean in those States i.e the sponsoring States. In support of the contention, our attention was particularly drawn to the word accordingly and it is urged that the law passed by the Parliament under Article 252(1) must be restricted in its operation to those States i.e to those States in which the legislature passed a resolution. We are afraid the contention cannot be accepted. 50. In our considered judgment, the Parliament having been invested with powers to legislate on a State subject, by resolutions passed by legislatures of two or more States under Article 252(1), has plenary powers to make suitable legislation. It follows, as a necessary corollary, that the Act passed by the Parliament under Article 252(1) can be so structured as to be capable of being effectively adopted by the other States. Article 252(1) undoubtedly enables the Parliament to make a uniform law. The Act so passed would automatically apply to the States the legislature of which have passed a resolution in terms of Article 252(1), and at the same time it must be capable of being adopted by other States which have not sponsored a resolution i.e the non-sponsoring States. The second part of Article 252(1) will be meaningful only if it were so interpreted; otherwise, it would be rendered wholly redundant. To illustrate, if the part of the Schedule relating to the State of Rajasthan is treated as non est, the Schedule which forms part of the Act cannot be amended except under Article 252(2) i.e in the like manner. We fail to appreciate how two or more States can now pass a resolution for extention of the Act to the State of Rajasthan. 51. In a law relating to the imposition of ceiling on vacant land in urban agglomerations throughout the territory of India, it was competent for the Parliament under Entry 18, List II of Seventh Schedule not only to have the States specified in the Schedule to the Act where the law will extend, but also include the categorisation of urban agglomerations in respect of the whole of the territory of India. The Act would automatically apply from the date of its application to those States which had passed the resolution in terms of the first part of Article 252(1), and would extend to the adopting States from the date of the resolutions passed by the legislatures of such States. The Parliament had, therefore, in fact and in law, competence to legislate on the subject of the imposition of ceiling on urban immovable property, and the Schedule to the Act cannot, therefore, be struck down in relation to the State of Rajasthan. 52. It is conceded by learned counsel for the petitioner that if the Act had been enacted without the Schedule, with an appropriate definition of an urban agglomeration in Section 2(n), in general terms, making the law applicable to cities and towns having, for example, a population of one lakh and above, five lakhs and above, etc., it would have been within the legislative competence of the Parliament. If that be so, then it is inexplicable why simply because some of the areas in some of the States have been specified, although their State legislatures had not sponsored any resolution, the Schedule, insofar as those States are concerned should be regarded as non est. If it is competent for the Parliament to make a general law under Article 252(1) to facilitate its adoption by other States, it must logically follow that the Parliament could also pass the Act in its present form. 53. We are of the opinion that the Act with the Schedule annexed became applicable in those States where the legislatures passed resolutions expressing the desirability for the Parliament to make a law for the imposition of ceiling on urban immovable property, and it lay dormant insofar as the other States were concerned. It became applicable to those other States from the date that their Houses of Legislatures adopted it. In that view, we must hold that the impugned Act is not beyond the legislative competence of the Parliament insofar as the State of Rajasthan is concerned.

1[ds]10. We are afraid, the construction placed by the High Court on Article 252(1) cannot be sustained.It appears in Part XI headed Relations between the Union and the States and occurs in Chapter I relating to Legislative Relations i.e dealing with the distribution of legislative powers between the Union and the States. It would appear that our Constitution though broadly federal in structure, is modelled on the British Parliamentary System, with unitary features. Thus, even apart from emergencies, the Parliament may assume legislative power (though temporarily) over any subject under Article 249, by a two-third vote that such legislation is necessary in the national interest. While the Proclamation of Emergency under Article 352 is in operation the Parliament is also competent under Article 250 to legislate with respect to any such matter in the State list. Article 251 makes it clear that the legislative power of the State legislatures to make any law which they have power under the Constitution to make, is restricted by the provisions of articles 249 and 250; but, if any law made by the legislature of a State is repugnant to any provision of a law enacted by the Parliament, the law made by Parliament shall prevail and the law made by the State legislature to the extent of repugnancy shall not be valid so long as the law enacted by Parliament is effective and operative.12. Reverting back to Article 252, it will be noticed that this article corresponds to Section 103 of the Government of India Act, 1935. It empowers the Parliament to legislate for two or more States on any of the matters with respect to which it has no power to make laws except as provided in Articles 249 and 250.13. The effect of the passing of a resolution under clause (1) of Article 252 is that Parliament, which has no power to legislate with respect to the matter which is the subject of the resolution, becomes entitled to legislate with respect to it. On the other hand, the State legislature ceases to have a power to make a law relating to that matter. While Article 263 provides for the creation of an Inter-State Council for effecting administrative co-ordination between the States in matters of common interest, Article 252 provides the legislative means to attain that object. After the enactment of a law by the Parliament under this article, it is open to any of the other States to adopt the Act for such State by merely passing a resolution to that effect in its legislature, but the operation of the Act in such State cannot be from a date earlier than the date of the resolution passed in the legislature adopting the Act. The question as to whether or not there is surrender by the State legislature of its power to legislate, and if so, to what extent, must depend on the language of the resolution passed under Article 252(1): R.M.D.C (Mysore) Private, Ltd. v. State Of Mysore AIR 1962 SC 594 . Clause (2) specifically lays down that after Parliament makes an Act in pursuance of the resolution, such Act cannot be amended or repealed by the State legislature even though the matter to which the Act of Parliament relates was included in List II of the Seventh Schedule of the Constitution.The contentions of the learned Attorney-General must, in our opinion, be accepted.15. In the State Of Bihar v. Maharajadhiraja Sir Kameshwar Singh Of Darbhanga. AIR 1952 SC 252 in repelling the contention that the words law and legislature were deliberately used in Article 31(3) as a special safeguard, which, in order to ensure that no hasty or unjust expropriatory legislation is passed by a State legislature, requires for such legislation the assent of both the Governor and the President, Patanjali Sastri, C.J, observed:It is true that the legislature of a State includes the Governor and that a bill passed by such legislature cannot become a law until it receives the Governors assent.... The term legislature is not always used in the Constitution as including the Governor, though Article 168 makes him a component part of the State legislature. In Article 173, for instance, the word is clearly used in the sense of the Houses of Legislature and excludes the Governor. There are other provisions also where the word is used in contexts which exclude the Governor. Similarly the word law is sometimes loosely used in referring to a bill. Article 31(4), for instance, speaks of a bill being reserved for the Presidents assent after it has been passed by the legislature of a State and of the law so assented to. If the expression passed by the legislature were taken to mean passed by the Houses of the Legislature and assented to by the Governor... then, it would cease to be a bill and could no longer be reserved as such. Nor is the phrase law so assented to strictly accurate, as the previous portion of the clause makes it clear that what is reserved for the Presidents assent and what he assents to is a bill and not a law.This decision really clinches the whole issue.16. Article 252(1) is in two parts. The first part merely recites about the desirability of the Parliament legislating on a subject in respect of which it has no power to make laws except as provided in Articles 249 and 250. This power to legislate is vested in the Parliament only if two or more State legislatures think it desirable to have a law enacted by Parliament on such matter in List II i.e with respect to which the Parliament has no power to make laws for the States, and all the Houses of the Legislatures of those States express such desire by passing a resolution to that effect. The legislatures of those States should not only think it desirable and expedient, but actually pass resolution that the Parliament should regulate the matter in those States, in order to invest the Parliament with the power to legislate on such subject. The passing of such resolution by the State legislatures of two or more States, is a condition precedent for investing the Parliament with the power to make a law on that topic or matter, and then only it shall be lawful for the Parliament to make a law for regulating that matter accordingly. The law so made or enacted by the Parliament under Article 252(1) will apply only to those States whose legislatures have passed resolutions under that provision and also to those States which have afterwards adopted the same by resolution passed by the legislatures of such States in that behalf. It would appear that the first part of the article is only introductory, the second is the operative part. The words to that effect in the first part, therefore, refer to the desirability for effecting administrative control by the Parliament over two or more States in respect of matters of common interest. Thus, the word legislature in the first part of Article 252(1), in the context in which it appears, cannot mean the three component parts of the State legislature contemplated by Article 168, but only the House or Houses of Legislature, as the case may be, i.e excluding the Governor.17. There is a clear distinction between an Act of legislature, a legislative act and a resolution of the House. The High Court has completely overlooked this distinction.18. The Governor is a constitutional head of the State Executive, and has, therefore, to act on the advice of a Council of Ministers under Article 163. The Governor is, however, made a component part of the State legislature under Article 164, just as the President is a part of Parliament. The Governor has a right of addressing and sending messages to under Articles 175 and 176, and for summoning, proroguing and dissolving under Article 174, the State legislature, just as the President has in relation to Parliament. He also has a similar power of causing to be laid before the State legislature the annual financial statement under Article 202(1), and of making demands for grants and recommending Money Bills under Article 207(1). In all these matters the Governor as the constitutional head of the State is bound by the advice of the Council of Ministers.19. The Governor is, however, made a component part of the legislature of a State under Article 168, because every Bill passed by the State legislature has to be reserved for the assent under Article 200. Under that article, the Governor can adopt one of the three courses, namely (i) he may give his assent to it, in which case the Bill becomes a law; or (ii) he may, except in the case of a Money Bill, withhold his assent therefrom, in which case the Bill falls through unless the procedure indicated in the first proviso is followed i.e return the Bill to the Assembly for reconsideration with a message, or (iii) he may (subject to Ministerial advice) reserve the Bill for the consideration of the President, in which case the President will adopt the procedure laid down in Article 201. The first proviso to Article 200 deals with a situation where the Governor is bound to give his assent when the Bill is reconsidered and passed by the Assembly. The second proviso to that article makes the reservation for consideration of the President obligatory where the Bill would, if it becomes law, derogate from the powers of the High Court. Thus, it is clear that a Bill passed by a State Assembly may become law if the Governor gives his assent to it, or if, having been reserved by the Governor for the consideration of the President, it is assented to by the President. The Governor is, therefore, one of the three components of a State legislature. The only other legislative function of the Governor is that of promulgating Ordinances under Article 213(1) when both the Houses of the State legislature or the Legislative Assembly, where the legislature is unicameral, are not in session. The Ordinance-making power of the Governor is similar to that of the President, and it is co-extensive with the legislative powers of the State legislature.20. From an enumeration of the powers, functions and duties of the Governor, it is quite clear that he cannot, in the very nature of things, participate in the proceedings of the House or Houses of Legislature, while the State legislature passes a resolution in terms of Article 252(1), not being a member of the legislature under Article 158.21. The function assigned to the Governor under Article 176(1) of addressing the House or Houses of Legislature, at the commencement of the first session of each year, is strictly not a legislative function but the object of this address is to acquaint the members of the Houses with the policies and programmes of the Government. It is really a policy statement prepared by the Council of Ministers which the Governor has to read out. Then again, the right of the Legislature under Article 175(2), with respect to a Bill then pending in the legislature or otherwise, normally arises when the Governor withholds his assent to a Bill under Article 200, or when the President, for whose consideration a Bill is reserved for assent, returns the Bill withholding his assent. As already stated, a Bill is something quite different from a resolution of the House and, therefore, there is no question of the Governor sending any message under Article 175(2) with regard to a resolution pending before the House or Houses of the Legislature.22. Similar considerations must also arise with regard to ratification of a Bill passed by the Parliament in exercise of its constituent power of amending the Constitution under Article 368(1).In Jatin Chakravorty v. Sri Justice H.K Bose AIR 1964 Cal 500 D.N Sinha, J., as he then was, rightly negatived challenge to the constitutional validity of the Constitution (Fifteenth Amendment) Act, 1963, which amended Article 217 of the Constitution raising the age of retirement of a Judge of the High Court from 60 to 62 years on the ground that no assent of the Governor in the State of West Bengal was taken, observing:A legislature discharges a variety of functions. The House has to be summoned or prorogued, bills have to be introduced, voted upon and passed, debates take place on important political questions, ministers are interrogated, and so on. The Governor, though a limb of the legislature does not take part in every such action. While the Governor summons the House and may prorogue or dissolve it (Article 174) or address the legislature (Article 175), he does not sit in the House or vote upon any issue. When a Bill has been passed by the House or Houses, Article 200 requires that it shall be presented to the Governor for assent. The assent of the Governor is necessary, only because the Constitution expressly requires it. Whenever the assent of the Governor is necessary or the assent of the President is necessary, it is specifically provided for in the Constitution (see Articles 31-A, 200, 201 and 304). The necessity of such assent cannot be implied, where not specifically provided for.(emphasis supplied)23. Reverting to the constitutional requirement under proviso to Article 368(2) of a ratification by the legislatures of not less than one-half of the States he observed:So far as the State legislatures are concerned, it requires that a resolution should be passed ratifying the amendment. Such a resolution requires voting, and the Governor never votes upon any issue.(emphasis supplied)24. The interpretation placed by D.N Sinha, J. upon the proviso to Article 368(2) in Jatin Chakravorty case is in consonance with the constitutional system. Any other construction would result in an alarming situation as constitutional amendments by the Parliament under Article 368(1), could be held up by the Governor of a State. What is true of a ratification by the State legislatures under proviso to Article 368(2), is equally true of a resolution of the House or Houses of the Legislature under Article 252(1). The Governor, in our view, nowhere comes in the picture at all in these matters.26. The respondents contention in the present appeals is the same as that prevailed in the High Court. The point has already been dealt with by us at length. The contention cannot be accepted because it runs counter to this Courts decision in Kameshwar Singh case. The absence of the words unless the context otherwise requires in Article 168, cannot control the meaning of the term legislature in Article 252(1). It was fairly conceded at the Bar that even without these words, a word or a phrase may have a different meaning, if the context so requires, than the meaning attached to it in the definition clause. The term legislature, in the context in which it appears, can only mean the House or Houses of Legislature, as the case may be.There is a fallacy in the argument. The second part of Section 103 of the Government of India Act is replaced by Article 252(2) of the Constitution which takes away the power of repeal from the State legislature and entrusts it to the Parliament. When his attention was drawn to the fact that clause (2) of Article 252 of the Constitution differs from the provisions of Section 103 of the Government of India Act, 1935, the learned counsel did not pursue the point any further. Under Article 252(2) an amending or repealing Bill must go through the same procedure as prescribed for the original Bill i.e by the process laid down in clause (1) of Article 252. The surrender or abdication of the legislative power of the State legislature places the matter entirely in the hands of the Parliament.28. We are afraid, the contention cannot be accepted. It is not disputed that the subject-matter of Entry 18, List II of the Seventh Schedule i.e land covers land and buildings and would, therefore, necessarily include vacant land. The expression urban immovable property may mean land and buildings, or buildings or land. It would take in lands of every description, i.e agricultural land, urban land or any other kind and it necessarily includes vacant land.31. It is but axiomatic that once the legislatures of two or more States, by a resolution in terms of Article 252(1), abdicate or surrender the area i.e their power of legislation on a State subject, the Parliament is competent to make a law relating to the subject. It would indeed be contrary to the terms of Article 252(1) to read the resolution passed by the State legislature subject to any restriction. The resolution, contemplated under Article 252(1) is not hedged in with conditions. In making such a law, the Parliament was not bound to exhaust the whole field of legislation. It could make a law, like the present Act, with respect to ceiling on vacant land in an urban agglomeration, as a first step towards the eventual imposition of ceiling on immovable property of every other description.32. There is no need to dilate on the question any further in this judgment, as it can be better dealt with separately. It is sufficient for purposes of these appeals to say that when Parliament was invested with the power to legislate on the subject i.e ceiling on immovable property, it was competent for the Parliament to enact the impugned Act i.e a law relating to ceiling on urban land.33. In our opinion, therefore, the High Court was clearly in error in holding that the Urban Land (Ceiling and Regulation) Act, 1976, was not applicable to the State of Andhra Pradesh. In reaching that conclusion, it proceeded on the wrong assumption that legislature for purposes of Article 252(1) means the House or Houses of Legislature, as the case may be, and the Governor. In consequence hereof, it fell into an error in holding that the State legislature of Andhra Pradesh could not, in law, be regarded to have authorised the Parliament to enact the impugned Act, in relation to that State, due to the non-participation of the Governor.35. The High Court has clearly erred in holding that the Urban Land (Ceiling and Regulation) Act, 1976 cannot apply to the urban agglomeration of Warrangal. In reaching that conclusion, it observed that under Section 244(1)(c)(iii) the master plan must designate the land subject to compulsory acquisition under the powers in that behalf conferred by the Act or any other law for the time being in force; otherwise, the master plan prepared for the town cannot be treated to be a master plan as prepared in accordance with law. The view taken by the High Court is wholly unwarranted and proceeds on a misconception of the scheme of the Act.37. It is quite clear that under the scheme of the Act the imposition of a ceiling on vacant land in urban agglomerations does not depend on the existence of a master plan. The definition of urban land, as contained in Section 2(o) of the Act is in two parts, namely, (1) in a case where there is a master plan prepared under the law for the time being in force, any land within the limits of an urban agglomeration and referred to as such in the master plan, is treated to be urban land, and (2) in a case where there is no master plan, or the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality or other local authorities is regarded as such. The existence of a master plan within the meaning of Section 2(h) is, therefore, not a sine qua non for the applicability of the Act to an urban agglomeration. The only difference is that where there is a master plan, the Act extends to all lands situate within the local limits of a municipality or other local authority, and also covers the peripheral area thereof; but where there is no such master plan, its applicability is confined to the municipal limits or the local area as the case may be.39. The word shall in clause (c) of sub-section (1) of Section 244 of the Andhra Pradesh (Telengana Area) District Municipalities Act, 1956 in its context and setting, is directory. A master plan prepared by a municipality may or may not contain a proposal for compulsory acquisition of land, or any descriptive matter or map to illustrate a scheme for development. Mere absence of such proposal for compulsory acquisition or a map or descriptive matter would not be tantamount to there being no master plan. A master plan may include proposals for development of areas required to be covered by Section 244, sub-section (1), clause (c), contiguous and adjacent to the municipal limits of a city or town, but may not designate the land to be compulsorily acquired, the absence of which would not invalidate the scheme. It is because the municipality has always the power under Section 250 of the Act to acquire the land required for implementation of such scheme.40. It appears that the revised master plan prepared for Warangal does, as it should, provide for various development schemes. For aught we know, it also designates the lands subject to compulsory acquisition. Even if it were not so, the master plan prepared under Section 244, sub-section (1), clause (c) did not cease to be a master plan prepared in accordance with the law for the time being in force, within the meaning of Section 2(h) of the Act, in relation to the town of Warangal. The Act is, therefore, clearly applicable to the urban agglomeration of Warangal and it extends not only to all the lands included within the local limits of the Warangal Municipality but also includes the peripheral areas specified i.e one kilometre around such limits.43. When the Bill was introduced in the Lok Sabha on January 28, 1976, it cannot be denied that the State of Rajasthan was not one of the eleven States which had passed a resolution under the first part of Article 252(1),45. The learned Attorney-General is no doubt right in saying that if a Proclamation of Emergency is in operation, under Article 250(1) the power of the Parliament extends to the making of laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List, but the Act so passed will die out with the revocation of the Proclamation of Emergency, by reason of Article 250(2) on the expiration of a period of six months after the Proclamation has ceased to operate, except as respect things done or omitted to be done before the expiration of the said period. That conclusion is inevitable from the words shall cease to have effect appearing in Article 250(2).46. Now, the further difficulty in accepting the learned Attorney Generals contention is that the Parliament never professed to act under Article 250(1).It is amply clear from the third part of the preamble, which reads:AND WHEREAS in pursuance of clause (1) of Article 252 of the Constitution resolutions have been passed by all the Houses of the Legislatures of the State of Andhra Pradesh, Gujarat, Haryana, Himachal Pradesh, Karnataka, Maharashtra, Orissa, Punjab, Tripura, Uttar Pradesh and West Bengal that the matters aforesaid should be regulated in those States by Parliament by law.That the Parliament never intended to take recourse to its powers under Article 250(1), but proceeded to make such a law, being clothed with its powers to legislate on the subject under Article 252(1). The Act was, therefore, a law enacted by the Parliament by virtue of its powers under Article 252(1). The Statement of Objects and Reasons really places the matter beyond all doubt. Its material portion reads:Statement of Objects and Reasons.There has been a demand for imposing a ceiling on urban property also, especially after the imposition of a ceiling on agricultural lands by the State Governments. With the growth of population and increase in urbanization, a need for orderly development of urban areas has also been felt. It is, therefore, considered necessary to take measures for exercising social control over the scarce resource of urban land with a view to ensuring its equitable distribution amongst the various sections of society and also avoiding speculative transactions relating to land in urban agglomerations. With a view to ensuring uniformity in approach Government of India addressed the State Governments in this regard; eleven States have so far passed resolutions under Article 252(1) of the Constitution empowering Parliament to undertake legislation in this behalf. The present proposal is to enact a Parliamentary legislation in pursuance of these resolutions.(emphasis supplied)47. There is also some difficulty in accepting the contention of the learned Attorney-General on a matter of construction of Article 252(1). The question of adoption of a law made by the Parliament in respect of any of the matters in State List arises under the second part of Article 252(1) and is dependent upon the desirability expressed by the legislatures of two or more States empowering the Parliament to make such a law under the first part thereof. We are inclined to think that some meaning must be given to the words any Act so passed. The power of adoption, is, therefore, related to a law made under Article 252(1) and cannot be exercised in respect of laws made by the Parliament under Article 250(1) while a Proclamation of Emergency is in force. Furthermore, such a law, in terms of Article 250(2), ceases to have effect on the expiration of a period of six months after the Proclamation has ceased to operate.A fortiori, the specification of the State of Rajasthan by which the Act may be adopted, as well as the categorisation of the urban agglomerations therein to which it may apply, had to be there.50. In our considered judgment, the Parliament having been invested with powers to legislate on a State subject, by resolutions passed by legislatures of two or more States under Article 252(1), has plenary powers to make suitable legislation. It follows, as a necessary corollary, that the Act passed by the Parliament under Article 252(1) can be so structured as to be capable of being effectively adopted by the other States. Article 252(1) undoubtedly enables the Parliament to make a uniform law. The Act so passed would automatically apply to the States the legislature of which have passed a resolution in terms of Article 252(1), and at the same time it must be capable of being adopted by other States which have not sponsored a resolution i.e the non-sponsoring States. The second part of Article 252(1) will be meaningful only if it were so interpreted; otherwise, it would be rendered wholly redundant. To illustrate, if the part of the Schedule relating to the State of Rajasthan is treated as non est, the Schedule which forms part of the Act cannot be amended except under Article 252(2) i.e in the like manner. We fail to appreciate how two or more States can now pass a resolution for extention of the Act to the State of Rajasthan.51. In a law relating to the imposition of ceiling on vacant land in urban agglomerations throughout the territory of India, it was competent for the Parliament under Entry 18, List II of Seventh Schedule not only to have the States specified in the Schedule to the Act where the law will extend, but also include the categorisation of urban agglomerations in respect of the whole of the territory of India. The Act would automatically apply from the date of its application to those States which had passed the resolution in terms of the first part of Article 252(1), and would extend to the adopting States from the date of the resolutions passed by the legislatures of such States. The Parliament had, therefore, in fact and in law, competence to legislate on the subject of the imposition of ceiling on urban immovable property, and the Schedule to the Act cannot, therefore, be struck down in relation to the State of Rajasthan.52. It is conceded by learned counsel for the petitioner that if the Act had been enacted without the Schedule, with an appropriate definition of an urban agglomeration in Section 2(n), in general terms, making the law applicable to cities and towns having, for example, a population of one lakh and above, five lakhs and above, etc., it would have been within the legislative competence of the Parliament. If that be so, then it is inexplicable why simply because some of the areas in some of the States have been specified, although their State legislatures had not sponsored any resolution, the Schedule, insofar as those States are concerned should be regarded as non est. If it is competent for the Parliament to make a general law under Article 252(1) to facilitate its adoption by other States, it must logically follow that the Parliament could also pass the Act in its present form.53. We are of the opinion that the Act with the Schedule annexed became applicable in those States where the legislatures passed resolutions expressing the desirability for the Parliament to make a law for the imposition of ceiling on urban immovable property, and it lay dormant insofar as the other States were concerned. It became applicable to those other States from the date that their Houses of Legislatures adopted it. In that view, we must hold that the impugned Act is not beyond the legislative competence of the Parliament insofar as the State of Rajasthan is concerned.49. It is, however, strenuously urged on behalf of the petitioner that a law made by the Parliament under Article 252(1) cannot be so designated as to extend to the States which had not sponsored a resolution. Emphasis is laid upon the words in such States, and it is said that they mean in those States i.e the sponsoring States. In support of the contention, our attention was particularly drawn to the word accordingly and it is urged that the law passed by the Parliament under Article 252(1) must be restricted in its operation to those States i.e to those States in which the legislature passed a resolution. We are afraid the contention cannot be accepted.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: of construction of Article 252(1). The question of adoption of a law made by the Parliament in respect of any of the matters in State List arises under the second part of Article 252(1) and is dependent upon the desirability expressed by the legislatures of two or more States empowering the Parliament to make such a law under the first part thereof. We are inclined to think that some meaning must be given to the words any Act so passed. The power of adoption, is, therefore, related to a law made under Article 252(1) and cannot be exercised in respect of laws made by the Parliament under Article 250(1) while a Proclamation of Emergency is in force. Furthermore, such a law, in terms of Article 250(2), ceases to have effect on the expiration of a period of six months after the Proclamation has ceased to operate. 48. The learned Attorney-General, however, rightly contends, in the alternative, that the Parliament being invested with the power by resolutions passed under the first part of Article 252(1) by as many as eleven States, to legislate on the subject i.e to make a law for the imposition of a ceiling on immovable property, it had the competence to so structure the Act that it was capable of being adopted by other States under the second part of Article 252(1). A fortiori, the specification of the State of Rajasthan by which the Act may be adopted, as well as the categorisation of the urban agglomerations therein to which it may apply, had to be there. 49. It is, however, strenuously urged on behalf of the petitioner that a law made by the Parliament under Article 252(1) cannot be so designated as to extend to the States which had not sponsored a resolution. Emphasis is laid upon the words in such States, and it is said that they mean in those States i.e the sponsoring States. In support of the contention, our attention was particularly drawn to the word accordingly and it is urged that the law passed by the Parliament under Article 252(1) must be restricted in its operation to those States i.e to those States in which the legislature passed a resolution. We are afraid the contention cannot be accepted. 50. In our considered judgment, the Parliament having been invested with powers to legislate on a State subject, by resolutions passed by legislatures of two or more States under Article 252(1), has plenary powers to make suitable legislation. It follows, as a necessary corollary, that the Act passed by the Parliament under Article 252(1) can be so structured as to be capable of being effectively adopted by the other States. Article 252(1) undoubtedly enables the Parliament to make a uniform law. The Act so passed would automatically apply to the States the legislature of which have passed a resolution in terms of Article 252(1), and at the same time it must be capable of being adopted by other States which have not sponsored a resolution i.e the non-sponsoring States. The second part of Article 252(1) will be meaningful only if it were so interpreted; otherwise, it would be rendered wholly redundant. To illustrate, if the part of the Schedule relating to the State of Rajasthan is treated as non est, the Schedule which forms part of the Act cannot be amended except under Article 252(2) i.e in the like manner. We fail to appreciate how two or more States can now pass a resolution for extention of the Act to the State of Rajasthan. 51. In a law relating to the imposition of ceiling on vacant land in urban agglomerations throughout the territory of India, it was competent for the Parliament under Entry 18, List II of Seventh Schedule not only to have the States specified in the Schedule to the Act where the law will extend, but also include the categorisation of urban agglomerations in respect of the whole of the territory of India. The Act would automatically apply from the date of its application to those States which had passed the resolution in terms of the first part of Article 252(1), and would extend to the adopting States from the date of the resolutions passed by the legislatures of such States. The Parliament had, therefore, in fact and in law, competence to legislate on the subject of the imposition of ceiling on urban immovable property, and the Schedule to the Act cannot, therefore, be struck down in relation to the State of Rajasthan. 52. It is conceded by learned counsel for the petitioner that if the Act had been enacted without the Schedule, with an appropriate definition of an urban agglomeration in Section 2(n), in general terms, making the law applicable to cities and towns having, for example, a population of one lakh and above, five lakhs and above, etc., it would have been within the legislative competence of the Parliament. If that be so, then it is inexplicable why simply because some of the areas in some of the States have been specified, although their State legislatures had not sponsored any resolution, the Schedule, insofar as those States are concerned should be regarded as non est. If it is competent for the Parliament to make a general law under Article 252(1) to facilitate its adoption by other States, it must logically follow that the Parliament could also pass the Act in its present form. 53. We are of the opinion that the Act with the Schedule annexed became applicable in those States where the legislatures passed resolutions expressing the desirability for the Parliament to make a law for the imposition of ceiling on urban immovable property, and it lay dormant insofar as the other States were concerned. It became applicable to those other States from the date that their Houses of Legislatures adopted it. In that view, we must hold that the impugned Act is not beyond the legislative competence of the Parliament insofar as the State of Rajasthan is concerned. ### Response: 1

The Commr., Hindu Religious Endowments, Madras Vs. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt

if the money paid by licence holders goes for the upkeep of roads and other matters of general public utility, the licence fee cannot but be regarded as a tax.47. In the other class of cases, the Government does some positive work for the benefit of persons and the money is taken as the return for the work done or services rendered. If the money thus paid is set apart and appropriated specifically for the performance of such work and is not merged in the public revenues for the benefit of the general public, it could be counted as fees and not a tax. There is really no generic difference between the tax and fees and as said by Seligman, the taxing power of a State may manifest itself in three different forms known respectively as special assessments, fees and taxes, Ibid p. 406.48. Our Constitution has, for legislative purposes, made a distinction between a tax and a fee and while there are various entries in the legislative lists with regard to various forms of taxes, there is an entry at the end of each one f the three lists as regards fees which could be levied in respect of any of the matters that is included in it. The implication seems to be that fees have special reference to governmental action undertaken in respect to any of these matters.49. Section 76 of Madras Act speaks definitely of the contribution being levied in respect to the service rendered by the Government so far it has the appearance of fees. It is true that religious institutions do not want these services to be rendered to them and it may be that they do not consider the State interference to be a benefit at all. We agree, however, with the learned Attorney-General that in the present day concept of a State, it cannot be said that services could be rendered by the State only at the request of those who require these services. If in the larger interest of the public, a State considers it desirable that some special service should be done for certain people, the people must accept those services, whether willing or not, vide Findlay Shirras on Science of Public Finance, Vol. 1. p. 202. It may be noticed however, that the contribution that has been levied under Section 76 of the Act has been made to depend upon the capacity of the payer and not upon the quantum of benefit that is supposed to be conferred on any particular religious institution. Further the institutions which come under the lower income group and have income less than Rs. 1000 annually are excluded from the liability to pay the additional charges under clause (2) of the Section. These are undoubtedly some of the characteristics of a tax and the imposition bears a close analogy to income tax. But the material fact which negatives the theory of fees in the present case is that the money raised by levy of the contribution is not ear-marked or specified for defraying the expenses that the Government has to incur in performing the services. All the collections go to the consolidated fun of the State and all the expenses have to be met not out of these collections put out of the general revenues by a proper method of appropriation as is done in case of other Government expenses. That in itself might not be conclusive, but in this case there is total absence of any correlation between the expenses incurred by the Government and the amount raised by contribution under the provision of Section 76 and in these circumstances the theory of a return or counter payment or quid pro quo cannot have any possible application to this case. In our opinion, therefore, the High Court was right in holding that the contribution levied under Section 76 is a tax and not a fee and consequently it was beyond this power of the State Legislature to enact this provision.50. In view of our decision on this point, the other ground hardly requires consideration. We will indicate, however, very briefly our opinion on the second point raised. The first contention, which has been raised by Mr. Nambiar in reference to Article 27 of the Constitution is, that the word "taxes", as used therein, is not confined to taxes proper but is inclusive of all other impositions like cases, fees, etc.51. We do not think it necessary to decide this point in the present case for in our opinion on the facts of the present case the imposition although it is a tax does not come within the purview of the latter part of the Article at all. What is forbidden by the Article is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The reason underlying this provision is obvious. Ours being a secular State and there being freedom of religion guaranteed by the Constitution both the individuals and to groups, it is against the policy of the Constitution to pay out of public funds any money for the promotion or maintenance of any particular religion or religious denomination. But the object of the contribution under Section 76 of the Madras Act is not the fostering or preservation of the Hindu-religion or any denomination within it. The purpose is to see that religious trusts and institutions, wherever they exist, are properly administered. It is a secular administration of the religious institutions that the legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for the purposes for which they were founded or exist. There is no question of favouring any particular religion or religious denomination in such cases. In our opinion, Article 27 of the Constitution is not attracted to the facts of the present case.

0[ds]6. The learnedfor Madras, who appeared in support of the appeal, confined his arguments exclusively to the constitutional points involved in this case. Although he had put in an application to urge grounds other than the constitutional grounds, that application was not pressed and he did not challenge the findings of fact upon which the High Court based its decision on the merits of the petition. The position, therefore, is that the order of the High Court issuing the writ of prohibition against the appellant must stand irrespective of the decision which we might arrive at on the constitutional points raised before us.As regards the property rights of a Mathadhipati, it may not be possible to say in view of the pronouncements of the Judicial Committee which have been accepted as good law in this country ever since 1921, that a Mathadhipati holds the Math property as aor that this position is similar to that of a Hindu widow in respect to her husbands estate or of an English Bishop holding a benefice. He is certainly not a trustee in the strict sense. He may be, as the Privy CouncilVaruthi v. Balusami, AIR 1922 PC 123 says a manager or custodian of the institution who has to discharge the duties of a trustee and is answerable as such, but he is not a mere manager and it would not be right to describe Mahantship as a mere office. A superior of a Math has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom and is much large than that of a Shebait in the debutter property.The contention formulated in such broad terms cannot, we think be supported, in the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religionshould be noticed, however, that under Article 26 (d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law, and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of Articlemay be pointed out at the outset that the learned Judges were not right in including Sections 18, 39(2) and 42 in this list, as these Sections are not applicable to Maths under the Act itself. This position has not been disputed by Mr. Somayya who appears for the respondent.24. Section 20 of the Act describes the powers of the Commissioner in respect to religious endowments and they include power to pass any orders that may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded. Having regard to the fact that the Mathadhipati occupies the position of a trustee with regard to the Math. which is a public institution, some amount of control or supervision over the due administration of the endowments and due appropriation of their funds is certainly necessary in the interests of the public and we do not think that the provision of this Section by itself offends any fundamental right of the Mahant. We do not agree with the High Court that the result of this provision would be to reduce the mahant to the position of a servant. No doubt the Commissioner is invested with powers to pass orders, but orders can be passed only for the purposes specified in the Section and not for interference with the rights of the Mahant as are sanctioned by usage or for lowering his position as the spiritual head of the institution. The saving provision contained in Section 91 of the Act makes the position quite clear. An apprehension that the powers conferred by this Section may be abused in individual cases does not make the provision itself bad or invalid in law.25. We agree, however, with the High Court in the view taken by it about Section 21. This Section empowers the Commissioner and his subordinate officers and also persons authorised by them to enter the premises of any religious institution or place of worship for the purpose of exercising any power conferred or any duty imposed by or under the Act. It is well known that there could be no such thing as an unregulated and unrestricted right of entry in a public temple or other religious institution for persons who are not connected with the spiritual functions thereof. It is a traditional custom aniversally observed not to allow access to any outsider to the particularly sacred parts of a temple as for example, the place where the deity is located. There are also fixed hours of worship and rest for the idol when no disturbance by any member of the public is allowed. Section 21, it is to be noted, does not confine the right of entry to the outer portion of the premises : it does not even exclude the inner sanctuary "The Holy of Holies" as it is said the sanctity of which is zealously preserved. It does not say that the entry may be made after due notice to the head of the institution and at such hours which would not interfere with the due observance of the rites and ceremonies in the institution. We think that as the Section stands, it interferes with the fundamental rights of the Mathadhipati and the denomination of which he is head guaranteed under Articles 25 and 26 of the Constitution. Our attention has been drawn in this connection to Section 91 of the Act which, it is said, provides a sufficient safeguard against any abuse of power under Section 21. We cannot agree with this contention. Clause (a) of Section 91 excepts from the saving clause all express provisions of the Act within which the provision of Section 21 would have to be included. Clause (b) again does not say anything about custom or usage obtaining in an institution and it does not indicate by whom and in what manner the question of interference with the religious and spiritual functions of the Math would be decided in case of any dispute arising regarding it. In our opinion, Section 21 has been rightly held to be invalid.26. Section 23 imposes a duty the trustees to obey all lawful orders issued by the Commissioner or any subordinate authority under the provisions of the Act. No exception can be taken to the Section if those provisions of the Act, which offend against the fundamental rights of the respondent, are left out of account as being invalid. Nobody can make a grievance if he is directed to obey orders issued in pursuance of valid legal authority. The same reason would, in our opinion, apply to Section 24.As regards Section 25, the High Court has taken exception only to Clause (4) of the Section. If the preparation of registers for religious institutions is not wrong and does not affect the fundamental rights of the Mahant, one fails to see how the direction for addition to or alteration of entries in such registers, which clause (4) contemplates and which will be necessary as a result of enquiries made under clause (3) can in any sense, be held to be invalid as infringing the fundamental rights of the Mahant. The enquiry that is contemplated by Clauses (3) and (4) is an enquiry into the actual state of affairs, and the whole object of the Section is to keep an accurate record of the particulars specified in it. We are unable therefore to agree with the view expressed by the learned Judges. For the same reasons, Section 26, which provides for annual verification of the registers, cannot be held to be bad.28. According to the High Court Section 28 is itself innocuous. The mere possibility of its being abused is no ground for holding it to be valid. As all endowed properties are ordinarily inalienable, we fail to see why the restrictions placed by Section 29 upon alienation of endowed properties should be considered bad. In our opinion. the provision of Clause (2) of Section 29, which enables the Commissioner to impose conditions when he grants sanction to alienation of endowed property, is perfectly reasonable and to that no exception can be taken.The provision of Section 30(2) appears to us to be somewhat obscure. Clause (1) of the Section enables a trustee to incur expenditure out of the funds in his charge after making adequate provision for the purposes referred to in Section 70(2), for making arrangements for the health, safety and convenience of disciples, pilgrims, etc. Clause (2), however, says that in incurring expenditure under clause (1), the trustee shall be guided by such general or special instruction as the Commissioner of the Area Committee might give in that connection. If the trustee is to be guided but not fettered by such directions, possibly no objection can be taken to this clause; but if he is bound to carry out such instructions we do think that it constitutes an encroachment on his right. Under the law, as it stands, the Mahant has large powers of disposal over the surplus income and the only restriction is that he cannot spend anything out of it for his personal use unconnected with the dignity of his office. But as the purposes specified in(a) and (b) of Section 30(1) are beneficial to the institution, there seems to be no reason why the authority vested in the Mahant to spend the surplus income for such purposes should be taken away from him and he should be compelled to act in such matters under the instructions of the Government officers. We think that this is an unreasonable restriction on the Mahants right of property which is blended with his office.30. The same reason applies in our opinion to Section 31 of the Act, the meaning of which also is far from clear. If after making adequate provision for the purposes referred to in Section 70(2) and for the arrangements mentioned in Section 30(2) there is still a surplus left with the trustee, Section 31 enables him to spend it for the purposes specified in Section 59(1) with the previous sanction of the Deputy Commissioner, one of the purposes mentioned in Section 59(1) is propagation of the religious tenets of the institution and it is not understood why sanction of the Deputy Commissioner should be necessary for spending the surplus income for the propagation of the religious tenets of the order which is one of the primary duties of a Mahant to discharge. Thenext thing that strikes one is, whether sanction is necessary if the trustee wants to spend the money for purposes other than those specified in Section 59(1).If the answer is in the negative, the whole object of the Section becomes meaningless. If, on the other hand, the implication of the Section is that the surplus can be spent only for the purpose specified in Section 59(1) and that too with the permission of the Deputy Commissioner, it undoubtedly places a burdensome restriction upon the property rights of the Mahant which are sanctioned by usage and which would have the effect of impairing his dignity and efficiency as the head of the institution. We think that Sections 30(2) and 31 have been rightly held to be invalid by the High Court.31. Sections 39 and 42, as said already, are not applicable to Maths and hence can be left out of consideration. Section 53 has been condemned by the High Court merely on the ground that the court has ample jurisdiction to provide for the contingencies that this Section is intended to meet. But that surely cannot prevent a competent legislature from legislating on the topic provided it can do so without violating any of the fundamental rights guaranteed by the Constitution. We are unable to agree with the High Court on this point. There seems to be nothing wrong or unreasonable in Section 54 of the Act which provides for fixing the standard scale of expenditure. The proposals for this purpose would have to be submitted by the trustee; they are then to be published and suggestions invited from persons having interest in the amendment. The Commissioner is to scrutinise the original proposals and the suggestions received and if in his opinion a modification of the scale is necessary he has to submit a report to the Government, whose decision will be final. This we consider to be quite a reasonable and salutary provision.32. Section 55 deals with a Mahants power over "Pathukanikas" or personal gifts, ordinarily a Mahant has absolute power of disposal over such gifts, though if he dies without making any disposition, it is reckoned as the property of the Math and goes to the succeeding Mahant. The first clause of Section 55 lays down that such "Pathakanikas" shall be spent only for the purposes of the Math. This is an unwarranted restriction on the property right of the Mahant. It may be that according to customs prevailing in a particular institution, such personal gifts are regarded as gifts to the institution itself and the Mahant receives them only as the representative of the institution; but the general rule is otherwise. As Section 55(1) does not say that this rule will apply only when there is a custom of that nature in a particular institution, we must say that the provision in this unrestricted form is an unreasonable encroachment upon the fundamental right of the Mahant. The same objection can be raised against Clause (2) of the Section; for if the Pathakanikas" constitute the property of a Mahant, there is no justification for compelling him to keep accounts of the receipts and expenditure of such personal gifts. As said already, if the Mahant dies without disposing of these personal gifts, they may form part of the assets of the Math, but that is no reason for restricting the powers of the Mahant over these gifts so long as he is alive.33. Section 56 has been rightly invalidated by the High Court. It makes provision of an extremely drastic character. Power has been given to the Commissioner to require the trustee to appoint a manager for administration of the secular affairs of the institution and in case of default, the Commissioner can make the appointment himself. The manager thus appointed though nominally a servant of the trustee, has practically to do everything according to the directions of Commissioner and his subordinates. It is to be noted that this power can be exercised at the mere option of the Commissioner without any justifying necessity whatsoever and nolike mismanagement of property or maladministration of trust finds are necessary to enable the trustee to exercise such drastic power. It is true that the Section contemplates the appointment of a manager for administration of the secular affairs of this institution. But no rigid demarcation could be made as we have already said between the spiritual duties of the Mahant and his personal interest in the trust property. The effect of the Section really is that the Commissioner is at liberty at any moment he chooses to deprive the Mahant of his right to administer the trust property even if there is no negligence or maladministration on his part. Such restriction would be opposed to the provision of Article 26(d) of the Constitution. It would cripple his authority as Mahant altogether and reduce his position to that of an ordinary priest or paid servant.34. We find nothing wrong in Section 58 of the Act which relates to the framing of the scheme by the Deputy Commissioner. It is true that it is a Government officer and not the court who is given the power to settle the scheme, but we think that ample safeguards have been provided in the Act to rectify any error or unjust decision made by the Deputy Commissioner. Section 61 provides for an appeal to the Commissioner against the order of the Deputy Commissioner and there is a right of suit given to a party who is aggrieved by the order of the Commissioner with a further right of appeal to the High Court.35. The objection urged against the provision of Clause (3)(b) of Section 58 does not appear to us to be of much substance. The executive officer mentioned in that clause could be nothing else but a manager of the properties of the Math and he cannot possibly be empowered to exercise the functions of the Mathadhipati himself. In any event, the trustee would have his remedy against such order of the Deputy Commissioner by way of appeal to the Commissioner and also by way of suit as laid down in Sections 61 and 62 Section 59 simply provides a scheme for the application of the cy pres doctrine in case the object of the trust fails either from the inception or by reason of subsequent events. Here again the only complaint that is raised is, that such order could be made by the Deputy Commissioner. We think that this objection has not much substance. In the first place, the various objects on which the trust funds could be spent are laid down in the Section itself and the jurisdiction of the Deputy Commissioner is only to make a choice out of the several heads. Further an appeal has been provided from an order of the Deputy Commissioner under this Section to the Commissioner. We, therefore, cannot agree with the High Court that Sections 58 and 59 of the Act are invalid.36. Chapter 6 of the Act, which contains Sections 63 to 69 relates to notification of religious institutions. The provisions are extremely drastic in their character and the worst feature of it is that no access is allowed to the Court to set aside an order of notification. Thefor Madras frankly stated that he could not support the legality of these provisions. We hold, therefore, in agreement with High Court that these Sections should be held to be void.37. Section 70 relates to the budget of religious institutions. Objection has been taken only to Clause (3) which empowers the Commissioner and the Area Committee to make any additions to or alterations in the budget as they deem fit. A budget is indispensable in all public institutions and we do not think that it is per se unreasonable to provide for the budget of a religious institution being prepared under the supervision of the Commissioner or the Area Committee. It is to be noted that if the order is made by an Area Committee under Clause (3), Clause (4) provides an appeal against it to the Deputy Commissioner.38. Section 89 provides for penalties for refusal by the trustee to comply with the provisions of the Act. If the objectionable portions of the Act are eliminated the portion that remains will be perfectly valid and for violation of these valid provisions penalties can legitimately be provided. Section 99 vests an overall revisional power in the Government. This in our opinion, is beneficial to the trustee, for he will have an opportunity to approach the Government in case of any irregularity error or omission made by the Commissioner or any other subordinate officer.Section 76 of Madras Act speaks definitely of the contribution being levied in respect to the service rendered by the Government so far it has the appearance of fees. It is true that religious institutions do not want these services to be rendered to them and it may be that they do not consider the State interference to be a benefit at all. We agree, however, with the learnedthat in the present day concept of a State, it cannot be said that services could be rendered by the State only at the request of those who require thesethe material fact which negatives the theory of fees in the present case is that the money raised by levy of the contribution is notor specified for defraying the expenses that the Government has to incur in performing the services. All the collections go to the consolidated fun of the State and all the expenses have to be met not out of these collections put out of the general revenues by a proper method of appropriation as is done in case of other Government expenses. That in itself might not be conclusive, but in this case there is total absence of any correlation between the expenses incurred by the Government and the amount raised by contribution under the provision of Section 76 and in these circumstances the theory of a return or counter payment or quid pro quo cannot have any possible application to this case. In our opinion, therefore, the High Court was right in holding that the contribution levied under Section 76 is a tax and not a fee and consequently it was beyond this power of the State Legislature to enact this provision.50. In view of our decision on this point, the other ground hardly requires consideration. We will indicate, however, very briefly our opinion on the second point raised. The first contention, which has been raised by Mr. Nambiar in reference to Article 27 of the Constitution is, that the word "taxes", as used therein, is not confined to taxes proper but is inclusive of all other impositions like cases, fees, etc.51. We do not think it necessary to decide this point in the present case for in our opinion on the facts of the present case the imposition although it is a tax does not come within the purview of the latter part of the Article at all. What is forbidden by the Article is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The reason underlying this provision is obvious. Ours being a secular State and there being freedom of religion guaranteed by the Constitution both the individuals and to groups, it is against the policy of the Constitution to pay out of public funds any money for the promotion or maintenance of any particular religion or religious denomination. But the object of the contribution under Section 76 of the Madras Act is not the fostering or preservation of theor any denomination within it. The purpose is to see that religious trusts and institutions, wherever they exist, are properly administered. It is a secular administration of the religious institutions that the legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for the purposes for which they were founded or exist. There is no question of favouring any particular religion or religious denomination in such cases. In our opinion, Article 27 of the Constitution is not attracted to the facts of the present case.

### Instruction: Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable? ### Input: if the money paid by licence holders goes for the upkeep of roads and other matters of general public utility, the licence fee cannot but be regarded as a tax.47. In the other class of cases, the Government does some positive work for the benefit of persons and the money is taken as the return for the work done or services rendered. If the money thus paid is set apart and appropriated specifically for the performance of such work and is not merged in the public revenues for the benefit of the general public, it could be counted as fees and not a tax. There is really no generic difference between the tax and fees and as said by Seligman, the taxing power of a State may manifest itself in three different forms known respectively as special assessments, fees and taxes, Ibid p. 406.48. Our Constitution has, for legislative purposes, made a distinction between a tax and a fee and while there are various entries in the legislative lists with regard to various forms of taxes, there is an entry at the end of each one f the three lists as regards fees which could be levied in respect of any of the matters that is included in it. The implication seems to be that fees have special reference to governmental action undertaken in respect to any of these matters.49. Section 76 of Madras Act speaks definitely of the contribution being levied in respect to the service rendered by the Government so far it has the appearance of fees. It is true that religious institutions do not want these services to be rendered to them and it may be that they do not consider the State interference to be a benefit at all. We agree, however, with the learned Attorney-General that in the present day concept of a State, it cannot be said that services could be rendered by the State only at the request of those who require these services. If in the larger interest of the public, a State considers it desirable that some special service should be done for certain people, the people must accept those services, whether willing or not, vide Findlay Shirras on Science of Public Finance, Vol. 1. p. 202. It may be noticed however, that the contribution that has been levied under Section 76 of the Act has been made to depend upon the capacity of the payer and not upon the quantum of benefit that is supposed to be conferred on any particular religious institution. Further the institutions which come under the lower income group and have income less than Rs. 1000 annually are excluded from the liability to pay the additional charges under clause (2) of the Section. These are undoubtedly some of the characteristics of a tax and the imposition bears a close analogy to income tax. But the material fact which negatives the theory of fees in the present case is that the money raised by levy of the contribution is not ear-marked or specified for defraying the expenses that the Government has to incur in performing the services. All the collections go to the consolidated fun of the State and all the expenses have to be met not out of these collections put out of the general revenues by a proper method of appropriation as is done in case of other Government expenses. That in itself might not be conclusive, but in this case there is total absence of any correlation between the expenses incurred by the Government and the amount raised by contribution under the provision of Section 76 and in these circumstances the theory of a return or counter payment or quid pro quo cannot have any possible application to this case. In our opinion, therefore, the High Court was right in holding that the contribution levied under Section 76 is a tax and not a fee and consequently it was beyond this power of the State Legislature to enact this provision.50. In view of our decision on this point, the other ground hardly requires consideration. We will indicate, however, very briefly our opinion on the second point raised. The first contention, which has been raised by Mr. Nambiar in reference to Article 27 of the Constitution is, that the word "taxes", as used therein, is not confined to taxes proper but is inclusive of all other impositions like cases, fees, etc.51. We do not think it necessary to decide this point in the present case for in our opinion on the facts of the present case the imposition although it is a tax does not come within the purview of the latter part of the Article at all. What is forbidden by the Article is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The reason underlying this provision is obvious. Ours being a secular State and there being freedom of religion guaranteed by the Constitution both the individuals and to groups, it is against the policy of the Constitution to pay out of public funds any money for the promotion or maintenance of any particular religion or religious denomination. But the object of the contribution under Section 76 of the Madras Act is not the fostering or preservation of the Hindu-religion or any denomination within it. The purpose is to see that religious trusts and institutions, wherever they exist, are properly administered. It is a secular administration of the religious institutions that the legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for the purposes for which they were founded or exist. There is no question of favouring any particular religion or religious denomination in such cases. In our opinion, Article 27 of the Constitution is not attracted to the facts of the present case. ### Response: 0

Nagendra Nath Bora Vs. The Commissioner of Hills Division

it could have interfered by issuing a writ under Art. 226 of the Constitution, they would be content to utilize their powers of judicial superintendence under Art. 227 of the Constitution vide its judgment dated July 31, 1957, in appeals relating to Murmuria shop (Civil Appeals Nos. 669 and 670 of 1957). In exercise of that power, the High Court set aside the order of the Appellate Authority, and directed it to rehear the appeal according to law in the light of the principles indicated in this judgment. 30. A Constitution Bench of this Court examined the scope of Art. 227 of the Constitution in the case of Waryam Singh v. Amarnath, 1954 SCR 565 : (AIR 1954 SC 215 ) (P). This court, in the course of its judgment, made the following observations at p. 571 (of SCR): (at p. 217 of AIR):"This power of superintendence conferred by article 227 is, as pointed out by Harries, C. J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (Q), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors." It is, thus,, clear that the powers of judicial interference under Art. 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Art. 226 of the Constitution. Under Art. 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Art. 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Hence, interference by the High Court, in these cases either under Art. 226 or 227 of the Constitution, was not justified. 31. After having dealt with the common arguments more or less applicable to all the cases, it remains to consider the special points raised on behalf of the respondents in Civil Appeal No. 672 of 1957, relating of the Tinsukia country spirit shop. It was strenuously argued that the appeal was incompetent in view of the fact that the rule issued by the High Court was still pending, and that this Court does not ordinarily, entertain an appeal against an interlocutory order. It is true that this Court does not interfere in cases which have not been decided by the High Court, but this case has some extraordinary features which attracted the notice of this Court when special leave to appeal was granted. As already stated, the shop in question was settled with the appellants by the Excise Commissioner, and his order was upheld by the Appellate Authority. Accordingly, the appellants had been put in possession of the shop on June 7, 1957. The High Court, while issuing the rule, passed an order on the stay application, which as already indicated, had been misunderstood by the District Excise authorities, and the appellants were dispossessed and the respondents 1 and 2 put back in possession, without any authority of law. This was a flagrant interference with the appellants rights arising out of the settlement made in their favour by the highest revenue authorities. The High Court had not and could not have authorized the dispossession of the persons rightfully in possession of the shop. The appellants brought this flagrant abuse of power to the notice of the High Court several times, but the High Court felt unduly constrained to permit the wrong to continue. We heard the learned counsel for the respondents at great length as to whether he could justify the continuance of this undesirable and unfortunate state of affairs. It has to be remembered that the appellants, as a result of fortuitous circumstances, had been deprived of the possession of the shop during the best part of the financial year 1956-57. The appellants had been deprived of the fruits of their hard-won victory in the revenue courts, without any authority of law; and the High Court failed to right the wrong in time, though moved several times. In these circumstances, we found it necessary to hear both the parties on the merits of the orders passed by the Commissioner of Excise and the Appellate Authority, in favour of the appellants, against which, the respondents had obtained a rule. After having heard both sides, we have come to the conclusion that no grounds have been made out for interference by the High Court, under its powers under Arts. 226 and 227 of the Constitution. This case shares the common fate of the other cases before us, of having run through the entire gamut of the hierarchy created under the Act, read along with amending Act and the rules thereunder. We do not find any grounds in the orders of the Excise Authorities which could attract the supervisory jurisdiction of the High Court, there being no error of law apparent on the face of the record, or a defect of jurisdiction in the Authorities whose orders have been impugned in the High Court. We would, however, like to make it clear that we are interfering with the interlocutory order passed by the High Court in this case because of its unusual and exceptional features. It is clear that our decision on the main points urged in the other appeals necessarily leads to the inference that, even if all the allegations made by the respondents in their petition before the Assam High Court are accepted as true, there would be no case whatever for issuing a rule. Indeed, the respondent found it difficult to resist the appellants argument that, if the other appeals were allowed on the general contentions raised by the appellants, the dismissal of his petition before the Assam High Court would be a foregone conclusion. It is because of these special circumstances that we have decided to interfere with the interlocutory order in this case in the interests of justice.

1[ds]9. It is true that no one has an inherent right to settlement of liquor shops, but when the State, by public notice, invites candidates for settlement to make their tenders, and in pursuance of such a notice, a number of persons make such tenders each one makes a claim for himself in opposition to the claims of the others, and the public authorities concerned with the settlement have to choose from amongst them. If the choice had rested in the hands of only one authority like the District Collector on his subjective satisfaction as to the fitness of a particular candidate without his orders being amenable to an appeal or appeals or revision, the position may have been different. But S. 9 of the Act has laid down a regular hierarchy of authorities, one above the other, with the right of hearing appeals or revisions. Though the Act and the rules do not, in express terms, require reasoned orders to be recorded, yet, in the context of the subject-matter of the rules, it be comes necessary for the several authorities to pass what are called speaking orders. Where there is a right vested in an authority created by statute, be it administrative or quasi-judicial, to hear appeals and revisions, it becomes its duty to hear judicially, that is to say, in an objective manner, impartially and after giving reasonable opportunity to the parties concerned in the dispute, to place their respective cases before it11. The provisions of the Act are intended to safeguard the interest of the State on the one hand; by stopping, or at any rate, checking illicit distillation, and on the other hand, by raising the maximum revenue consistently with the observance of the rules of temperance. The authorities under the Act, with Sub-divisional Officers at the bottom and the Appellate Authority at the apex of the hierarchy, are charged with those duties. The rules under the Act, and the executive instructions which have no statutory force but which are meant for the guidance of the officers concerned, enjoin upon those officers, the duty of seeing to it that shops are settled with persons of character and experience in the line, subject to certain reservations in favour of tribal population. Except those general considerations, there are no specific rules governing the grant of leases or licences in respect of liquor shops, and in a certain contingency, even drawing of lots is provided for, vide Executive Instructions 110 at p. 174 of the Manual. The words of sub-s. (3) of S. 9 as amended, set out above, vest complete discretion in the Appellate Authority, the Excise Commissioner or the District Collector, to pass such orders thereon as it or he may think fit. The sections of the Act do not make any reference to the recording of evidence or hearing of parties or even recording reasons for orders passed by the authorities aforesaid. But we have been informed at the bar that as a mater of practice, the authorities under the Act, hear counsel for the parties, and give reasoned judgments, so as to enable the higher authorities to know why a particular choice has been made. That is also apparent from the several orders passed by them in course of these few cases that are before usThus, the Excise Appellate Authority, for the purposes of cases arising under the Act, was vested with the power of the highest appellate Tribunal, even as the High Court was, in respect of the other group of cases. That does not necessarily mean that the Excise Appellate Authority was a Tribunal of coordinate jurisdiction with the High Court, or that that Authority was not amenable to the supervisory jurisdiction of High Court under Arts. 226 and 227 of the Constitution. But the juxtaposition of the two parallel highest Tribunals, one in respect of predominantly civil cases, and the other in respect of predominantly revenue cases (without attempting any clear-cut line of demarcation), would show that the Excise Appellate Authority was not altogether an administrative body which had no judicial or quasi-judicial functions13. Neither the Act nor the rule made thereunder, indicate the grounds on which the first Appellate Authority, namely, the Excise Commissioner, or the second Appellate Authority (the Excise Appellate Authority), has to exercise his or its appellate or revisional powers. There is no indication that they make any distinction between the grounds of interference on appeal and in revision. That being so, the powers of the Appellate Authorities in the matter of settlement, would be co-extensive with the powers of the primary authority, namely, the District Collector or the Sub-Divisional Officer14. Thus, on a review of the provisions of the Act and the rules framed thereunder, it cannot be said that the authorities mentioned in S. 9 of the Act, pass purely administrative orders which are beyond the ambit of the High Courts power of supervision and control. Whether or not an administrative body or authority functions as a purely administrative one or in a quasijudicial capacity, must be determined in each case, on an examination of the relevant statute and the rules framed thereunder.The first contention raised on behalf of the appellant must, therefore, be overruledis true that the Appellate Authority should not lightly set aside the selection made by the primary Authority, that is to say, a selection made by a Sub-Divisional Officer or by a District Collector, should be given due weight in view of the fact that they have much greater opportunity to know local conditions and local business people than the Appellate Authority, even as the appeal courts are enjoined not to interfere lightly with findings of fact recorded by the original courts which had the opportunity of seeing witnesses depose in court, and their demeanour while deposing in court. But it is not correct to hold that because the Appellate Authority, in the opinion of the High Court, has not observed that caution, the choice made by it, is in excess of its power or without jurisdictionAs already indicated, the rules make no provisions for the reception of evidence oral or documentary, or the hearing of oral arguments, or even for the issue of notice of the hearing to the parties concerned. The entire proceedings are marked by a complete lack of formality. The several authorities have been left to their own resources to make the best selectionIn the instant case, no such rules have been brought to our notice, which could be said to have been contravened by the Appellate Authority. Simply because it viewed a case in a particular light which may not be acceptable to another independent tribunal, is no ground for interference either under Art. 226 or Art. 227 of the ConstitutionThis court, as observed above, has settled the law in this respect by laying down that in order to attract such jurisdiction, it is essential that the error should be something more than a mere error of law; that it must be one which is manifest on the face of the record. In this respect, the law in India and the law inn England are, therefore, the same. It is also clear, on an examination of all the authorities of this Court and of those in England, referred to above, as also those considered in the several judgments of this Court, that the common-law writ, now called order of certiorari, which was also adopted by our Constitution is not meant to take the place of an appeal where the statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdictionIt is, thus,, clear that the powers of judicial interference under Art. 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Art. 226 of the Constitution. Under Art. 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Art. 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Hence, interference by the High Court, in these cases either under Art. 226 or 227 of the Constitution, was not justifiedThis was a flagrant interference with the appellants rights arising out of the settlement made in their favour by the highest revenue authorities. The High Court had not and could not have authorized the dispossession of the persons rightfully in possession of the shop. The appellants brought this flagrant abuse of power to the notice of the High Court several times, but the High Court felt unduly constrained to permit the wrong to continue. We heard the learned counsel for the respondents at great length as to whether he could justify the continuance of this undesirable and unfortunate state of affairs. It has to be remembered that the appellants, as a result of fortuitous circumstances, had been deprived of the possession of the shop during the best part of the financial year 1956-57. The appellants had been deprived of the fruits of their hard-won victory in the revenue courts, without any authority of law; and the High Court failed to right the wrong in time, though moved several times. In these circumstances, we found it necessary to hear both the parties on the merits of the orders passed by the Commissioner of Excise and the Appellate Authority, in favour of the appellants, against which, the respondents had obtained a rule. After having heard both sides, we have come to the conclusion that no grounds have been made out for interference by the High Court, under its powers under Arts. 226 and 227 of the Constitution. This case shares the common fate of the other cases before us, of having run through the entire gamut of the hierarchy created under the Act, read along with amending Act and the rules thereunder. We do not find any grounds in the orders of the Excise Authorities which could attract the supervisory jurisdiction of the High Court, there being no error of law apparent on the face of the record, or a defect of jurisdiction in the Authorities whose orders have been impugned in the High Court. We would, however, like to make it clear that we are interfering with the interlocutory order passed by the High Court in this case because of its unusual and exceptional features. It is clear that our decision on the main points urged in the other appeals necessarily leads to the inference that, even if all the allegations made by the respondents in their petition before the Assam High Court are accepted as true, there would be no case whatever for issuing a rule. Indeed, the respondent found it difficult to resist the appellants argument that, if the other appeals were allowed on the general contentions raised by the appellants, the dismissal of his petition before the Assam High Court would be a foregone conclusion. It is because of these special circumstances that we have decided to interfere with the interlocutory order in this case in the interests of justice.

### 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: it could have interfered by issuing a writ under Art. 226 of the Constitution, they would be content to utilize their powers of judicial superintendence under Art. 227 of the Constitution vide its judgment dated July 31, 1957, in appeals relating to Murmuria shop (Civil Appeals Nos. 669 and 670 of 1957). In exercise of that power, the High Court set aside the order of the Appellate Authority, and directed it to rehear the appeal according to law in the light of the principles indicated in this judgment. 30. A Constitution Bench of this Court examined the scope of Art. 227 of the Constitution in the case of Waryam Singh v. Amarnath, 1954 SCR 565 : (AIR 1954 SC 215 ) (P). This court, in the course of its judgment, made the following observations at p. 571 (of SCR): (at p. 217 of AIR):"This power of superintendence conferred by article 227 is, as pointed out by Harries, C. J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (Q), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors." It is, thus,, clear that the powers of judicial interference under Art. 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Art. 226 of the Constitution. Under Art. 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Art. 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Hence, interference by the High Court, in these cases either under Art. 226 or 227 of the Constitution, was not justified. 31. After having dealt with the common arguments more or less applicable to all the cases, it remains to consider the special points raised on behalf of the respondents in Civil Appeal No. 672 of 1957, relating of the Tinsukia country spirit shop. It was strenuously argued that the appeal was incompetent in view of the fact that the rule issued by the High Court was still pending, and that this Court does not ordinarily, entertain an appeal against an interlocutory order. It is true that this Court does not interfere in cases which have not been decided by the High Court, but this case has some extraordinary features which attracted the notice of this Court when special leave to appeal was granted. As already stated, the shop in question was settled with the appellants by the Excise Commissioner, and his order was upheld by the Appellate Authority. Accordingly, the appellants had been put in possession of the shop on June 7, 1957. The High Court, while issuing the rule, passed an order on the stay application, which as already indicated, had been misunderstood by the District Excise authorities, and the appellants were dispossessed and the respondents 1 and 2 put back in possession, without any authority of law. This was a flagrant interference with the appellants rights arising out of the settlement made in their favour by the highest revenue authorities. The High Court had not and could not have authorized the dispossession of the persons rightfully in possession of the shop. The appellants brought this flagrant abuse of power to the notice of the High Court several times, but the High Court felt unduly constrained to permit the wrong to continue. We heard the learned counsel for the respondents at great length as to whether he could justify the continuance of this undesirable and unfortunate state of affairs. It has to be remembered that the appellants, as a result of fortuitous circumstances, had been deprived of the possession of the shop during the best part of the financial year 1956-57. The appellants had been deprived of the fruits of their hard-won victory in the revenue courts, without any authority of law; and the High Court failed to right the wrong in time, though moved several times. In these circumstances, we found it necessary to hear both the parties on the merits of the orders passed by the Commissioner of Excise and the Appellate Authority, in favour of the appellants, against which, the respondents had obtained a rule. After having heard both sides, we have come to the conclusion that no grounds have been made out for interference by the High Court, under its powers under Arts. 226 and 227 of the Constitution. This case shares the common fate of the other cases before us, of having run through the entire gamut of the hierarchy created under the Act, read along with amending Act and the rules thereunder. We do not find any grounds in the orders of the Excise Authorities which could attract the supervisory jurisdiction of the High Court, there being no error of law apparent on the face of the record, or a defect of jurisdiction in the Authorities whose orders have been impugned in the High Court. We would, however, like to make it clear that we are interfering with the interlocutory order passed by the High Court in this case because of its unusual and exceptional features. It is clear that our decision on the main points urged in the other appeals necessarily leads to the inference that, even if all the allegations made by the respondents in their petition before the Assam High Court are accepted as true, there would be no case whatever for issuing a rule. Indeed, the respondent found it difficult to resist the appellants argument that, if the other appeals were allowed on the general contentions raised by the appellants, the dismissal of his petition before the Assam High Court would be a foregone conclusion. It is because of these special circumstances that we have decided to interfere with the interlocutory order in this case in the interests of justice. ### Response: 1

English Electric Company Of India Ltd Vs. The Deputy Commercial Tax Officer & Ors

for the Bombay buyer. The Madras branch in reply referred to the order of the Bombay buyer and gave particulars mentioning that the price was F.O.R. Madras. The Bombay branch thereafter wrote to the Bombay buyer reproducing all the particulars, conditions of sale and mode of despatch as stated by the Madras branch and further stated that the goods would be manufactured at the Madras branch factory." 9. It is important to note that all prices were shown F.O.R. Madras and it was further stated that all goods would be despatched at the risk of the Bombay buyer. It is in this context that the Bombay buyer on 27, May 1964 placed an order with the Bombay branch accepting all the terms and conditions. The Bombay branch placed an indent order addressed to the Madras branch giving all the particulars and stated the buyers name as Asha Metal Works, Bombay and gave the customers order number and the date viz., 27 May, 1964. The goods were to be despatched F.O.R. Madras. 10. The Bombay branch wrote to the Bombay buyer on August 28, 1964 that they had received an invoice from the factory at the Madras branch that some of the goods against the order of the Bombay buyer were ready for despatch. The Bombay branch asked the Bombay buyer to give the details of despatch and insurance instructions per return of post. The Bombay branch thereafter wrote to the Madras branch factory stating "Please despatch the equipment covered by our above indent by goods train to Bhandup Railway Station freight to pay. The Railway Receipt and other document to be sent to us for disposal". The Madras branch factory despatched the goods from Madras to Bombay by goods train and gave intimation to the Bombay branch. The goods were delivered to the Bombay buyer at Bhandup through clearing agents. 11. The goods were despatched from Madras at the risk of the buyer to Bombay. The goods were insured and insurance charges were collected from the buyer at Bombay. The freight charged from Madras to Bombay was borne by the buyer. The movement of the goods from Madras was an incident of the contract of sale. 12. for the appellant contended that there was no privity between the Madras branch and the Bombay buyer but that the privity was only between the Madras branch and the Bombay branch. It was also said that the Bombay branch was an independent and separate entity and the direct contract was between the Bombay branch and the Bombay buyer and the Madras factory were not parties to the contract. 13. The appellant has branches at different places. The appellant company is one entity and it carries on business at different branches. Branches have no independent and separate entity. Branches are different agencies. The contract of sale is between the appellant company and the Bombay buyer, 14. The appellant in the present case sent the goods direct from the Madras branch factory to the Bombay buyer at Bhandup, Bombay. The railway receipt was in the name of the Bombay branch to secure payment against delivery. There was no question of diverting the goods which were sent to the Bombay buyer. When the movement of goods from one State to another is an incident of the contract it is a sale in the course of inter-State sale. It does not matter in which State the property in the goods passes. What is decisive is whether the sale is one which occasions the movement of goods from one State to another. The inter-State movement must be the result of a covenant, express or implied, in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the inter-State movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course of inter-State trade or commerce, that the covenant regarding inter-State movement must be specified in the contract itself. It will be enough if the movement is in pursuance of and incidental to the contract of sale. 15. When a branch of a company forwards a buyers order to the principal factory of the company and instructs them to despatch the goods direct to the buyer and the goods are sent to the buyer under those instructions it would not be sale between the factory and its branch. If there is a conceivable link between the movement of the goods and the buyers contract, and if in the course of inter-State movement the goods move only to reach the buyer in satisfaction of his contract of purchase and such a nexus is otherwise inexplicable, then the sale or purchase of the specific or ascertained goods ought to be deemed to have been taken place in the course of inter-State trade or commerce as such a sale or purchased occasioned the movement of the goods from one State to another. The presence of an intermediary such as the sellers own representatives or branch office, who initiated the contract may not make the matter different. Such an interception by a known person on behalf of the seller in the delivery State and such persons activities prior to or after the implementation of the contract may not alter the position. 16. The steps taken from the beginning to the end by the Bombay branch in co-ordination with the Madras factory show that the Bombay branch was merely acting as the intermediary between the Madras factory and the buyer and that is was the Madras factory which pursuant to the covenant in the contract of sale caused the movement of the goods from Madras to Bombay. The inter-State movement of the goods was a result of the contract of sale and the fact that the contract emanated from correspondence which passed between the Bombay branch and the company could not make any difference. 17.

0[ds]The appellant in the present case sent the goods direct from the Madras branch factory to the Bombay buyer at Bhandup, Bombay. The railway receipt was in the name of the Bombay branch to secure payment against delivery. There was no question of diverting the goods which were sent to the Bombay buyer. When the movement of goods from one State to another is an incident of the contract it is a sale in the course of inter-State sale. It does not matter in which State the property in the goods passes. What is decisive is whether the sale is one which occasions the movement of goods from one State to another. The inter-State movement must be the result of a covenant, express or implied, in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the inter-State movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course of inter-State trade or commerce, that the covenant regarding inter-State movement must be specified in the contract itself. It will be enough if the movement is in pursuance of and incidental to the contract of saleWhen a branch of a company forwards a buyers order to the principal factory of the company and instructs them to despatch the goods direct to the buyer and the goods are sent to the buyer under those instructions it would not be sale between the factory and its branch. If there is a conceivable link between the movement of the goods and the buyers contract, and if in the course of inter-State movement the goods move only to reach the buyer in satisfaction of his contract of purchase and such a nexus is otherwise inexplicable, then the sale or purchase of the specific or ascertained goods ought to be deemed to have been taken place in the course of inter-State trade or commerce as such a sale or purchased occasioned the movement of the goods from one State to another. The presence of an intermediary such as the sellers own representatives or branch office, who initiated the contract may not make the matter different. Such an interception by a known person on behalf of the seller in the delivery State and such persons activities prior to or after the implementation of the contract may not alter the positionThe steps taken from the beginning to the end by the Bombay branch in co-ordination with the Madras factory show that the Bombay branch was merely acting as the intermediary between the Madras factory and the buyer and that is was the Madras factory which pursuant to the covenant in the contract of sale caused the movement of the goods from Madras to Bombay. The inter-State movement of the goods was a result of the contract of sale and the fact that the contract emanated from correspondence which passed between the Bombay branch and the company could not make any difference.

### 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 the Bombay buyer. The Madras branch in reply referred to the order of the Bombay buyer and gave particulars mentioning that the price was F.O.R. Madras. The Bombay branch thereafter wrote to the Bombay buyer reproducing all the particulars, conditions of sale and mode of despatch as stated by the Madras branch and further stated that the goods would be manufactured at the Madras branch factory." 9. It is important to note that all prices were shown F.O.R. Madras and it was further stated that all goods would be despatched at the risk of the Bombay buyer. It is in this context that the Bombay buyer on 27, May 1964 placed an order with the Bombay branch accepting all the terms and conditions. The Bombay branch placed an indent order addressed to the Madras branch giving all the particulars and stated the buyers name as Asha Metal Works, Bombay and gave the customers order number and the date viz., 27 May, 1964. The goods were to be despatched F.O.R. Madras. 10. The Bombay branch wrote to the Bombay buyer on August 28, 1964 that they had received an invoice from the factory at the Madras branch that some of the goods against the order of the Bombay buyer were ready for despatch. The Bombay branch asked the Bombay buyer to give the details of despatch and insurance instructions per return of post. The Bombay branch thereafter wrote to the Madras branch factory stating "Please despatch the equipment covered by our above indent by goods train to Bhandup Railway Station freight to pay. The Railway Receipt and other document to be sent to us for disposal". The Madras branch factory despatched the goods from Madras to Bombay by goods train and gave intimation to the Bombay branch. The goods were delivered to the Bombay buyer at Bhandup through clearing agents. 11. The goods were despatched from Madras at the risk of the buyer to Bombay. The goods were insured and insurance charges were collected from the buyer at Bombay. The freight charged from Madras to Bombay was borne by the buyer. The movement of the goods from Madras was an incident of the contract of sale. 12. for the appellant contended that there was no privity between the Madras branch and the Bombay buyer but that the privity was only between the Madras branch and the Bombay branch. It was also said that the Bombay branch was an independent and separate entity and the direct contract was between the Bombay branch and the Bombay buyer and the Madras factory were not parties to the contract. 13. The appellant has branches at different places. The appellant company is one entity and it carries on business at different branches. Branches have no independent and separate entity. Branches are different agencies. The contract of sale is between the appellant company and the Bombay buyer, 14. The appellant in the present case sent the goods direct from the Madras branch factory to the Bombay buyer at Bhandup, Bombay. The railway receipt was in the name of the Bombay branch to secure payment against delivery. There was no question of diverting the goods which were sent to the Bombay buyer. When the movement of goods from one State to another is an incident of the contract it is a sale in the course of inter-State sale. It does not matter in which State the property in the goods passes. What is decisive is whether the sale is one which occasions the movement of goods from one State to another. The inter-State movement must be the result of a covenant, express or implied, in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the inter-State movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course of inter-State trade or commerce, that the covenant regarding inter-State movement must be specified in the contract itself. It will be enough if the movement is in pursuance of and incidental to the contract of sale. 15. When a branch of a company forwards a buyers order to the principal factory of the company and instructs them to despatch the goods direct to the buyer and the goods are sent to the buyer under those instructions it would not be sale between the factory and its branch. If there is a conceivable link between the movement of the goods and the buyers contract, and if in the course of inter-State movement the goods move only to reach the buyer in satisfaction of his contract of purchase and such a nexus is otherwise inexplicable, then the sale or purchase of the specific or ascertained goods ought to be deemed to have been taken place in the course of inter-State trade or commerce as such a sale or purchased occasioned the movement of the goods from one State to another. The presence of an intermediary such as the sellers own representatives or branch office, who initiated the contract may not make the matter different. Such an interception by a known person on behalf of the seller in the delivery State and such persons activities prior to or after the implementation of the contract may not alter the position. 16. The steps taken from the beginning to the end by the Bombay branch in co-ordination with the Madras factory show that the Bombay branch was merely acting as the intermediary between the Madras factory and the buyer and that is was the Madras factory which pursuant to the covenant in the contract of sale caused the movement of the goods from Madras to Bombay. The inter-State movement of the goods was a result of the contract of sale and the fact that the contract emanated from correspondence which passed between the Bombay branch and the company could not make any difference. 17. ### Response: 0

JAI BHAVANI SHIKSHAN PRASARAK MANDAL Vs. RAMESH & ORS

by the Administrative Officer of the Respondent No. 1 is annexed herewith and marked as EXHIBIT H. 16. Unfortunately the School Tribunal as well as the High Court failed to take note of the very pleadings of the first respondent with regard to the circumstances in which the President of the Society could not continue as part of the Inquiry Committee. Therefore, the order of the School Tribunal was vitiated by perversity. 17. In any case, Rule 36(2)(a) begins with the words in the case of an employee. Rule 36(2)(b) begins with the words in the case of the Head referred to in Sub--rule (1). 18. The interpretation given by the School Tribunal and the High Court to the aforesaid Rule would have been acceptable, if Rule 36(2)(b) had began only with the words in the case of the Head. But it begins with the words in the case of the Head referred to in Sub--rule (1). 19. Sub--rule (1) refers to the Head who is also the Chief Executive Officer. Therefore, clause (b) of Sub--rule (2) of Rule 36 should be construed to apply only to a person who is the Head and who is also the Chief Executive Officer. Otherwise the words referred in Sub--rule (1) appearing in clause (b) would become redundant. 20. The Division Bench of the High Court relied upon the full Bench decision of the High Court in National Education Society (supra), to come to the conclusion that irrespective of whether the Head of the Institute is also the Chief Executive Officer or not, Rule 36(2)(b) mandates the President to be a member of the Inquiry Committee. A perusal of the Judgment of the Full Bench of the High Court of Bombay in National Education Society (supra) shows that the full Bench framed two questions for its consideration. Question No.2 framed by the Full Bench reads as follows:- Whether the President of the management has to be a member of the Enquiry Committee as specified in Rule 36(2) (b)(i) for holding disciplinary enquiry against the Head, whether or not he is the Chief Executive Officer within the meaning of Rule 2(c) of the Rules of 1981. 21. The above question was taken up for consideration by the full Bench in Paragraph 17 of its decision. In paragraphs 18 and 19, the full Bench held as under:- 18. Rule 36(1)(a) of the Rules provides for constitution of Inquiry Committee in respect of an employee while Rule 36(2)(b) provides for constitution of Inquiry Committee for the Head. We have already quoted the definition of Head in terms of Section 2(9) of the Act. If it is held that there is no requirement for the President of the management to be a member of the Inquiry Committee in case of the Head who is not the Chief Executive Officer, providing separate Inquiry Committee for the Head in Rule 36(2)(b) would be nugatory. In case such an interpretation is accepted Head of the school would be an employee for the purposes of Rule 36(2)(a) and there was no need to have separate constitution of Inquiry Committee in terms of Section 36(2)(b). It is well settled that the Legislature does not use any word unnecessarily. It would be appropriate to quote paragraph 9 of the judgment of the Apex Court in Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa reported in MANU/SC/0077/1987 : [1987]3SCR317. In para 9, the Apex Court observed as under: …Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily…. 19. We, therefore, hold that in case of Head whether or not he is empowered to act as Chief Executive Officer, the President of the management shall be a member of the Inquiry Committee as contemplated by Rule 36(2)(b)(i) of the Rules of 1981. 22. As could be seen from the portion of the Judgment extracted above, the full Bench was unduly carried away by the fact that the Head of an Institution will become equated to an employee, if it was held that the President of the Society need not be a member of the Inquiry Committee. But what the Full Bench omitted to take note of was that the Chief Executive Officer of a Society, such as the President, Secretary or Treasurer cannot be an employee of the Institution run by the Society and that a Chief Executive Officer such as the President or Secretary is liable to get elected and not entitled to remuneration. On the other hand, the Head of the Institution is essentially an employee who is entitled to remuneration, seniority, promotion, continuance in service till the age of superannuation etc., and who is subject to the disciplinary control of the Management. In fact the President or Secretary of the Society cannot be removed under the MEPS Rules. But the Head of the Institution can be removed only in terms of the Rules. Therefore, the interpretation given by the Full Bench of the High Court of Bombay in National Education Society (supra), under Rule 36(2)(b) may not be correct. 23. In any case, the High Court, in the impugned order, failed to take the note of doctrine of necessity. Once it is admitted, (i) that the disciplinary proceedings commenced with an Inquiry Committee of which the President was a member; and (ii) that subsequently he was replaced by someone due to ill health, the doctrine of necessity would come into play. Hence the impugned orders of the High Court and the School Tribunal are liable to be reversed.

0[ds]11. In the case on hand, there is and there can be no dispute about the fact that the first respondent was the Head within the meaning of the expression in terms of Section 2(9) of the Act, as he was the Principal of the Institute. But admittedly the first respondent was not the Secretary, Trustee or Correspondent of the Institute, to fall within the definition of the expression Chief Executive Officer under Rule 2(1)(c) of the Rules.12. The main contention of the first respondent which was accepted by the School Tribunal and the High Court was that by virtue of Rule 36(2)(b) of the Rules, the President of the Management should have been one of the members of the Inquiry Committee. There is no dispute about the fact that the President of the appellant--Society was not a member of the Inquiry Committee. But this fact provides only one part of the story.16. Unfortunately the School Tribunal as well as the High Court failed to take note of the very pleadings of the first respondent with regard to the circumstances in which the President of the Society could not continue as part of the Inquiry Committee. Therefore, the order of the School Tribunal was vitiated by perversity.18. The interpretation given by the School Tribunal and the High Court to the aforesaid Rule would have been acceptable, if Rule 36(2)(b) had began only with the words in the case of the Head. But it begins with the words in the case of the Head referred to in Sub--rule (1).19. Sub--rule (1) refers to the Head who is also the Chief Executive Officer. Therefore, clause (b) of Sub--rule (2) of Rule 36 should be construed to apply only to a person who is the Head and who is also the Chief Executive Officer. Otherwise the words referred in Sub--rule (1) appearing in clause (b) would become redundant.20. The Division Bench of the High Court relied upon the full Bench decision of the High Court in National Education Society (supra), to come to the conclusion that irrespective of whether the Head of the Institute is also the Chief Executive Officer or not, Rule 36(2)(b) mandates the President to be a member of the Inquiry Committee. A perusal of the Judgment of the Full Bench of the High Court of Bombay in National Education Society (supra) shows that the full Bench framed two questions for its consideration. Question No.2 framed by the Full Bench reads as follows:-Whether the President of the management has to be a member of the Enquiry Committee as specified in Rule 36(2) (b)(i) for holding disciplinary enquiry against the Head, whether or not he is the Chief Executive Officer within the meaning of Rule 2(c) of the Rules of 1981.21. The above question was taken up for consideration by the full Bench in Paragraph 17 of its decision. In paragraphs 18 and 19, the full Bench held as under:-18. Rule 36(1)(a) of the Rules provides for constitution of Inquiry Committee in respect of an employee while Rule 36(2)(b) provides for constitution of Inquiry Committee for the Head. We have already quoted the definition of Head in terms of Section 2(9) of the Act. If it is held that there is no requirement for the President of the management to be a member of the Inquiry Committee in case of the Head who is not the Chief Executive Officer, providing separate Inquiry Committee for the Head in Rule 36(2)(b) would be nugatory. In case such an interpretation is accepted Head of the school would be an employee for the purposes of Rule 36(2)(a) and there was no need to have separate constitution of Inquiry Committee in terms of Section 36(2)(b). It is well settled that the Legislature does not use any word unnecessarily. It would be appropriate to quote paragraph 9 of the judgment of the Apex Court in Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa reported in MANU/SC/0077/1987 : [1987]3SCR317. In para 9, the Apex Court observed as under:…Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily….19. We, therefore, hold that in case of Head whether or not he is empowered to act as Chief Executive Officer, the President of the management shall be a member of the Inquiry Committee as contemplated by Rule 36(2)(b)(i) of the Rules of 1981.22. As could be seen from the portion of the Judgment extracted above, the full Bench was unduly carried away by the fact that the Head of an Institution will become equated to an employee, if it was held that the President of the Society need not be a member of the Inquiry Committee. But what the Full Bench omitted to take note of was that the Chief Executive Officer of a Society, such as the President, Secretary or Treasurer cannot be an employee of the Institution run by the Society and that a Chief Executive Officer such as the President or Secretary is liable to get elected and not entitled to remuneration. On the other hand, the Head of the Institution is essentially an employee who is entitled to remuneration, seniority, promotion, continuance in service till the age of superannuation etc., and who is subject to the disciplinary control of the Management. In fact the President or Secretary of the Society cannot be removed under the MEPS Rules. But the Head of the Institution can be removed only in terms of the Rules. Therefore, the interpretation given by the Full Bench of the High Court of Bombay in National Education Society (supra), under Rule 36(2)(b) may not be correct.23. In any case, the High Court, in the impugned order, failed to take the note of doctrine of necessity. Once it is admitted, (i) that the disciplinary proceedings commenced with an Inquiry Committee of which the President was a member; and (ii) that subsequently he was replaced by someone due to ill health, the doctrine of necessity would come into play. Hence the impugned orders of the High Court and the School Tribunal are liable to be reversed.

### Instruction: Assess the case proceedings and provide a prediction: is the court likely to rule in favor of (1) or against (0) the appellant/petitioner? ### Input: by the Administrative Officer of the Respondent No. 1 is annexed herewith and marked as EXHIBIT H. 16. Unfortunately the School Tribunal as well as the High Court failed to take note of the very pleadings of the first respondent with regard to the circumstances in which the President of the Society could not continue as part of the Inquiry Committee. Therefore, the order of the School Tribunal was vitiated by perversity. 17. In any case, Rule 36(2)(a) begins with the words in the case of an employee. Rule 36(2)(b) begins with the words in the case of the Head referred to in Sub--rule (1). 18. The interpretation given by the School Tribunal and the High Court to the aforesaid Rule would have been acceptable, if Rule 36(2)(b) had began only with the words in the case of the Head. But it begins with the words in the case of the Head referred to in Sub--rule (1). 19. Sub--rule (1) refers to the Head who is also the Chief Executive Officer. Therefore, clause (b) of Sub--rule (2) of Rule 36 should be construed to apply only to a person who is the Head and who is also the Chief Executive Officer. Otherwise the words referred in Sub--rule (1) appearing in clause (b) would become redundant. 20. The Division Bench of the High Court relied upon the full Bench decision of the High Court in National Education Society (supra), to come to the conclusion that irrespective of whether the Head of the Institute is also the Chief Executive Officer or not, Rule 36(2)(b) mandates the President to be a member of the Inquiry Committee. A perusal of the Judgment of the Full Bench of the High Court of Bombay in National Education Society (supra) shows that the full Bench framed two questions for its consideration. Question No.2 framed by the Full Bench reads as follows:- Whether the President of the management has to be a member of the Enquiry Committee as specified in Rule 36(2) (b)(i) for holding disciplinary enquiry against the Head, whether or not he is the Chief Executive Officer within the meaning of Rule 2(c) of the Rules of 1981. 21. The above question was taken up for consideration by the full Bench in Paragraph 17 of its decision. In paragraphs 18 and 19, the full Bench held as under:- 18. Rule 36(1)(a) of the Rules provides for constitution of Inquiry Committee in respect of an employee while Rule 36(2)(b) provides for constitution of Inquiry Committee for the Head. We have already quoted the definition of Head in terms of Section 2(9) of the Act. If it is held that there is no requirement for the President of the management to be a member of the Inquiry Committee in case of the Head who is not the Chief Executive Officer, providing separate Inquiry Committee for the Head in Rule 36(2)(b) would be nugatory. In case such an interpretation is accepted Head of the school would be an employee for the purposes of Rule 36(2)(a) and there was no need to have separate constitution of Inquiry Committee in terms of Section 36(2)(b). It is well settled that the Legislature does not use any word unnecessarily. It would be appropriate to quote paragraph 9 of the judgment of the Apex Court in Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa reported in MANU/SC/0077/1987 : [1987]3SCR317. In para 9, the Apex Court observed as under: …Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily…. 19. We, therefore, hold that in case of Head whether or not he is empowered to act as Chief Executive Officer, the President of the management shall be a member of the Inquiry Committee as contemplated by Rule 36(2)(b)(i) of the Rules of 1981. 22. As could be seen from the portion of the Judgment extracted above, the full Bench was unduly carried away by the fact that the Head of an Institution will become equated to an employee, if it was held that the President of the Society need not be a member of the Inquiry Committee. But what the Full Bench omitted to take note of was that the Chief Executive Officer of a Society, such as the President, Secretary or Treasurer cannot be an employee of the Institution run by the Society and that a Chief Executive Officer such as the President or Secretary is liable to get elected and not entitled to remuneration. On the other hand, the Head of the Institution is essentially an employee who is entitled to remuneration, seniority, promotion, continuance in service till the age of superannuation etc., and who is subject to the disciplinary control of the Management. In fact the President or Secretary of the Society cannot be removed under the MEPS Rules. But the Head of the Institution can be removed only in terms of the Rules. Therefore, the interpretation given by the Full Bench of the High Court of Bombay in National Education Society (supra), under Rule 36(2)(b) may not be correct. 23. In any case, the High Court, in the impugned order, failed to take the note of doctrine of necessity. Once it is admitted, (i) that the disciplinary proceedings commenced with an Inquiry Committee of which the President was a member; and (ii) that subsequently he was replaced by someone due to ill health, the doctrine of necessity would come into play. Hence the impugned orders of the High Court and the School Tribunal are liable to be reversed. ### Response: 0

Sri Ramdas Motor Transport Ltd Vs. Tadi Adhinarayana Reddy & Other

misfeasance or other misconduct towards the company or towards any of its members; or that the members of the company have not been given all the information with respect to its affairs which they might reasonably expect. In these circumstances, on the basis of the opinion so framed by the Company Law Board, the Central Government may order an investigation. Neither the Central Government nor the Company Law Board has been moved by the first respondent in accordance with law for this purpose. In the case of Rohtas Industries v. S. D. Agarwal this Court examined the nature of the power conferred on the Central Government under Section 235 as well as Section 237(b) and held that the scheme of these sections makes it clear that unless proper grounds exist for investigation of the affairs of a company, such investigation will not be lightly undertaken. An investigation may seriously damage a company and should not be ordered without proper material gathered in the manner provided in the Companies Act. The power of investigation has been conferred on the Central Government on the faith that it will be exercised in a reasonable manner. The department of the Central Government which deals with companies is presumed to be an expert body in company law matters. Therefore the standard that is prescribed under Section 237(b) is not the standard required of an ordinary citizen but that of an expert 10. In the present case an attempt has been made by the first respondent to get the affairs of the company investigated in the manner provided under the Companies Act. Neither the Central Government nor the Company Law Board has been moved by the first respondent in accordance with law for this purpose. Instead of moving the authorities prescribed under the Companies Act the first respondent has chosen to resort to the writ jurisdiction of the High Court for a direction to have the affairs of the company investigated by the CBI 11. Under Section 397 of the Companies Act any member of a who company who complains that the affairs of the company are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members may apply to the Company Law Board for an order under that section. The Company Law Board has wide powers to make such orders as it may think fit to bring an end to the matters complained of. Some of the shareholders of the first appellant company have, in fact, filed petitions under Sections 397 and 398 of the Companies Act before the Company Law Board in which they have asked for similar reliefs including the appointment of an interim administrator. The acts of mismanagement and oppression complained of are similar to those set out in the writ petition before the High Court. The only ground alleged in the writ petition for moving the High Court under Article 226 is that the Company Law Board is not moving in the matter. Under an excuse that the Company Law Board has not yet made an order, a shareholder cannot be allowed to bypass the express provisions of the Companies Act and move the High Court under Article 226. A shareholder has very effective remedies under the Companies Act for prevention of oppression and mismanagement. When such remedies are available, the High Court should not readily entertain a petition under Article 226 12. The learned Single Judge before whom the present writ petition came up for hearing very rightly held that the Companies Act provides a forum to consider the grievances made out by the first respondent in the writ petition. When such a forum, statutorily constituted, exists, it is but appropriate that resort to Article 226 should be discouraged. There is an efficacious alternative remedy available under the statue. In fact under the Companies Act, a more satisfactory solution is available. The Single Judge was right in pointing out that some of the shareholders have initiated proceedings before the Company Law Board. The only grievance of the petitioner in the writ petition is that no orders have been passed thereon. The Single Judge has rightly held that such a grievance cannot constitute a ground for invoking the jurisdiction of the High Court under Article 226. He, therefore, dismissed the writ petition 13. In appeal, however, the Division Bench of the Andhra Pradesh High Court presided over by the Chief Justice, entertained the appeal on the ground that the petition raised many serious issues as to falsification of the accounts of a public limited company. It said that the acts of the company would jeopardize public interest. Therefore, the petition involved wider "public interest" and should be entertained. In the result the Division Bench issued a direction to the Central Government to make its own verification of the allegations in the writ petition. In other words, the Division Bench of the High Court directed an investigation into the affairs of the company, bypassing the detailed provisions with in-built safeguards under the Companies Act, designed specially for this purpose. The only ground for intervention appears to be "public interest". We fail to see what public interest is involved in disputes of the kind referred to in the writ petition. They basically deal with mismanagement of the affairs of the company and oppression of the minority shareholders. The company is only a deemed public limited company. Its shareholding is very closely held. The only other factor referred to in the writ petition to invoke the doctrine of so-called public interest, is the fact that the company had borrowed moneys from public institutions. This is no ground for not availing of the statutory remedies providing under the Companies Act before the appropriate statutory forums which are designed for this very purpose. We are distressed to find that the well-reasoned judgment of the Single Judge was interfered with in a casual manner. The impugned judgment rests on fragile foundations and reads more like an ipse dixit

1[ds]13. In appeal, however, the Division Bench of the Andhra Pradesh High Court presided over by the Chief Justice, entertained the appeal on the ground that the petition raised many serious issues as to falsification of the accounts of a public limited company. It said that the acts of the company would jeopardize public interest. Therefore, the petition involved wider "public interest" and should be entertained. In the result the Division Bench issued a direction to the Central Government to make its own verification of the allegations in the writ petition. In other words, the Division Bench of the High Court directed an investigation into the affairs of the company, bypassing the detailed provisions witht safeguards under the Companies Act, designed specially for this purpose. The only ground for intervention appears to be "public interest". We fail to see what public interest is involved in disputes of the kind referred to in the writ petition. They basically deal with mismanagement of the affairs of the company and oppression of the minority shareholders. The company is only a deemed public limited company. Its shareholding is very closely held. The only other factor referred to in the writ petition to invoke the doctrine ofd public interest, is the fact that the company had borrowed moneys from public institutions. This is no ground for not availing of the statutory remedies providing under the Companies Act before the appropriate statutory forums which are designed for this very purpose. We are distressed to find that thed judgment of the Single Judge was interfered with in a casual manner.

### 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: misfeasance or other misconduct towards the company or towards any of its members; or that the members of the company have not been given all the information with respect to its affairs which they might reasonably expect. In these circumstances, on the basis of the opinion so framed by the Company Law Board, the Central Government may order an investigation. Neither the Central Government nor the Company Law Board has been moved by the first respondent in accordance with law for this purpose. In the case of Rohtas Industries v. S. D. Agarwal this Court examined the nature of the power conferred on the Central Government under Section 235 as well as Section 237(b) and held that the scheme of these sections makes it clear that unless proper grounds exist for investigation of the affairs of a company, such investigation will not be lightly undertaken. An investigation may seriously damage a company and should not be ordered without proper material gathered in the manner provided in the Companies Act. The power of investigation has been conferred on the Central Government on the faith that it will be exercised in a reasonable manner. The department of the Central Government which deals with companies is presumed to be an expert body in company law matters. Therefore the standard that is prescribed under Section 237(b) is not the standard required of an ordinary citizen but that of an expert 10. In the present case an attempt has been made by the first respondent to get the affairs of the company investigated in the manner provided under the Companies Act. Neither the Central Government nor the Company Law Board has been moved by the first respondent in accordance with law for this purpose. Instead of moving the authorities prescribed under the Companies Act the first respondent has chosen to resort to the writ jurisdiction of the High Court for a direction to have the affairs of the company investigated by the CBI 11. Under Section 397 of the Companies Act any member of a who company who complains that the affairs of the company are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members may apply to the Company Law Board for an order under that section. The Company Law Board has wide powers to make such orders as it may think fit to bring an end to the matters complained of. Some of the shareholders of the first appellant company have, in fact, filed petitions under Sections 397 and 398 of the Companies Act before the Company Law Board in which they have asked for similar reliefs including the appointment of an interim administrator. The acts of mismanagement and oppression complained of are similar to those set out in the writ petition before the High Court. The only ground alleged in the writ petition for moving the High Court under Article 226 is that the Company Law Board is not moving in the matter. Under an excuse that the Company Law Board has not yet made an order, a shareholder cannot be allowed to bypass the express provisions of the Companies Act and move the High Court under Article 226. A shareholder has very effective remedies under the Companies Act for prevention of oppression and mismanagement. When such remedies are available, the High Court should not readily entertain a petition under Article 226 12. The learned Single Judge before whom the present writ petition came up for hearing very rightly held that the Companies Act provides a forum to consider the grievances made out by the first respondent in the writ petition. When such a forum, statutorily constituted, exists, it is but appropriate that resort to Article 226 should be discouraged. There is an efficacious alternative remedy available under the statue. In fact under the Companies Act, a more satisfactory solution is available. The Single Judge was right in pointing out that some of the shareholders have initiated proceedings before the Company Law Board. The only grievance of the petitioner in the writ petition is that no orders have been passed thereon. The Single Judge has rightly held that such a grievance cannot constitute a ground for invoking the jurisdiction of the High Court under Article 226. He, therefore, dismissed the writ petition 13. In appeal, however, the Division Bench of the Andhra Pradesh High Court presided over by the Chief Justice, entertained the appeal on the ground that the petition raised many serious issues as to falsification of the accounts of a public limited company. It said that the acts of the company would jeopardize public interest. Therefore, the petition involved wider "public interest" and should be entertained. In the result the Division Bench issued a direction to the Central Government to make its own verification of the allegations in the writ petition. In other words, the Division Bench of the High Court directed an investigation into the affairs of the company, bypassing the detailed provisions with in-built safeguards under the Companies Act, designed specially for this purpose. The only ground for intervention appears to be "public interest". We fail to see what public interest is involved in disputes of the kind referred to in the writ petition. They basically deal with mismanagement of the affairs of the company and oppression of the minority shareholders. The company is only a deemed public limited company. Its shareholding is very closely held. The only other factor referred to in the writ petition to invoke the doctrine of so-called public interest, is the fact that the company had borrowed moneys from public institutions. This is no ground for not availing of the statutory remedies providing under the Companies Act before the appropriate statutory forums which are designed for this very purpose. We are distressed to find that the well-reasoned judgment of the Single Judge was interfered with in a casual manner. The impugned judgment rests on fragile foundations and reads more like an ipse dixit ### Response: 1

M. Sitalakshmi Vs. Union of India (UOI) and Ors

4 had joined the same office on 07.07.1987 on ad hoc basis and was regularized w.e.f. 13.06.1988. In the seniority list of LDCs Respondent No. 4 was shown at serial No. 5 while the Appellant was at serial No. 10. As per Recruitment Rules, an LDC was eligible for promotion to the post of Upper Division Clerk ("UDC" for short) or Junior Stenographer; the post of UDC being a non-selection post to be filled by way of promotion from amongst the LDCs while that of Junior Stenographer was a selection post to be filled from amongst those LDCs who had rendered minimum period of three years and had qualified in the departmental examination in shorthand and typing test.2. Pursuant to the Circular dated 28.05.1996 inviting applications from all eligible LDCs to participate in the departmental examination for filling a vacancy in the post of Junior Stenographer, the Appellant applied and appeared in the examination. Having been found successful in the examination, she was promoted as Junior Stenographer against a regular vacancy vide order dated 10.09.1997 although her appointment was described as "ad hoc". In the meanwhile Respondent No. 4 was also promoted as UDC against an ad hoc vacancy. The Appellants promotion to the post of Junior Stenographer was questioned by Respondent No. 4 as well as the Staff Association in O.A. No. 226 of 1998 which was dismissed by the Central Administrative Tribunal vide order dated 26.05.1998 and the decision was affirmed by the High Court of Delhi by dismissing Writ Petition No. 2529 of 2000, preferred by Respondent No. 4.3. The Appellant thereafter preferred O.A. No. 2520 of 2000 seeking regularization as Junior Stenographer w.e.f. the date of her ad hoc appointment on the ground that she was eligible, fulfilled all qualifications and there always existed a regular vacancy. During the pendency of this OA, Respondent No. 4 and the Appellant were regularized w.e.f. 13.03.2001 and as such the challenge in the pending OA was confined to the question whether regularization ought to be from the date of ad hoc appointment. This OA was allowed by the tribunal. It was observed as under:We have carefully considered the rival pleas canvassed by the learned Counsel. It is not disputed that the applicant was selected for promotion to the post of Jr. Stenographer on the basis of a regularly conducted test, in accordance with the Recruitment Rules and against a clear vacancy, though the order termed the promotion as ad hoc in nature. It is also not in dispute that the challenge against, the said order of promotion was negative by the Tribunal, which decision has been endorsed by the Honble Delhi High Court. ......It is clearly a matter of record that the applicant was selected against a clear vacancy, through a proper selection process, in accordance with the relevant Recruitment Rules and, therefore, she is correctly entitled for getting the benefit of regularization from the date of her ad hoc appointment as laid down by the Honble Supreme Court in the decision cited by the applicant. Respondents action by their proceedings dated 14.3.2001, giving her the benefit of regularization w.e.f. 13.3.2001, does not meet with legal requirement and calls for modification.The tribunal thus allowed the application and directed that the Appellant be given promotion as Junior Stenographer on regular basis w.e.f. 10.09.1997 with consequential benefits.4. Soon thereafter Respondent No. 4 preferred O.A. No. 1351 of 2001 seeking similar benefits and submitted that she was also entitled to regularization as UDC w.e.f. 25.06.1996. The tribunal found that the case of the Appellant and Respondent No. 4 were distinguishable inasmuch as the Appellant was promoted against a regular vacancy after having been found eligible and successful in the test. The tribunal, therefore, dismissed the aforesaid O.A. No. 1351 of 2001.5. Respondent No. 4 filed Writ Petition Nos. 3049 of 2002 challenging the order of the tribunal allowing O.A. No. 2520 of 2000 preferred by the Appellant as well as Writ Petition No. 3050 of 2002 against the dismissal of O.A. No. 1351 of 2001. Both these matters were taken up together and by the judgment and order under appeal the High Court allowed the challenge in respect of O.A. No. 2520 of 2000, inter alia, on the ground that Respondent No. 4, though a necessary party, was not impleaded in the matter. The High Court, however, upheld the order of the tribunal dismissing O.A. No. 1351 of 2001 i.e. denying retrospective regularization to Respondent No. 4 in the post of UDC.6. We have heard learned Counsel appearing for the parties and considered rival submissions.7. In the first round initiated at the instance of Respondent No. 4 and the Staff Association, the tribunal had found that a post having fallen vacant, applications were invited from all LDCs vide Circular dated 28.05.1996 to appear in the competitive test, in which the Appellant was successful. It was observed that the Respondent No. 4 and all others were aware and yet did not appear at the test. The challenge was thus negated which decision was later affirmed by the High Court.8. The Appellant having thus been selected for promotion on the basis of regularly conducted test in accordance with the Recruitment Rules and against a clear vacancy, was right in contending that she was entitled to be regularized w.e.f. 10.01.1997. On the other hand, the contention of Respondent No. 4 seeking similar such entitlement was rejected by the tribunal, which decision also stood affirmed by the High Court. Since the relief claimed by the Appellant was pertaining to her appointment pursuant to the aforesaid test conducted in accordance with the Recruitment Rules in which test Respondent No. 4 had chosen not to appear, in her application requesting for regularization from 10.01.1997, the cause of action was completely independent of Respondent No. 4. In such an action Respondent No. 4 was not a necessary party at all. We, thus find that the High Court was completely in error in setting aside the decision of the tribunal.

1[ds]7. In the first round initiated at the instance of Respondent No. 4 and the Staff Association, the tribunal had found that a post having fallen vacant, applications were invited from all LDCs vide Circular dated 28.05.1996 to appear in the competitive test, in which the Appellant was successful. It was observed that the Respondent No. 4 and all others were aware and yet did not appear at the test. The challenge was thus negated which decision was later affirmed by the High Court8. The Appellant having thus been selected for promotion on the basis of regularly conducted test in accordance with the Recruitment Rules and against a clear vacancy, was right in contending that she was entitled to be regularized w.e.f. 10.01.1997. On the other hand, the contention of Respondent No. 4 seeking similar such entitlement was rejected by the tribunal, which decision also stood affirmed by the High Court. Since the relief claimed by the Appellant was pertaining to her appointment pursuant to the aforesaid test conducted in accordance with the Recruitment Rules in which test Respondent No. 4 had chosen not to appear, in her application requesting for regularization from 10.01.1997, the cause of action was completely independent of Respondent No. 4. In such an action Respondent No. 4 was not a necessary party at all. We, thus find that the High Court was completely in error in setting aside the decision of the tribunal.

### 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: 4 had joined the same office on 07.07.1987 on ad hoc basis and was regularized w.e.f. 13.06.1988. In the seniority list of LDCs Respondent No. 4 was shown at serial No. 5 while the Appellant was at serial No. 10. As per Recruitment Rules, an LDC was eligible for promotion to the post of Upper Division Clerk ("UDC" for short) or Junior Stenographer; the post of UDC being a non-selection post to be filled by way of promotion from amongst the LDCs while that of Junior Stenographer was a selection post to be filled from amongst those LDCs who had rendered minimum period of three years and had qualified in the departmental examination in shorthand and typing test.2. Pursuant to the Circular dated 28.05.1996 inviting applications from all eligible LDCs to participate in the departmental examination for filling a vacancy in the post of Junior Stenographer, the Appellant applied and appeared in the examination. Having been found successful in the examination, she was promoted as Junior Stenographer against a regular vacancy vide order dated 10.09.1997 although her appointment was described as "ad hoc". In the meanwhile Respondent No. 4 was also promoted as UDC against an ad hoc vacancy. The Appellants promotion to the post of Junior Stenographer was questioned by Respondent No. 4 as well as the Staff Association in O.A. No. 226 of 1998 which was dismissed by the Central Administrative Tribunal vide order dated 26.05.1998 and the decision was affirmed by the High Court of Delhi by dismissing Writ Petition No. 2529 of 2000, preferred by Respondent No. 4.3. The Appellant thereafter preferred O.A. No. 2520 of 2000 seeking regularization as Junior Stenographer w.e.f. the date of her ad hoc appointment on the ground that she was eligible, fulfilled all qualifications and there always existed a regular vacancy. During the pendency of this OA, Respondent No. 4 and the Appellant were regularized w.e.f. 13.03.2001 and as such the challenge in the pending OA was confined to the question whether regularization ought to be from the date of ad hoc appointment. This OA was allowed by the tribunal. It was observed as under:We have carefully considered the rival pleas canvassed by the learned Counsel. It is not disputed that the applicant was selected for promotion to the post of Jr. Stenographer on the basis of a regularly conducted test, in accordance with the Recruitment Rules and against a clear vacancy, though the order termed the promotion as ad hoc in nature. It is also not in dispute that the challenge against, the said order of promotion was negative by the Tribunal, which decision has been endorsed by the Honble Delhi High Court. ......It is clearly a matter of record that the applicant was selected against a clear vacancy, through a proper selection process, in accordance with the relevant Recruitment Rules and, therefore, she is correctly entitled for getting the benefit of regularization from the date of her ad hoc appointment as laid down by the Honble Supreme Court in the decision cited by the applicant. Respondents action by their proceedings dated 14.3.2001, giving her the benefit of regularization w.e.f. 13.3.2001, does not meet with legal requirement and calls for modification.The tribunal thus allowed the application and directed that the Appellant be given promotion as Junior Stenographer on regular basis w.e.f. 10.09.1997 with consequential benefits.4. Soon thereafter Respondent No. 4 preferred O.A. No. 1351 of 2001 seeking similar benefits and submitted that she was also entitled to regularization as UDC w.e.f. 25.06.1996. The tribunal found that the case of the Appellant and Respondent No. 4 were distinguishable inasmuch as the Appellant was promoted against a regular vacancy after having been found eligible and successful in the test. The tribunal, therefore, dismissed the aforesaid O.A. No. 1351 of 2001.5. Respondent No. 4 filed Writ Petition Nos. 3049 of 2002 challenging the order of the tribunal allowing O.A. No. 2520 of 2000 preferred by the Appellant as well as Writ Petition No. 3050 of 2002 against the dismissal of O.A. No. 1351 of 2001. Both these matters were taken up together and by the judgment and order under appeal the High Court allowed the challenge in respect of O.A. No. 2520 of 2000, inter alia, on the ground that Respondent No. 4, though a necessary party, was not impleaded in the matter. The High Court, however, upheld the order of the tribunal dismissing O.A. No. 1351 of 2001 i.e. denying retrospective regularization to Respondent No. 4 in the post of UDC.6. We have heard learned Counsel appearing for the parties and considered rival submissions.7. In the first round initiated at the instance of Respondent No. 4 and the Staff Association, the tribunal had found that a post having fallen vacant, applications were invited from all LDCs vide Circular dated 28.05.1996 to appear in the competitive test, in which the Appellant was successful. It was observed that the Respondent No. 4 and all others were aware and yet did not appear at the test. The challenge was thus negated which decision was later affirmed by the High Court.8. The Appellant having thus been selected for promotion on the basis of regularly conducted test in accordance with the Recruitment Rules and against a clear vacancy, was right in contending that she was entitled to be regularized w.e.f. 10.01.1997. On the other hand, the contention of Respondent No. 4 seeking similar such entitlement was rejected by the tribunal, which decision also stood affirmed by the High Court. Since the relief claimed by the Appellant was pertaining to her appointment pursuant to the aforesaid test conducted in accordance with the Recruitment Rules in which test Respondent No. 4 had chosen not to appear, in her application requesting for regularization from 10.01.1997, the cause of action was completely independent of Respondent No. 4. In such an action Respondent No. 4 was not a necessary party at all. We, thus find that the High Court was completely in error in setting aside the decision of the tribunal. ### Response: 1

Nirmal Kumar Khandelwal Vs. Union Of India And Ors

12(1) to confirm the order of detention. The confirmation of the detention order without anything more would result in an automatic continuation of the detention, even if there is no separate decision to continue the detention for any specific period as held by this Court in Dattatreya Moreshwar Pangarkar v. State of Bombay (1952 SCR 612 : AIR 1952 SC 181 : 1952 Cri LJ 955). When Section 12(1) of the Act speaks of "and continue the detention of the person concerned for such period as it thinks fit", it can only mean continuance of detention from the point of time at which detention would become illegal if the order of detention is not confirmed, namely, the expiry of 3 months from the date of detention. It would not be necessary to confirm the order of detention even after the receipt of the report of the Board by the Government if the Government only wants to continue the detention for the period of three months from the date of detention, as the initial order of detention would authorise the continuance of detention for that period without any confirmation. Confirmation is necessary only to continue the detention after the expiry of 3 months. If that be so, it stands to reason to hold that the order of detention must be confirmed before the expiry of 3 months.8. The observations extracted above, apply mutatis mutandis to the language of clause (f) of Section 8, which is similar. This clause runs as follows :"8. For the purposes of sub-clause (a) of clause (4), and sub-clause (c) of clause (7), of Article 22 of the Constitution -(f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.The key words in clause (f) are those which have been underlined. These very words were, also, employed in Section 12(1) of the West Bengal Prevention of Violent Activities Act, 1970, the interpretation of which had come up for consideration in the context of Article 22(4) of the Constitution in Ujjal Mandals case. These words also occurred in Sections 10 and 11 of the Preventive Detention Act, 1950, Which were in pari materia with Sections 11 and 12 of the Maintenance of Internal Security Act, 1971. The expression "may confirm" in clause (f) of Section 8 is significant. It imports a discretion. Even where the Advisory Board makes a report that in its opinion, there is sufficient cause for the detention concerned, the Government may not confirm the detention order. Read in the light of Article 22(4) of the Constitution and the context of the words "continue the detention", they definitely lead to the conclusion that the sine qua non for continuing the detention made beyond the period of three months, is the confirmation of the detention order by the appropriate Government. Conversely, the non-confirmation of the initial order by the appropriate Government before the expiry of the period of three months detention, shall automatically result in revocation and termination of the legal authority for its continuance. This position is further clear from the language of Section 10, which provides :The maximum period for which any person may be detained in pursuance of any detention order ... which has been confirmed under clause (f) of Section 8, shall be one year from the date of detention.The crucial words in the section are : "which has been confirmed under clause (f) of Section 8". They underscore the same policy which underlies the constitutional mandate in Article 22(4). These words put it beyond doubt that if the initial order of detention is not confirmed by the appropriate Government within three months of the date of the detention, the detention after the expiry of that period ipso facto becomes unauthorised and illegal."9. We do not find any merit in the contention that since the period prescribed for the Advisory Board to make its report has been increased from 10 weeks (as prescribed under MISA) to 11 weeks in COFEPOSA, leaving only a short period for the Government to take a decision under Section 8(f), the legislative intent was that the order of confirmation of the detention and its continuance could be made after the expiry of three months from the date of the detention. It is true that in certain situation when the Advisory Board makes its report in favour of the detention just before the expiry of 11 weeks from the date of the detention, the time left to the Government for taking a decision as to the confirmation of the detention and its continuance would be hardly two weeks. That only shows the anxiety on the part of the legislature to ensure that the Government continues the preventive detention of a person beyond three months after due application of mind and for that purpose acts with utmost promptitude. The law does not lend its authority to the continuance of the detention even for a day more than the initial period of three months if the Government does not take a decision for that purpose on the report of the Advisory Board within three months of the commencement of the detention.10. There is no reason to doubt the law enunciated by this Court in the aforesaid decisions. Respectfully following the ratio of those decisions, we hold that since no order of confirmation of the detention was made under clause (f) of Section 8 within three months of the date of detention by the appropriate Government, further detention of the petitioner after the expiry of that period is without the authority of law.

1[ds]6. Before dealing with these arguments, it may be noted that the aforesaid ground of challenge has been specifically adumbrated as Ground No. 12 in the petition. In the counter filed on behalf thethe fact that the order of confirmation of the detention was not passed by the appropriate Government within three months of the date of detention, appears to have been impliedly admitted in these terms :... No confirmation is needed on the part of the State Government. After the advice of the Advisory Board, the detention of the detenu was continued and the order of the State continuing the detention on the basis of the advice of the Advisory Report was served upon the detenu on February 27, 1978.Nothing has been placed before us to show that the order of detention was, in fact, passed by the appropriate Government within the requisite period of three months. We, therefore, take it that the order, if any, for confirmation of the detention of the petitioner by the Government, was made beyond three months of the date of the detention.7. The ground is now clear for considering the legal question raised by Mr. Asoke Sen. The decisions cited by Mr. Sen, primarily proceed on an interpretation of Article 22(4) of the Constitution, though they also in the context examine the relevant provisions of the detention law, under which the detention in question in those cases was purportedly made. We can do on better than reiterate what Mathew, J. Speaking for this Court, said in Ujjal Mandal;s case (supra) : (SCC p. 458, para 8)Article 22(4) of the Constitution has specified the maximum limit of initial detention, and detention for a longer period than 3 months can only be made on the basis of the report of the Board. The Act authorises a possible detention of more than 3 months. It is because the appropriate Government wants to detain a person for more that 3 months that the matter is referred to the Board and it is only when the Board makes its report that the appropriate Government can fix the period of detention under(1) of Section 12. So when the Government receives the report of the Board stating that there is sufficient cause for detention of a person, if the Government wants to detain him for a period beyond 3 months, it has to pass an order or make a decision under Section 12(1) to confirm the order of detention. The confirmation of the detention order without anything more would result in an automatic continuation of the detention, even if there is no separate decision to continue the detention for any specific period as held by this Court in Dattatreya Moreshwar Pangarkar v. State of Bombay (1952 SCR 612 : AIR 1952 SC 181 : 1952 Cri LJ 955). When Section 12(1) of the Act speaks of "and continue the detention of the person concerned for such period as it thinks fit", it can only mean continuance of detention from the point of time at which detention would become illegal if the order of detention is not confirmed, namely, the expiry of 3 months from the date of detention. It would not be necessary to confirm the order of detention even after the receipt of the report of the Board by the Government if the Government only wants to continue the detention for the period of three months from the date of detention, as the initial order of detention would authorise the continuance of detention for that period without any confirmation. Confirmation is necessary only to continue the detention after the expiry of 3 months. If that be so, it stands to reason to hold that the order of detention must be confirmed before the expiry of 3 months.8. The observations extracted above, apply mutatis mutandis to the language of clause (f) of Section 8, which iskey words in clause (f) are those which have been underlined. These very words were, also, employed in Section 12(1) of the West Bengal Prevention of Violent Activities Act, 1970, the interpretation of which had come up for consideration in the context of Article 22(4) of the Constitution in Ujjal Mandals case. These words also occurred in Sections 10 and 11 ofthe Preventive Detention Act, 1950, Which were in pari materia with Sections 11 and 12 of the Maintenance of Internal Security Act, 1971. The expression "may confirm" in clause (f) of Section 8 is significant. It imports a discretion. Even where the Advisory Board makes a report that in its opinion, there is sufficient cause for the detention concerned, the Government may not confirm the detention order. Read in the light of Article 22(4) of the Constitution and the context of the words "continue the detention", they definitely lead to the conclusion that the sine qua non for continuing the detention made beyond the period of three months, is the confirmation of the detention order by the appropriate Government. Conversely, theof the initial order by the appropriate Government before the expiry of the period of three months detention, shall automatically result in revocation and termination of the legal authority for its continuance. This position is further clear from the language of Section 10, which provides :The maximum period for which any person may be detained in pursuance of any detention order ... which has been confirmed under clause (f) of Section 8, shall be one year from the date of detention.The crucial words in the section are : "which has been confirmed under clause (f) of Section 8". They underscore the same policy which underlies the constitutional mandate in Article 22(4). These words put it beyond doubt that if the initial order of detention is not confirmed by the appropriate Government within three months of the date of the detention, the detention after the expiry of that period ipso facto becomes unauthorised and illegal.We do not find any merit in the contention that since the period prescribed for the Advisory Board to make its report has been increased from 10 weeks (as prescribed under MISA) to 11 weeks in COFEPOSA, leaving only a short period for the Government to take a decision under Section 8(f), the legislative intent was that the order of confirmation of the detention and its continuance could be made after the expiry of three months from the date of the detention. It is true that in certain situation when the Advisory Board makes its report in favour of the detention just before the expiry of 11 weeks from the date of the detention, the time left to the Government for taking a decision as to the confirmation of the detention and its continuance would be hardly two weeks. That only shows the anxiety on the part of the legislature to ensure that the Government continues the preventive detention of a person beyond three months after due application of mind and for that purpose acts with utmost promptitude. The law does not lend its authority to the continuance of the detention even for a day more than the initial period of three months if the Government does not take a decision for that purpose on the report of the Advisory Board within three months of the commencement of the detention.10. There is no reason to doubt the law enunciated by this Court in the aforesaid decisions. Respectfully following the ratio of those decisions, we hold that since no order of confirmation of the detention was made under clause (f) of Section 8 within three months of the date of detention by the appropriate Government, further detention of the petitioner after the expiry of that period is without the authority of law.

### 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: 12(1) to confirm the order of detention. The confirmation of the detention order without anything more would result in an automatic continuation of the detention, even if there is no separate decision to continue the detention for any specific period as held by this Court in Dattatreya Moreshwar Pangarkar v. State of Bombay (1952 SCR 612 : AIR 1952 SC 181 : 1952 Cri LJ 955). When Section 12(1) of the Act speaks of "and continue the detention of the person concerned for such period as it thinks fit", it can only mean continuance of detention from the point of time at which detention would become illegal if the order of detention is not confirmed, namely, the expiry of 3 months from the date of detention. It would not be necessary to confirm the order of detention even after the receipt of the report of the Board by the Government if the Government only wants to continue the detention for the period of three months from the date of detention, as the initial order of detention would authorise the continuance of detention for that period without any confirmation. Confirmation is necessary only to continue the detention after the expiry of 3 months. If that be so, it stands to reason to hold that the order of detention must be confirmed before the expiry of 3 months.8. The observations extracted above, apply mutatis mutandis to the language of clause (f) of Section 8, which is similar. This clause runs as follows :"8. For the purposes of sub-clause (a) of clause (4), and sub-clause (c) of clause (7), of Article 22 of the Constitution -(f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.The key words in clause (f) are those which have been underlined. These very words were, also, employed in Section 12(1) of the West Bengal Prevention of Violent Activities Act, 1970, the interpretation of which had come up for consideration in the context of Article 22(4) of the Constitution in Ujjal Mandals case. These words also occurred in Sections 10 and 11 of the Preventive Detention Act, 1950, Which were in pari materia with Sections 11 and 12 of the Maintenance of Internal Security Act, 1971. The expression "may confirm" in clause (f) of Section 8 is significant. It imports a discretion. Even where the Advisory Board makes a report that in its opinion, there is sufficient cause for the detention concerned, the Government may not confirm the detention order. Read in the light of Article 22(4) of the Constitution and the context of the words "continue the detention", they definitely lead to the conclusion that the sine qua non for continuing the detention made beyond the period of three months, is the confirmation of the detention order by the appropriate Government. Conversely, the non-confirmation of the initial order by the appropriate Government before the expiry of the period of three months detention, shall automatically result in revocation and termination of the legal authority for its continuance. This position is further clear from the language of Section 10, which provides :The maximum period for which any person may be detained in pursuance of any detention order ... which has been confirmed under clause (f) of Section 8, shall be one year from the date of detention.The crucial words in the section are : "which has been confirmed under clause (f) of Section 8". They underscore the same policy which underlies the constitutional mandate in Article 22(4). These words put it beyond doubt that if the initial order of detention is not confirmed by the appropriate Government within three months of the date of the detention, the detention after the expiry of that period ipso facto becomes unauthorised and illegal."9. We do not find any merit in the contention that since the period prescribed for the Advisory Board to make its report has been increased from 10 weeks (as prescribed under MISA) to 11 weeks in COFEPOSA, leaving only a short period for the Government to take a decision under Section 8(f), the legislative intent was that the order of confirmation of the detention and its continuance could be made after the expiry of three months from the date of the detention. It is true that in certain situation when the Advisory Board makes its report in favour of the detention just before the expiry of 11 weeks from the date of the detention, the time left to the Government for taking a decision as to the confirmation of the detention and its continuance would be hardly two weeks. That only shows the anxiety on the part of the legislature to ensure that the Government continues the preventive detention of a person beyond three months after due application of mind and for that purpose acts with utmost promptitude. The law does not lend its authority to the continuance of the detention even for a day more than the initial period of three months if the Government does not take a decision for that purpose on the report of the Advisory Board within three months of the commencement of the detention.10. There is no reason to doubt the law enunciated by this Court in the aforesaid decisions. Respectfully following the ratio of those decisions, we hold that since no order of confirmation of the detention was made under clause (f) of Section 8 within three months of the date of detention by the appropriate Government, further detention of the petitioner after the expiry of that period is without the authority of law. ### Response: 1

Pratibha Nema Vs. State Of M.P.

public purpose is evidently a result of after-thought. Moreover, by virtue of what is stated in the notices issued by the Land Acquisition Officer under Section 5A of the Act, no one could possibly have any doubt about the exact purpose of acquisition. True, it is not open to the Land Acquisition Officer to alter or expand the scope of public purpose as it is within the exclusive domain of the Government. But the Land Acquisition Officer by elaborating and making explicit what is really implicit in the notification under Section 4(1), had only dispelled the possible doubts in this regard so that no one will be handicapped in filing objections. It is in that light the step taken by the Land Acquisition Officer has to be viewed. We cannot countenance the contention that in doing so, the Land Acquisition Officer outstepped his jurisdiction.38. When no prejudice has been demonstrated nor could be reasonably inferred, it would be unjust and inappropriate to strike down the notification under Section 4(1) on the basis of a nebulous plea, in exercise of writ jurisdiction under Article 226. Even assuming that there is some ambiguity in particularizing the public purpose and the possibility of doubt cannot be ruled out, the Constitutional Courts in exercise of jurisdiction under Article 226 or 136 should not, as a matter of course, deal a lethan blow to the entire proceedings based on the theoretical or hypothetical grievance of the petitioner. It would be sound exercise of discretion to intervene when a real and substantial grievance is made out, the non redressal of which would cause prejudice and injustice to the aggrieved party. Vagueness of the public purpose, especially, in a matter like this where it is possible to take two views, is not something which affects the jurisdiction and it would therefore be proper to bear in mind the considerations of prejudice and injustice. Objection on the ground of ecological and security considerations 39. The last contention is that the proposed diamond park complex will be objectionable from the point of view of ecology and national security. Reliance is placed on some of the guidelines spelt out in the "Policy Statement for Abatement of Pollution" issued by Government of India, Ministry of Environment and Forests in the year 1992. At the outset, we must take note of the undisputed fact that the diamond cutting and polishing equipment and the operations connected therewith does not given rise to any pollution caused by emission of fumes, noise or discharge of effluents. The problem of air, water or soil pollution excepting to a minimal extent, caused on account of inhabitation and transportation, will not arise. The appellants, however, relied on the guidelines in order to contend that in locating the industries, a distance of 25 KMs from ecologically and/or otherwise sensitive areas should be maintained. It is submitted that the MHOW - a Defence establishment is within 10 KMs distance and the Centre for Advanced Technology (Department of Atomic Energy) is 3 kilo meters from the proposed site of diamond park. However, it is on record that the Army Headquarters expressed no objection from military security point of view for setting up the diamond park. So also, the Centre for the Advanced Technology in its letter addressed to the Managing Director of the Nigam made it clear that the establishment of diamond park would not cause any security problems to the said Centre. The Union Minister of State in the Ministry of Defence also stated on the floor of the Rajya Sabha on 11.9.1996 that there were no direct national security implications involved in the setting up of the proposed project. It is also pertinent to note that in the guidelines themselves, the need to strike a balance between economic and environmental considerations has been stressed. One of the guidelines is that no prime agricultural lands shall be converted into industrial site. But, there is no material on record to show that the lands in question are prime agricultural lands which were being utilized for growing crops. The guidelines enunciated in the policy statement have to be viewed realistically. The topography of the area and the development around the area are some of the factors that could be legitimately taken into account. On the basis of the materials placed before the Court it is not possible to hold that the proposed diamond park project will be detrimental to public health, safety or security so as to override the public interest that is served by setting up export-oriented industries. We have, therefore, no hesitation in rejecting this contention. Objection regarding acquisition of excess land 40. Before parting with the case, we may advert to one more contention advanced by the learned counsel for the appellant which is really a facet of the argument on the question of public purpose. It is contended that such a vast extent of land is in fact not required by any reasonable standards and there was total non application of mind as regards the extent of the land required. In reply to this, the learned Advocate-General has drawn our attention to the Lay Out Plan and pointed out that it was only on the basis of an assessment of the requirements, the extent of land to be acquired has been arrived at. Excepting oral assertions and bald averments, there is no material before us to reach the conclusion that the requirements were not properly assessed by the concerned authorities. It is primarily within the domain of State Government to decide how much extent of land has to be acquired keeping in view the present and future needs. Though, we are not inclined to find fault with the notification on this ground, we would only like to observe that it is desirable that the State Government makes a fresh assessment in the light of the latest situation and exclude any part of the land which may be found to be in excess. 41. For the reasons aforesaid, the

0[ds]In this state of affairs, the High Court was well justified in relying on the documents/books maintained in the ordinary course of business and recording a conclusion that the Cheque for Rs. 3 crores was issued by AKI Ltd., towards advance lease premium. The non-production of covering latter which according to the sixth respondent is not on its record, does not clinch the issue in favour of the appellants. Taking an overall picture, we are unable to hold that the conclusion of the High Court in this regard is perverse or unsustainable.We are of the view that none of the factors pointed out by the learned counsel for the appellants make any dent on the orientation towards public purpose nor do they establish that the acquisition was resorted to by the Government to achieve oblique ends. The speed at which the proposal was pursued should be appreciated rather than condemning it, though the overzealousness on the part of authorities concerned to short-circuit the procedure has turned out to be counter-productive. True, the tardy progress of acquisition would have sent wrong signals to the prospective investors, as contended by the learned Advocate-General. However, due attention should have been given to the legal formalities such as holding of enquiry, specification of public purpose in clear terms and giving sufficient indication of State meeting the cost of acquisition wholly or in part. At the same time, we cannot read mala fides in between the lines; in fact, no personal malice or uterior motives have been attributed to the Chief Minister or to any other official. The material placed before us do not lead to the necessary or even reasonable conclusion that the Government machinery identified itself with the private interests of the Company, forsaking public interest. Public purpose does not cease to be so merely because the acquisition facilitates the setting up of industry by a private enterprise and benefits it to that extent. Nor the existence or otherwise of public purpose be judged by the lead and initiative taken by the entrepreneurs desirous of setting up the industry and the measure of coordination between them and various state agencies. The fact that despite the unwillingness expressed by AKI Ltd., to go ahead with the project, the Government is still interested in acquisition is yet another pointer that the acquisition was motivated by public purpose.We do not think that the ratio of the decision in M.P. Housing Boards case would come to the rescue of the appellants. Though the State Government could have discreetly avoided to use sophisticated industrial jargon, we do not think that the specified public purpose is so vague and indefinite that the public will not be in a position to understand its nature and purpose. That such terminology has gained currency is evident from the fact that the same expression was used in the Industrial Policy document. It may not be out of place to mention that in the recent times, the terminology such as Industrial Park, Information Technology Park is widely in circulation. Moreover, against the column authorised officer under Section 4(2) (close to the column public purpose), the designation of Manager, District Industrial Centre, Indore is specified. This is a pointer to the fact that the land was being acquired for industrial purpose. We are therefore of the view that in the instant case, the alleged vagueness is not of such a degree as to defy sense and understanding.On the facts of the case, it is not possible to draw the conclusion that the appellants have suffered any prejudice or handicap on account of the alleged vagueness in the description of public purpose. First of all, the appellants did not, in the pleadings before the High Court, point out as to how the alleged ambiguity or vagueness had resulted in prejudice in he sense that they could not effectively object to the acquisition. On the other hand, the appellants filed detailed objections before the Land Acquisition Officer covering each and every aspect. The objections and representations filed from time to time would unequivocally indicate that they were fully aware of the exact purpose of acquisition. Raising the bogey of vagueness in public purpose is evidently a result of after-thought. Moreover, by virtue of what is stated in the notices issued by the Land Acquisition Officer under Section 5A of the Act, no one could possibly have any doubt about the exact purpose of acquisition. True, it is not open to the Land Acquisition Officer to alter or expand the scope of public purpose as it is within the exclusive domain of the Government. But the Land Acquisition Officer by elaborating and making explicit what is really implicit in the notification under Section 4(1), had only dispelled the possible doubts in this regard so that no one will be handicapped in filing objections. It is in that light the step taken by the Land Acquisition Officer has to be viewed. We cannot countenance the contention that in doing so, the Land Acquisition Officer outstepped his jurisdiction.38. When no prejudice has been demonstrated nor could be reasonably inferred, it would be unjust and inappropriate to strike down the notification under Section 4(1) on the basis of a nebulous plea, in exercise of writ jurisdiction under Article 226. Even assuming that there is some ambiguity in particularizing the public purpose and the possibility of doubt cannot be ruled out, the Constitutional Courts in exercise of jurisdiction under Article 226 or 136 should not, as a matter of course, deal a lethan blow to the entire proceedings based on the theoretical or hypothetical grievance of the petitioner. It would be sound exercise of discretion to intervene when a real and substantial grievance is made out, the non redressal of which would cause prejudice and injustice to the aggrieved party. Vagueness of the public purpose, especially, in a matter like this where it is possible to take two views, is not something which affects the jurisdiction and it would therefore be proper to bear in mind the considerations of prejudice and injustice. Objection on the ground of ecological and securitythe outset, we must take note of the undisputed fact that the diamond cutting and polishing equipment and the operations connected therewith does not given rise to any pollution caused by emission of fumes, noise or discharge of effluents. The problem of air, water or soil pollution excepting to a minimal extent, caused on account of inhabitation and transportation, will not arise. The appellants, however, relied on the guidelines in order to contend that in locating the industries, a distance of 25 KMs from ecologically and/or otherwise sensitive areas should be maintained. It is submitted that the MHOW - a Defence establishment is within 10 KMs distance and the Centre for Advanced Technology (Department of Atomic Energy) is 3 kilo meters from the proposed site of diamond park. However, it is on record that the Army Headquarters expressed no objection from military security point of view for setting up the diamond park. So also, the Centre for the Advanced Technology in its letter addressed to the Managing Director of the Nigam made it clear that the establishment of diamond park would not cause any security problems to the said Centre. The Union Minister of State in the Ministry of Defence also stated on the floor of the Rajya Sabha on 11.9.1996 that there were no direct national security implications involved in the setting up of the proposed project. It is also pertinent to note that in the guidelines themselves, the need to strike a balance between economic and environmental considerations has been stressed. One of the guidelines is that no prime agricultural lands shall be converted into industrial site. But, there is no material on record to show that the lands in question are prime agricultural lands which were being utilized for growing crops. The guidelines enunciated in the policy statement have to be viewed realistically. The topography of the area and the development around the area are some of the factors that could be legitimately taken into account. On the basis of the materials placed before the Court it is not possible to hold that the proposed diamond park project will be detrimental to public health, safety or security so as to override the public interest that is served by setting up export-oriented industries. We have, therefore, no hesitation in rejecting thisoral assertions and bald averments, there is no material before us to reach the conclusion that the requirements were not properly assessed by the concerned authorities. It is primarily within the domain of State Government to decide how much extent of land has to be acquired keeping in view the present and future needs. Though, we are not inclined to find fault with the notification on this ground, we would only like to observe that it is desirable that the State Government makes a fresh assessment in the light of the latest situation and exclude any part of the land which may be found to be in

### 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: public purpose is evidently a result of after-thought. Moreover, by virtue of what is stated in the notices issued by the Land Acquisition Officer under Section 5A of the Act, no one could possibly have any doubt about the exact purpose of acquisition. True, it is not open to the Land Acquisition Officer to alter or expand the scope of public purpose as it is within the exclusive domain of the Government. But the Land Acquisition Officer by elaborating and making explicit what is really implicit in the notification under Section 4(1), had only dispelled the possible doubts in this regard so that no one will be handicapped in filing objections. It is in that light the step taken by the Land Acquisition Officer has to be viewed. We cannot countenance the contention that in doing so, the Land Acquisition Officer outstepped his jurisdiction.38. When no prejudice has been demonstrated nor could be reasonably inferred, it would be unjust and inappropriate to strike down the notification under Section 4(1) on the basis of a nebulous plea, in exercise of writ jurisdiction under Article 226. Even assuming that there is some ambiguity in particularizing the public purpose and the possibility of doubt cannot be ruled out, the Constitutional Courts in exercise of jurisdiction under Article 226 or 136 should not, as a matter of course, deal a lethan blow to the entire proceedings based on the theoretical or hypothetical grievance of the petitioner. It would be sound exercise of discretion to intervene when a real and substantial grievance is made out, the non redressal of which would cause prejudice and injustice to the aggrieved party. Vagueness of the public purpose, especially, in a matter like this where it is possible to take two views, is not something which affects the jurisdiction and it would therefore be proper to bear in mind the considerations of prejudice and injustice. Objection on the ground of ecological and security considerations 39. The last contention is that the proposed diamond park complex will be objectionable from the point of view of ecology and national security. Reliance is placed on some of the guidelines spelt out in the "Policy Statement for Abatement of Pollution" issued by Government of India, Ministry of Environment and Forests in the year 1992. At the outset, we must take note of the undisputed fact that the diamond cutting and polishing equipment and the operations connected therewith does not given rise to any pollution caused by emission of fumes, noise or discharge of effluents. The problem of air, water or soil pollution excepting to a minimal extent, caused on account of inhabitation and transportation, will not arise. The appellants, however, relied on the guidelines in order to contend that in locating the industries, a distance of 25 KMs from ecologically and/or otherwise sensitive areas should be maintained. It is submitted that the MHOW - a Defence establishment is within 10 KMs distance and the Centre for Advanced Technology (Department of Atomic Energy) is 3 kilo meters from the proposed site of diamond park. However, it is on record that the Army Headquarters expressed no objection from military security point of view for setting up the diamond park. So also, the Centre for the Advanced Technology in its letter addressed to the Managing Director of the Nigam made it clear that the establishment of diamond park would not cause any security problems to the said Centre. The Union Minister of State in the Ministry of Defence also stated on the floor of the Rajya Sabha on 11.9.1996 that there were no direct national security implications involved in the setting up of the proposed project. It is also pertinent to note that in the guidelines themselves, the need to strike a balance between economic and environmental considerations has been stressed. One of the guidelines is that no prime agricultural lands shall be converted into industrial site. But, there is no material on record to show that the lands in question are prime agricultural lands which were being utilized for growing crops. The guidelines enunciated in the policy statement have to be viewed realistically. The topography of the area and the development around the area are some of the factors that could be legitimately taken into account. On the basis of the materials placed before the Court it is not possible to hold that the proposed diamond park project will be detrimental to public health, safety or security so as to override the public interest that is served by setting up export-oriented industries. We have, therefore, no hesitation in rejecting this contention. Objection regarding acquisition of excess land 40. Before parting with the case, we may advert to one more contention advanced by the learned counsel for the appellant which is really a facet of the argument on the question of public purpose. It is contended that such a vast extent of land is in fact not required by any reasonable standards and there was total non application of mind as regards the extent of the land required. In reply to this, the learned Advocate-General has drawn our attention to the Lay Out Plan and pointed out that it was only on the basis of an assessment of the requirements, the extent of land to be acquired has been arrived at. Excepting oral assertions and bald averments, there is no material before us to reach the conclusion that the requirements were not properly assessed by the concerned authorities. It is primarily within the domain of State Government to decide how much extent of land has to be acquired keeping in view the present and future needs. Though, we are not inclined to find fault with the notification on this ground, we would only like to observe that it is desirable that the State Government makes a fresh assessment in the light of the latest situation and exclude any part of the land which may be found to be in excess. 41. For the reasons aforesaid, the ### Response: 0

Janapada Sabha, Chhindwara Etc Vs. The Central Provinces Syndicate Ltd. And Anr.Etc

and that in any event the Act did not validate the levy of coal cess which had been imposed under the three notifications. Pandey, J., expressed a contrary view. He held that the provisions of Sec. 3 of Act 18 of 1964 were not invalid, "nor were they ineffective". The petitions were then referred to Shiv Dayal, J. The learned Judge agreed with Dixit, C. J., and held that Act 13 of 1964 "did not give legal effect to the imposition of cess at the rate of 4 pies, 7 pies or 9 pies per ton under the notifications issued by the Independent Mining Local Board nor to anything done in pursuance of those notifications.8. The preamble of the Act states that it is "An Act to validate the imposition and collection of cess on coal by certain local authorities". Act 18 of 1964 is a taxing statute which purports to rectify the defects pointed out by this Court. This Court declared invalid the levy of cess by the Independent Mining Local Board, Chhindwara, at a rate exceeding three pies per ton. If the Act does not by the plain language used therein carry out the object, the Court will not be justified in supplying deficiencies in the Act. As observed by Rowlatt, J. in Cape Brandy Syndicate v. Commrs. of Inland Revenue, (1921) 12 Tax Cas 358:"In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used."These observations were approved by the House of Lords in Canadian Eagle oil Co., Ltd. v. King, (l946) 27 Tax Cas 206. This Court has also adopted the same rule in Cammr of Income-tax v. Ajax Products Ltd., 55 ITR 741 = (AIR 1965 SC 1358 ) and Commr. Of Income-tax v. B. M. Kharwar, (1969) 1 SCR 651 = (AIR 1969 SC 812 ).9. The relevant words which purport to validate the imposition assessment and collection of cess on coal may be recalled: they are "cesses imposed, assessed or collected by the Board in pursuance of the notifications/notices specified in the Schedule shall, for all purposes, be deemed to be, and to have always been validly imposed, assessed or collected as if the enactment under which they were so issued stood amended at all material times so as to empower the Board to issue the said notifications/notices". Thereby the enactments, i. e. Act 4 of 1920 and the Rules framed under the Act pursuant to which the notifications and notices were issued, must be deemed to have been amended by the Act. But the Act does not set out the amendments intended to be made in the enactments. Act 18 of 1964 is a piece of clumsy drafting. By a fiction it deems the Act of 1920 and the rules framed thereunder to have been amended without disclosing the text or even the nature of the amendments.10. Mr. B. Sen appearing on behalf of the Sabha contended that the intention of the Legislature was to repeal with retrospective effect sub-sec. (2) of Sec. 51 of Act 4 of 1920. By Sec. 51 of Act 4 of 1920 it was provided:"(1) Subject to the provisions of any law or enactment for the time being in force, a District Council may, by a resolution passed by a majority of not less than two-thirds of the members present at a special meeting convened for the purpose, impose any tax, toll or rate * * *(2) The first imposition of any tax, toll or rate under sub-section (1) Shall be subject to the previous sanction of the Provincial Government.* * * * ** * * * *11. But the Act in terms is limited in its application to the Independent Mining Local Board, Chhindwara, and its successor body the Janapada Sabha Chhindwara constituted under Act 38 of 1948, and only in respect of the three notifications specified in the Schedule. Obviously the Act limited to one local Board in its application and to certain specific notifications cannot operate to repeal the clause insofar as it applied to other Boards.12. The nature of the amendment made in Act 4 of 1920 has not been indicated. Nor is there anything which enacts that the notifications issued without the sanction of the State Government must be deemed to have been issued validly under Sec. 51 (2) without the sanction of the Local Government. On the words used in the Act, it is plain that the Legislature attempted to overrule or set aside the decision of this Court. That, in our Judgment, is not open to the Legislature to do under our constitutional scheme. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court.13. This Court in Amalgamated Coalfields Ltd.s case, 1963 Supp (1) SCR 172 = (AIR 1964 SC 1013 ), held that the cess was not validly imposed and levied because the sanction of the State Government was not obtained at the time of enhancing the rate of levy of tax. That judgment was binding between the parties and also by virtue of Article 141 binding on all Courts in the territory of India. The Legislature could not say that declaration of law was either erroneous, invalid or ineffective either as a precedent or between the parties.14. It is unnecessary then to consider whether the repealed Act may be amended without re-enactment.15.

0[ds]The nature of the amendment made in Act 4 of 1920 has not been indicated. Nor is there anything which enacts that the notifications issued without the sanction of the State Government must be deemed to have been issued validly under Sec. 51 (2) without the sanction of the Local Government. On the words used in the Act, it is plain that the Legislature attempted to overrule or set aside the decision of this Court. That, in our Judgment, is not open to the Legislature to do under our constitutional scheme. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court.This Court in Amalgamated Coalfields Ltd.s case, 1963 Supp (1) SCR 172 = (AIR 1964 SC 1013 ), held that the cess was not validly imposed and levied because the sanction of the State Government was not obtained at the time of enhancing the rate of levy of tax. That judgment was binding between the parties and also by virtue of Article 141 binding on all Courts in the territory of India. The Legislature could not say that declaration of law was either erroneous, invalid or ineffective either as a precedent or between the parties.It is unnecessary then to consider whether the repealed Act may be amended without re-enactment.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: and that in any event the Act did not validate the levy of coal cess which had been imposed under the three notifications. Pandey, J., expressed a contrary view. He held that the provisions of Sec. 3 of Act 18 of 1964 were not invalid, "nor were they ineffective". The petitions were then referred to Shiv Dayal, J. The learned Judge agreed with Dixit, C. J., and held that Act 13 of 1964 "did not give legal effect to the imposition of cess at the rate of 4 pies, 7 pies or 9 pies per ton under the notifications issued by the Independent Mining Local Board nor to anything done in pursuance of those notifications.8. The preamble of the Act states that it is "An Act to validate the imposition and collection of cess on coal by certain local authorities". Act 18 of 1964 is a taxing statute which purports to rectify the defects pointed out by this Court. This Court declared invalid the levy of cess by the Independent Mining Local Board, Chhindwara, at a rate exceeding three pies per ton. If the Act does not by the plain language used therein carry out the object, the Court will not be justified in supplying deficiencies in the Act. As observed by Rowlatt, J. in Cape Brandy Syndicate v. Commrs. of Inland Revenue, (1921) 12 Tax Cas 358:"In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used."These observations were approved by the House of Lords in Canadian Eagle oil Co., Ltd. v. King, (l946) 27 Tax Cas 206. This Court has also adopted the same rule in Cammr of Income-tax v. Ajax Products Ltd., 55 ITR 741 = (AIR 1965 SC 1358 ) and Commr. Of Income-tax v. B. M. Kharwar, (1969) 1 SCR 651 = (AIR 1969 SC 812 ).9. The relevant words which purport to validate the imposition assessment and collection of cess on coal may be recalled: they are "cesses imposed, assessed or collected by the Board in pursuance of the notifications/notices specified in the Schedule shall, for all purposes, be deemed to be, and to have always been validly imposed, assessed or collected as if the enactment under which they were so issued stood amended at all material times so as to empower the Board to issue the said notifications/notices". Thereby the enactments, i. e. Act 4 of 1920 and the Rules framed under the Act pursuant to which the notifications and notices were issued, must be deemed to have been amended by the Act. But the Act does not set out the amendments intended to be made in the enactments. Act 18 of 1964 is a piece of clumsy drafting. By a fiction it deems the Act of 1920 and the rules framed thereunder to have been amended without disclosing the text or even the nature of the amendments.10. Mr. B. Sen appearing on behalf of the Sabha contended that the intention of the Legislature was to repeal with retrospective effect sub-sec. (2) of Sec. 51 of Act 4 of 1920. By Sec. 51 of Act 4 of 1920 it was provided:"(1) Subject to the provisions of any law or enactment for the time being in force, a District Council may, by a resolution passed by a majority of not less than two-thirds of the members present at a special meeting convened for the purpose, impose any tax, toll or rate * * *(2) The first imposition of any tax, toll or rate under sub-section (1) Shall be subject to the previous sanction of the Provincial Government.* * * * ** * * * *11. But the Act in terms is limited in its application to the Independent Mining Local Board, Chhindwara, and its successor body the Janapada Sabha Chhindwara constituted under Act 38 of 1948, and only in respect of the three notifications specified in the Schedule. Obviously the Act limited to one local Board in its application and to certain specific notifications cannot operate to repeal the clause insofar as it applied to other Boards.12. The nature of the amendment made in Act 4 of 1920 has not been indicated. Nor is there anything which enacts that the notifications issued without the sanction of the State Government must be deemed to have been issued validly under Sec. 51 (2) without the sanction of the Local Government. On the words used in the Act, it is plain that the Legislature attempted to overrule or set aside the decision of this Court. That, in our Judgment, is not open to the Legislature to do under our constitutional scheme. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court.13. This Court in Amalgamated Coalfields Ltd.s case, 1963 Supp (1) SCR 172 = (AIR 1964 SC 1013 ), held that the cess was not validly imposed and levied because the sanction of the State Government was not obtained at the time of enhancing the rate of levy of tax. That judgment was binding between the parties and also by virtue of Article 141 binding on all Courts in the territory of India. The Legislature could not say that declaration of law was either erroneous, invalid or ineffective either as a precedent or between the parties.14. It is unnecessary then to consider whether the repealed Act may be amended without re-enactment.15. ### Response: 0

PUNJAB NATIONAL BANK & ORS Vs. ATMANAND SINGH & ORS.

as it can be made applicable. The words as far as it can be made applicable make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioners right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition (see Gunwant Kaur v. Bhatinda Municipality [(1969) 3 SCC 769] . If, however, on consideration of the nature of the controversy, the High Court decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respect. (emphasis supplied) This decision has noticed Smt. Gunwant Kaur (supra), which had unmistakably held that when the petition raises complex questions of facts, the High Court may decline to try a petition. It is further observed that if on consideration of the nature of the controversy, the High Court decides to go into the disputed questions of fact, it would be free to do so on sound judicial principles. Despite the factual matrix in the present case, the High Court not only ventured to entertain the writ petition, but dealt with the same in a casual manner without adjudicating the disputed questions of fact by taking into account all aspects of the matter. The manner in which the Court disposed of the writ petition, by no stretch of imagination, can qualify the test of discretion having been exercised on sound judicial principles. 19. In Hyderabad Commercials (supra), on which reliance has been placed, it is clear from paragraph 4 of the said decision that the Bank had admitted its mistake and liability, but took a specious plea about the manner in which the transfer was effected. On that stand, the Court proceeded to grant relief to the appellant therein, the account holder. In the present case, however, the concerned officials of the Bank have denied of being party to the stated agreement and have expressly asserted that the said document is forged and fabricated. It is neither a case of admitted liability nor to proceed against the appellant Bank on the basis of indisputable facts. 20. Even the decision in ABL International Ltd. (supra) will be of no avail to the respondent No. 1. This decision has referred to all the earlier decisions and in paragraph 28, the Court observed as follows: - 28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1]) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction. (emphasis supplied) 21. For the view that we have taken, it is not necessary for us to dilate on the decisions of this Court in Bhinka (supra) and Kaliya (supra), which have dealt with the efficacy and admissibility of certified copies of the relevant documents. Be it noted that these decisions are in reference to the suit/trial in the concerned case, where the documents are required to be proved by the party relying upon it by examining competent witnesses to prove the existence thereof and also their contents. 22. A priori, we have no hesitation in taking the view that in the facts of the present case, the High Court should have been loath to entertain the writ petition filed by the respondent No. 1 and should have relegated the respondent No. 1 to appropriate remedy for adjudication of all contentious issues between the parties.

1[ds]11. From the factual matrix highlighted hitherto, it is manifest that there is no unanimity between the appellant-Bank and the respondent No. 1 on the relevant facts, on the basis of which the relief sought in the writ petition was founded. The Bank had expressly denied the existence of the alleged agreement dated 27.5.1990 including the fact that the respondent No. 1 had deposited the amount of Rs.14,93,000/- (Rupees fourteen lakhs ninety-three thousand only). The Bank had relied upon the affidavits of the concerned Bank officials, and also on the report of the District Magistrate referred to in his affidavit dated 5.5.2016 filed before the Division Bench of the High Court in compliance of its order dated 18.3.2016. The Bank had categorically denied the case set up by the respondent No. 1 in the writ petition in toto; and moreso the stand taken by the Bank could be substantiated on the preponderance of probabilities. In other words, the case set up by the respondent No. 1 in the writ petition is neither an admitted position nor is it possible to even remotely suggest that it is indisputable, so as to bind the appellant-Bank on that basis. Moreover, from the narration of facts, it is more than clear that it would involve scrutiny of complex matters and issues including about the existence of the very agreement, which is the foundational evidence for seeking relief as prayed in the writ petition. In that, the genuineness and existence of the stated agreement has been put in issue by the appellant-Bank and which is made good on the basis of affidavits of concerned Bank officials and even supported by the report of the District Magistrate referred to in his affidavit dated 5.5.201612. Notably, the respondent No. 1 had filed similar writ petition against another bank in the year 1995, which came to be rejected as the facts stated therein were also disputed by that bank. In the present case, however, the learned single Judge was impressed by the specious fact that the respondent No. 1 had produced plethora of documents and thus assumed that the appellant bank wanted to wriggle out of the ticklish situation by raising technical objection of maintainability of the writ application. This observation of the learned single Judge is nothing short of being based on surmises and conjectures. The matter such as the present one, could not be decided on the basis of some inference or a feeling gathered by the Court as noted in the impugned judgments. The hard facts on record clearly suggested that the appellant-Bank had supported its plea by relying on affidavits of the concerned Bank officials including the report of the District Magistrate. The learned single Judge very conveniently ignored that aspect and proceeded to hold that the appellant-Bank was suffering from selective amnesia, having noted that voluminous documents are relied upon by the respondent No. 1 (writ petitioner) and thus assumed that the same could not be created or manufactured13. Be that as it may, the learned single Judge without analysing the entirety of the stand of the appellant and the relevant documents, proceeded to make observations about the conduct of the appellant-Bank, which was certainly avoidable. We say so because, the High Court could not have assumed that the documents produced by the respondent No. 1 (writ petitioner) are genuine and admissible, despite the express denial by the appellant-Bank and its officials on affidavit about being party to the said agreement as alleged. If one reads the stated agreement, it is in the nature of an order passed by some authority, running into almost 20 closely typed pages, recording the stand taken by the parties in the form of an agreement between them. From the terms stated therein, it is unfathomable as to how the Bank would agree to such onerous terms. Concededly, no policy document or authorisation of the signatory of the Bank has been produced which would indicate that such an agreement could be reached by the Bank with the respondent No. 114. Be it noted that on one hand, the case made out by the respondent No. 1 is that he had sold his family gold and the sale proceeds received were deposited in the concerned Branch of the appellant Bank for withdrawal, as the amount was required by him for meeting medical expenses of his ailing son suffering from cancer. At the same time, vide alleged agreement, the respondent No. 1 conveniently agrees to invest the amount for seven (7) years, which circumstance also raises serious doubt about the genuineness of the document. We do not wish to elaborate on the terms set out in the subject agreement except to observe that the plea taken by the appellant-Bank about genuineness of the document is debatable (triable) and is not a case of admitted position or indisputable fact, so as to proceed against the appellant-Bank by directing payment of the amount claimed by the respondent No. 1 (writ petitioner), on the basis of such an agreement15. The judgment of the learned single Judge has completely glossed over these crucial aspects and the writ petition has been disposed of in a very casual manner. The Division Bench of the High Court committed the same error in upholding the decision of the learned single Judge. The Division Bench has not even analysed the efficacy of the affidavits filed in support of the stand taken by the appellant-Bank during the pendency of the LPA. It merely reiterates the view taken by the learned single Judge in just two short paragraphs reproduced in paragraph 6 above. It has not analysed the efficacy of the proceedings in Misc. Case No. 04 (DW1) PNB/1989-90, as well as, the certified copy of the proceedings filed in appeal before it, in the context of affidavits of Bank officials and report of the District Magistrate. The Division Bench was also misled by the voluminous documents relied upon by the respondent No. 1 and assumed that the same could not be a figment of imagination or a piece of fiction16. Even if the impugned judgments were to be read as a whole, there is no analysis of the relevant documents and in particular, the stand taken by the appellant-Bank expressly denying the existence of the stated agreement and genuineness thereof, which plea was reinforced from the affidavits of the concerned Bank officials and the report of the District Magistrate. Notably, the District Magistrate in the affidavit filed in compliance of the order dated 18.3.2016 had clearly denied the existence of the stated proceedings for want of contemporaneous official record in that regard. This aspect has not been taken into account by the High Court at all. On facts, therefore, the High Court committed manifest error in disregarding the core jurisdictional issue that the matter on hand involved complex factual aspects, which could not be adjudicated in exercise of writ jurisdictionWe restate the above position that when the petition raises questions of fact of complex nature, such as in the present case, which may for their determination require oral and documentary evidence to be produced and proved by the concerned party and also because the relief sought is merely for ordering a refund of money, the High Court should be loath in entertaining such writ petition and instead must relegate the parties to remedy of a civil suit. Had it been a case where material facts referred to in the writ petition are admitted facts or indisputable facts, the High Court may be justified in examining the claim of the writ petitioner on its own merits in accordance with lawIt is neither a case of admitted liability nor to proceed against the appellant Bank on the basis of indisputable facts21. For the view that we have taken, it is not necessary for us to dilate on the decisions of this Court in Bhinka (supra) and Kaliya (supra), which have dealt with the efficacy and admissibility of certified copies of the relevant documents. Be it noted that these decisions are in reference to the suit/trial in the concerned case, where the documents are required to be proved by the party relying upon it by examining competent witnesses to prove the existence thereof and also their contents22. A priori, we have no hesitation in taking the view that in the facts of the present case, the High Court should have been loath to entertain the writ petition filed by the respondent No. 1 and should have relegated the respondent No. 1 to appropriate remedy for adjudication of all contentious issues between the parties.

### Instruction: Examine the case narrative and anticipate the court's decision: will it result in an approval (1) or disapproval (0) of the appeal? ### Input: as it can be made applicable. The words as far as it can be made applicable make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioners right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition (see Gunwant Kaur v. Bhatinda Municipality [(1969) 3 SCC 769] . If, however, on consideration of the nature of the controversy, the High Court decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respect. (emphasis supplied) This decision has noticed Smt. Gunwant Kaur (supra), which had unmistakably held that when the petition raises complex questions of facts, the High Court may decline to try a petition. It is further observed that if on consideration of the nature of the controversy, the High Court decides to go into the disputed questions of fact, it would be free to do so on sound judicial principles. Despite the factual matrix in the present case, the High Court not only ventured to entertain the writ petition, but dealt with the same in a casual manner without adjudicating the disputed questions of fact by taking into account all aspects of the matter. The manner in which the Court disposed of the writ petition, by no stretch of imagination, can qualify the test of discretion having been exercised on sound judicial principles. 19. In Hyderabad Commercials (supra), on which reliance has been placed, it is clear from paragraph 4 of the said decision that the Bank had admitted its mistake and liability, but took a specious plea about the manner in which the transfer was effected. On that stand, the Court proceeded to grant relief to the appellant therein, the account holder. In the present case, however, the concerned officials of the Bank have denied of being party to the stated agreement and have expressly asserted that the said document is forged and fabricated. It is neither a case of admitted liability nor to proceed against the appellant Bank on the basis of indisputable facts. 20. Even the decision in ABL International Ltd. (supra) will be of no avail to the respondent No. 1. This decision has referred to all the earlier decisions and in paragraph 28, the Court observed as follows: - 28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1]) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction. (emphasis supplied) 21. For the view that we have taken, it is not necessary for us to dilate on the decisions of this Court in Bhinka (supra) and Kaliya (supra), which have dealt with the efficacy and admissibility of certified copies of the relevant documents. Be it noted that these decisions are in reference to the suit/trial in the concerned case, where the documents are required to be proved by the party relying upon it by examining competent witnesses to prove the existence thereof and also their contents. 22. A priori, we have no hesitation in taking the view that in the facts of the present case, the High Court should have been loath to entertain the writ petition filed by the respondent No. 1 and should have relegated the respondent No. 1 to appropriate remedy for adjudication of all contentious issues between the parties. ### Response: 1

Phoenix ARC Private Limited Vs. Vishwa Bharati Vidya Mandir & Ors

otherwise, it is required to be noted that a writ petition against the private financial institution – ARC – appellant herein under Article 226 of the Constitution of India against the proposed action/actions under Section 13(4) of the SARFAESI Act can be said to be not maintainable. In the present case, the ARC proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor. The ARC as such cannot be said to be performing public functions which are normally expected to be performed by the State authorities. During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the State authorities. If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. Therefore, decisions of this Court in the cases of Praga Tools Corporation (supra) and Ramesh Ahluwalia (supra) relied upon by the learned counsel appearing on behalf of the borrowers are not of any assistance to the borrowers. 13. Now, so far as the submission on behalf of the borrowers that in exercise of the powers under Article 226 of the Constitution, this Court may not interfere with the interim / interlocutory orders is concerned, the decision of this Court in the case of Mathew K.C. (supra) is required to be referred to. 13.1 In the case of Mathew K.C. (supra) after referring to and/or considering the decision of this Court in the case of Chhabil Dass Agarwal (supra), it was observed and held in paragraph 5 as under:- 5. We have considered the submissions on behalf of the parties. Normally this Court in exercise of jurisdiction under Article 136 of the Constitution is loath to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal [CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603] , as follows: (SCC p. 611, para 15) 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [Thansingh Nathmal v. Supt. of Taxes, AIR 1964 SC 1419 ] , Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 13.2 Applying the law laid down by this Court in the case of Mathew K.C. (supra) to the facts on hand, we are of the opinion that filing of the writ petitions by the borrowers before the High Court under Article 226 of the Constitution of India is an abuse of process of the Court. The writ petitions have been filed against the proposed action to be taken under Section 13(4). As observed hereinabove, even assuming that the communication dated 13.08.2015 was a notice under Section 13(4), in that case also, in view of the statutory, efficacious remedy available by way of appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petitions. Even the impugned orders passed by the High Court directing to maintain the status quo with respect to the possession of the secured properties on payment of Rs.1 crore only (in all Rs.3 crores) is absolutely unjustifiable. The dues are to the extent of approximately Rs.117 crores. The ad-interim relief has been continued since 2015 and the secured creditor is deprived of proceeding further with the action under the SARFAESI Act. Filing of the writ petition by the borrowers before the High Court is nothing but an abuse of process of Court. It appears that the High Court has initially granted an ex-parte ad-interim order mechanically and without assigning any reasons. The High Court ought to have appreciated that by passing such an interim order, the rights of the secured creditor to recover the amount due and payable have been seriously prejudiced. The secured creditor and/or its assignor have a right to recover the amount due and payable to it from the borrowers. The stay granted by the High Court would have serious adverse impact on the financial health of the secured creditor/assignor. Therefore, the High Court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters. In these circumstances, the proceedings before the High Court deserve to be dismissed.

1[ds]7. At the outset, it is required to be noted that in the present case, the respondents – borrowers whose accounts have been declared as NPA in the year 2013 have filed the writ petitions before the High Court challenging the communication dated 13.08.2015 purporting it to be a notice under Section 13(4) of the SARFAESI Act. It is required to be noted that as per the appellant – assignor approximately Rs.117 crores is due and payable to the Bank. While passing the ex-parte interim order on 26.08.2015 and while entertaining the writ petitions against the communication dated 13.08.2015, the High Court has directed to maintain status quo with respect to the possession of the secured properties on condition that the borrowers deposit Rs. 1 crore only. Despite the fact that subsequently an application for vacating the ex- parte ad-interim order has been filed in the year 2016, the application for vacating the interim order has not been decided and disposed of. On the contrary, the High Court thereafter has further extended the ex-parte ad-interim order dated 26.08.2015 on condition that the borrowers should deposit a further sum of Rs. 1 crore. Thus, in all the borrowers are directed to deposit Rs. 3 crores only against the dues of approximately Rs.117 crores.7.3 In the case of Satyawati Tondon & Ors. (supra), it was observed and held by this Court that the remedies available to an aggrieved person against the action taken under section 13(4) or Section 14 of the SARFAESI Act, by way of appeal under Section 17, can be said to be both expeditious and effective. On maintainability of or entertainability of a writ petition under Article 226 of the Constitution of India, in a case where the effective remedy is available to the aggrieved person, it is observed and held in the said decision in paragraphs 43 to 46 as under:-43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution.45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance.46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad [AIR 1969 SC 556 ], Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107] and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order.7.5 In the case of Kanaiyalal Lalchand Sachdev and Ors. (supra) after referring to the earlier decisions of this Court in the cases of Sadhana Lodh Vs. National insurance Co. Ltd. and Anr., (2003) 3 SCC 524 ; Surya Dev Rai Vs. Ram Chander Rai and Ors., (2003) 6 SCC 675 and State Bank of India Vs. Allied Chemical Laboratories and Anr., (2006) 9 SCC 252 while upholding the order passed by the High Court dismissing the writ petition on the ground that an efficacious remedy is available under Section 17 of the SARFAESI Act, it was observed that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person.10. Assuming that the communication dated 13.08.2015 can be said to be a notice under Section 13(4) of the SARFAESI Act, in that case also, in view of the statutory remedy available under Section 17 of the SARFAESI Act and in view of the law laid down by this Court in the cases referred to hereinabove, the writ petitions against the notice under Section 13(4) of the SARFAESI Act was not required to be entertained by the High Court. Therefore, the High Court has erred in entertaining the writ petitions against the communication dated 13.08.2015 and also passing the ex-parte ad-interim orders directing to maintain the status quo with respect to possession of secured properties on the condition directing the borrowers to pay Rs. 1 crore only (in all Rs.3 crores in view of the subsequent orders passed by the High Court extending the ex- parte ad-interim order dated 26.08.2015) against the total dues of approximate Rs.117 crores. Even the High Court ought to have considered and disposed of the application for vacating the ex-parte ad- interim relief, which was filed in the year 2016 at the earliest considering the fact that a large sum of Rs.117 crores was involved.11. Now, in so far as the reliance placed upon the decision of this Court in the case of J. Rajiv Subramaniyan and Anr. (supra) by the learned senior counsel appearing on behalf of the borrowers in support of his submission that writ petition would be maintainable, it is to be noted that in the aforesaid case, the learned counsel appearing on behalf of the Bank did not press the maintainability and/or entertainability of the writ petition under Article 226 and therefore, this Court had no occasion to consider the entertainability and/or maintainability of the writ petition. Therefore, the aforesaid decision is not of any assistance to the respondents – borrowers.12. Even otherwise, it is required to be noted that a writ petition against the private financial institution – ARC – appellant herein under Article 226 of the Constitution of India against the proposed action/actions under Section 13(4) of the SARFAESI Act can be said to be not maintainable. In the present case, the ARC proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor. The ARC as such cannot be said to be performing public functions which are normally expected to be performed by the State authorities. During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the State authorities. If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. Therefore, decisions of this Court in the cases of Praga Tools Corporation (supra) and Ramesh Ahluwalia (supra) relied upon by the learned counsel appearing on behalf of the borrowers are not of any assistance to the borrowers.13. Now, so far as the submission on behalf of the borrowers that in exercise of the powers under Article 226 of the Constitution, this Court may not interfere with the interim / interlocutory orders is concerned, the decision of this Court in the case of Mathew K.C. (supra) is required to be referred to.13.1 In the case of Mathew K.C. (supra) after referring to and/or considering the decision of this Court in the case of Chhabil Dass Agarwal (supra), it was observed and held in paragraph 5 as under:-5. We have considered the submissions on behalf of the parties. Normally this Court in exercise of jurisdiction under Article 136 of the Constitution is loath to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal [CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603] , as follows: (SCC p. 611, para 15)15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [Thansingh Nathmal v. Supt. of Taxes, AIR 1964 SC 1419 ] , Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.13.2 Applying the law laid down by this Court in the case of Mathew K.C. (supra) to the facts on hand, we are of the opinion that filing of the writ petitions by the borrowers before the High Court under Article 226 of the Constitution of India is an abuse of process of the Court. The writ petitions have been filed against the proposed action to be taken under Section 13(4). As observed hereinabove, even assuming that the communication dated 13.08.2015 was a notice under Section 13(4), in that case also, in view of the statutory, efficacious remedy available by way of appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petitions. Even the impugned orders passed by the High Court directing to maintain the status quo with respect to the possession of the secured properties on payment of Rs.1 crore only (in all Rs.3 crores) is absolutely unjustifiable. The dues are to the extent of approximately Rs.117 crores. The ad-interim relief has been continued since 2015 and the secured creditor is deprived of proceeding further with the action under the SARFAESI Act. Filing of the writ petition by the borrowers before the High Court is nothing but an abuse of process of Court. It appears that the High Court has initially granted an ex-parte ad-interim order mechanically and without assigning any reasons. The High Court ought to have appreciated that by passing such an interim order, the rights of the secured creditor to recover the amount due and payable have been seriously prejudiced. The secured creditor and/or its assignor have a right to recover the amount due and payable to it from the borrowers. The stay granted by the High Court would have serious adverse impact on the financial health of the secured creditor/assignor. Therefore, the High Court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters. In these circumstances, the proceedings before the High Court deserve to be dismissed.

### 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: otherwise, it is required to be noted that a writ petition against the private financial institution – ARC – appellant herein under Article 226 of the Constitution of India against the proposed action/actions under Section 13(4) of the SARFAESI Act can be said to be not maintainable. In the present case, the ARC proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor. The ARC as such cannot be said to be performing public functions which are normally expected to be performed by the State authorities. During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the State authorities. If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. Therefore, decisions of this Court in the cases of Praga Tools Corporation (supra) and Ramesh Ahluwalia (supra) relied upon by the learned counsel appearing on behalf of the borrowers are not of any assistance to the borrowers. 13. Now, so far as the submission on behalf of the borrowers that in exercise of the powers under Article 226 of the Constitution, this Court may not interfere with the interim / interlocutory orders is concerned, the decision of this Court in the case of Mathew K.C. (supra) is required to be referred to. 13.1 In the case of Mathew K.C. (supra) after referring to and/or considering the decision of this Court in the case of Chhabil Dass Agarwal (supra), it was observed and held in paragraph 5 as under:- 5. We have considered the submissions on behalf of the parties. Normally this Court in exercise of jurisdiction under Article 136 of the Constitution is loath to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal [CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603] , as follows: (SCC p. 611, para 15) 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [Thansingh Nathmal v. Supt. of Taxes, AIR 1964 SC 1419 ] , Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 13.2 Applying the law laid down by this Court in the case of Mathew K.C. (supra) to the facts on hand, we are of the opinion that filing of the writ petitions by the borrowers before the High Court under Article 226 of the Constitution of India is an abuse of process of the Court. The writ petitions have been filed against the proposed action to be taken under Section 13(4). As observed hereinabove, even assuming that the communication dated 13.08.2015 was a notice under Section 13(4), in that case also, in view of the statutory, efficacious remedy available by way of appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petitions. Even the impugned orders passed by the High Court directing to maintain the status quo with respect to the possession of the secured properties on payment of Rs.1 crore only (in all Rs.3 crores) is absolutely unjustifiable. The dues are to the extent of approximately Rs.117 crores. The ad-interim relief has been continued since 2015 and the secured creditor is deprived of proceeding further with the action under the SARFAESI Act. Filing of the writ petition by the borrowers before the High Court is nothing but an abuse of process of Court. It appears that the High Court has initially granted an ex-parte ad-interim order mechanically and without assigning any reasons. The High Court ought to have appreciated that by passing such an interim order, the rights of the secured creditor to recover the amount due and payable have been seriously prejudiced. The secured creditor and/or its assignor have a right to recover the amount due and payable to it from the borrowers. The stay granted by the High Court would have serious adverse impact on the financial health of the secured creditor/assignor. Therefore, the High Court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters. In these circumstances, the proceedings before the High Court deserve to be dismissed. ### Response: 1

State of Punjab Vs. Jaswinder Singh

Ashok Bhushan and Deepak Gupta, JJ. 1. Heard learned Counsel for the Appellant. No one has appeared for the Respondent, though service is complete on the Respondent as per the Office Report dated 15.5.2017. This Appeal has been filed against the Judgment and Order of the High Court of Punjab and Haryana at Chandigarh dated 18.4.2007, by which the Civil Revision No. 1282 of 1989 preferred by the State of Punjab through General Manager, Punjab Roadways was dismissed. The facts of the case leading to this Appeal are, that the Respondent was working as a Conductor with the Appellant. On 10.1.1998, he filed an Application Under Section 15(3) of the Payment of Wages Act, 1936 for a direction to the Appellant herein for refund of delayed/deducted Wages from the Salary of the Respondent. The aforesaid Application was contested by the Appellant. It was contended, that the deductions have been made from salary of the Respondent in accordance with law. 2. The Prescribed Authority under the Payment of Wages Act, 1936, accepted the Application filed by the Respondent, vide Order dated 27.11.1987 and took the view that Orders dated 24.2.1984, 1.6.1984 and 4.6.1985 passed by the Appellant were illegal and were void ab initio. The Appeal preferred by the Appellant herein against the aforesaid Order was dismissed by the appellate Authority, vide Judgment dated 11.5.1988. The State took up the matter before the High Court by means of Civil Revision. The High Court was of the view, that though the remedy available to the Respondent was to file a Statutory Appeal or to file a Civil Suit, however, since due procedure was not followed, the Orders passed for withholding increments violating of Principles of Natural Justice, have rightly been ignored. Hence, this Appeal. 3. Learned Counsel appearing for the Appellant-State contends, that the Prescribed Authority under the Payment of Wages Act, 1936, could not have ignored the Orders passed in the Disciplinary proceedings, which became final without any challenge under the Statutory Rules or before any competent Court. He has also placed reliance on the judgment of this Court in the case of State of Punjab v. Baldev Singh 1999 (81) FLR 303 (SC) in which this Court has observed in Para 2 as under: 2. Though Notice was served, the Respondent has chosen to remain absent. Learned Counsel for the Appellants submitted that the Authority constituted, under the Payment of Wages Act has no jurisdiction to interface with the Orders passed under the disciplinary proceedings. We find that the argument of the learned Counsel is well founded and the Orders passed by the Authority under the Payment of Wages Act was without jurisdiction. Accordingly the Order passed by the Authority under the Payment of Wages Act and confirmed by the, High Court is set aside and the Appeal is allowed. However, there shall be no Order as to Costs. 4. We find substance in the submission of the learned Counsel for the Appellant. The disciplinary proceedings were conducted against the Respondent in which Orders were passed imposing punishment of withholding the increments. Without challenging the said Order in the appropriate forum, it was not open to the Respondent to file an Application before the Prescribed Authority under the Payment of Wages Act, and the Prescribed Authority under the Payment of Wages Act has no jurisdiction to direct payment of Wages, which has already been withheld in the disciplinary proceedings and therefore, it has no right to sit in Appeal and to set aside the Order of withholding of increments passes in the disciplinary proceedings. In our view, the High Court has not correctly appreciated the issues raised before it and the view of the High Court that the Orders dated 24.2.1984, 1.6.1984 and 4.6.1985 have to be ignored since according to the High Court they were passed without following the due procedure, cannot be sustained. In our view, the appropriate remedy available to the Respondent either to file a Statutory Appeal before the Appellate Authority or to avail such other remedy in accordance with law, but certainly not to file an Application before the Prescribed Authority under the Payment of Wages Act. We are, thus, of the view, that the High Court has committed an error in dismissing the Civil Revision filed by the Respondent.

1[ds]4. We find substance in the submission of the learned Counsel for the Appellant. The disciplinary proceedings were conducted against the Respondent in which Orders were passed imposing punishment of withholding the increments. Without challenging the said Order in the appropriate forum, it was not open to the Respondent to file an Application before the Prescribed Authority under the Payment of Wages Act, and the Prescribed Authority under the Payment of Wages Act has no jurisdiction to direct payment of Wages, which has already been withheld in the disciplinary proceedings and therefore, it has no right to sit in Appeal and to set aside the Order of withholding of increments passes in the disciplinary proceedings. In our view, the High Court has not correctly appreciated the issues raised before it and the view of the High Court that the Orders dated 24.2.1984, 1.6.1984 and 4.6.1985 have to be ignored since according to the High Court they were passed without following the due procedure, cannot be sustained. In our view, the appropriate remedy available to the Respondent either to file a Statutory Appeal before the Appellate Authority or to avail such other remedy in accordance with law, but certainly not to file an Application before the Prescribed Authority under the Payment of Wages Act. We are, thus, of the view, that the High Court has committed an error in dismissing the Civil Revision filed by the Respondent.

### 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: Ashok Bhushan and Deepak Gupta, JJ. 1. Heard learned Counsel for the Appellant. No one has appeared for the Respondent, though service is complete on the Respondent as per the Office Report dated 15.5.2017. This Appeal has been filed against the Judgment and Order of the High Court of Punjab and Haryana at Chandigarh dated 18.4.2007, by which the Civil Revision No. 1282 of 1989 preferred by the State of Punjab through General Manager, Punjab Roadways was dismissed. The facts of the case leading to this Appeal are, that the Respondent was working as a Conductor with the Appellant. On 10.1.1998, he filed an Application Under Section 15(3) of the Payment of Wages Act, 1936 for a direction to the Appellant herein for refund of delayed/deducted Wages from the Salary of the Respondent. The aforesaid Application was contested by the Appellant. It was contended, that the deductions have been made from salary of the Respondent in accordance with law. 2. The Prescribed Authority under the Payment of Wages Act, 1936, accepted the Application filed by the Respondent, vide Order dated 27.11.1987 and took the view that Orders dated 24.2.1984, 1.6.1984 and 4.6.1985 passed by the Appellant were illegal and were void ab initio. The Appeal preferred by the Appellant herein against the aforesaid Order was dismissed by the appellate Authority, vide Judgment dated 11.5.1988. The State took up the matter before the High Court by means of Civil Revision. The High Court was of the view, that though the remedy available to the Respondent was to file a Statutory Appeal or to file a Civil Suit, however, since due procedure was not followed, the Orders passed for withholding increments violating of Principles of Natural Justice, have rightly been ignored. Hence, this Appeal. 3. Learned Counsel appearing for the Appellant-State contends, that the Prescribed Authority under the Payment of Wages Act, 1936, could not have ignored the Orders passed in the Disciplinary proceedings, which became final without any challenge under the Statutory Rules or before any competent Court. He has also placed reliance on the judgment of this Court in the case of State of Punjab v. Baldev Singh 1999 (81) FLR 303 (SC) in which this Court has observed in Para 2 as under: 2. Though Notice was served, the Respondent has chosen to remain absent. Learned Counsel for the Appellants submitted that the Authority constituted, under the Payment of Wages Act has no jurisdiction to interface with the Orders passed under the disciplinary proceedings. We find that the argument of the learned Counsel is well founded and the Orders passed by the Authority under the Payment of Wages Act was without jurisdiction. Accordingly the Order passed by the Authority under the Payment of Wages Act and confirmed by the, High Court is set aside and the Appeal is allowed. However, there shall be no Order as to Costs. 4. We find substance in the submission of the learned Counsel for the Appellant. The disciplinary proceedings were conducted against the Respondent in which Orders were passed imposing punishment of withholding the increments. Without challenging the said Order in the appropriate forum, it was not open to the Respondent to file an Application before the Prescribed Authority under the Payment of Wages Act, and the Prescribed Authority under the Payment of Wages Act has no jurisdiction to direct payment of Wages, which has already been withheld in the disciplinary proceedings and therefore, it has no right to sit in Appeal and to set aside the Order of withholding of increments passes in the disciplinary proceedings. In our view, the High Court has not correctly appreciated the issues raised before it and the view of the High Court that the Orders dated 24.2.1984, 1.6.1984 and 4.6.1985 have to be ignored since according to the High Court they were passed without following the due procedure, cannot be sustained. In our view, the appropriate remedy available to the Respondent either to file a Statutory Appeal before the Appellate Authority or to avail such other remedy in accordance with law, but certainly not to file an Application before the Prescribed Authority under the Payment of Wages Act. We are, thus, of the view, that the High Court has committed an error in dismissing the Civil Revision filed by the Respondent. ### Response: 1

Bashir Ahmed Magrey Vs. Ghulam Quadir Mir & Ors

those reports taken along with the findings of the High Court. It would appear from the figures set out above that, excluding all the votes which were found to have been improperly received by the appellant and also giving credit to the respondent for 59 votes which were found by the High Court to have been improperly rejected at that time of counting, the net result still is that the appellant has a lead of 38 votes over the respondent. There is, therefore, no escape from the conclusion that the election of tile appellant should be upheld. In an election petition founded upon the ground that the result of the election was materially affected by the improper reception or rejection of votes, the court has first to decide whether certain ballot papers were improperly received or were improperly rejected. Once , that controversy is resolved, the rest is purely a matter of arithmetical calculation. If the result of arithmetical calculation is that the returned candidate has still a lead over his nearest rival , his election would not be declared to be void on the ground of improper reception or improper rejection of votes. Improper reception or improper rejection of votes can result in invalidating an election only if such improper reception or improper rejection materially affects the result of the election.In the course of his arguments, the respondent has submitted that a number of improprieties were committed in the con duct of election and therefore the election of the appellant be declared to be void. Although it does appear from the material on record to which our attention was invited by the respondent that irregularities were commit ted in the conduct of the election, the respondent cannot derive any benefit on that account. As already mentioned, the respondent sought to challenge the election of the appellant only on the ground of improper reception and improper rejection of certain votes. The election of the appellant was not challenged on the ground of any irregular- ity or non-compliance with the provisions of the Constitu- tion or of the R epresentation of the People Act or of any rules or orders made thereunder. Nor was the election of the appellant assailed on the ground of being vitiated by corrupt practice. As it is not permissible to widen the scope of an election petition beyond the grounds actually set up in the election petition, the respondent cannot seek relief on grounds which were not taken by him in the elec- tion petition.8. It has also been urged by the respondent that the number of votes which were improperly received was larger than that found by the High Court. Nothing cogent has, however, been brought to our notice in support of the above sub mission to induce us to interfere with the finding of the High Court in, this respect.9. Lastly, the respondent submits that 153 ballot papers of Lassipora polling station cast in favour of the appellant should be rejected as they bore the initials and not the full signatures of the presiding officer. Our attention in this respect is invited to clause (h) of rule 56(2) of the Jammu and Kashmir Conduct of Election Rules, 1965, according to which the returning officer at the time of counting shall reject a ballot paper if it does not bear both the mark and the signatures which it should have borne under the provisions of sub-rule (1) of rule 3 8. According to sub-rule (1 ) of rule 3 8, every ballot paper shall before issue to elector, be stamped by such distinguishing mark as the Election Commission may direct, and be signed in full on its back by the presiding officer. It is not disputed that the ballot papers in question bore the distinguishing mark. The only contention of the respondent, as already mentioned, is that the ballot papers in question b ore the initials and not the full signatures of the presiding officer. In this respect we find that no express ground on that score was set up by the respondent in the election petition. This apart, we that the matter is covered by the first proviso to sub-rule (2) of rule 56 which reads as under;"Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect."10. The above proviso which is based upon the principle that a vote validly cast should not be excluded from consideration because of the mistake or omission of the presiding or polling officer, makes it plain that where the returning officer is satisfied that any defect mentioned in clause (h) has been caused by the mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect. The fact that the returning officer in the present case did not reject the ballot papers in question on the ground that they bore only the initials and not the full signatures of the presiding officer would go to show that the returning officer was satisfied that the alleged defect was caused by the mistake or failure on the part of the presiding officer: Ther e can indeed be hardly any doubt on the point that the defect referred to by the respondent occurred because of the mistake or failure of the presiding officer. We, therefore, see no cogent ground to exclude from consideration 153 ballot papers polled in favour of the appellant.11. Before we conclude, we may observe that some other contentions were also advanced on behalf of the appellant. In view of the fact that the appeal in any case has to be allowed because of the arithmetical calculations referred to above, it is not necessary to go into those contentions.

1[ds]10. The above proviso which is based upon the principle that a vote validly cast should not be excluded from consideration because of the mistake or omission of the presiding or polling officer, makes it plain that where the returning officer is satisfied that any defect mentioned in clause (h) has been caused by the mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect. The fact that the returning officer in the present case did not reject the ballot papers in question on the ground that they bore only the initials and not the full signatures of the presiding officer would go to show that the returning officer was satisfied that the alleged defect was caused by the mistake or failure on the part of the presiding officer: Ther e can indeed be hardly any doubt on the point that the defect referred to by the respondent occurred because of the mistake or failure of the presiding officer. We, therefore, see no cogent ground to exclude from consideration 153 ballot papers polled in favour of the appellant.11. Before we conclude, we may observe that some other contentions were also advanced on behalf of the appellant. In view of the fact that the appeal in any case has to be allowed because of the arithmetical calculations referred to above, it is not necessary to go into thosele (1 ) of rule 3 8, every ballot paper shall before issue to elector, be stamped by such distinguishing mark as the Election Commission may direct, and be signed in full on its back by the presiding officer. It is not disputed that the ballot papers in question bore the distinguishing mark. The only contention of the respondent, as already mentioned, is that the ballot papers in question b ore the initials and not the full signatures of the presiding officer. In this respect we find that no express ground on that score was set up by the respondent in the election petition. This apart, we that the matter is covered by the first proviso to(2) of rule 56 which reads asthat where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect."

### 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: those reports taken along with the findings of the High Court. It would appear from the figures set out above that, excluding all the votes which were found to have been improperly received by the appellant and also giving credit to the respondent for 59 votes which were found by the High Court to have been improperly rejected at that time of counting, the net result still is that the appellant has a lead of 38 votes over the respondent. There is, therefore, no escape from the conclusion that the election of tile appellant should be upheld. In an election petition founded upon the ground that the result of the election was materially affected by the improper reception or rejection of votes, the court has first to decide whether certain ballot papers were improperly received or were improperly rejected. Once , that controversy is resolved, the rest is purely a matter of arithmetical calculation. If the result of arithmetical calculation is that the returned candidate has still a lead over his nearest rival , his election would not be declared to be void on the ground of improper reception or improper rejection of votes. Improper reception or improper rejection of votes can result in invalidating an election only if such improper reception or improper rejection materially affects the result of the election.In the course of his arguments, the respondent has submitted that a number of improprieties were committed in the con duct of election and therefore the election of the appellant be declared to be void. Although it does appear from the material on record to which our attention was invited by the respondent that irregularities were commit ted in the conduct of the election, the respondent cannot derive any benefit on that account. As already mentioned, the respondent sought to challenge the election of the appellant only on the ground of improper reception and improper rejection of certain votes. The election of the appellant was not challenged on the ground of any irregular- ity or non-compliance with the provisions of the Constitu- tion or of the R epresentation of the People Act or of any rules or orders made thereunder. Nor was the election of the appellant assailed on the ground of being vitiated by corrupt practice. As it is not permissible to widen the scope of an election petition beyond the grounds actually set up in the election petition, the respondent cannot seek relief on grounds which were not taken by him in the elec- tion petition.8. It has also been urged by the respondent that the number of votes which were improperly received was larger than that found by the High Court. Nothing cogent has, however, been brought to our notice in support of the above sub mission to induce us to interfere with the finding of the High Court in, this respect.9. Lastly, the respondent submits that 153 ballot papers of Lassipora polling station cast in favour of the appellant should be rejected as they bore the initials and not the full signatures of the presiding officer. Our attention in this respect is invited to clause (h) of rule 56(2) of the Jammu and Kashmir Conduct of Election Rules, 1965, according to which the returning officer at the time of counting shall reject a ballot paper if it does not bear both the mark and the signatures which it should have borne under the provisions of sub-rule (1) of rule 3 8. According to sub-rule (1 ) of rule 3 8, every ballot paper shall before issue to elector, be stamped by such distinguishing mark as the Election Commission may direct, and be signed in full on its back by the presiding officer. It is not disputed that the ballot papers in question bore the distinguishing mark. The only contention of the respondent, as already mentioned, is that the ballot papers in question b ore the initials and not the full signatures of the presiding officer. In this respect we find that no express ground on that score was set up by the respondent in the election petition. This apart, we that the matter is covered by the first proviso to sub-rule (2) of rule 56 which reads as under;"Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect."10. The above proviso which is based upon the principle that a vote validly cast should not be excluded from consideration because of the mistake or omission of the presiding or polling officer, makes it plain that where the returning officer is satisfied that any defect mentioned in clause (h) has been caused by the mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect. The fact that the returning officer in the present case did not reject the ballot papers in question on the ground that they bore only the initials and not the full signatures of the presiding officer would go to show that the returning officer was satisfied that the alleged defect was caused by the mistake or failure on the part of the presiding officer: Ther e can indeed be hardly any doubt on the point that the defect referred to by the respondent occurred because of the mistake or failure of the presiding officer. We, therefore, see no cogent ground to exclude from consideration 153 ballot papers polled in favour of the appellant.11. Before we conclude, we may observe that some other contentions were also advanced on behalf of the appellant. In view of the fact that the appeal in any case has to be allowed because of the arithmetical calculations referred to above, it is not necessary to go into those contentions. ### Response: 1

Exposure Insurance Services Limited A Public Limited Company Vs. M/S Larsen & Toubro Limited A Public Limited Company

suitably amended to bring it to its present form by the Companies (Amendment)Act, 1960. The amendment obviated the need of filing of suits by the liquidator (which are prolix and expensive) to realize and recover the claims and subsisting debts owed to the company; and instead, provided a cheap and summary remedy by conferring the required jurisdiction on the company court.We are, therefore, of the view that the approach to be adopted in this regard by the company court does not deserve to be put in a straight jacket formula. The discretion to be exercised in this regard has to be depended on the facts and circumstances of each case. While exercising this power we have no doubt that the company court would also bear in mind the rationale behind the enactment of Recovery of Debts Due to the Banks and Financial Institutions Act, 1993, to which reference has been made above. We make the same observation regarding the terms which a company court should like to impose while granting leave. It need not be stated that the terms to be imposed have to be reasonable, which would , of course, vary from case to case. According to us, such an approach, would maintain the integrity of that secured creditor who had approached the civil court or desires to do so, and would take care of the interest of other secured creditors as well which the company court is duty bound to do. The company court shall also apprise itself about the fact whether dues of workmen are outstanding; if so, extent of the same. It would be seen whether after the assets of the company are allowed to be used to satisfy the debt of the secured creditor, it would be possible to satisfy the workmens dues pari passu. Usefully a reference can also be made to a judgment of the Karnataka High Court in the case of T. Srinivasa vs Flemming (India) Apotheke Pvt Ltd, 1990 (68) Company Cases 506, which dealt with the scope of the winding up petition at some length and observed that the procedure under section 433(e) of the Companies Act being a summary procedure and whenever the court is of the opinion that the defence raised is bonafide and is likely to succeed in the civil court, it would constitute sufficient reasons for rejecting the winding up petition and relegating the parties to file a civil suit. The tests stated in the above judgments are fully satisfied in the present case. The defence raised by the respondents in the company petition was prima facie bonafide. The pleas raised are relating to facts as well as law. Furthermore undue delay in invoking the provisions of law even upon maturity of the bills of exchange by the petitioners is a relevant consideration, which has been rightly noticed by the company court while exercising its discretion. In light of the above principle, we may now revert back to the facts of the present case. There is no dispute that the bills of exchange were executed and were payable as on 15th March 2003. According to the respondents these bills of exchange were rendered inconsequential and ineffective vide letter dated 27th February 2003 wherein the Sky Impex Limited had informed the appellant company as follows:This is to inform that goods supplied by us to yourselves under contract No.SKY/L&T/ALPET/2002 dated September 15th 2002 and against our Invoice No.560 T dated 15th December 2002 and Bill of Exchange for US$ 980,000 dated 15th December, 2002 have been received back by ourselves at Dubai. Hence no outstanding are due from Larsen & Toubro Limited to Sky Impex Limited, against the above mentioned Invoice and Bill of Exchange. 6. The above letter clearly shows that the beneficiary of the bills of exchange had issued no claim in relation to these bills of exchange and, therefore, their endorsement per-se would not justify the undisputed claim by the appellant company in the present petition. In a winding up petition the delay itself is a relevant consideration and no justification whatsoever has been rendered by the appellant company as to the circumstances or reasons for which the company took no steps for recovering its amount, particularly before invoking the limited jurisdiction of the court under section 433 of the Companies Act. The stand taken by the respondent in reply to the company petition raises genuine and bonafide dispute and at least prima facie offers proper explanation in law for its plea of no liability. This would certainly require a regular trial and parties may be called upon to lead evidence in support of their respective pleadings. The issues raised are certainly complex as according to the respondents, the claim itself is fraudulent and motivated one. It may be useful to notice at this stage that the learned Company Judge has also adverted to the financial status of the respondent company. With that kind of financial status there is hardly any possibility to conclude at the stage of the petition that the company has wilfully defaulted to pay its debt. In addition to such stand it was also argued before the Company Court that the two bills of exchange stated to be endorsed in favour of the appellant company show particularly with reference to the reverse of the bills of exchange that they have been forged. This controversy can hardly be properly examined in a winding up petition. The order relegating the petitioner to take recourse to legal remedy of filing a civil suit cannot be faulted with. Thus the judgment under appeal neither suffers from any factual or jurisdictional error. There is also merit in the contention raised that the notice dated 4th February 2005 was withdrawn by a subsequent notice dated 13th February 2005. The language of the subsequent notice as also recorded by the company court, besides being similar, could lead to a reasonable conclusion that the appellant company did not intend to pursue the claim any further to its first notice.

0[ds]In light of the above principle, we may now revert back to the facts of the present case. There is no dispute that the bills of exchange were executed and were payable as on 15th March 2003. According to the respondents these bills of exchange were rendered inconsequential and ineffective vide letter dated 27th February 2003 wherein the Sky Impex Limited had informed the appellant company as follows:This is to inform that goods supplied by us to yourselves under contractdated September 15th 2002 and against our Invoice No.560 T dated 15th December 2002 and Bill of Exchange for US$ 980,000 dated 15th December, 2002 have been received back by ourselves at Dubai. Hence no outstanding are due from LarsenToubro Limited to Sky Impex Limited, against the above mentioned Invoice and Bill of Exchange.The above letter clearly shows that the beneficiary of the bills of exchange had issued no claim in relation to these bills of exchange and, therefore, their endorsementwould not justify the undisputed claim by the appellant company in the present petition. In a winding up petition the delay itself is a relevant consideration and no justification whatsoever has been rendered by the appellant company as to the circumstances or reasons for which the company took no steps for recovering its amount, particularly before invoking the limited jurisdiction of the court under section 433 of the Companies Act. The stand taken by the respondent in reply to the company petition raises genuine and bonafide dispute and at least prima facie offers proper explanation in law for its plea of no liability. This would certainly require a regular trial and parties may be called upon to lead evidence in support of their respective pleadings. The issues raised are certainly complex as according to the respondents, the claim itself is fraudulent and motivated one. It may be useful to notice at this stage that the learned Company Judge has also adverted to the financial status of the respondent company. With that kind of financial status there is hardly any possibility to conclude at the stage of the petition that the company has wilfully defaulted to pay its debt. In addition to such stand it was also argued before the Company Court that the two bills of exchange stated to be endorsed in favour of the appellant company show particularly with reference to the reverse of the bills of exchange that they have been forged. This controversy can hardly be properly examined in a winding up petition. The order relegating the petitioner to take recourse to legal remedy of filing a civil suit cannot be faulted with. Thus the judgment under appeal neither suffers from any factual or jurisdictional error. There is also merit in the contention raised that the notice dated 4th February 2005 was withdrawn by a subsequent notice dated 13th February 2005. The language of the subsequent notice as also recorded by the company court, besides being similar, could lead to a reasonable conclusion that the appellant company did not intend to pursue the claim any further to its first notice.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: suitably amended to bring it to its present form by the Companies (Amendment)Act, 1960. The amendment obviated the need of filing of suits by the liquidator (which are prolix and expensive) to realize and recover the claims and subsisting debts owed to the company; and instead, provided a cheap and summary remedy by conferring the required jurisdiction on the company court.We are, therefore, of the view that the approach to be adopted in this regard by the company court does not deserve to be put in a straight jacket formula. The discretion to be exercised in this regard has to be depended on the facts and circumstances of each case. While exercising this power we have no doubt that the company court would also bear in mind the rationale behind the enactment of Recovery of Debts Due to the Banks and Financial Institutions Act, 1993, to which reference has been made above. We make the same observation regarding the terms which a company court should like to impose while granting leave. It need not be stated that the terms to be imposed have to be reasonable, which would , of course, vary from case to case. According to us, such an approach, would maintain the integrity of that secured creditor who had approached the civil court or desires to do so, and would take care of the interest of other secured creditors as well which the company court is duty bound to do. The company court shall also apprise itself about the fact whether dues of workmen are outstanding; if so, extent of the same. It would be seen whether after the assets of the company are allowed to be used to satisfy the debt of the secured creditor, it would be possible to satisfy the workmens dues pari passu. Usefully a reference can also be made to a judgment of the Karnataka High Court in the case of T. Srinivasa vs Flemming (India) Apotheke Pvt Ltd, 1990 (68) Company Cases 506, which dealt with the scope of the winding up petition at some length and observed that the procedure under section 433(e) of the Companies Act being a summary procedure and whenever the court is of the opinion that the defence raised is bonafide and is likely to succeed in the civil court, it would constitute sufficient reasons for rejecting the winding up petition and relegating the parties to file a civil suit. The tests stated in the above judgments are fully satisfied in the present case. The defence raised by the respondents in the company petition was prima facie bonafide. The pleas raised are relating to facts as well as law. Furthermore undue delay in invoking the provisions of law even upon maturity of the bills of exchange by the petitioners is a relevant consideration, which has been rightly noticed by the company court while exercising its discretion. In light of the above principle, we may now revert back to the facts of the present case. There is no dispute that the bills of exchange were executed and were payable as on 15th March 2003. According to the respondents these bills of exchange were rendered inconsequential and ineffective vide letter dated 27th February 2003 wherein the Sky Impex Limited had informed the appellant company as follows:This is to inform that goods supplied by us to yourselves under contract No.SKY/L&T/ALPET/2002 dated September 15th 2002 and against our Invoice No.560 T dated 15th December 2002 and Bill of Exchange for US$ 980,000 dated 15th December, 2002 have been received back by ourselves at Dubai. Hence no outstanding are due from Larsen & Toubro Limited to Sky Impex Limited, against the above mentioned Invoice and Bill of Exchange. 6. The above letter clearly shows that the beneficiary of the bills of exchange had issued no claim in relation to these bills of exchange and, therefore, their endorsement per-se would not justify the undisputed claim by the appellant company in the present petition. In a winding up petition the delay itself is a relevant consideration and no justification whatsoever has been rendered by the appellant company as to the circumstances or reasons for which the company took no steps for recovering its amount, particularly before invoking the limited jurisdiction of the court under section 433 of the Companies Act. The stand taken by the respondent in reply to the company petition raises genuine and bonafide dispute and at least prima facie offers proper explanation in law for its plea of no liability. This would certainly require a regular trial and parties may be called upon to lead evidence in support of their respective pleadings. The issues raised are certainly complex as according to the respondents, the claim itself is fraudulent and motivated one. It may be useful to notice at this stage that the learned Company Judge has also adverted to the financial status of the respondent company. With that kind of financial status there is hardly any possibility to conclude at the stage of the petition that the company has wilfully defaulted to pay its debt. In addition to such stand it was also argued before the Company Court that the two bills of exchange stated to be endorsed in favour of the appellant company show particularly with reference to the reverse of the bills of exchange that they have been forged. This controversy can hardly be properly examined in a winding up petition. The order relegating the petitioner to take recourse to legal remedy of filing a civil suit cannot be faulted with. Thus the judgment under appeal neither suffers from any factual or jurisdictional error. There is also merit in the contention raised that the notice dated 4th February 2005 was withdrawn by a subsequent notice dated 13th February 2005. The language of the subsequent notice as also recorded by the company court, besides being similar, could lead to a reasonable conclusion that the appellant company did not intend to pursue the claim any further to its first notice. ### Response: 0

MD. YOUNUS ALI TARAFDAR Vs. THE STATE OF WEST BENGAL

taken out of the well was not beyond recognition. On the other hand, it is reasonably recognizable. The next submission relating to the identification on the basis of apparels which were recovered from the body is also unsustainable. T aking into account the social background of the deceased, his wardrobe can be taken to be consisting of not too many clothes. It cannot be said that the mother and brother could not have identified the clothes of the deceased. That apart, from the tag of the tailoring shop found on the apparels, the tailor – PW 8 was examined and he deposed that the clothes were stitched for the deceased. We have no doubt in approving the findings recorded by the trial court and the High Court that the dead body taken out of the well was that of Becharam Dhara and the prosecution has established the same by leading cogent evidence. 10. It is necessary to examine the circumstances which have been relied upon for conviction of the Appellant. The evidence of PW 11, Astomi Dhara who is sister of the deceased, PW 12 Kenaram, the brother of the deceased and PW 16 who is the relative of the deceased was relied upon by the prosecution to establish the connection between the Appellant and the deceased. PW 12 deposed in Court that the deceased left the house on 15.03.1984 stating that he was leaving for Atghara where the Appellant resides. PW 12 gave his Anglo-Swiss watch to the deceased. PW 11 Astomi Dhara stated in Court that the deceased informed her that he was going to meet the Appellant. PW 16 stated in Court that the deceased visited her house at 10.30 a.m. on 15.03.1984 and left at 2.30 p.m. by informing her that he will go back to his house after visiting the Appellant. After referring to the evidence of the above witnesses, it is relevant to mention that in his evidence, the Investigating Officer said that PW 11 Astomi Dhara did not inform him when her statement was initially recorded, that the deceased informed her on 15.03.1984 that he was going to visit the Appellant. From the cross-examination of PW 20- the Investigative Officer, it can be seen that he mentioned about the omission on the part of the PW 12 in his initial statement regarding the watch belonging to PW 12 being taken by the deceased on 15.03.1984. During the trial, PW 12 stated that on 19.03.1984 he and his mama-sasur- Shailendra Nath Shil were going to Baguihati Bazar by boarding a bus from Jangar More. The Appellant was in the same bus and on seeing PW 12 and his mama-sasur, the Appellant started trembling and alighted the bus one stop ahead of Baguihati. During his cross-examination, the Investigating Officer accepted that this is an improvement made by PW 12 as such incidence was not narrated to him in the initial statement made by PW 12 during the course of the investigation. 11. The prosecution strongly relied upon the recovery of the watch from the shop of PW 4. The watch belonged to PW 12 which was with the deceased when he left home on 15.03.1984. PW 4 Amar Das who was the owner of the watch shop deposed in Court that the Appellant gave a watch for repairing. He was shown the receipt given to the Appellant which was seized from the custody of the Appellant. The receipt was issued on 19.03.1984 and the watch had to be delivered on 27.03.1984. The counterfoil of the receipt was identified by PW 4 which was marked as exhibit 3 and the signature of the Appellant on the counterfoil was not denied by him. 12. The conviction of the Appellant is mainly on the basis of the recovery of the watch which was with the deceased pursuant to the confessional statement of the Appellant. According to the prosecution, the receipt issued by PW 4, the owner of the watch shop was seized from the Appellant during the course of investigation. His confessional statement was recorded pursuant to which the receipt was seized from his house. Thereafter, the watch was seized from the shop of PW 4 along with counterfoil of the receipt on which the signature of appellant was found. The contention of the defense is that the Appellant was coerced by the police into signing the counterfoil of the receipt. It was also argued that there the receipt was not seized from the house of the Appellant. 13. PW 12 did not state before the Investigating Officer that he gave his watch to the deceased when he left the house on 15.03.1984. It is clear from the cross- examination of the Investigating Officer that this statement of PW 12 was an improvement. The manner in which the confessional statement of the Appellant was recorded and the seizure of the receipt of the watch was made is not free from doubt. 14. On an overall consideration of the evidence on record, especially the evidence of PWs 11, 12 and 16 would not lead us to believe that the Appellant and the deceased were last seen together. The evidence of PWs 11 and 16 only shows that they were informed by the deceased that he was going to visit the Appellant. There is no evidence on record to show that the Appellant was last seen with the deceased. Section 106 of the Indian Evidence Act, 1872 is not applicable to the facts of the case. It cannot be said that the Appellant failed to explain as to what happened after they were last seen together especially when there is no evidence to show that they were last seen together. 15. A close scrutiny of the material on record would disclose that the circumstances relied upon by the prosecution to prove the guilt of the Appellant were not complete and do not lead to the conclusion that in all human probability the murder must have been committed by the Appellant.

1[ds]8. There is no direct evidence regarding the involvement of the Appellant in the crime. The case of the prosecution is on basis of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence as laid down by this Court are (2017) 14 SCC 359 :14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;(3) the circumstances should be of a conclusive nature and tendency;(4) they should exclude every possible hypothesis except the one to be proved; and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (See Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487 ] , SCC p. 185, para 153; M.G. Agarwal v. State of Maharashtra [M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri LJ 235] , AIR SC para 18.)We perused the photographs of the dead body from the original record and reject the submission made on behalf of the Appellant on this count. The dead body which was taken out of the well was not beyond recognition. On the other hand, it is reasonably recognizable. The next submission relating to the identification on the basis of apparels which were recovered from the body is also unsustainable. T aking into account the social background of the deceased, his wardrobe can be taken to be consisting of not too many clothes. It cannot be said that the mother and brother could not have identified the clothes of the deceased. That apart, from the tag of the tailoring shop found on the apparels, the tailor – PW 8 was examined and he deposed that the clothes were stitched for the deceased. We have no doubt in approving the findings recorded by the trial court and the High Court that the dead body taken out of the well was that of Becharam Dhara and the prosecution has established the same by leading cogent evidenceFrom the cross-examination of PW 20- the Investigative Officer, it can be seen that he mentioned about the omission on the part of the PW 12 in his initial statement regarding the watch belonging to PW 12 being taken by the deceased on 15.03.1984. During the trial, PW 12 stated that on 19.03.1984 he and his mama-sasur- Shailendra Nath Shil were going to Baguihati Bazar by boarding a bus from Jangar More. The Appellant was in the same bus and on seeing PW 12 and his mama-sasur, the Appellant started trembling and alighted the bus one stop ahead of Baguihati. During his cross-examination, the Investigating Officer accepted that this is an improvement made by PW 12 as such incidence was not narrated to him in the initial statement made by PW 12 during the course of the investigation12. The conviction of the Appellant is mainly on the basis of the recovery of the watch which was with the deceased pursuant to the confessional statement of the Appellant13. PW 12 did not state before the Investigating Officer that he gave his watch to the deceased when he left the house on 15.03.1984. It is clear from the cross- examination of the Investigating Officer that this statement of PW 12 was an improvement. The manner in which the confessional statement of the Appellant was recorded and the seizure of the receipt of the watch was made is not free from doubt14. On an overall consideration of the evidence on record, especially the evidence of PWs 11, 12 and 16 would not lead us to believe that the Appellant and the deceased were last seen together. The evidence of PWs 11 and 16 only shows that they were informed by the deceased that he was going to visit the Appellant. There is no evidence on record to show that the Appellant was last seen with the deceased. Section 106 of the Indian Evidence Act, 1872 is not applicable to the facts of the case. It cannot be said that the Appellant failed to explain as to what happened after they were last seen together especially when there is no evidence to show that they were last seen together15. A close scrutiny of the material on record would disclose that the circumstances relied upon by the prosecution to prove the guilt of the Appellant were not complete and do not lead to the conclusion that in all human probability the murder must have been committed by the Appellant.

### 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: taken out of the well was not beyond recognition. On the other hand, it is reasonably recognizable. The next submission relating to the identification on the basis of apparels which were recovered from the body is also unsustainable. T aking into account the social background of the deceased, his wardrobe can be taken to be consisting of not too many clothes. It cannot be said that the mother and brother could not have identified the clothes of the deceased. That apart, from the tag of the tailoring shop found on the apparels, the tailor – PW 8 was examined and he deposed that the clothes were stitched for the deceased. We have no doubt in approving the findings recorded by the trial court and the High Court that the dead body taken out of the well was that of Becharam Dhara and the prosecution has established the same by leading cogent evidence. 10. It is necessary to examine the circumstances which have been relied upon for conviction of the Appellant. The evidence of PW 11, Astomi Dhara who is sister of the deceased, PW 12 Kenaram, the brother of the deceased and PW 16 who is the relative of the deceased was relied upon by the prosecution to establish the connection between the Appellant and the deceased. PW 12 deposed in Court that the deceased left the house on 15.03.1984 stating that he was leaving for Atghara where the Appellant resides. PW 12 gave his Anglo-Swiss watch to the deceased. PW 11 Astomi Dhara stated in Court that the deceased informed her that he was going to meet the Appellant. PW 16 stated in Court that the deceased visited her house at 10.30 a.m. on 15.03.1984 and left at 2.30 p.m. by informing her that he will go back to his house after visiting the Appellant. After referring to the evidence of the above witnesses, it is relevant to mention that in his evidence, the Investigating Officer said that PW 11 Astomi Dhara did not inform him when her statement was initially recorded, that the deceased informed her on 15.03.1984 that he was going to visit the Appellant. From the cross-examination of PW 20- the Investigative Officer, it can be seen that he mentioned about the omission on the part of the PW 12 in his initial statement regarding the watch belonging to PW 12 being taken by the deceased on 15.03.1984. During the trial, PW 12 stated that on 19.03.1984 he and his mama-sasur- Shailendra Nath Shil were going to Baguihati Bazar by boarding a bus from Jangar More. The Appellant was in the same bus and on seeing PW 12 and his mama-sasur, the Appellant started trembling and alighted the bus one stop ahead of Baguihati. During his cross-examination, the Investigating Officer accepted that this is an improvement made by PW 12 as such incidence was not narrated to him in the initial statement made by PW 12 during the course of the investigation. 11. The prosecution strongly relied upon the recovery of the watch from the shop of PW 4. The watch belonged to PW 12 which was with the deceased when he left home on 15.03.1984. PW 4 Amar Das who was the owner of the watch shop deposed in Court that the Appellant gave a watch for repairing. He was shown the receipt given to the Appellant which was seized from the custody of the Appellant. The receipt was issued on 19.03.1984 and the watch had to be delivered on 27.03.1984. The counterfoil of the receipt was identified by PW 4 which was marked as exhibit 3 and the signature of the Appellant on the counterfoil was not denied by him. 12. The conviction of the Appellant is mainly on the basis of the recovery of the watch which was with the deceased pursuant to the confessional statement of the Appellant. According to the prosecution, the receipt issued by PW 4, the owner of the watch shop was seized from the Appellant during the course of investigation. His confessional statement was recorded pursuant to which the receipt was seized from his house. Thereafter, the watch was seized from the shop of PW 4 along with counterfoil of the receipt on which the signature of appellant was found. The contention of the defense is that the Appellant was coerced by the police into signing the counterfoil of the receipt. It was also argued that there the receipt was not seized from the house of the Appellant. 13. PW 12 did not state before the Investigating Officer that he gave his watch to the deceased when he left the house on 15.03.1984. It is clear from the cross- examination of the Investigating Officer that this statement of PW 12 was an improvement. The manner in which the confessional statement of the Appellant was recorded and the seizure of the receipt of the watch was made is not free from doubt. 14. On an overall consideration of the evidence on record, especially the evidence of PWs 11, 12 and 16 would not lead us to believe that the Appellant and the deceased were last seen together. The evidence of PWs 11 and 16 only shows that they were informed by the deceased that he was going to visit the Appellant. There is no evidence on record to show that the Appellant was last seen with the deceased. Section 106 of the Indian Evidence Act, 1872 is not applicable to the facts of the case. It cannot be said that the Appellant failed to explain as to what happened after they were last seen together especially when there is no evidence to show that they were last seen together. 15. A close scrutiny of the material on record would disclose that the circumstances relied upon by the prosecution to prove the guilt of the Appellant were not complete and do not lead to the conclusion that in all human probability the murder must have been committed by the Appellant. ### Response: 1

Rajesh Kumar @ Raju Vs. Yudhvir Singh

The learned Motor Vehicle Accident Claims Tribunal awarded a sum of Rs.1,68,941 by way of compensation opining that his income was Rs.3,000/- per month and he was entitled to compensation upon taking 30% of his income at the rate of Rs.900/- per month being a total sum of Rs.20,000 besides the amount of compensation towards pain and sufferings and a sum of Rs.5,000/- as general damages including conveyance, special diet etc. An interest at the rate of 7% per annum was also awarded.4. He preferred an appeal there against. The High Court awarded a further sum of Rs.84,800/-, opining : "Minimum wages notified on 1.1.1980 for skilled workers was Rs.320/- per month. It rose to Rs.1043/- as on 1.1.1990. It rose to Rs.3,016/- as on 1.1.2001. The trend shows that minimum wages double every 10 years. Considering the age of the deceased being 34 years, it would be safe to assume that by the time he would turn 60, his income would have doubled. I accordingly treat the average monthly income of the deceased at Rs.4,500/-. Applying the disability certificate, Ex.PW 2/2, being 30% disability, loss on account of disability comes to Rs.1350/- per month. Since multiplier adopted by the tribunal is 12 and the Respondents have raised no objection thereto, loss of future income comes to Rs. 1350/- x 12 x 12 = 1,94,400/-." It was further observed: "Damages on account of compensation for loss of amenities of life, hardship and discomfort including frustration and stress under general damages awarded in sum of Rs.5,000/- is inadequate. I increase the same to Rs.25,000/-." 5. Mr. Gaurav Goel, learned counsel appearing on behalf of the appellant, would submit that having regard to the provisions contained in Section 163A of the Motor Vehicles Act, for the purpose of awarding compensation on disability, the provisions of the Workmens Compensation Act, 1923 would be attracted. According to him, in view of the fact that there is no dispute in regard to the genuineness of the said disability certificate, the High Court committed a serious error in assessing the total disability at 30% only. It was pointed out that the appellant was an indoor patient in the Lady Harding Hospital for a month. The injury suffered by him was considered to be a grievous one and allegedly one-third of his lower limb had been amputated. In view of the fact that no evidence, contrary thereto, has been produced by the respondents, it was urged that the learned Tribunal as also the High Court committed a serious illegality in arriving at the aforementioned finding. 6. Learned counsel appearing on behalf of the respondent-insurance company, however, supported the impugned judgment. 7. The claim petition was filed under Section 166 of the Act and not under Section 163A thereof. It was contended by the claimant-appellant that the driver of the bus in question was rash and negligent as a result whereof, the accident took place. By reason of Section 167 of the Act, an injured person had the option either to file a claim under the Motor Vehicles Act or the Workmens Compensation Act, if both the Acts apply. It is, therefore, a case where the claimant could have filed at his option an application under the Workmens Compensation Act. Section 163A provides for filing of a claim petition where an accident took place by reason of use of the motor vehicle. It is not necessary to prove any fault on the part of the driver or the vehicle. The Tribunal in a proceeding arising under Section 166 of the Act is required to hold a full fledged trial. It is required to collect datas on the basis whereof, the amount of compensation can be determined. Under Section 163A of the Act, however, the question of liability and extent of proof thereof are not justiciable. The Tribunal can determine the amount on the basis of the basic datas provided therefor. Explanation appended to Section 163A of the Act, reads, thus: "Explanation.--For the purposes of this sub-section, ‘permanent disability shall have the same meaning and extent as in the Workmens Compensation Act, 1923." 8. The reference to Workmens Compensation Act by incorporation was only for the purpose of sub-section (1) of Section 163A. It was not meant to apply in a case falling under Section 166 of the Act. Had the provisions of the Workmens Compensation Act were applicable, the procedure laid down therein would also apply. For the purpose of the definition of total disablement as also person who can grant a certificate therefor, namely, a qualified medical practitioner, Section 2(e) and 2(i) would be attracted. In terms of the 1923 Act, the amount of compensation is required to be determined as specified in Section 4. The Rules made in terms of Section 32 of the Act known as Workmens Compensation Rules 1924, would also be applicable.9. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmens Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmens Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time.

0[ds]It is, therefore, a case where the claimant could have filed at his option an application under the Workmens Compensation Act. Section 163A provides for filing of a claim petition where an accident took place by reason of use of the motor vehicle. It is not necessary to prove any fault on the part of the driver or the vehicle. The Tribunal in a proceeding arising under Section 166 of the Act is required to hold a full fledged trial. It is required to collect datas on the basis whereof, the amount of compensation can be determined. Under Section 163A of the Act, however, the question of liability and extent of proof thereof are not justiciable. The Tribunal can determine the amount on the basis of the basic datas provided therefor.The reference to Workmens Compensation Act by incorporation was only for the purpose of sub-section (1) of Section 163A. It was not meant to apply in a case falling under Section 166 of the Act. Had the provisions of the Workmens Compensation Act were applicable, the procedure laid down therein would also apply. For the purpose of the definition of total disablement as also person who can grant a certificate therefor, namely, a qualified medical practitioner, Section 2(e) and 2(i) would be attracted. In terms of the 1923 Act, the amount of compensation is required to be determined as specified in Section 4. The Rules made in terms of Section 32 of the Act known as Workmens Compensation Rules 1924, would also be applicable.9. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmens Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmens Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: The learned Motor Vehicle Accident Claims Tribunal awarded a sum of Rs.1,68,941 by way of compensation opining that his income was Rs.3,000/- per month and he was entitled to compensation upon taking 30% of his income at the rate of Rs.900/- per month being a total sum of Rs.20,000 besides the amount of compensation towards pain and sufferings and a sum of Rs.5,000/- as general damages including conveyance, special diet etc. An interest at the rate of 7% per annum was also awarded.4. He preferred an appeal there against. The High Court awarded a further sum of Rs.84,800/-, opining : "Minimum wages notified on 1.1.1980 for skilled workers was Rs.320/- per month. It rose to Rs.1043/- as on 1.1.1990. It rose to Rs.3,016/- as on 1.1.2001. The trend shows that minimum wages double every 10 years. Considering the age of the deceased being 34 years, it would be safe to assume that by the time he would turn 60, his income would have doubled. I accordingly treat the average monthly income of the deceased at Rs.4,500/-. Applying the disability certificate, Ex.PW 2/2, being 30% disability, loss on account of disability comes to Rs.1350/- per month. Since multiplier adopted by the tribunal is 12 and the Respondents have raised no objection thereto, loss of future income comes to Rs. 1350/- x 12 x 12 = 1,94,400/-." It was further observed: "Damages on account of compensation for loss of amenities of life, hardship and discomfort including frustration and stress under general damages awarded in sum of Rs.5,000/- is inadequate. I increase the same to Rs.25,000/-." 5. Mr. Gaurav Goel, learned counsel appearing on behalf of the appellant, would submit that having regard to the provisions contained in Section 163A of the Motor Vehicles Act, for the purpose of awarding compensation on disability, the provisions of the Workmens Compensation Act, 1923 would be attracted. According to him, in view of the fact that there is no dispute in regard to the genuineness of the said disability certificate, the High Court committed a serious error in assessing the total disability at 30% only. It was pointed out that the appellant was an indoor patient in the Lady Harding Hospital for a month. The injury suffered by him was considered to be a grievous one and allegedly one-third of his lower limb had been amputated. In view of the fact that no evidence, contrary thereto, has been produced by the respondents, it was urged that the learned Tribunal as also the High Court committed a serious illegality in arriving at the aforementioned finding. 6. Learned counsel appearing on behalf of the respondent-insurance company, however, supported the impugned judgment. 7. The claim petition was filed under Section 166 of the Act and not under Section 163A thereof. It was contended by the claimant-appellant that the driver of the bus in question was rash and negligent as a result whereof, the accident took place. By reason of Section 167 of the Act, an injured person had the option either to file a claim under the Motor Vehicles Act or the Workmens Compensation Act, if both the Acts apply. It is, therefore, a case where the claimant could have filed at his option an application under the Workmens Compensation Act. Section 163A provides for filing of a claim petition where an accident took place by reason of use of the motor vehicle. It is not necessary to prove any fault on the part of the driver or the vehicle. The Tribunal in a proceeding arising under Section 166 of the Act is required to hold a full fledged trial. It is required to collect datas on the basis whereof, the amount of compensation can be determined. Under Section 163A of the Act, however, the question of liability and extent of proof thereof are not justiciable. The Tribunal can determine the amount on the basis of the basic datas provided therefor. Explanation appended to Section 163A of the Act, reads, thus: "Explanation.--For the purposes of this sub-section, ‘permanent disability shall have the same meaning and extent as in the Workmens Compensation Act, 1923." 8. The reference to Workmens Compensation Act by incorporation was only for the purpose of sub-section (1) of Section 163A. It was not meant to apply in a case falling under Section 166 of the Act. Had the provisions of the Workmens Compensation Act were applicable, the procedure laid down therein would also apply. For the purpose of the definition of total disablement as also person who can grant a certificate therefor, namely, a qualified medical practitioner, Section 2(e) and 2(i) would be attracted. In terms of the 1923 Act, the amount of compensation is required to be determined as specified in Section 4. The Rules made in terms of Section 32 of the Act known as Workmens Compensation Rules 1924, would also be applicable.9. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmens Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmens Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time. ### Response: 0

Nand Kishore Prasad Vs. State Of Bihar And Ors

credit for Rs.399-5-6 on account of items Nos. 4 and 5 in the additional written statement representing two contingent bills for Rs.324-15-6 and Rs.74-6-0. The High Court also upheld the transit shortage allowed by the trial Court in favour of the defendants in respect of 412 maunds of paddy. The corresponding rice at an average extraction of 63 per cent as taken by the trial Court came to 259 maunds 22 seers 6 chittaks. The value thereof at the rate of Rs.16 per maund came to Rs.4153/-. A sum of 4153/- was deducted from the claim of the State with the result that the decree granted by the High Court in favour of the State was for Rupees 31,179/-.12. Counsel on behalf of the appellant contended that any claim prior to the period alleged in the suit, viz., January, 1948 to January, 1949, should not have been taken into consideration in dealing with the claim of the State for 1946-47 were to be considered the deductions for that period should have been considered.13. The High Court said that the claims of either side prior to January, 1948 had to be left out of the purview of the suit on the pleadings of the parties. Yet the High Court allowed the defendants claim for the balance of old paddy of 1946-47. The appellant challenged this finding of the High Court on two grounds. First, it was said that any claim prior to the period alleged in the suit should not have been taken into consideration in dealing with the claim of the State. Second, if the claim of the State for 1946-47 were to be considered the deductions for that period in favour of the appellant should have been considered and allowed.14. The appellant in the written statement stated that the defendants received from the State 84174 maunds 16 seers 8 chittaks of paddy in 1948 and 940 maunds 20 seers in 1949. The total was 85114 maunds 36 seers 8 chittaks.The plaintiffs witness Nagendra Narain Singh said that the defendants were supplied in all a total of 85114 maunds 36 seers 8 chittaks of paddy for milling purpose. The plaintiffs witness further stated that the defendants supplied 48167 maunds 20 seers of rice. According to the plaintiff State the defendants should have supplied 53477 maunds 7 seers. The plaintiffs witness also stated that the rice and paddy account in the suit related to the period 1947-48 and 1948-49 though some paddy admittedly received by the defendants in the earlier year was carried forward to the account of the year 1947-48. The amount so carried forward was 429 maunds 19 seers of paddy as balance from the previous year. By the period 1947-48 is meant the calendar year 1948 and by the period 1948-49 is meant the calendar year 1949. Therefore on the evidence of the plaintiffs witness 429 maunds 19 seers of paddy were carried forward from a period prior to the year 1948. This quantity of 429 maunds 19 seers should therefore be deducted from 85114 maunds 36 seers 8 chittaks. The figure will be 84685 maunds 17 seers 8 chittaks.15. Leaving aside 17 seers 8 chittaks the round figure of 84685 maunds would be the amount of paddy delivered by the State. The rate of extraction of rice was alleged in the plaint to be 60 to 65 per cent. The trial Court on the evidence found that the rate of extraction of rice from paddy according to Exhibit 2 was 62 per cent. On that extraction rate of 62 per cent 84685 maunds would yield 52452 maunds of rice. The defendants delivered 48167 maunds. The balance quantity of 4285 maunds will be due by the defendants to the State. The High Court allowed the State value for 5309 maunds 27 seers of rice not delivered by the defendants to the State. That claim is set aside. Instead the State will be entitled to the value of 4285 maunds of rice not delivered by the appellant to the defendant No.3 and the State.16. The High Court was wrong in disallowing wholly the amounts which had been given to the defendants by the trial Court. Exhibit A-11 shows the various charges to which defendants No.3 was entitled. Exhibit E is the agreement between various milling agents and the State showing the various charges of the milling agents to which they were entitled to. The trial Court gave the defendants these charges. The High Court was wrong in disallowing the claims on account of cartage, shrinkage, difference in milling charges, stacking charges, commission charges, ferry charges. Whatever charges were payable to the defendants in that respect between January 1948 and January 1949 to which period the plaintiffs claim is limited should go to the credit of the defendants.17. The decree of the High Court is set aside. The matter is remanded to the High Court to be dealt with in the light of the observations indicated hereinabove. The High Court will determine the amounts payable by the plaintiff State to the appellant and also by the appellant and defendant No.3 to the State.18. The High Court gave a decree in favour of the Stae and also against Purneshwari Rice Mill. Purneshwari Rice Mill is the lessor of the rice mill. The defendants viz., the appellant and respondent No.3 were lessees from Purneshwari Rice Mill.The lessors were not a party to the agreement with the State upon which the State filed the suit. The lesssor were not the purchasing and milling agents. There is no pleading making Purneshwari Rice Mill liable in respect of supply of rice. It would be strange to hold that the lessor were liable for the business of the lessees. The lease between the Purneshwari Rice Mill and the defendants shows that the business to be carried on by the lessees is that of the lessees and the lesor is not engaged in that business. Therefore, the decree against Purneshwari Rice Mill is unjustified and set aside.

1[ds]13. The High Court said that the claims of either side prior to January, 1948 had to be left out of the purview of the suit on the pleadings of the parties. Yet the High Court allowed the defendants claim for the balance of old paddy ofThe appellant challenged this finding of the High Court on two grounds. First, it was said that any claim prior to the period alleged in the suit should not have been taken into consideration in dealing with the claim of the State. Second, if the claim of the State forwere to be considered the deductions for that period in favour of the appellant should have been considered and allowed.14. The appellant in the written statement stated that the defendants received from the State 84174 maunds 16 seers 8 chittaks of paddy in 1948 and 940 maunds 20 seers in 1949. The total was 85114 maunds 36 seers 8 chittaks.The plaintiffs witness Nagendra Narain Singh said that the defendants were supplied in all a total of 85114 maunds 36 seers 8 chittaks of paddy for milling purpose. The plaintiffs witness further stated that the defendants supplied 48167 maunds 20 seers of rice. According to the plaintiff State the defendants should have supplied 53477 maunds 7 seers. The plaintiffs witness also stated that the rice and paddy account in the suit related to the period49 though some paddy admittedly received by the defendants in the earlier year was carried forward to the account of the yearThe amount so carried forward was 429 maunds 19 seers of paddy as balance from the previous year. By the periodis meant the calendar year 1948 and by the periodis meant the calendar year 1949. Therefore on the evidence of the plaintiffs witness 429 maunds 19 seers of paddy were carried forward from a period prior to the year 1948. This quantity of 429 maunds 19 seers should therefore be deducted from 85114 maunds 36 seers 8 chittaks. The figure will be 84685 maunds 17 seers 8 chittaks.15. Leaving aside 17 seers 8 chittaks the round figure of 84685 maunds would be the amount of paddy delivered by the State. The rate of extraction of rice was alleged in the plaint to be 60 to 65 per cent. The trial Court on the evidence found that the rate of extraction of rice from paddy according to Exhibit 2 was 62 per cent. On that extraction rate of 62 per cent 84685 maunds would yield 52452 maunds of rice. The defendants delivered 48167 maunds. The balance quantity of 4285 maunds will be due by the defendants to the State. The High Court allowed the State value for 5309 maunds 27 seers of rice not delivered by the defendants to the State. That claim is set aside. Instead the State will be entitled to the value of 4285 maunds of rice not delivered by the appellant to the defendant No.3 and the State.16. The High Court was wrong in disallowing wholly the amounts which had been given to the defendants by the trial Court. Exhibitshows the various charges to which defendants No.3 was entitled. Exhibit E is the agreement between various milling agents and the State showing the various charges of the milling agents to which they were entitled to. The trial Court gave the defendants these charges. The High Court was wrong in disallowing the claims on account of cartage, shrinkage, difference in milling charges, stacking charges, commission charges, ferry charges. Whatever charges were payable to the defendants in that respect between January 1948 and January 1949 to which period the plaintiffs claim is limited should go to the credit of the defendants.17. The decree of the High Court is set aside. The matter is remanded to the High Court to be dealt with in the light of the observations indicated hereinabove. The High Court will determine the amounts payable by the plaintiff State to the appellant and also by the appellant and defendant No.3 to the State.18. The High Court gave a decree in favour of the Stae and also against Purneshwari Rice Mill. Purneshwari Rice Mill is the lessor of the rice mill. The defendants viz., the appellant and respondent No.3 were lessees from Purneshwari Rice Mill.The lessors were not a party to the agreement with the State upon which the State filed the suit. The lesssor were not the purchasing and milling agents. There is no pleading making Purneshwari Rice Mill liable in respect of supply of rice. It would be strange to hold that the lessor were liable for the business of the lessees. The lease between the Purneshwari Rice Mill and the defendants shows that the business to be carried on by the lessees is that of the lessees and the lesor is not engaged in that business. Therefore, the decree against Purneshwari Rice Mill is unjustified and set aside.

### 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: credit for Rs.399-5-6 on account of items Nos. 4 and 5 in the additional written statement representing two contingent bills for Rs.324-15-6 and Rs.74-6-0. The High Court also upheld the transit shortage allowed by the trial Court in favour of the defendants in respect of 412 maunds of paddy. The corresponding rice at an average extraction of 63 per cent as taken by the trial Court came to 259 maunds 22 seers 6 chittaks. The value thereof at the rate of Rs.16 per maund came to Rs.4153/-. A sum of 4153/- was deducted from the claim of the State with the result that the decree granted by the High Court in favour of the State was for Rupees 31,179/-.12. Counsel on behalf of the appellant contended that any claim prior to the period alleged in the suit, viz., January, 1948 to January, 1949, should not have been taken into consideration in dealing with the claim of the State for 1946-47 were to be considered the deductions for that period should have been considered.13. The High Court said that the claims of either side prior to January, 1948 had to be left out of the purview of the suit on the pleadings of the parties. Yet the High Court allowed the defendants claim for the balance of old paddy of 1946-47. The appellant challenged this finding of the High Court on two grounds. First, it was said that any claim prior to the period alleged in the suit should not have been taken into consideration in dealing with the claim of the State. Second, if the claim of the State for 1946-47 were to be considered the deductions for that period in favour of the appellant should have been considered and allowed.14. The appellant in the written statement stated that the defendants received from the State 84174 maunds 16 seers 8 chittaks of paddy in 1948 and 940 maunds 20 seers in 1949. The total was 85114 maunds 36 seers 8 chittaks.The plaintiffs witness Nagendra Narain Singh said that the defendants were supplied in all a total of 85114 maunds 36 seers 8 chittaks of paddy for milling purpose. The plaintiffs witness further stated that the defendants supplied 48167 maunds 20 seers of rice. According to the plaintiff State the defendants should have supplied 53477 maunds 7 seers. The plaintiffs witness also stated that the rice and paddy account in the suit related to the period 1947-48 and 1948-49 though some paddy admittedly received by the defendants in the earlier year was carried forward to the account of the year 1947-48. The amount so carried forward was 429 maunds 19 seers of paddy as balance from the previous year. By the period 1947-48 is meant the calendar year 1948 and by the period 1948-49 is meant the calendar year 1949. Therefore on the evidence of the plaintiffs witness 429 maunds 19 seers of paddy were carried forward from a period prior to the year 1948. This quantity of 429 maunds 19 seers should therefore be deducted from 85114 maunds 36 seers 8 chittaks. The figure will be 84685 maunds 17 seers 8 chittaks.15. Leaving aside 17 seers 8 chittaks the round figure of 84685 maunds would be the amount of paddy delivered by the State. The rate of extraction of rice was alleged in the plaint to be 60 to 65 per cent. The trial Court on the evidence found that the rate of extraction of rice from paddy according to Exhibit 2 was 62 per cent. On that extraction rate of 62 per cent 84685 maunds would yield 52452 maunds of rice. The defendants delivered 48167 maunds. The balance quantity of 4285 maunds will be due by the defendants to the State. The High Court allowed the State value for 5309 maunds 27 seers of rice not delivered by the defendants to the State. That claim is set aside. Instead the State will be entitled to the value of 4285 maunds of rice not delivered by the appellant to the defendant No.3 and the State.16. The High Court was wrong in disallowing wholly the amounts which had been given to the defendants by the trial Court. Exhibit A-11 shows the various charges to which defendants No.3 was entitled. Exhibit E is the agreement between various milling agents and the State showing the various charges of the milling agents to which they were entitled to. The trial Court gave the defendants these charges. The High Court was wrong in disallowing the claims on account of cartage, shrinkage, difference in milling charges, stacking charges, commission charges, ferry charges. Whatever charges were payable to the defendants in that respect between January 1948 and January 1949 to which period the plaintiffs claim is limited should go to the credit of the defendants.17. The decree of the High Court is set aside. The matter is remanded to the High Court to be dealt with in the light of the observations indicated hereinabove. The High Court will determine the amounts payable by the plaintiff State to the appellant and also by the appellant and defendant No.3 to the State.18. The High Court gave a decree in favour of the Stae and also against Purneshwari Rice Mill. Purneshwari Rice Mill is the lessor of the rice mill. The defendants viz., the appellant and respondent No.3 were lessees from Purneshwari Rice Mill.The lessors were not a party to the agreement with the State upon which the State filed the suit. The lesssor were not the purchasing and milling agents. There is no pleading making Purneshwari Rice Mill liable in respect of supply of rice. It would be strange to hold that the lessor were liable for the business of the lessees. The lease between the Purneshwari Rice Mill and the defendants shows that the business to be carried on by the lessees is that of the lessees and the lesor is not engaged in that business. Therefore, the decree against Purneshwari Rice Mill is unjustified and set aside. ### Response: 1

Saran Motors Private, Limited, New Delhi Vs. Vishwanath and Another

Both these owners were customers of the appellant. Having seen that the respondents had absented themselves on false pretexts and had really taken private work, charge-sheets were served on them and the same were followed by a domestic enquiry. At the enquiry, evidence was led both by the appellant and the respondents. Sri Chadha who held the enquiry found against the reepondents and accepted the appellants case, on receiving his report, the appellant passed the impugned orders of discharge against the two respondents.Before industrial tribunal it was urged by the respondents that the enquiry held by Sri Chadha was unfair and his conclusions were perverse. The appellant denied these allegations and contended that the enquiry was fair and the tribunal had no jurisdiction to consider the correctness or propriety of the findings recorded by the enquiry officer. The tribunal has accepted the respondents contention and has made the awards which have given rise to these two appeals.4. The first question which we have to decide is whether the tribunal was justified in holding that Sri Chadha has a bias in favour of the appellant, and so, was incompetent to hold the enquiry. It appears that Sri Chadha is sometimes engaged by the appellant as a lawyer in industrial matters and the respondents case was that he had been entrusted with the work of holding such enquiries on four or five occasions. It is on these grounds that the tribunal has held that Sri Chadha was not competent to hold the present enquiry.5. In our opinion, this view is completely erroneous and cannot be sustained. We have repeatedly pointed out that domestic enquiries in industrial relations must be fairly conducted and whenever we are satisfied that any enquiry was not fairly conducted or its conclusions were not supported by evidence, we have unhesitatingly ignored the findings recorded at such an enquiry and held that the tribunals must deal with the merits of the dispute for themselves; but it is impossible to accept the argument that because a person is sometimes employed by the employer as a lawyer, he becomes incompetent to hold a domestic enquiry. It is well-known that enquiries of this type are generally conducted by the officers of the employer and in the absence of any special individual bias attributable to a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer of the employer. If that be so, it is obviously un-sound to take the view that a lawyer, who is not a paid officer of the employer, is incompetent to hold the enquiry, because he is the employers lawyer and is paid remuneration for holding the enquiry. Therefore, the first reason given by the trlbunal for ignoring the findings of the domestic enquiry must to reversed.The second conclusion set out in the award of the tribunal is that Sri Chadha adopted a double standard in appreciating the evidence. It appears that before Sri Chadha, the appellant examined four witnesses and the rospondents also led evidence. Amongst the witnesses examined by the respondents, were Dr. Thakur Das and Sardar Atma Singh. Sri Chadha has believed the evidence of the management witnesses and has discarded the testimony given by the respondents witnesses. The tribunal thought that because Sri Chadha has dealt in great detail with the evidence given on behalf of the respondents and has considered the managements evidence somewhat briefly that shows that his approach was perverse. This ground again is completely misconceived and has to be rejected. It may be that the tribunal itself may have been inclined to prefer the evidence led on behalf of the respondents; but that is no reason for holding that Sri Chadha was actuated by bias or that he adopted a double standard in dealing with oral evidence led before him. The criticism made by the tribunal against Sri Chadha on this count appears to us to be completely misconceived, and so, we must hold that the tribunal was in error in rejecting the findings of Sri Chadha on the ground that he had adopted a double standard in dealing with evidence adduced before him (?).6. The last point on which the tribunal has rested its conclusion that the enquiry was unfair and its conclusions can be ignored is based on the fact that Sri Chadha did not make notes of inspection. It appears that Sri chadha inspected the compound where the respondents were found working on 8 June 1959. No doubt, The respondents were not agreeable to this inspection but that cannot mean that Sri Chadha was not competent to inspect the spot if he thought it necessary and expedient to do so. It is true that Sri Chadha did not make any inspection notes but referred to the impression formed by him at the said inspection when he wrote his report. It may be that it would have been better if Sri Chadha had made the inspection notes soon after the inspection; but we do not see how Sri Chadhas failure to make inspection notes can invalidate the whole of the domestic enquiry. After all, the question which Sri Chadha had to decide was a simple question of fact : Did the appellant prove that the two respondents were found working within the compound of the Sir Ganga Ram Hospital on a private job when they had taken leave from the appellants workshop ? On this issue the two rival contentions were supported by two sets of witnesses examined by the parties. Sri Chadha has believed the managements evidence and has rejected the testimony of the respondent witnesses. In such a case, we do not think it was open to the tribunal to consider the evidence for itself when it is plain that the domestic enquiry was fairly conducted, a reasonable opportunity was given to the respondents to prove their case and the conclusions recorded at the enquiry are supported by evidence which was believed by the enquiry officer.7.

1[ds]In our opinion, this view is completely erroneous and cannot be sustained. We have repeatedly pointed out that domestic enquiries in industrial relations must be fairly conducted and whenever we are satisfied that any enquiry was not fairly conducted or its conclusions were not supported by evidence, we have unhesitatingly ignored the findings recorded at such an enquiry and held that the tribunals must deal with the merits of the dispute for themselves; but it is impossible to accept the argument that because a person is sometimes employed by the employer as a lawyer, he becomes incompetent to hold a domestic enquiry. It isthat enquiries of this type are generally conducted by the officers of the employer and in the absence of any special individual bias attributable to a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer of the employer. If that be so, it is obviouslyto take the view that a lawyer, who is not a paid officer of the employer, is incompetent to hold the enquiry, because he is the employers lawyer and is paid remuneration for holding the enquiry. Therefore, the first reason given by the trlbunal for ignoring the findings of the domestic enquiry must to reversed.The second conclusion set out in the award of the tribunal is that Sri Chadha adopted a double standard in appreciating the evidence. It appears that before Sri Chadha, the appellant examined four witnesses and the rospondents also led evidence. Amongst the witnesses examined by the respondents, were Dr. Thakur Das and Sardar Atma Singh. Sri Chadha has believed the evidence of the management witnesses and has discarded the testimony given by the respondents witnesses. The tribunal thought that because Sri Chadha has dealt in great detail with the evidence given on behalf of the respondents and has considered the managements evidence somewhat briefly that shows that his approach was perverse. This ground again is completely misconceived and has to be rejected. It may be that the tribunal itself may have been inclined to prefer the evidence led on behalf of the respondents; but that is no reason for holding that Sri Chadha was actuated by bias or that he adopted a double standard in dealing with oral evidence led before him. The criticism made by the tribunal against Sri Chadha on this count appears to us to be completely misconceived, and so, we must hold that the tribunal was in error in rejecting the findings of Sri Chadha on the ground that he had adopted a double standard in dealing with evidence adduced before himlast point on which the tribunal has rested its conclusion that the enquiry was unfair and its conclusions can be ignored is based on the fact that Sri Chadha did not make notes of inspection. It appears that Sri chadha inspected the compound where the respondents were found working on 8 June 1959. No doubt, The respondents were not agreeable to this inspection but that cannot mean that Sri Chadha was not competent to inspect the spot if he thought it necessary and expedient to do so. It is true that Sri Chadha did not make any inspection notes but referred to the impression formed by him at the said inspection when he wrote his report. It may be that it would have been better if Sri Chadha had made the inspection notes soon after the inspection; but we do not see how Sri Chadhas failure to make inspection notes can invalidate the whole of the domestic enquiry. After all, the question which Sri Chadha had to decide was a simple question of fact : Did the appellant prove that the two respondents were found working within the compound of the Sir Ganga Ram Hospital on a private job when they had taken leave from the appellants workshop ? On this issue the two rival contentions were supported by two sets of witnesses examined by the parties. Sri Chadha has believed the managements evidence and has rejected the testimony of the respondent witnesses. In such a case, we do not think it was open to the tribunal to consider the evidence for itself when it is plain that the domestic enquiry was fairly conducted, a reasonable opportunity was given to the respondents to prove their case and the conclusions recorded at the enquiry are supported by evidence which was believed by the enquiry officer.

### 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: Both these owners were customers of the appellant. Having seen that the respondents had absented themselves on false pretexts and had really taken private work, charge-sheets were served on them and the same were followed by a domestic enquiry. At the enquiry, evidence was led both by the appellant and the respondents. Sri Chadha who held the enquiry found against the reepondents and accepted the appellants case, on receiving his report, the appellant passed the impugned orders of discharge against the two respondents.Before industrial tribunal it was urged by the respondents that the enquiry held by Sri Chadha was unfair and his conclusions were perverse. The appellant denied these allegations and contended that the enquiry was fair and the tribunal had no jurisdiction to consider the correctness or propriety of the findings recorded by the enquiry officer. The tribunal has accepted the respondents contention and has made the awards which have given rise to these two appeals.4. The first question which we have to decide is whether the tribunal was justified in holding that Sri Chadha has a bias in favour of the appellant, and so, was incompetent to hold the enquiry. It appears that Sri Chadha is sometimes engaged by the appellant as a lawyer in industrial matters and the respondents case was that he had been entrusted with the work of holding such enquiries on four or five occasions. It is on these grounds that the tribunal has held that Sri Chadha was not competent to hold the present enquiry.5. In our opinion, this view is completely erroneous and cannot be sustained. We have repeatedly pointed out that domestic enquiries in industrial relations must be fairly conducted and whenever we are satisfied that any enquiry was not fairly conducted or its conclusions were not supported by evidence, we have unhesitatingly ignored the findings recorded at such an enquiry and held that the tribunals must deal with the merits of the dispute for themselves; but it is impossible to accept the argument that because a person is sometimes employed by the employer as a lawyer, he becomes incompetent to hold a domestic enquiry. It is well-known that enquiries of this type are generally conducted by the officers of the employer and in the absence of any special individual bias attributable to a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer of the employer. If that be so, it is obviously un-sound to take the view that a lawyer, who is not a paid officer of the employer, is incompetent to hold the enquiry, because he is the employers lawyer and is paid remuneration for holding the enquiry. Therefore, the first reason given by the trlbunal for ignoring the findings of the domestic enquiry must to reversed.The second conclusion set out in the award of the tribunal is that Sri Chadha adopted a double standard in appreciating the evidence. It appears that before Sri Chadha, the appellant examined four witnesses and the rospondents also led evidence. Amongst the witnesses examined by the respondents, were Dr. Thakur Das and Sardar Atma Singh. Sri Chadha has believed the evidence of the management witnesses and has discarded the testimony given by the respondents witnesses. The tribunal thought that because Sri Chadha has dealt in great detail with the evidence given on behalf of the respondents and has considered the managements evidence somewhat briefly that shows that his approach was perverse. This ground again is completely misconceived and has to be rejected. It may be that the tribunal itself may have been inclined to prefer the evidence led on behalf of the respondents; but that is no reason for holding that Sri Chadha was actuated by bias or that he adopted a double standard in dealing with oral evidence led before him. The criticism made by the tribunal against Sri Chadha on this count appears to us to be completely misconceived, and so, we must hold that the tribunal was in error in rejecting the findings of Sri Chadha on the ground that he had adopted a double standard in dealing with evidence adduced before him (?).6. The last point on which the tribunal has rested its conclusion that the enquiry was unfair and its conclusions can be ignored is based on the fact that Sri Chadha did not make notes of inspection. It appears that Sri chadha inspected the compound where the respondents were found working on 8 June 1959. No doubt, The respondents were not agreeable to this inspection but that cannot mean that Sri Chadha was not competent to inspect the spot if he thought it necessary and expedient to do so. It is true that Sri Chadha did not make any inspection notes but referred to the impression formed by him at the said inspection when he wrote his report. It may be that it would have been better if Sri Chadha had made the inspection notes soon after the inspection; but we do not see how Sri Chadhas failure to make inspection notes can invalidate the whole of the domestic enquiry. After all, the question which Sri Chadha had to decide was a simple question of fact : Did the appellant prove that the two respondents were found working within the compound of the Sir Ganga Ram Hospital on a private job when they had taken leave from the appellants workshop ? On this issue the two rival contentions were supported by two sets of witnesses examined by the parties. Sri Chadha has believed the managements evidence and has rejected the testimony of the respondent witnesses. In such a case, we do not think it was open to the tribunal to consider the evidence for itself when it is plain that the domestic enquiry was fairly conducted, a reasonable opportunity was given to the respondents to prove their case and the conclusions recorded at the enquiry are supported by evidence which was believed by the enquiry officer.7. ### Response: 1

State of Andhra Pradesh Vs. S.R. Rangadamappa

1. The respondent was charged with an offence under Section 34(a) of the Andhra Pradesh Excise Act on the allegation that he was found in possession of a quantity of eight litres of illicitly distilled arrack, an intoxicant, in contravention of the provisions of the Act and the Rules made under the Act. The learned Judicial First Class Magistrate convicted him and sentenced him to suffer rigorous imprisonment for a period of two years, which was the minimum sentence that could be awarded for an offence under S. 34(a) of the A.P. Excise Act. On an appeal preferred by the respondent the Sessions Judge, Anantapur confirmed the conviction and sentence. The respondent preferred a revision petition before the High Court. The learned single Judge who heard the revision confirmed the conviction. But, on the question of sentence, he observed"Mr. T. Ramulu, appearing for the petitioner who has filed this revision through jail, has submitted that the petitioner is aged 30 years and is a first offender and he has already served a sentence of about 10 months and that the sentence may be appropriately modified. It is true that under the A.P. Excise Act, a statutory minimum sentence is prescribed. But having regard to the submissions made above. I feel the interest of justice will be satisfied if the sentence of imprisonment imposed against the petitioner is reduced to the period already undergone and if the fine of Rs. 50/-, imposed is set aside. The revision is dismissed subject of the modification as stated above."2. We are unable to understand why the High Court reduced the sentence. The statute prescribes a minimum sentence. It does not provide for any exceptions and does not vest the Court with any discretion to award a sentence below the prescribed minimum under any special circumstances. The learned Judge has himself noticed that the sentence imposed is the statutory minimum. Having noticed that the statute prescribes a minimum sentence for the offence, the High Court has understandably reduced the sentence of imprisonment to less than the minimum permissible. The High Court was clearly in error in doing so. We think we have said enough to correct the error. It is unnecessary to pursue the matter further by granting special leave.

0[ds]2. We are unable to understand why the High Court reduced the sentence. The statute prescribes a minimum sentence. It does not provide for any exceptions and does not vest the Court with any discretion to award a sentence below the prescribed minimum under any special circumstances. The learned Judge has himself noticed that the sentence imposed is the statutory minimum. Having noticed that the statute prescribes a minimum sentence for the offence, the High Court has understandably reduced the sentence of imprisonment to less than the minimum permissible. The High Court was clearly in error in doing so. We think we have said enough to correct the error. It is unnecessary to pursue the matter further by granting special leave.

### 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: 1. The respondent was charged with an offence under Section 34(a) of the Andhra Pradesh Excise Act on the allegation that he was found in possession of a quantity of eight litres of illicitly distilled arrack, an intoxicant, in contravention of the provisions of the Act and the Rules made under the Act. The learned Judicial First Class Magistrate convicted him and sentenced him to suffer rigorous imprisonment for a period of two years, which was the minimum sentence that could be awarded for an offence under S. 34(a) of the A.P. Excise Act. On an appeal preferred by the respondent the Sessions Judge, Anantapur confirmed the conviction and sentence. The respondent preferred a revision petition before the High Court. The learned single Judge who heard the revision confirmed the conviction. But, on the question of sentence, he observed"Mr. T. Ramulu, appearing for the petitioner who has filed this revision through jail, has submitted that the petitioner is aged 30 years and is a first offender and he has already served a sentence of about 10 months and that the sentence may be appropriately modified. It is true that under the A.P. Excise Act, a statutory minimum sentence is prescribed. But having regard to the submissions made above. I feel the interest of justice will be satisfied if the sentence of imprisonment imposed against the petitioner is reduced to the period already undergone and if the fine of Rs. 50/-, imposed is set aside. The revision is dismissed subject of the modification as stated above."2. We are unable to understand why the High Court reduced the sentence. The statute prescribes a minimum sentence. It does not provide for any exceptions and does not vest the Court with any discretion to award a sentence below the prescribed minimum under any special circumstances. The learned Judge has himself noticed that the sentence imposed is the statutory minimum. Having noticed that the statute prescribes a minimum sentence for the offence, the High Court has understandably reduced the sentence of imprisonment to less than the minimum permissible. The High Court was clearly in error in doing so. We think we have said enough to correct the error. It is unnecessary to pursue the matter further by granting special leave. ### Response: 0

Federation of Hotel & Restaurant Associations of India Vs. Union of India & Others

combine the said provisions into one enactment so as to make the law simple, ensure accountability, and bring in transparency. The statement of objects and reasons for the 2009 Act reads as follows:-"STATEMENT OF OBJECTS AND REASONSIn India, uniform standards of weights and measures based on the metric system, were established in the year 1956, which were revised in the year 1976 with a view to give effect to the international system of units. Apart from it, the Standards of Weights and Measures Act, 1976 provides for establishing Standards of Weights and Measures, regulation of inter-State trade or commerce in weights and measures and other goods which are sold by weight, measure or number. In the year 1985, the Standards of Weights and Measures (Enforcement) Act, 1985 was enacted for enforcement of standards of weights and measures established by or under the 1976 Act.2. The advancement of technology has necessitated the review of above mentioned enactments to make them simple, eliminate obsolete regulations, ensure accountability and bring transparency.3. It has become imperative to combine the provisions of the existing two Acts to get rid of anomalies and make the provisions simple. It has also become necessary to keep the regulation pragmatic to the extent required for protecting the interest of consumers and at the same time keep the industry free from undue interference. It has also become necessary to recognise certain "Government approved Test Centres" which will be empowered to verify prescribed weights or measure.4. The Bill, inter alia, provides for,-(a) regulation of weight or measure used in transaction or for protection;(b) approval of model or weight or measure;(c) verification of prescribed weight or measure by Government approved Test Centre;(d) prescribing qualification of legal metrology officers appointed by the Central Government or State Government;(e) exempting regulation of weight or measure or other goods meant for export;(f) levy of fee for various services;(g) nomination of a Director by a company who will be responsible for complying with the provisions of the enactment;(h) penalty for offences and compounding of offences;(I) appeal against decision of various authorities; and(j) empowering the Central Government to make rules for enforcing the provisions of the enactment." 13. On a reading of the said Act and the Rules made thereunder, it is clear that the position qua "sale" remains exactly the same as that contained in the 1976 Act, which now stands repealed. This being the case, we are of the view that the learned Single Judge was absolutely correct in his conclusion that despite the constitutional amendment having been passed, the definition of "sale" contained both in the 1976 Act and now in the 2009 Act would go to show that composite indivisible agreements for supply of services and food and drinks would not come within the purview of either enactment, and that this is for the very good reason that the object for both these enactments is something quite different - the object being, as has been pointed out above, to standardize weights and measures for defined goods so that quantities that are supplied are thus mentioned on the package and that MRPs are mentioned so that there is one uniform price at which such goods are sold. 14. Mr. Sinha, learned Senior Counsel, however, has argued before us that given the fact that learned Senior Counsel on behalf of the appellant had made a concession before the Division Bench, we should not interfere with the said judgment. It is settled law that any such concession made on a question relating to jurisdiction to proceed further, particularly qua criminal prosecutions, does not bind the party in question. It is of utmost importance for all to know exactly how they stand in such cases. Also, Mr. Sinhas reliance upon Section 2(l) of the 2009 Act read with Rule 3 of the Rules does not take us very much further. Section 2(l) of the 2009 Act reads as follows:- "(l) "pre-packaged commodity" means a commodity which without the purchaser being present is placed in a package of whatever nature, whether sealed or not, so that the product contained therein has a pre-determined quantity;" 15. A cursory reading of the aforesaid definition would show that it refers only to the fact that a pre-packaged commodity should have a pre-determined quantity as stated in the definition section. It has no bearing whatsoever on the issue before us. Equally, reliance upon Rule 3 of the 2011 Rules again does not lead us anywhere. Rule 3 of the said Rules read as follows:- "3. Applicability of the Chapter.- The provisions of this Chapter shall not apply to,-(a) packages of commodities containing quantity of more than 25 kg or 25 litre excluding cement and fertilizer sold in bags up to 50 kg; and(b) packaged commodities meant for industrial consumers or institutional consumers.Explanation.- For the purpose of this rule,-(i) "institutional consumer" means the institutional consumer like transportation, Airways, Railways, Hotels, Hospitals or any other service institutions who buy packaged commodities directly from the manufacturer for use by that institution;(ii) "industrial consumer" means the industrial consumer who buy packaged commodities directly from the manufacturer for use by that industry." 16. Mr. Sinha relied upon the definition of institutional consumer contained in explanation (i) in order to show that hotels, in particular, would be under the coverage of the Act read with the Rules. First and foremost, a reading of the opening of Rule 3 would show that the provisions of the Chapter would not apply to packaged commodities meant for institutional consumers such as hotels. Also, the Rules cannot take us very much further when it has already been held by us that the Act itself would not apply for the reasons given herein above.17. We are, therefore, of the view that neither the Standards of Weights and Measures Act, 1976 read with the enactment of 1985, or the Legal Metrology Act, 2009, would apply so as to interdict the sale of mineral water in hotels and restaurants at prices which are above the MRP.

1[ds]Since it is not possible to divide the "service element", which is the dominant element, from the "sale element", it is clear that such composite contracts cannot be theof sales tax legislation, as was held in thosereading of the constitutional amendment would show that supply by way of or as part of any service of food or other article for human consumption is now deemed to be a sale of goods by the person making the transfer, delivery or supply.On a reading of the said Act and the Rules made thereunder, it is clear that the position qua "sale" remains exactly the same as that contained in the 1976 Act, which now stands repealed. This being the case, we are of the view that the learned Single Judge was absolutely correct in his conclusion that despite the constitutional amendment having been passed, the definition of "sale" contained both in the 1976 Act and now in the 2009 Act would go to show that composite indivisible agreements for supply of services and food and drinks would not come within the purview of either enactment, and that this is for the very good reason that the object for both these enactments is something quite differentthe object being, as has been pointed out above, to standardize weights and measures for defined goods so that quantities that are supplied are thus mentioned on the package and that MRPs are mentioned so that there is one uniform price at which such goods areshould not interfere with the said judgment.It is settled law that any such concession made on a question relating to jurisdiction to proceed further, particularly qua criminal prosecutions, does not bind the party in question. It is of utmost importance for all to know exactly how they stand in such cases.A cursory reading of the aforesaid definition would show that it refers only to the fact that acommodity should have aquantity as stated in the definition section. It has no bearing whatsoever on the issue beforeand foremost, a reading of the opening of Rule 3 would show that the provisions of the Chapter would not apply to packaged commodities meant for institutional consumers such as hotels. Also, the Rules cannot take us very much further when it has already been held by us that the Act itself would not apply for the reasons given herein above.17. We are, therefore, of the view that neither the Standards of Weights and Measures Act, 1976 read with the enactment of 1985, or the Legal Metrology Act, 2009, would apply so as to interdict the sale of mineral water in hotels and restaurants at prices which are above the MRP.

### 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: combine the said provisions into one enactment so as to make the law simple, ensure accountability, and bring in transparency. The statement of objects and reasons for the 2009 Act reads as follows:-"STATEMENT OF OBJECTS AND REASONSIn India, uniform standards of weights and measures based on the metric system, were established in the year 1956, which were revised in the year 1976 with a view to give effect to the international system of units. Apart from it, the Standards of Weights and Measures Act, 1976 provides for establishing Standards of Weights and Measures, regulation of inter-State trade or commerce in weights and measures and other goods which are sold by weight, measure or number. In the year 1985, the Standards of Weights and Measures (Enforcement) Act, 1985 was enacted for enforcement of standards of weights and measures established by or under the 1976 Act.2. The advancement of technology has necessitated the review of above mentioned enactments to make them simple, eliminate obsolete regulations, ensure accountability and bring transparency.3. It has become imperative to combine the provisions of the existing two Acts to get rid of anomalies and make the provisions simple. It has also become necessary to keep the regulation pragmatic to the extent required for protecting the interest of consumers and at the same time keep the industry free from undue interference. It has also become necessary to recognise certain "Government approved Test Centres" which will be empowered to verify prescribed weights or measure.4. The Bill, inter alia, provides for,-(a) regulation of weight or measure used in transaction or for protection;(b) approval of model or weight or measure;(c) verification of prescribed weight or measure by Government approved Test Centre;(d) prescribing qualification of legal metrology officers appointed by the Central Government or State Government;(e) exempting regulation of weight or measure or other goods meant for export;(f) levy of fee for various services;(g) nomination of a Director by a company who will be responsible for complying with the provisions of the enactment;(h) penalty for offences and compounding of offences;(I) appeal against decision of various authorities; and(j) empowering the Central Government to make rules for enforcing the provisions of the enactment." 13. On a reading of the said Act and the Rules made thereunder, it is clear that the position qua "sale" remains exactly the same as that contained in the 1976 Act, which now stands repealed. This being the case, we are of the view that the learned Single Judge was absolutely correct in his conclusion that despite the constitutional amendment having been passed, the definition of "sale" contained both in the 1976 Act and now in the 2009 Act would go to show that composite indivisible agreements for supply of services and food and drinks would not come within the purview of either enactment, and that this is for the very good reason that the object for both these enactments is something quite different - the object being, as has been pointed out above, to standardize weights and measures for defined goods so that quantities that are supplied are thus mentioned on the package and that MRPs are mentioned so that there is one uniform price at which such goods are sold. 14. Mr. Sinha, learned Senior Counsel, however, has argued before us that given the fact that learned Senior Counsel on behalf of the appellant had made a concession before the Division Bench, we should not interfere with the said judgment. It is settled law that any such concession made on a question relating to jurisdiction to proceed further, particularly qua criminal prosecutions, does not bind the party in question. It is of utmost importance for all to know exactly how they stand in such cases. Also, Mr. Sinhas reliance upon Section 2(l) of the 2009 Act read with Rule 3 of the Rules does not take us very much further. Section 2(l) of the 2009 Act reads as follows:- "(l) "pre-packaged commodity" means a commodity which without the purchaser being present is placed in a package of whatever nature, whether sealed or not, so that the product contained therein has a pre-determined quantity;" 15. A cursory reading of the aforesaid definition would show that it refers only to the fact that a pre-packaged commodity should have a pre-determined quantity as stated in the definition section. It has no bearing whatsoever on the issue before us. Equally, reliance upon Rule 3 of the 2011 Rules again does not lead us anywhere. Rule 3 of the said Rules read as follows:- "3. Applicability of the Chapter.- The provisions of this Chapter shall not apply to,-(a) packages of commodities containing quantity of more than 25 kg or 25 litre excluding cement and fertilizer sold in bags up to 50 kg; and(b) packaged commodities meant for industrial consumers or institutional consumers.Explanation.- For the purpose of this rule,-(i) "institutional consumer" means the institutional consumer like transportation, Airways, Railways, Hotels, Hospitals or any other service institutions who buy packaged commodities directly from the manufacturer for use by that institution;(ii) "industrial consumer" means the industrial consumer who buy packaged commodities directly from the manufacturer for use by that industry." 16. Mr. Sinha relied upon the definition of institutional consumer contained in explanation (i) in order to show that hotels, in particular, would be under the coverage of the Act read with the Rules. First and foremost, a reading of the opening of Rule 3 would show that the provisions of the Chapter would not apply to packaged commodities meant for institutional consumers such as hotels. Also, the Rules cannot take us very much further when it has already been held by us that the Act itself would not apply for the reasons given herein above.17. We are, therefore, of the view that neither the Standards of Weights and Measures Act, 1976 read with the enactment of 1985, or the Legal Metrology Act, 2009, would apply so as to interdict the sale of mineral water in hotels and restaurants at prices which are above the MRP. ### Response: 1

Hari Chand & Another Vs. State of Delhi

Kanahiya and in belabouring prosecution witnesses Attro and Ram Pal. Consequently their conviction and sentence as imposed by the High Court under S.302 read with S.34 I.P.C. for causing the death of Sohan and Kanahiya and their conviction and sentence under S.325 read with S.34 for causing grievous hurt to prosecution witness Ram Pal and their conviction and sentence under S.323 read with S.34 for causing simple injuries to Smt. Attro cannot be found fault with. Point No. 1 is, therefore, answered in the affirmative while point No. 3 is answered in the negative. 28. Point No. 2. It is now well stated that in appeal against acquittal the High Court is entitled to reappreciate the evidence if it is found that the view taken by acquitting court was not a possible view or that it has a perverse or infirm or palpably erroneous view. In the case of Uppari Venkataswamy v. Public Prosecutor. High Court of Andhra Pradesh, 1995 (7) SCALE 147 : (1996 AIR SCW 98) a Division Bench of this Court consisting of M. K. Mukherjee, J. and one of us, S. B. Majmudar, J., has made the following observations on this aspect in para 28 (of SCALE) (Para 27 of AIR) of the Report : "It is now well settled by a catena of decisions of this Court that in an appeal against acquittal the appellate court can interfere with the findings of fact recorded by the Trial Court and can upset the acquittal by reappreciating evidence if it is found that the view taken by the acquitting court was not a possible view on the evidence on record. In this connection, we may refer to the decision of this Court in the case of State of Punjab v. Ajaib Singh, (1995) 2 SCC 486 : (1995 AIR SCW 950 ) ; R. M. Sahai, J. speaking for this Court made the following pertinent observations in this connection in para 7 of the Report : ... We agree that this Court is not precluded or the court hearing the appeal against acquittal is not prevented from examining and reappreciating the evidence on record. But the duty of a court hearing the appeal against acquittal in the first instance is to satisfy itself if the view taken by acquitting court... .... .... ... was possible view or not. And if the court comes to conclusion that it was not, it can on reappreciation of evidence reverse the order..." It was also observed in the said decision that the appellate court would not be entitled to interfere unless the view of the acquitting court is found to be perverse or infirm or palpably erroneous. We have, therefore, to see whether on the facts of the present case the Trial Court was justified in acquitting the present accused of the offences with which they were charged by brushing aside the eye witness account of injured P. Ws. 1 and 4 to 7. ...." So far as the facts of the present case are concerned it emerges on record that the eye witness account of prosecution witnesses Smt. Attro and Ram Pal who were injured eye witnesses was acceptable to the Trial Court so far as their version about involvement of convicted accused Likhi and Chandgi is concerned. But the very same evidence of injured eye witness against the appellants was not relied upon by the Trial Court by adopting a view which was clearly against the weight of evidence and not a reasonable one. In paragraph 44 of the judgment of the Trial Court it has been observed that the involvement of these accused was not free from doubt. The learned Trial Judge observed that they were not armed with any weapon. The assertion of Ram Pal that they were armed with lathis and they had joined others in inflicting lathi blows on him and other victims is totally belied by Attros conspicuous silence about the fact. So far as this observation of the learned Trial Judge is concerned it was clearly against evidence for the simple reason that Attros statement recorded at the hospital clearly showed that these witnesses were armed with lathis. As seen earlier even before the Trial Court she deposed that all the eleven accused had come to their baithak to attack them. Consequently the view of the Trial Court giving benefit of doubt to the accused was clearly against the weight of evidence and patently a perverse and unreasonable view. In this connection the High Court was justified in observing that witness. Badley, P.W. 12 was examined only for proving identification of dead bodies of Sohan Lal and Kanahiya while witness Ajit Ram P.W. 18 was examined for proving the recovery of ballam and lathis. But during their cross examination they tried to support the accused and had gone out of their way in deposing that the accused were not present on the scene of offence at the relevant time. The evidence of witness Badley in his cross examination was clearly unreliable and was right rejected by the Trial Court. Consequently the evidence of these two witnesses could not have been relied upon by the Trial Court for exonerating the accused and in holding that the accused would not be present on the scene of offence on the date of incident. We have already seen earlier how the defence had failed to establish the theory of alibi still the Trial Court has accepted the theory of alibi as put forward on behalf of the defence and that is how benefit of doubt was extended to the appellants. The said reasoning of the Trial Court was clearly perverse, unreasonable and against the weight of evidence. Under these circumstances the High Court was perfectly justified in interfering in appeal against acquittal and in coming to its own conclusion by appreciating the evidence led by the prosecution. The second point for determination also, therefore, has to be held against the appellants by answering it in the affirmative.

0[ds]As the prosecution evidence reveals, injured Kanahiya, Sohan Lal and Ram Pal as well as Smt. Attro were removed by Police witness Dhan Singh to AIIMS in the van of the control room. When Dhan Singh enquired from the doctor Kanahiya was found dead and soon thereafter Sohan Lal also died in the hospital. Ram Pal was declared unfit to make a statement. It is also clear from the medical reports that all the four injured had been removed to AIIMS and were with the doctors by 11.45 a.m. The ruqqa itself was dispatched by 12.50 p.m. Smt. Attro was first examined by doctors and thereafter her statement was recorded by A.S.I. Dan Singh and the FIR was registered at 1.15 p.m. Thus at the earliest opportunity without any undue delay the FIR was registered at the police station. As the incident had taken place at about 9.00 a.m. in the morning of 18th December, 1974 and when the message about the incident was flashed to the police control room at about 9.45 a.m. as deposed to by Harish Chander PW 19, it is obvious that it took sometime before the A.S.I. Dhan Singh could reach the spot. He reached there by about 10.30 a.m. and simultaneously police control room van also reached. It was thereafter that all four injured were taken to AIIMS where the doctors examined them by 11.45 a.m. It is to be noted that when Smt. Attro herself was an injured victim and when the doctors had to examine Kanahiya, Ram Pal and Sohan Lal who were very seriously injured and out of whom Kanahiya was declared dead and Sohan Lal died a little later and when Ram Pal was in a seriously injured condition having lost consciousness it would naturally take sometime before Smt. Attro could be questioned by the police. Her statement could be recorded at the earliest opportunity possible at the hospital when she was fit to make a statement and give information regarding the incident. Consequently the High Court was perfectly justified in taking the view that there was no undue delay in recording the FIR and it was a true and correct recording of the earliest version about the incident given by injured witness Smt.is true that in her deposition before the Trial Court she tried to rope in apart from the appellants. It is true that in her deposition before the Trial Court she tried to rope in apart from the appellants and convicted caused Likhi Ram and Chandgi, other accused who have been acquitted by the Trial Court and whose acquittal has been confirmed by the High Court. But only because she tried to exaggerate her case at the stage of trial it cannot be said that her evidence otherwise reliable against the present appellants also should be disbelieved. The High Court, therefore, was justified in sifting her evidence and in trying to see whether after discarding the unbelievable part of her evidence, the rest of her evidence against the present appellants which had stood the test of cross examination could be reliedour view the evidence of Smt. Attro in so far as she consistently deposed in connection with the role of the appellants and which had run parallel to her FIR was rightly accepted by the High Court. It is true that in the FIR as well as in her evidence before the Trial Court she had not ascribed any positive act on the part of the appellants in giving lathi blows to her brothers but she had clearly stated about their presence on spot and being party to the criminal assault on all the four of them in the baithak of Ram Pal which resulted in the death of her two brothers Sohan Lal and Kanahiya and in grievous injuries to her brother Ram Pal as well as to herself. It is also true that she had not stated in her evidence that the appellants were armed with lathis when they entered the baithak along with Chandgi and Likhi Ram to attack them and in the FIR she had also stated that they were armed with lathis. Consequently prosecution has clearly brought out the involvement of present appellants in the incident wherein they shared common intention with accused Likhi and Chandgi in giving fatal injuries to the two deceased as well as injuries to the tow injured witnesses Ram Pal and Smt. Attro.21. So far as Attro is concerned the medical evidence shows that she had suffered threecontusion on the upper part of the shoulder, (2) abrasion on the fore arm, and (3) haematoma left side of the back of the skull. This evidence supported her version that she had suffered injuries on spot at the time of incident when she tried to save her brother Sohanpart of his evidence has well stood the test of cross examination and fully supports the eye witness account of Smt. Attro so far as the involvement of the present appellants in the incident is concerned. Once it is found that appellants entered the baithak of witness Ram Pal armed with lathis in company of accused Chandgi and Likhi and facilitated the attack by Likhi and Chandgi on the witness and the two deceased, it cannot be urged that they did not share the common intention of murdering the concerned victims of their assault. S.302 read with S.34, I.P.C. would squarely get attracted against the present appellants along with accused Likhi and Chandgi who actually mounted the assault on these victims in company of the present appellants. Having given our anxious consideration to the eye witness account deposed to by prosecution witness Attro, PW 7 and Ram Pal, PW 8 in the light of the FIR we find that the High Court was perfectly justified in placing implicit reliance on the eye witness account of PWs 7 and 8 for convicting the appellants of the offences with which they wereis true that in her evidence she has not stated that the appellants also mounted attack with lathis and only the other two accused Likhi Ram and Chandgi were involved in the actual assault. However, PW 8 Ram Pal has clearly stated that the present appellants were also wielding lathis and had taken part in the assault on Kanahiya. That part of the evidence has well stood the test of cross examination. Thus, their presence being armed with lathis in company with the other two accused and their participation in the assault is established on record. It is easy to visualise that they would have come together sharing common intention to liquidate the victims and would not have come just for the sake ofhave also seen earlier how the said suggestion could not be accepted for the simple reason that if Badley and Prabhu were out to falsely involve the appellants and would have prevailed upon Smt. Attro to falsely involve them, Badley while being examined in Sessions Case as PW 12 would not have gone out of his way in supporting the appellants. Consequently, the submission of the learned senior counsel Shri Jain for discrediting the eye witness account of Smt. Attro as recorded in her statement at the earliest at the hospital cannot befar as this contention is concerned it must be kept in view that while appreciating the evidence of witnesses in a criminal trial especially in a case of eye witnesses the maxim falsus in uno, falsus in omnibus cannot apply and the Court has to make efforts to sift the grain from the chaff. It is of course true that when a witness is said to have exaggerated in his evidence at the stage of trial and has tried to involve many more accused and if that part of the evidence is not found acceptable the remaining part of evidence has to be scrutinised with care and the Court must try to see whether the acceptable part of the evidence gets corroborated from other evidence on record so that the acceptable part can be safely relied upon. So far as the aspect of corroboration to the evidence regarding the eye witness account of witnesses Ram Pal and Attro about the involvement of appellants is concerned, the said corroboration is found from the earliest recorded statement of Smt. Attro at thethat apart, their very presence on the spot armed with lathis could clearly indicate that they shared common intention with the remaining accused Likhi and Chandgi who in their company mounted the assault on the victims. Even the cross examination of these eye witness has also proceeded on the basis that they were present on the scene of offence and had suffered from injuries in the assault. In this connection Shri Jain submitted that so far as Smt. Attro is concerned in her evidence she did not state that the present appellants were armed with lathis. It is of course true that in her evidence she only stated that appellants Hari Chand and Sarup had come to their baithak in company of Likhi and Chandgi and that Likhi was armed with ballam and Chandgi was armed with lathi. However, she further stated that they were all eleven accused who had come to their baithak to attackis true, as stated by him, that he could not see the assault on Smt. Attro but evidence regarding assault on her is supplied by the cogent version deposed to by injured eye witness Smt. Attro herself. The eye witness account of injured witness Ram Pal, PW 8 and Smt. Attro, PW 7 has well stood the test of cross examination. Consequently the submission of learned senior counsel Shri Jain for not accepting the eye witness account of these two witnesses so far as the present appellants are concerned, cannot befar as this submission is concerned it has to be kept in view that the remaining seven accused were acquitted by the Trial Court and which acquittal was accepted by the High Court on the ground that there was no clear evidence regarding their involvement in the incident and that the injured eye witnesses Ram Pal and Attro had specifically deposed about the involvement of only four accused, namely, Likhi, Chandgi and the present two appellants who were stated to have entered the baithak and mounted attack and when in the FIR it was mentioned that other seven accused were standing outside the house on the road. Hence they were given benefit of doubt. Only because such benefit of doubt was given to the remaining seven accused it cannot be said that clinching evidence against the remaining four accused should also beis in evidence that the place of offence in Village Tughlakabad is not at a long distance from Delhi where the accused was appearing in his L.L.B. examination. It is not in dispute that examination was being held in the morning from 9.00 a.m. for three hours. Therefore, after finishing the examination on 17th by 12.00 noon. and when the next examination was on 19th December there was ample opportunity of the accused to go to his own village. Consequently it is not improbable that the accused could be present on the scene of offence on 18th which was an off day for him so far as his examination was concerned. Consequently the aforesaid evidence does not probabilise the theory of alibi and absence of the accused from the scene of offence on that fateful morning of 18th December 1974. It is well established that it is for the accused to prove the case of alibi to the hilt. The aforesaid evidence of the alibi led on behalf of both the appellants does not meet this test. It must, therefore, be held that the defence has failed to establish the plea of alibi concerning the present appellants. The High Court, therefore, was justified in not accepting this version of the accused. Points Nos. 1 and 3, therefore, will have to be answered against the appellants. It must be held that the prosecution has been able to establish beyond shadow of reasonable doubt that both the accused had shared the common intention with convicted accused Chandgi and Likhi in liquidating the victims Sohan and Kanahiya and in belabouring prosecution witnesses Attro and Ram Pal. Consequently their conviction and sentence as imposed by the High Court under S.302 read with S.34 I.P.C. for causing the death of Sohan and Kanahiya and their conviction and sentence under S.325 read with S.34 for causing grievous hurt to prosecution witness Ram Pal and their conviction and sentence under S.323 read with S.34 for causing simple injuries to Smt. Attro cannot be found fault with. Point No. 1 is, therefore, answered in the affirmative while point No. 3 is answered in theis now well stated that in appeal against acquittal the High Court is entitled to reappreciate the evidence if it is found that the view taken by acquitting court was not a possible view or that it has a perverse or infirm or palpably erroneousfar as the facts of the present case are concerned it emerges on record that the eye witness account of prosecution witnesses Smt. Attro and Ram Pal who were injured eye witnesses was acceptable to the Trial Court so far as their version about involvement of convicted accused Likhi and Chandgi is concerned. But the very same evidence of injured eye witness against the appellants was not relied upon by the Trial Court by adopting a view which was clearly against the weight of evidence and not a reasonablethe view of the Trial Court giving benefit of doubt to the accused was clearly against the weight of evidence and patently a perverse and unreasonable view. In this connection the High Court was justified in observing that witness. Badley, P.W. 12 was examined only for proving identification of dead bodies of Sohan Lal and Kanahiya while witness Ajit Ram P.W. 18 was examined for proving the recovery of ballam and lathis. But during their cross examination they tried to support the accused and had gone out of their way in deposing that the accused were not present on the scene of offence at the relevant time. The evidence of witness Badley in his cross examination was clearly unreliable and was right rejected by the Trial Court. Consequently the evidence of these two witnesses could not have been relied upon by the Trial Court for exonerating the accused and in holding that the accused would not be present on the scene of offence on the date of incident. We have already seen earlier how the defence had failed to establish the theory of alibi still the Trial Court has accepted the theory of alibi as put forward on behalf of the defence and that is how benefit of doubt was extended to the appellants. The said reasoning of the Trial Court was clearly perverse, unreasonable and against the weight of evidence. Under these circumstances the High Court was perfectly justified in interfering in appeal against acquittal and in coming to its own conclusion by appreciating the evidence led by the prosecution. The second point for determination also, therefore, has to be held against the appellants by answering it in the affirmative.

### 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: Kanahiya and in belabouring prosecution witnesses Attro and Ram Pal. Consequently their conviction and sentence as imposed by the High Court under S.302 read with S.34 I.P.C. for causing the death of Sohan and Kanahiya and their conviction and sentence under S.325 read with S.34 for causing grievous hurt to prosecution witness Ram Pal and their conviction and sentence under S.323 read with S.34 for causing simple injuries to Smt. Attro cannot be found fault with. Point No. 1 is, therefore, answered in the affirmative while point No. 3 is answered in the negative. 28. Point No. 2. It is now well stated that in appeal against acquittal the High Court is entitled to reappreciate the evidence if it is found that the view taken by acquitting court was not a possible view or that it has a perverse or infirm or palpably erroneous view. In the case of Uppari Venkataswamy v. Public Prosecutor. High Court of Andhra Pradesh, 1995 (7) SCALE 147 : (1996 AIR SCW 98) a Division Bench of this Court consisting of M. K. Mukherjee, J. and one of us, S. B. Majmudar, J., has made the following observations on this aspect in para 28 (of SCALE) (Para 27 of AIR) of the Report : "It is now well settled by a catena of decisions of this Court that in an appeal against acquittal the appellate court can interfere with the findings of fact recorded by the Trial Court and can upset the acquittal by reappreciating evidence if it is found that the view taken by the acquitting court was not a possible view on the evidence on record. In this connection, we may refer to the decision of this Court in the case of State of Punjab v. Ajaib Singh, (1995) 2 SCC 486 : (1995 AIR SCW 950 ) ; R. M. Sahai, J. speaking for this Court made the following pertinent observations in this connection in para 7 of the Report : ... We agree that this Court is not precluded or the court hearing the appeal against acquittal is not prevented from examining and reappreciating the evidence on record. But the duty of a court hearing the appeal against acquittal in the first instance is to satisfy itself if the view taken by acquitting court... .... .... ... was possible view or not. And if the court comes to conclusion that it was not, it can on reappreciation of evidence reverse the order..." It was also observed in the said decision that the appellate court would not be entitled to interfere unless the view of the acquitting court is found to be perverse or infirm or palpably erroneous. We have, therefore, to see whether on the facts of the present case the Trial Court was justified in acquitting the present accused of the offences with which they were charged by brushing aside the eye witness account of injured P. Ws. 1 and 4 to 7. ...." So far as the facts of the present case are concerned it emerges on record that the eye witness account of prosecution witnesses Smt. Attro and Ram Pal who were injured eye witnesses was acceptable to the Trial Court so far as their version about involvement of convicted accused Likhi and Chandgi is concerned. But the very same evidence of injured eye witness against the appellants was not relied upon by the Trial Court by adopting a view which was clearly against the weight of evidence and not a reasonable one. In paragraph 44 of the judgment of the Trial Court it has been observed that the involvement of these accused was not free from doubt. The learned Trial Judge observed that they were not armed with any weapon. The assertion of Ram Pal that they were armed with lathis and they had joined others in inflicting lathi blows on him and other victims is totally belied by Attros conspicuous silence about the fact. So far as this observation of the learned Trial Judge is concerned it was clearly against evidence for the simple reason that Attros statement recorded at the hospital clearly showed that these witnesses were armed with lathis. As seen earlier even before the Trial Court she deposed that all the eleven accused had come to their baithak to attack them. Consequently the view of the Trial Court giving benefit of doubt to the accused was clearly against the weight of evidence and patently a perverse and unreasonable view. In this connection the High Court was justified in observing that witness. Badley, P.W. 12 was examined only for proving identification of dead bodies of Sohan Lal and Kanahiya while witness Ajit Ram P.W. 18 was examined for proving the recovery of ballam and lathis. But during their cross examination they tried to support the accused and had gone out of their way in deposing that the accused were not present on the scene of offence at the relevant time. The evidence of witness Badley in his cross examination was clearly unreliable and was right rejected by the Trial Court. Consequently the evidence of these two witnesses could not have been relied upon by the Trial Court for exonerating the accused and in holding that the accused would not be present on the scene of offence on the date of incident. We have already seen earlier how the defence had failed to establish the theory of alibi still the Trial Court has accepted the theory of alibi as put forward on behalf of the defence and that is how benefit of doubt was extended to the appellants. The said reasoning of the Trial Court was clearly perverse, unreasonable and against the weight of evidence. Under these circumstances the High Court was perfectly justified in interfering in appeal against acquittal and in coming to its own conclusion by appreciating the evidence led by the prosecution. The second point for determination also, therefore, has to be held against the appellants by answering it in the affirmative. ### Response: 0

L. D. Jaisinghani Vs. Naraindas N. Punjabi

to disciplinary proceedings being finally dropped after the advocate or somebody else on his behalf has made payments to the complainant litigants, and the prevaricating replies of the advocate, attempting to conceal or deny these proceedings, may have been justified, yet, there very features of the case were also likely to create a prejudice against the accused advocate who may, in the particular instance now before us, not have been really so blameworthy as one may, with his background, be inclined to believe. After having been taken through the evidence, we are not convinced that the complainant was really so truthful and reliable as the members of the Disciplinary Committee considered him to be. There are several features in his evidence which makes his version difficult to rely upon implicitly. We mention these below.5. Firstly, the complainants evidence shows that he was not the kind of person who could swallow so easily detectable a fraud of which he claimed to be the victim for so long a period of time. He admits that the advocate had appeared in about six or seven suits on his behalf. There had been proceedings against him for malicious prosecution. He had denied that he wanted the appellant to give evidence, but, when confronted by documentary evidence, he was forced to admit that this was true.6. Secondly, although the complainant stated that Rs. 350 included the court fee in respect of the suit, yet, he stated, after that, the advocate had told him that the deficit court fee would be realised from him afterwards. If, as we find from evidence, the court fee alone came to about Rs. 400, it was difficult to believe that any suit could have been agreed to be filed without realising the deficit court fee. The statement of the complainant, that the appellant used to file suits for him and then realise the court fee, if true indicated that the appellant would be expected to make a demand for further payment after alleging that he had filed the suit. But, the complainant not merely does not speak of any such further demand but says that no charge was made even for taking out the notice of motion on the alleged copy of which the number of the suit given is 840, which does not tally with No. 1040 given by the complainant. Suit No. 840 had been withdrawn long before.7. Thirdly, the copy of the plaint which was sought to be used by the complainant as proof of what, according to him, the advocate alleged was the plaint of the suit already filed, had significant blanks in it. Even the number 1040 and the amount claimed had been admitted by the complainant to have been subsequently filled in, in his own hand. But, in his complaint, it was stated that No. 1040 was already on the plaint which had been filed. This shows that the complainant had not come with an entirely truthful version. He has made interpolations in the documents to fit in with his version.8. Fourthly, the complainant was, apparently, sufficiently acquainted with the requirements of litigation to know that no plaint could be filed on his behalf and on behalf of his co-owners without the signatures of his co-owners. When asked whether the co-owners had signed the plaint, he pretended to be ignorant. There are other defects also in his evidence which we need not deal with.9. It is true that the advocate had not fared well under cross-examination. He had tried to conceal similar complaints against him in the past. It is, however, equally true that the complainant was no greenhorn. At any rate, he was not so gullible as he tried to make himself out to be. After going through the relevant evidence, we doubt whether both sides have come out with full and true facts. It is more likely that there was some dispute over the payment of Rs. 350 which the advocate appellant claimed as his fee for work done, but, the complainant seems to have considered himself entitled to demand the payment back. It is possible that there may have been other reasons too for friction between the two so as to lead to a disruption between the complainant and the whom he had been frequently engaging in addition to others. In any case, we are left in doubt whether the complainants version, with which he had come forward with considerable delay, was really truthful. We think that, in a case of this nature, involving possible disbarring of the advocate concerned, the evidence should be of a character which should leave no reasonable doubt about guilt. The Disciplinary Committee had not only found the appellant guilty but had disbarred him permanently.10. The complainant has no doubt produced Tendolkar and D. D. Nalavade to show what enquiries were made relating to Suit No. 1040 of 1964 by the respondent complainant. It is, however, not disputed that the respondent did make those enquiries. The case of the appellant was that these enquiries were made in an attempt to bolster up a weak case. These enquiries merely prove a much too belated conduct of the complainant. They could be the result of an attempt to give a semblance of truth to coloured and exaggerated version. It is also true that the appellant had been most unwise in not sending a registered letter in reply to the registered notice received by him on January 8, 1971 by the complainant. His version that he spoke to the complainant on the telephone and sent a letter in reply on January 15, 1971, of which a copy was Ex. R1, had been rejected by the committee on the ground that the advocates conduct did not appear to be above board. We cannot help thinking that the committee had been unduly swayed by the unsavory background of the appellant so that it could not see its way to giving the appellant even the benefit of doubt in the instant case.

1[ds]9. It is true that the advocate had not fared well underHe had tried to conceal similar complaints against him in the past. It is, however, equally true that the complainant was no greenhorn. At any rate, he was not so gullible as he tried to make himself out to be. After going through the relevant evidence, we doubt whether both sides have come out with full and true facts. It is more likely that there was some dispute over the payment of Rs. 350 which the advocate appellant claimed as his fee for work done, but, the complainant seems to have considered himself entitled to demand the payment back. It is possible that there may have been other reasons too for friction between the two so as to lead to a disruption between the complainant and the whom he had been frequently engaging in addition to others. In any case, we are left in doubt whether the complainants version, with which he had come forward with considerable delay, was really truthful. We think that, in a case of this nature, involving possible disbarring of the advocate concerned, the evidence should be of a character which should leave no reasonable doubt about guilt. The Disciplinary Committee had not only found the appellant guilty but had disbarred him permanently.10. The complainant has no doubt produced Tendolkar and D. D. Nalavade to show what enquiries were made relating to Suit No. 1040 of 1964 by the respondent complainant. It is, however, not disputed that the respondent did make those enquiries. The case of the appellant was that these enquiries were made in an attempt to bolster up a weak case. These enquiries merely prove a much too belated conduct of the complainant. They could be the result of an attempt to give a semblance of truth to coloured and exaggerated version. It is also true that the appellant had been most unwise in not sending a registered letter in reply to the registered notice received by him on January 8, 1971 by the complainant. His version that he spoke to the complainant on the telephone and sent a letter in reply on January 15, 1971, of which a copy was Ex. R1, had been rejected by the committee on the ground that the advocates conduct did not appear to be above board. We cannot help thinking that the committee had been unduly swayed by the unsavory background of the appellant so that it could not see its way to giving the appellant even the benefit of doubt in the instant case.

### 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: to disciplinary proceedings being finally dropped after the advocate or somebody else on his behalf has made payments to the complainant litigants, and the prevaricating replies of the advocate, attempting to conceal or deny these proceedings, may have been justified, yet, there very features of the case were also likely to create a prejudice against the accused advocate who may, in the particular instance now before us, not have been really so blameworthy as one may, with his background, be inclined to believe. After having been taken through the evidence, we are not convinced that the complainant was really so truthful and reliable as the members of the Disciplinary Committee considered him to be. There are several features in his evidence which makes his version difficult to rely upon implicitly. We mention these below.5. Firstly, the complainants evidence shows that he was not the kind of person who could swallow so easily detectable a fraud of which he claimed to be the victim for so long a period of time. He admits that the advocate had appeared in about six or seven suits on his behalf. There had been proceedings against him for malicious prosecution. He had denied that he wanted the appellant to give evidence, but, when confronted by documentary evidence, he was forced to admit that this was true.6. Secondly, although the complainant stated that Rs. 350 included the court fee in respect of the suit, yet, he stated, after that, the advocate had told him that the deficit court fee would be realised from him afterwards. If, as we find from evidence, the court fee alone came to about Rs. 400, it was difficult to believe that any suit could have been agreed to be filed without realising the deficit court fee. The statement of the complainant, that the appellant used to file suits for him and then realise the court fee, if true indicated that the appellant would be expected to make a demand for further payment after alleging that he had filed the suit. But, the complainant not merely does not speak of any such further demand but says that no charge was made even for taking out the notice of motion on the alleged copy of which the number of the suit given is 840, which does not tally with No. 1040 given by the complainant. Suit No. 840 had been withdrawn long before.7. Thirdly, the copy of the plaint which was sought to be used by the complainant as proof of what, according to him, the advocate alleged was the plaint of the suit already filed, had significant blanks in it. Even the number 1040 and the amount claimed had been admitted by the complainant to have been subsequently filled in, in his own hand. But, in his complaint, it was stated that No. 1040 was already on the plaint which had been filed. This shows that the complainant had not come with an entirely truthful version. He has made interpolations in the documents to fit in with his version.8. Fourthly, the complainant was, apparently, sufficiently acquainted with the requirements of litigation to know that no plaint could be filed on his behalf and on behalf of his co-owners without the signatures of his co-owners. When asked whether the co-owners had signed the plaint, he pretended to be ignorant. There are other defects also in his evidence which we need not deal with.9. It is true that the advocate had not fared well under cross-examination. He had tried to conceal similar complaints against him in the past. It is, however, equally true that the complainant was no greenhorn. At any rate, he was not so gullible as he tried to make himself out to be. After going through the relevant evidence, we doubt whether both sides have come out with full and true facts. It is more likely that there was some dispute over the payment of Rs. 350 which the advocate appellant claimed as his fee for work done, but, the complainant seems to have considered himself entitled to demand the payment back. It is possible that there may have been other reasons too for friction between the two so as to lead to a disruption between the complainant and the whom he had been frequently engaging in addition to others. In any case, we are left in doubt whether the complainants version, with which he had come forward with considerable delay, was really truthful. We think that, in a case of this nature, involving possible disbarring of the advocate concerned, the evidence should be of a character which should leave no reasonable doubt about guilt. The Disciplinary Committee had not only found the appellant guilty but had disbarred him permanently.10. The complainant has no doubt produced Tendolkar and D. D. Nalavade to show what enquiries were made relating to Suit No. 1040 of 1964 by the respondent complainant. It is, however, not disputed that the respondent did make those enquiries. The case of the appellant was that these enquiries were made in an attempt to bolster up a weak case. These enquiries merely prove a much too belated conduct of the complainant. They could be the result of an attempt to give a semblance of truth to coloured and exaggerated version. It is also true that the appellant had been most unwise in not sending a registered letter in reply to the registered notice received by him on January 8, 1971 by the complainant. His version that he spoke to the complainant on the telephone and sent a letter in reply on January 15, 1971, of which a copy was Ex. R1, had been rejected by the committee on the ground that the advocates conduct did not appear to be above board. We cannot help thinking that the committee had been unduly swayed by the unsavory background of the appellant so that it could not see its way to giving the appellant even the benefit of doubt in the instant case. ### Response: 1

Transmission Corpn., A.P. Ltd. Vs. P. Ramachandra Rao

period that is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding friction and unhealthy litigation. This is the quintessence of settlement which courts and tribunals should endeavour to encourage. It is in that spirit the settlement has to be judged and not by the yardstick adopted in scrutinizing an award in adjudication". 13. The line of enquiry whether settlement was unfair and unjust in K.C.P. Ltd. vs. Presiding Officer (1996) 10 SCC 446 ) was adopted by a three-Judge Bench of this Court speaking through Majumdar, J. It was observed at SCC p. 451, paragraph 21 that: "Under these circumstances, Respondents 3 to 14 also would be ordinarily bound by this settlement entered into by their representative Union with the Company unless it is shown that the said settlement was ex facie, unfair, unjust or mala fide." 14. The Court came to the conclusion that the settlement cannot be characterised to be unfair or unjust. It was further observed that "once this conclusion is reached it is obvious that the entire industrial dispute should have been disposed of in the light of this settlement". It was reiterated in the case of Tata Engg. and Locomotive Co. Ltd. vs. Workmen (1981) 4 SCC 627 ) that: "A settlement cannot be weighed in any golden scales and the question whether it is just and fair has to be answered on the basis of principles different from those which come into play when an industrial dispute is under adjudication." 15. Earlier, it was observed: "If the settlement had been arrived at by a vast majority of the concerned workers with their eyes open and was also accepted by them in its totality, it must be presumed to be just and fair and not liable to be ignored while deciding the reference merely because a small number of workers (in this case 71 i.e. 11.18 per cent) were not parties to it or refused to accept it, or because the Tribunal was of the opinion that the workers deserved marginally higher emoluments than they themselves thought they did." 16. These aspects were highlighted in ITC Ltd. Workers Welfare Association and Anr. vs. Management of ITC Ltd. and Another (2002) (3) SCC 411 ). 17. Exclusion of workmen retiring before the date fixed is no good ground to characterize settlement as unjust or unfair. In fact in the instant case there is no challenge to the legality of the settlement. 18. As the settlement into in the course of conciliation proceedings assumes crucial importance in the present case, it is necessary for us to recapitulate the fairly well-settled legal position and principles concerning the binding effect of the settlement and the grounds on which the settlement is vulnerable to attack in an industrial adjudication. Analysing the relative scope of various clauses of Section 18, this Court in the case of Barauni Refinery Pragatisheel Shramik Parishad vs. Indian Oil Corpn. Ltd. (1991) 1 SCC 4 ) succinctly summarized the position thus: "Settlements are divided into two categories, namely, (i) those arrived at outside the conciliation proceedings (Section 18(i) and (ii) those arrived at in the course of conciliation proceedings (Section 18(3). A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement. But a settlement arrived at in the course of conciliation proceedings with a recognised majority union has extended application as it will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent it departs from the ordinary law of contract. The object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. There is an underlying assumption that a settlement reached with the help of the Conciliation Officer must be fair and reasonable and can, therefore, safely be made binding not only on the workmen belonging to the union signing the settlement but also on the others. That is, why a settlement arrived at in the course of conciliation proceedings is put on par with an award made by an adjudicatory authority." 19. As observed by this Court in Tata Engineerings case (supra) a settlement cannot weigh in any golden scales and the question whether it is just and fair has to be answered on the basis of principles different from those which comes into play when an industrial dispute is under adjudication. If the settlement had been arrived at by a vast majority of concerned workers with their eyes open and was also accepted by them in its totality, it must be presumed to be just and fair and not liable to be ignored while deciding the reference made under the Act merely because a small number of workers were not parties to it or refused to accept it or because the Tribunal was on the opinion that the workers deserved marginally higher emoluments than they themselves thought they did. The decision in Herbertsons Ltd.s case (supra) was followed. 20. As noted above there was no challenge to the settlement which was the foundation for the Boards decision. A copy of the Memorandum of the Settlement under Section 12(3) of the Act before the Joint Commissioner and Labour and State Conciliation Officer, Government of Andhra Pradesh, Hyderabad was placed on record. On the basis of the settlement, the Boards decision was taken. Paragraph 2 of the proceedings is very significance and read as follows: "A Wage Negotiation Committee was therefore constituted by the Board in the B.P. sixth read above. The committee held detailed discussions with the representatives of the unions and finally reached a negotiated settlement with the recognized union under the code of discipline on 29.1.1991 before the Joint Commissioner of Labour and State Conciliation Officer under Section 12(3) of I.D. Act." 21.

1[ds]17. Exclusion of workmen retiring before the date fixed is no good ground to characterize settlement as unjust or unfair. In fact in the instant case there is no challenge to the legality of the settlement18. As the settlement into in the course of conciliation proceedings assumes crucial importance in the present case, it is necessary for us to recapitulate the fairly well-settled legal position and principles concerning the binding effect of the settlement and the grounds on which the settlement is vulnerable to attack in an industrial adjudication. Analysing the relative scope of various clauses of Section 18, this Court in the case of Barauni Refinery Pragatisheel Shramik Parishad vs. Indian Oil Corpn. Ltd. (1991) 1 SCC 4 ) succinctly summarized the position thus:"Settlements are divided into two categories, namely, (i) those arrived at outside the conciliation proceedings (Section 18(i) and (ii) those arrived at in the course of conciliation proceedings (Section 18(3). A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement. But a settlement arrived at in the course of conciliation proceedings with a recognised majority union has extended application as it will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent it departs from the ordinary law of contract. The object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. There is an underlying assumption that a settlement reached with the help of the Conciliation Officer must be fair and reasonable and can, therefore, safely be made binding not only on the workmen belonging to the union signing the settlement but also on the others. That is, why a settlement arrived at in the course of conciliation proceedings is put on par with an award made by an adjudicatory authority."19. As observed by this Court in Tata Engineerings case (supra) a settlement cannot weigh in any golden scales and the question whether it is just and fair has to be answered on the basis of principles different from those which comes into play when an industrial dispute is under adjudication. If the settlement had been arrived at by a vast majority of concerned workers with their eyes open and was also accepted by them in its totality, it must be presumed to be just and fair and not liable to be ignored while deciding the reference made under the Act merely because a small number of workers were not parties to it or refused to accept it or because the Tribunal was on the opinion that the workers deserved marginally higher emoluments than they themselves thought they did. The decision in Herbertsons Ltd.s case (supra) was followed20. As noted above there was no challenge to the settlement which was the foundation for the Boards decision. A copy of the Memorandum of the Settlement under Section 12(3) of the Act before the Joint Commissioner and Labour and State Conciliation Officer, Government of Andhra Pradesh, Hyderabad was placed on record. On the basis of the settlement, the Boards decision was taken. Paragraph 2 of the proceedings is very significance and read as follows:"A Wage Negotiation Committee was therefore constituted by the Board in the B.P. sixth read above. The committee held detailed discussions with the representatives of the unions and finally reached a negotiated settlement with the recognized union under the code of discipline on 29.1.1991 before the Joint Commissioner of Labour and State Conciliation Officer under Section 12(3) of I.D. Act."

### Instruction: From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant. ### Input: period that is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding friction and unhealthy litigation. This is the quintessence of settlement which courts and tribunals should endeavour to encourage. It is in that spirit the settlement has to be judged and not by the yardstick adopted in scrutinizing an award in adjudication". 13. The line of enquiry whether settlement was unfair and unjust in K.C.P. Ltd. vs. Presiding Officer (1996) 10 SCC 446 ) was adopted by a three-Judge Bench of this Court speaking through Majumdar, J. It was observed at SCC p. 451, paragraph 21 that: "Under these circumstances, Respondents 3 to 14 also would be ordinarily bound by this settlement entered into by their representative Union with the Company unless it is shown that the said settlement was ex facie, unfair, unjust or mala fide." 14. The Court came to the conclusion that the settlement cannot be characterised to be unfair or unjust. It was further observed that "once this conclusion is reached it is obvious that the entire industrial dispute should have been disposed of in the light of this settlement". It was reiterated in the case of Tata Engg. and Locomotive Co. Ltd. vs. Workmen (1981) 4 SCC 627 ) that: "A settlement cannot be weighed in any golden scales and the question whether it is just and fair has to be answered on the basis of principles different from those which come into play when an industrial dispute is under adjudication." 15. Earlier, it was observed: "If the settlement had been arrived at by a vast majority of the concerned workers with their eyes open and was also accepted by them in its totality, it must be presumed to be just and fair and not liable to be ignored while deciding the reference merely because a small number of workers (in this case 71 i.e. 11.18 per cent) were not parties to it or refused to accept it, or because the Tribunal was of the opinion that the workers deserved marginally higher emoluments than they themselves thought they did." 16. These aspects were highlighted in ITC Ltd. Workers Welfare Association and Anr. vs. Management of ITC Ltd. and Another (2002) (3) SCC 411 ). 17. Exclusion of workmen retiring before the date fixed is no good ground to characterize settlement as unjust or unfair. In fact in the instant case there is no challenge to the legality of the settlement. 18. As the settlement into in the course of conciliation proceedings assumes crucial importance in the present case, it is necessary for us to recapitulate the fairly well-settled legal position and principles concerning the binding effect of the settlement and the grounds on which the settlement is vulnerable to attack in an industrial adjudication. Analysing the relative scope of various clauses of Section 18, this Court in the case of Barauni Refinery Pragatisheel Shramik Parishad vs. Indian Oil Corpn. Ltd. (1991) 1 SCC 4 ) succinctly summarized the position thus: "Settlements are divided into two categories, namely, (i) those arrived at outside the conciliation proceedings (Section 18(i) and (ii) those arrived at in the course of conciliation proceedings (Section 18(3). A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement. But a settlement arrived at in the course of conciliation proceedings with a recognised majority union has extended application as it will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent it departs from the ordinary law of contract. The object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. There is an underlying assumption that a settlement reached with the help of the Conciliation Officer must be fair and reasonable and can, therefore, safely be made binding not only on the workmen belonging to the union signing the settlement but also on the others. That is, why a settlement arrived at in the course of conciliation proceedings is put on par with an award made by an adjudicatory authority." 19. As observed by this Court in Tata Engineerings case (supra) a settlement cannot weigh in any golden scales and the question whether it is just and fair has to be answered on the basis of principles different from those which comes into play when an industrial dispute is under adjudication. If the settlement had been arrived at by a vast majority of concerned workers with their eyes open and was also accepted by them in its totality, it must be presumed to be just and fair and not liable to be ignored while deciding the reference made under the Act merely because a small number of workers were not parties to it or refused to accept it or because the Tribunal was on the opinion that the workers deserved marginally higher emoluments than they themselves thought they did. The decision in Herbertsons Ltd.s case (supra) was followed. 20. As noted above there was no challenge to the settlement which was the foundation for the Boards decision. A copy of the Memorandum of the Settlement under Section 12(3) of the Act before the Joint Commissioner and Labour and State Conciliation Officer, Government of Andhra Pradesh, Hyderabad was placed on record. On the basis of the settlement, the Boards decision was taken. Paragraph 2 of the proceedings is very significance and read as follows: "A Wage Negotiation Committee was therefore constituted by the Board in the B.P. sixth read above. The committee held detailed discussions with the representatives of the unions and finally reached a negotiated settlement with the recognized union under the code of discipline on 29.1.1991 before the Joint Commissioner of Labour and State Conciliation Officer under Section 12(3) of I.D. Act." 21. ### Response: 1

Nawab Usmanali Khan Vs. Sagar Mal

Ruler and his family including expenses of his residence, marriage and other ceremonies and neither be increased nor reduced for any reason whatsoever. Article XI (3) provided that the Rajpramukh would cause the amount to be paid to the Ruler in four equal instalments at the beginning of each quarter in advance. Article XI (4) provided that the amount would be free of all taxes whether imposed by the Government of the United States or by the Government of India. Article XIII of the Covenant secured to the Ruler of each Covenanting State all personal Privileges, dignities and titles then enjoyed by them. Article XIV guaranteed the succession, according to law and custom, to the gaddi of each Covenanting State and to the personal rights, privileges, dignities and titles of the Ruler. The Covenant was signed by all the Rulers of the Covenanting States. At the foot of the Covenant, it was Stated that "The Government of India hereby concur in the above Covenant and guarantee all its provisions." In confirmation of this consent and guarantee, the Covenant was signed by a Secretary to the Government of India. 10. On the coming into force of the Constitution of India the terrtories of Madhya Bharat became an integral part of India. Article 291 of the Constitution provide:"Where under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler of such State as privy purse. (a) such sums shall be charged on, and paid out of the Consolidated Fund of India; and (b) the sums so paid to any Ruler shall be exempt from all taxes on income." In view of the guarantee by the Government of the Dominion of India to the Ruler of Jaora State in the covenant for the formation of the United State of Madhya Bharat the payment of the sums specified in the covenant as privy purse to the Ruler because charged on the Consolidated Fund of India, and became payable to him free from all taxes no income. Article 362 Provided that in the exercise of the legislative and executive powers. due regard shall be had to the guarantee given in any such covenant as is referred to in Art. 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State. Article 363 (1) provides that notwithstanding anything contained in the Constitution, the Court would have no jurisdiction in any dispute arising out of any provision in any covenant entered into by any Ruler of an Indian State to which the Government of the Dominion of India was a party, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of the Constitution relating to any such covenant. Article 366 (22) provides that the expression "Ruler" in relation to an Indian State means a person by whom the covenant referred to in Art. 291(1) was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President "as the successor of such Ruler. 11. Now, the Covenant entered into by the Rulers of Madhya Bharat States was a treaty entered into by the Rulers of independent States by which they gave up their soveignty over their respective territories and vested it in the new United State of Madhya Bharat. The Covenant was an act of State, and any violation of its terms cannot form the subject of any action in any municipal courts. The Guarantee given by the Government of India was in the nature of a treaty obligation contracted with the sovereign Rulers of Indian States and cannot be enforced by action in municipal courts. Its sanction is political and not legal. On the coming into force of the Constitution of India, the guarantee for the payment of periodical sums as privy purse is continued by Act. 291 of the Constitution, but its essential periodical character is preserved by Art. 363 of the Constitution, and the obligation under this guarantee cannot be enforced in any municipal court. Moreover, if the President refuses to recognise the person by whom the Covenant was entered into as the Ruler of the State, he would not be entitled to the amount payable privy purse under Art. 291. Now, the periodical payment of money by the Government to a Ruler of a former Indian State as privy purse all political considerations and under political sanctions and not under a right legally enforceable in any municipal court is strictly a political pension within the meaning of S. 60 (1)(g) of the Code of Civil Procedure. The use of the expression "privy purse instead of the expression pension" is due to historical reasons. The privy purse satisfies all the essential characteristies of a political pension, and as such, is protected from execution under S. 60(1)(g), Code Civil Procedure. Moreover, an amount of the privy purse receivable from the Government cannot be said to be a debt or other property over which or the proceeds of which he has disposing power within the main part of S. 60 (1), Code of Civil Procedure. It follows that the third contention of Mr. Pathak must be accepted, and it must be held that the amounts of the privy purse are not liable to attachment or sale in execution of the respondents decree. The third contended is raised, in Civil Appeal No. 568 of 1963 arising out of Appeal No. 33 of 1953. It follows that Civil Appeal No. 568 of 1963 must be allowed. All the contentions raised in Civil Appeal No. 767 of 1963 arising from Appeal Nos. 81 and 82 of 1957 fail, and according this appeal must be dismissed.

1[ds]5a. The first contention raised by Mr. Pathank must be rejected. The award stated that the existing documents relating to debts obtained on lands would remain as before, and they would remain as securities till payment of the debts and the appellants would have no right to transfer the land. This portion of the award stated an existing fact. It did not create, or of its own force declare any interest in any immoveable property. Consequently, the document did not come within the purview of Section 17 ofthe Indian Registration Act, 1908, and was not required to be registered6. The second contention of Mr. Pathak raises question of construction of Ss. 86 and 87 B of theCode of CivilProcedure.By reason of S. 86 (1) read with S. 87B, no Ruler of any former Indian State "may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government."Section 86 (2) provides that the requisite consent may be given with respect to a specified suit or with respect to several specified suits or with respect to all suits of any specified class or classes. Section 86 plainly deals with a special class of suits, and this conclusion is reinforced by the heading of Part IV, Suits in Particular Cases, in which Ss. 86 and 87B appear. Order 4, R. 1,Code of CivilProcedureprovides that every suit shall be instituted by presenting a plaint to the Court or such other officer as it appoints in this behalf. In the context of S. 176 ofthe Government of India Act, 1935, Mahajan and Mukherjea, JJ. observed that the expression "sue" means the "enforcement of a claim or civil right by means of legal proceedings, see Province of Bombay v. Khushaldas S. Advani, 1950 SCR 621 at pp. 661, 697, : (AIR 1950 SC 222 at pp. 236, 249). But in the context of the Indian Limitation Act, 1908, Lord Russell of Killowen observed in Hansraj Gupta v. Officcial Liquidator, Dehra Dun Mussoorie Electric Tramway Co., 60 Ind App 13 at p. 19: (AIR 1933 PC 63 at P. 64):"The word suit ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint."And construing S. 86 of theCode of Civil, Shah, J. speaking on behalf of this Court observed in Bhagwat Singh v. State of Rajasthan, AIR 1964 SC 444 at pp. 445, 446;The appellant is recognised under Article 866(22) of the Constitution as a Ruler of an Indian State, but S. 86 in terms protects a Ruler from being sued and not against the institution of any other proceeding which is not in the nature of a suit. A proceeding which does not commence with a plaint or petition in the nature of plaint, or where the claim is not in respect of dispute ordinarily triable in a Civil Court, would prima facie not be regarded as falling within S. 86,7. Now, a proceeding under S. 14 read with S. 17 of the Indian Arbitration. Act, 1940 for the passing of a judgment and decree on an award does not commence with a plaint or a petition in the nature of a plaint, and cannot be regarded as a suit and the parties to whom the notice of the filing of the award is given under S. 14(2) cannot be regarded as "sued in any Court otherwise competent to try the suit, within the meaning of S. 86 (1) read with S. 87B,Code of Civil. Accordingly, the institution of this proceeding against the Ruler of a former Indian State is not barred by S. 86(1) read with S. 87B. Section 141,Code of CivilProceduredoes not attract the provisions of Section 86(1) read with S. 87B to the proceedings under S. 14 of the Indian Arbitration Act, Section 86(1) read with S. 87B confers upon the Ruler of former Indian States substantive rights of immunity from suits. Section 141 makes upplicable to other proceedings only those provisions of the Code which deal with procedure and not those which deal with substantive rights. Nor does S. 41(a) of the Indian Arbitration Act 1940 carry the matter any further. By that section, the provisions of theCode of Civil, 1908 are made applicable to all proceeding before the Court under the Act. Now, by its own language S. 86(1) applies to, and S. 141,Code of CivilProceduredoes not attract the provisions of S. 86(1) to proceedings other than suits. Accordingly, by the conjoint application of S. 41(a) of the Indian Arbitration Act and Ss. 86(1) and 141 of theCode of Civil, the provisions of S.86 (1) are not attracted to a proceeding under S. 14 of the Indian Arbitration Act, 1940. It follows that the Court was competent to entertain the proceedings under S. 14 of the Indian Arbitration Act, 1940 and to pass a decree against the appellant in those proceedings, though no consent to the institution of those proceedings had been given by the Central Government. A sovereign foreign State and a Ruler of such State may enjoy a winder immunity from legal proceedings other than suits under the rules of International Law recognised by our Courts. but the appellant is not now a Ruler of a sovereign State, and cannot claim immunity from proceedings other than suits.The second contention of Mr. Pathak must, therefore, be rejected11. Now, the Covenant entered into by the Rulers of Madhya Bharat States was a treaty entered into by the Rulers of independent States by which they gave up their soveignty over their respective territories and vested it in the new United State of Madhya Bharat. The Covenant was an act of State, and any violation of its terms cannot form the subject of any action in any municipal courts. The Guarantee given by the Government of India was in the nature of a treaty obligation contracted with the sovereign Rulers of Indian States and cannot be enforced by action in municipal courts. Its sanction is political and not legal. On the coming into force of the Constitution of India, the guarantee for the payment of periodical sums as privy purse is continued by Act. 291 of the Constitution, but its essential periodical character is preserved by Art. 363 of the Constitution, and the obligation under this guarantee cannot be enforced in any municipal court. Moreover, if the President refuses to recognise the person by whom the Covenant was entered into as the Ruler of the State, he would not be entitled to the amount payable privy purse under Art. 291. Now, the periodical payment of money by the Government to a Ruler of a former Indian State as privy purse all political considerations and under political sanctions and not under a right legally enforceable in any municipal court is strictly a political pension within the meaning of S. 60 (1)(g) of theCode of Civil. The use of the expression "privy purse instead of the expression pension" is due to historical reasons. The privy purse satisfies all the essential characteristies of a political pension, and as such, is protected from execution under S. 60(1)(g), Code Civil. Moreover,an amount of the privy purse receivable from the Government cannot be said to be a debt or other property over which or the proceeds of which he has disposing power within the main part of S. 60 (1),Code of Civil. It follows that the third contention of Mr. Pathak must be accepted, and it must be held that the amounts of the privy purse are not liable to attachment or sale in execution of the respondents decree. The third contended is raised, in Civil Appeal No. 568 of 1963 arising out of Appeal No. 33 of 1953. It follows that Civil Appeal No. 568 of 1963 must be allowed. All the contentions raised in Civil Appeal No. 767 of 1963 arising from Appeal Nos. 81 and 82 of 1957 fail, and according this appeal must be dismissed.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: Ruler and his family including expenses of his residence, marriage and other ceremonies and neither be increased nor reduced for any reason whatsoever. Article XI (3) provided that the Rajpramukh would cause the amount to be paid to the Ruler in four equal instalments at the beginning of each quarter in advance. Article XI (4) provided that the amount would be free of all taxes whether imposed by the Government of the United States or by the Government of India. Article XIII of the Covenant secured to the Ruler of each Covenanting State all personal Privileges, dignities and titles then enjoyed by them. Article XIV guaranteed the succession, according to law and custom, to the gaddi of each Covenanting State and to the personal rights, privileges, dignities and titles of the Ruler. The Covenant was signed by all the Rulers of the Covenanting States. At the foot of the Covenant, it was Stated that "The Government of India hereby concur in the above Covenant and guarantee all its provisions." In confirmation of this consent and guarantee, the Covenant was signed by a Secretary to the Government of India. 10. On the coming into force of the Constitution of India the terrtories of Madhya Bharat became an integral part of India. Article 291 of the Constitution provide:"Where under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler of such State as privy purse. (a) such sums shall be charged on, and paid out of the Consolidated Fund of India; and (b) the sums so paid to any Ruler shall be exempt from all taxes on income." In view of the guarantee by the Government of the Dominion of India to the Ruler of Jaora State in the covenant for the formation of the United State of Madhya Bharat the payment of the sums specified in the covenant as privy purse to the Ruler because charged on the Consolidated Fund of India, and became payable to him free from all taxes no income. Article 362 Provided that in the exercise of the legislative and executive powers. due regard shall be had to the guarantee given in any such covenant as is referred to in Art. 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State. Article 363 (1) provides that notwithstanding anything contained in the Constitution, the Court would have no jurisdiction in any dispute arising out of any provision in any covenant entered into by any Ruler of an Indian State to which the Government of the Dominion of India was a party, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of the Constitution relating to any such covenant. Article 366 (22) provides that the expression "Ruler" in relation to an Indian State means a person by whom the covenant referred to in Art. 291(1) was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President "as the successor of such Ruler. 11. Now, the Covenant entered into by the Rulers of Madhya Bharat States was a treaty entered into by the Rulers of independent States by which they gave up their soveignty over their respective territories and vested it in the new United State of Madhya Bharat. The Covenant was an act of State, and any violation of its terms cannot form the subject of any action in any municipal courts. The Guarantee given by the Government of India was in the nature of a treaty obligation contracted with the sovereign Rulers of Indian States and cannot be enforced by action in municipal courts. Its sanction is political and not legal. On the coming into force of the Constitution of India, the guarantee for the payment of periodical sums as privy purse is continued by Act. 291 of the Constitution, but its essential periodical character is preserved by Art. 363 of the Constitution, and the obligation under this guarantee cannot be enforced in any municipal court. Moreover, if the President refuses to recognise the person by whom the Covenant was entered into as the Ruler of the State, he would not be entitled to the amount payable privy purse under Art. 291. Now, the periodical payment of money by the Government to a Ruler of a former Indian State as privy purse all political considerations and under political sanctions and not under a right legally enforceable in any municipal court is strictly a political pension within the meaning of S. 60 (1)(g) of the Code of Civil Procedure. The use of the expression "privy purse instead of the expression pension" is due to historical reasons. The privy purse satisfies all the essential characteristies of a political pension, and as such, is protected from execution under S. 60(1)(g), Code Civil Procedure. Moreover, an amount of the privy purse receivable from the Government cannot be said to be a debt or other property over which or the proceeds of which he has disposing power within the main part of S. 60 (1), Code of Civil Procedure. It follows that the third contention of Mr. Pathak must be accepted, and it must be held that the amounts of the privy purse are not liable to attachment or sale in execution of the respondents decree. The third contended is raised, in Civil Appeal No. 568 of 1963 arising out of Appeal No. 33 of 1953. It follows that Civil Appeal No. 568 of 1963 must be allowed. All the contentions raised in Civil Appeal No. 767 of 1963 arising from Appeal Nos. 81 and 82 of 1957 fail, and according this appeal must be dismissed. ### Response: 1

O.P. Bhandari Vs. Indian Tourism Development Corporation Limited & Others

S. K. Gambhir, an advocate of this Court to give a report on the amount which would be payable by the ITDC to Bhandari under the decretal order made in Civil Appeal No. 1969 of 1986 by taking the assistance of a chartered accountant in the matter of computation of compensation to be paid to Bhandari under that decretal order. Shri S. K. Gambhir, having given his report along with calculation sheets which reflect the amount payable to Bhandari under the said decretal order, the C.M.P.s were listed for orders before us 4. On behalf of Bhandari it was submitted by his learned counsel that 3.33 years salary including admissible allowances awardable to Bhandari under the decretal order made by this Court in Civil Appeal No. 1969 of 1986 did represent merely the salary payable to him in lieu of reinstatement but not the arrears of salary payable to him between the date of termination of his service and the date of the order of this Court made in the civil appeal. Therefore, according to him, non-inclusion of such arrears of salary by Shri S. K. Gambhir in his report as the amount of compensation payable to Bhandari under the decretal order, was an obvious error. It was also submitted that Shri S. K. Gambhir should have included the amount of interest payable to Bhandari on the amount of compensation in lieu of reinstatement which was undisputedly not paid by the ITDC5. On the other hand, the learned counsel for the ITDC though did not dispute the amount of compensation calculated by Shri S. K. Gambhir as payable to Bhandari on the basis of 3.33 years salary including admissible allowances he pointed out an arithmetical error which had occurred in arriving at the figure of Rs. 1, 41, 980 in adding the amounts payable to Bhandari on account of Basic Pay, Dearness Allowance, C.C.A and H.R.A. According to him, the total of the said four items should have been only Rs. 1, 28, 800 and not Rs. 1, 41, 980 and, consequently, the amount payable to Bhandari towards compensation calculated on the basis of 3.33 years salary would be Rs. 1, 28, 800. He, therefore, requested us to effect the necessary correction in the amount payable to Bhandari in that regard. He, however, wanted us to deduct out of the total amount of compensation payable to Bhandari a reasonable amount of rent which would become payable by Bhandari three months after the judgment of this Court made in the civil appeal, within which time Bhandari had to vacate the hotel room belonging to the ITDC in his occupation 6. Having perused the report of Shri S. K. Gambhir and the calculation sheets produced along with the report and considering the submissions made by both learned counsel of Bhandari and the ITDC, we accept the amount quantified by Shri S. K. Gambhir as payable by the ITDC to Bhandari under the decretal order made in Civil Appeal No. 1969 of 1986, subject to the arithmetical error to be corrected in addition, as pointed out on behalf of the ITDC. On the other hand, we are of the view that the claim made on behalf of Bhandari for arrears of his salary in addition to the compensation in lieu of reinstatement is untenable. So also, the claim for interest is untenable. But, we are not able to accede to the request made on behalf of the ITDC as regards the compensation claimed for hotel room in occupation of Bhandari. The reasons for our views are these7. The decretal order to which we have adverted to, is in the nature of a decree made in the appeal. The decretal order does not say that if Bhandari is paid 3.33 years salary in lieu of his reinstatement he should, along with that salary, be paid salary which would have become payable to him from the date of his termination order till the date of the order of this Court. Indeed, the decretal order does not envisage the payment of arrears of salary from the date of termination of service of Bhandari till the date of the order of this Court independently of the amount of compensation to be paid in lieu of his reinstatement becomes clear, from the fact that clause II of the decretal order specifically states that the amount of compensation equal to 3.33 years salary including allowances made payable thereunder covers the full period commencing from the date of termination of his service till the date of payment. Thus the first submission made on behalf of Bhandari as to the separate claim for his arrears of salary from the date of termination of his service to the date of the order of this Court, is devoid of merit8. As regards the interest claimed from the ITDC for non-payment of the amount of compensation payable by the ITDC in lieu of reinstatement, we feel such interest which might have been ordinarily payable cannot be ordered to be paid, for Bhandari is in occupation of a room in the hotel of ITDC without payment of rent, even though he was not entitled to continue to occupy after he ceased to be in their service9. The submission made on behalf of the ITDC that a correction is required to be made in the amount of compensation because of the arithmetical error which has occurred in adding certain figures, has to be accepted as such error is apparent. Hence the total amount payable as per calculations of 3.33 years salary including the allowances under clause II, ought to be Rs. 1, 28, 800 instead of Rs. 1, 41, 98010. Insofar as the compensation claimed on behalf of the ITDC for the hotel room in the occupation of Bhandari is concerned, the same cannot be granted since in our view, this amount could be regarded as that set off against the amount of interest on the unpaid amount of compensation which would have otherwise become payable

1[ds]6. Having perused the report of Shri S. K. Gambhir and the calculation sheets produced along with the report and considering the submissions made by both learned counsel of Bhandari and the ITDC, we accept the amount quantified by Shri S. K. Gambhir as payable by the ITDC to Bhandari under the decretal order made in Civil Appeal No. 1969 of 1986, subject to the arithmetical error to be corrected in addition, as pointed out on behalf of the ITDC. On the other hand, we are of the view that the claim made on behalf of Bhandari for arrears of his salary in addition to the compensation in lieu of reinstatement is untenable. So also, the claim for interest is untenable. But, we are not able to accede to the request made on behalf of the ITDC as regards the compensation claimed for hotel room in occupation of Bhandari. The reasons for our views are these7. The decretal order to which we have adverted to, is in the nature of a decree made in the appeal. The decretal order does not say that if Bhandari is paid 3.33 years salary in lieu of his reinstatement he should, along with that salary, be paid salary which would have become payable to him from the date of his termination order till the date of the order of this Court. Indeed, the decretal order does not envisage the payment of arrears of salary from the date of termination of service of Bhandari till the date of the order of this Court independently of the amount of compensation to be paid in lieu of his reinstatement becomes clear, from the fact that clause II of the decretal order specifically states that the amount of compensation equal to 3.33 years salary including allowances made payable thereunder covers the full period commencing from the date of termination of his service till the date of payment. Thus the first submission made on behalf of Bhandari as to the separate claim for his arrears of salary from the date of termination of his service to the date of the order of this Court, is devoid of merit8. As regards the interest claimed from the ITDC forof the amount of compensation payable by the ITDC in lieu of reinstatement, we feel such interest which might have been ordinarily payable cannot be ordered to be paid, for Bhandari is in occupation of a room in the hotel of ITDC without payment of rent, even though he was not entitled to continue to occupy after he ceased to be in their service9. The submission made on behalf of the ITDC that a correction is required to be made in the amount of compensation because of the arithmetical error which has occurred in adding certain figures, has to be accepted as such error is apparent. Hence the total amount payable as per calculations of 3.33 years salary including the allowances under clause II, ought to be Rs. 1, 28, 800 instead of Rs. 1, 41, 98010. Insofar as the compensation claimed on behalf of the ITDC for the hotel room in the occupation of Bhandari is concerned, the same cannot be granted since in our view, this amount could be regarded as that set off against the amount of interest on the unpaid amount of compensation which would have otherwise become payable

### 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: S. K. Gambhir, an advocate of this Court to give a report on the amount which would be payable by the ITDC to Bhandari under the decretal order made in Civil Appeal No. 1969 of 1986 by taking the assistance of a chartered accountant in the matter of computation of compensation to be paid to Bhandari under that decretal order. Shri S. K. Gambhir, having given his report along with calculation sheets which reflect the amount payable to Bhandari under the said decretal order, the C.M.P.s were listed for orders before us 4. On behalf of Bhandari it was submitted by his learned counsel that 3.33 years salary including admissible allowances awardable to Bhandari under the decretal order made by this Court in Civil Appeal No. 1969 of 1986 did represent merely the salary payable to him in lieu of reinstatement but not the arrears of salary payable to him between the date of termination of his service and the date of the order of this Court made in the civil appeal. Therefore, according to him, non-inclusion of such arrears of salary by Shri S. K. Gambhir in his report as the amount of compensation payable to Bhandari under the decretal order, was an obvious error. It was also submitted that Shri S. K. Gambhir should have included the amount of interest payable to Bhandari on the amount of compensation in lieu of reinstatement which was undisputedly not paid by the ITDC5. On the other hand, the learned counsel for the ITDC though did not dispute the amount of compensation calculated by Shri S. K. Gambhir as payable to Bhandari on the basis of 3.33 years salary including admissible allowances he pointed out an arithmetical error which had occurred in arriving at the figure of Rs. 1, 41, 980 in adding the amounts payable to Bhandari on account of Basic Pay, Dearness Allowance, C.C.A and H.R.A. According to him, the total of the said four items should have been only Rs. 1, 28, 800 and not Rs. 1, 41, 980 and, consequently, the amount payable to Bhandari towards compensation calculated on the basis of 3.33 years salary would be Rs. 1, 28, 800. He, therefore, requested us to effect the necessary correction in the amount payable to Bhandari in that regard. He, however, wanted us to deduct out of the total amount of compensation payable to Bhandari a reasonable amount of rent which would become payable by Bhandari three months after the judgment of this Court made in the civil appeal, within which time Bhandari had to vacate the hotel room belonging to the ITDC in his occupation 6. Having perused the report of Shri S. K. Gambhir and the calculation sheets produced along with the report and considering the submissions made by both learned counsel of Bhandari and the ITDC, we accept the amount quantified by Shri S. K. Gambhir as payable by the ITDC to Bhandari under the decretal order made in Civil Appeal No. 1969 of 1986, subject to the arithmetical error to be corrected in addition, as pointed out on behalf of the ITDC. On the other hand, we are of the view that the claim made on behalf of Bhandari for arrears of his salary in addition to the compensation in lieu of reinstatement is untenable. So also, the claim for interest is untenable. But, we are not able to accede to the request made on behalf of the ITDC as regards the compensation claimed for hotel room in occupation of Bhandari. The reasons for our views are these7. The decretal order to which we have adverted to, is in the nature of a decree made in the appeal. The decretal order does not say that if Bhandari is paid 3.33 years salary in lieu of his reinstatement he should, along with that salary, be paid salary which would have become payable to him from the date of his termination order till the date of the order of this Court. Indeed, the decretal order does not envisage the payment of arrears of salary from the date of termination of service of Bhandari till the date of the order of this Court independently of the amount of compensation to be paid in lieu of his reinstatement becomes clear, from the fact that clause II of the decretal order specifically states that the amount of compensation equal to 3.33 years salary including allowances made payable thereunder covers the full period commencing from the date of termination of his service till the date of payment. Thus the first submission made on behalf of Bhandari as to the separate claim for his arrears of salary from the date of termination of his service to the date of the order of this Court, is devoid of merit8. As regards the interest claimed from the ITDC for non-payment of the amount of compensation payable by the ITDC in lieu of reinstatement, we feel such interest which might have been ordinarily payable cannot be ordered to be paid, for Bhandari is in occupation of a room in the hotel of ITDC without payment of rent, even though he was not entitled to continue to occupy after he ceased to be in their service9. The submission made on behalf of the ITDC that a correction is required to be made in the amount of compensation because of the arithmetical error which has occurred in adding certain figures, has to be accepted as such error is apparent. Hence the total amount payable as per calculations of 3.33 years salary including the allowances under clause II, ought to be Rs. 1, 28, 800 instead of Rs. 1, 41, 98010. Insofar as the compensation claimed on behalf of the ITDC for the hotel room in the occupation of Bhandari is concerned, the same cannot be granted since in our view, this amount could be regarded as that set off against the amount of interest on the unpaid amount of compensation which would have otherwise become payable ### Response: 1

S. S. Rajalinga Raja Vs. State Of Madras

* * * *" Prima facie, S. 3 of the Act read with the definition of agricultural income charges to tax the monetary return either as rent or revenue or agricultural produce from the plantation. The expression "income" in its normal connotation does not mean mere production or receipt of a commodity which may be converted into money. Income arises when the commodity is disposed of by sale, consumption or use in the manufacture or other processes carried on by the assessee qua that commodity. There is no reason to think that the expression "income" in the Act has any other connotation. A tax on income whether agricultural or non-agricultural is unless the Act provides otherwise, a tax on monetary return-actual or notional. Section 4 of the Act supports that view, for in the total agricultural income is comprised all agricultural income derived from a plantation in the State. It is not necessary, however for income to accrue that there must be a sale of a commodity; consumption or use of a commodity in the business of the assessee from which the assessee obtains benefit of the commodity may be deemed to give rise to income. Therefore, merely because the produce of his plantation was received in the earlier years. assuming that the appellants case is true, income derived from sale of that produce in the year of account is not exempt from tax under the Act, in that year. 4. Counsel for the appellant strongly relied upon a judgment of this Court in Dooars Tea Co. Ltd. v. Commr. of Agricultural Income-tax West Bengal, 44 ITR 6 : (AIR 1962 SC 186 ) a case decided under the Bengal Agricultural Income-tax Act 4 of 1944. It was held in interpreting the definition of S. 2(1)(b) of the Bengal Agricultural Income-tax Act, 1944, which is in substantially the same language as the definition under the Act-that it was not predicated of the agricultural income that it must be sold and profit or gain received from such sale before it can be included in the definition of agricultural income. In Dooars Tea Co. Ltd.s case, 44 ITR 6 : (AIR 1962 SC 186 ) the appellant grew bamboos thatching; grass and fuel by agricultural operations and utilized the products for the purpose of its tea business. The claim of the Income-tax authorities to tax the value of the produce was resisted on the plea that the produce was not sold. In rejecting that plea, the Court observed at p. 13 (of ITR): (at pp. 189-190 of AIR):"In terms the clause [S. 2(1)(b)] takes in income derived from agricultural land by agriculture, and as we have already pointed out giving the material words their plain grammatical meaning there is no doubt that agricultural produce constitutes income under this clause. Is there anything in the context which requires the introduction of the concept of sale in interpreting this clause as suggested by the appellant? In our opinion this question must be answered in the negative. Not only is there no indication in the context which would justify the importing of the concept of sale in the relevant clause, but as we have just indicated the indication provided by clauses (ii) and (iii) is all to the contrary. What this clause seems clearly to have in view is agricultural produce itself which lies been used by the assessee." But these observations do not in our judgment, imply that agricultural produce when received by a person carrying on agricultural operations becomes income in his hands. The Court in that case was concerned to deal with a limited question whether a person who has raised agricultural produce instead of selling it uses that produce for his own business, can be said to have earned agricultural income? The Court in that case held that he would be deemed to be earning income. The decision is authority for the proposition that for agricultural income to arise, it is not predicated that the agricultural produce must be sold : user of agricultural produce for the purpose of the business of the assesses may give rise to agricultural income. 5. The decision in State of Kerala v. Bhavani Tea Produce Co. Ltd., 59 ITR 254 : (AIR 1966 SC 677 ) on which reliance was placed by counsel for the appellant has, in our Judgment, no relevance whatever in this case. In Bhavani Tea Produce Cos. case, 59 ITR 254 : (ATR 1966 SC 677) the assessee was required under S. 25 of the Coffee Act 1942, to deliver the coffee produced by it to the Coffee Board and the question which fell to be determined was whether such delivery constituted sale by operation of law as a result of which the assessee ceased to be the owner of the coffee, the moment it handed over the produce to the Coffee Board. This Court held that under the relevant provisions of the Act as soon as the producer of coffee handed over the produce to the Coffee Board, it ceased to be the owner and income accrued to him at that point of time. That case does not lay down the proposition that income accrues to a producer of agricultural produce before the date of disposal, use or sale. 6. The second argument raised by the appellant has also no substance. For the years 1955-56 and 1956-57 the appellant did not submit returns of income but applied to compound the tax under S. 65 of the Act, and paid the tax determined at the rates specified in Part 11 of the Act. Therefrom it cannot be inferred that the produce which was sold by him in the year of account to which these appeals relate had suffered tax in the earlier years. It has to be proved that the crop sold by the appellant related to the years in respect of which he had applied to compound the tax and on that part of the case there is no evidence.

0[ds]Prima facie, S. 3 of the Act read with the definition of agricultural income charges to tax the monetary return either as rent or revenue or agricultural produce from the plantation. The expression "income" in its normal connotation does not mean mere production or receipt of a commodity which may be converted into money. Income arises when the commodity is disposed of by sale, consumption or use in the manufacture or other processes carried on by the assessee qua that commodity. There is no reason to think that the expression "income" in the Act has any other connotation. A tax on income whether agricultural or non-agricultural is unless the Act provides otherwise, a tax on monetary return-actual or notional. Section 4 of the Act supports that view, for in the total agricultural income is comprised all agricultural income derived from a plantation in the State. It is not necessary, however for income to accrue that there must be a sale of a commodity; consumption or use of a commodity in the business of the assessee from which the assessee obtains benefit of the commodity may be deemed to give rise to income. Therefore, merely because the produce of his plantation was received in the earlier years. assuming that the appellants case is true, income derived from sale of that produce in the year of account is not exempt from tax under the Act, in that yearBut these observations do not in our judgment, imply that agricultural produce when received by a person carrying on agricultural operations becomes income in his hands. The Court in that case was concerned to deal with a limited question whether a person who has raised agricultural produce instead of selling it uses that produce for his own business, can be said to have earned agricultural income? The Court in that case held that he would be deemed to be earning income. The decision is authority for the proposition that for agricultural income to arise, it is not predicated that the agricultural produce must be sold : user of agricultural produce for the purpose of the business of the assesses may give rise to agricultural income6. The second argument raised by the appellant has also no substance. For the years 1955-56 and 1956-57 the appellant did not submit returns of income but applied to compound the tax under S. 65 of the Act, and paid the tax determined at the rates specified in Part 11 of the Act. Therefrom it cannot be inferred that the produce which was sold by him in the year of account to which these appeals relate had suffered tax in the earlier years. It has to be proved that the crop sold by the appellant related to the years in respect of which he had applied to compound the tax and on that part of the case there is no evidence6. The second argument raised by the appellant has also no substance. For the years6 and7 the appellant did not submit returns of income but applied to compound the tax under S. 65 of the Act, and paid the tax determined at the rates specified in Part 11 of the Act. Therefrom it cannot be inferred that the produce which was sold by him in the year of account to which these appeals relate had suffered tax in the earlier years. It has to be proved that the crop sold by the appellant related to the years in respect of which he had applied to compound the tax and on that part of the case there is no

### 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: * * * *" Prima facie, S. 3 of the Act read with the definition of agricultural income charges to tax the monetary return either as rent or revenue or agricultural produce from the plantation. The expression "income" in its normal connotation does not mean mere production or receipt of a commodity which may be converted into money. Income arises when the commodity is disposed of by sale, consumption or use in the manufacture or other processes carried on by the assessee qua that commodity. There is no reason to think that the expression "income" in the Act has any other connotation. A tax on income whether agricultural or non-agricultural is unless the Act provides otherwise, a tax on monetary return-actual or notional. Section 4 of the Act supports that view, for in the total agricultural income is comprised all agricultural income derived from a plantation in the State. It is not necessary, however for income to accrue that there must be a sale of a commodity; consumption or use of a commodity in the business of the assessee from which the assessee obtains benefit of the commodity may be deemed to give rise to income. Therefore, merely because the produce of his plantation was received in the earlier years. assuming that the appellants case is true, income derived from sale of that produce in the year of account is not exempt from tax under the Act, in that year. 4. Counsel for the appellant strongly relied upon a judgment of this Court in Dooars Tea Co. Ltd. v. Commr. of Agricultural Income-tax West Bengal, 44 ITR 6 : (AIR 1962 SC 186 ) a case decided under the Bengal Agricultural Income-tax Act 4 of 1944. It was held in interpreting the definition of S. 2(1)(b) of the Bengal Agricultural Income-tax Act, 1944, which is in substantially the same language as the definition under the Act-that it was not predicated of the agricultural income that it must be sold and profit or gain received from such sale before it can be included in the definition of agricultural income. In Dooars Tea Co. Ltd.s case, 44 ITR 6 : (AIR 1962 SC 186 ) the appellant grew bamboos thatching; grass and fuel by agricultural operations and utilized the products for the purpose of its tea business. The claim of the Income-tax authorities to tax the value of the produce was resisted on the plea that the produce was not sold. In rejecting that plea, the Court observed at p. 13 (of ITR): (at pp. 189-190 of AIR):"In terms the clause [S. 2(1)(b)] takes in income derived from agricultural land by agriculture, and as we have already pointed out giving the material words their plain grammatical meaning there is no doubt that agricultural produce constitutes income under this clause. Is there anything in the context which requires the introduction of the concept of sale in interpreting this clause as suggested by the appellant? In our opinion this question must be answered in the negative. Not only is there no indication in the context which would justify the importing of the concept of sale in the relevant clause, but as we have just indicated the indication provided by clauses (ii) and (iii) is all to the contrary. What this clause seems clearly to have in view is agricultural produce itself which lies been used by the assessee." But these observations do not in our judgment, imply that agricultural produce when received by a person carrying on agricultural operations becomes income in his hands. The Court in that case was concerned to deal with a limited question whether a person who has raised agricultural produce instead of selling it uses that produce for his own business, can be said to have earned agricultural income? The Court in that case held that he would be deemed to be earning income. The decision is authority for the proposition that for agricultural income to arise, it is not predicated that the agricultural produce must be sold : user of agricultural produce for the purpose of the business of the assesses may give rise to agricultural income. 5. The decision in State of Kerala v. Bhavani Tea Produce Co. Ltd., 59 ITR 254 : (AIR 1966 SC 677 ) on which reliance was placed by counsel for the appellant has, in our Judgment, no relevance whatever in this case. In Bhavani Tea Produce Cos. case, 59 ITR 254 : (ATR 1966 SC 677) the assessee was required under S. 25 of the Coffee Act 1942, to deliver the coffee produced by it to the Coffee Board and the question which fell to be determined was whether such delivery constituted sale by operation of law as a result of which the assessee ceased to be the owner of the coffee, the moment it handed over the produce to the Coffee Board. This Court held that under the relevant provisions of the Act as soon as the producer of coffee handed over the produce to the Coffee Board, it ceased to be the owner and income accrued to him at that point of time. That case does not lay down the proposition that income accrues to a producer of agricultural produce before the date of disposal, use or sale. 6. The second argument raised by the appellant has also no substance. For the years 1955-56 and 1956-57 the appellant did not submit returns of income but applied to compound the tax under S. 65 of the Act, and paid the tax determined at the rates specified in Part 11 of the Act. Therefrom it cannot be inferred that the produce which was sold by him in the year of account to which these appeals relate had suffered tax in the earlier years. It has to be proved that the crop sold by the appellant related to the years in respect of which he had applied to compound the tax and on that part of the case there is no evidence. ### Response: 0

PHOENIX ARC PVT. LTD Vs. KETULBHAI RAMUBHAI PATEL

a secured creditor. However, when all the defining clauses are read together and harmoniously, it is clear that the legislature has maintained a distinction amongst the expressions financial creditor, operational creditor, secured creditor and unsecured creditor. Every secured creditor would be a creditor; and every financial creditor would also be a creditor but every secured creditor may not be a financial creditor. As noticed, the expressions financial debt and financial creditor, having their specific and distinct connotations and roles in insolvency and liquidation process of corporate persons, have only been defined in Part II whereas the expressions secured creditor and security interest are defined in Part I. 50. A conjoint reading of the statutory provisions with the enunciation of this Court in Swiss Ribbons (supra), leaves nothing to doubt that in the scheme of the IBC, what is intended by the expression financial creditor is a person who has direct engagement in the functioning of the corporate debtor; who is involved right from the beginning while assessing the viability of the corporate debtor; who would engage in restructuring of the loan as well as in reorganisation of the corporate debtors business when there is financial stress. In other words, the financial creditor, by its own direct involvement in a functional existence of corporate debtor, acquires unique position, who could be entrusted with the task of ensuring the sustenance and growth of the corporate debtor, akin to that of a guardian. In the context of insolvency resolution process, this class of stakeholders namely, financial creditors, is entrusted by the legislature with such a role that it would look forward to ensure that the corporate debtor is rejuvenated and gets back to its wheels with reasonable capacity of repaying its debts and to attend on its other obligations. Protection of the rights of all other stakeholders, including other creditors, would obviously be concomitant of such resurgence of the corporate debtor. 50.1. Keeping the objectives of the Code in view, the position and role of a person having only security interest over the assets of the corporate debtor could easily be contrasted with the role of a financial creditor because the former shall have only the interest of realising the value of its security (there being no other stakes involved and least any stake in the corporate debtors growth or equitable liquidation) while the latter would, apart from looking at safeguards of its own interests, would also and simultaneously be interested in rejuvenation, revival and growth of the corporate debtor. Thus understood, it is clear that if the former i.e., a person having only security interest over the assets of the corporate debtor is also included as a financial creditor and thereby allowed to have its say in the processes contemplated by Part II of the Code, the growth and revival of the corporate debtor may be the casualty. Such result would defeat the very objective and purpose of the Code, particularly of the provisions aimed at corporate insolvency resolution. 50.2. Therefore, we have no hesitation in saying that a person having only security interest over the assets of corporate debtor (like the instant third party securities), even if falling within the description of secured creditor by virtue of collateral security extended by the corporate debtor, would nevertheless stand outside the sect of financial creditors as per the definitions contained in Sub-sections (7) and (8) of Section 5 of the Code. Differently put, if a corporate debtor has given its property in mortgage to secure the debts of a third party, it may lead to a mortgage debt and, therefore, it may fall within the definition of debt Under Section 3(10) of the Code. However, it would remain a debt alone and cannot partake the character of a financial debt within the meaning of Section 5(8) of the Code. 30. This Court held that a person having only security interest over the assets of corporate debtor, even if falling within the description of secured creditor by virtue of collateral security extended by the corporate debtor, would not be covered by the financial creditors as per definitions contained in sub-section (7) and (8) of Section 5. What has been held by this Court as noted above is fully attracted in the present case where corporate debtor has only extended a security by pledging 40,160 shares of GEL. The appellant at best will be secured debtor qua above security but shall not be a financial creditor within the meaning of Section 5 sub-sections (7) and (8). 31. Mr. Vishwanathan tried to distinguish the judgment of this Court in Jaypee Infratech Limited (supra) by contending that the above judgment has been rendered in the specific facts scenario which does not apply to the present case at all. Shri Vishwanathan submits that in Jaypee Infratech Limited case (supra) corporate debtor had created mortgage for the loan obtained by the parent Company and no benefit of such loan has been received by the corporate debtor whereas in the present case corporate debtor has been the direct and real beneficiary of the loan advanced by Assigner to the parent Company of the corporate debtor. The above point as contended by the learned counsel does not commend us. The present is also a case where only security was created by the corporate debtor in 40,160 shares of GEL, there was no liability to repay the loan taken by the borrower on the corporate debtor in the present case. At best the Pledge Agreement and Agreement of undertaking executed on 10.01.2012, that is, subsequent to Facility Agreement, is security in favour of Lender-Assignor who at best will be secured creditor qua corporate debtor and not the financial creditor qua corporate debtor. 32. We may notice that the Appellate Tribunal has dealt with Section 5(8)(f) while rejecting the claim of the appellant as to be the financial creditor. It appears that the submission based on Section 5(8) (i) was not addressed before the Appellate Tribunal which has now been pressed before us.

1[ds]15. The Facility Agreement dated 12.05.2011 was executed between the Doshian Ltd. and the L&T Infrastructure Finance Company Ltd. The corporate debtor was not a party to the Facility Agreement. It was the Doshion Ltd., the borrower who was to repay the loan of Rs.40 crores.16. Item No.3 of Schedule IV, as noted above, is Pledge of 100% equity shares together with all accretions thereon of the GEL. There is Second pari- passu charge on all current assets of the GEL as per Schedule IV.17. The Pledge Agreement dated 10.01.2012 was entered into between the corporate debtor and L&T Infrastructure Finance Co. Ltd. Schedule II contains details of the Securities which are 40,160 shares of GEL. The corporate debtor has pledged in favour of lender, the securities, the Clauses of the Pledge Agreement clearly describe the nature of the security created by the Pledge Agreement. It is relevant to notice Clause 2(iii) which is to the following effect:2(iii) The Obligors hereby agree and confirm that the pledge created/to be created in terms of this Agreement shall be a continuing security for the payment of the Secured Obligations and the due performance by the Obligors of their obligations hereunder.18. The shares of GEL were pledged with L&T Infrastructure as security. The Deed of Undertaking which was given on the same day, i.e., 10.01.2012 is also to the same effect.The definition of financial debt as contained in Section 5(8) contains the expressions means and includes. The definition begins with the words financial debt means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes... The main part of the definition, thus, provides that financial debt means a debt which is disbursed against the consideration for the time value of money. The definition in the second part gives instances which also includes financial debt. Learned counsel for the appellant in his submission has relied on Section 5(8)(i) to support his claim that the appellant is the financial creditor. Learned counsel for the appellant has referred both sub-clause (b) and sub-clause (i) and submits that credit facility which was extended to the borrower is referable to Section 5(8) (b) and the corporate debtor pledged his share to give indemnity for credit facility and which is in a sense of guarantee. The debt is a financial debt within the meaning of Section 5(8)(i) and the appellant is the financial creditor. There can be no dispute that credit facility given by the Assignor to borrower by Facility Agreement dated 12.05.2011 is a credit facility which can be covered under Section 5(8)(b). A bare perusal of Section 5(8)(i) indicates that it contemplates amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses(a) to (h) of clause (8). Sub-clause (i) uses two expressions guarantee and indemnity for any of the items referred to in sub-clauses (a) to (h).23. As clear from the definition a contract of guarantee is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The present is not a case where the corporate debtor has entered into a contract to perform the promise, or discharge the liability of borrower in case of his default. The Pledge Agreement is limited to pledge 40,160 shares as security. The corporate debtor has never promised to discharge the liability of borrower. The Facility Agreement under which the borrower was bound by the terms and conditions and containing his obligation to repay the loan security for performance are all contained in the Facility Agreement. A contract of guarantee contains a guarantee to perform the promise or discharge the liability of third person in case of his default. Thus, key words in Section 126 are contract to perform the promise, or discharge the liability, of a third person. Both the expressions perform the promise or discharge the liability relate to a third person. The Pledge Agreement dated 10.01.2012 does not contain any contract that the promise which was made by the borrower in the Facility Agreement dated 12.05.2011 to discharge the liability of debt of Rs.40 crores is undertaken by the corporate debtor. It was the borrower who had promised to repay the loan of Rs.40 crores in Facility Agreement dated 12.05.2011 and it was borrower who had undertaken to discharge the liability towards lender. The Pledge Agreement dated 10.01.2012 does not contain any contract that corporate debtor has contracted to perform the promise, or discharge the liability of the third person. The Pledge Agreement is limited to pledge of 40,160 shares of GEL only. We have noticed above that in the Facility Agreement there is a Security Creation by way of Schedule IV in which 100% equity shares of GEL were pledged by the borrower and second pari-passu charge on all current assets of the GEL was also created as security for loan. It transpires that since some shares of GEL were also with the corporate debtor who is subsidiary Company of Doshion Ltd. the same was also pledged with the lender as additional security by a subsequent agreement dated 10.01.2012.26. The word guarantee and indemnity as occurring in Section 5(8)(i) has not been defined in the Code. Section 3 sub-section (37) of the Code provides that words and expressions used but not defined in the Code but defined in the Indian Contract Act, 1872 shall have the meanings respectively assigned to them.28. The Bombay High Court although observed that on plain reading of Section 126, there may be some substance in the submission of Mr. Desai but Bombay High Court proceeded to examine the general law. The judgment of the Bombay High Court relied by the learned counsel for the appellant was on its own facts and has no bearing on interpretation of Section 5(8)(i) with reference to Section 126 of Contract Act.in Jaypee Infratech Limited vs. Axis Bank Limited (supra).One of the issues which came before this Court was as to whether the respondent (lenders of JAL) could be financial creditors of the corporate debtor JIL on the strength of the mortgages created by corporate debtor as collateral securities of its holding Co. JIL. In the above case, the AXIS Bank had lent finance to Jaiprakash Associates Ltd.(JAL), the holding company, Jaypee Infratech Ltd.(JIL) had mortgaged several properties as collateral securities for the loans and advances made by the Axis Bank to JAL. Interim Resolution Professional has rejected the claim of the Asix Bank to be recognised as financial creditor of corporate debtor (JIL). The National Company Law Tribunal has approved the decision of Interm Resolution Professional rejecting the claim of Axis Bank as financial creditor against which appeal was filed before the Appellate Tribunal which was allowed. The corporate debtor had filed an appeal before this Court in which appeal one of the issues was as to whether the Axis Bank can be recognised as financial creditor of the corporate debtor on the strength of the mortgaged by the JIL, corporate debtor of its holding Co. JAL. This Court after noticing the facts, noted rival submissions of the parties on the above issue in detail. The two earlier judgments of this Court, namely, Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 and Pioneer Urban Land & Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416 were extensively noted. Paragraphs 46 to 50.2 contain elaborate discussion regarding the essentials of financial debt and financial creditor which are to the following effect:46. Applying the aforementioned fundamental principles to the definition occurring in Section 5(8) of the Code, we have not an iota of doubt that for a debt to become financial debt for the purpose of Part II of the Code, the basic elements are that it ought to be a disbursal against the consideration for time value of money. It may include any of the methods for raising money or incurring liability by the modes prescribed in Sub- clauses (a) to (f) of Section 5(8); it may also include any derivative transaction or counter-indemnity obligation as per Sub- clauses (g) and (h) of Section 5(8); and it may also be the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in Sub- clauses (a) to (h). The requirement of existence of a debt, which is disbursed against the consideration for the time value of money, in our view, remains an essential part even in respect of any of the transactions/dealings stated in Sub-clauses (a) to (i) of Section 5(8), even if it is not necessarily stated therein. In any case, the definition, by its very frame, cannot be read so expansive, rather infinitely wide, that the root requirements of disbursement against the consideration for the time value of money could be forsaken in the manner that any transaction could stand alone to become a financial debt. In other words, any of the transactions stated in the said Sub-clauses (a) to (i) of Section 5(8) would be falling within the ambit of financial debt only if it carries the essential elements stated in the principal Clause or at least has the features which could be traced to such essential elements in the principal clause. In yet other words, the essential element of disbursal, and that too against the consideration for time value of money, needs to be found in the genesis of any debt before it may be treated as financial debt within the meaning of Section 5(8) of the Code. This debt may be of any nature but a part of it is always required to be carrying, or corresponding to, or at least having some traces of disbursal against consideration for the time value of money.47. As noticed, the root requirement for a creditor to become financial creditor for the purpose of Part II of the Code, there must be a financial debt which is owed to that person. He may be the principal creditor to whom the financial debt is owed or he may be an assignee in terms of extended meaning of this definition but, and nevertheless, the requirement of existence of a debt being owed is not forsaken.48. It is also evident that what is being dealt with and described in Section 5(7) and in Section 5(8) is the transaction vis-a-vis the corporate debtor. Therefore, for a person to be designated as a financial creditor of the corporate debtor, it has to be shown that the corporate debtor owes a financial debt to such person. Understood this way, it becomes clear that a third party to whom the corporate debtor does not owe a financial debt cannot become its financial creditor for the purpose of Part II of the Code.49. Expounding yet further, in our view, the peculiar elements of these expressions financial creditor andfinancial debt, as occurring in Sections 5(7) and 5(8), when visualised and compared with the generic expressions creditor and debt respectively, as occurring in Sections 3(10) and 3(11) of the Code, the scheme of things envisaged by the Code becomes clearer. The generic term creditor is defined to mean any person to whom the debt is owed and then, it has also been made clear that it includes a financial creditor, a secured creditor, an unsecured creditor, an operational creditor, and a decree-holder. Similarly, a debt means a liability or obligation in respect of a claim which is due from any person and this expression has also been given an extended meaning to include a financial debt and an operational debt.49.1. The use of the expression means and includes in these clauses, on the very same principles of interpretation as indicated above, makes it clear that for a person to become a creditor, there has to be a debt i.e., a liability or obligation in respect of a claim which may be due from any person. A secured creditor in terms of Section 3(30) means a creditor in whose favour a security interest is created; and security interest, in terms of Section 3(31), means a right, title or interest or claim of property created in favour of or provided for a secured creditor by a transaction which secures payment for the purpose of an obligation and it includes, amongst others, a mortgage. Thus, any mortgage created in favour of a creditor leads to a security interest being created and thereby, the creditor becomes a secured creditor. However, when all the defining clauses are read together and harmoniously, it is clear that the legislature has maintained a distinction amongst the expressions financial creditor, operational creditor, secured creditor and unsecured creditor. Every secured creditor would be a creditor; and every financial creditor would also be a creditor but every secured creditor may not be a financial creditor. As noticed, the expressions financial debt and financial creditor, having their specific and distinct connotations and roles in insolvency and liquidation process of corporate persons, have only been defined in Part II whereas the expressions secured creditor and security interest are defined in Part I.50. A conjoint reading of the statutory provisions with the enunciation of this Court in Swiss Ribbons (supra), leaves nothing to doubt that in the scheme of the IBC, what is intended by the expression financial creditor is a person who has direct engagement in the functioning of the corporate debtor; who is involved right from the beginning while assessing the viability of the corporate debtor; who would engage in restructuring of the loan as well as in reorganisation of the corporate debtors business when there is financial stress. In other words, the financial creditor, by its own direct involvement in a functional existence of corporate debtor, acquires unique position, who could be entrusted with the task of ensuring the sustenance and growth of the corporate debtor, akin to that of a guardian. In the context of insolvency resolution process, this class of stakeholders namely, financial creditors, is entrusted by the legislature with such a role that it would look forward to ensure that the corporate debtor is rejuvenated and gets back to its wheels with reasonable capacity of repaying its debts and to attend on its other obligations. Protection of the rights of all other stakeholders, including other creditors, would obviously be concomitant of such resurgence of the corporate debtor.50.1. Keeping the objectives of the Code in view, the position and role of a person having only security interest over the assets of the corporate debtor could easily be contrasted with the role of a financial creditor because the former shall have only the interest of realising the value of its security (there being no other stakes involved and least any stake in the corporate debtors growth or equitable liquidation) while the latter would, apart from looking at safeguards of its own interests, would also and simultaneously be interested in rejuvenation, revival and growth of the corporate debtor. Thus understood, it is clear that if the former i.e., a person having only security interest over the assets of the corporate debtor is also included as a financial creditor and thereby allowed to have its say in the processes contemplated by Part II of the Code, the growth and revival of the corporate debtor may be the casualty. Such result would defeat the very objective and purpose of the Code, particularly of the provisions aimed at corporate insolvency resolution.50.2. Therefore, we have no hesitation in saying that a person having only security interest over the assets of corporate debtor (like the instant third party securities), even if falling within the description of secured creditor by virtue of collateral security extended by the corporate debtor, would nevertheless stand outside the sect of financial creditors as per the definitions contained in Sub-sections (7) and (8) of Section 5 of the Code. Differently put, if a corporate debtor has given its property in mortgage to secure the debts of a third party, it may lead to a mortgage debt and, therefore, it may fall within the definition of debt Under Section 3(10) of the Code. However, it would remain a debt alone and cannot partake the character of a financial debt within the meaning of Section 5(8) of the Code.30. This Court held that a person having only security interest over the assets of corporate debtor, even if falling within the description of secured creditor by virtue of collateral security extended by the corporate debtor, would not be covered by the financial creditors as per definitions contained in sub-section (7) and (8) of Section 5. What has been held by this Court as noted above is fully attracted in the present case where corporate debtor has only extended a security by pledging 40,160 shares of GEL. The appellant at best will be secured debtor qua above security but shall not be a financial creditor within the meaning of Section 5 sub-sections (7) and (8).The above point as contended by the learned counsel does not commend us. The present is also a case where only security was created by the corporate debtor in 40,160 shares of GEL, there was no liability to repay the loan taken by the borrower on the corporate debtor in the present case. At best the Pledge Agreement and Agreement of undertaking executed on 10.01.2012, that is, subsequent to Facility Agreement, is security in favour of Lender-Assignor who at best will be secured creditor qua corporate debtor and not the financial creditor qua corporate debtor.32. We may notice that the Appellate Tribunal has dealt with Section 5(8)(f) while rejecting the claim of the appellant as to be the financial creditor. It appears that the submission based on Section 5(8) (i) was not addressed before the Appellate Tribunal which has now been pressed before us.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: a secured creditor. However, when all the defining clauses are read together and harmoniously, it is clear that the legislature has maintained a distinction amongst the expressions financial creditor, operational creditor, secured creditor and unsecured creditor. Every secured creditor would be a creditor; and every financial creditor would also be a creditor but every secured creditor may not be a financial creditor. As noticed, the expressions financial debt and financial creditor, having their specific and distinct connotations and roles in insolvency and liquidation process of corporate persons, have only been defined in Part II whereas the expressions secured creditor and security interest are defined in Part I. 50. A conjoint reading of the statutory provisions with the enunciation of this Court in Swiss Ribbons (supra), leaves nothing to doubt that in the scheme of the IBC, what is intended by the expression financial creditor is a person who has direct engagement in the functioning of the corporate debtor; who is involved right from the beginning while assessing the viability of the corporate debtor; who would engage in restructuring of the loan as well as in reorganisation of the corporate debtors business when there is financial stress. In other words, the financial creditor, by its own direct involvement in a functional existence of corporate debtor, acquires unique position, who could be entrusted with the task of ensuring the sustenance and growth of the corporate debtor, akin to that of a guardian. In the context of insolvency resolution process, this class of stakeholders namely, financial creditors, is entrusted by the legislature with such a role that it would look forward to ensure that the corporate debtor is rejuvenated and gets back to its wheels with reasonable capacity of repaying its debts and to attend on its other obligations. Protection of the rights of all other stakeholders, including other creditors, would obviously be concomitant of such resurgence of the corporate debtor. 50.1. Keeping the objectives of the Code in view, the position and role of a person having only security interest over the assets of the corporate debtor could easily be contrasted with the role of a financial creditor because the former shall have only the interest of realising the value of its security (there being no other stakes involved and least any stake in the corporate debtors growth or equitable liquidation) while the latter would, apart from looking at safeguards of its own interests, would also and simultaneously be interested in rejuvenation, revival and growth of the corporate debtor. Thus understood, it is clear that if the former i.e., a person having only security interest over the assets of the corporate debtor is also included as a financial creditor and thereby allowed to have its say in the processes contemplated by Part II of the Code, the growth and revival of the corporate debtor may be the casualty. Such result would defeat the very objective and purpose of the Code, particularly of the provisions aimed at corporate insolvency resolution. 50.2. Therefore, we have no hesitation in saying that a person having only security interest over the assets of corporate debtor (like the instant third party securities), even if falling within the description of secured creditor by virtue of collateral security extended by the corporate debtor, would nevertheless stand outside the sect of financial creditors as per the definitions contained in Sub-sections (7) and (8) of Section 5 of the Code. Differently put, if a corporate debtor has given its property in mortgage to secure the debts of a third party, it may lead to a mortgage debt and, therefore, it may fall within the definition of debt Under Section 3(10) of the Code. However, it would remain a debt alone and cannot partake the character of a financial debt within the meaning of Section 5(8) of the Code. 30. This Court held that a person having only security interest over the assets of corporate debtor, even if falling within the description of secured creditor by virtue of collateral security extended by the corporate debtor, would not be covered by the financial creditors as per definitions contained in sub-section (7) and (8) of Section 5. What has been held by this Court as noted above is fully attracted in the present case where corporate debtor has only extended a security by pledging 40,160 shares of GEL. The appellant at best will be secured debtor qua above security but shall not be a financial creditor within the meaning of Section 5 sub-sections (7) and (8). 31. Mr. Vishwanathan tried to distinguish the judgment of this Court in Jaypee Infratech Limited (supra) by contending that the above judgment has been rendered in the specific facts scenario which does not apply to the present case at all. Shri Vishwanathan submits that in Jaypee Infratech Limited case (supra) corporate debtor had created mortgage for the loan obtained by the parent Company and no benefit of such loan has been received by the corporate debtor whereas in the present case corporate debtor has been the direct and real beneficiary of the loan advanced by Assigner to the parent Company of the corporate debtor. The above point as contended by the learned counsel does not commend us. The present is also a case where only security was created by the corporate debtor in 40,160 shares of GEL, there was no liability to repay the loan taken by the borrower on the corporate debtor in the present case. At best the Pledge Agreement and Agreement of undertaking executed on 10.01.2012, that is, subsequent to Facility Agreement, is security in favour of Lender-Assignor who at best will be secured creditor qua corporate debtor and not the financial creditor qua corporate debtor. 32. We may notice that the Appellate Tribunal has dealt with Section 5(8)(f) while rejecting the claim of the appellant as to be the financial creditor. It appears that the submission based on Section 5(8) (i) was not addressed before the Appellate Tribunal which has now been pressed before us. ### Response: 1

Rajiv Gakhar Vs. Bhavana Wasif @ Sahar Wasif

Court as RW1. In her lengthy statement, she explained all the details including the fact that how she converted to Islam to marry a muslim and after divorce, by performing Shudhikaran ceremonies, she became a full fledged Hindu and there is no bar in marrying Hindu as per Hindu rites and ceremonies. She also explained that the appellant was aware of all these details and with full knowledge and consent, marriage of the appellant and the respondent was performed as per Hindu rites and ceremonies. Mr. P. N. Misra, took us through the entire evidence of RW1 in order to substantiate the above statement. In her evidence, she explained in detail that her marriage with Wasif Khalil was a love marriage wherein her parents had also consented. She further deposed that she converted to Muslim religion only at the time of marriage with Wasif Khalil which was solemnized in Mayur Vihar, Delhi in a Masjid. At the time of marriage, parents of both the parties to marriage were present. She also explained that at the time when she had obtained divorce from Wasif by his saying Talaq three times in March, 1995, her younger brother was present. She also admitted that she was not having any documentary evidence for the same. She further explained that after divorce with her Muslim husband, she had changed her name from Sahar Wasif to Bhavana which was her original name. Immediately after the said divorce, according to her, she had stated using her original name Bhavana and she had undergone Shudhikaran ceremonies for conversion to Hinduism just after her divorce from her previous muslim husband. 9) In support of the stand taken by Respondent-wife as RW1, one K.V. Krishnayya, aged about 60 years, resident of Ram Nagar, Market Lane, Hyderabad was examined as RW2 by way of an affidavit. He explained that the respondent-Bhavana came to his house in the company of his daughter K. Aparna in the month of April 1997. On one occasion, he explained that both Rajiv Gakhar and Bhavana came to his house and on making enquiries Bhavana disclosed that she is a born Hindu but she married to a Muslim and now she is a divorcee as she was divorced by her Muslim husband by saying Talaq three times in March, 1995 and since then she again returned to her previous religion (Hindu) after obtaining the Shudhikaran ceremonies by calling a Pandit and by chanting Mantras. She also disclosed that she is having two children from her Muslim husband. RW2 also enquired and verified the details about the appellant-Rajiv Gakhar. In other words, according to RW2, the appellant was also aware of all the details about RW1 including her religion even before their marriage. 10) One Babu Lal, aged about 65 years, an Astrologer/Karamkandi, resident of Sector 8, Faridabad was examined as RW4. He explained the details about the Shudhikaran ceremonies that were performed to the respondent. According to him, it was done about 7 years ago. He explained that Shudhikaran ceremonies were performed by him on the eve of Puranmasi preceding Holi. After recollection he mentioned that it was around March, 1997. He asserted that after performance of ceremonies, she is deemed to have become a Hindu. He also denied the suggestion that pursuant to marriage of Bhavana who was earlier a Hindu with a Muslim and having two children, she could not have returned to a Hindu fold. He also asserted that Shudhikaran of Bhavana and her two children were carried out simultaneously on the same date and time and her parents were also present on this occasion. 11) Another important witness examined on the side of the respondent is her brother Vibhu Ranjan as RW6. He explained that Bhavna Gakhar is his real elder sister and they are Brahmins/Hindu by religion and the birth name of his sister was Bhavana Sharma. He also explained that his sister first married with a Muslim boy and subsequently after Talaq, thereby her marriage with Muslim came to an end permanently forever. He also elaborated and explained that in the month of March, 1997 on the eve of Holi festival the Shudhikaran ceremonies were performed in their house through Pandit Babu Lal (RW4). He further explained that Abhishek by gangajal was done apart from chanting of Mantras necessary for Shudhikaran. Thus, according to him, Bhavana returned to her original religion, i.e, Hindu and became eligible to enter into marriage with any Hindu male. 12) The analysis of the assertion of the respondent as RW1 and the evidence of RW2, RW4 and RW6 clearly show that the respondent-wife established that before the marriage with the appellant she became a full-fledged Hindu by performing Shudhikaran ceremonies in the manner and being followed by Hindu custom and all these material facts were known to the appellant at the time of the marriage. In view of these factual details, the decisions relied on by the learned counsel for the appellant are not applicable to the case on hand. 13) Mr. Parikh heavily relied on Gullipilli Sowria Raj (supra). The question in that decision was whether a marriage entered into by a Hindu with a Christian is valid under the provisions of the Hindu Marriage Act, 1955. After finding that the appellant-husband therein was a Roman Catholic Christian, the marriage solemnized in accordance with Hindu customs was a nullity and its registration under Section 8 of the Act could not and/or did not validate the same. In view of the said factual scenario, as rightly observed by the High Court, the ratio in Gullipilli (supra) is not applicable to the case on hand. 14) Inasmuch as the respondent-wife established her claim that on the date of marriage with the appellant she was a Hindu and the same is permissible under Section 5 of the Act, we agree with the conclusion arrived at by the High Court and reject the argument of the counsel for the appellant. 15) In view of the above discussion and conclusion,

0[ds]Though the trial Court granted decree holding that the marriage between the appellant and the respondent is a nullity, the materials placed by the respondent-wife in the form of oral and documentary evidence clearly show that there was no contravention of any of the provisions, more particularly, Section 5 of the Act. The respondent was examined before the trial Court as RW1. In her lengthy statement, she explained all the details including the fact that how she converted to Islam to marry a muslim and after divorce, by performing Shudhikaran ceremonies, she became a full fledged Hindu and there is no bar in marrying Hindu as per Hindu rites and ceremonies. She also explained that the appellant was aware of all these details and with full knowledge and consent, marriage of the appellant and the respondent was performed as per Hindu rites and ceremonies. Mr. P. N. Misra, took us through the entire evidence of RW1 in order to substantiate the above statement. In her evidence, she explained in detail that her marriage with Wasif Khalil was a love marriage wherein her parents had also consented. She further deposed that she converted to Muslim religion only at the time of marriage with Wasif Khalil which was solemnized in Mayur Vihar, Delhi in a Masjid. At the time of marriage, parents of both the parties to marriage were present. She also explained that at the time when she had obtained divorce from Wasif by his saying Talaq three times in March, 1995, her younger brother was present. She also admitted that she was not having any documentary evidence for the same. She further explained that after divorce with her Muslim husband, she had changed her name from Sahar Wasif to Bhavana which was her original name. Immediately after the said divorce, according to her, she had stated using her original name Bhavana and she had undergone Shudhikaran ceremonies for conversion to Hinduism just after her divorce from her previous muslimanalysis of the assertion of the respondent as RW1 and the evidence of RW2, RW4 and RW6 clearly show that the respondent-wife established that before the marriage with the appellant she became a full-fledged Hindu by performing Shudhikaran ceremonies in the manner and being followed by Hindu custom and all these material facts were known to the appellant at the time of the marriage. In view of these factual details, the decisions relied on by the learned counsel for the appellant are not applicable to the case on hand.

### 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: Court as RW1. In her lengthy statement, she explained all the details including the fact that how she converted to Islam to marry a muslim and after divorce, by performing Shudhikaran ceremonies, she became a full fledged Hindu and there is no bar in marrying Hindu as per Hindu rites and ceremonies. She also explained that the appellant was aware of all these details and with full knowledge and consent, marriage of the appellant and the respondent was performed as per Hindu rites and ceremonies. Mr. P. N. Misra, took us through the entire evidence of RW1 in order to substantiate the above statement. In her evidence, she explained in detail that her marriage with Wasif Khalil was a love marriage wherein her parents had also consented. She further deposed that she converted to Muslim religion only at the time of marriage with Wasif Khalil which was solemnized in Mayur Vihar, Delhi in a Masjid. At the time of marriage, parents of both the parties to marriage were present. She also explained that at the time when she had obtained divorce from Wasif by his saying Talaq three times in March, 1995, her younger brother was present. She also admitted that she was not having any documentary evidence for the same. She further explained that after divorce with her Muslim husband, she had changed her name from Sahar Wasif to Bhavana which was her original name. Immediately after the said divorce, according to her, she had stated using her original name Bhavana and she had undergone Shudhikaran ceremonies for conversion to Hinduism just after her divorce from her previous muslim husband. 9) In support of the stand taken by Respondent-wife as RW1, one K.V. Krishnayya, aged about 60 years, resident of Ram Nagar, Market Lane, Hyderabad was examined as RW2 by way of an affidavit. He explained that the respondent-Bhavana came to his house in the company of his daughter K. Aparna in the month of April 1997. On one occasion, he explained that both Rajiv Gakhar and Bhavana came to his house and on making enquiries Bhavana disclosed that she is a born Hindu but she married to a Muslim and now she is a divorcee as she was divorced by her Muslim husband by saying Talaq three times in March, 1995 and since then she again returned to her previous religion (Hindu) after obtaining the Shudhikaran ceremonies by calling a Pandit and by chanting Mantras. She also disclosed that she is having two children from her Muslim husband. RW2 also enquired and verified the details about the appellant-Rajiv Gakhar. In other words, according to RW2, the appellant was also aware of all the details about RW1 including her religion even before their marriage. 10) One Babu Lal, aged about 65 years, an Astrologer/Karamkandi, resident of Sector 8, Faridabad was examined as RW4. He explained the details about the Shudhikaran ceremonies that were performed to the respondent. According to him, it was done about 7 years ago. He explained that Shudhikaran ceremonies were performed by him on the eve of Puranmasi preceding Holi. After recollection he mentioned that it was around March, 1997. He asserted that after performance of ceremonies, she is deemed to have become a Hindu. He also denied the suggestion that pursuant to marriage of Bhavana who was earlier a Hindu with a Muslim and having two children, she could not have returned to a Hindu fold. He also asserted that Shudhikaran of Bhavana and her two children were carried out simultaneously on the same date and time and her parents were also present on this occasion. 11) Another important witness examined on the side of the respondent is her brother Vibhu Ranjan as RW6. He explained that Bhavna Gakhar is his real elder sister and they are Brahmins/Hindu by religion and the birth name of his sister was Bhavana Sharma. He also explained that his sister first married with a Muslim boy and subsequently after Talaq, thereby her marriage with Muslim came to an end permanently forever. He also elaborated and explained that in the month of March, 1997 on the eve of Holi festival the Shudhikaran ceremonies were performed in their house through Pandit Babu Lal (RW4). He further explained that Abhishek by gangajal was done apart from chanting of Mantras necessary for Shudhikaran. Thus, according to him, Bhavana returned to her original religion, i.e, Hindu and became eligible to enter into marriage with any Hindu male. 12) The analysis of the assertion of the respondent as RW1 and the evidence of RW2, RW4 and RW6 clearly show that the respondent-wife established that before the marriage with the appellant she became a full-fledged Hindu by performing Shudhikaran ceremonies in the manner and being followed by Hindu custom and all these material facts were known to the appellant at the time of the marriage. In view of these factual details, the decisions relied on by the learned counsel for the appellant are not applicable to the case on hand. 13) Mr. Parikh heavily relied on Gullipilli Sowria Raj (supra). The question in that decision was whether a marriage entered into by a Hindu with a Christian is valid under the provisions of the Hindu Marriage Act, 1955. After finding that the appellant-husband therein was a Roman Catholic Christian, the marriage solemnized in accordance with Hindu customs was a nullity and its registration under Section 8 of the Act could not and/or did not validate the same. In view of the said factual scenario, as rightly observed by the High Court, the ratio in Gullipilli (supra) is not applicable to the case on hand. 14) Inasmuch as the respondent-wife established her claim that on the date of marriage with the appellant she was a Hindu and the same is permissible under Section 5 of the Act, we agree with the conclusion arrived at by the High Court and reject the argument of the counsel for the appellant. 15) In view of the above discussion and conclusion, ### Response: 0

Rajkumar Narsingh Pratap Singh Deo Vs. State Of Orissa And Anr

exists a patent necessity for making an adequate provisions for the grantee, the appellant, to enable him to maintain his dignity as a Rajkumar of the State and to maintain himself, his family, his heirs and descendants in a manner befitting his and their position. That is why out of love and affection for him, the grantor made the Khanja grant in the shape of a monthly cash allowance of Rs. 500/- for his lifetime and also an assignment of land measuring 6942-71-5 acres specified in the Schedule attached to the Sanad. The grant of the said land has been made heritable and the grantee has been authorised to enjoy it from generation to generation. The extent of the grant is also clarified by additional clauses which it is unnecessary to mention. Clause 2 of the Sanad imposes the condition of loyalty on the grantee and his heirs; and by clause 3 the State undertook to bear all costs for reclaiming the land covered by the grant with a view to render it fit for cultivation.17. Now, it is plain that there is no legislative element in any of the provisions of this grant. It does not contain any command which has to be obeyed by the citizens of the State; it is a gift pure and simple made by the Ruler in recognition of the fact that under the custom of the family and the customary law of the State, he was bound to maintain his junior brother. The grant, therefore, represents purely an executive act on the part of the Ruler intended to discharge his obligations to his junior brother under the personal law of the family and the customary law of the State. It would, we think, be idle to suggest that such a grant amounts to law. It is true that partly it is based on the requirement of personal and customary law; but no action taken by the Ruler in discharging his obligations under such personal or customary law can be assimilated to an order issued by him in exercise of his legislative authority. Therefore, we have no difficulty in holding that the Sanad in question is a purely executive act and cannot be regarded as law as contented by Mr. Setalvad.18. It was then faintly argued by Mr. Setalvad that the obligation undertaken by the Ruler was recognised by the respondent, and so, it could not be cancelled by the respondent merely by an executive act. In our opinion, there is no substance in this argument. If the act by which the grant was made was purely executive act on the part of the then Ruler of the State of Dhenkanal, we do not see how it can be legitimately urged that the terms of the grant cannot either be modified, or the grant cannot be cancelled altogether by an executive act of the respondent which is the successor of the Ruler. As we have just indicated, the customary law which required the Ruler to provide maintenance for his junior brother, can be said to have been continued by clause 4 (b) of the Order of 1948 and Art. 372 of the Constitution; but to say that the customary law in that behalf is continued is very different from saying that the amount of maintenance fixed by the grant cannot be varied or altered. What the respondent has done is to stop the payment of cash allowance of Rs. 500/- per month and that does not mean alteration of the law.It is common ground that the grant of the land covered by the Sanad has not been disturbed, and so, all that the impugned action of the respondent amounts to is to reduce the total maintenance allowance granted to the appellant by the Ruler in 1931. It is plain that though the customary law requiring provision to be made for the maintenance of the appellant is in force, the respondent has the right to determine what would be adequate and appropriate maintenance, and this part of the right is purely executive in character. It would, we think, be unreasonable to suggest that though the Sanad is not law, the amount granted by the Sanad cannot be modified by an executive act of the respondent, and that the respondent must file a suit for that purpose. All that the customary law requires is the making of a suitable provision for the maintenance of the junior members of the family. But what is adequate provision in that behalf will always be a question of fact which has to be determined in the light of several relevant factors; the number of persons entitled to receive maintenance, the requirements of the status of the members of the family, the total income derived by the family, and other commitments, may all have to be weighed in deciding the quantum of maintenance which should be awarded to anyone of the junior members. In fact, both the Courts below have agreed in holding that having regard to the relevant facts, the grant of the land made by the Sanad would be adequate and appropriate for the maintenance of the appellant.19. But apart form this aspect of the matter, we do not see how the appellant can seriously quarrel with the validity of the respondents action in discontinuing the payment of cash allowance to him. The plea that payment was made for some time after the merger can hardly avail the appellant in contending that the discontinuance is invalid. In the very nature of things, the respondent could not have decided whether the cash allowance should be continued to the appellant or not without examining the merits of the case, and since a large number of such cases had to be examined after merger, if the payment continued to be made in the meantime, that cannot give any valid ground to the appellant to challenge the legality of the ultimate decision of the respondent to discontinue the payment of the said allowance.

0[ds]7. We do not think that the basic assumption made by Mr. Setalvad in presenting this argument is sound. It would be noticed that the basic assumption on which the argument is based is that in the case of an absolute monarch, there can be no distinction between executive and legislative order. In other words, it is assumed that all orders which are passed by an absolute monarch, (are) binding, and it is idle to enquire whether they are executive or legislative in character, because no such distinction can be made in regard to orders issued by an absolute monarch. It is true that the legislative, executive and judicial powers are all vested in an absolute monarch; he is the source or fountain of all these powers and any order made by him would he binding within the territory under his Rule without examining the question as to whether it is legislative, executive or judicial; but though all the three powers are vested in the same individual, that does not obliterate the difference in the character of those powers. The jurisprudential distinction between the legislative and the executive powers still remains, though for practical purposes, an examination about the character of these orders may serve no useful purpose. It is not as if where absolute monarchs have sway in their kingdoms, the basic principles of jurisprudence which distinguish between the three categories of powers are inapplicable. A careful examination of the orders passed by an absolute monarch would disclose to a jurist whether the power exercised in a given case by issuing a given order is judicial, legislative, or executive, and the conclusion reached on jurisprudential grounds about the nature of the order and the source of power on which it is based would be nevertheless be true and correct. That, indeed, is the approach which must be adopted in considering the question as to whether the grant in the present case is law within the meaning of Art. 372 as well as Cl. 4 (b) of Order 31 of 1948; and so, prima facie, it does not seem sound to suggest that in the case of an absolute monarch, that branch of jurisprudence which makes a distinction between three kinds of power is entirely inapplicable.Now, it is plain that there is no legislative element in any of the provisions of this grant. It does not contain any command which has to be obeyed by the citizens of the State; it is a gift pure and simple made by the Ruler in recognition of the fact that under the custom of the family and the customary law of the State, he was bound to maintain his junior brother. The grant, therefore, represents purely an executive act on the part of the Ruler intended to discharge his obligations to his junior brother under the personal law of the family and the customary law of the State. It would, we think, be idle to suggest that such a grant amounts to law. It is true that partly it is based on the requirement of personal and customary law; but no action taken by the Ruler in discharging his obligations under such personal or customary law can be assimilated to an order issued by him in exercise of his legislative authority. Therefore, we have no difficulty in holding that the Sanad in question is a purely executive act and cannot be regarded as law as contented by Mr.our opinion, there is no substance in this argument. If the act by which the grant was made was purely executive act on the part of the then Ruler of the State of Dhenkanal, we do not see how it can be legitimately urged that the terms of the grant cannot either be modified, or the grant cannot be cancelled altogether by an executive act of the respondent which is the successor of the Ruler. As we have just indicated, the customary law which required the Ruler to provide maintenance for his junior brother, can be said to have been continued by clause 4 (b) of the Order of 1948 and Art. 372 of the Constitution; but to say that the customary law in that behalf is continued is very different from saying that the amount of maintenance fixed by the grant cannot be varied or altered. What the respondent has done is to stop the payment of cash allowance of Rs. 500/- per month and that does not mean alteration of the law.It is common ground that the grant of the land covered by the Sanad has not been disturbed, and so, all that the impugned action of the respondent amounts to is to reduce the total maintenance allowance granted to the appellant by the Ruler in 1931. It is plain that though the customary law requiring provision to be made for the maintenance of the appellant is in force, the respondent has the right to determine what would be adequate and appropriate maintenance, and this part of the right is purely executive in character. It would, we think, be unreasonable to suggest that though the Sanad is not law, the amount granted by the Sanad cannot be modified by an executive act of the respondent, and that the respondent must file a suit for that purpose. All that the customary law requires is the making of a suitable provision for the maintenance of the junior members of the family. But what is adequate provision in that behalf will always be a question of fact which has to be determined in the light of several relevant factors; the number of persons entitled to receive maintenance, the requirements of the status of the members of the family, the total income derived by the family, and other commitments, may all have to be weighed in deciding the quantum of maintenance which should be awarded to anyone of the junior members. In fact, both the Courts below have agreed in holding that having regard to the relevant facts, the grant of the land made by the Sanad would be adequate and appropriate for the maintenance of the appellant.19. But apart form this aspect of the matter, we do not see how the appellant can seriously quarrel with the validity of the respondents action in discontinuing the payment of cash allowance to him. The plea that payment was made for some time after the merger can hardly avail the appellant in contending that the discontinuance is invalid. In the very nature of things, the respondent could not have decided whether the cash allowance should be continued to the appellant or not without examining the merits of the case, and since a large number of such cases had to be examined after merger, if the payment continued to be made in the meantime, that cannot give any valid ground to the appellant to challenge the legality of the ultimate decision of the respondent to discontinue the payment of the said allowance.

### 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: exists a patent necessity for making an adequate provisions for the grantee, the appellant, to enable him to maintain his dignity as a Rajkumar of the State and to maintain himself, his family, his heirs and descendants in a manner befitting his and their position. That is why out of love and affection for him, the grantor made the Khanja grant in the shape of a monthly cash allowance of Rs. 500/- for his lifetime and also an assignment of land measuring 6942-71-5 acres specified in the Schedule attached to the Sanad. The grant of the said land has been made heritable and the grantee has been authorised to enjoy it from generation to generation. The extent of the grant is also clarified by additional clauses which it is unnecessary to mention. Clause 2 of the Sanad imposes the condition of loyalty on the grantee and his heirs; and by clause 3 the State undertook to bear all costs for reclaiming the land covered by the grant with a view to render it fit for cultivation.17. Now, it is plain that there is no legislative element in any of the provisions of this grant. It does not contain any command which has to be obeyed by the citizens of the State; it is a gift pure and simple made by the Ruler in recognition of the fact that under the custom of the family and the customary law of the State, he was bound to maintain his junior brother. The grant, therefore, represents purely an executive act on the part of the Ruler intended to discharge his obligations to his junior brother under the personal law of the family and the customary law of the State. It would, we think, be idle to suggest that such a grant amounts to law. It is true that partly it is based on the requirement of personal and customary law; but no action taken by the Ruler in discharging his obligations under such personal or customary law can be assimilated to an order issued by him in exercise of his legislative authority. Therefore, we have no difficulty in holding that the Sanad in question is a purely executive act and cannot be regarded as law as contented by Mr. Setalvad.18. It was then faintly argued by Mr. Setalvad that the obligation undertaken by the Ruler was recognised by the respondent, and so, it could not be cancelled by the respondent merely by an executive act. In our opinion, there is no substance in this argument. If the act by which the grant was made was purely executive act on the part of the then Ruler of the State of Dhenkanal, we do not see how it can be legitimately urged that the terms of the grant cannot either be modified, or the grant cannot be cancelled altogether by an executive act of the respondent which is the successor of the Ruler. As we have just indicated, the customary law which required the Ruler to provide maintenance for his junior brother, can be said to have been continued by clause 4 (b) of the Order of 1948 and Art. 372 of the Constitution; but to say that the customary law in that behalf is continued is very different from saying that the amount of maintenance fixed by the grant cannot be varied or altered. What the respondent has done is to stop the payment of cash allowance of Rs. 500/- per month and that does not mean alteration of the law.It is common ground that the grant of the land covered by the Sanad has not been disturbed, and so, all that the impugned action of the respondent amounts to is to reduce the total maintenance allowance granted to the appellant by the Ruler in 1931. It is plain that though the customary law requiring provision to be made for the maintenance of the appellant is in force, the respondent has the right to determine what would be adequate and appropriate maintenance, and this part of the right is purely executive in character. It would, we think, be unreasonable to suggest that though the Sanad is not law, the amount granted by the Sanad cannot be modified by an executive act of the respondent, and that the respondent must file a suit for that purpose. All that the customary law requires is the making of a suitable provision for the maintenance of the junior members of the family. But what is adequate provision in that behalf will always be a question of fact which has to be determined in the light of several relevant factors; the number of persons entitled to receive maintenance, the requirements of the status of the members of the family, the total income derived by the family, and other commitments, may all have to be weighed in deciding the quantum of maintenance which should be awarded to anyone of the junior members. In fact, both the Courts below have agreed in holding that having regard to the relevant facts, the grant of the land made by the Sanad would be adequate and appropriate for the maintenance of the appellant.19. But apart form this aspect of the matter, we do not see how the appellant can seriously quarrel with the validity of the respondents action in discontinuing the payment of cash allowance to him. The plea that payment was made for some time after the merger can hardly avail the appellant in contending that the discontinuance is invalid. In the very nature of things, the respondent could not have decided whether the cash allowance should be continued to the appellant or not without examining the merits of the case, and since a large number of such cases had to be examined after merger, if the payment continued to be made in the meantime, that cannot give any valid ground to the appellant to challenge the legality of the ultimate decision of the respondent to discontinue the payment of the said allowance. ### Response: 0

Jagannath Agarwala Vs. State Of Orissa

(AIR 1960 SC 606 ); New Prakash Transport Co., Ltd. v. New Suwarna Transport Co., Ltd., 1957 SCR 98 : ( (S) AIR 1957 SC 232 ); Nagendra Nath Bora v. Commr, of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398 ) and Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, 1959 (Supp) 1 SCR 319 : (AIR 1959 SC 308). In reply, Mr. A. V. Viswanatha Sastri contended that the rejection of the claim was an act of State, and that the new Sovereign State could not be compelled by a process of the municipal courts to accept a liability of the old Ruler, and though the new Sovereign State might make such enquiry as it chose, it was not compelled to give a hearing to the claimant. In his rejoinder, Mr. Chatterjee contended that the act of State was over, when the new Sovereign State invited claims under a law passed for the purpose, and proceeded to consider the evidence tendered in support of the claim. He also contended that by the admission of the claim by the Claims Officer the act of State was over, and that any further consideration of the report had to comply with the rules of natural justice, laid down by this Court in the cases cited by him.9. What is an act of State and when it ceases to apply between a new Sovereign and the subjects of a State conquered, acquired or ceded to the new Sovereign, has been the subject of several decisions of this Court. In Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income-tax, 1959 SCR 729 : (AIR 1958 SC 816 ) and State of Saurashtra v. Memon Haji Ismail Haji, 1960-1 SCR 537 : (AIR 1959 SC 1383 ), it has been held that unless the new Sovereign, either expressly or impliedly, admits the claim, the municipal courts have no jurisdiction in the matter. The question to consider is whether such a stage had been reached in the enquiry which had been commenced. No doubt, the plea that this was a part of an act of State was not specifically raised before the High Court; but, as pointed out by the Judicial Committee in Vaje Singh Ji Joravar Singh v. Secretary of State, 51 Ind App. 357: (AIR1924 PC 216) no plea is really needed. It is clear from the Order, which was made under the Extra Provincial Jurisdiction Act, that claims were being asked to be entertained only for investigation and not for acceptance. It is the acceptance of the claim which would have bound the new SovereignState and the act of State would then have come to an end. But short of an acceptance, either express or implied, the time for the exercise of the Sovereign right to reject a claim was still open. In Vaje Singh Jis case, 51 Ind App 357: (AIR 1924 PC 216 ), enquiries were made by Captain Buckle and again in 1868, and the two enquiries lasted 16 years before the rejection of the claims, and the rejection was still upheld as an act of State. Vaje Singh Jis case, 51 Ind App 357: (AIR 1924 PC 216 ) has been relied upon by this Court in the two cases referred to, in the argument of Mr. A. V. Viswanatha Sastri. It would, therefore, appear that the act of State could not be said to have come to an end, when the Government allowed claims to be preferred, or when their own officer made his report. The Claims Officer was not a part of the municipal courts, and Government cannot be said to have submitted itself to the jurisdiction of the municipal courts, when it entrusted the enquiry to him. Nor can the investigation on claims be said to have conferred a civil right upon the claimants to enforce their claims against the State. In our opinion, the enquiry was for the benefit of the State and not for conferring rights upon likely claimants. It was always open to the Government to admit any claim, even though reported adversely by the Claims Officer, though such a contingency might have been very remote. Equally, therefore, the Government had the paramount right to reject a claim, which its Claims Officer considered good but on which the Government held a different opinions. In Short, till there was an acceptance by the Government or some officer of the Government, who could be said to bind the Government, the act of State was still open, and, in our opinion, it was so exercised in this case.10. Mr. Chatterjee contended that at least within the four corners of the Order, the appellant had a right to be heard, and that he did not have a proper hearing. If the Member, Board of Revenue, entertained some doubt about the claim being within time, he might have heard the party. That this was an enquiry mainly to ascertain whether a claim should or should not be recognised is obvious enough. It was in no sense a trial of any issue between the appellant and the Government. To judge such an action with the same rigour with which a judicial enquiry or trial is judged is to convert the enquiry into a civil suit. The appellant was fully heard by the Claims Officer, and the only question was whether the claim was within time. Even there, the Member, Board of Revenue, asked the appellant to submit all documents and arguments in support of his contention that the claim was within limitation, and to that extent, the appellant had his say. Whether the Member, Board of Revenue, should have gone further and given a viva voce hearing was a matter entirely for that Officer to choose, and there was nothing under the law to compel him. Though we think that such an opportunity might have been afforded to the appellant, we cannot say that this was a matter which entitled him to a writ.

0[ds]8. The first point was not argued before us, and it seems that the appellant has accepted the decision of the High Court that the Third Member was competent to hear and disposed of theseis clear from the Order, which was made under the Extra Provincial Jurisdiction Act, that claims were being asked to be entertained only for investigation and not for acceptance. It is the acceptance of the claim which would have bound the new SovereignState and the act of State would then have come to an end. But short of an acceptance, either express or implied, the time for the exercise of the Sovereign right to reject a claim was stillwould, therefore, appear that the act of State could not be said to have come to an end, when the Government allowed claims to be preferred, or when their own officer made his report. The Claims Officer was not a part of the municipal courts, and Government cannot be said to have submitted itself to the jurisdiction of the municipal courts, when it entrusted the enquiry to him. Nor can the investigation on claims be said to have conferred a civil right upon the claimants to enforce their claims against the State. In our opinion, the enquiry was for the benefit of the State and not for conferring rights upon likely claimants. It was always open to the Government to admit any claim, even though reported adversely by the Claims Officer, though such a contingency might have been very remote. Equally, therefore, the Government had the paramount right to reject a claim, which its Claims Officer considered good but on which the Government held a different opinions. In Short, till there was an acceptance by the Government or some officer of the Government, who could be said to bind the Government, the act of State was still open, and, in our opinion, it was so exercised in thisthe Member, Board of Revenue, entertained some doubt about the claim being within time, he might have heard the party. That this was an enquiry mainly to ascertain whether a claim should or should not be recognised is obvious enough. It was in no sense a trial of any issue between the appellant and the Government. To judge such an action with the same rigour with which a judicial enquiry or trial is judged is to convert the enquiry into a civil suit. The appellant was fully heard by the Claims Officer, and the only question was whether the claim was within time. Even there, the Member, Board of Revenue, asked the appellant to submit all documents and arguments in support of his contention that the claim was within limitation, and to that extent, the appellant had his say. Whether the Member, Board of Revenue, should have gone further and given a viva voce hearing was a matter entirely for that Officer to choose, and there was nothing under the law to compel him. Though we think that such an opportunity might have been afforded to the appellant, we cannot say that this was a matter which entitled him to a writ.

### 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: (AIR 1960 SC 606 ); New Prakash Transport Co., Ltd. v. New Suwarna Transport Co., Ltd., 1957 SCR 98 : ( (S) AIR 1957 SC 232 ); Nagendra Nath Bora v. Commr, of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398 ) and Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, 1959 (Supp) 1 SCR 319 : (AIR 1959 SC 308). In reply, Mr. A. V. Viswanatha Sastri contended that the rejection of the claim was an act of State, and that the new Sovereign State could not be compelled by a process of the municipal courts to accept a liability of the old Ruler, and though the new Sovereign State might make such enquiry as it chose, it was not compelled to give a hearing to the claimant. In his rejoinder, Mr. Chatterjee contended that the act of State was over, when the new Sovereign State invited claims under a law passed for the purpose, and proceeded to consider the evidence tendered in support of the claim. He also contended that by the admission of the claim by the Claims Officer the act of State was over, and that any further consideration of the report had to comply with the rules of natural justice, laid down by this Court in the cases cited by him.9. What is an act of State and when it ceases to apply between a new Sovereign and the subjects of a State conquered, acquired or ceded to the new Sovereign, has been the subject of several decisions of this Court. In Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income-tax, 1959 SCR 729 : (AIR 1958 SC 816 ) and State of Saurashtra v. Memon Haji Ismail Haji, 1960-1 SCR 537 : (AIR 1959 SC 1383 ), it has been held that unless the new Sovereign, either expressly or impliedly, admits the claim, the municipal courts have no jurisdiction in the matter. The question to consider is whether such a stage had been reached in the enquiry which had been commenced. No doubt, the plea that this was a part of an act of State was not specifically raised before the High Court; but, as pointed out by the Judicial Committee in Vaje Singh Ji Joravar Singh v. Secretary of State, 51 Ind App. 357: (AIR1924 PC 216) no plea is really needed. It is clear from the Order, which was made under the Extra Provincial Jurisdiction Act, that claims were being asked to be entertained only for investigation and not for acceptance. It is the acceptance of the claim which would have bound the new SovereignState and the act of State would then have come to an end. But short of an acceptance, either express or implied, the time for the exercise of the Sovereign right to reject a claim was still open. In Vaje Singh Jis case, 51 Ind App 357: (AIR 1924 PC 216 ), enquiries were made by Captain Buckle and again in 1868, and the two enquiries lasted 16 years before the rejection of the claims, and the rejection was still upheld as an act of State. Vaje Singh Jis case, 51 Ind App 357: (AIR 1924 PC 216 ) has been relied upon by this Court in the two cases referred to, in the argument of Mr. A. V. Viswanatha Sastri. It would, therefore, appear that the act of State could not be said to have come to an end, when the Government allowed claims to be preferred, or when their own officer made his report. The Claims Officer was not a part of the municipal courts, and Government cannot be said to have submitted itself to the jurisdiction of the municipal courts, when it entrusted the enquiry to him. Nor can the investigation on claims be said to have conferred a civil right upon the claimants to enforce their claims against the State. In our opinion, the enquiry was for the benefit of the State and not for conferring rights upon likely claimants. It was always open to the Government to admit any claim, even though reported adversely by the Claims Officer, though such a contingency might have been very remote. Equally, therefore, the Government had the paramount right to reject a claim, which its Claims Officer considered good but on which the Government held a different opinions. In Short, till there was an acceptance by the Government or some officer of the Government, who could be said to bind the Government, the act of State was still open, and, in our opinion, it was so exercised in this case.10. Mr. Chatterjee contended that at least within the four corners of the Order, the appellant had a right to be heard, and that he did not have a proper hearing. If the Member, Board of Revenue, entertained some doubt about the claim being within time, he might have heard the party. That this was an enquiry mainly to ascertain whether a claim should or should not be recognised is obvious enough. It was in no sense a trial of any issue between the appellant and the Government. To judge such an action with the same rigour with which a judicial enquiry or trial is judged is to convert the enquiry into a civil suit. The appellant was fully heard by the Claims Officer, and the only question was whether the claim was within time. Even there, the Member, Board of Revenue, asked the appellant to submit all documents and arguments in support of his contention that the claim was within limitation, and to that extent, the appellant had his say. Whether the Member, Board of Revenue, should have gone further and given a viva voce hearing was a matter entirely for that Officer to choose, and there was nothing under the law to compel him. Though we think that such an opportunity might have been afforded to the appellant, we cannot say that this was a matter which entitled him to a writ. ### Response: 0

Patel Gordhandas Hargovindas Vs. Municipal Commissioner, Ahmedabad

third method of valuation in force in England to which we have already referred. The amendment therefore made in 1930 in the Madras Act does not in any way affect the legislative history and practice relating to the word "rate" which, as we have pointed out was not even used in that Act. We may add that we express no opinion as to the validity of this amendment after the Government of India Act, 1935 and the Constitution of India have come into force.34. It is however urged that it really makes no difference whether the rate is levied at a percentage of the capital value or at a percentage of the annual value arrived at on the basis of capital value by fixing a certain percentage of the capital value as the yield for the year. It is true that mathematically it is possible to arrive at the same figure for the rate by either of these methods. Suppose that the capital value is Rs. 100/- and, as in this case, the rate is fixed at 1 per centum of the capital value, it would work out to Re. 1/-. The same figure can be arrived at by the other method. Assume that 4 percent is the annual yield and thus the annual value of the piece of land, the capital value of which is Rs. 100/-, will be Rs. 4/-. A rate levied at 25 per cent will give the same figure, namely, Re. 1/-. Mathematically, therefore it may be possible to arrive at the same amount of rate payable by an occupant of land, whether the rate is fixed at a particular percentage of the capital value or a particular percentage of the annual value. But this identity would not in our opinion make any difference to the invalidity of the method of fixing the rate on the capital value directly. If the law enjoins that the rate should be fixed on the annual value of lands and buildings, the municipality cannot fix it on the capital value, and then justify it on the ground that the same result could be arrived at by fixing a higher percentage as the rate in case it was fixed in the right way on the annual value. Further by fixing the rate as a percentage of the capital value directly, the real incidence of the levy is camouflaged. In the example which we have given above, the incidence appears as if it is only 1 per cent but in actual fact the incidence is 25 per cent of the annual value. Further if it is open to the municipality to fix the rate directly on the capital value at 1 per cent it will be equally open to it to fix it, say at 10 per cent, which would, taking again the same example, mean that the rate would be 250 per cent of the annual value, and this clearly brings out the camouflage. Now a rate as 10 per cent of the capital value may not appear extortionate but a rate at 250 per cent of the annual value would be impossible to sustain and might even be considered as confiscatory taxation. This shows the vice in the camouflage that results from imposing the rate at a percentage of the capital value and not at a percentage of the annual value as it should be. Lastly, municipal corporations are elected bodies and their members are answerable to their electorates. In such a case it is necessary that the incidence of the tax should be truly known. Taking the example which we have given above, the municipal councillors may not feel hesitant in imposing a rate at 1 per cent of the capital value, but if they were to impose it at 25% of the annual value they may hesitate to do so, because they have to face the electorates also. We are therefore of opinion that though mathematically it may be possible to arrive at the same figure of the actual tax to be paid as a rate whether based on capital value or based on annual value, the levying, of the rate as a percentage of capital value would still be illegal for the reason that the law provides that it should be levied on the annual value and not otherwise. By levying it otherwise directly at a percentage of the capital value, the real incidence of the rate is camouflaged, and the electorate not knowing the true incidence of the tax may possibly be subjected to such a heavy incidence as in some cases may amount to confiscatory taxation. We are therefore of opinion that fixing of the rate at a percentage of the capital value is not permitted by the Act and therefore R. 350-A read with R. 143 which permits this must be struck down, even though mathematically it may be possible to arrive at the same actual tax by varying percentages in the case of capital value and in the case of annual value. It follows therefore that as the tax in the present cases is levied directly as a percentage of the capital value it is ultra vires the Act and the assessment based in this manner must be struck down as ultra vires the Act.35. In the view that we have taken of the meaning of the word "rate" with the result that R. 350-A read with R. 243 has to be struck down as ultra vires the Act it is not necessary to consider the second question raised before us namely whether the explanation would be ultra vires the provincial Legislature because of item 55, List I of the Seventh Schedule to the Government of India Act, 1935 if it authorises the municipality to levy the rate at a percentage of the capital value. We have already said that is not the meaning of the words used in the explanation and the second point therefore does not fall to be considered.

1[ds]8. This history of the use of the word "rate" for purposes of local taxation in English Law clearly shows that the word "rate" was used with respect to a tax which was levied on the net annual value or rateable value of lands and buildings and not on their capital value. It would therefore not be wrong to say that in the legislative history and practice in England upto 1925, "rate" for the purpose of local taxation meant a tax on the annual value of lands and buildings liable to such taxation.It will thus be seen that all Indian statutes till 1911 dealing with municipal taxation impose a tax on the annual value of lands or buildings without always using the word "rate". In some of the statutes the word "rate" is used but the tax is again on the annual value.It will be clear further that in India upto the time the Act with which we are concerned was passed, the word "rate" had acquired the same meaning which it undoubtedly had in English legislative history and practice upto the year 1925, when the Rating and Valuation Act came to be passed consolidating the various rates prevalent in England. It would therefore be right to say that be word "rate" had acquired a special meaning in English legislative history and practice and also in Indian legislation where that word was used and it meant a tax for local purposes imposed by local authorities, and the basis of the tax was the annual value of the lands or buildings on or in connection with which it was imposed, arrived at in one of the three ways which we have already indicated. It seems to us therefore that when in 1925 S. 73 (1) of the Act while specifying taxes which could be imposed by a municipal borough used the word "rate" on buildings or lands situate within the municipal borough, the word "rate" must have been used in that particular meaning which it had acquired in the legislative history and practice both in England and India before that date. The matter might have been different if the words in cl. (i) of that section were "a tax on buildings or lands or both situate within the municipal borough", for then the words "tax" would have a wide meaning and would not be confined to any special meaning. But the use of the word "rate" in cl. (i) definitely means that it was that particular kind of tax which in legislative history and practice was known as a "rate" which the municipality could impose and not any other kind of tax. It is true that in the opening words of S. 73 (1) it is said that the municipality may impose any of the following taxes, which are thereafter specified in cls. (i) to (xiv). But when cl. (i) specifies the nature of the tax as a rate on buildings or lands or both we must find out what the word "rate" used therein means, for it could not be an accident that the word "rate" was used in that clause when dealing with a tax on lands or buildings. Further if we find that the word "rate" had acquired a special meaning in legislative history and practice in England and India before 1925 with reference to local taxation, it must follow that when the word "rate" was used in cl. (i) instead of the general word "tax" it was that particular kind of tax which was known in legislative history and practice as a rate which the municipalities were being empowered to impose. It may be added here with some advantage that the word "tax" in the opening words of S. 73 (1) has been used in a general and all pervasive sense as defined in S. 3 (20) of the Act and not in any restricted sense; and therefore when the word "rate" is used in cl. (i) it was clearly used not only in the specific and limited sense, but also with the intention, to convey the meaning that it had acquired by the time the Act was passed. It is remarkable that in some other clauses of S. 73 (1) also the General word "tax" has not been used, though of course all the imposts in cls. (i) to (xiv) are called taxes in the opening words of S. 73 (1) for obvious reason. In cl. (iii) the words used are "a toll on vehicles" which obviously mean that only that kind of tax which was known as toll which could be imposed on vehicles. In cl. (iv) the word used is "octroi" on animals or goods, implying thereby that kind of tax which was known as octroi could be imposed and not any kind of tax within the meaning of the general word "tax". Similarly in cl. (v) the words used are "a terminal tax on goods" meaning thereby that kind of tax which was known as terminal tax could be imposed. Therefore when the first clause of S. 73 (1) gives power to the municipality to impose a rate on buildings or lands it meant that kind of tax which had acquired a special meaning and was known as rate in the legislative history and practice of England as well as of India upto theb. That legislative history and practice we have considered and it shows that the word "rate" whenever used upto 1925 with reference to local taxation meant a tax on the annual value of lands and buildings and not a tax on the capitalhave already pointed out that in England also one basis of valuation for the purpose of rate was to find out first the capital value or the effective capital value. Then a certain percentage of the effective capital value was taken as the annual value and the tax was levied on the annual value so arrived at. In such a case though the tax was levied on the annual value the basis of valuation would still be capital. Therefore the fact that the explanation used the words "the basis of valuation may be capital" it does not mean that the tax would be at such and such percentage of the capital; it only means that in order to arrive at the annual value for purposes of levying rate which is a tax on the annual value, the municipality may use the capital value and then a percentage thereon to arrive at the annual value. This would be in accordance with the third way of arriving at annual value to which we have referred earlier. Therefore we are of opinion taking into account the fact that the word "rate" has been used in the first clause to S. 73 (1), the explanation when it says that in the case of lands basis of valuation may be capital, only means that method of valuation which was in vogue in England and which we have described as the third method of valuation may be used to arrive at the annual value from the capital value and the rate may then redetermined as a tax on the annual value. In this view of the matter R. 350-A read with R. 243 by which the municipality has fixed the tax on the basis of capital value directly is against the provisions of S. 73 (1) (i) and the explanation to S. 75.The whole difficulty in this case has arisen because unfortunately the words "rate" or "rateable value" havent been defined anywhere in the Act, though they have been defined in some other contemporaneous statutes in force at the time the Act was passed and to which we have alreadywhen the explanation uses these words it must in our opinion be held to refer to that well known method of valuation prevailing in England with respect to levy of rates and cannot be read to mean a percentage of the capital value itself. At any rate there are no express words in the explanation to that effect and therefore it should be read to mean the third method of valuation in force in England to which we have already referred. The amendment therefore made in 1930 in the Madras Act does not in any way affect the legislative history and practice relating to the word "rate" which, as we have pointed out was not even used in that Act. We may add that we express no opinion as to the validity of this amendment afterthe Government of India Act, 1935 and the Constitution of India have come intoare therefore of opinion that fixing of the rate at a percentage of the capital value is not permitted by the Act and therefore R. 350-A read with R. 143 which permits this must be struck down, even though mathematically it may be possible to arrive at the same actual tax by varying percentages in the case of capital value and in the case of annual value. It follows therefore that as the tax in the present cases is levied directly as a percentage of the capital value it is ultra vires the Act and the assessment based in this manner must be struck down as ultra vires the Act.35. In the view that we have taken of the meaning of the word "rate" with the result that R. 350-A read with R. 243 has to be struck down as ultra vires the Act it is not necessary to consider the second question raised before us namely whether the explanation would be ultra vires the provincial Legislature because of item 55, List I of the Seventh Schedule tothe Government of India Act, 1935 if it authorises the municipality to levy the rate at a percentage of the capital value. We have already said that is not the meaning of the words used in the explanation and the second point therefore does not fall to befeel no doubt that the question must be answered in the negative. The importance of the distinction between the levy of a tax and the machinery of its collection has often been pointed out by judicial pronouncements of the highest authority. One of the more recent of these is R. C. Jall v. Union of India, AIR 1962 SC 1281 . I suppose the machinery of collection would include the measure of the tax; in any case, I think they are on a par. The subject-matter of taxation is obviously something other than the measure provided for the quantification of the tax.

### 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: third method of valuation in force in England to which we have already referred. The amendment therefore made in 1930 in the Madras Act does not in any way affect the legislative history and practice relating to the word "rate" which, as we have pointed out was not even used in that Act. We may add that we express no opinion as to the validity of this amendment after the Government of India Act, 1935 and the Constitution of India have come into force.34. It is however urged that it really makes no difference whether the rate is levied at a percentage of the capital value or at a percentage of the annual value arrived at on the basis of capital value by fixing a certain percentage of the capital value as the yield for the year. It is true that mathematically it is possible to arrive at the same figure for the rate by either of these methods. Suppose that the capital value is Rs. 100/- and, as in this case, the rate is fixed at 1 per centum of the capital value, it would work out to Re. 1/-. The same figure can be arrived at by the other method. Assume that 4 percent is the annual yield and thus the annual value of the piece of land, the capital value of which is Rs. 100/-, will be Rs. 4/-. A rate levied at 25 per cent will give the same figure, namely, Re. 1/-. Mathematically, therefore it may be possible to arrive at the same amount of rate payable by an occupant of land, whether the rate is fixed at a particular percentage of the capital value or a particular percentage of the annual value. But this identity would not in our opinion make any difference to the invalidity of the method of fixing the rate on the capital value directly. If the law enjoins that the rate should be fixed on the annual value of lands and buildings, the municipality cannot fix it on the capital value, and then justify it on the ground that the same result could be arrived at by fixing a higher percentage as the rate in case it was fixed in the right way on the annual value. Further by fixing the rate as a percentage of the capital value directly, the real incidence of the levy is camouflaged. In the example which we have given above, the incidence appears as if it is only 1 per cent but in actual fact the incidence is 25 per cent of the annual value. Further if it is open to the municipality to fix the rate directly on the capital value at 1 per cent it will be equally open to it to fix it, say at 10 per cent, which would, taking again the same example, mean that the rate would be 250 per cent of the annual value, and this clearly brings out the camouflage. Now a rate as 10 per cent of the capital value may not appear extortionate but a rate at 250 per cent of the annual value would be impossible to sustain and might even be considered as confiscatory taxation. This shows the vice in the camouflage that results from imposing the rate at a percentage of the capital value and not at a percentage of the annual value as it should be. Lastly, municipal corporations are elected bodies and their members are answerable to their electorates. In such a case it is necessary that the incidence of the tax should be truly known. Taking the example which we have given above, the municipal councillors may not feel hesitant in imposing a rate at 1 per cent of the capital value, but if they were to impose it at 25% of the annual value they may hesitate to do so, because they have to face the electorates also. We are therefore of opinion that though mathematically it may be possible to arrive at the same figure of the actual tax to be paid as a rate whether based on capital value or based on annual value, the levying, of the rate as a percentage of capital value would still be illegal for the reason that the law provides that it should be levied on the annual value and not otherwise. By levying it otherwise directly at a percentage of the capital value, the real incidence of the rate is camouflaged, and the electorate not knowing the true incidence of the tax may possibly be subjected to such a heavy incidence as in some cases may amount to confiscatory taxation. We are therefore of opinion that fixing of the rate at a percentage of the capital value is not permitted by the Act and therefore R. 350-A read with R. 143 which permits this must be struck down, even though mathematically it may be possible to arrive at the same actual tax by varying percentages in the case of capital value and in the case of annual value. It follows therefore that as the tax in the present cases is levied directly as a percentage of the capital value it is ultra vires the Act and the assessment based in this manner must be struck down as ultra vires the Act.35. In the view that we have taken of the meaning of the word "rate" with the result that R. 350-A read with R. 243 has to be struck down as ultra vires the Act it is not necessary to consider the second question raised before us namely whether the explanation would be ultra vires the provincial Legislature because of item 55, List I of the Seventh Schedule to the Government of India Act, 1935 if it authorises the municipality to levy the rate at a percentage of the capital value. We have already said that is not the meaning of the words used in the explanation and the second point therefore does not fall to be considered. ### Response: 1

Krantikari Suraksha Rakshak Sanghatana Vs. S. V. Naik

further submitted that the respondent No. 2-company had not registered itself with the Security Guards Boards for Greater bombay and Thane Districts under the Maharashtra Private Security Guards (Regulation of employment and Welfare) Act, 1981 and in the circumstances, the said concerned workmen must be considered to be direct and regular employees of respondent No. 2-company. It was further contended that in any event, there was disparity in the service conditions of regular security guards vis-a-vis the 29 security guards employed through respondent No. 3 and, therefore, there was a violation of the provisions of the Security Guards Act, 1981.(b) To the said complaint, the respondent No. 2-company filed their say. The second respondents, by their written statement, stated that at no point of time, there was employer and employee relationship and that the respondent No. 2-company had no supervision or control over the security guards who were employed by respondent No. 3-agency with whom respondent No. 2-company had entered into a contract on April 10, 1980 and in the circumstances, it was submitted that respondent No. 2-company was not guilty of unfair labour practices as alleged. It was further submitted that respondent No. 2-company was registered under the Contract Labour act, 1971 and it was pursuant to the said registration that the above contract dated April 10, 1980 was entered into with respondent No. 3-agency and, therefore, there was no violation of the contract Labour Act Respondent No. 2-company also denied that they had violated the provisions of the Security Guards Act, 1981. (c) On the basis of the above pleadings, the Industrial Court by its impugned order dated september 1, 1989 came to the conclusion that the said 29 security guards were the employees of respondent No. 3-agency; that respondent No. 2-company was, therefore, not guilty of unfair labour practices as alleged; that there was no violation of the provisions of the Contract Labour act, 1971 as the concerned employees were employed through the agency and as regards violation of Security Guards Act, 1981, the complaint was not maintainable under the ULP Act. 1971. Against the said order dated September 1, 1989 the present appellants who claim to be a representative. Union of the security guards on the footing that the earlier Sanghatana did not represent the majority of the security guards, filed the above Writ Petition No. 2523 of 1989 which was summarily rejected on November 6, 1989. Against the said order, the present appeal has been filed. ( 3 ) MR. Singhavi, the learned Counsel, appearing on behalf of the appellants submitted that respondent No. 2-company was the real employer as the said company had entered into an agreement with respondent No. 3-agency only as a subterfuge and that the real relationship of the security guards in question was with respondent No. 2-company and not with the agency. In this connection, Mr. Singhavi relied upon the fact that the respondent No. 3-agency had not obtained a licence under the Contract Labour Act, 1971 and in the circumstances, the said security guards were direct employees of respondent No. 2-company. Mr. Singhavi also submitted that in any event, there was violation of the provisions of the Security Guards Act, 1981 in as much as there was disparity between the service conditions of the said security guards employed by respondent no. 2-company. Mr. Singhavi accordingly submitted that provisions of item No. 5 and item No. 9 of Schedule IV to the said Act, 1971 would squarely apply.( 4 ) THERE is no merit in the said contention of Mr. Singhavi on behalf of the appellants Schedule iv to the said Act, 1971 deals with unfair labour practices on the part of the employers. Item No. 5 of the said Schedule deals with the situation where employer shows partiality to one set of workers against the other set of workers regardless of merits whereas item No. 9 deals with the employer failing to implement award, settlement or agreement with his workers. The entire argument on behalf of the appellants proceeds on the basis that the relationship of employer and employee existed between the appellants on the one hand and respondent No. 2-company on the other hand. We cannot agree with the said submission in view of the fact that such a relationship between employer and employee cannot be presumed. Further, the Industrial Court under the ulp Act, 1971 has no jurisdiction to abolish the contract system and treat the above mentioned security as direct employees of respondent No. 2. Respondent No. 2 in their written statement categorically denied the relationship of employer and employee between the appellants and respondent No. 2. In the circumstance, the ULP Court had no jurisdiction to proceed on a presumption and come to the conclusion that respondent No. 2 was guilty of unfair labour practices. The complaint proceeds principally on the footing that as respondent No. 3-agency had no obtained a licence under the Contract Labour Act, the said security guards automatically became workmen of respondent No. 2. The facts mentioned in the complaint clearly proceeds on the presumption of relationship of employer and employee, which the Industrial Court found do not exist. In the absence of any adjudication, it is not open to the ULP Court to abolish the contract system and treat the security guards as direct employees of respondent No. 2-company. In the circumstances, the Industrial Court rightly dismissed the complaint filed under the ULP act, 1971. As regards the breach of provisions of the Security Guards Act, 1981 was a complete code and if there was any alleged breach, it was open to the appellants to move the Security guards Board under the said Act, 1981. In the circumstances, we do not find any merit in this appeal and the same stands dismissed. However, it is made clear that the appellants are entitled to move the appropriate competent Court/authority for the purpose of adjudication of their rights and the dismissal of this Appeal will no preclude the appellants from such adjudication.

0[ds]( 4 ) THERE is no merit in the said contention of Mr. Singhavi on behalf of the appellants Schedule iv to the said Act, 1971 deals with unfair labour practices on the part of the employers. Item No. 5 of the said Schedule deals with the situation where employer shows partiality to one set of workers against the other set of workers regardless of merits whereas item No. 9 deals with the employer failing to implement award, settlement or agreement with his workers. The entire argument on behalf of the appellants proceeds on the basis that the relationship of employer and employee existed between the appellants on the one hand and respondent No.on the other hand. We cannot agree with the said submission in view of the fact that such a relationship between employer and employee cannot be presumed. Further, the Industrial Court under the ulp Act, 1971 has no jurisdiction to abolish the contract system and treat the above mentioned security as direct employees of respondent No. 2. Respondent No. 2 in their written statement categorically denied the relationship of employer and employee between the appellants and respondent No. 2. In the circumstance, the ULP Court had no jurisdiction to proceed on a presumption and come to the conclusionthat respondent No.2 was guilty of unfair labour practices. The complaint proceeds principally on the footing that as respondent No.had no obtained a licence under the Contract Labour Act, the said security guards automatically became workmen of respondent No. 2. The facts mentioned in the complaint clearly proceeds on the presumption of relationship of employer and employee, which the Industrial Court found do not exist. In the absence of any adjudication, it is not open to the ULP Court to abolish the contract system and treat the security guards as direct employees of respondent No.In the circumstances, the Industrial Court rightly dismissed the complaint filed under the ULP act, 1971. As regards the breach of provisions of the Security Guards Act, 1981 was a complete code and if there was any alleged breach, it was open to the appellants to move the Security guards Board under the said Act, 1981. In the circumstances, we do not find any merit in this appeal and the same stands dismissed. However, it is made clear that the appellants are entitled to move the appropriate competent Court/authority for the purpose of adjudication of their rights and the dismissal of this Appeal will no preclude the appellants from such adjudication.

### 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: further submitted that the respondent No. 2-company had not registered itself with the Security Guards Boards for Greater bombay and Thane Districts under the Maharashtra Private Security Guards (Regulation of employment and Welfare) Act, 1981 and in the circumstances, the said concerned workmen must be considered to be direct and regular employees of respondent No. 2-company. It was further contended that in any event, there was disparity in the service conditions of regular security guards vis-a-vis the 29 security guards employed through respondent No. 3 and, therefore, there was a violation of the provisions of the Security Guards Act, 1981.(b) To the said complaint, the respondent No. 2-company filed their say. The second respondents, by their written statement, stated that at no point of time, there was employer and employee relationship and that the respondent No. 2-company had no supervision or control over the security guards who were employed by respondent No. 3-agency with whom respondent No. 2-company had entered into a contract on April 10, 1980 and in the circumstances, it was submitted that respondent No. 2-company was not guilty of unfair labour practices as alleged. It was further submitted that respondent No. 2-company was registered under the Contract Labour act, 1971 and it was pursuant to the said registration that the above contract dated April 10, 1980 was entered into with respondent No. 3-agency and, therefore, there was no violation of the contract Labour Act Respondent No. 2-company also denied that they had violated the provisions of the Security Guards Act, 1981. (c) On the basis of the above pleadings, the Industrial Court by its impugned order dated september 1, 1989 came to the conclusion that the said 29 security guards were the employees of respondent No. 3-agency; that respondent No. 2-company was, therefore, not guilty of unfair labour practices as alleged; that there was no violation of the provisions of the Contract Labour act, 1971 as the concerned employees were employed through the agency and as regards violation of Security Guards Act, 1981, the complaint was not maintainable under the ULP Act. 1971. Against the said order dated September 1, 1989 the present appellants who claim to be a representative. Union of the security guards on the footing that the earlier Sanghatana did not represent the majority of the security guards, filed the above Writ Petition No. 2523 of 1989 which was summarily rejected on November 6, 1989. Against the said order, the present appeal has been filed. ( 3 ) MR. Singhavi, the learned Counsel, appearing on behalf of the appellants submitted that respondent No. 2-company was the real employer as the said company had entered into an agreement with respondent No. 3-agency only as a subterfuge and that the real relationship of the security guards in question was with respondent No. 2-company and not with the agency. In this connection, Mr. Singhavi relied upon the fact that the respondent No. 3-agency had not obtained a licence under the Contract Labour Act, 1971 and in the circumstances, the said security guards were direct employees of respondent No. 2-company. Mr. Singhavi also submitted that in any event, there was violation of the provisions of the Security Guards Act, 1981 in as much as there was disparity between the service conditions of the said security guards employed by respondent no. 2-company. Mr. Singhavi accordingly submitted that provisions of item No. 5 and item No. 9 of Schedule IV to the said Act, 1971 would squarely apply.( 4 ) THERE is no merit in the said contention of Mr. Singhavi on behalf of the appellants Schedule iv to the said Act, 1971 deals with unfair labour practices on the part of the employers. Item No. 5 of the said Schedule deals with the situation where employer shows partiality to one set of workers against the other set of workers regardless of merits whereas item No. 9 deals with the employer failing to implement award, settlement or agreement with his workers. The entire argument on behalf of the appellants proceeds on the basis that the relationship of employer and employee existed between the appellants on the one hand and respondent No. 2-company on the other hand. We cannot agree with the said submission in view of the fact that such a relationship between employer and employee cannot be presumed. Further, the Industrial Court under the ulp Act, 1971 has no jurisdiction to abolish the contract system and treat the above mentioned security as direct employees of respondent No. 2. Respondent No. 2 in their written statement categorically denied the relationship of employer and employee between the appellants and respondent No. 2. In the circumstance, the ULP Court had no jurisdiction to proceed on a presumption and come to the conclusion that respondent No. 2 was guilty of unfair labour practices. The complaint proceeds principally on the footing that as respondent No. 3-agency had no obtained a licence under the Contract Labour Act, the said security guards automatically became workmen of respondent No. 2. The facts mentioned in the complaint clearly proceeds on the presumption of relationship of employer and employee, which the Industrial Court found do not exist. In the absence of any adjudication, it is not open to the ULP Court to abolish the contract system and treat the security guards as direct employees of respondent No. 2-company. In the circumstances, the Industrial Court rightly dismissed the complaint filed under the ULP act, 1971. As regards the breach of provisions of the Security Guards Act, 1981 was a complete code and if there was any alleged breach, it was open to the appellants to move the Security guards Board under the said Act, 1981. In the circumstances, we do not find any merit in this appeal and the same stands dismissed. However, it is made clear that the appellants are entitled to move the appropriate competent Court/authority for the purpose of adjudication of their rights and the dismissal of this Appeal will no preclude the appellants from such adjudication. ### Response: 0

Parminder Singh Vs. Gurpreet Singh

agreed to sell his share of 55/118 of the entire land to the respondent for a total sale consideration of L5 lakhs. The agreement, inter alia, recited that out of L5 lakhs, the respondent has paid L4 lakhs in cash at the time of execution of agreement (02.07.1995) to the respondent and has agreed to pay the balanced amount to the appellant at the time of registration of the sale deed. It was agreed that the sale deed would be executed on or before 13.12.1995. 5. Since the appellant did not execute the sale deed in favour of the respondent in terms of the agreement, the respondent filed a civil suit against the appellant seeking specific performance of the agreement dated 02.07.1995 in relation to the suit land. The plaint, inter alia, contained necessary averments as required under Section 16(c) of the Specific Relief Act, 1963 for claiming specific performance of the agreement in question. 6. The appellant while denying the averments mainly averred that, (i) the agreement in question is a forged document; (ii) he had only signed on blank paper on request from the respondent; (iii) he never intended to sell the land to the respondent; (iv) his signature was taken by the respondent on blank paper for being used in one pending litigation in which both were parties; and (v) since the appellant at that time was staying away from the respondent for pursuing his studies, he sent the blank paper, which was converted by the respondent in the form of an agreement in question without his knowledge. In substance, this was the defense taken by the appellant while opposing the suit. 7. Parties adduced evidence. The Trial Court, vide judgment/decree dated 12.08.2003 decreed the respondents suit. It was held that, (i) the agreement in question is real and genuine; (ii) it bears the signature of appellant; (iii) the appellant did not execute the sale deed in terms of agreement; (iv) the respondent was ready and willing to perform his part of the agreement; (v) he also performed his part; and (vi) the appellant breached the agreement and did not execute the sale deed in terms of agreement. 8. The appellant (defendant) filed first appeal before the Additional District Judge, Amritsar being C.A. No.FTC/10 of 2003/2006. The first appellate Judge, vide his judgment dated 21.03.2007, affirmed all the findings of the Trial Court and dismissed the appellants appeal. 9. The appellant pursued the matter to the High Court in Second Appeal. The High Court, by impugned judgment dated 30.07.2007, dismissed the second appeal and affirmed the judgment/decree of the first Appellate Court. 10. The appellant, felt aggrieved of the judgment of the High Court, preferred this appeal by way of special leave to this Court. 11. Heard Mr. V.K. Jhanji, learned senior counsel for the appellant and Mr. Sudeep Mahajan, learned counsel for the respondent. 12. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal. 13. Here is a case where all the three Courts, namely, Trial Court, first Appellate Court and the High Court concurrently held in favour of the respondent (plaintiff) and accordingly decreed his civil suit. In other words, all the three Courts, on appreciating the evidence in their respective jurisdiction and discretion, held that the defense taken by the appellant (defendant) was not proved. On the other hand, it was held that the respondent was able to prove that the agreement was real, bona fide and genuine and was thus capable of enforcement. Indeed, we find that the Courts below recorded this categorical finding of fact saying that the genuineness of the agreement was even admitted by the defendants witnesses. The Courts below also recorded a finding that the respondent was ready and willing to perform his part of the agreement and, in fact, performed his part of the agreement whereas the appellant failed to perform his part of the agreement and thereby committed its breach. 14. In our considered opinion, the findings recorded by the three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal. 15. It is more so when these findings were neither found to be perverse to the extent that no judicial person could ever record such findings nor these findings were found to be against the evidence, nor against the pleadings and lastly, nor against any provision of law. 16. In our considered opinion, the question as to whether specific performance of an agreement should be granted or not is essentially in the discretion of the Court. Indeed Section 20 of the Specific Relief Act says so in no uncertain terms. 17. Therefore, once the Trial Court, first and second Appellate Court formed an opinion and decided to grant the specific performance of the agreement to the plaintiff in exercise of their respective discretionary powers, this Court being the last Court in hierarchy cannot disturb such concurrent findings while exercising power under Article 136 of the Constitution of India. As mentioned above, these findings are binding on this Court. 18. Learned counsel for the appellant, no doubt, made sincere attempt to urge that the agreement in question is a forged document which, according to him, is apparent on its mere perusal. Learned counsel also urged that all the three Courts committed an error in granting specific performance of such agreement to the respondent. 19. We are afraid that we can accept this submission in the light of what we have held supra. Indeed this very argument was considered and repelled by the three Courts after appreciating the evidence adduced by the parties. It is, therefore, not permissible for this Court to again appreciate the evidence in appeal and reverse any of the findings.

0[ds]14. In our considered opinion, the findings recorded by the three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal15. It is more so when these findings were neither found to be perverse to the extent that no judicial person could ever record such findings nor these findings were found to be against the evidence, nor against the pleadings and lastly, nor against any provision of law16. In our considered opinion, the question as to whether specific performance of an agreement should be granted or not is essentially in the discretion of the Court. Indeed Section 20 of the Specific Relief Act says so in no uncertain terms18. Learned counsel for the appellant, no doubt, made sincere attempt to urge that the agreement in question is a forged document which, according to him, is apparent on its mere perusal. Learned counsel also urged that all the three Courts committed an error in granting specific performance of such agreement to the respondent19. We are afraid that we can accept this submission in the light of what we have held supra. Indeed this very argument was considered and repelled by the three Courts after appreciating the evidence adduced by the parties. It is, therefore, not permissible for this Court to again appreciate the evidence in appeal and reverse any of the findings.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: agreed to sell his share of 55/118 of the entire land to the respondent for a total sale consideration of L5 lakhs. The agreement, inter alia, recited that out of L5 lakhs, the respondent has paid L4 lakhs in cash at the time of execution of agreement (02.07.1995) to the respondent and has agreed to pay the balanced amount to the appellant at the time of registration of the sale deed. It was agreed that the sale deed would be executed on or before 13.12.1995. 5. Since the appellant did not execute the sale deed in favour of the respondent in terms of the agreement, the respondent filed a civil suit against the appellant seeking specific performance of the agreement dated 02.07.1995 in relation to the suit land. The plaint, inter alia, contained necessary averments as required under Section 16(c) of the Specific Relief Act, 1963 for claiming specific performance of the agreement in question. 6. The appellant while denying the averments mainly averred that, (i) the agreement in question is a forged document; (ii) he had only signed on blank paper on request from the respondent; (iii) he never intended to sell the land to the respondent; (iv) his signature was taken by the respondent on blank paper for being used in one pending litigation in which both were parties; and (v) since the appellant at that time was staying away from the respondent for pursuing his studies, he sent the blank paper, which was converted by the respondent in the form of an agreement in question without his knowledge. In substance, this was the defense taken by the appellant while opposing the suit. 7. Parties adduced evidence. The Trial Court, vide judgment/decree dated 12.08.2003 decreed the respondents suit. It was held that, (i) the agreement in question is real and genuine; (ii) it bears the signature of appellant; (iii) the appellant did not execute the sale deed in terms of agreement; (iv) the respondent was ready and willing to perform his part of the agreement; (v) he also performed his part; and (vi) the appellant breached the agreement and did not execute the sale deed in terms of agreement. 8. The appellant (defendant) filed first appeal before the Additional District Judge, Amritsar being C.A. No.FTC/10 of 2003/2006. The first appellate Judge, vide his judgment dated 21.03.2007, affirmed all the findings of the Trial Court and dismissed the appellants appeal. 9. The appellant pursued the matter to the High Court in Second Appeal. The High Court, by impugned judgment dated 30.07.2007, dismissed the second appeal and affirmed the judgment/decree of the first Appellate Court. 10. The appellant, felt aggrieved of the judgment of the High Court, preferred this appeal by way of special leave to this Court. 11. Heard Mr. V.K. Jhanji, learned senior counsel for the appellant and Mr. Sudeep Mahajan, learned counsel for the respondent. 12. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal. 13. Here is a case where all the three Courts, namely, Trial Court, first Appellate Court and the High Court concurrently held in favour of the respondent (plaintiff) and accordingly decreed his civil suit. In other words, all the three Courts, on appreciating the evidence in their respective jurisdiction and discretion, held that the defense taken by the appellant (defendant) was not proved. On the other hand, it was held that the respondent was able to prove that the agreement was real, bona fide and genuine and was thus capable of enforcement. Indeed, we find that the Courts below recorded this categorical finding of fact saying that the genuineness of the agreement was even admitted by the defendants witnesses. The Courts below also recorded a finding that the respondent was ready and willing to perform his part of the agreement and, in fact, performed his part of the agreement whereas the appellant failed to perform his part of the agreement and thereby committed its breach. 14. In our considered opinion, the findings recorded by the three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal. 15. It is more so when these findings were neither found to be perverse to the extent that no judicial person could ever record such findings nor these findings were found to be against the evidence, nor against the pleadings and lastly, nor against any provision of law. 16. In our considered opinion, the question as to whether specific performance of an agreement should be granted or not is essentially in the discretion of the Court. Indeed Section 20 of the Specific Relief Act says so in no uncertain terms. 17. Therefore, once the Trial Court, first and second Appellate Court formed an opinion and decided to grant the specific performance of the agreement to the plaintiff in exercise of their respective discretionary powers, this Court being the last Court in hierarchy cannot disturb such concurrent findings while exercising power under Article 136 of the Constitution of India. As mentioned above, these findings are binding on this Court. 18. Learned counsel for the appellant, no doubt, made sincere attempt to urge that the agreement in question is a forged document which, according to him, is apparent on its mere perusal. Learned counsel also urged that all the three Courts committed an error in granting specific performance of such agreement to the respondent. 19. We are afraid that we can accept this submission in the light of what we have held supra. Indeed this very argument was considered and repelled by the three Courts after appreciating the evidence adduced by the parties. It is, therefore, not permissible for this Court to again appreciate the evidence in appeal and reverse any of the findings. ### Response: 0

Vinita Dattatraya Samant Vs. Commissioner of Police, Thane & Others

furnished to the detenu was marked as Exhibit No. 48. On a perusal of this exhibit it is noticed that an innocuous incident had occurred in the canteen involving the canteen manager and the said Naik. It appears that the said Naik tried to steel some tomatoes from the canteen. The canteen manager apprehended him and questioned him. The Security Officer had also intervened in the quarrel between the two. This incident is totally unconnected with the pattern sought to be established by the Detaining Authority and further it is an incident which has no nexus with the detenu.32. The next incident is incident No. (iii) to Ground No. 5 involving the same company i.e. Voltas Ltd. In this it is stated that on 25-5-1981 your followers abused and threatened Sunder Badrinath Yadav, a supervisor of the factory who lodged his N.C. complaint. The N.C. complaint has been marked as Exh. No. 50. This also is an incident which is so innocuous that it cannot be stated that it had any connection with the pattern of tactics of infiltration and recognition of a union within a factory. As in the previous incident, this incident is also a stray incident of abuse and threats given by one worker to a supervision or a canteen manager of the factory.33. The above instances would go to show that there are certain incidents mentioned in the grounds which are totally unconnected with the general pattern sought to be established in the grounds by the Detaining Authority.At this stage it will be pertinent to cite the observations of the Supreme Court in the case of (Anil Dev v. State of West Bengal)25, reported in A.I.R. 1974 S.C. 832, wherein the learned Judge were pleased to lay down :---"Of course, the veil of subjective satisfaction of the Detaining Authority cannot be lifted by the courts with a view to appreciate its objective sufficiency. Nevertheless, the opinion of the officer must be honest and real, and not so fanciful or imaginary that on the facts alleged no rational individual will entertain the opinion necessary to justify detention. So also if the grounds relied on have nothing to do with the prejudicial purposes stipulated in the statute, no nexus exists and the order is bad. Even if the incident attributed to the detenu has some connection with the obnoxious activities, it should not be too trivial in substance nor too stale in point of time as to snap the rational link that must exist between the vicious episode and the prejudicial activity sought to be interdicted."On a perusal of the various incidents stated above, the conclusion is evitable that several of the incidents are completely vague and no nexus has been established as between the detenu and the activities complained of or the perpetrators thereof. There are several incidents which are totally unconnected with the pattern which has been formulated in the grounds i.e. of detenus attempt to infilterate his union in several industrial establishments.35. At the end of the grounds, the Detaining Authority has annexed an epilogue which is the genesis of the pattern of behaviour indulged in by the detenu. In this paragraph (which has not been numbered) it is stated :---"From the above narrative of events that have followed your entry into 18 industrial units in the limits of the Thane Police Commissioner it is abundantly clear that there is a definite pattern in your tactics which disturb public order. Every time you attempted to dislodged the recognised union, you do so by openly flouting the labour laws and demanding direct and immediate recognition from the management. To that end you encouraged your followers to indulge in violent and lawless activities like threats, assaults, rioting, damage to persons and property and even murder ......... The extent of violence is such and the forms it has taken so alarming and the area covered so vast and the population affected so great that public order has inevitably been disturbed by the frequent and repeated cases of assault and intimation by your associates with your active support and encouragement".36. On a perusal of the various grounds and the incidents annexed thereto, it is difficult to find any material or basis on which the Detaining Authority could have come to the conclusion that it was the detenu who had encouraged his followers or could have given active support in their violent and criminal activities. I am, therefore, of the view the grounds 1, 2, 3, 4, 7, 8, 9, 12 and 17 are totally irrelevant and bear no connection with the detenu. To that extent they vitiate the order of detention. The incidents mentioned in grounds 2, 5 and 8 are stray incidents which have no connection whatsoever with the pattern sought to be established in the grounds by the Detaining Authority. This also would vitiate the order of detention.37. In view of the fact that I have come to the conclusion that the grounds are vitiated by the vices of irrelevance and vagueness, I do not think it necessary to deal with the third ground relating to the Press Conference in which the Chief Minister is alleged to have made certain observations in respect of the detenu, thereby breaching his representation.38. Finally it needs to be stated that we are all-too-aware that as a consequence of our decision we shall be unleashing upon an unsuspecting populace a person who, we are informed, has come to pose a serious threat to the industrial peace of this city and the State. That indeed is unfortunate. But, hard cases cannot be permitted to make bad laws. We can do no better than to repeat in ringing tones the never-to-be-forgotten words of Justice Frank further, "The history of personal liberty is largely the history of insistance on observance of procedure. And observance of procedure has been the bastian against want on assaults on personal liberty over the years". Meticulous adherence of procedure established by law is the only safeguard of personal freedom.

1[ds]Now in the three incidents cited above, the Detaining Authority disclosed in no uncertain terms that he was not in a position to furnish the names of the workers who had assaulted the company employees. In these circumstances, I fail to understand what purpose would have been served and the detenu asked for any particulars from the Detaining Authority. It is, therefore, futile to contend that the ground which is vague in the first instance could have gained any precision or definiteness had the detenu asked for further particulars from the Detaining Authority. I am, therefore, not impressed with this submission of the learned Advocate General and in respect of these three incidents in ground No. 1, I hold that these grounds are irrelevant and no nexus has been established between the detenu and the assailants or the acts complained of. To that extent, these grounds would also be vague. 18. I shall now refer to ground No. 1 incident No. (x). In this instance, it is alleged that onthe detenu held a meeting of 500 workers at the companys gate. The detenu addressed the meeting for a few minutes and then left abruptly. After his departure, his close assistants T.S. Boarde, General Secretary of the detenus union, Shri Mungekar, Joint Secretary, S.K. Shaikh, Chabukswar, Ram Avatar Singh and others addressed the workers and instigated them to commit offences like assaults and rioting in order to create an atmosphere of terror so that the management of Wellman as also other managements would come round and settle the matters with the detenu. On the next day an offence was registered against T.S. Borade and seven others at Kapurbawdi Police Station. The report of this meeting has been furnished as Ex. No. 14. On a perusal of this document it is clear that the instigation to commit offences or to create an atmosphere of terror was not induced by the detenu himself but by his colleagues of collaborators. In the ground itself it is mentioned that the detenu left the place after addressing the meeting only for a few minutes. Can, therefore, the detenu be held responsible for the speeches made by his colleagues This ground, therefore, also lacks any nexus as far as the detenu is concerned. 19. The next ground is ground No. 1 incident No. (xvii). In this ground it was alleged that from the incidents in Wellman (Hindustan) Pvt. Ltd. it became clear that the detenu had encouraged violence which had alarmed not only the loyal workers, the management staff and other workers and managements in the area of Kolshet Road but also the law abiding public on the public roads and those using public transport; thus posing a threat to public order. Now from the 17 incidents which have been appended to ground No. 1, it would be difficult to find any material from which one could conclude that it was the detenu who had encouraged violence amongst the workers. There appears to be no basis or no material whatever on which the Detaining Authority could have come to this conclusion. I must, therefore, conclude that the conclusion arrived at by the Detaining Authority is a conclusion which no reasonable person could have arrived at. 20. Ground No. 2 concerns as industry known as Rubber Products Pvt. Ltd. In the preamble to this ground it has been stated that in August 1980 the detenu tried to infiltrate his union and have it recognised by the management of this concern. Since the union was not recognised, it is alleged that the detenu instigated his followers to use unfair labour practices such as go slow which began fromHere again there appears no basis for arriving at this conclusion that it was the detenu who instigated the workers to follow a go slow policy. But what is more surprising is that in incident No. (i) which is appended to this ground it has been stated that ona bus taking the loyal workers of the said company proceeding to the Railway Station was stoned by workers owing allegiance to the union of the detenu, that four workers in the bus were injured and damage of Rs. 800/was caused to the bus. On a perusal of Ex. No. 23 which is the F.I.R. of some workers travelling in the bus, one does not find any mention of the fact that the assailants were the persons who owed allegiance to the union of the detenu. There is, therefore, no connection established between the perpetrators who pelted the stones and the union of the detenu, muchless with the detenu himself. This ground also, therefore, must be held to be vague and irrelevant. 21. Ground No. 3 concerns the factory of M/s. Teksons Pvt. Ltd. situated at Koshet Road, Thane. In the preamble it is stated that the detenu tried to enter his union into the factory and have it recognised by the management. In incident No. (iv) of this ground concerning M/s. Teksons Pvt. Ltd., it is stated that onat 16.00 hrs. the detenus followers obviously with his covert encouragement assaulted Shri Sarvatsing who had approached the management to seek a job as a Security Officer. The incident, it is alleged, took place in a local train between Kanjur Marg and Ghatkopar, where the said Sarvatsing was assaulted with a cycle chain the presence of the travelling public. This incident cause commotion in the train and created panic and terror amongst the law abiding commuters. Reliance has been placed on Exhibit No. 38 which was the F.I.R. of the said Sarvatsingh. In the column, name of the accused it has been mentioned : In all 7 persons name and address not know of whom two were from Teksons Company. The complainant stated that he was interviewed and asked to commence worked fromHe then stated that seven persons armed it knife, gupti and cycle chains come in the train and threateningly asked him for the letter of appointment, since he did not hand over the letter of appointment, they beat him with cycle chains. He stated that he was not aware of the fact that there was a strike in the company. He also stated that he was not aware of the factor that there was a strike in the company. He also stated that he would be able to identify two out of the seven assailants. On a perusal of the F.I.R., it will be seen that not a word is stated that the seven assailants belongs to the union of the detenu although what was mentioned was that two of the workers were from M/s. Teksons Pvt. Ltd. This incident is also an example of how the Detaining Authority has relied on his imagination in arriving at the conclusions that the assailants were the followers of the detenu and that they had received covert encouragement from the detenu without the slighted basis for arriving at such a conclusion. The grounds, therefore, has no connection or nexus as between the detenu and the assailants, so far as this incident which has been complained of.22. Ground No. 4 relate to the factory of M/s.Precisions Castings which was situated as S.V. Road, Manpada, Thane. In Incident No. (i) appended to this ground it has been stated that on81 the followers of the union of the detenu squatted inside the factory obviously on your instructions and damaged expensive moulds worth Rs. 9,200/in respect of which two criminal cases were registered at the Kapurbawadi Police Station. The F.I.R. in respect of this incident has been furnished to the detenu as Exhibit No. 40. On a perusal of this F.I.R., it becomes apparent that there was nothing in the F.I.R. to suggest that the miscreants who caused damage to the expensive moulds were the followers of the union belonging to the detenu. There is also nothing in the F.I.R. to suggest that the damage was caused under the instructions of the detenu. There is, therefore, no material or basis upon which the Detaining Authority could have come to the conclusion that the miscreants in respect of this incident belonged to the union of the detenu or that they were working under his instructions.23. Ground No. 7 related to a company known as Ferrodie Ltd. situated at Wagle Estate, Thane. Here also it is stated that the detenu wanted the management to recognise his union and for that purpose he ordered the management to see him at his residence. Incident No. (i) appended to this ground is in respect of an incident which took place onwhen a lorry going out of the factory with finished goods was obstructed by the followers of the detenu and its driver was threatened. Now it is pertinent to note that in this ground only a nebulous expression such as your followers has been made use of. Who the followers were or on what basis it was stated that they were the follows of the detenu, is not mentioned in that ground. Exhibit No. 56, the F.I.R. on which reliance has been placed, does not make this position clear.24. A similar expression i.e. your followers can also be found in incident No. (i) appended to Ground No. 8 which is in respect of a company known as Ashok SunilCompany situated at Wagle Estate, Thane. In this incident it was alleged that onthe followers of the detenu gheraoed the management, after which an offence was registered. Here also no attempt has been made to show any connection between the detenu and the miscreants.25. Ground No. 9, incident No. (i) concerns a factory known as Fouress Engineer (India) Pvt. Ltd., situated at Wagle Estate, Thane. In incident No. (i) appended to this ground it has been stated that onthe detenu organised a public meeting in front of the gate of the company and his associates Arivind Bhiva Wani and others made provocative speeches and used abusive words against the police and the management at the instigation of the detenu. The relevant documents on which reliance has been placed is marked Exhibit No. 66. On a perusal of this document there appears to be no basis for coming to the conclusion that Wani had made a speech at the instigation of the detenue.26. Another incident which savours of rank ambiguity is furnished in incident No. (iii) of Ground No. 12 which concerns a factory known as Golden Dyes Corporation. In incident No. (iii) it has been mentioned that onShantaram Choudhary and others held a meeting at the gate and threatened the management that they would not be allowed to go by Thane Agra Road. In this ground it has not even been mentioned that Shataram Choudhary had any connection with the detenu or his union. However, in the report prepared by the police and furnished to the detenu as Exhibit No. 85 there is a bald statement that these men belonged to the Datta Samant Union. A labour union may consist of hundreds of workers as its members. The question : can the President or an office bearer of a labour union be held responsible for the individual acts of its members unless it was shown that the President or the office bearers directly instigated the same27. In Incident No. (iv) relating to Ground No. 12 in respect of Golden Dyes Corporations it has been stated that on Naronha of M/s. Francis Kaleins Pvt. Ltd. wanted to meet the management of Golden Dyes. He was obstructed by your men and was thus unable to enter the factory premises, but was able to enter the factory premises only on the intervention of the police. Whilst coming out to the factory, Naronha was held and robbed of his brief case. If the Detaining Authority makes us of expressions like your followers, your men workers belonging to your union without given any specified names, how is the detenu expected to make an effective representation against such charges save and except by making a bald denial of the same.28. In Ground No. 16 which related to a factory known as K.R. Steel Pvt. Ltd., the detenu was alleged to have again made an attempt to infiltrate his union into the said factory and resorted to the familiar pressure tactics ofpolicy. In Incident No. (i) appended to that ground it has been statedyour obvious advice so openly given onthe workers defeated the tyres of the car of the Commercial Manager, entered the office of the Personal Manager and manhandled him, with the result that the management was forced to close the operations of the factory tillrespect of this incident it has not even been stated that the workers belonged to the union of the detenu. In the report (Exhibit No. 105) so far as this incident is concerned, there is no mention thereof and all that is stated is that there was an amicable settlement between the management and the workers.28. Another example of a vague and ambiguous ground is furnished by Ground No. 17 which concerns a Company known as Buyer India Ltd. It is stated in this ground that onten to fifteen workers of Bayer Co. controlled by the union headed by the detenu went to the residence of one Bauskar, the Administraive Manager of that company at Dombivali in his absence and met his wife and threatened her that they would murder the said Bauskar and dispose of his body in such a way that she would not be able to set her eyes on it. This had a terrible psychological effect on the lady and also on the neighbours living in the area who had heard of the episode. The document relied upon in this case is the F.I.R. lodged by one Usha Bauskar. If this F.I.R. (Exhibit No. 106) the lady complained that about five or six persons came and stood near the gallery next to her window. One of them was a bearded person who asked her whether her husband was at home. When she replied in the negative that person asked her as to where her husband had gone. When the complainant told the bearded person that she did not know where her husband was, those persons asked her where her husband was roaming when the company was closed and there was a lock out. She then informed those persons that she did not know the whereabouts of her husband. Two of the persons then told her that she would see her husband in pieces. The complainant stated that these persons appeared to be marathi people and were young. On the basis of this F.I.R, it is difficult to see how any one could come to the conclusion that these men belonged to a labour union controlled by the detenu.29. In all the incidents narrated above, it will be seen that bald statements like your followers, your men and workers controlled by you were used without the slightest basis for coming to this conclusion. If the grounds are ambiguous to the extent to which all the incidents narrated above are, then it would be difficult for the detenu to make any effective representation against the grounds of detention. In the above incidents no nexus had been established as between the detenu and the assailants or perpetrators of the violent activities mentioned in the various incidents.30. I shall now discuss and deal with four such incidents, which do not form part of pattern sought to be established and which is the second reason, why I consider the order of detention to be vitiated. The first of such incident is Ground No. 1, Incident No. (iv) which was in relation to a worker of M/s. Rubber Products Pvt. Ltd. It is stated in the said incident that onat 13.15 hrs. Ramnarayan Sarojee, a followers of your union was found with a Rampuri knife by Head Constable M.S. Patil of Wagle Estate Police Station. He wasunder section 37(1) read with section 135 of the Bombay Police Act. The document relied upon in this incident is Exh. No. 26 which was the F.I.R. given by H.C. Patil, in which the N.C. stated that a prohibitory order under section 27(1)(b) of the Bombay Police Act had been promulgated by the District Magistrate. The Head Constables then stated that on seeing him patrolling, the accused person started running away from the place near Rubber Products Co. Since suspicion was arosed he was chased and caught. Apart from the fact that Exhibit No. 26 furnished no clue to the fact that the said Sarojee was a follower of the union belonging to the detenu, it is difficult to understand how the possession of a Rampuri knife by a workers could establish the pattern which the Detaining Authority sought to establish in the grounds. This incidents, therefore, is totally extraneous to the pattern sought to be established by the Detaining Authority.31. The next incident concerns the company known as Voltas Ltd. in the ground which has been marked as No. 5. In Incident No. (i) appended to this ground it has been stated that onone V.J. Naik belonging to the detenus union abused and assaulted the Security Officer and in this connection one N.C. was recorded at Vartaknagar Police Station. The extract of N.C. which was furnished to the detenu was marked as Exhibit No. 48. On a perusal of this exhibit it is noticed that an innocuous incident had occurred in the canteen involving the canteen manager and the said Naik. It appears that the said Naik tried to steel some tomatoes from the canteen. The canteen manager apprehended him and questioned him. The Security Officer had also intervened in the quarrel between the two. This incident is totally unconnected with the pattern sought to be established by the Detaining Authority and further it is an incident which has no nexus with the detenu.32. The next incident is incident No. (iii) to Ground No. 5 involving the same company i.e. Voltas Ltd. In this it is stated that onyour followers abused and threatened Sunder Badrinath Yadav, a supervisor of the factory who lodged his N.C. complaint. The N.C. complaint has been marked as Exh. No. 50. This also is an incident which is so innocuous that it cannot be stated that it had any connection with the pattern of tactics of infiltration and recognition of a union within a factory. As in the previous incident, this incident is also a stray incident of abuse and threats given by one worker to a supervision or a canteen manager of the factory.33. The above instances would go to show that there are certain incidents mentioned in the grounds which are totally unconnected with the general pattern sought to be established in the grounds by the Detaining Authority.At this stage it will be pertinent to cite the observations of the Supreme Court in the case of (Anil Dev v. State of West Bengal)25, reported in A.I.R. 1974 S.C. 832, wherein the learned Judge were pleased to lay downcourse, the veil of subjective satisfaction of the Detaining Authority cannot be lifted by the courts with a view to appreciate its objective sufficiency. Nevertheless, the opinion of the officer must be honest and real, and not so fanciful or imaginary that on the facts alleged no rational individual will entertain the opinion necessary to justify detention. So also if the grounds relied on have nothing to do with the prejudicial purposes stipulated in the statute, no nexus exists and the order is bad. Even if the incident attributed to the detenu has some connection with the obnoxious activities, it should not be too trivial in substance nor too stale in point of time as to snap the rational link that must exist between the vicious episode and the prejudicial activity sought to be interdicted."On a perusal of the various incidents stated above, the conclusion is evitable that several of the incidents are completely vague and no nexus has been established as between the detenu and the activities complained of or the perpetrators thereof. There are several incidents which are totally unconnected with the pattern which has been formulated in the grounds i.e. of detenus attempt to infilterate his union in several industrial establishments.35. At the end of the grounds, the Detaining Authority has annexed an epilogue which is the genesis of the pattern of behaviour indulged in by the detenu. In this paragraph (which has not been numbered) it is statedthe above narrative of events that have followed your entry into 18 industrial units in the limits of the Thane Police Commissioner it is abundantly clear that there is a definite pattern in your tactics which disturb public order. Every time you attempted to dislodged the recognised union, you do so by openly flouting the labour laws and demanding direct and immediate recognition from the management. To that end you encouraged your followers to indulge in violent and lawless activities like threats, assaults, rioting, damage to persons and property and even murder ......... The extent of violence is such and the forms it has taken so alarming and the area covered so vast and the population affected so great that public order has inevitably been disturbed by the frequent and repeated cases of assault and intimation by your associates with your active support and encouragement".36. On a perusal of the various grounds and the incidents annexed thereto, it is difficult to find any material or basis on which the Detaining Authority could have come to the conclusion that it was the detenu who had encouraged his followers or could have given active support in their violent and criminal activities. I am, therefore, of the view the grounds 1, 2, 3, 4, 7, 8, 9, 12 and 17 are totally irrelevant and bear no connection with the detenu. To that extent they vitiate the order of detention. The incidents mentioned in grounds 2, 5 and 8 are stray incidents which have no connection whatsoever with the pattern sought to be established in the grounds by the Detaining Authority. This also would vitiate the order of detention.37. In view of the fact that I have come to the conclusion that the grounds are vitiated by the vices of irrelevance and vagueness, I do not think it necessary to deal with the third ground relating to the Press Conference in which the Chief Minister is alleged to have made certain observations in respect of the detenu, thereby breaching his representation.38. Finally it needs to be stated that we arethat as a consequence of our decision we shall be unleashing upon an unsuspecting populace a person who, we are informed, has come to pose a serious threat to the industrial peace of this city and the State. That indeed is unfortunate. But, hard cases cannot be permitted to make bad laws. We can do no better than to repeat in ringing tones thewords of Justice Frank further, "The history of personal liberty is largely the history of insistance on observance of procedure. And observance of procedure has been the bastian against want on assaults on personal liberty over the years". Meticulous adherence of procedure established by law is the only safeguard of personal freedom.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: furnished to the detenu was marked as Exhibit No. 48. On a perusal of this exhibit it is noticed that an innocuous incident had occurred in the canteen involving the canteen manager and the said Naik. It appears that the said Naik tried to steel some tomatoes from the canteen. The canteen manager apprehended him and questioned him. The Security Officer had also intervened in the quarrel between the two. This incident is totally unconnected with the pattern sought to be established by the Detaining Authority and further it is an incident which has no nexus with the detenu.32. The next incident is incident No. (iii) to Ground No. 5 involving the same company i.e. Voltas Ltd. In this it is stated that on 25-5-1981 your followers abused and threatened Sunder Badrinath Yadav, a supervisor of the factory who lodged his N.C. complaint. The N.C. complaint has been marked as Exh. No. 50. This also is an incident which is so innocuous that it cannot be stated that it had any connection with the pattern of tactics of infiltration and recognition of a union within a factory. As in the previous incident, this incident is also a stray incident of abuse and threats given by one worker to a supervision or a canteen manager of the factory.33. The above instances would go to show that there are certain incidents mentioned in the grounds which are totally unconnected with the general pattern sought to be established in the grounds by the Detaining Authority.At this stage it will be pertinent to cite the observations of the Supreme Court in the case of (Anil Dev v. State of West Bengal)25, reported in A.I.R. 1974 S.C. 832, wherein the learned Judge were pleased to lay down :---"Of course, the veil of subjective satisfaction of the Detaining Authority cannot be lifted by the courts with a view to appreciate its objective sufficiency. Nevertheless, the opinion of the officer must be honest and real, and not so fanciful or imaginary that on the facts alleged no rational individual will entertain the opinion necessary to justify detention. So also if the grounds relied on have nothing to do with the prejudicial purposes stipulated in the statute, no nexus exists and the order is bad. Even if the incident attributed to the detenu has some connection with the obnoxious activities, it should not be too trivial in substance nor too stale in point of time as to snap the rational link that must exist between the vicious episode and the prejudicial activity sought to be interdicted."On a perusal of the various incidents stated above, the conclusion is evitable that several of the incidents are completely vague and no nexus has been established as between the detenu and the activities complained of or the perpetrators thereof. There are several incidents which are totally unconnected with the pattern which has been formulated in the grounds i.e. of detenus attempt to infilterate his union in several industrial establishments.35. At the end of the grounds, the Detaining Authority has annexed an epilogue which is the genesis of the pattern of behaviour indulged in by the detenu. In this paragraph (which has not been numbered) it is stated :---"From the above narrative of events that have followed your entry into 18 industrial units in the limits of the Thane Police Commissioner it is abundantly clear that there is a definite pattern in your tactics which disturb public order. Every time you attempted to dislodged the recognised union, you do so by openly flouting the labour laws and demanding direct and immediate recognition from the management. To that end you encouraged your followers to indulge in violent and lawless activities like threats, assaults, rioting, damage to persons and property and even murder ......... The extent of violence is such and the forms it has taken so alarming and the area covered so vast and the population affected so great that public order has inevitably been disturbed by the frequent and repeated cases of assault and intimation by your associates with your active support and encouragement".36. On a perusal of the various grounds and the incidents annexed thereto, it is difficult to find any material or basis on which the Detaining Authority could have come to the conclusion that it was the detenu who had encouraged his followers or could have given active support in their violent and criminal activities. I am, therefore, of the view the grounds 1, 2, 3, 4, 7, 8, 9, 12 and 17 are totally irrelevant and bear no connection with the detenu. To that extent they vitiate the order of detention. The incidents mentioned in grounds 2, 5 and 8 are stray incidents which have no connection whatsoever with the pattern sought to be established in the grounds by the Detaining Authority. This also would vitiate the order of detention.37. In view of the fact that I have come to the conclusion that the grounds are vitiated by the vices of irrelevance and vagueness, I do not think it necessary to deal with the third ground relating to the Press Conference in which the Chief Minister is alleged to have made certain observations in respect of the detenu, thereby breaching his representation.38. Finally it needs to be stated that we are all-too-aware that as a consequence of our decision we shall be unleashing upon an unsuspecting populace a person who, we are informed, has come to pose a serious threat to the industrial peace of this city and the State. That indeed is unfortunate. But, hard cases cannot be permitted to make bad laws. We can do no better than to repeat in ringing tones the never-to-be-forgotten words of Justice Frank further, "The history of personal liberty is largely the history of insistance on observance of procedure. And observance of procedure has been the bastian against want on assaults on personal liberty over the years". Meticulous adherence of procedure established by law is the only safeguard of personal freedom. ### Response: 1

Firm Surajmal Banshidhar, Etc Vs. The Municipal Board, Ganganagar

six months after the accrual of the alleged cause of action."5. The question therefore is whether the illegal levy of terminal t ax (assuming that it was illegal as held by the High Court) could be said to be a thing "done or purporting to be done" under the Act. A similar question arose for the consideration of this Court ill Poona City Municipal Corporation v. Dattatr aya Nagesh Deodhar([1964] 8 S.C.R. 178.) with reference to the provision in section 127 (4) of the Bombay Provincial Municipal Corporation Act, 1949, and it was held that if the levy of a tax was prohibited by the Act concerned and was not in pursuance of i t, it could not be said to be purported to be done in pursuance of execution or in tended execution of the Act." It was observed that what was plainly prohibited by the Act could not be "claimed to be purported to be done in pursuance or intended execution of the Act." It was therefore held that the suit was outside the purview of the section 127(4) and was not barred by limitation. We are in respectful agreement with that view, and we have no hesitation in holding, i n the circumstances of the pre sent cases, which are governed by a provision similar to section 127(4) or the Poona City Municipal Corporation Act, that the suits did not fall within the purview of section 179 of the Act and were not barred by limitation. It may be mentioned that it has not been argued before us, and is nobodys case, that the suits would be barred by limitation even if they did not fall within the purview of section 179(2) of the Act. The decision of the High Court to the contrary is not correct and will have to be set aside.It has however been argued on behalf of the respondents that the High Court erred in taking the view that the levy of the terminal tax was illegal, and our attention has been invited to the relevant provisions of the law including the Bikaner State Municipal Act, 1923, article 277 of the Constitution and section 2 of the Act.6. It is not in controversy before us that the Bikaner State Municipal Act, 1923, authorised the levy of term inal tax and such a tax was levied by the Ganganagar Municipal Board under the authority of that law upto January 26, 1950, when the Constitution came into force. On and from that date, the power to levy export duty vested in the Parliament but article 277 saved that and some other taxes as follows, -"277. Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being law fully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or other local area may, not withstanding that those taxes, duties, cesses or fees are mentioned in the Union list, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law.It was therefore permissible for the Municipal Board to continue to levy A the terminal tax until provision to the contrary was made by Parliament by law. But it so happened that the Bikaner Municipal Act, 1923 was repealed and the Act was brought into force with effect from December 22, 1951. Section 2(b) of the Ac t, which dealt with the repeal of the Bikaner Act and the saving of some of its provisions, expressly provided that on the coming into force of the Act, the laws and enactments specified in the First Schedule of the Act shall be repealed in so far as they relate to the Town Municipalities covered by the Act. So as the Bikaner State Municipal Act, 1923, was included in the first Schedule, it was repealed by the aforesaid section 2. That section however contained a proviso, clause (b) where of was to the following effect, -"(b) all town municipalities constituted under the said laws or enactments, and members appointed or elected, committees established, limits defined, appointments, rules, orders and bye-laws made, notifications and notices issued, taxes imposed, contracts entered into, and suits and other proceedings instituted, under the said laws or enactments or under and laws or enactments thereby repealed shall, so far as may be and s o far as they relate to town municipalities be deemed, unless the Government directs otherwise, to have been respectively constituted, appointed, elected, establish ed" defined, made, issued, imposed, entered into and instituted under this Act."7. The repeal did not therefore affect the validity of those taxes which had already been imposed and which could be "deemed" to have been imposed under the Act, unless there was a direction to the contrary by the State Government. It is quite clear from the provisions of the Act, and is in fact not disputed before us, that the terminal tax in question could not be imposed under any of the provisions of the Act. Its, levy could not therefore be saved by clause (b) of the proviso to section (2) of the Act. On the other hand, it could be said with justification that the State Legislature had decided to discontinue the levy by excluding it from the purview of the saving clause. The further levy of th e tax therefore became illegal and it was not permissible to continue it any longer under article 277 which merely gave the authority concerned the option to continue the levy if it so desired.8. So as the levy of the tax after Decem ber 22, 1951, was illegal, there is nothing wrong with the view taken by the High Court that the amounts paid by the plaintiffs by way of terminal tax were recoverable by the suits which have given rise to these appeals, and there is no force in the argument to the contrary.

1[ds]It was therefore held that the suit was outside the purview of the section 127(4) and was not barred by limitation. We are in respectful agreement with that view, and we have no hesitation in holding, i n the circumstances of the pre sent cases, which are governed by a provision similar to section 127(4) or the Poona City Municipal Corporation Act, that the suits did not fall within the purview of section 179 of the Act and were not barred by limitation. It may be mentioned that it has not been argued before us, and is nobodys case, that the suits would be barred by limitation even if they did not fall within the purview of section 179(2) of the Act. The decision of the High Court to the contrary is not correct and will have to be sethas however been argued on behalf of the respondents that the High Court erred in taking the view that the levy of the terminal tax was illegal, and our attention has been invited to the relevant provisions of the law including the Bikaner State Municipal Act, 1923, article 277 of the Constitution and section 2 of theis not in controversy before us that the Bikaner State Municipal Act, 1923, authorised the levy of term inal tax and such a tax was levied by the Ganganagar Municipal Board under the authority of that law upto January 26, 1950, when the Constitution came into force. On and from that date, the power to levy export duty vested in the Parliament but article 277 saved that and some other taxes as follows,Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being law fully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or other local area may, not withstanding that those taxes, duties, cesses or fees are mentioned in the Union list, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law.It was therefore permissible for the Municipal Board to continue to levy A the terminal tax until provision to the contrary was made by Parliament by law. But it so happened that the Bikaner Municipal Act, 1923 was repealed and the Act was brought into force with effect from December 22, 1951. Section 2(b) of the Ac t, which dealt with the repeal of the Bikaner Act and the saving of some of its provisions, expressly provided that on the coming into force of the Act, the laws and enactments specified in the First Schedule of the Act shall be repealed in so far as they relate to the Town Municipalities covered by the Act. So as the Bikaner State Municipal Act, 1923, was included in the first Schedule, it was repealed by the aforesaid section 2. That section however contained a proviso, clause (b) where of was to the following effect,all town municipalities constituted under the said laws or enactments, and members appointed or elected, committees established, limits defined, appointments, rules, orders and bye-laws made, notifications and notices issued, taxes imposed, contracts entered into, and suits and other proceedings instituted, under the said laws or enactments or under and laws or enactments thereby repealed shall, so far as may be and s o far as they relate to town municipalities be deemed, unless the Government directs otherwise, to have been respectively constituted, appointed, elected, establish ed" defined, made, issued, imposed, entered into and instituted under thisrepeal did not therefore affect the validity of those taxes which had already been imposed and which could be "deemed" to have been imposed under the Act, unless there was a direction to the contrary by the State Government. It is quite clear from the provisions of the Act, and is in fact not disputed before us, that the terminal tax in question could not be imposed under any of the provisions of the Act. Its, levy could not therefore be saved by clause (b) of the proviso to section (2) of the Act. On the other hand, it could be said with justification that the State Legislature had decided to discontinue the levy by excluding it from the purview of the saving clause. The further levy of th e tax therefore became illegal and it was not permissible to continue it any longer under article 277 which merely gave the authority concerned the option to continue the levy if it soas the levy of the tax after Decem ber 22, 1951, was illegal, there is nothing wrong with the view taken by the High Court that the amounts paid by the plaintiffs by way of terminal tax were recoverable by the suits which have given rise to these appeals, and there is no force in the argument to thesimilar question arose for the consideration of this Court ill Poona City Municipal Corporation v. Dattatr aya Nagesh Deodhar([1964] 8 S.C.R. 178.) with reference to the provision in section 127 (4) ofthe Bombay Provincial Municipal Corporation Act, 1949, and it was held that if the levy of a tax was prohibited by the Act concerned and was not in pursuance of i t, it could not be said to be purported to be done in pursuance of execution or in tended execution of theAct." It was observed that what was plainly prohibited by the Act could not be "claimed to be purported to be done in pursuance or intended execution of the

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: six months after the accrual of the alleged cause of action."5. The question therefore is whether the illegal levy of terminal t ax (assuming that it was illegal as held by the High Court) could be said to be a thing "done or purporting to be done" under the Act. A similar question arose for the consideration of this Court ill Poona City Municipal Corporation v. Dattatr aya Nagesh Deodhar([1964] 8 S.C.R. 178.) with reference to the provision in section 127 (4) of the Bombay Provincial Municipal Corporation Act, 1949, and it was held that if the levy of a tax was prohibited by the Act concerned and was not in pursuance of i t, it could not be said to be purported to be done in pursuance of execution or in tended execution of the Act." It was observed that what was plainly prohibited by the Act could not be "claimed to be purported to be done in pursuance or intended execution of the Act." It was therefore held that the suit was outside the purview of the section 127(4) and was not barred by limitation. We are in respectful agreement with that view, and we have no hesitation in holding, i n the circumstances of the pre sent cases, which are governed by a provision similar to section 127(4) or the Poona City Municipal Corporation Act, that the suits did not fall within the purview of section 179 of the Act and were not barred by limitation. It may be mentioned that it has not been argued before us, and is nobodys case, that the suits would be barred by limitation even if they did not fall within the purview of section 179(2) of the Act. The decision of the High Court to the contrary is not correct and will have to be set aside.It has however been argued on behalf of the respondents that the High Court erred in taking the view that the levy of the terminal tax was illegal, and our attention has been invited to the relevant provisions of the law including the Bikaner State Municipal Act, 1923, article 277 of the Constitution and section 2 of the Act.6. It is not in controversy before us that the Bikaner State Municipal Act, 1923, authorised the levy of term inal tax and such a tax was levied by the Ganganagar Municipal Board under the authority of that law upto January 26, 1950, when the Constitution came into force. On and from that date, the power to levy export duty vested in the Parliament but article 277 saved that and some other taxes as follows, -"277. Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being law fully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or other local area may, not withstanding that those taxes, duties, cesses or fees are mentioned in the Union list, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law.It was therefore permissible for the Municipal Board to continue to levy A the terminal tax until provision to the contrary was made by Parliament by law. But it so happened that the Bikaner Municipal Act, 1923 was repealed and the Act was brought into force with effect from December 22, 1951. Section 2(b) of the Ac t, which dealt with the repeal of the Bikaner Act and the saving of some of its provisions, expressly provided that on the coming into force of the Act, the laws and enactments specified in the First Schedule of the Act shall be repealed in so far as they relate to the Town Municipalities covered by the Act. So as the Bikaner State Municipal Act, 1923, was included in the first Schedule, it was repealed by the aforesaid section 2. That section however contained a proviso, clause (b) where of was to the following effect, -"(b) all town municipalities constituted under the said laws or enactments, and members appointed or elected, committees established, limits defined, appointments, rules, orders and bye-laws made, notifications and notices issued, taxes imposed, contracts entered into, and suits and other proceedings instituted, under the said laws or enactments or under and laws or enactments thereby repealed shall, so far as may be and s o far as they relate to town municipalities be deemed, unless the Government directs otherwise, to have been respectively constituted, appointed, elected, establish ed" defined, made, issued, imposed, entered into and instituted under this Act."7. The repeal did not therefore affect the validity of those taxes which had already been imposed and which could be "deemed" to have been imposed under the Act, unless there was a direction to the contrary by the State Government. It is quite clear from the provisions of the Act, and is in fact not disputed before us, that the terminal tax in question could not be imposed under any of the provisions of the Act. Its, levy could not therefore be saved by clause (b) of the proviso to section (2) of the Act. On the other hand, it could be said with justification that the State Legislature had decided to discontinue the levy by excluding it from the purview of the saving clause. The further levy of th e tax therefore became illegal and it was not permissible to continue it any longer under article 277 which merely gave the authority concerned the option to continue the levy if it so desired.8. So as the levy of the tax after Decem ber 22, 1951, was illegal, there is nothing wrong with the view taken by the High Court that the amounts paid by the plaintiffs by way of terminal tax were recoverable by the suits which have given rise to these appeals, and there is no force in the argument to the contrary. ### Response: 1

Ganga Devi & Others Vs. State of Uttar Pradesh

with the reasoning of the High Court. The High Court was correct in holding that the sayar income during 10 agricultural years immediately proceeding the date of vesting should be taken into consideration in determining the gross assets under section 39 of the Act. 13. Counsel for the appellants submitted that the High Court did not deal with the finding of the Compensation Officer with regard to income from poola grass for the Fasli years 1352 and 1353 in respect of Prithipur forest. The Lalas claimed for the Fasli year 1352 a sum of Rs. 4600/- and for the Fasli year 1353 a sum of Rs. 4500/- as income from poola grass. The Compensation Officer gave the additional reason for rejecting the income from poola grass for these two years that in the extract of Khatauni it was not mentioned as to what the source of income was. Exhibit P-3 being the extract from khatauni for the Fasli year 1352 would show that Rs. 4600/- was the rent for clause 13 sawai items. Again, Exhibit P-10 for the Fasli year 1353 in respect of Prithipur forest would show the sum of Rs. 4500/- on account of rent for sayar. Therefore when the Compensation Officer will deal with sayar income he will take in to consideration Exhibits P-3 and P-10 for the Fasli years 1352 and 1353.14. In the High Court it was contended that the Compensation Officer was wrong in taking 25 years to be the period on the basis of which annual average income of the forest was to be computed under section 39 (1) (e) of the Act. The High Court did not accept that contention. This contention was not repeated in this Court. 15. The High Court held that the Compensation Officer was wrong in arriving at the average annual income by adding the annual income on the basis of period of 25 years and the appraisement of the annual yield on the date of vesting. The High Court said that the two clauses in section 39 (1) (e) of the Act were independent methods of finding out the average annual income from forest and it was not intended that the average annual income should be arrived at by adding the two methods. Section 39 (1) (e) of the Act speaks of computation of average annual income from forest (i) on the basis of income for a period of 20 to 40 agricultural years immediately preceding the date of vesting as the Compensation Officer may consider reasonable and (ii) on the appraisement of the annual yield of the forest on the date of vesting. The two are separate matters. It cannot be said that the Compensation Officer will adopt either of the clauses. The Compensation officer has to refer to both the clauses in order to compute the average annual income from forest. The High Court is correct in holding that the average annual income from forest under section 39 (1) (e) of the Act cannot be computed by arithmetical addition of the figures arrived at on the basis of clause (ii). It is the average annual income from forest, which is to be computed. The words of importance are average annual income. Under the first clause the actual income derived from the forest for a number of years before the date of vesting as the Compensation officer may consider reasonable is to be taken and the average calculated. Under the second clause the annual yield as on the date of vesting is to be appraised. The Compensation Officer is to compute the average income by taking recourse to both the methods. The second clause which speaks of appraisement of the annual yield will be done inter alia by taking into consideration the number and age of trees, the area of cultivation and the produce. 16. In the present appeals the High Court found on the materials that the forest had been felled almost completely during the last 9 or 10 years preceding the date of vesting. The evidence further established that there were no mature trees for felling and that the bulk of the crop that had existed had grown within a period of 8 years. It was therefore clear that the whole of the forests income derived during those 9 or 10 years for which accounts of the Lalas were available represented the whole growth of the forest during the last 40 years and even if the forest had been gradually cut during the last 40 years the income derived would not have been substantially more than what have been derived during the last 9 or 10 years preceding the date of vesting. 17. The High Court assessed the evidence. We do not find that there is any error in regard to the appreciation or assessment of evidence by the High Court and the conclusion that under section 39 (1) (e) of the Act the annual average income of Prithipur forest came to Rs. 4396.56 and of village Chharba at Rs. 2039.68. 18. Counsel for the appellants contended that the Compensation Officer did not consider the entire forest income for the Fasli years 1352, 1356, 1357 and 1358 for the Prithipur forest on the ground that the entire income was not the sale price of forest but that the Lalas worked the forest and a portion of the income was from the sale of the timber of that forest. The High Court rightly held that the forest income was referable to the price of the standing timber and income which the Lalas derived by processing wood would not be within forest income. 19. For these reasons we uphold the judgment and order of the High Court with this modification that when the Compensation Officer will deal with the income from poola grass as sayar income as directed by the High Court the Compensation Officer will also take into consideration the income from poola grass for the Prithipur forest for the years 1352 and 1353 Fasli.

0[ds]15. The High Court held that the Compensation Officer was wrong in arriving at the average annual income by adding the annual income on the basis of period of 25 years and the appraisement of the annual yield on the date of vesting. The High Court said that the two clauses in section 39 (1) (e) of the Act were independent methods of finding out the average annual income from forest and it was not intended that the average annual income should be arrived at by adding the two methods. Section 39 (1) (e) of the Act speaks of computation of average annual income from forest (i) on the basis of income for a period of 20 to 40 agricultural years immediately preceding the date of vesting as the Compensation Officer may consider reasonable and (ii) on the appraisement of the annual yield of the forest on the date of vesting. The two are separate matters. It cannot be said that the Compensation Officer will adopt either of the clauses. The Compensation officer has to refer to both the clauses in order to compute the average annual income from forest. The High Court is correct in holding that the average annual income from forest under section 39 (1) (e) of the Act cannot be computed by arithmetical addition of the figures arrived at on the basis of clause (ii). It is the average annual income from forest, which is to be computed. The words of importance are average annual income. Under the first clause the actual income derived from the forest for a number of years before the date of vesting as the Compensation officer may consider reasonable is to be taken and the average calculated. Under the second clause the annual yield as on the date of vesting is to be appraised. The Compensation Officer is to compute the average income by taking recourse to both the methods. The second clause which speaks of appraisement of the annual yield will be done inter alia by taking into consideration the number and age of trees, the area of cultivation and the produce16. In the present appeals the High Court found on the materials that the forest had been felled almost completely during the last 9 or 10 years preceding the date of vesting. The evidence further established that there were no mature trees for felling and that the bulk of the crop that had existed had grown within a period of 8 years. It was therefore clear that the whole of the forests income derived during those 9 or 10 years for which accounts of the Lalas were available represented the whole growth of the forest during the last 40 years and even if the forest had been gradually cut during the last 40 years the income derived would not have been substantially more than what have been derived during the last 9 or 10 years preceding the date of vesting17. The High Court assessed the evidence. We do not find that there is any error in regard to the appreciation or assessment of evidence by the High Court and the conclusion that under section 39 (1) (e) of the Act the annual average income of Prithipur forest came to Rs. 4396.56 and of village Chharba at Rs. 2039.6818. Counsel for the appellants contended that the Compensation Officer did not consider the entire forest income for the Fasli years 1352, 1356, 1357 and 1358 for the Prithipur forest on the ground that the entire income was not the sale price of forest but that the Lalas worked the forest and a portion of the income was from the sale of the timber of that forest.The High Court rightly held that the forest income was referable to the price of the standing timber and income which the Lalas derived by processing wood would not be within forest income.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: with the reasoning of the High Court. The High Court was correct in holding that the sayar income during 10 agricultural years immediately proceeding the date of vesting should be taken into consideration in determining the gross assets under section 39 of the Act. 13. Counsel for the appellants submitted that the High Court did not deal with the finding of the Compensation Officer with regard to income from poola grass for the Fasli years 1352 and 1353 in respect of Prithipur forest. The Lalas claimed for the Fasli year 1352 a sum of Rs. 4600/- and for the Fasli year 1353 a sum of Rs. 4500/- as income from poola grass. The Compensation Officer gave the additional reason for rejecting the income from poola grass for these two years that in the extract of Khatauni it was not mentioned as to what the source of income was. Exhibit P-3 being the extract from khatauni for the Fasli year 1352 would show that Rs. 4600/- was the rent for clause 13 sawai items. Again, Exhibit P-10 for the Fasli year 1353 in respect of Prithipur forest would show the sum of Rs. 4500/- on account of rent for sayar. Therefore when the Compensation Officer will deal with sayar income he will take in to consideration Exhibits P-3 and P-10 for the Fasli years 1352 and 1353.14. In the High Court it was contended that the Compensation Officer was wrong in taking 25 years to be the period on the basis of which annual average income of the forest was to be computed under section 39 (1) (e) of the Act. The High Court did not accept that contention. This contention was not repeated in this Court. 15. The High Court held that the Compensation Officer was wrong in arriving at the average annual income by adding the annual income on the basis of period of 25 years and the appraisement of the annual yield on the date of vesting. The High Court said that the two clauses in section 39 (1) (e) of the Act were independent methods of finding out the average annual income from forest and it was not intended that the average annual income should be arrived at by adding the two methods. Section 39 (1) (e) of the Act speaks of computation of average annual income from forest (i) on the basis of income for a period of 20 to 40 agricultural years immediately preceding the date of vesting as the Compensation Officer may consider reasonable and (ii) on the appraisement of the annual yield of the forest on the date of vesting. The two are separate matters. It cannot be said that the Compensation Officer will adopt either of the clauses. The Compensation officer has to refer to both the clauses in order to compute the average annual income from forest. The High Court is correct in holding that the average annual income from forest under section 39 (1) (e) of the Act cannot be computed by arithmetical addition of the figures arrived at on the basis of clause (ii). It is the average annual income from forest, which is to be computed. The words of importance are average annual income. Under the first clause the actual income derived from the forest for a number of years before the date of vesting as the Compensation officer may consider reasonable is to be taken and the average calculated. Under the second clause the annual yield as on the date of vesting is to be appraised. The Compensation Officer is to compute the average income by taking recourse to both the methods. The second clause which speaks of appraisement of the annual yield will be done inter alia by taking into consideration the number and age of trees, the area of cultivation and the produce. 16. In the present appeals the High Court found on the materials that the forest had been felled almost completely during the last 9 or 10 years preceding the date of vesting. The evidence further established that there were no mature trees for felling and that the bulk of the crop that had existed had grown within a period of 8 years. It was therefore clear that the whole of the forests income derived during those 9 or 10 years for which accounts of the Lalas were available represented the whole growth of the forest during the last 40 years and even if the forest had been gradually cut during the last 40 years the income derived would not have been substantially more than what have been derived during the last 9 or 10 years preceding the date of vesting. 17. The High Court assessed the evidence. We do not find that there is any error in regard to the appreciation or assessment of evidence by the High Court and the conclusion that under section 39 (1) (e) of the Act the annual average income of Prithipur forest came to Rs. 4396.56 and of village Chharba at Rs. 2039.68. 18. Counsel for the appellants contended that the Compensation Officer did not consider the entire forest income for the Fasli years 1352, 1356, 1357 and 1358 for the Prithipur forest on the ground that the entire income was not the sale price of forest but that the Lalas worked the forest and a portion of the income was from the sale of the timber of that forest. The High Court rightly held that the forest income was referable to the price of the standing timber and income which the Lalas derived by processing wood would not be within forest income. 19. For these reasons we uphold the judgment and order of the High Court with this modification that when the Compensation Officer will deal with the income from poola grass as sayar income as directed by the High Court the Compensation Officer will also take into consideration the income from poola grass for the Prithipur forest for the years 1352 and 1353 Fasli. ### Response: 0

M/S Galada Power & Telecomun.Ltd Vs. United India Insurnce Co.Ltd

John Romilly, M.R. has observed in Vyvyan v. Vyvyan, (1861) 30 Beav 65 : 54 ER 813: (Beav p. 75 : ER p. 817) `Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim." 15. Yet again, in Krishna Bahadur v. Purna Theatre, 2004(4) S.C.T. 137 : (2004) 8 SCC 229 , it has been ruled that:- "A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct." 16. In State of Punjab v. Davinder Pal Singh Bhullar, 2012(1) R.C.R.(Criminal) 126 : 2011(6) Recent Apex Judgments (R.A.J.) 303 : (2011) 14 SCC 770 , a two-Judge Bench speaking about the waiver has opined:- "41. Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. (Vide Dawsons Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha, AIR 1935 PC 79 , Basheshar Nath v. CIT, AIR 1959 SC 149 , Mademsetty Satyanarayana v. G. Yelloji Rao, AIR 1965 SC 1405 , Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, AIR 1968 SC 933 , Jaswantsingh Mathurasingh v. Ahmedabad Municipal Corpn., 1992 Supp (1) SCC 5, Sikkim Subba Associates v. State of Sikkim, (2001) 5 SCC 629 and Krishna Bahadur v. Purna Theatre.) 42. This Court in Municipal Corpn. of Greater Bombay v. Dr. Hakimwadi Tenants Assn., 1988 Supp SCC 55 considered the issue of waiver/acquiescence by the non-parties to the proceedings and held: (SCC p. 65, paras 14-15) "14. In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case. ...15. There is no question of estoppel, waiver or abandonment. There is no specific plea of waiver, acquiescence or estoppel, much less a plea of abandonment of right. That apart, the question of waiver really does not arise in the case. Admittedly, the tenants were not parties to the earlier proceedings. There is, therefore, no question of waiver of rights by Respondents 4-7 nor would this disentitle the tenants from maintaining the writ petition."" 17. In the instant case, the insurer was in custody of the policy. It had prescribed the clause relating to duration. It was very much aware about the stipulation made in clause 5(3) to 5(5), but despite the stipulations therein, it appointed a surveyor. Additionally, as has been stated earlier, in the letter of repudiation, it only stated that the claim lodged by the insured was not falling under the purview of transit loss. Thus, by positive action, the insurer has waived its right to advance the plea that the claim was not entertain able because conditions enumerated in duration clause were not satisfied. In our considered opinion, the National Commission could not have placed reliance on the said terms to come to the conclusion that there was no policy cover in existence and that the risks stood not covered after delivery of goods to the consignee.18. Coming to the merits of the claim, we find that the surveyor had given a report that there was a loss. He had also quantified it. The State Commission after elaborate discussion has held as follows:- "The surveyor also confirmed in their reports, the shortage/loss of AAAC due to pilferage during transit and estimated the loss as per Ex.A12. This shortage was also confirmed by Katigorah police as per Ex.A13 and as reiterated earlier by the Tage Over Certificate, Ex.A19. Taking into consideration that the surveyros appointed by the insurance company have completed their investigation and submitted their reports and thereafter an investigator was appointed on 16-4-1998 without any valid reasons. It is held by the National Commission in (2004) 1 CPJ 10 (NC) in Gammon India Ltd., v. New India Assurance Co. Ltd. that Report of first surveyor not accepted, second surveyor appointed-Appointment of second surveyor not explained - Deficiency in service proved - Report of first surveyor upheld and the investigator in the instant case submitted his report on 28-12-1998 i.e. almost 8 months after his appointment. Taking into consideration all the above submissions, we are of the considered opinion that the appellant/complainant was able to establish that there was shortage/damage to the consignment which was given to second respondent for transportation." 19. Though the said aspect has not been gone into by the National Commission, yet we find, the findings recorded by the State Commission are absolutely justified and tenable in law being based on materials brought on record in such a situation we do not think it appropriate that an exercise of remit should be carried out asking the National Commission to have a further look at it. In any case, the exercise of revisional jurisdiction by the National Commission is a limited one. We may hasten to add that to satisfy ourselves, we have perused the surveyors report and scrutinised the judgment and order passed by the State Commission in this regard and we are completely satisfied that the determination made by it is absolutely impeccable.

1[ds]17. In the instant case, the insurer was in custody of the policy. It had prescribed the clause relating to duration. It was very much aware about the stipulation made in clause 5(3) to 5(5), but despite the stipulations therein, it appointed a surveyor. Additionally, as has been stated earlier, in the letter of repudiation, it only stated that the claim lodged by the insured was not falling under the purview of transit loss. Thus, by positive action, the insurer has waived its right to advance the plea that the claim was not entertain able because conditions enumerated in duration clause were not satisfied. In our considered opinion, the National Commission could not have placed reliance on the said terms to come to the conclusion that there was no policy cover in existence and that the risks stood not covered after delivery of goods to the consignee.18. Coming to the merits of the claim, we find that the surveyor had given a report that there was a loss. He had also quantified it. The State Commission after elaborate discussion has held as follows:"The surveyor also confirmed in their reports, the shortage/loss of AAAC due to pilferage during transit and estimated the loss as per Ex.A12. This shortage was also confirmed by Katigorah police as per Ex.A13 and as reiterated earlier by the Tage Over Certificate, Ex.A19. Taking into consideration that the surveyros appointed by the insurance company have completed their investigation and submitted their reports and thereafter an investigator was appointed onwithout any valid reasons.Though the said aspect has not been gone into by the National Commission, yet we find, the findings recorded by the State Commission are absolutely justified and tenable in law being based on materials brought on record in such a situation we do not think it appropriate that an exercise of remit should be carried out asking the National Commission to have a further look at it. In any case, the exercise of revisional jurisdiction by the National Commission is a limited one. We may hasten to add that to satisfy ourselves, we have perused the surveyors report and scrutinised the judgment and order passed by the State Commission in this regard and we are completely satisfied that the determination made by it is absolutely impeccable.

### 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: John Romilly, M.R. has observed in Vyvyan v. Vyvyan, (1861) 30 Beav 65 : 54 ER 813: (Beav p. 75 : ER p. 817) `Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim." 15. Yet again, in Krishna Bahadur v. Purna Theatre, 2004(4) S.C.T. 137 : (2004) 8 SCC 229 , it has been ruled that:- "A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct." 16. In State of Punjab v. Davinder Pal Singh Bhullar, 2012(1) R.C.R.(Criminal) 126 : 2011(6) Recent Apex Judgments (R.A.J.) 303 : (2011) 14 SCC 770 , a two-Judge Bench speaking about the waiver has opined:- "41. Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. (Vide Dawsons Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha, AIR 1935 PC 79 , Basheshar Nath v. CIT, AIR 1959 SC 149 , Mademsetty Satyanarayana v. G. Yelloji Rao, AIR 1965 SC 1405 , Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, AIR 1968 SC 933 , Jaswantsingh Mathurasingh v. Ahmedabad Municipal Corpn., 1992 Supp (1) SCC 5, Sikkim Subba Associates v. State of Sikkim, (2001) 5 SCC 629 and Krishna Bahadur v. Purna Theatre.) 42. This Court in Municipal Corpn. of Greater Bombay v. Dr. Hakimwadi Tenants Assn., 1988 Supp SCC 55 considered the issue of waiver/acquiescence by the non-parties to the proceedings and held: (SCC p. 65, paras 14-15) "14. In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case. ...15. There is no question of estoppel, waiver or abandonment. There is no specific plea of waiver, acquiescence or estoppel, much less a plea of abandonment of right. That apart, the question of waiver really does not arise in the case. Admittedly, the tenants were not parties to the earlier proceedings. There is, therefore, no question of waiver of rights by Respondents 4-7 nor would this disentitle the tenants from maintaining the writ petition."" 17. In the instant case, the insurer was in custody of the policy. It had prescribed the clause relating to duration. It was very much aware about the stipulation made in clause 5(3) to 5(5), but despite the stipulations therein, it appointed a surveyor. Additionally, as has been stated earlier, in the letter of repudiation, it only stated that the claim lodged by the insured was not falling under the purview of transit loss. Thus, by positive action, the insurer has waived its right to advance the plea that the claim was not entertain able because conditions enumerated in duration clause were not satisfied. In our considered opinion, the National Commission could not have placed reliance on the said terms to come to the conclusion that there was no policy cover in existence and that the risks stood not covered after delivery of goods to the consignee.18. Coming to the merits of the claim, we find that the surveyor had given a report that there was a loss. He had also quantified it. The State Commission after elaborate discussion has held as follows:- "The surveyor also confirmed in their reports, the shortage/loss of AAAC due to pilferage during transit and estimated the loss as per Ex.A12. This shortage was also confirmed by Katigorah police as per Ex.A13 and as reiterated earlier by the Tage Over Certificate, Ex.A19. Taking into consideration that the surveyros appointed by the insurance company have completed their investigation and submitted their reports and thereafter an investigator was appointed on 16-4-1998 without any valid reasons. It is held by the National Commission in (2004) 1 CPJ 10 (NC) in Gammon India Ltd., v. New India Assurance Co. Ltd. that Report of first surveyor not accepted, second surveyor appointed-Appointment of second surveyor not explained - Deficiency in service proved - Report of first surveyor upheld and the investigator in the instant case submitted his report on 28-12-1998 i.e. almost 8 months after his appointment. Taking into consideration all the above submissions, we are of the considered opinion that the appellant/complainant was able to establish that there was shortage/damage to the consignment which was given to second respondent for transportation." 19. Though the said aspect has not been gone into by the National Commission, yet we find, the findings recorded by the State Commission are absolutely justified and tenable in law being based on materials brought on record in such a situation we do not think it appropriate that an exercise of remit should be carried out asking the National Commission to have a further look at it. In any case, the exercise of revisional jurisdiction by the National Commission is a limited one. We may hasten to add that to satisfy ourselves, we have perused the surveyors report and scrutinised the judgment and order passed by the State Commission in this regard and we are completely satisfied that the determination made by it is absolutely impeccable. ### Response: 1

Ashok Metal Corporation Vs. The Senior Inspector of Police and Others

458 and 459.(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.(5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise."15. For getting interim custody of such property under section 451 of the Code, the petitioner or Devang will have to satisfy the Magistrate as per section 124 of the Maharashtra Police Act as already observed. Provision of section 452 of the Code shows that there is power with the Magistrate to make order of disposal of such property at the conclusion of the trial and the Magistrate is expected to ascertain whether the property is liable to confiscation.16. In view of the aforesaid provisions, when the case is filed under section 124 of the Maharashtra Police Act and the record shows that property is notified goods of foreign origin, was covered under the provisions of the Customs Act, the Magistrate is expected to ascertain as to whether the property needs to be dealt with under the provisions of the Customs Act. There is separate machinery provided under the Customs Act 1962 for confiscation of such property. In section 151 of this Act it is specifically provided that police is empowered to assist the Customs Department when such a case is detected. Thus, in ordinary course such property is required to be handed over to Customs Department.17. In view of the aforesaid provisions of law and the power given to the Customs Department of making investigation, it is not possible to give interim custody to the petitioner. The aforesaid material shows that trial of the case for offence punishable under section 124 of the Maharashtra Police Act needs to be concluded.18. The learned counsel for the petitioner made submissions that notice as provided under the Customs Act needs to be given within six months from the date of seizure and after such period the petitioner will be entitled to get the custody in ordinary course if the notice is not given. Relevant material is already quoted by this Court and it shows that the seizure from the employee of present petitioner is made by police under the provision of the Code and seizure is not made under the provisions of the Customs Act. There is power given to Customs Officer to make investigation of such case irrespective of the registration of the crime and filing of the case for offence punishable under section 124 of the Maharashtra Police Act and that has nothing to do with the limitation of six months to issue notice for confiscation. Even if it is presumed that the presumption provided under section 123 of the Customs Act cannot be used, the other provisions are there empowering the Customs Officer to make investigation and file the case. Further the provisions of Cr.P.C. and the Customs Act can be used for confiscation of such gold.19. The term "reason to believe" is used in section 124 of the Maharashtra Police Act and also in section 110 of the Customs Act. At present there is material of aforesaid nature against the petitioner and the explanation given by the petitioner is not at all plausible. In view of these circumstances this Court holds that at this stage it is not possible to give custody of the gold to the petitioner. Further it cannot be said that the arrest of Devang was illegal and the Customs Officers need to be prevented from making investigation or taking steps for confiscation. In the case reported as AIR 1975 SC 160 (Champaklal Ganeshmal v. State of Maharashtra) provision of Section 124 of the Bombay Police Act, now Maharashtra Police Act, is discussed. Following observations are made by the Honble Apex Court in para 7 of the report:-"7. . . . It can hardly be disputed that when anything is imported into the country clandestinely in violation of import or customs regulations it is fraudulently obtained, that is obtained by committing a fraud on the regulations. Smuggled goods are clearly goods fraudulently obtained. .... The plain language of the section stops short at describing the property as "stolen property or property fraudulently obtained" and does not go on to add the words "by him". . . . if the property were stolen or fraudulently obtained by the accused, that would be a distinct and independent offence under the Indian Penal Code or the Customs Act, . . . and it would not be necessary to make it an offence over again under Section 124 of the Bombay Police Act. . . . If the property is capable of being described as "stolen property" or "property fraudulently obtained" by whomsoever it might have been stolen or fraudulently obtained that would be sufficient to comply with the requirements of the section. . . . it is the possession by the accused of property which bears the attribute or characteristic of stolen property or property fraudulently obtained, that is made penal. . . . the explanation given by the appellant for his possession of the wrist watched was unsatisfactory and the High Court was right in taking the view that the appellant had failed to account for the possession of wrist watches to the satisfaction of the Court. "20. Case is already filed under section 124 of the Act against Devang and so this Court holds that the observations made by the Apex Court can be used against Devang if he fails to explain the things.

0[ds]18. The learned counsel for the petitioner made submissions that notice as provided under the Customs Act needs to be given within six months from the date of seizure and after such period the petitioner will be entitled to get the custody in ordinary course if the notice is not given.Relevant material is already quoted by this Court and it shows that the seizure from the employee of present petitioner is made by police under the provision of the Code and seizure is not made under the provisions of the Customs Act. There is power given to Customs Officer to make investigation of such case irrespective of the registration of the crime and filing of the case for offence punishable under section 124 of the Maharashtra Police Act and that has nothing to do with the limitation of six months to issue notice for confiscation. Even if it is presumed that the presumption provided under section 123 of the Customs Act cannot be used, the other provisions are there empowering the Customs Officer to make investigation and file the case. Further the provisions of Cr.P.C. and the Customs Act can be used for confiscation of such gold.19. The term "reason to believe" is used in section 124 of the Maharashtra Police Act and also in section 110 of the Customs Act. At present there is material of aforesaid nature against the petitioner and the explanation given by the petitioner is not at all plausible. In view of these circumstances this Court holds that at this stage it is not possible to give custody of the gold to the petitioner. Further it cannot be said that the arrest of Devang was illegal and the Customs Officers need to be prevented from making investigation or taking steps for confiscation. In the case reported as AIR 1975 SC 160 (Champaklal Ganeshmal v. State of Maharashtra) provision of Section 124 of the Bombay Police Act, now Maharashtra Police Act, is discussed. Following observations are made by the Honble Apex Court in para 7 of the. . . It can hardly be disputed that when anything is imported into the country clandestinely in violation of import or customs regulations it is fraudulently obtained, that is obtained by committing a fraud on the regulations. Smuggled goods are clearly goods fraudulently obtained. .... The plain language of the section stops short at describing the property as "stolen property or property fraudulently obtained" and does not go on to add the words "by him". . . . if the property were stolen or fraudulently obtained by the accused, that would be a distinct and independent offence under the Indian Penal Code or the Customs Act, . . . and it would not be necessary to make it an offence over again under Section 124 of the Bombay Police Act. . . . If the property is capable of being described as "stolen property" or "property fraudulently obtained" by whomsoever it might have been stolen or fraudulently obtained that would be sufficient to comply with the requirements of the section. . . . it is the possession by the accused of property which bears the attribute or characteristic of stolen property or property fraudulently obtained, that is made penal. . . . the explanation given by the appellant for his possession of the wrist watched was unsatisfactory and the High Court was right in taking the view that the appellant had failed to account for the possession of wrist watches to the satisfaction of the Court. "20. Case is already filed under section 124 of the Act against Devang and so this Court holds that the observations made by the Apex Court can be used against Devang if he fails to explain the things.

### 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: 458 and 459.(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.(5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise."15. For getting interim custody of such property under section 451 of the Code, the petitioner or Devang will have to satisfy the Magistrate as per section 124 of the Maharashtra Police Act as already observed. Provision of section 452 of the Code shows that there is power with the Magistrate to make order of disposal of such property at the conclusion of the trial and the Magistrate is expected to ascertain whether the property is liable to confiscation.16. In view of the aforesaid provisions, when the case is filed under section 124 of the Maharashtra Police Act and the record shows that property is notified goods of foreign origin, was covered under the provisions of the Customs Act, the Magistrate is expected to ascertain as to whether the property needs to be dealt with under the provisions of the Customs Act. There is separate machinery provided under the Customs Act 1962 for confiscation of such property. In section 151 of this Act it is specifically provided that police is empowered to assist the Customs Department when such a case is detected. Thus, in ordinary course such property is required to be handed over to Customs Department.17. In view of the aforesaid provisions of law and the power given to the Customs Department of making investigation, it is not possible to give interim custody to the petitioner. The aforesaid material shows that trial of the case for offence punishable under section 124 of the Maharashtra Police Act needs to be concluded.18. The learned counsel for the petitioner made submissions that notice as provided under the Customs Act needs to be given within six months from the date of seizure and after such period the petitioner will be entitled to get the custody in ordinary course if the notice is not given. Relevant material is already quoted by this Court and it shows that the seizure from the employee of present petitioner is made by police under the provision of the Code and seizure is not made under the provisions of the Customs Act. There is power given to Customs Officer to make investigation of such case irrespective of the registration of the crime and filing of the case for offence punishable under section 124 of the Maharashtra Police Act and that has nothing to do with the limitation of six months to issue notice for confiscation. Even if it is presumed that the presumption provided under section 123 of the Customs Act cannot be used, the other provisions are there empowering the Customs Officer to make investigation and file the case. Further the provisions of Cr.P.C. and the Customs Act can be used for confiscation of such gold.19. The term "reason to believe" is used in section 124 of the Maharashtra Police Act and also in section 110 of the Customs Act. At present there is material of aforesaid nature against the petitioner and the explanation given by the petitioner is not at all plausible. In view of these circumstances this Court holds that at this stage it is not possible to give custody of the gold to the petitioner. Further it cannot be said that the arrest of Devang was illegal and the Customs Officers need to be prevented from making investigation or taking steps for confiscation. In the case reported as AIR 1975 SC 160 (Champaklal Ganeshmal v. State of Maharashtra) provision of Section 124 of the Bombay Police Act, now Maharashtra Police Act, is discussed. Following observations are made by the Honble Apex Court in para 7 of the report:-"7. . . . It can hardly be disputed that when anything is imported into the country clandestinely in violation of import or customs regulations it is fraudulently obtained, that is obtained by committing a fraud on the regulations. Smuggled goods are clearly goods fraudulently obtained. .... The plain language of the section stops short at describing the property as "stolen property or property fraudulently obtained" and does not go on to add the words "by him". . . . if the property were stolen or fraudulently obtained by the accused, that would be a distinct and independent offence under the Indian Penal Code or the Customs Act, . . . and it would not be necessary to make it an offence over again under Section 124 of the Bombay Police Act. . . . If the property is capable of being described as "stolen property" or "property fraudulently obtained" by whomsoever it might have been stolen or fraudulently obtained that would be sufficient to comply with the requirements of the section. . . . it is the possession by the accused of property which bears the attribute or characteristic of stolen property or property fraudulently obtained, that is made penal. . . . the explanation given by the appellant for his possession of the wrist watched was unsatisfactory and the High Court was right in taking the view that the appellant had failed to account for the possession of wrist watches to the satisfaction of the Court. "20. Case is already filed under section 124 of the Act against Devang and so this Court holds that the observations made by the Apex Court can be used against Devang if he fails to explain the things. ### Response: 0

Tarapore & Company Vs. Cochin Shipyard Ltd. Cochin & Anr

that the dispute is covered by the arbitration clause observed that looking to the rival contentions, 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. The test formulated was that if in settling a dispute, a reference to the contract is necessary, such a dispute would be covered by the arbitration clause 41. In Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar (1952 SCR 501 , 507 : AIR 1952 SC 119 : 1952 22 Com Cas 111) this Court was concerned with the clause in a policy of insurance which provided that differences arising out of the policy shall be referred to the decision of the arbitrator. In construing this clause, this Court observed as under The test is whether recourse to the contract by which the parties are bound is necessary for the purpose determining the matter in dispute between them. If such recourse to the contract is necessary, the matter must come within the scope of the arbitrators jurisdictionIn Union of India v. Salween Timber Construction (India) (1969 2 SCR 224 : AIR 1969 SC 488 ), this Court observed that the test for determining the question is whether recourse to the contract by which both the parties are bound is necessary for the purpose of determining whether the claim of the respondent firm is justified or otherwise. If it is necessary to take recourse to the terms of the contract for the purpose of deciding the matter in dispute, it must be held that the matter is within the scope of the arbitration clause and the arbitrators have jurisdiction to decide the same. In so stating the proportion of law, reliance was placed on Heyman v. Darwins Ltd. (1942 AC 356, 366), in which it was held that where the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them whether there has been a breach by one side or the other, or whether circumstances have arisen which have discharged one or both parties from further performance, such differences should be regarded as differences which have arisen in respect of or with regard to or under the contract, and an arbitration clause which uses these, or similar expressions should be construed accordingly. The Court affirmed the decision in Ruby General insurance Co. Ltd. case (1952 SCR 501 , 507 : AIR 1952 SC 119 : 1952 22 Com Cas 111) 42. In Astro Vencedor Compania Naviera S. A. of Panama v. Mabanaft GmbH (1971 2 QB 588 : 1971 2 All ER 1301 : 1971 3 WLR 24), a question arose whether a claim in tort would be covered by the arbitration clause ? It was admitted that the claim for wrongful arrest is a claim in tort. And it was contended that a claim in tort cannot come within the arbitration clause. The Court of Appeal speaking through Lord Denning held that the claim in tort would be covered by the arbitration clause, if the claim or the issue has a sufficiently close connection with the claim under the contract 43. In Gunter Henck v. Andre & CIE S. A. (1970 1 Lloyds Law Reports 235), the Court Queens Bench Division (Commercial Court) held that the words arising out of clearly extend the meaning than would otherwise be applied to the clause were limited to all disputes arising under the contract 44. In the facts before, us, the respondent in para 4 of its counter- statement filed before the arbitrator specifically referred to Clause 16 of the General Condition of Contract and to the Additional Terms and Conditions/Modifications forming part of the contract document. In paragraph 11, it was stated that the claim of the appellant was completely outside the purview of the contract and the same does not fall within the purview of the first paragraph of Clause 40. It was further stated in paragraph 13 that the contract provides for escalation in certain respects and that is the only escalation which is admissible in terms of the contract, and the claim made by the appellant does not come within the escalation clause nor in the agreed formula relating to such escalation. The contractor relied upon Clause 13 of the Additional Terms and Conditions/Modifications which form part of the contract document to sustain its claim. From the pleadings, it clearly transpires that both the parties had recourse to the contract which is admittedly entered into in support of the rival contentions and therefore, the claim made by the appellant would be covered by the arbitration clause, which is of the widest amplitude. It is thus satisfactorily established that the claim made by the contractor would be covered by the arbitration clause 45. Mr. Nariman also wanted us to examine whether the claim made by the arbitrator would be admissible on the principle of quantum merit. It is not necessary to examine this aspect at all in the view which we are taking 46. He also wanted us to adopt an approach that the effort of the Court must be to upheld the award and not to reject it. We consider it unnecessary to dilate upon it 47. The discussion leads to the inescapable conclusion that a specific question of law touching the jurisdiction of the arbitrator was specifically referred to the arbitrator and therefore the arbitrators decision is binding on the parties and the award cannot be set aside on the sole ground that there was an error of law apparent on the on face of the award. It is also established that the claim for compensation made by the arbitrator which led to the dispute was covered by the arbitration clause. The quantum of compensation awarded by the arbitrator was never disputed nor questioned. Therefore, the High Court was clearly in error in reversing the decision of the trial court

1[ds]ng expansion of international trade and commerce, complex questions of private International Law, effect of local laws on contracts between parties belonging to different nations are certainly bound to crop up. Arbitration has been considered a civilised way of resolving such disputes avoiding court proceedings. There is no reason why the parties should be precluded from referring a specific question of law to an arbitrator for his decision and agree to be bound by the same. This approach manifests faith of parties in the capacity of the tribunal of their choice to decide even a pure question of law. If they do so, with eyes wide open, and there is nothing to preclude the parties from doing so, then there is no reason why the Court should try to impose its view of law superseding the view of the tribunal whose decision the parties agreed to abide by. Therefore, on principle it appears distinctly clear that when a specific question of law is referred to an arbitrator for his decision including the one touching upon the jurisdiction of the arbitrator, the decision of the arbitrator would be binding on both the parties and it would not be open to any of the two parties to wriggle out of it by contending that the arbitrator cannot clutch at or confer jurisdiction upon himself by misconstruing the arbitration agreementThe mere fact that both parties submit incidental arguments about a point of law in the course of the proceedings is not enough. This decision is an authority for the proposition that where the parties specifically agree to refer a specific question of law for the decision of the arbitrator, and agree to be bound by it, the Court cannot set aside the award on the ground on an error of law apparent on the face of it even though the decision of the arbitrator may not accord with the law as understood by the Court. If on the other hand, the question of law is incidentally decided by the arbitrator, it is not enough to oust the jurisdiction of the Court to set aside the award on the ground that there is an error apparent on the face of the award25. Mr. Pai on the other hand urged that the jurisdiction of the arbitrator could not be determined by him nor can he arrogate jurisdiction to himself by misconstruction of the contract and thereby clutch at jurisdiction and in such a situation, the Court always retains to itself to set at naught the award on the ground of an error of law apparent on the face of the award. In terms, he stated that the issue about the jurisdiction of the arbitrator has never been parted with by the Court. Generally speaking, common law courts were very reluctant to part with their jurisdiction to set at naught an award on the ground that the arbitrator had no jurisdiction to entertain and decide the dispute. The Court went so far as to say that the arbitrator cannot confer jurisdiction upon himself by deciding in its own favour some preliminary points upon which its jurisdiction rests. In facts, that is a. It cannot be disputed that even the question of jurisdiction of an arbitrator can be the subject matter of a specific reference. If the parties agree to refer the specific question whether the dispute raises is covered by the arbitration agreement, it becomes a specific question of law even if it involves the jurisdiction of the arbitrator and if it is so, a decision of the arbitrator on specific question referred to him for decision even if it appears to be erroneous to the Court is binding on the parties. The decisions relied upon by Mr. Pai do not derogate from this legal position. We may briefly refer to those decisions32. On a conspectus of these decisions, it clearly transpires that if a question of law is specifically referred and it becomes evident that the parties desired to have a decision on the specific question from the arbitrator about that rather than one from court, then the court will not interfere with the award of the arbitrator on the ground that there is an error of law apparent on the face of the award even if the view of law taken by the arbitrator does not accord with the view of the court. This view of law taken in England was stated by this Court to be the same in this country and since the decision in Seth Thawardas case (1955 2 SCR 48 , 53, 54 : AIR 1955 SC 468 ) which follows earlier decisions in England and India, it has not been departed from. The view canvassed for by Mr. Pai that common law courts were very reluctant to part with their jurisdiction has hardly any relevance where a specific question of law including the one touching the jurisdiction of the arbitrator is referred to the arbitrator for his decision. Even if the decision of the arbitrator does not accord with the view of the court, the award cannot be set aside on the sole ground that there is an error of law apparent on the face of itApart from the technical meaning which the expression without prejudice carries depending upon the context in which it is used, in the present case on a proper reading of the correspondence and in the setting in which the term is used, it only means that the respondent reserved to itself the right to contend before the arbitrator that a dispute raises or the claim made by the contractor was not covered by the arbitration clause. No other meaning can be assigned to it. An action taken without prejudice to ones right cannot necessarily mean that the entire action can be ignored by the party taking the same. In this case, the respondent referred the specific question of law to the arbitrator34. In this case, as earlier pointed out a specific question as to whether the claim of compensation made by ther and demurred and disputed by the respondent would be covered within the scope, ambit and width of the arbitration clause, was specifically referred by the parties for the decision of the arbitrator. Therefore, it is a case where a specific question of law touching upon the jurisdiction of the arbitrator was referred for the decision of the arbitrator by the parties. Even if the view taken by the arbitrator may not accord with the view of the Court about the scope, ambit and width of the arbitration clause, the award cannot be set aside on the ground that there is an error of law apparent on the face of the award. The view taken by the High Court is palpably untenable and has to be reversed. On this short point, the appeal can be allowed. However, it was strenuously urged by both the sides that the dispute arising out of the claim for compensation made by the appellant on account of the increase in the cost of the pile driving equipment and technicalw fees would or would not be covered by the first paragraph of Clause 40, we would briefly examine the same to point out that it would be coveredIt is thus unquestionably established that the appellant whose tender was accepted after negotiations and scrutiny by the Tender Committee was expected to invest Rs. 2 crores in importing pile driving equipment and technicalw fees. The tender was accepted and a formal contract was entered into on this basis. In works contract of such magnitude, the value whereof was over Rs. 24 crores, and which was being undertaken by an Indian contractor for the first time negotiations prior to the finalisation of the contract and the correspondence leading to the formation of contract supply the basis on which contract was finally entered into. Undoubtedly, if in the final written contract, there is something contrary to the basic understanding during the formative stage of the contract, the written contract would prevail. But if the contract does not indicate to the contrary and the assumptions appeared to be the foundation of the contract, obviously that aspect cannot be overlooked while determining what were the obligations undertaken under the formal contract. It may be recalled that the two alternative rates were quoted by the contractor : (i) the respondent were to import the pile driving equipment and technicalw for its operation, the same would be leased to the contractor at negotiated rates or (ii) the contractor were to import the same the rates to be paid to contractor. The second alternative was accepted by the parties on the fundamental assumption that the investment in this behalf would be Rs. 2 crores. This is the agreed position on which contract was entered into. To continue the narrative, it may be pointed out that this fundamental foundation of the contract was not left to guesswork, but is specifically referred to in the notice inviting tender and in the specifications and modifications as addenda to the General Conditions of Contract. It was clearly understood between the parties that the contractor has to invest roughly Rs. 2 crores in foreign exchange for importing pile driving equipment and technicalw fees without which this work could never have been undertaken and without which it would not have been entrusted at the contractor. The contractor when he quoted his terms must obviously have made appropriate calculations, one of which in this case appears to be that it will have to invest Rs. 2 crores in foreign exchange and this fact files in the face that after the work was over, the imported machinery would depreciate to this extent that it would have hardly any use or utility to the contractor as noticed by the Tender Committee. The rates quoted by the contractor were obviously interrelated to the basic assumption. The fact that such was also the understanding of the respondent may now be pointed out37. From the commencement i.e. from the stage of inviting tenders and through the negotiations and the finalisation of the contract, at every stage, the respondent assured that foreign exchange would be made available from Eleventh Yen Credit. As the equipment was not available from Japan, the availability of Yen Credit became otiose from the contractors point of view. At the instance of an with the active participation of the respondent, the contractor made enquiries in various countries and ultimately procured the necessary equipment and technicalw which was approved by the respondent and imported the same. In the time lag, the price as well as the foreign exchange rates in relation to rupee underwent an upward change, with the result that the contractor had to invest, as made out by it and not seriously controverted before the arbitrator in all Rs. 275.40 lacs for imported pile driving equipment and spares and Rs. 18, 64, 337.61 on technicalw fees and a further sum for higher custom duty. Details of the claim have been set out in Annexure 1 and 2 respectively to the statement of claim submitted by the appellant to the arbitrator. The respondent in itst did not controvert the details of the claim and the expenditure involved under the two heads. The whole of them was concerned with the denial of its liability to compensate the contractor coupled with the contention that the claim would not be covered by the arbitration agreement and therefore, the arbitrator had no jurisdiction to entertain and adjudicate the claim. It may also be mentioned that at no time since the award, the claim. It may also be mentioned that at no time since the award, the respondent ever disputed or questioned the amount awarded by the arbitrator. It is thus satisfactorily established the contractor had to invest something far in excees of Rs. 2 crores which it was expected to invest in foreign exchange for imported pile driving equipment and technicalw fees. The whole contract was concluded on this understanding. Being aware of the fluctuating position in this behalf, the contractor had tendered two alternative rates for completion of the work as pointed out earlier; one based on equipment being imported by the respondent and leased to the appellant and alternatively rates on the basis that the contractor would import pile driving equipment and technical. In respect of the second alternative, which was ultimately agreed to between the parties, it was clearly and unmistakably understood agreed to between the parties that the contractor would have to invest Rs. 2 crores and the rates were corelated to this investment with the knowledge of the fact that when work was completed, the equipment would depreciate to the tune of 75 per cent of its capability and would be hardly of any use to the contractor. The estimated expenditure having far exceeded, a claim for compensation would certainly be tenable at the instance of the contractorn of the clauses of the contract involving works of such magnitude is impermissible. The whole gamut of discussions, negotiations and correspondence must be taken into consideration to arrive at a true meaning of what was agreed to between the parties. And in this case there is no room for doubt that the parties agreed that the investment of the contractor under this head would be Rs. 2 crores and the tendered rates were predicated upon andd to this understanding. When an agreement is predicated upon an agreed fact situation, if the latter ceases to exist the agreement to that extent becomes irrelevant or otiose. The rates payable to the contractor were related to the investment of Rs. 2 crores under this head by the contractor. Once the rates became irrelevant on account of circumstances beyond the control of the contractor, it was open to the contractor to make a claim for compensation. Therefore, it appears satisfactorily established that the claim arose while implementing the contract and in relation to the contractAgain the language of Clause 40 shows that any claim arising out of the contract in relation to estimates made in the contract would be covered by the arbitration clause. If it becomes necessary to have recourse to the contract to settle the dispute one way or the other then certainly it can be said that it is a dispute arising out of the contract. And in this case the arbitration clause so widely worded as disputes arising out of the contract or in relation to the contract or execution of the works would comprehend within its compass a claim for compensation related toe estimates and arising out of the contract. The test is whether it is necessary to have recourse to the contract to settle the dispute that has arisen44. In the facts before, us, the respondent in para 4 of its counterstatement filed before the arbitrator specifically referred to Clause 16 of the General Condition of Contract and to the Additional Terms and Conditions/Modifications forming part of the contract document. In paragraph 11, it was stated that the claim of the appellant was completely outside the purview of the contract and the same does not fall within the purview of the first paragraph of Clause 40. It was further stated in paragraph 13 that the contract provides for escalation in certain respects and that is the only escalation which is admissible in terms of the contract, and the claim made by the appellant does not come within the escalation clause nor in the agreed formula relating to such escalation. The contractor relied upon Clause 13 of the Additional Terms and Conditions/Modifications which form part of the contract document to sustain its claim. From the pleadings, it clearly transpires that both the parties had recourse to the contract which is admittedly entered into in support of the rival contentions and therefore, the claim made by the appellant would be covered by the arbitration clause, which is of the widest amplitude. It is thus satisfactorily established that the claim made by the contractor would be covered by the arbitration clause45. Mr. Nariman also wanted us to examine whether the claim made by the arbitrator would be admissible on the principle of quantum merit. It is not necessary to examine this aspect at all in the view which we are taking46. He also wanted us to adopt an approach that the effort of the Court must be to upheld the award and not to reject it. We consider it unnecessary to dilate upon it47. The discussion leads to the inescapable conclusion that a specific question of law touching the jurisdiction of the arbitrator was specifically referred to the arbitrator and therefore the arbitrators decision is binding on the parties and the award cannot be set aside on the sole ground that there was an error of law apparent on the on face of the award. It is also established that the claim for compensation made by the arbitrator which led to the dispute was covered by the arbitration clause. The quantum of compensation awarded by the arbitrator was never disputed nor questioned. Therefore, the High Court was clearly in error in reversing the decision of the trial court

### Instruction: Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant. ### Input: that the dispute is covered by the arbitration clause observed that looking to the rival contentions, 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. The test formulated was that if in settling a dispute, a reference to the contract is necessary, such a dispute would be covered by the arbitration clause 41. In Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar (1952 SCR 501 , 507 : AIR 1952 SC 119 : 1952 22 Com Cas 111) this Court was concerned with the clause in a policy of insurance which provided that differences arising out of the policy shall be referred to the decision of the arbitrator. In construing this clause, this Court observed as under The test is whether recourse to the contract by which the parties are bound is necessary for the purpose determining the matter in dispute between them. If such recourse to the contract is necessary, the matter must come within the scope of the arbitrators jurisdictionIn Union of India v. Salween Timber Construction (India) (1969 2 SCR 224 : AIR 1969 SC 488 ), this Court observed that the test for determining the question is whether recourse to the contract by which both the parties are bound is necessary for the purpose of determining whether the claim of the respondent firm is justified or otherwise. If it is necessary to take recourse to the terms of the contract for the purpose of deciding the matter in dispute, it must be held that the matter is within the scope of the arbitration clause and the arbitrators have jurisdiction to decide the same. In so stating the proportion of law, reliance was placed on Heyman v. Darwins Ltd. (1942 AC 356, 366), in which it was held that where the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them whether there has been a breach by one side or the other, or whether circumstances have arisen which have discharged one or both parties from further performance, such differences should be regarded as differences which have arisen in respect of or with regard to or under the contract, and an arbitration clause which uses these, or similar expressions should be construed accordingly. The Court affirmed the decision in Ruby General insurance Co. Ltd. case (1952 SCR 501 , 507 : AIR 1952 SC 119 : 1952 22 Com Cas 111) 42. In Astro Vencedor Compania Naviera S. A. of Panama v. Mabanaft GmbH (1971 2 QB 588 : 1971 2 All ER 1301 : 1971 3 WLR 24), a question arose whether a claim in tort would be covered by the arbitration clause ? It was admitted that the claim for wrongful arrest is a claim in tort. And it was contended that a claim in tort cannot come within the arbitration clause. The Court of Appeal speaking through Lord Denning held that the claim in tort would be covered by the arbitration clause, if the claim or the issue has a sufficiently close connection with the claim under the contract 43. In Gunter Henck v. Andre & CIE S. A. (1970 1 Lloyds Law Reports 235), the Court Queens Bench Division (Commercial Court) held that the words arising out of clearly extend the meaning than would otherwise be applied to the clause were limited to all disputes arising under the contract 44. In the facts before, us, the respondent in para 4 of its counter- statement filed before the arbitrator specifically referred to Clause 16 of the General Condition of Contract and to the Additional Terms and Conditions/Modifications forming part of the contract document. In paragraph 11, it was stated that the claim of the appellant was completely outside the purview of the contract and the same does not fall within the purview of the first paragraph of Clause 40. It was further stated in paragraph 13 that the contract provides for escalation in certain respects and that is the only escalation which is admissible in terms of the contract, and the claim made by the appellant does not come within the escalation clause nor in the agreed formula relating to such escalation. The contractor relied upon Clause 13 of the Additional Terms and Conditions/Modifications which form part of the contract document to sustain its claim. From the pleadings, it clearly transpires that both the parties had recourse to the contract which is admittedly entered into in support of the rival contentions and therefore, the claim made by the appellant would be covered by the arbitration clause, which is of the widest amplitude. It is thus satisfactorily established that the claim made by the contractor would be covered by the arbitration clause 45. Mr. Nariman also wanted us to examine whether the claim made by the arbitrator would be admissible on the principle of quantum merit. It is not necessary to examine this aspect at all in the view which we are taking 46. He also wanted us to adopt an approach that the effort of the Court must be to upheld the award and not to reject it. We consider it unnecessary to dilate upon it 47. The discussion leads to the inescapable conclusion that a specific question of law touching the jurisdiction of the arbitrator was specifically referred to the arbitrator and therefore the arbitrators decision is binding on the parties and the award cannot be set aside on the sole ground that there was an error of law apparent on the on face of the award. It is also established that the claim for compensation made by the arbitrator which led to the dispute was covered by the arbitration clause. The quantum of compensation awarded by the arbitrator was never disputed nor questioned. Therefore, the High Court was clearly in error in reversing the decision of the trial court ### Response: 1

Purnima Manthena Vs. Dr. Renuka Datla

with a regular appeal under Section 10F of the Act on a question of law from a decision rendered by the CLB on merits, after a complete adjudication. The appeal before it, being one on principle and from an order rendered by the CLB in the exercise of its discretion at the preliminary stage awaiting the pleadings of the respondents therein, we are of unhesitant opinion that the scrutiny in the appeal ought to have been essentially confined to the aspects of which the CLB had taken cognizance, to pass its order at that stage, and not beyond. 49. As it is, though a colossus of facts with the accompanying contentious issues are involved, having regard to the stage at which the order of the CLB had been passed, no exhaustive examination of the factual and legal aspects ought to have been undertaken by the High Court to record its conclusive deductions on the basis thereof. Keeping in view the stage wise delineation of the jurisdictional frontiers of the forums in the institutional hierarchy as codified by law, the High Courts quest to unravel the entire gamut of law and facts involved at the preliminary stage of the proceeding before the CLB and to record its findings on all issues involved on merits did amount to prejudging those, thereby rendering the petition before the CLB redundant for all intents and purposes. 50. In the instant case, though the CLB, as a matter of fact, did not record any view on the merits of the case while deferring the consideration of the interim relief , being satisfied with the undertakings offered on behalf of the appellants and other contesting Directors, the High Court has, by the impugned decision, decisively furnished its views and conclusions on all vital issues, as a consequence, leaving little or none for the CLB to decide. This is not the role of the appellate forum as is contemplated under Section 10F of the Act qua the stage from which the appeal had been preferred from the order of the CLB. 51. Noticeably in the face of the undertaking given by the appellants and the pendency of the demerger proceeding separately before the High Court, in our view, there did not exist any searing urgency to substitute the existing Board of Directors as done and to continue with it till the disposal of the suit and at the same time to keep the proceeding of the CLB pending till then. This is more so, as can be culled from the order dated 6.8.2014 of the CLB, the status of the respondent No.1 as Executive Director of the Company has been secured and further alienation of the assets of the company, otherwise has been restrained. Assuredly, these are based on undertakings before the CLB as given by the appellants, the contesting Directors and the CLB having taken note thereof, the same are as good as binding directions on the parties. The aspect of demerger as adverted to hereinabove, is the subject matter of adjudication in a separate proceeding on which, at this stage, no observation is called for. Suffice it to state however, that the aspect of demerger for the present cannot ipso facto be an impelling factor to conclude in favour of allegation of oppression and mis-management as made by the respondent No. 1. 52. In the wake up of above, we feel persuaded to interfere with the impugned decision of the High Court, without observing any final opinion on the merit of the contrasting assertions. In our comprehension, having regard to the relief provided by the CLB by its order dated 6.8.2014 to the parties, it ought to be left to decide the petition on merits after affording them a reasonable opportunity of furnishing their pleadings. As in the course of hearing, some grievance was expressed on behalf of respondent No. 1 that her status as the Executive Director of the company, stands undermined due to uncalled for surveillance imposed at the instance of the existing Board of Directors, we make it clear, as has been assured before us, that she ought to be allowed to function in the aforesaid capacity being provided with all facilities and privileges attached to the office as permissible in law, so much so that she does not have any occasion to complain in this regard. This indeed ought to be in accord with the letter and spirit of the undertaking offered by the Board of Directors to the CLB. The respondent No. 1 too would cooperate in the day to day management of the affairs of the company in her said capacity. The existing Board of Directors would also abide by the undertaking as recorded in the order dated 6.8.2014 of the CLB qua the alienation of the assets of the company. The set-up of the Board of Directors and the arrangement vis-a-vis the administration of the affairs of the company, as was existing on the date on which the order dated 6.8.2014 was passed by the CLB, would continue until further orders by it. The CLB is, however, directed to dispose of the proceeding before it as expeditiously as possible. As the suit filed by the respondent No. 1, as noted hereinabove, is also pending, we hereby direct the Civil Court before which it is pending, to deal with the same with expedition as well, so as to provide a quietus to the lingering family discord in the overall well being of the company and its constituents. 53. Before parting, we need to take note of the submission of Mr. P.P. Rao, learned senior counsel appearing for Mr. G.V. Rao that the averments made in subparagraph 2 of the counter-affidavit filed by the respondent No. 1 at page 720 thereof besides being utterly incorrect and defamatory are liable to be effaced from the records. We are of the considered view that this assertion needs to be sustained. We thus, expunge these averments being wholly inessential for deciding the issues involved.

1[ds]38. As the quoted provision would reveal, a person aggrieved by a decision or order of the CLB, may file an appeal before the High Court within 60 days from the date of communication of the decision or order to him on any question of law arising out of such order. The period of limitation prescribed, however, is extendable by the High Court by another 60 days on its satisfaction that the appellant had been prevented by sufficient cause in doing so39. The expression ?decision or order? and ?any question of law arising out of such order? persuasively command for an inquest, to appropriately address the issue in hand. The right to appeal under Section 10F of the Act unambiguously being one conferred by a statute, the aspect of circumscription, if any, of the contours of the enquiry by the appellate forum, would be of formidable significance. The precedential guidelines available offer the direction45. The unequivocal legal propositions as judicially ordained, to ascertain the emergence and existence of a question of law, the scope of examination thereof by a court of appellate jurisdiction and the balancing of the competing factors in the grant of interlocutory remedy, hallowed by time, indeed are well settled. A question of law, as is comprehended in Section 10F of the Act, would arise indubitably, if a decision which is the foundation thereof, suffers from perversity, following a patent error on a fundamental principle of law or disregard to relevant materials or cognizance of irrelevant or non-germane determinants. A decision however, on the issues raised, is a sine qua non for a question of law to exist. A decision logically per-supposes an adjudication on the facets of the controversy involved and mere deferment thereof to a future point of time till the completion of the essential legal formalities would not ipso facto fructify into a verdict to generate a question of law to be appealed from. However, an omission to record a finding even on a conscious scrutiny of the materials bearing on the issues involved in a given case, may be termed to be one. Be that as it may, in any view of the matter, the appellate forum though exercising a jurisdiction which otherwise may be co-ordinate with that of the lower forum, ought to confine its judicial audit within the layout of the adjudgment undertaken by the forum of lower tier. This is imperative, more particularly in the exercise of the appellate jurisdiction qua a decision on discretion rendered at an introductory stage of any proceeding, otherwise awaiting final adjudication on merits following a full contest. It is settled that no adjudication at the preliminary stage of a proceeding in a court of law ought to have the attributes of a final verdict so as to prejudge the issues at that stage, thereby rendering the principal determination otiose or redundant. This is more so, if the pleadings of the parties are incomplete at the threshold stage and the lower forum concerned seeks only to ensure a working arrangement vis-a-vis the dissension and postpone fuller and consummate appreciation of the rival assertions and the recorded facts and the documents at a later stage47. Reverting to the present facts, noticeably the parties are contentiously locked on several issues, legal and factual, a brief outline whereof has been set-out hereinabove. While seeking the intervention of the CLB on the key accusation of oppression and mis-management as conceptualised in Sections 397 and 399 of the Act, the respondent No. 1 had retraced the march of events from 9.4.2013, the date on which, according to her, when the meeting of the Board of Directors, invalid in law, was convened and conducted by Mr. G.V. Rao , who allegedly had no authority to do so, he having resigned from the company. She had asserted her express and implicit reservation in this regard and her disapproval not only of the constitution of the Board of Directors since then but also of the decisions taken from time to time. Without recapitulating the stream of developments that had occurred, suffice it to mention, that after a series of intervening legal proceedings, she finally did submit a petition before the CLB amongst other under Sections 397, 398,402/403/404 and 406 of the Act alleging oppression and mis-management and highlighting in that regard, the imminent possibility of alienation of the vital assets of the company through a purported scheme of demerger to the undue benefit of other Directors of the Board of the company. In contradiction, the appellants and the contesting Directors have not only endorsed the validity of the meetings on or from 9.4.2013 contending that respondent No. 1 though intimated thereof, had opted out therefrom and on the basis of the record, have sought to demonstrate her participation in the meetings, amongst others on 24.5.2013, 22.8.2013 and the Annual General Meeting held on 18.12.2013 as permitted by the CLB, they have also emphatically adverted to the letter dated 15.4.2013 addressed by the respondent No. 1 seemingly acknowledging the lawful induction of the appellant (Ms. Mahima Datla) as the Managing Director and her two sisters as the Directors in the Board. The appellants and other contesting respondents have also endeavoured to underline that the respondent No. 1 has accepted the distribution of the shares held by Dr. Vijay Kumar Datla in the HUF as decided in the meeting dated 24.5.2013 and also the enhancement in her remuneration as the Executive Director as minuted in the Annual General Meeting dated 18.12.2013. There is no denial by her as well as of the pendency of the demerger proceeding before the High Court48. In the above overwhelming factual premise, the High Court, as the impugned decision would demonstrate, being fully conscious that the proceeding before the CLB was pending for final adjudication, proceeded to undertake an in-depth exercise to fathom and analyse the facts and the law involved and has recorded its decision on merits in total substitution of the order of the CLB. This to reiterate, is in absence of any pleadings by the appellants, the contesting Directors before the CLB. This assumes importance as the High Court did resort to a full-fledged scrutiny of the factual and legal aspects, to test the legality and/or validity of the order dated 6.8.2014 of the CLB at the stage of mentioning. Having regard to the fact that the appeal before the High Court under Section 10F of the Act was one from an interim order passed in exercise of judicial discretion at the stage of mentioning, in our view, bearing in mind the permissible parameters of exercise of appellate jurisdiction in such matters, the elaborate pursuit so undertaken by it, is neither contemplated nor permissible. The High Court, in any view of the matter, was not dealing with a regular appeal under Section 10F of the Act on a question of law from a decision rendered by the CLB on merits, after a complete adjudication. The appeal before it, being one on principle and from an order rendered by the CLB in the exercise of its discretion at the preliminary stage awaiting the pleadings of the respondents therein, we are of unhesitant opinion that the scrutiny in the appeal ought to have been essentially confined to the aspects of which the CLB had taken cognizance, to pass its order at that stage, and not beyond49. As it is, though a colossus of facts with the accompanying contentious issues are involved, having regard to the stage at which the order of the CLB had been passed, no exhaustive examination of the factual and legal aspects ought to have been undertaken by the High Court to record its conclusive deductions on the basis thereof. Keeping in view the stage wise delineation of the jurisdictional frontiers of the forums in the institutional hierarchy as codified by law, the High Courts quest to unravel the entire gamut of law and facts involved at the preliminary stage of the proceeding before the CLB and to record its findings on all issues involved on merits did amount to prejudging those, thereby rendering the petition before the CLB redundant for all intents and purposes50. In the instant case, though the CLB, as a matter of fact, did not record any view on the merits of the case while deferring the consideration of the interim relief , being satisfied with the undertakings offered on behalf of the appellants and other contesting Directors, the High Court has, by the impugned decision, decisively furnished its views and conclusions on all vital issues, as a consequence, leaving little or none for the CLB to decide. This is not the role of the appellate forum as is contemplated under Section 10F of the Act qua the stage from which the appeal had been preferred from the order of the CLB51. Noticeably in the face of the undertaking given by the appellants and the pendency of the demerger proceeding separately before the High Court, in our view, there did not exist any searing urgency to substitute the existing Board of Directors as done and to continue with it till the disposal of the suit and at the same time to keep the proceeding of the CLB pending till then. This is more so, as can be culled from the order dated 6.8.2014 of the CLB, the status of the respondent No.1 as Executive Director of the Company has been secured and further alienation of the assets of the company, otherwise has been restrained. Assuredly, these are based on undertakings before the CLB as given by the appellants, the contesting Directors and the CLB having taken note thereof, the same are as good as binding directions on the parties. The aspect of demerger as adverted to hereinabove, is the subject matter of adjudication in a separate proceeding on which, at this stage, no observation is called for. Suffice it to state however, that the aspect of demerger for the present cannot ipso facto be an impelling factor to conclude in favour of allegation of oppression and mis-management as made by the respondent No. 152. In the wake up of above, we feel persuaded to interfere with the impugned decision of the High Court, without observing any final opinion on the merit of the contrasting assertions. In our comprehension, having regard to the relief provided by the CLB by its order dated 6.8.2014 to the parties, it ought to be left to decide the petition on merits after affording them a reasonable opportunity of furnishing their pleadings. As in the course of hearing, some grievance was expressed on behalf of respondent No. 1 that her status as the Executive Director of the company, stands undermined due to uncalled for surveillance imposed at the instance of the existing Board of Directors, we make it clear, as has been assured before us, that she ought to be allowed to function in the aforesaid capacity being provided with all facilities and privileges attached to the office as permissible in law, so much so that she does not have any occasion to complain in this regard. This indeed ought to be in accord with the letter and spirit of the undertaking offered by the Board of Directors to the CLB. The respondent No. 1 too would cooperate in the day to day management of the affairs of the company in her said capacity. The existing Board of Directors would also abide by the undertaking as recorded in the order dated 6.8.2014 of the CLB qua the alienation of the assets of the company. The set-up of the Board of Directors and the arrangement vis-a-vis the administration of the affairs of the company, as was existing on the date on which the order dated 6.8.2014 was passed by the CLB, would continue until further orders by it. The CLB is, however, directed to dispose of the proceeding before it as expeditiously as possible. As the suit filed by the respondent No. 1, as noted hereinabove, is also pending, we hereby direct the Civil Court before which it is pending, to deal with the same with expedition as well, so as to provide a quietus to the lingering family discord in the overall well being of the company and its constituents53. Before parting, we need to take note of the submission of Mr. P.P. Rao, learned senior counsel appearing for Mr. G.V. Rao that the averments made in subparagraph 2 of the counter-affidavit filed by the respondent No. 1 at page 720 thereof besides being utterly incorrect and defamatory are liable to be effaced from the records. We are of the considered view that this assertion needs to be sustained. We thus, expunge these averments being wholly inessential for deciding the issues involved

### 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: with a regular appeal under Section 10F of the Act on a question of law from a decision rendered by the CLB on merits, after a complete adjudication. The appeal before it, being one on principle and from an order rendered by the CLB in the exercise of its discretion at the preliminary stage awaiting the pleadings of the respondents therein, we are of unhesitant opinion that the scrutiny in the appeal ought to have been essentially confined to the aspects of which the CLB had taken cognizance, to pass its order at that stage, and not beyond. 49. As it is, though a colossus of facts with the accompanying contentious issues are involved, having regard to the stage at which the order of the CLB had been passed, no exhaustive examination of the factual and legal aspects ought to have been undertaken by the High Court to record its conclusive deductions on the basis thereof. Keeping in view the stage wise delineation of the jurisdictional frontiers of the forums in the institutional hierarchy as codified by law, the High Courts quest to unravel the entire gamut of law and facts involved at the preliminary stage of the proceeding before the CLB and to record its findings on all issues involved on merits did amount to prejudging those, thereby rendering the petition before the CLB redundant for all intents and purposes. 50. In the instant case, though the CLB, as a matter of fact, did not record any view on the merits of the case while deferring the consideration of the interim relief , being satisfied with the undertakings offered on behalf of the appellants and other contesting Directors, the High Court has, by the impugned decision, decisively furnished its views and conclusions on all vital issues, as a consequence, leaving little or none for the CLB to decide. This is not the role of the appellate forum as is contemplated under Section 10F of the Act qua the stage from which the appeal had been preferred from the order of the CLB. 51. Noticeably in the face of the undertaking given by the appellants and the pendency of the demerger proceeding separately before the High Court, in our view, there did not exist any searing urgency to substitute the existing Board of Directors as done and to continue with it till the disposal of the suit and at the same time to keep the proceeding of the CLB pending till then. This is more so, as can be culled from the order dated 6.8.2014 of the CLB, the status of the respondent No.1 as Executive Director of the Company has been secured and further alienation of the assets of the company, otherwise has been restrained. Assuredly, these are based on undertakings before the CLB as given by the appellants, the contesting Directors and the CLB having taken note thereof, the same are as good as binding directions on the parties. The aspect of demerger as adverted to hereinabove, is the subject matter of adjudication in a separate proceeding on which, at this stage, no observation is called for. Suffice it to state however, that the aspect of demerger for the present cannot ipso facto be an impelling factor to conclude in favour of allegation of oppression and mis-management as made by the respondent No. 1. 52. In the wake up of above, we feel persuaded to interfere with the impugned decision of the High Court, without observing any final opinion on the merit of the contrasting assertions. In our comprehension, having regard to the relief provided by the CLB by its order dated 6.8.2014 to the parties, it ought to be left to decide the petition on merits after affording them a reasonable opportunity of furnishing their pleadings. As in the course of hearing, some grievance was expressed on behalf of respondent No. 1 that her status as the Executive Director of the company, stands undermined due to uncalled for surveillance imposed at the instance of the existing Board of Directors, we make it clear, as has been assured before us, that she ought to be allowed to function in the aforesaid capacity being provided with all facilities and privileges attached to the office as permissible in law, so much so that she does not have any occasion to complain in this regard. This indeed ought to be in accord with the letter and spirit of the undertaking offered by the Board of Directors to the CLB. The respondent No. 1 too would cooperate in the day to day management of the affairs of the company in her said capacity. The existing Board of Directors would also abide by the undertaking as recorded in the order dated 6.8.2014 of the CLB qua the alienation of the assets of the company. The set-up of the Board of Directors and the arrangement vis-a-vis the administration of the affairs of the company, as was existing on the date on which the order dated 6.8.2014 was passed by the CLB, would continue until further orders by it. The CLB is, however, directed to dispose of the proceeding before it as expeditiously as possible. As the suit filed by the respondent No. 1, as noted hereinabove, is also pending, we hereby direct the Civil Court before which it is pending, to deal with the same with expedition as well, so as to provide a quietus to the lingering family discord in the overall well being of the company and its constituents. 53. Before parting, we need to take note of the submission of Mr. P.P. Rao, learned senior counsel appearing for Mr. G.V. Rao that the averments made in subparagraph 2 of the counter-affidavit filed by the respondent No. 1 at page 720 thereof besides being utterly incorrect and defamatory are liable to be effaced from the records. We are of the considered view that this assertion needs to be sustained. We thus, expunge these averments being wholly inessential for deciding the issues involved. ### Response: 1

Maharajadhiraja Sir Kameshwar Singh Vs. Commissioner Of Income-Tax, Bihar And Orissa

purposes. The remuneration not being received as rent or revenue of agricultural lands under a title, legal or beneficial in the property from which the income is received, it is not income exempt under S. 4(3) (viii)8. We have briefly refer to the authorities which illustrate the meaning of "agricultural income in S. 2(1) of the Income-tax Act.9. In Habibullah v. Commr. of Income Tax, Bengal, 70 Ind App 141: (AIR 1943 PC 20 ), the Privy Council held that the remuneration received by a mutwalli of a wakf estate, not depending on the nature of the properties or assets which constitute the wakf nor on the amount of the income derived from the wakf estate, is not agricultural income within the meaning of S. 2(1) of the Indian Income Tax Act even though the income derived by the wakf estate is from properties used for agricultural purposes.10. In Premier Construction Co., Ltd, v. Commr of Income Tax, Bombay, 75 Ind App 246 : (AIR 1949 PC 20 ), it was held by the Privy Council that income received by an assessee not itself of a character to fall within the definition of agricultural income does not assume the character of agricultural income by reason of the source from which it is derived, or the method by which it is calculated. But if the income received falls within the definition of agricultural income, it earns exemption, in whatever character the assessee receives it. In that case, the remuneration payable to a managing agent of a company in consideration of services to be rendered was a minimum annual salary of Rs. 10,000/- payable irrespective of whether the company made any profit; but if 10 per cent of the profit made by the company exceeded by Rs. 10,000/- the agent was to get an additional remuneration calculated as a percentage upon the profits of the company without regard to the source from which those profits were derived. One of the sources of income of the company was agricultural income. It was held by the Privy Council that the assessee received no agricultural income as defined by the Act: he received remuneration under a contract for personal service calculated on the amount of profits earned by the employer.11. In Commr. of Income Tax, B and O. v. Kameshwar Singh, 62 Ind App 215: (AIR 1935 PC 172 ), income received by a mortgagee who went into possession of properties mortgaged to him was held to be agricultural income; but that was because under the deed of mortgage, the mortgagee was to be in possession of the properties and in his relation to the cultivators of the soil, he stood in the position of landlord dealing directly with them and collecting the rents. The mortgagee had to pay Government revenue, cesses and taxes and his name was registered in the Land Registration Department. He alone was able to sue for rent whether current or arrears , to sue for enhancement or for ejectment and was able to settle lands with raiyats and tenants in all the properties, in fact, he was in a position to take all proceedings which the mortgagor would have been able to take in the ordinary course if the lands leased and mortgaged had remained in the mortgagors possession. The mortgagee received the income, because of the legal ownership vested in him and even though under the convenant of the mortgage deed, he was required to appropriate the income towards his dues, the income in his hands did not cease to be agricultural income. In Kameshwar Singhs case, the court was called upon to consider the nature of the primary receipt by the mortgagee and not of the appropriation made under the covenant of the deed of mortgage.12. In Mohammad Isa v. Commr. of Income tax, Central and United Provinces, ILR (1942) All 425 : (AIR 1942 All 194 (SB)), the assessee was a mutwalli appointed under two deeds. Under both the deeds, he was to receive agricultural and non-agricultural income and to utilise the same for purposes of the trust. Under one of the two deeds of trust, the balance was to be retained by the mutwalli for his personal expenses and in the other in lieu of his services. It was held by the Allahabad High Court that the residue of the amounts retained by the mutwalli under both the deeds of trust was, as agricultural income, exempt from liability to pay tax. In the view of the court, though the language used in the two deeds of trust was different, the intention of the settler was the same: the mutwalli was required to perform the functions of his office and so long as he did so, he was entitled in consideration of the service to appropriate the residue of the profits. But in each case, the mutwalli was a beneficiary with an obligation attached to his enjoyment of the benefit, and had therefore two capacities, one as mutwalli and the other as beneficiary. The court on those facts held that the balance of the income from the zamindari went "through the mutwalli" to the beneficiary by virtue of an obligation imposed under the terms of the trust deed itself upon the income of the property. The mutwali was the channel through which the beneficiary received the money and the beneficiary was to all intents and purposes the direct recipient of the income, and there was no change of source and no alteration in the character of the income. It remained agricultural income after it had passed in the hands of the beneficiary. In the present case, the appellant has no beneficial interest in the trust property. The appellant so far as his remuneration is concerned is again not the direct recipient of the income of the trust : the source and the character of the income are both altered when agricultural income is appropriated under the covenant in the deed of trust as remuneration for services rendered.

0[ds]6. Agricultural income falling under cl (a) ought manifestly to be received as rent or revenue derived from land used for agricultural purposes. The income received from agricultural properties of the trust by the appellant as trustee was indisputably agricultural income in hands and it was by virtue of S. 4(3) (viii) exempt from liability to pay tax. The appellant claims that the remuneration which by the covenant contained in the deed of trust he has received is also exempt under S. 4(3) (viii) because, when he appropriated a fraction of the rent or revenue of agricultural lands towards his remuneration, the original character of the income was not altered.7. The appellant has no beneficial interest in the lands which are subject matter of the trust; nor is he given under the trust a right to receive and appropriate to himself the income of the properties or a part thereof in lieu of any beneficial interest in that income. The source of the right in which a fraction of the net income of the trust is to be appropriated by the appellant as his remuneration is not in the right to receive rent or revenue of agricultural lands, but rests in the covenant in the deed to receive remuneration for management of the trust. The income of the trust appropriated by the appellant as remuneration is not received by him as rent or revenue of land; the character of the income appropriated as remuneration due is again not the same as the character in which it was received by the appellant as trustee. Both the source and character of the income are therefore altered when a part of the income of the trust is appropriated by the appellant as his remuneration, and that is so, notwithstanding that computation of remuneration is made as a percentage of the income, a substantial part whereof is derived from lands used for agricultural purposes. The remuneration not being received as rent or revenue of agricultural lands under a title, legal or beneficial in the property from which the income is received, it is not income exempt under S. 4(3) (viii)

### 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: purposes. The remuneration not being received as rent or revenue of agricultural lands under a title, legal or beneficial in the property from which the income is received, it is not income exempt under S. 4(3) (viii)8. We have briefly refer to the authorities which illustrate the meaning of "agricultural income in S. 2(1) of the Income-tax Act.9. In Habibullah v. Commr. of Income Tax, Bengal, 70 Ind App 141: (AIR 1943 PC 20 ), the Privy Council held that the remuneration received by a mutwalli of a wakf estate, not depending on the nature of the properties or assets which constitute the wakf nor on the amount of the income derived from the wakf estate, is not agricultural income within the meaning of S. 2(1) of the Indian Income Tax Act even though the income derived by the wakf estate is from properties used for agricultural purposes.10. In Premier Construction Co., Ltd, v. Commr of Income Tax, Bombay, 75 Ind App 246 : (AIR 1949 PC 20 ), it was held by the Privy Council that income received by an assessee not itself of a character to fall within the definition of agricultural income does not assume the character of agricultural income by reason of the source from which it is derived, or the method by which it is calculated. But if the income received falls within the definition of agricultural income, it earns exemption, in whatever character the assessee receives it. In that case, the remuneration payable to a managing agent of a company in consideration of services to be rendered was a minimum annual salary of Rs. 10,000/- payable irrespective of whether the company made any profit; but if 10 per cent of the profit made by the company exceeded by Rs. 10,000/- the agent was to get an additional remuneration calculated as a percentage upon the profits of the company without regard to the source from which those profits were derived. One of the sources of income of the company was agricultural income. It was held by the Privy Council that the assessee received no agricultural income as defined by the Act: he received remuneration under a contract for personal service calculated on the amount of profits earned by the employer.11. In Commr. of Income Tax, B and O. v. Kameshwar Singh, 62 Ind App 215: (AIR 1935 PC 172 ), income received by a mortgagee who went into possession of properties mortgaged to him was held to be agricultural income; but that was because under the deed of mortgage, the mortgagee was to be in possession of the properties and in his relation to the cultivators of the soil, he stood in the position of landlord dealing directly with them and collecting the rents. The mortgagee had to pay Government revenue, cesses and taxes and his name was registered in the Land Registration Department. He alone was able to sue for rent whether current or arrears , to sue for enhancement or for ejectment and was able to settle lands with raiyats and tenants in all the properties, in fact, he was in a position to take all proceedings which the mortgagor would have been able to take in the ordinary course if the lands leased and mortgaged had remained in the mortgagors possession. The mortgagee received the income, because of the legal ownership vested in him and even though under the convenant of the mortgage deed, he was required to appropriate the income towards his dues, the income in his hands did not cease to be agricultural income. In Kameshwar Singhs case, the court was called upon to consider the nature of the primary receipt by the mortgagee and not of the appropriation made under the covenant of the deed of mortgage.12. In Mohammad Isa v. Commr. of Income tax, Central and United Provinces, ILR (1942) All 425 : (AIR 1942 All 194 (SB)), the assessee was a mutwalli appointed under two deeds. Under both the deeds, he was to receive agricultural and non-agricultural income and to utilise the same for purposes of the trust. Under one of the two deeds of trust, the balance was to be retained by the mutwalli for his personal expenses and in the other in lieu of his services. It was held by the Allahabad High Court that the residue of the amounts retained by the mutwalli under both the deeds of trust was, as agricultural income, exempt from liability to pay tax. In the view of the court, though the language used in the two deeds of trust was different, the intention of the settler was the same: the mutwalli was required to perform the functions of his office and so long as he did so, he was entitled in consideration of the service to appropriate the residue of the profits. But in each case, the mutwalli was a beneficiary with an obligation attached to his enjoyment of the benefit, and had therefore two capacities, one as mutwalli and the other as beneficiary. The court on those facts held that the balance of the income from the zamindari went "through the mutwalli" to the beneficiary by virtue of an obligation imposed under the terms of the trust deed itself upon the income of the property. The mutwali was the channel through which the beneficiary received the money and the beneficiary was to all intents and purposes the direct recipient of the income, and there was no change of source and no alteration in the character of the income. It remained agricultural income after it had passed in the hands of the beneficiary. In the present case, the appellant has no beneficial interest in the trust property. The appellant so far as his remuneration is concerned is again not the direct recipient of the income of the trust : the source and the character of the income are both altered when agricultural income is appropriated under the covenant in the deed of trust as remuneration for services rendered. ### Response: 0

Hamidullah (Dead) by his Legal Representatives & Others Vs. Sheikh Abdullah & Others

that he (Faqir Bux) cannot be evicted from "any portion of the land without payment of the cost of the constructions by way of compensation. No permanent tansy was set up in the written statement. What was pleaded was that he was entitled to remain in possession till the subsistence of the factory and that he was not liable to be evicted without payment of compensation for the constructions.14. The learned single judge, after considering these documents, found that the defendants 1 to 3 failed to establish the permanent tenancy set up by them. The main ground on which the Division Bench interfered with the finding of the learned single judge was that no weight could be attached to the admission contained in the recitals in the agreement made between Faqir Bux and the Maharaja of Balrampur. It may be recalled that the recitals in that agreement (Ex 12) was that Faqir Bux was occupying the land and the shops on payment of rent and he and Haji Khuda Bux had erected structures on land with their own funds with or without the permission of Balrampur Estate, that rent was to continue to be the same and could not be compensation if the mortgagee became the owner of the property and required it to be vacated or if the mortgagor redeemed the ~property, there would be a fresh agreement of tenancy between the lessee and the mortgagor. The Division Bench was of view that the admission implied in the recitals had not evidentiary value as the lease of the land and shops had originally been obtained by Haji Khuda Bux, that he died only on May 10, 1918, and when this agreement was entered into on January 29, 1918 khuda Bux was alive and was the virtual owner of the shops and the lessee of the land. The Division Bench held that since Faqir Bux had not legal interest in the property or the shops at the time, the admission implied in the agreement that there was not permanent leases in favour of Khuda Bux cannot behind Khuda Bux or his heirs after his death. This view of the Division Bench might be technically correct. But that would not help the respondents. The point to be considered was whether there was evidence to show the permanent leases in favour of Haji Khuda Bux of the two plots. If as a matter of fact Haji Khuda bux was a permanent tenant of the two plots, it was highly improbable that Faqir Box would have entered into an agreement of this nature with the Maharaja of Balrampur. The question was not whether the admission implied in the recitals in the agreement was binding on the legal representative of Faqir Bux as admission; the question was whether in the facts and circumstances of the case, Faqir Bux would have entered into Appeal an agreement of this nature with the Maharaja of Balrampur if as a matter of fact Khuda Bux was a permanent lessee of the plots by virtue of permanent leases set up by defendants 1 to 3. We do not think that Faqir Bux, who was practically managing the business under the partnership deed would have entered into an agreement of this nature, had Haji Khuda Bux been a permanent lessee of these plots.15. The onus of proving the permanent leases set up was upon defendants 1 to 3. The two alleged leases were oral. The only person who could have deposed to the two agreements of lease was Faqir Bux. But he did not go to the witness box to swear to the case.16. In this case the origin of the tenancies is known and, therefore, it is not a case of tenancies of which the origin is not known. No question of lost grant arises in the case. It would appear that the rent remained constant with a slight variation. It also appears that Haji Khuda Bux and Faqir Bux have been making at first kachcha constructions on the vacant piece of land in their possession, sometimes with the permission of the owner or the mortgagee and sometimes without their permission. Most of the pucca constructions were made after 1992 when Faqir Bux acquired a share in the property.17. The mere fact that an uniform fixed rent had been paid for a long time or the fact that Haji Khuda Bux and Faqir Bux had been in possession of the land for a long time and making constructions on land at their own cost would not, in the circumstances of this case raise a presumption that the permanency of tenancy is a question of fact depending upon the facts of permanency of tenancy is a question of fact depending upon the facts each particular case. In A. S. N. Nainapillai Markayar v. T. A. R. A. Rm. Ramanathan Chettiar (AIR 1924 PC 65 : 51 IA 83 : 82 IC 226 : 46 MLJ 546) it was ruled that the onus of proving that a occupation at a fixed rent does not raise a presumption of permanent occupation at a fixed rent does not raise a presumption of permanent tenancy. The same view was held in Subrahmanya Chettiar v. V. P. Subrahmanya Mudaliyar (AIR 1929 PC 156 : 56 IA 248 : 116 IC 601 : 57 MLJ 1). In Bejoy Gopal Mukherji v. Pratul Chandra Ghose (1953 SCR 930 : AIR 1953 SC 153 : 1953 SCJ 195 ), this Court said that neither possession for generations at uniform rent nor construction of permanent structures by itself is conclusive proof of permanent tenancy. It is the cumulative effect of these circumstance coupled with several other facts that may lead to an inference of permanent tenancy. In the circumstances of the case we think that the learned single judge was right in his conclusion and that the Division Bench went wrong in reversing the judgment and decree of the Division Bench and restore decree passed by the singly Judge.18.

1[ds]7. As all the courts below have disbelieved the oral evidence adduced to establish the permanent leases, we do not think it necessary to deal with the same. So the question is whether the documentary evidence in the case would support the case of permanent leases put forward by defendants 1 to 3.8. In the deed of gift dated September 18, 1874, executed by Mumtaz Mahal in favour of Mulko, Mumtaz Mahal referred to the ahata as a grove with pucca shops and in her possession. It would seem from that document that nobody else had put up any constructions in this property at the time the gift deed was executed; nor is there any mention of the permanent lease in 1870 in favour of Haji Khuda Bux or hisof any portion of the property.9. On January 16, 1885, Mulko executed the sale deed in favour of Rahim Bux, but this document is not of any help to either of the parities. On February 12, 1904, Rahim Bux, his two brothers, their three sisters and the widow of Babu khuda Bux executed a mortgage deed in favour of the Maharaja of Balrampur. The names of the tenants are mentioned along with the number of the house/shops occupied by them. The serial numbers 8, 9, and 10 are the three shops in blue portion. Khuda Bux, tobacco seller, is described as their tenant and rent is Rs. 3/3 for each shop. Serial numbers 35 and 36 are the two compounds. Khuda Bux, tobacco seller is described as their tenant. The rent of compound 35 specified as Rs. 3/3 and of the other compound as Rs. 2 per months. Compound 36 is the portion marked red in the Commissioners plan and the compound 35 is the portion marked blue there. In this document there is not reference to the nature of the tenancy in favour of Khuda Bux. The total rent of the three shops and the compounds 35 and 36 was Rs.paragraph is of significance because the executants did not mention that they were holding the land under any permanent lease. They contemplated the possibility that they might have top vacate the land and the shops. They visualised in that event they would be get compensation in respect of the buildings which they had constructed; so they provided that any such compensations obtained or realised from the owner of the land would be treated as their joint property. The clause shows beyond any doubt that the executants did not consider that they were permanent lessees of the land in 1909.In this case the origin of the tenancies is known and, therefore, it is not a case of tenancies of which the origin is not known. No question of lost grant arises in the case. It would appear that the rent remained constant with a slight variation. It also appears that Haji Khuda Bux and Faqir Bux have been making at first kachcha constructions on the vacant piece of land in their possession, sometimes with the permission of the owner or the mortgagee and sometimes without their permission. Most of the pucca constructions were made after 1992 when Faqir Bux acquired a share in the property.17. The mere fact that an uniform fixed rent had been paid for a long time or the fact that Haji Khuda Bux and Faqir Bux had been in possession of the land for a long time and making constructions on land at their own cost would not, in the circumstances of this case raise a presumption that the permanency of tenancy is a question of fact depending upon the facts of permanency of tenancy is a question of fact depending upon the facts each particular case. In A. S. N. Nainapillai Markayar v. T. A. R. A. Rm. Ramanathan Chettiar (AIR 1924 PC 65 : 51 IA 83 : 82 IC 226 : 46 MLJ 546) it was ruled that the onus of proving that a occupation at a fixed rent does not raise a presumption of permanent occupation at a fixed rent does not raise a presumption of permanent tenancy. The same view was held in Subrahmanya Chettiar v. V. P. Subrahmanya Mudaliyar (AIR 1929 PC 156 : 56 IA 248 : 116 IC 601 : 57 MLJ 1). In Bejoy Gopal Mukherji v. Pratul Chandra Ghose (1953 SCR 930 : AIR 1953 SC 153 : 1953 SCJ 195 ), this Court said that neither possession for generations at uniform rent nor construction of permanent structures by itself is conclusive proof of permanent tenancy. It is the cumulative effect of these circumstance coupled with several other facts that may lead to an inference of permanent tenancy. In the circumstances of the case we think that the learned single judge was right in his conclusion and that the Division Bench went wrong in reversing the judgment and decree of the Division Bench and restore decree passed by the singly Judge.

### Instruction: Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request? ### Input: that he (Faqir Bux) cannot be evicted from "any portion of the land without payment of the cost of the constructions by way of compensation. No permanent tansy was set up in the written statement. What was pleaded was that he was entitled to remain in possession till the subsistence of the factory and that he was not liable to be evicted without payment of compensation for the constructions.14. The learned single judge, after considering these documents, found that the defendants 1 to 3 failed to establish the permanent tenancy set up by them. The main ground on which the Division Bench interfered with the finding of the learned single judge was that no weight could be attached to the admission contained in the recitals in the agreement made between Faqir Bux and the Maharaja of Balrampur. It may be recalled that the recitals in that agreement (Ex 12) was that Faqir Bux was occupying the land and the shops on payment of rent and he and Haji Khuda Bux had erected structures on land with their own funds with or without the permission of Balrampur Estate, that rent was to continue to be the same and could not be compensation if the mortgagee became the owner of the property and required it to be vacated or if the mortgagor redeemed the ~property, there would be a fresh agreement of tenancy between the lessee and the mortgagor. The Division Bench was of view that the admission implied in the recitals had not evidentiary value as the lease of the land and shops had originally been obtained by Haji Khuda Bux, that he died only on May 10, 1918, and when this agreement was entered into on January 29, 1918 khuda Bux was alive and was the virtual owner of the shops and the lessee of the land. The Division Bench held that since Faqir Bux had not legal interest in the property or the shops at the time, the admission implied in the agreement that there was not permanent leases in favour of Khuda Bux cannot behind Khuda Bux or his heirs after his death. This view of the Division Bench might be technically correct. But that would not help the respondents. The point to be considered was whether there was evidence to show the permanent leases in favour of Haji Khuda Bux of the two plots. If as a matter of fact Haji Khuda bux was a permanent tenant of the two plots, it was highly improbable that Faqir Box would have entered into an agreement of this nature with the Maharaja of Balrampur. The question was not whether the admission implied in the recitals in the agreement was binding on the legal representative of Faqir Bux as admission; the question was whether in the facts and circumstances of the case, Faqir Bux would have entered into Appeal an agreement of this nature with the Maharaja of Balrampur if as a matter of fact Khuda Bux was a permanent lessee of the plots by virtue of permanent leases set up by defendants 1 to 3. We do not think that Faqir Bux, who was practically managing the business under the partnership deed would have entered into an agreement of this nature, had Haji Khuda Bux been a permanent lessee of these plots.15. The onus of proving the permanent leases set up was upon defendants 1 to 3. The two alleged leases were oral. The only person who could have deposed to the two agreements of lease was Faqir Bux. But he did not go to the witness box to swear to the case.16. In this case the origin of the tenancies is known and, therefore, it is not a case of tenancies of which the origin is not known. No question of lost grant arises in the case. It would appear that the rent remained constant with a slight variation. It also appears that Haji Khuda Bux and Faqir Bux have been making at first kachcha constructions on the vacant piece of land in their possession, sometimes with the permission of the owner or the mortgagee and sometimes without their permission. Most of the pucca constructions were made after 1992 when Faqir Bux acquired a share in the property.17. The mere fact that an uniform fixed rent had been paid for a long time or the fact that Haji Khuda Bux and Faqir Bux had been in possession of the land for a long time and making constructions on land at their own cost would not, in the circumstances of this case raise a presumption that the permanency of tenancy is a question of fact depending upon the facts of permanency of tenancy is a question of fact depending upon the facts each particular case. In A. S. N. Nainapillai Markayar v. T. A. R. A. Rm. Ramanathan Chettiar (AIR 1924 PC 65 : 51 IA 83 : 82 IC 226 : 46 MLJ 546) it was ruled that the onus of proving that a occupation at a fixed rent does not raise a presumption of permanent occupation at a fixed rent does not raise a presumption of permanent tenancy. The same view was held in Subrahmanya Chettiar v. V. P. Subrahmanya Mudaliyar (AIR 1929 PC 156 : 56 IA 248 : 116 IC 601 : 57 MLJ 1). In Bejoy Gopal Mukherji v. Pratul Chandra Ghose (1953 SCR 930 : AIR 1953 SC 153 : 1953 SCJ 195 ), this Court said that neither possession for generations at uniform rent nor construction of permanent structures by itself is conclusive proof of permanent tenancy. It is the cumulative effect of these circumstance coupled with several other facts that may lead to an inference of permanent tenancy. In the circumstances of the case we think that the learned single judge was right in his conclusion and that the Division Bench went wrong in reversing the judgment and decree of the Division Bench and restore decree passed by the singly Judge.18. ### Response: 1

Ramesh Prasad Singh Vs. State Of Bihar & Ors

to establish that the protection of the equal opportunity clause has been denied to them, it is not enough for the respondents to, say that they have been treated differently from others, not even enough that a differenti al treatment has been accorded to them in comparison with others similarly circumstanced. Discrimination is the essence of classification and does violence to the constitutional guaran tee of equality only if it rests on an unreasonable basis. It was therefore incumbent on the respondents to plead and show that the classification of Assistant Engineers into those who hold diplomas and those who hold degrees is unreasonable and bears no rational nexus with its purported object .... On the facts of the case, classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification .... Educational qualifications have been recognized by this Court as a safe criterion for determining the validity of classification. In State of Mysore v. P. Narasing Rao (supra) where the cadre of Tracers was reorganized into two, one consisting of matriculate Tracers with a higher scale of pay and the other of non- Matriculates in the lower scale, it was held that articles 14 and 16 do not exclude the laying down of selective tests nor do they preclude the Government from laying down qualifications for the post in question. Therefore, it was open to the Government to give preference to candidates having higher educational qualifications. In Ganga Ram v. Union of India (supra), it was observed that "the State which encounters diverse problems arising from a variety of circumstances is entitled to lay down conditions of efficiency for promotion in its different departments". In the Union of India v. Dr. (Mrs.) S. B. Kohli (supra), as refined a classification as between an F.R.C.S. in general surgery and an F.R.C.S. in Orthopaedics was upheld in relation to appointment to the post of a Professor of Orthopaedics on the ground that the classification made on the basis of requirement of a post graduate degree in particular speciality was not "without reference to the objectives sought to be achieved and there can be no question of discrimination".The following observations made in State of Mysore v. P. Narasing Rao (supra) will also amply repay perusal:-"it is well settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. Where any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of tile group, and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. In other words, there must be sonic rational nexus between the basis of classification and tile object intended to be achieved by the statute or the rule. As we have already stated, Articles 14 and 15 form part of the same constitutional code of guarantees and supplement each other. In other words, Art. 16 is only an instance of the application of tile general rule of equality laid down in Art. 14 and it should be construed as such. Hence there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Articles 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection."7. In the instant case, the qualifications required for the post of Executive Engineer (Tele-Communication) as demonstrably rejected in the proposal for creation of that post and the aforesaid recommendation of the Selection Committee setting out various factors which went in favour of the promotion of the appellant app ear to be founded oil reasonable classification having an intelligible differentia which distinguished the appellant from respondents 3 to 28 and the differentia had a reasonable relation to the object sought to be achieved. It is, therefore, crystal clear that respondents 3 to 28 did not stand at par with the appellant and had no legal right which they could claim to have been denied to them by an authority which had a legal duty to do something. With all respect the High Court was in our judgment therefore, not right in issuing the writ of mandamus. It would be useful in this context to refer to the following observations made by this Court in Mani Subrat Jain &Ors. v. State of Haryana &Ors.([1977] 1 S.C.C. 486.)"It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable, right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. [See Halsburys Laws of England, 4th Ed. Vol. 1, Paragraph 122; State of Haryna v. Subhash Chander Marwaha ([1974] 1. S.C.R. 165.) Jasbhai Motibhai Desai v. Roshan Kumar Haji Bushuur Ahmmed([1976] 3 S.C.R. 58.) and Ferris: Extra-Ordinary Legal Remedies. paragraph 198]".8. In view of the foregoing, we, are unable to hold on the material, before us that the criterion employed by the concerned authority in promoting the appellant was arbitrary or capricious or was not intended to increase the efficiency in the functioning of the department or was based on extraneous or irrelevant considerations or suffered from any other vice.

1[ds]In the State of Jammu &Kashmir v. Triloki Nath Khosea &Ors. (supra) where after integration of diploma holder and degree holder Assistant Engineers in one class , it was provided by the J& Engineering (Gazetted) Service Rules, 1970 that only those Assistant Engineers who possessed a degree in Engineering would be eligible for promotion to the post of Executive Engineer and the diploma holder Assistant Engineers who were rendered ineligible for promotion to the post of Executive Engineer filed a writ petition challenging the constitutionality of the rule and the classification on which it was claimed to be based on the ground that once the employees are integrated into one class, they cannot for purposes of promotion be classified again into two different classes on the basis of educational differences existing at the time of recruitment, the Constitution Bench held rejecting the contention of the diploma holder Assistant Engineers that formal education may not always produce excellence but a classification founded on variant educational qualifications is, for purposes of promotion to the post of an Executive Engineer, to say the least, not unjust on the face of it and the onus therefore cannot shift from where it originallyfollowing passages occurring in the leading judgment of our learned brother Chandrachud, J. in that case are worth quoting:-"In order to establish that the protection of the equal opportunity clause has been denied to them, it is not enough for the respondents to, say that they have been treated differently from others, not even enough that a differenti al treatment has been accorded to them in comparison with others similarly circumstanced. Discrimination is the essence of classification and does violence to the constitutional guaran tee of equality only if it rests on an unreasonable basis. It was therefore incumbent on the respondents to plead and show that the classification of Assistant Engineers into those who hold diplomas and those who hold degrees is unreasonable and bears no rational nexus with its purported object .... On the facts of the case, classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification .... Educational qualifications have been recognized by this Court as a safe criterion for determining the validity of classification. In State of Mysore v. P. Narasing Rao (supra) where the cadre of Tracers was reorganized into two, one consisting of matriculate Tracers with a higher scale of pay and the other of non- Matriculates in the lower scale, it was held that articles 14 and 16 do not exclude the laying down of selective tests nor do they preclude the Government from laying down qualifications for the post in question. Therefore, it was open to the Government to give preference to candidates having higher educational qualifications. In Ganga Ram v. Union of India (supra), it was observed that "the State which encounters diverse problems arising from a variety of circumstances is entitled to lay down conditions of efficiency for promotion in its different departments". In the Union of India v. Dr. (Mrs.) S. B. Kohli (supra), as refined a classification as between an F.R.C.S. in general surgery and an F.R.C.S. in Orthopaedics was upheld in relation to appointment to the post of a Professor of Orthopaedics on the ground that the classification made on the basis of requirement of a post graduate degree in particular speciality was not "without reference to the objectives sought to be achieved and there can be no question ofthe instant case, the qualifications required for the post of Executive Engineer (Tele-Communication) as demonstrably rejected in the proposal for creation of that post and the aforesaid recommendation of the Selection Committee setting out various factors which went in favour of the promotion of the appellant app ear to be founded oil reasonable classification having an intelligible differentia which distinguished the appellant from respondents 3 to 28 and the differentia had a reasonable relation to the object sought to be achieved. It is, therefore, crystal clear that respondents 3 to 28 did not stand at par with the appellant and had no legal right which they could claim to have been denied to them by an authority which had a legal duty to do something. With all respect the High Court was in our judgment therefore, not right in issuing the writ of mandamus. It would be useful in this context to refer to the following observations made by this Court in Mani Subrat Jain &Ors. v. State of Haryana &Ors.([1977] 1 S.C.C. 486.)"It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable, right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doingview of the foregoing, we, are unable to hold on the material, before us that the criterion employed by the concerned authority in promoting the appellant was arbitrary or capricious or was not intended to increase the efficiency in the functioning of the department or was based on extraneous or irrelevant considerations or suffered from any otheris, in our opinion, considerable force in these submissions.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: to establish that the protection of the equal opportunity clause has been denied to them, it is not enough for the respondents to, say that they have been treated differently from others, not even enough that a differenti al treatment has been accorded to them in comparison with others similarly circumstanced. Discrimination is the essence of classification and does violence to the constitutional guaran tee of equality only if it rests on an unreasonable basis. It was therefore incumbent on the respondents to plead and show that the classification of Assistant Engineers into those who hold diplomas and those who hold degrees is unreasonable and bears no rational nexus with its purported object .... On the facts of the case, classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification .... Educational qualifications have been recognized by this Court as a safe criterion for determining the validity of classification. In State of Mysore v. P. Narasing Rao (supra) where the cadre of Tracers was reorganized into two, one consisting of matriculate Tracers with a higher scale of pay and the other of non- Matriculates in the lower scale, it was held that articles 14 and 16 do not exclude the laying down of selective tests nor do they preclude the Government from laying down qualifications for the post in question. Therefore, it was open to the Government to give preference to candidates having higher educational qualifications. In Ganga Ram v. Union of India (supra), it was observed that "the State which encounters diverse problems arising from a variety of circumstances is entitled to lay down conditions of efficiency for promotion in its different departments". In the Union of India v. Dr. (Mrs.) S. B. Kohli (supra), as refined a classification as between an F.R.C.S. in general surgery and an F.R.C.S. in Orthopaedics was upheld in relation to appointment to the post of a Professor of Orthopaedics on the ground that the classification made on the basis of requirement of a post graduate degree in particular speciality was not "without reference to the objectives sought to be achieved and there can be no question of discrimination".The following observations made in State of Mysore v. P. Narasing Rao (supra) will also amply repay perusal:-"it is well settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. Where any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of tile group, and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. In other words, there must be sonic rational nexus between the basis of classification and tile object intended to be achieved by the statute or the rule. As we have already stated, Articles 14 and 15 form part of the same constitutional code of guarantees and supplement each other. In other words, Art. 16 is only an instance of the application of tile general rule of equality laid down in Art. 14 and it should be construed as such. Hence there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Articles 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection."7. In the instant case, the qualifications required for the post of Executive Engineer (Tele-Communication) as demonstrably rejected in the proposal for creation of that post and the aforesaid recommendation of the Selection Committee setting out various factors which went in favour of the promotion of the appellant app ear to be founded oil reasonable classification having an intelligible differentia which distinguished the appellant from respondents 3 to 28 and the differentia had a reasonable relation to the object sought to be achieved. It is, therefore, crystal clear that respondents 3 to 28 did not stand at par with the appellant and had no legal right which they could claim to have been denied to them by an authority which had a legal duty to do something. With all respect the High Court was in our judgment therefore, not right in issuing the writ of mandamus. It would be useful in this context to refer to the following observations made by this Court in Mani Subrat Jain &Ors. v. State of Haryana &Ors.([1977] 1 S.C.C. 486.)"It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable, right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. [See Halsburys Laws of England, 4th Ed. Vol. 1, Paragraph 122; State of Haryna v. Subhash Chander Marwaha ([1974] 1. S.C.R. 165.) Jasbhai Motibhai Desai v. Roshan Kumar Haji Bushuur Ahmmed([1976] 3 S.C.R. 58.) and Ferris: Extra-Ordinary Legal Remedies. paragraph 198]".8. In view of the foregoing, we, are unable to hold on the material, before us that the criterion employed by the concerned authority in promoting the appellant was arbitrary or capricious or was not intended to increase the efficiency in the functioning of the department or was based on extraneous or irrelevant considerations or suffered from any other vice. ### Response: 1

National Institute of Medical Science University Rajasthan & Another Vs. State of Rajasthan & Others

in the Authority is required at any time by the Nagar Nigam, Jaipur for carrying out its functions, or by the State Government for any other purpose, the State Government may, by notification in the Official Gazette, place such land at the disposal of the Nagar Nigam, Jaipur or any Department of the State Government on such terms and conditions, as may be deemed fit. (4) All land acquired by the Authority, or by the State Government and transferred to the Authority, shall be disposed of by the Authority in the same manner as may be prescribed for land in sub-section (1).)The High Court noted that no application was made by NIMS to the Jaipur Development Authority for allotment of Khasra No. 526 or any other Khasra of village Jugalpura. 26. Under these circumstances, the Division Bench took the view that NIMS had encroached upon Khasra No. 526 and had raised constructions thereon without any permission or sanction and that it was not possible to ignore the illegalities committed by NIMS. 27. NIMS contended before the Division Bench that since massive constructions had already been made, no useful purpose would be served by demolishing the construction. It was submitted that demolition would not serve any public purpose. This submission was rejected by the Division Bench by relying upon a decision of this Court in Jagpal Singh v. State of Punjab (2011) 11 SCC 396 ) to the effect that if land is not available for allotment and construction is made thereon, then that construction must be demolished. 28. The High Court also took the view that if appropriate steps are not taken to remove the encroachment, it would encourage others to encroach upon land and to seek regularization of any illegal construction made thereon. 29. As far as the decision rendered by the Appellate Tribunal is concerned, the Division Bench noted that the report of 11th September 2012 was unimpeachable and there was no doubt that NIMS had encroached on 8125 sq. mtrs. of land in Khasra No. 526. Proceeding in this Court 30. It was submitted by learned counsel for NIMS that no encroachment was made by NIMS and that in any event there were a large number of encroachers in the catchment areas. According to learned counsel there was no reason why only NIMS should be singled out for adverse or punitive treatment. We are not at all impressed by the submissions made by learned counsel. 31. What is before us is really only a factual dispute. NIMS has not been able to show any perversity, on facts, in the orders passed by the Appellate Tribunal or by the learned Single Judge or by the Division Bench. 32. One of the factual conclusions arrived at by the High Court is that NIMS had made a request for allotment of Khasra No. 526 for the first time only on 28th February 2005 and that too before the Chief Minister who was not the competent authority to make the allotment – the competent authority being the Collector of Jaipur district. Why NIMS chose to directly approach the Chief Minister is a mystery which can be solved only by NIMS. 33. Post 1st October 2007 there was no request made by NIMS to the Jaipur Development Authority for the allotment of Khasra No. 526. 34. Assuming there was no response from the Chief Minister to that or any other representation made by NIMS to any authority including the Jaipur Development Authority for allotment of Khasra No. 526, NIMS had no right to assume that its request for allotment had been accepted (or not rejected) by the Chief Minister or the Jaipur Development Authority and on that assumption to make constructions on the land without any permission or sanction. 35. It has also come on record as a matter of fact that NIMS had encroached upon 8125 sq. mtrs. in Khasra No. 526. It has also come on record that in fact NIMS had not filed any objections to the Report dated 11th September 2012 before the Appellate Tribunal. It has also come on record that as a matter of fact due to the illegal and unlawful construction having been made in the area by several parties including NIMS, Ramgarh Lake is now absolutely dry and the residents of Jaipur city are suffering from water shortage because of this - since water from the region was being supplied to Jaipur city before the area dried up. These undisputed facts are enough to dismiss the petitions filed by NIMS. There is no law that supports the brazenness of NIMS in wantonly encroaching on Khasra No. 526 and then making huge constructions thereon. 36. Learned counsel for NIMS did not place before us any law or decision to support the encroachment by NIMS on Khasra No. 526. But, learned counsel for the Jaipur Development Authority as well as learned counsel for Dinesh Kumar Saini a reporter of Current Jwala (Respondent No. 2) drew our attention to Section 16 of the Rajasthan Tenancy Act, 1955 which prohibits accrual of Khatedari rights in pasture land. (16. Lands in which Khatedari rights shall not accrue – Notwithstanding anything in this Act or in any other law or enactment for the time being in force in any part of the State Khatedari rights shall not accrue in – (i) pasture land; (ii) to (xiv) xxxx Provided that …..)It was submitted that in view of this provision, assuming the land in Khasra No. 526 to be pasture land, NIMS could not have acquired Khatedari rights as claimed. Conclusion 37. It is most unfortunate that despite orders passed by the Rajasthan High Court in Abdul Rahman and in the suo motu petition and views expressed by the Monitoring Committee appointed by the High Court as well as the Expert Committee set up by the State Government and plan of action having been prepared by the State Government, nothing substantive appears to have been achieved on the ground over the years.

0[ds]30. It was submitted by learned counsel for NIMS that no encroachment was made by NIMS and that in any event there were a large number of encroachers in the catchment areas. According to learned counsel there was no reason why only NIMS should be singled out for adverse or punitive treatment. We are not at all impressed by the submissions made by learned counsel.31. What is before us is really only a factual dispute. NIMS has not been able to show any perversity, on facts, in the orders passed by the Appellate Tribunal or by the learned Single Judge or by the Division Bench32. One of the factual conclusions arrived at by the High Court is that NIMS had made a request for allotment of Khasra No. 526 for the first time only on 28th February 2005 and that too before the Chief Minister who was not the competent authority to make the allotment – the competent authority being the Collector of Jaipur district. Why NIMS chose to directly approach the Chief Minister is a mystery which can be solved only by NIMS33. Post 1st October 2007 there was no request made by NIMS to the Jaipur Development Authority for the allotment of Khasra No. 52634. Assuming there was no response from the Chief Minister to that or any other representation made by NIMS to any authority including the Jaipur Development Authority for allotment of Khasra No. 526, NIMS had no right to assume that its request for allotment had been accepted (or not rejected) by the Chief Minister or the Jaipur Development Authority and on that assumption to make constructions on the land without any permission or sanction35. It has also come on record as a matter of fact that NIMS had encroached upon 8125 sq. mtrs. in Khasra No. 526. It has also come on record that in fact NIMS had not filed any objections to the Report dated 11th September 2012 before the Appellate Tribunal. It has also come on record that as a matter of fact due to the illegal and unlawful construction having been made in the area by several parties including NIMS, Ramgarh Lake is now absolutely dry and the residents of Jaipur city are suffering from water shortage because of this - since water from the region was being supplied to Jaipur city before the area dried up. These undisputed facts are enough to dismiss the petitions filed by NIMS. There is no law that supports the brazenness of NIMS in wantonly encroaching on Khasra No. 526 and then making huge constructions thereon36. Learned counsel for NIMS did not place before us any law or decision to support the encroachment by NIMS on Khasra No. 526.37. It is most unfortunate that despite orders passed by the Rajasthan High Court in Abdul Rahman and in the suo motu petition and views expressed by the Monitoring Committee appointed by the High Court as well as the Expert Committee set up by the State Government and plan of action having been prepared by the State Government, nothing substantive appears to have been achieved on the ground over the years.39. In our opinion, merely dismissing the petitions would serve no useful purpose since it appears to us that NIMS is a rather powerful and influential entity. We say this because it has been able to successfully frustrate its eviction and demolition of the construction for at least one decade. Even before us an attempt was made to take an adjournment so that it could possibly use its influence over whoever it may be to get some favourable executive orders40. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors (1999) 6 SCC 464 )this Court directed enforcement of the rule of law by demolition of unauthorized constructions. It was held as follows:The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion the wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.. This view was followed and endorsed in Jagpal Singh in the following words:In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs. 100 croresIn Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733 )this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion this decision will apply with even greater force in cases of encroachment of village common land. Ordinarily, compounding in such cases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for themIn many States government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such Government orders are illegal, and should be ignored.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: in the Authority is required at any time by the Nagar Nigam, Jaipur for carrying out its functions, or by the State Government for any other purpose, the State Government may, by notification in the Official Gazette, place such land at the disposal of the Nagar Nigam, Jaipur or any Department of the State Government on such terms and conditions, as may be deemed fit. (4) All land acquired by the Authority, or by the State Government and transferred to the Authority, shall be disposed of by the Authority in the same manner as may be prescribed for land in sub-section (1).)The High Court noted that no application was made by NIMS to the Jaipur Development Authority for allotment of Khasra No. 526 or any other Khasra of village Jugalpura. 26. Under these circumstances, the Division Bench took the view that NIMS had encroached upon Khasra No. 526 and had raised constructions thereon without any permission or sanction and that it was not possible to ignore the illegalities committed by NIMS. 27. NIMS contended before the Division Bench that since massive constructions had already been made, no useful purpose would be served by demolishing the construction. It was submitted that demolition would not serve any public purpose. This submission was rejected by the Division Bench by relying upon a decision of this Court in Jagpal Singh v. State of Punjab (2011) 11 SCC 396 ) to the effect that if land is not available for allotment and construction is made thereon, then that construction must be demolished. 28. The High Court also took the view that if appropriate steps are not taken to remove the encroachment, it would encourage others to encroach upon land and to seek regularization of any illegal construction made thereon. 29. As far as the decision rendered by the Appellate Tribunal is concerned, the Division Bench noted that the report of 11th September 2012 was unimpeachable and there was no doubt that NIMS had encroached on 8125 sq. mtrs. of land in Khasra No. 526. Proceeding in this Court 30. It was submitted by learned counsel for NIMS that no encroachment was made by NIMS and that in any event there were a large number of encroachers in the catchment areas. According to learned counsel there was no reason why only NIMS should be singled out for adverse or punitive treatment. We are not at all impressed by the submissions made by learned counsel. 31. What is before us is really only a factual dispute. NIMS has not been able to show any perversity, on facts, in the orders passed by the Appellate Tribunal or by the learned Single Judge or by the Division Bench. 32. One of the factual conclusions arrived at by the High Court is that NIMS had made a request for allotment of Khasra No. 526 for the first time only on 28th February 2005 and that too before the Chief Minister who was not the competent authority to make the allotment – the competent authority being the Collector of Jaipur district. Why NIMS chose to directly approach the Chief Minister is a mystery which can be solved only by NIMS. 33. Post 1st October 2007 there was no request made by NIMS to the Jaipur Development Authority for the allotment of Khasra No. 526. 34. Assuming there was no response from the Chief Minister to that or any other representation made by NIMS to any authority including the Jaipur Development Authority for allotment of Khasra No. 526, NIMS had no right to assume that its request for allotment had been accepted (or not rejected) by the Chief Minister or the Jaipur Development Authority and on that assumption to make constructions on the land without any permission or sanction. 35. It has also come on record as a matter of fact that NIMS had encroached upon 8125 sq. mtrs. in Khasra No. 526. It has also come on record that in fact NIMS had not filed any objections to the Report dated 11th September 2012 before the Appellate Tribunal. It has also come on record that as a matter of fact due to the illegal and unlawful construction having been made in the area by several parties including NIMS, Ramgarh Lake is now absolutely dry and the residents of Jaipur city are suffering from water shortage because of this - since water from the region was being supplied to Jaipur city before the area dried up. These undisputed facts are enough to dismiss the petitions filed by NIMS. There is no law that supports the brazenness of NIMS in wantonly encroaching on Khasra No. 526 and then making huge constructions thereon. 36. Learned counsel for NIMS did not place before us any law or decision to support the encroachment by NIMS on Khasra No. 526. But, learned counsel for the Jaipur Development Authority as well as learned counsel for Dinesh Kumar Saini a reporter of Current Jwala (Respondent No. 2) drew our attention to Section 16 of the Rajasthan Tenancy Act, 1955 which prohibits accrual of Khatedari rights in pasture land. (16. Lands in which Khatedari rights shall not accrue – Notwithstanding anything in this Act or in any other law or enactment for the time being in force in any part of the State Khatedari rights shall not accrue in – (i) pasture land; (ii) to (xiv) xxxx Provided that …..)It was submitted that in view of this provision, assuming the land in Khasra No. 526 to be pasture land, NIMS could not have acquired Khatedari rights as claimed. Conclusion 37. It is most unfortunate that despite orders passed by the Rajasthan High Court in Abdul Rahman and in the suo motu petition and views expressed by the Monitoring Committee appointed by the High Court as well as the Expert Committee set up by the State Government and plan of action having been prepared by the State Government, nothing substantive appears to have been achieved on the ground over the years. ### Response: 0

SHREE CHOUDHARY TRANSPORT COMPANY Vs. INCOME TAX OFFICER

question were transported through the trucks employed by the appellant but, there was no privity of contract between the truck operators/owners and the said consignor company. Indisputably, it was the responsibility of the appellant to transport the goods (cement) of the company; and how to accomplish this task of transportation was a matter exclusively within the domain of the appellant. Hence, hiring the services of truck operators/owners for this purpose could have only been under a contract between the appellant and the said truck operators/owners. Whether such a contract was reduced into writing or not carries hardly any relevance. In the given scenario and set up, the said truck operators/owners answered to the description of sub-contractor for carrying out the whole or part of the work undertaken by the contractor (i.e., the appellant) for the purpose of Section 194C(2) of the Act. 15.2. The suggestions on behalf of the appellant that the said truck operators/owners were not bound to supply the trucks as per the need of the appellant nor the freight payable to them was pre-determined, in our view, carry no meaning at all. Needless to observe that if a particular truck was not engaged, there existed no contract but, when any truck got engaged for the purpose of execution of the work undertaken by the appellant and freight charges were payable to its operator/owner upon execution of the work, i.e., transportation of the goods, all the essentials of making of a contract existed; and, as aforesaid, the said truck operator/owner became a sub-contractor for the purpose of the work in question. The AO, CIT(A) and the ITAT have concurrently decided this issue against the appellant with reference to the facts of the case, particularly after appreciating the nature of contract of the appellant with the consignor company as also the nature of dealing of the appellant, while holding that the truck operators/owners were engaged by the appellant as sub-contractors. The same findings have been endorsed by the High Court in its short order dismissing the appeal of the appellant. We are unable to find anything of error or infirmity in these findings. 15.3. The decision of Delhi High Court in the case of Hardarshan Singh (supra), in our view, has no application whatsoever to the facts of the present case. The assessee therein, who was in the business of transporting goods, had four trucks of his own and was also acting as a commission agent by arranging for transportation through other transporters. As regards the income of assessee relatable to transportation through other transporters, it was found that the assessee had merely acted as a facilitator or as an intermediary between the two parties (i.e., the consignor company and the transporter) and had no privity of contract with either of such parties inasmuch as he only collected freight charges from the clients who intended to transport their goods through other transporters; and the amount thus collected from the clients was paid to those transporters by the assessee while deducting his commission. Looking to the nature of such dealings, the said assessee was held to be not the person responsible for making payments in terms of Section 194C of the Act and hence, having no obligation to deduct tax at source. In contradistinction to the said case of Hardarshan Singh, the appellant of the present case was not acting as a facilitator or intermediary between the consignor company and the truck operators/owners because those two parties had no privity of contract between them. The contract of the company, for transportation of its goods, had only been with the appellant and it was the appellant who hired the services of the trucks. The payment made by the appellant to such a truck operator/owner was clearly a payment made to a sub-contractor. 15.4. Though the decision of this Court in the case of Palam Gas Service (supra) essentially relates to the interpretation of Section 40(a)(ia) of the Act and while the relevant aspects concerning the said provision shall be examined in the next question but, for the present purpose, the facts of that case could be usefully noticed, for being akin to the facts of the present case and being of apposite illustration. Therein, the assessee was engaged in the business of purchase and sale of LPG cylinders whose main contract for carriage of LPG cylinders was with Indian Oil Corporation, Baddi wherefor, the assessee received freight payments from the principal. The assessee got the transportation of LPG done through three persons to whom he made the freight payments. The Assessing Officer held that the assessee had entered into a sub-contract with the said three persons within the meaning of Section 194C of the Act. Such findings of AO were concurrently upheld up to the High Court and, after interpretation of Section 40(a)(ia), this Court also approved the decision of the High Court while dismissing the appeal with costs. Learned counsel for the appellant has made an attempt to distinguish the nature of contract in Palam Gas Service by suggesting that therein, the assessees sub-contractors were specific and identified persons with whom the assessee had entered into contract whereas the present appellant was free to hire the service of any truck operator/owner and, in fact, the appellant hired the trucks only on need basis. In our view, such an attempt of differentiation is totally baseless and futile. Whether the appellant had specific and identified trucks on its rolls or had been picking them up on freelance basis, the legal effect on the status of parties had been the same that once a particular truck was engaged by the appellant on hire charges for carrying out the part of work undertaken by it (i.e., transportation of the goods of the company), the operator/owner of that truck became the sub-contractor and all the requirements of Section 194C came into operation. 15.5. Thus, we have no hesitation in affirming the concurrent findings in regard to the applicability of Section 194C to the present case.

1[ds]15. In order to maintain that the appellant was under no obligation to make any deduction of tax at source, it has been argued that there was no oral or written contract of the appellant with the truck operators/owners, whose vehicles were engaged to execute the work of transportation of the goods only on freelance and need basis. The submission has been that the question of TDS under Section 194C(2) would have arisen only if the payment was made to a sub-contractor and that too, in pursuance of a contract for the purpose of carrying whole or any part of work undertaken by the contractor . In our view, the submissions so made remain entirely baseless.15.1. The nature of contract entered into by the appellant with the consignor company makes it clear that the appellant was to transport the goods (cement) of the consignor company; and in order to execute this contract, the appellant hired the transport vehicles, namely, the trucks from different operators/owners. The appellant received freight charges from the consignor company, who indeed deducted tax at source while making such payment to the appellant. Thereafter, the appellant paid the charges to the persons whose vehicles were hired for the purpose of the said work of transportation of goods. Thus, the goods in question were transported through the trucks employed by the appellant but, there was no privity of contract between the truck operators/owners and the said consignor company. Indisputably, it was the responsibility of the appellant to transport the goods (cement) of the company; and how to accomplish this task of transportation was a matter exclusively within the domain of the appellant. Hence, hiring the services of truck operators/owners for this purpose could have only been under a contract between the appellant and the said truck operators/owners. Whether such a contract was reduced into writing or not carries hardly any relevance. In the given scenario and set up, the said truck operators/owners answered to the description of sub-contractor for carrying out the whole or part of the work undertaken by the contractor (i.e., the appellant) for the purpose of Section 194C(2) of the Act.15.2. The suggestions on behalf of the appellant that the said truck operators/owners were not bound to supply the trucks as per the need of the appellant nor the freight payable to them was pre-determined, in our view, carry no meaning at all. Needless to observe that if a particular truck was not engaged, there existed no contract but, when any truck got engaged for the purpose of execution of the work undertaken by the appellant and freight charges were payable to its operator/owner upon execution of the work, i.e., transportation of the goods, all the essentials of making of a contract existed; and, as aforesaid, the said truck operator/owner became a sub-contractor for the purpose of the work in question. The AO, CIT(A) and the ITAT have concurrently decided this issue against the appellant with reference to the facts of the case, particularly after appreciating the nature of contract of the appellant with the consignor company as also the nature of dealing of the appellant, while holding that the truck operators/owners were engaged by the appellant as sub-contractors. The same findings have been endorsed by the High Court in its short order dismissing the appeal of the appellant. We are unable to find anything of error or infirmity in these findings.15.3. The decision of Delhi High Court in the case of Hardarshan Singh (supra), in our view, has no application whatsoever to the facts of the present case. The assessee therein, who was in the business of transporting goods, had four trucks of his own and was also acting as a commission agent by arranging for transportation through other transporters. As regards the income of assessee relatable to transportation through other transporters, it was found that the assessee had merely acted as a facilitator or as an intermediary between the two parties (i.e., the consignor company and the transporter) and had no privity of contract with either of such parties inasmuch as he only collected freight charges from the clients who intended to transport their goods through other transporters; and the amount thus collected from the clients was paid to those transporters by the assessee while deducting his commission. Looking to the nature of such dealings, the said assessee was held to be not the person responsible for making payments in terms of Section 194C of the Act and hence, having no obligation to deduct tax at source. In contradistinction to the said case of Hardarshan Singh, the appellant of the present case was not acting as a facilitator or intermediary between the consignor company and the truck operators/owners because those two parties had no privity of contract between them. The contract of the company, for transportation of its goods, had only been with the appellant and it was the appellant who hired the services of the trucks. The payment made by the appellant to such a truck operator/owner was clearly a payment made to a sub-contractor.15.4. Though the decision of this Court in the case of Palam Gas Service (supra) essentially relates to the interpretation of Section 40(a)(ia) of the Act and while the relevant aspects concerning the said provision shall be examined in the next question but, for the present purpose, the facts of that case could be usefully noticed, for being akin to the facts of the present case and being of apposite illustration. Therein, the assessee was engaged in the business of purchase and sale of LPG cylinders whose main contract for carriage of LPG cylinders was with Indian Oil Corporation, Baddi wherefor, the assessee received freight payments from the principal. The assessee got the transportation of LPG done through three persons to whom he made the freight payments. The Assessing Officer held that the assessee had entered into a sub-contract with the said three persons within the meaning of Section 194C of the Act. Such findings of AO were concurrently upheld up to the High Court and, after interpretation of Section 40(a)(ia), this Court also approved the decision of the High Court while dismissing the appeal with costs. Learned counsel for the appellant has made an attempt to distinguish the nature of contract in Palam Gas Service by suggesting that therein, the assessees sub-contractors were specific and identified persons with whom the assessee had entered into contract whereas the present appellant was free to hire the service of any truck operator/owner and, in fact, the appellant hired the trucks only on need basis. In our view, such an attempt of differentiation is totally baseless and futile. Whether the appellant had specific and identified trucks on its rolls or had been picking them up on freelance basis, the legal effect on the status of parties had been the same that once a particular truck was engaged by the appellant on hire charges for carrying out the part of work undertaken by it (i.e., transportation of the goods of the company), the operator/owner of that truck became the sub-contractor and all the requirements of Section 194C came into operation.15.5. Thus, we have no hesitation in affirming the concurrent findings in regard to the applicability of Section 194C to the present case.Question No.2.16. While taking up the question of interpretation of Section 40(a)(ia), it may be usefully noticed that Section 194C is placed in Chapter XVII of the Act on the subject Collection and Recovery of Tax; and specific provisions are made in the Act to ensure that the requirements of Section 194C are met and complied with, while also providing for the consequences of default. As noticed, Section 200 specifically provides for the duties of the person deducting tax to deposit and submit the statement to that effect. The consequences of failure to deduct or pay the tax are then provided in Section 201 of the Act which, as noticed, puts such defaulting person in the category of the assessee in default in respect of the tax apart from other consequences which he or it may incur. The aspect relevant for the present purpose is that Section 40 of the Act, and particularly the provision contained in sub-clause (ia) of clause (a) thereof, indeed provides for one of such consequences.16.2. In the overall scheme of the provisions relating to collection and recovery of tax, it is evident that the object of legislature in introduction of the provisions like sub-clause (ia) of clause (a) of Section 40 had been to ensure strict and punctual compliance of the requirement of deducting tax at source. In other words, the consequences, as provided therein, had the underlying objective of ensuring compliance of the requirements of TDS. It is also noteworthy that in the proviso added to clause (ia) of Section 40(a) of the Act, it was provided that where in respect of the sum referable to TDS requirement, tax has been deducted in any subsequent year, or has been deducted during the previous year but paid in any subsequent year after the expiry of the time prescribed in Section 200(1), such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid.16.3. The purpose and coverage of this provision as also protection therein have been tersely explained by this Court in the case of Calcutta Export Company (supra), which has been cited by learned counsel for the appellant in support of another limb of submissions which we shall be dealing with in the next question. For the present purpose, we may notice the relevant observations of this Court in Calcutta Export Company as regards Section 40(a)(ia) of the Act as follows (at p. 662 of ITR):-. Taking up the question as to whether disallowance under Section 40(a)(ia) of the Act is confined to the amount payable and not to the amount alreadywe find that these aspects of interpretation do not require much dilation in view of the ratio of the decision of this Court in the case of Palam Gas Service (supra).16.5. In fact, the decision in Palam Gas Service (supra) is a direct answer to all the contentions urged on behalf of the appellant in the present case. In that case, this Court approved the views of Punjab and Haryana High Court in the case of P.M.S. Diesels and Ors. v. Commissioner of Income-Tax: (2015) 374 ITR 562 as regards mandatory nature of the provisions relating to the liability to deduct tax at source in the following words (at pp. 306-308 of ITR):-11. The Punjab & Haryana High Court in P.M.S. Diesels v. CIT [2015] 374 ITR 562 (P&H), has held these provisions to be mandatory in nature with the following observations:The liability to deduct tax at source under the provisions of Chapter XVII is mandatory. A person responsible for paying any sum is also liable to deposit the amount in the Government account. All the sections in Chapter XVII-B require a person to deduct the tax at source at the rates specified therein. The requirement in each of the sections is preceded by the word shall. The provisions are, therefore, mandatory. There is nothing in any of the sections that would warrant our reading the word shall as may. The point of time at which the deduction is to be made also establishes that the provisions are mandatory. For instance, under section 194C, a person responsible for paying the sum is required to deduct the tax at the time of credit of such sum to the account of the contractor or at the time of the payment thereof. ......12. While holding the aforesaid view, the Punjab and Haryana High Court discussed the judgments of the Calcutta and Madras High Courts, which had taken the same view, and concurred with the same, which is clear from the following discussion contained in the judgment of the Punjab and Haryana High Court:A Division Bench of the Calcutta High Court in CIT v. Crescent Export Syndicate [2013] 216 Taxman 258 (Cal) held :13. …The term shall used in all these sections make it clear that these are mandatory provisions and applicable to the entire sum contemplated under the respective sections. These sections do not give any leverage to the assessee to make the payment without making TDS. On the contrary, the intention of the Legislature is evident from the fact that timing of deduction of tax is earliest possible opportunity to recover tax, either at the time of credit in the account of payee or at the time of payment to payee, whichever is earlier.Ms. Dhugga invited our attention to a judgment of the Division Bench of the Madras High Court in Tube Investments of India Ltd. v. Asst. CIT (TDS) [2010] 325 ITR 610 (Mad). The Division Bench referred to the statistics placed before it by the Department which disclosed that TDS collection had augmented the revenue. The gross collection of advance tax, surcharge, etc. was Rs 2,75,857.70 crores in the financial year 2008-09 of which the TDS component alone constituted Rs 1,30,470.80 crores. The Division Bench observed that introduction of section 40(a)(ia) had achieved the objective of augmenting the TDS to a substantial extent. The Division Bench also observed that when the provisions and procedures relating to TDS are scrupulously applied, it also ensured the identification of the payees thereby confirming the network of assessees and that once the assessees are identified it would enable the tax collection machinery to bring within its fold all such persons who are liable to come within the network of taxpayers. These objects also indicate the legislative intent that the requirement of deducting tax at source is mandatory.The liability to deduct tax at source is, therefore, mandatory.13. The aforesaid interpretation of sections 194C conjointly with section 200 and rule 30(2) is unblemished and without any iota of doubt. We, thus, give our imprimatur to the view taken…...(emphasis in bold supplied)16.5.1. Having said that deducting tax at source is obligatory, this Court proceeded to deal with the issue as to whether the word payable in Section 40(a)(ia) would cover only those cases where the amount is payable and not where it has actually been paid. This Court took note of the exhaustive interpretation of various aspects related with this issue by the Punjab and Haryana High Court in the case of P.M.S. Diesels (supra) as also by the Calcutta High Court in the case of Commissioner of Income-Tax, Kolkata- XI v. Crescent Export Syndicate: (2013) 216 Taxman 258 ; and while approving the same, this Court held, as regards implication and connotation of the expression payable used in this provision, as follows (at p. 310 of ITR):-15. We approve the aforesaid view as well. As a fortiori, it follows that section 40(a)(ia) covers not only those cases where the amount is payable but also when it is paid. In this behalf, one has to keep in mind the purpose with which section 40 was enacted and that has already been noted above. We have also to keep in mind the provisions of sections 194C and 200. Once it is found that the aforesaid sections mandate a person to deduct tax at source not only on the amounts payable but also when the sums are actually paid to the contractor, any person who does not adhere to this statutory obligation has to suffer the consequences which are stipulated in the Act itself. Certain consequences of failure to deduct tax at source from the payments made, where tax was to be deducted at source or failure to pay the same to the credit of the Central Government, are stipulated in section 201 of the Act. This section provides that in that contingency, such a person would be deemed to be an assessee in default in respect of such tax. While stipulating this consequence, section 201 categorically states that the aforesaid sections would be without prejudice to any other consequences which that defaulter may incur. Other consequences are provided under section 40(a)(ia) of the Act, namely, payments made by such a person to a contractor shall not be treated as deductible expenditure. When read in this context, it is clear that section 40(a)(ia) deals with the nature of default and the consequences thereof. Default is relatable to Chapter XVII-B (in the instant case sections 194C and 200, which provisions are in the aforesaid Chapter). When the entire scheme of obligation to deduct the tax at source and paying it over to the Central Government is read holistically, it cannot be held that the word payable occurring in section 40(a)(ia) refers to only those cases where the amount is yet to be paid and does not cover the cases where the amount is actually paid. If the provision is interpreted in the manner suggested by the appellant herein, then even when it is found that a person, like the appellant, has violated the provisions of Chapter XVII-B (or specifically sections 194C and 200 in the instant case), he would still go scot-free, without suffering the consequences of such monetary default in spite of specific provisions laying down these consequences…...(emphasis in bold supplied)16.6. We may profitably observe that in the case of P.M.S. Diesels (supra), the Punjab and Haryana High Court had extensively dealt with myriad features of Section 40(a)(ia) of the Act, including the term payable used therein as also the proviso thereto; and expounded on the entire gamut of this provision while making reference to Finance (No. 2) Bill of 2004 introducing the provision and while also drawing support from the views expressed by Calcutta High Court in the case of Crescent Export Syndicate (supra). As regards the interpretation of the term payable, it was observed in P.M.S. Diesels as under (at pp. 574-575 of ITR):-21. Section 40(a)(ia), therefore, applies not merely to assessees following the mercantile system but also to assessees following the cash system.If this view is correct and indeed we must proceed on the footing that it is, it goes a long way in indicating the fallacy in the appellants main contention, namely, if the payments have already been made by the assessee to the payee/contracting party, the provisions of section 40(a)(ia) would not be attracted even if the tax is not deducted and/or paid over to the Government account.22. Section 40(a)(ia) refers to the nature of the default and the consequence of the default. The default is a failure to deduct the tax at source under Chapter XVII-B or after deduction the failure to pay over the same to the Government account. The term payable only indicates the type or nature of the payments by the assessees to the persons/payees referred to in section 40(a)(ia), such as, contractors. It is not in respect of every payment to a payee referred to in Chapter XVII-B that an assessee is bound to deduct tax. There may be payments to persons referred to in Chapter XVII-B, which do not attract the provisions of Chapter XVII-B. The consequences under section 40(a)(ia) would only operate on account of failure to deduct tax where the tax is liable to be deducted under the provisions of the Act and in particular Chapter XVII-B thereof. It is in that sense that the term payable has been used. The term payable is descriptive of the payments which attract the liability to deduct tax at source. It does not categorize defaults on the basis of when the payments are made to the payees of such amounts which attract the liability to deduct tax at source.(emphasis in bold supplied)16.7. We find the above-extracted observations and reasonings, which have already been approved by this Court in Palam Gas Service (supra), to be precisely in accord with the scheme and purpose of Section 40(a)(ia) of the Act; and are in complete answer to the contentions urged by the learned counsel for the appellant. It is ex facie evident that the term payable has been used in Section 40(a)(ia) of the Act only to indicate the type or nature of the payments by the assessees to the payees referred therein. In other words, the expression payable is descriptive of the payments which attract the liability for deducting tax at source and it has not been used in the provision in question to specify any particular class of default on the basis as to whether payment has been made or not. The semantical suggestion by the learned counsel for the appellant, that this expression payable be read in contradistinction to the expression paid, sans merit and could only be rejected. In a nutshell, while respectfully following Palam Gas Service (supra), we could only iterate our approval to the interpretation by the Punjab and Haryana High Court in P.M.S. Diesels (supra).We are unable to find substance in any of these contentions. The decision of Co-ordinate Bench in Palam Gas Service (supra) on the core question of law is equally binding on this Bench and could be doubted only if the view, as taken, is shown to be not in conformity with any binding decision of the Larger Bench or any statutory provisions or any other reason of the like nature. We find none. In fact, a close look at the decision of P.M.S. Diesels (supra), which has been totally approved by this Court in Palam Gas Service, makes it clear that therein, every aspect of the matter, from a wide range of angles, was examined by the Punjab and Haryana High Court while drawing support from the decisions of other High Courts, particularly that of the Calcutta High Court in the case of Crescent Export Syndicate (supra).16.9. We are in respectful agreement with the observations in Palam Gas Service that the enunciations in P.M.S. Diesels had been of correct interpretation of the provisions contained in Section 40(a)(ia) of the Act. The decision in Palam Gas Service covers the entire matter and the said decision, in our view, does not require any reconsideration. That being the position, the contention urged on behalf of the appellant that disallowance under Section 40(a)(ia) does not relate to the amount already paid stands rejected.16.10. Another contention in regard to Section 40(a)(ia) of the Act, that its scope cannot be decided on the basis of Section 194C, has only been noted to be rejected. The interplay of these provisions is not far to seek where Section 40(a)(ia) is not a stand-alone provision but provides one of those additional consequences as indicated in Section 201 of the Act for default by a person in compliance of the requirements of the provisions contained in Part B of Chapter XVII of the Act. The scheme of these provisions makes it clear that the default in compliance of the requirements of the provisions contained in Part B of Chapter XVII of the Act (that carries Sections 194C, 200 and 201) leads, inter alia, to the consequence of Section 40(a)(ia) of the Act. Hence, the contours of Section 40(a)(ia) of the Act could be aptly defined only with reference to the requirements of the provisions contained in Part B of Chapter XVII of the Act, including Sections 194C, 200 and 201. Putting it differently, when the obligation of Section 194C of the Act is the foundation of the consequence provided by Section 40(a)(ia) of the Act, reference to the former is inevitable in interpretation of the latter.16.11. In view of the above, reference to the definition of the term paid in Section 43(2) of the Act is of no assistance to the appellant. Similarly, the observations in the case of J.K. Synthetics (supra), as regards the difference in connotation of the expressions payable and paid, in the context of liability to pay interest on the tax payable under the Rajasthan Sales Tax Act, 1954, has no co-relation whatsoever to the present case. Further, when it is found that the process of interpretation of Section 40(a)(ia) of the Act in P.M.S. Diesels (supra), as approved by this Court in Palam Gas Service (supra), had been with due application of the relevant principles, reference to the decision in the case of Institute of Chartered Accountants of India (supra), on the general principles of interpretation, does not advance the case of the appellant in any manner.Question No.317. Quite conscious of the position that the decision of this Court in Palam Gas Service (supra) practically covers the substance of present matter against the assessee, learned counsel for the assessee-appellant has made a few alternative attempts to argue against the disallowance in question.. Before proceeding further, it appears apposite to observe, as indicated in paragraph 7.3 hereinbefore, that in the copy of order passed by ITAT in this case, there is obvious typographical error on the date of coming into force of the amendment to Section 40 of the Act of 1961 by the Finance (No.2) Act, 2004 inasmuch as the said amendment was made applicable with effect from 01.04.2005 and not 01.04.2004, as appearing the copy of the order of ITAT. However, this error is not of material bearing because the amendment in question was applicable from and for the assessment year 2005-2006, for the reasons occurring infra.17.2. Reverting to the contentions urged in this case, there is no doubt that in PIU Ghosh (supra), the Calcutta High Court, indeed, took the view which the learned counsel for the appellant has canvassed before us. The Calcutta High Court observed that the said Finance (No.2) Act, 2004 got presidential assent on 10.09.2004 and it was provided that the provision in question shall stand inserted with effect from 01.04.2005. According to the Calcutta High Court, the assessee could not have foreseen prior to 10.09.2004 that any amount paid to a contractor without deducting tax at source was likely to become not deductible in computation of income under Section 40 and that the legislature, being conscious of the likely predicament, provided that the provision shall become operative from 01.04.2005. The High Court further proceeded to observe that any other interpretation would amount to punishing the assessee for no fault of his. The High Court further observed that Section 11 of the said Finance Act, inserting sub-clause (ia), did not provide that the same was to become effective from the assessment year 2005-2006. We may usefully reproduce the opinion of the Calcutta High Court in the case of PIU Ghosh, as under (at p. 326 of ITR):-9. Admittedly, the Finance Act, 2004 got presidential assent on September 10, 2004. The assessee could not have foreseen prior to September 10, 2004 that any amount paid to a contractor without deducting tax at source was likely to become not deductible under section 40. It is difficult to assume that the Legislature was not aware or did not foresee the aforesaid predicament. The Legislature therefore provided that the Act shall become operative on April 1, 2005. Any other interpretation shall amount to punishing the assessee for no fault of his following the judgment in the case of Hindustan Electro Graphites Ltd. (supra).10. On top of that, section 4 relied upon by Mr. Agarwal merely provides for an enactment as regards rate of tax to be charged in any particular assessment year which has no application to the case before us. Section 11 of the Finance (No. 2) Act, 2004 by which sub-clause (ia) was added to section 40(a) of the Income-tax Act does not provide that the same was to become effective from the assessment year 2005-06. It merely says it shall become effective on April 1, 2005 which for reasons already discussed should mean to refer to the financial year. There is, as such, no scope for any ambiguity nor is there any scope for confusion…...It appears, however, that the amount of deduction in the said case was only a sum of Rs. 4,30,386/- and obviously, the net tax effect in that case, decided on 12.07.2016, was on the lower side. In any case, the said decision cannot be treated as final declaration of law on the subject merely because the same has not been appealed against. Having examined the law applicable, with respect, we find it difficult to approve the above-quoted opinion of the Calcutta High Court, particularly when it does not appear standing in conformity with the scheme of assessment of income tax under the Act of 1961 and where the High Court seems to have not noticed the proviso to clause (ia) of Section 40(a) of the Act forming the part of the amendment in question.17.4. It needs hardly any detailed discussion that in income tax matters, the law to be applied is that in force in the assessment year in question, unless stated otherwise by express intendment or by necessary implication. As per Section 4 of the Act of 1961, the charge of income tax is with reference to any assessment year, at such rate or rates as provided in any central enactment for the purpose, in respect of the total income of the previous year of any person. The expression previous year is defined in Section 3 of the Act to mean the financial year immediately preceding the assessment year; and the expression assessment year is defined in clause (9) of Section 2 of the Act to mean the period of twelve months commencing on the 1 st day of April every year.17.6. We need not multiply on the case law on the subject as the principles aforesaid remain settled and unquestionable. Applying these principles to the case at hand, we are clearly of the view that the provision in question, having come into effect from 01.04.2005, would apply from and for the assessment year 2005-2006 and would be applicable for the assessment in question. Putting it differently, the legislature consciously made the said sub-clause (ia) of Section 40(a) of the Act effective from 01.04.2005, meaning thereby that the same was to be applicable from and for the assessment year 2005-2006; and neither there had been express intendment nor any implication that it would apply only from the financial year 2005-2006.17.7. The observations of Calcutta High Court in the case of PIU Ghosh (supra) as regards the likely prejudice to an assessee in relation to the financial year 2004-2005, in our view, do not relate to any legal grievance or legal prejudice. The requirement of deducting tax at source was already existing as per Section 194C of the Act and it was the bounden duty of the appellant to make such deduction of TDS and to make over the same to the revenue. Section 201 was also in existence which made it clear that default in making deduction in accordance with the provisions of the Act would make the appellant an assessee in default. The appellant cannot suggest that even if the obligation of TDS on the payments made by him was existing by virtue of Section 194C(2), he would have honoured such an obligation only if being aware of the drastic consequence of default that such payment shall not be deducted for the purpose of drawing up the assessment.17.7.1. Apart from the above, significant it is to notice that by the amendment in question, clause (ia) was added to Section 40(a) of the Act with a proviso to the effect that where, in respect of the sum referable to TDS requirement, tax has been deducted in any subsequent year, or has been deducted during the previous year but paid in any subsequent year after expiry of the time prescribed in Section 200(1), such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid. The proviso effectively took care of the case of any bonafide assessee who would earnestly comply with the requirement of deducting the tax at source. It is evident that the said proviso has totally escaped the attention of Calcutta High Court in the case of PIU Ghosh (supra). In fact, the relaxation by way of the proviso/s to Section 40(a)(ia) of the Act had further been modulated by way of various subsequent amendments to further mitigate the hardships of bonafide assessees, as noticed hereafter later. Suffice it to observe for the present purpose that the said decision in PIU Ghosh cannot be regarded as correct on law.17.8. In fact, if the contention of learned counsel for the appellant read with the proposition in PIU Ghosh (supra) is accepted and the said sub-clause (ia) of Section 40(a) of the Act is held applicable only from the financial year 2005-2006, the result would be that this provision would apply only from the assessment year 2006-2007. Such a result is neither envisaged nor could be countenanced. Hence, the contention that sub-clause (ia), of clause (a) of Section 40 of the Act would apply only from the financial year 2005-2006 and cannot apply to the present case pertaining to the financial year 2004-2005 stands rejected.18. The supplemental submission that in any case, disallowance cannot be applied to the payments already made prior to 10.09.2004, the date on which the Finance (No.2) Act, 2004 received the assent of the President of India, remains equally baseless. The said date of assent of the President of India to Finance (No.2) Act, 2004 is not the date of applicability of the provision in question, for the specific date having been provided as 01.04.2005. Of course, the said date relates to the assessment year commencing from 01.04.2005 (i.e., assessment year 2005-2006).18.1. Even if it be assumed, going by the suggestions of the appellant, that the requirements of Section 40(a)(ia) became known on 10.09.2004, the appellant could have taken all the requisite steps to make deductions or, in any case, to make payment of the TDS amount to the revenue during the same financial year or even in the subsequent year, as per the relaxation available in the proviso to Section 40(a)(ia) of the Act but, the appellant simply avoided his obligation and attempted to suggest that it had no liability to deduct the tax at source at all. Such an approach of the appellant, when standing at conflict with law, the consequence of disallowance under Section 40(a)(ia) of the Act remains inevitable.This line of argument has been grafted with reference to the decision in Calcutta Export Company (supra) wherein, another amendment of Section 40(a)(ia) by the Finance Act of 2010 was held by this Court to be retrospective in operation. The submission so made is not only baseless but is bereft of any logic. Neither the amendment made by the Finance (No.2) Act, 2014 could be stretched anterior the date of its substitution so as to reach the assessment year 2005-2006 nor the said decision in Calcutta Export Company has any correlation with the case at hand or with the amendment made by the Finance (No.2) Act of 2014.19.2. The aforesaid amendment by the Finance (No.2) Act of 2014 was specifically made applicable w.e.f. 01.04.2015 and clearly represents the will of the legislature as to what is to be deducted or what percentage of deduction is not to be allowed for a particular eventuality, from the assessment year 2015-2016.19.3. On the other hand, in the case of Calcutta Export Company (supra), this Court noticed the aforesaid two amendments to Section 40(a)(ia) of the Act by the Finance Act, 2008 and by the Finance Act, 2010, which were intended to deal with procedural hardship likely to be faced by the bonafide tax payer, who had deducted tax at source but could not make deposit within the prescribed time so as to claim deduction. In paragraph 17 of judgment in Calcutta Export Company, this Court took note of the case of genuine hardship, particularly of the assessees who had deducted tax at source in thelast month of previous year; and observed in paragraph 18 that the said amendment of the year 2008 was brought about with a view to mitigate such hardship. After reproducing the said amendment of the year 2008 and after noticing its retrospective operation, this Court delved into the position obtaining after 2008, where still remained one class of assessees who could not claim deduction for the TDS amount in the previous year in which the tax was deducted and who could claim benefit of such deduction in the next year only; and, after finding that the amendment of the year 2010 was intended to remedy this position, held that the said amendment, being curative in nature, is required to be given retrospective operation that is, from the date of insertion of Section 40(a)(ia).19.5. A bare look at the extraction aforesaid makes it clear that what this Court has held as regards retrospective operation is that the amendment of the year 2010, being curative in nature, would be applicable from the date of insertion of the provision in question i.e., sub-clause (ia) of Section 40(a) of the Act. This being the position, it is difficult to find any substance in the argument that the principles adopted by this Court in the case of Calcutta Export Company (supra) dealing with curative amendment, relating more to the procedural aspects concerning deposit of the deducted TDS, be applied to the amendment of the substantive provision by the Finance (No.2) Act, 2014.19.6. We may in the passing observe that the assessee-appellant was either labouring under the mistaken impression that he was not required to deduct TDS or under the mistaken belief that the methodology of splitting a single payment into parts below Rs. 20,000/- would provide him escape from the rigour of the provisions of the Act providing for disallowance. In either event, the appellant had not been a bonafide assessee who had made the deduction and deposited it subsequently. Obviously, the appellant could not have derived the benefits that were otherwise available by the curative amendments of 2008 and 2010. Having defaulted at every stage, the attempt on the part of assessee-appellant to seek some succor in the amendment of Section 40(a)(ia) of the Act by the Finance (No.2) Act, 2014 could only be rejected as entirely baseless, rather preposterous.Question No. 4we may usefully summarise the answers to Question Nos. 1 to 3 that the provisions of Section 194C were indeed applicable and the assessee-appellant was under obligation to deduct the tax at source in relation to the payments made by it for hiring the vehicles for the purpose of its business of transportation of goods; that disallowance under Section 40(a)(ia) of the Act is not limited only to the amount outstanding and this provision equally applies in relation to the expenses that had already been incurred and paid by the assessee; that disallowance under Section 40(a)(ia) of the Act of 961 as introduced by the Finance (No.2) Act, 2004 with effect from 01.04.2005 is applicable to the case at hand relating to the assessment year 2005-2006; and that the benefit of amendment made in the year 2014 to the provision in question is not available to the appellant in the present case. These answers practically conclude the matter but we have formulatedessentially to deal with the last limb of submissions regarding the prejudice likely to be suffered by the appellant.In the first place, it is clear from the provisions dealing with disallowance of deductions in part D of Chapter IV of the Act, particularly those contained in Sections 40(a)(ia) and 40A(3) of the Act, that the said provisions are intended to enforce due compliance of the requirement of other provisions of the Act and to ensure proper collection of tax as also transparency in dealings of the parties. The necessity of disallowance comes into operation only when default of the nature specified in the provisions takes place. Looking to the object of these provisions, the suggestions about prejudice or hardship carry no meaning at all. Secondly, as noticed, by way of the proviso as originally inserted and its amendments in the years 2008 and 2010, requisite relief to a bonafide tax payer who had collected TDS but could not deposit within time before submission of the return was also provided; and as regards the amendment of 2010, this Court ruled it to be retrospective in operation. The proviso so amended, obviously, safeguarded the interest of a bonafide assessee who had made the deduction as required and had paid the same to the revenue. The appellant having failed to avail the benefit of such relaxation too, cannot now raise a grievance of alleged hardship. Thirdly, as noticed, the appellant had shown total payments in Truck Freight Account at Rs. 1,37,71,206/- and total receipts from the company at Rs. 1,43,90,632/-. What has been disallowed is that amount of Rs. 57,11,625/- on which the appellant failed to deduct the tax at source and not the entire amount received from the company or paid to the truck operators/owners. Viewed from any angle, we do not find any case of prejudice or legal grievance with the appellant.

### 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: question were transported through the trucks employed by the appellant but, there was no privity of contract between the truck operators/owners and the said consignor company. Indisputably, it was the responsibility of the appellant to transport the goods (cement) of the company; and how to accomplish this task of transportation was a matter exclusively within the domain of the appellant. Hence, hiring the services of truck operators/owners for this purpose could have only been under a contract between the appellant and the said truck operators/owners. Whether such a contract was reduced into writing or not carries hardly any relevance. In the given scenario and set up, the said truck operators/owners answered to the description of sub-contractor for carrying out the whole or part of the work undertaken by the contractor (i.e., the appellant) for the purpose of Section 194C(2) of the Act. 15.2. The suggestions on behalf of the appellant that the said truck operators/owners were not bound to supply the trucks as per the need of the appellant nor the freight payable to them was pre-determined, in our view, carry no meaning at all. Needless to observe that if a particular truck was not engaged, there existed no contract but, when any truck got engaged for the purpose of execution of the work undertaken by the appellant and freight charges were payable to its operator/owner upon execution of the work, i.e., transportation of the goods, all the essentials of making of a contract existed; and, as aforesaid, the said truck operator/owner became a sub-contractor for the purpose of the work in question. The AO, CIT(A) and the ITAT have concurrently decided this issue against the appellant with reference to the facts of the case, particularly after appreciating the nature of contract of the appellant with the consignor company as also the nature of dealing of the appellant, while holding that the truck operators/owners were engaged by the appellant as sub-contractors. The same findings have been endorsed by the High Court in its short order dismissing the appeal of the appellant. We are unable to find anything of error or infirmity in these findings. 15.3. The decision of Delhi High Court in the case of Hardarshan Singh (supra), in our view, has no application whatsoever to the facts of the present case. The assessee therein, who was in the business of transporting goods, had four trucks of his own and was also acting as a commission agent by arranging for transportation through other transporters. As regards the income of assessee relatable to transportation through other transporters, it was found that the assessee had merely acted as a facilitator or as an intermediary between the two parties (i.e., the consignor company and the transporter) and had no privity of contract with either of such parties inasmuch as he only collected freight charges from the clients who intended to transport their goods through other transporters; and the amount thus collected from the clients was paid to those transporters by the assessee while deducting his commission. Looking to the nature of such dealings, the said assessee was held to be not the person responsible for making payments in terms of Section 194C of the Act and hence, having no obligation to deduct tax at source. In contradistinction to the said case of Hardarshan Singh, the appellant of the present case was not acting as a facilitator or intermediary between the consignor company and the truck operators/owners because those two parties had no privity of contract between them. The contract of the company, for transportation of its goods, had only been with the appellant and it was the appellant who hired the services of the trucks. The payment made by the appellant to such a truck operator/owner was clearly a payment made to a sub-contractor. 15.4. Though the decision of this Court in the case of Palam Gas Service (supra) essentially relates to the interpretation of Section 40(a)(ia) of the Act and while the relevant aspects concerning the said provision shall be examined in the next question but, for the present purpose, the facts of that case could be usefully noticed, for being akin to the facts of the present case and being of apposite illustration. Therein, the assessee was engaged in the business of purchase and sale of LPG cylinders whose main contract for carriage of LPG cylinders was with Indian Oil Corporation, Baddi wherefor, the assessee received freight payments from the principal. The assessee got the transportation of LPG done through three persons to whom he made the freight payments. The Assessing Officer held that the assessee had entered into a sub-contract with the said three persons within the meaning of Section 194C of the Act. Such findings of AO were concurrently upheld up to the High Court and, after interpretation of Section 40(a)(ia), this Court also approved the decision of the High Court while dismissing the appeal with costs. Learned counsel for the appellant has made an attempt to distinguish the nature of contract in Palam Gas Service by suggesting that therein, the assessees sub-contractors were specific and identified persons with whom the assessee had entered into contract whereas the present appellant was free to hire the service of any truck operator/owner and, in fact, the appellant hired the trucks only on need basis. In our view, such an attempt of differentiation is totally baseless and futile. Whether the appellant had specific and identified trucks on its rolls or had been picking them up on freelance basis, the legal effect on the status of parties had been the same that once a particular truck was engaged by the appellant on hire charges for carrying out the part of work undertaken by it (i.e., transportation of the goods of the company), the operator/owner of that truck became the sub-contractor and all the requirements of Section 194C came into operation. 15.5. Thus, we have no hesitation in affirming the concurrent findings in regard to the applicability of Section 194C to the present case. ### Response: 1

State of Rajasthan Vs. Laxman Singh

evidence available on record leads to the reasonable conclusion and the only conclusion of guilt of the accused persons under section 302 IPC. The learned counsel pointed out from the evidence of the doctor that the injuries found on the parietal region of the body of Bachhu Singh were sufficient in the ordinary course to cause death of the person. (7) Learned counsel appearing for the respondents strenuously urged that the judgment of the High Court is based on independent assessment of the evidence on record which the appellate court was entitled to do. On such assessment the High Court did not accept the part of the prosecution case leading to the charge under section 302 IPC. Absence of any explanation on the part of the accused persons, according to the learned counsel, is not relevant since the prosecution failed to establish that Bachhu Singh was in custody of the accused persons throughout the period after he was taken from the place of occurrence till the dead body was found lying on the highway. (8) On the rival contentions raised on behalf of the parties the question that arises for consideration is whether on the facts and circumstances of the case the High Court was right in interfering with the part of the judgment of the trial court convicting accused respondents of the charge under section 302 IPC. As noted earlier, this part of the case of the prosecution is based on circumstantial evidence only. The main circumstances which are patent from the evidence on record are; (1) the accused persons had caught hold of Bachhu Singh, assaulted him with iron rod and tyre lever and removed him in a truck driven by one of the accused Machhar Singh declaring that they will kill him; (2) the dead body was recovered lying on the public highway within a short time the incident took place at about 10.00 p.m. and information of death of Bachhu Singh was received by the police at about 11.15 p.m.; (3) Dr. Suresh Bansal clearly and categorically stated that the death took place on account of shock due to the incised wounds on the parietal region and such injuries could be inflicted by blunt weapons like iron rod and tyre lever. There is no other evidence from which it can be reasonably inferred that the doctors evidence to this effect is not acceptable. (4) total absence of any explanation on the part of the accused persons as to what they did to Bachhu Singh after they kidnapped him and till recovery of the dead body. In this case, it has been concurrently held by the courts below that the accused persons kidnapped Bachhu Singh in the manner discussed earlier. The learned counsel for the respondents fairly and, in our view rightly, did not challenge the concurrent findings recorded by the courts below. In that view of the matter, there is little scope for doubt that the circumstances leading to the death of Bachhu Singh point towards the culpability of the accused respondents in whose custody he was seen last. Coupled with it is the medical evidence that the antemortem injuries found on the parietal region of Bachhu Singh could be caused by the weapons like iron rod, tyre lever which were recovered in pursuance of the statements made by some of the accused persons from the truck and such injuries were sufficient to cause death of a person in ordinary course.(9) From the discussion in the judgment of the High Court, it appears that the court based its finding of acquittal of the charge under section 302 IPC mainly on the assumption that the external injuries found on the parietal region of the Bachhu Singh could not have been caused by blunt weapons like iron rod and tyre lever. No reason has been given by the High Court for not accepting the evidence of the doctor. Dr. Bansal stated in his evidence that his opinion was based on the authority of Modis medical jurisprudence that incised wounds may also be caused by blunt weapons. This view has also been accepted by this Court in the case of Suresh v. State of U.P. : 1981 (2) SCC 569 "There is one more argument which requires to be dealt with, namely, that two different weapons and the same two weapons were used against both Geeta and the appellant. We are not quite sure whether Geeta had received any incised injury because, the injuries which were found on her forehead can give the appearance of incised injuries, if caused by an iron rod. The skin just above a hard surface can break by a severe blow and give the appearance of an incised injury. But even assuming that the same two weapons were used on Geeta as also the appellant, it does not militate against the commission of the crime by the appellant himself. It is clear from the evidence of Dr. Guha and Dr Sharma that all the injuries on the person of both Geeta and the appellant were on the front portions of their respective bodies. It is also clear that the injury which resulted in the death of Geeta as also her son Anil was caused by the iron rod. We are inclined to the view that the weapons with which Geeta was defending herself at different stage of her life-saving fight with the appellant were snatched by the appellant and he hit her with those weapons. That is how similar injuries were found on the person of both." Further, it is stated in the judgment of the High Court that its findings are based on independent assessment of the evidence on record, but the court has not discussed the circumstantial evidence on record nor made any observations relating to them. In the circumstances, we have no hesitation to hold that the judgment of the High Court allowing the appeal in part and acquitting the accused respondents of the charge under section 302 IPC is unsustainable.

1[ds]In this case, it has been concurrently held by the courts below that the accused persons kidnapped Bachhu Singh in the manner discussed earlier. The learned counsel for the respondents fairly and, in our view rightly, did not challenge the concurrent findings recorded by the courts below. In that view of the matter, there is little scope for doubt that the circumstances leading to the death of Bachhu Singh point towards the culpability of the accused respondents in whose custody he was seen last. Coupled with it is the medical evidence that the antemortem injuries found on the parietal region of Bachhu Singh could be caused by the weapons like iron rod, tyre lever which were recovered in pursuance of the statements made by some of the accused persons from the truck and such injuries were sufficient to cause death of a person in ordinary course.(9) From the discussion in the judgment of the High Court, it appears that the court based its finding of acquittal of the charge under section 302 IPC mainly on the assumption that the external injuries found on the parietal region of the Bachhu Singh could not have been caused by blunt weapons like iron rod and tyre lever. No reason has been given by the High Court for not accepting the evidence of the doctor. Dr. Bansal stated in his evidence that his opinion was based on the authority of Modis medical jurisprudence that incised wounds may also be caused by bluntit is stated in the judgment of the High Court that its findings are based on independent assessment of the evidence on record, but the court has not discussed the circumstantial evidence on record nor made any observations relating to them. In the circumstances, we have no hesitation to hold that the judgment of the High Court allowing the appeal in part and acquitting the accused respondents of the charge under section 302 IPC is unsustainable.

### Instruction: Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)? ### Input: evidence available on record leads to the reasonable conclusion and the only conclusion of guilt of the accused persons under section 302 IPC. The learned counsel pointed out from the evidence of the doctor that the injuries found on the parietal region of the body of Bachhu Singh were sufficient in the ordinary course to cause death of the person. (7) Learned counsel appearing for the respondents strenuously urged that the judgment of the High Court is based on independent assessment of the evidence on record which the appellate court was entitled to do. On such assessment the High Court did not accept the part of the prosecution case leading to the charge under section 302 IPC. Absence of any explanation on the part of the accused persons, according to the learned counsel, is not relevant since the prosecution failed to establish that Bachhu Singh was in custody of the accused persons throughout the period after he was taken from the place of occurrence till the dead body was found lying on the highway. (8) On the rival contentions raised on behalf of the parties the question that arises for consideration is whether on the facts and circumstances of the case the High Court was right in interfering with the part of the judgment of the trial court convicting accused respondents of the charge under section 302 IPC. As noted earlier, this part of the case of the prosecution is based on circumstantial evidence only. The main circumstances which are patent from the evidence on record are; (1) the accused persons had caught hold of Bachhu Singh, assaulted him with iron rod and tyre lever and removed him in a truck driven by one of the accused Machhar Singh declaring that they will kill him; (2) the dead body was recovered lying on the public highway within a short time the incident took place at about 10.00 p.m. and information of death of Bachhu Singh was received by the police at about 11.15 p.m.; (3) Dr. Suresh Bansal clearly and categorically stated that the death took place on account of shock due to the incised wounds on the parietal region and such injuries could be inflicted by blunt weapons like iron rod and tyre lever. There is no other evidence from which it can be reasonably inferred that the doctors evidence to this effect is not acceptable. (4) total absence of any explanation on the part of the accused persons as to what they did to Bachhu Singh after they kidnapped him and till recovery of the dead body. In this case, it has been concurrently held by the courts below that the accused persons kidnapped Bachhu Singh in the manner discussed earlier. The learned counsel for the respondents fairly and, in our view rightly, did not challenge the concurrent findings recorded by the courts below. In that view of the matter, there is little scope for doubt that the circumstances leading to the death of Bachhu Singh point towards the culpability of the accused respondents in whose custody he was seen last. Coupled with it is the medical evidence that the antemortem injuries found on the parietal region of Bachhu Singh could be caused by the weapons like iron rod, tyre lever which were recovered in pursuance of the statements made by some of the accused persons from the truck and such injuries were sufficient to cause death of a person in ordinary course.(9) From the discussion in the judgment of the High Court, it appears that the court based its finding of acquittal of the charge under section 302 IPC mainly on the assumption that the external injuries found on the parietal region of the Bachhu Singh could not have been caused by blunt weapons like iron rod and tyre lever. No reason has been given by the High Court for not accepting the evidence of the doctor. Dr. Bansal stated in his evidence that his opinion was based on the authority of Modis medical jurisprudence that incised wounds may also be caused by blunt weapons. This view has also been accepted by this Court in the case of Suresh v. State of U.P. : 1981 (2) SCC 569 "There is one more argument which requires to be dealt with, namely, that two different weapons and the same two weapons were used against both Geeta and the appellant. We are not quite sure whether Geeta had received any incised injury because, the injuries which were found on her forehead can give the appearance of incised injuries, if caused by an iron rod. The skin just above a hard surface can break by a severe blow and give the appearance of an incised injury. But even assuming that the same two weapons were used on Geeta as also the appellant, it does not militate against the commission of the crime by the appellant himself. It is clear from the evidence of Dr. Guha and Dr Sharma that all the injuries on the person of both Geeta and the appellant were on the front portions of their respective bodies. It is also clear that the injury which resulted in the death of Geeta as also her son Anil was caused by the iron rod. We are inclined to the view that the weapons with which Geeta was defending herself at different stage of her life-saving fight with the appellant were snatched by the appellant and he hit her with those weapons. That is how similar injuries were found on the person of both." Further, it is stated in the judgment of the High Court that its findings are based on independent assessment of the evidence on record, but the court has not discussed the circumstantial evidence on record nor made any observations relating to them. In the circumstances, we have no hesitation to hold that the judgment of the High Court allowing the appeal in part and acquitting the accused respondents of the charge under section 302 IPC is unsustainable. ### Response: 1

ORIENTAL INSURANCE COMPANY LIMITED Vs. MAHENDRA CONSTRUCTION

also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person. (Emphasis supplied) In Satwant Kaur Sandhu v New India Assurance Co. Ltd (2009) 8 SCC 316 , a two-judge Bench of this Court held that under a contract of insurance, the insured is under a solemn obligation to make a true and full disclosure of information asked for in the proposal form: 18…Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, the obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment… (Emphasis supplied) It was further held there is a clear presumption that any information sought in the proposal form is a material fact: 25. The upshot of the entire discussion is that in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a material fact. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance. Information regarding insurance claims lodged by the respondent for his excavator in the preceding three years was a material fact. The burden of establishing that the insured made a false representation and suppressed material facts lies on the insurer. The insurer has placed on the record the best possible evidence in support of the plea that there was a misrepresentation and a suppression of material facts. The mere disclosure of a previous insurance policy did not discharge the obligation which was cast on the respondent, as the proposer, to make a full, true and complete disclosure of the claims which were lodged under the previous policy in the preceding three years. The proposal form contained a specific question regarding claims lodged in the preceding three years. The respondent was under a bounden duty to disclose that the excavator was previously insured with another insurer and that a claim for damage to the excavator on 12 April 2005 had been settled. It was only in the affidavit of evidence dated 6 January 2017, that the respondent disclosed that New India Assurance Company Limited had paid an amount of Rs 36.66 lakhs by cheque on 23 September 2005. This material fact was suppressed from the proposal form. 12. The burden cannot be cast upon the insurer to follow up on an inadequate disclosure by conducting a line of enquiry with the previous insurer in regard to the nature of the claims, if any, that were made under the earlier insurance policy. On the contrary, it was the plain duty of the respondent while making the proposal to make a clear and specific disclosure. The insurance policy with New India Assurance Company Limited was for the period from 15 November 2004 to 14 November 2005. The excavator remained uninsured from 15 November 2005 until 10 October 2006. The case of the respondent was that during that period, it was under repair. This fact, together with the receipt of the earlier insurance claim, was material to the decision of the insurer on whether to accept the proposal for insurance. The disclosures which were required in paragraph 25(g) of the proposal form were material to assess the risk profile of the vehicle at the time of accepting the proposal for insurance. 13. The SCDRC proceeded on the hypothesis that the insurer had not denied the averment of the respondent in the complaint that the Administrative Officer was fully satisfied of the previous insurance cover and claim, as is evident from the use of the expression enclosed in paragraph 25(g). The averment in paragraph 8 of the complaint was specifically denied by the insurer. But, that apart, it is evident on a bare reading of the proposal form that material information which was required to be disclosed was suppressed by the insured. The proposal form contains a declaration of the insured that the statements which are made are true to the knowledge of the proposer and the declaration forms the basis of the contract with the insurer. 14. In the circumstances, the decision of the SCDRC to allow the claim was erroneous and the NCDRC equally erred in affirming the decision. 15. Learned counsel appearing on behalf of the insured urged that the respondent relied on the Administrative Officer who filled in the requisite details in the proposal form. The fact of the matter is that the respondent was under an obligation to make a full disclosure of the status of the previous insurance policy, together with the material facts relevant to the claim which had been lodged with New India Assurance Company Limited. The fact that such a claim was lodged and had been settled at Rs 36.66 lakhs was suppressed. This suppression goes to the very root of the contract of insurance which would validate the grounds on which the claim was repudiated by the insurer.

1[ds]9. The proposal form which was filled up in order to obtain the policy of insurance merely records the date of purchase of the vehicle as 2004. As against the other queries, there is a handwritten endorsement, namely, enclosed10. The NCDRC entered a finding that since the previous insurance policy had been enclosed with the proposal form, the insurer could, upon further enquiry, have learnt of the status of the claims under the earlier policy. The NCDRC considered the exception to Section 19 of the Indian Contract Act, 1872 and held that the insurer could have easily verified the claims submitted by the insured under the previous policy. It was thus held that the insurer cannot deny the benefit of insurance on account of the information not having been disclosed in the proposal form. However, the NCDRC noted that the insured had not expressly disclosed the previous claim and in consequence, deducted twenty-five of the amount payable under the contract of insurance11. In our view, this line of reasoning of the NCDRC is flawed. Insurance is governed by the principle of utmost good faith, which imposes a duty of disclosure on the insured with regard to material facts.Information regarding insurance claims lodged by the respondent for his excavator in the preceding three years was a material fact. The burden of establishing that the insured made a false representation and suppressed material facts lies on the insurer. The insurer has placed on the record the best possible evidence in support of the plea that there was a misrepresentation and a suppression of material facts. The mere disclosure of a previous insurance policy did not discharge the obligation which was cast on the respondent, as the proposer, to make a full, true and complete disclosure of the claims which were lodged under the previous policy in the preceding three years. The proposal form contained a specific question regarding claims lodged in the preceding three years. The respondent was under a bounden duty to disclose that the excavator was previously insured with another insurer and that a claim for damage to the excavator on 12 April 2005 had been settled. It was only in the affidavit of evidence dated 6 January 2017, that the respondent disclosed that New India Assurance Company Limited had paid an amount of Rs 36.66 lakhs by cheque on 23 September 2005. This material fact was suppressed from the proposal form12. The burden cannot be cast upon the insurer to follow up on an inadequate disclosure by conducting a line of enquiry with the previous insurer in regard to the nature of the claims, if any, that were made under the earlier insurance policy. On the contrary, it was the plain duty of the respondent while making the proposal to make a clear and specific disclosure. The insurance policy with New India Assurance Company Limited was for the period from 15 November 2004 to 14 November 2005. The excavator remained uninsured from 15 November 2005 until 10 October 2006. The case of the respondent was that during that period, it was under repair. This fact, together with the receipt of the earlier insurance claim, was material to the decision of the insurer on whether to accept the proposal for insurance. The disclosures which were required in paragraph 25(g) of the proposal form were material to assess the risk profile of the vehicle at the time of accepting the proposal for insurance13. The SCDRC proceeded on the hypothesis that the insurer had not denied the averment of the respondent in the complaint that the Administrative Officer was fully satisfied of the previous insurance cover and claim, as is evident from the use of the expression enclosed in paragraph 25(g). The averment in paragraph 8 of the complaint was specifically denied by the insurer. But, that apart, it is evident on a bare reading of the proposal form that material information which was required to be disclosed was suppressed by the insured. The proposal form contains a declaration of the insured that the statements which are made are true to the knowledge of the proposer and the declaration forms the basis of the contract with the insurer14. In the circumstances, the decision of the SCDRC to allow the claim was erroneous and the NCDRC equally erred in affirming the decisionThe fact of the matter is that the respondent was under an obligation to make a full disclosure of the status of the previous insurance policy, together with the material facts relevant to the claim which had been lodged with New India Assurance Company Limited. The fact that such a claim was lodged and had been settled at Rs 36.66 lakhs was suppressed. This suppression goes to the very root of the contract of insurance which would validate the grounds on which the claim was repudiated by the insurer.

### 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: also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person. (Emphasis supplied) In Satwant Kaur Sandhu v New India Assurance Co. Ltd (2009) 8 SCC 316 , a two-judge Bench of this Court held that under a contract of insurance, the insured is under a solemn obligation to make a true and full disclosure of information asked for in the proposal form: 18…Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, the obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment… (Emphasis supplied) It was further held there is a clear presumption that any information sought in the proposal form is a material fact: 25. The upshot of the entire discussion is that in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a material fact. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance. Information regarding insurance claims lodged by the respondent for his excavator in the preceding three years was a material fact. The burden of establishing that the insured made a false representation and suppressed material facts lies on the insurer. The insurer has placed on the record the best possible evidence in support of the plea that there was a misrepresentation and a suppression of material facts. The mere disclosure of a previous insurance policy did not discharge the obligation which was cast on the respondent, as the proposer, to make a full, true and complete disclosure of the claims which were lodged under the previous policy in the preceding three years. The proposal form contained a specific question regarding claims lodged in the preceding three years. The respondent was under a bounden duty to disclose that the excavator was previously insured with another insurer and that a claim for damage to the excavator on 12 April 2005 had been settled. It was only in the affidavit of evidence dated 6 January 2017, that the respondent disclosed that New India Assurance Company Limited had paid an amount of Rs 36.66 lakhs by cheque on 23 September 2005. This material fact was suppressed from the proposal form. 12. The burden cannot be cast upon the insurer to follow up on an inadequate disclosure by conducting a line of enquiry with the previous insurer in regard to the nature of the claims, if any, that were made under the earlier insurance policy. On the contrary, it was the plain duty of the respondent while making the proposal to make a clear and specific disclosure. The insurance policy with New India Assurance Company Limited was for the period from 15 November 2004 to 14 November 2005. The excavator remained uninsured from 15 November 2005 until 10 October 2006. The case of the respondent was that during that period, it was under repair. This fact, together with the receipt of the earlier insurance claim, was material to the decision of the insurer on whether to accept the proposal for insurance. The disclosures which were required in paragraph 25(g) of the proposal form were material to assess the risk profile of the vehicle at the time of accepting the proposal for insurance. 13. The SCDRC proceeded on the hypothesis that the insurer had not denied the averment of the respondent in the complaint that the Administrative Officer was fully satisfied of the previous insurance cover and claim, as is evident from the use of the expression enclosed in paragraph 25(g). The averment in paragraph 8 of the complaint was specifically denied by the insurer. But, that apart, it is evident on a bare reading of the proposal form that material information which was required to be disclosed was suppressed by the insured. The proposal form contains a declaration of the insured that the statements which are made are true to the knowledge of the proposer and the declaration forms the basis of the contract with the insurer. 14. In the circumstances, the decision of the SCDRC to allow the claim was erroneous and the NCDRC equally erred in affirming the decision. 15. Learned counsel appearing on behalf of the insured urged that the respondent relied on the Administrative Officer who filled in the requisite details in the proposal form. The fact of the matter is that the respondent was under an obligation to make a full disclosure of the status of the previous insurance policy, together with the material facts relevant to the claim which had been lodged with New India Assurance Company Limited. The fact that such a claim was lodged and had been settled at Rs 36.66 lakhs was suppressed. This suppression goes to the very root of the contract of insurance which would validate the grounds on which the claim was repudiated by the insurer. ### Response: 1